Occupational Safety and Health Amendment Regulations (No. 2) 1999 (WA)

26 March 19991 GOVERNMENT GAZETTE, WA 1281

WORKSAFE

WS301*

Occupational Safety and Health Act 1984

Occupational Safety; and Health Amendment

Regulations (No. 2) 1999

Made by the Governor in Executive Council.

1.            Citation

These regulations may be cited as the Occupational Safety and
Health Amendment Regulations (NO. 2) 1999.

be an area in which persons may smoke;

2.            Commencement

These regulations come into operation on 29 March 1999
immediately after the Occupational Safety and Health
Amendment Regulations (No. 2) 1997 come into operation.

3.            Regulations 3.44A to 3.44F replaced

Regulations 3.44A, 3.44B, 3.44C, 3.44D, 3.44E and 3.44F of the Occupational Safety and Health Regulations 1996* are repealed and the following regulations are inserted instead —

44  

3.44A. Definitions

(1) In this Subdivision —

"designated smoking area" means an area of a

workplace designated under regulation 3.44F(1) to

1282 GOVERNMENT GAZETTE, WA [26 March 1999

"enclosed workplace" means a workplace that has,

whether permanently or temporarily -

(a)	a ceiling or roof and
(b)	walls, sides or other vertical coverings,

so that when the workplace's existing closeable
openings are closed, the workplace is completely

or substantially enclosed;

"smoke" means smoke, hold, or otherwise have control

over, an ignited tobacco product;

"tobacco product" has the definition it has in the

Tobacco Control Act 1990.

(2) For the purposes of the definition of "enclosed

workplace" in subregulation (1) it is immaterial that an
existing closeable opening is open at any particular

time.

3.44B. Certain persons prohibited from smoking in

enclosed workplaces

A person who, at an enclosed workplace, is an
employer, a self-employed person or an employee must
not smoke in the enclosed workplace.

Penalty: $5 000.

3.44C. Defence: smoking in a designated area of workplace

A person does not commit an offence under

regulation 3.4413 if, proof of which is on the person -

(a)	the person smokes in a designated smoking area;
(b)	the person is not working at the time he or she smokes; and
(c)	in the case of an employer, no employee is

working in the designated area when the

employer is smoking.

3.44D. Defence: smoking in a private vehicle or residence

A person does not commit an offence under

regulation 3.4413 if, proof of which is on the person -

(a) the enclosed workplace is -

(i)     a vehicle supplied by the person: or

(ii) the person's residence;

and

(b) no other person is present -

(i)     who, in the case of an employer, is that person's employee; or

(ii)     who, in the case of an employee, is also an employee of that person's employer.

26 March 19991 GOVERNMENT GAZETTE, WA 1283

3.44E. Defence: smoking in a performance

A person does not commit an offence under
regulation 3.44B if, proof of which is on the person, the
person is an actor, artist or other performer who

smokes for the purposes of a performance.

3.44F. Designated smoking areas

(1) A person who, at an enclosed workplace, is an

employer or a person having control of the workplace
may, subject to subregulations (2) and (3), designate an
area of the workplace to be an area in which persons

may smoke.

(2) A person who, at an enclosed workplace, is an

employer or a person having control of the workplace
must not designate an area of the workplace to be an

area in which persons may smoke unless -

(a)	the area is designed or arranged so that tobacco smoke from the area does not enter any other part of the workplace; and
(b)	there is provided an exhaust system that effectively extracts tobacco smoke from the area and which is arranged so as to prevent circulation of the extracted tobacco smoke into any part of the workplace.

(3) A person who, at an enclosed workplace, is an

employer or a person having control of the workplace
must not designate an area of the workplace to be an
area in which persons may smoke if it is an offence
under the Health (Smoking in Enclosed Public Places)
Regulations 1999 to smoke in that area.

Penalty applicable to subregulations (2) and (3): $25 000.

3.44G. Notice to be given as to restrictions on smoking A person who, at an enclosed workplace, is an
employer or a person having control of the workplace
must ensure that notice is given or displayed to persons
working in the workplace to the effect that smoking by
those persons is prohibited in the workplace.
Penalty: $25 000.

3.44H. Persons not to work in a designated smoking area

when persons are smoking in that area
(1) A person who, at an enclosed workplace, is an

employer must ensure that no employee is required to
work in a designated smoking area when a person is
smoking in that area.

1284 GOVERNMENT GAZETTE, WA 126 March 1999

(2) A person who, at an enclosed workplace, is a self-

employed person must not work in a designated
smoking area when a person is smoking in that area.

Penalty applicable to subregulations (1) and (2): $25 000.

3.441. Inspectors may require certain persons to

extinguish tobacco products

(1)	If an inspector has reasonable cause to believe that a person is smoking in contravention of regulation 3.44B the inspector may require the person to extinguish the tobacco product that the person is smoking.
(2)	A person must comply with an inspector's requirement under subregulation (I). Penalty: $5 000.
[* Published in Gazette 27 September 1996, PP.	4837-5080.

For amendments to 26 February 1999 see 1997 Index to
Legislation of Western Australia, Table 4, p. 196 and Gazette

6 February, 9 June, 17 July and 31 December 1998.]

By Command of the Governor,

M. C. WAUCHOPE, Clerk of the Executive Council.