Occupational Safety and Health Legislation Amendment and Repeal Act 2004 (WA)

Western Australia

Occupational Safety and Health Legislation

Amendment and Repeal Act 2004

Western Australia

Occupational Safety and Health Legislation

Amendment and Repeal Act 2004

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
3.	The Act amended	2
Part 2 — Amendments relating to

general workplace duties

4.	Part III Division 2 heading inserted	3
Division 2 — General workplace duties
5.	Section 19 amended	3
6.	Section 21 amended	3
7.	Sections 21B and 21C inserted	4

21B.

Duty placed on body corporate to which

section 23D, 23E or 23F applies

21C.

Breaches of section 21B

8. Part III Divisions 3, 4 and 5 and heading for

Division 6 inserted

Division 3 — Certain workplace situations to be

treated as employment

23C.	Terms used in this Division	6
23D.	Contract work arrangements	6
23E.	Labour arrangements in general	8
23F.	Labour hire arrangements	10

Occupational Safety and Health Legislation Amendment and Repeal Act

2004

Contents

Division 4 — Duty relating to certain

employment accommodation

23G.

Duty of employer to maintain safe

premises

23H.

Breaches of section 23G

Division 5 — Other duties

23I.

Notification of deaths, injuries and

diseases

23J.

Breaches of section 23I

23K.

Duty to inform employee who reports a

hazard or injury

23L.

Notification of hazard to person having

control of workplace

Division 6 — Resolution of workplace issues, and

refusal to work on grounds of risk

Section 41A inserted

41A.

Extended meaning of “employer” and

“employee”

10.	Section 43 amended	18
11.	Section 47A inserted	18

47A.

Extended meaning of “employer” and

“employee”

12.	Section 49 amended	18
13.	Schedule amended	19
Part 3 — Amendments relating to

offences and penalties

14.	Section 3 amended	20
15.	Sections 3A and 3B inserted	20

3A.	Penalty levels defined	20
3B.	Meaning of “first offence” and “subsequent
offence”	22

16.	Part III Division 1 inserted	23
Division 1 — Preliminary

18A.

Meaning of gross negligence in relation to

certain breaches of this Part

17.	Section 19 amended	23
18.	Section 19A inserted	24

19A.

Breaches of section 19(1)

19.	Section 20 amended	25
20.	Section 20A inserted	25

20A.

Breaches of section 20(1) or (3)

21.	Section 21 amended	26
22.	Section 21A inserted	26

Occupational Safety and Health Legislation Amendment and Repeal Act

2004

Contents

21A.

Breaches of section 21

23.	Section 22 amended	27
24.	Section 22A inserted	27

22A.

Breaches of section 22(1)

25.	Section 23 amended	28
26.	Section 23AA inserted	29

23AA.

Breaches of section 23

27.	Section 23A amended	30
28.	Section 23B inserted	30

23B.

Breaches of section 23A

29.	Section 23B repealed	31
30.	Part VII Division 1 heading inserted	31
Division 1 — General provisions
31.	Section 54 replaced	31

54.

General penalty

32.	Section 54AA repealed	31
33.	Section 54A amended	32
34.	Section 55 amended	32
35.	Section 55A inserted	33

55A.

No double jeopardy

36.	Part VII Divisions 2 and 3 inserted	34
Division 2 — Criminal proceedings against the

Crown

55B.	Crown may be prosecuted	34
55C.	Prosecution against body corporate	34
55D.	Prosecution in other cases	34
55E.	Provisions applicable to responsible
agency	35
55F.	Proceedings where agency has ceased to
exist	36
55G.	Penalties in proceedings against the
Crown	37

Division 3 — Undertaking by offender in lieu of

payment of fine

55H.	Terms used in this Division	38
55I.	Court may allow offender to make election	38
55J.	Making of election	39
55K.	Failure to enter into undertaking	40
55L.	Time for payment of fines	40
55M.	Nature and terms of undertaking	41
55N.	What may be included in undertaking	41
55O.	Effect of undertaking	43
55P.	Failure to comply with undertaking	43
55Q.	Amendment of undertaking	44
55R.	Undertaking may be published	44

Occupational Safety and Health Legislation Amendment and Repeal Act

2004

Contents

37.	Section 60 amended	44
Part 4 — Amendments relating to

safety and health representatives

and committees

38.	Section 3 amended	46
39.	Part IV Division 1 heading inserted	46
Division 1 — Safety and health representatives
40.	Section 29 amended	46
41.	Section 30 amended	47
42.	Sections 30A, 30B and 30C inserted	48

30A.	Election scheme may be established	48
30B.	What may be included in a scheme	49
30C.	Appointment of further delegates may be
required	50

43.	Section 31 amended	51
44.	Saving provision for existing safety and health
representatives	52
45.	Section 32 amended	53
46.	Section 33 amended	53
47.	Section 34 amended	54
48.	Section 35 amended	54
49.	Sections 35A, 35B, 35C and 35D inserted	56

35A.

Discrimination against safety and health

representative in relation to employment

35B.

Discrimination against safety and health representative in relation to contract for services

35C.

Claim may be referred to the Tribunal

35D.

Remedies that may be granted

50. Sections 36, 37, 38 and 39 repealed and replaced

by a Division heading and sections 36 to 39G

Division 2 — Safety and health committees

36.	Interpretation	60
37.	Employees to appoint representatives	61

38.	Obligation of employer to establish a

safety and health committee

39. Request for establishment of safety and

health committee

39A.

Referral of question to Commissioner

39B.

Employer may establish a safety and

health committee

39C.

How safety and health committee to be

constituted

Occupational Safety and Health Legislation Amendment and Repeal Act

2004

Contents

39D.

Commissioner may make determination in

certain cases

39E.

Functions of committee may cover more

than one workplace

39F.

Amendment of agreement and abolition of

committee

39G.

Review of Commissioner’s decision

51. Savings and transitional provisions for existing

safety and health committees

52.

Section 40 amended

53.

Section 41 amended

54.

Part VI Division 1 heading inserted

Division 1 — Issue of notices by inspector

55.

Part VI Division 2 inserted

Division 2 — Issue of provisional improvement

notices by safety and health representative

51AB.	Definition	72
51AC.	Issue of provisional improvement notices	72
51AD.	Consultation required before issue	73
51AE.	Contents of notice	74
51AF.	Provisional notices may include directions	75
51AG.	Failure to comply with notice	75
51AH.	Review of notice by an inspector	75

56.	Section 56 amended	77
57.	Schedule amended	77
Part 5 — Amendments relating to

inspectors

58. Section 42 replaced by sections 42, 42A, 42B and

42C

42.	Appointment of inspectors	78
42A.	Appointment of restricted inspectors	78
42B.	Powers of restricted inspector	79
42C.	Certificate of appointment	79

59.

Section 43 amended

60.

Section 45 amended

61.

Section 47 amended

Part 6 — Amendments relating to the

establishment of a tribunal

Division 1 — Amendments to the Occupational

Safety and Health Act 1984

62.

Long title amended

Occupational Safety and Health Legislation Amendment and Repeal Act

2004

Contents

63.	Section 3 amended	85
64.	Section 51A amended	85
65.	Section 51C amended	85
66.	Section 51D repealed	85
67.	Part VIB inserted	86
Part VIB — Occupational Safety and Health Tribunal

51F.	Interpretation	86
51G.	Industrial Relations Commission sitting as
the Occupational Safety and Health
Tribunal	86
51H.	Jurisdiction to be exercised by
Commissioner with requisite qualifications	87
51I.	Practice, procedure and appeals	87
51J.	Conciliation	88
51K.	Certain matters to be heard together	90

68.	Section 54B amended	91
69.	Various references to a safety and health
magistrate amended	91
Division 2 — Amendments to the *Industrial*

Relations Act 1979

70.	The Industrial Relations Act 1979 amended	92
Division 3 — Transitional provisions
71.	Existing referrals to safety and health magistrate	93
72.	Appeal proceedings in progress	94
Part 7 — Amendments to make

expressions in the Act gender

neutral

73.	Section 3 amended	95
74.	Section 4 amended	95
75.	Section 8 amended	96
76.	Section 9 amended	96
77.	Section 10 replaced	97

10.

Vacation of office

78.	Section 19 amended	98
79.	Section 20 amended	98
80.	Section 22 amended	99
81.	Section 23 amended	99
82.	Section 24 amended	99
83.	Section 27 amended	99
84.	Section 28 amended	100

Occupational Safety and Health Legislation Amendment and Repeal Act

2004

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85.	Section 30 amended	100
86.	Section 32 amended	100
87.	Section 33 amended	100
88.	Section 34 amended	101
89.	Section 35 amended	101
90.	Section 40 amended	102
91.	Section 43 amended	102
92.	Section 45 amended	102
93.	Section 47 amended	102
94.	Section 48 amended	102
95.	Section 49 amended	103
96.	Section 50 amended	104
97.	Section 51 amended	104
98.	Section 51A amended	104
99.	Section 56 amended	104
100.	Section 57 amended	105
101.	Schedule amended	105
102.	Feminine pronoun inserted in various provisions	105
103.	Relative pronoun replaced	107
Part 8 — Miscellaneous amendments
104.	Section 3 amended	108
105.	Section 6 amended	110
106.	Section 14A inserted	112

14A.

Mining Industry Advisory Committee

112

107.	Section 48 amended	114
108.	Section 49 amended	114
109.	Section 50A inserted	115

50A.

Notices may be issued to the Crown

115

110.

Section 51AA inserted

116

51AA.

Further power of Commissioner to cancel

notice

116

111.	Section 53 amended	117
112.	Section 56 amended	118
113.	Section 57A inserted	119

57A.

Visitors to comply with directions

119

114.	Schedule amended	120
115.	Mines Safety and Inspection Act 1994 amended
and saving provision	121

Occupational Safety and Health Legislation Amendment and Repeal Act

2004

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Part 9 — Repeal of Shearers’

Accommodation Act 1912

116.

Shearers’ Accommodation Act 1912 repealed

123

Western Australia

Occupational Safety and Health Legislation

Amendment and Repeal Act 2004

No. 51 of 2004

An Act to amend —

•	the *Occupational Safety and Health Act 1984*;
•	the **Industrial Relations Act 1979; and**
•	the *Mines Safety and Inspection Act 1994*,

and to repeal the Shearers’ Accommodation Act 1912.

[Assented to 12 November 2004]

The Parliament of Western Australia enacts as follows:

Occupational Safety and Health Legislation Amendment and

Repeal Act 2004

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This Act may be cited as the Occupational Safety and Health

Legislation Amendment and Repeal Act 2004.

2. Commencement

(1)

This Act comes into operation on a day fixed by proclamation.

(2)

Different days may be fixed under subsection (1) for different

provisions.

3. The Act amended

The amendments in Parts 2 to 8, except those in sections 70

and 115, are to the Occupational Safety and Health Act 1984*.

[* Reprinted as at 22 March 1999.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 267.]

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Amendments relating to general workplace duties

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Part 2 — Amendments relating to general

workplace duties

4. Part III Division 2 heading inserted

After section 18A the following heading is inserted —

“

Division 2 — General workplace duties

”.

5. Section 19 amended

Section 19(3), (4) and (5) are repealed.

6. Section 21 amended

Section 21(1) is repealed and the following subsections are

inserted instead —

“

(1)

A self-employed person shall take reasonable care to

ensure his or her own safety and health at work.

(2)

An employer or self-employed person shall, so far as is practicable, ensure that the safety or health of a person, not being (in the case of an employer) an employee of

the employer, is not adversely affected wholly or in

part as a result of —

(a)	work that has been or is being undertaken by —

(i) the employer or any employee of the employer; or

(ii) the self-employed person;

(b)	any hazard that arises from or is increased by —

(i) the work referred to in paragraph (a); or

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(ii) the system of work that has been or is being operated by the employer or the self-employed person.

”.

7. Sections 21B and 21C inserted

After section 21A the following sections are inserted —

“

21B.

Duty placed on body corporate to which section

23D, 23E or 23F applies

(1)

If section 23D, 23E or 23F makes any other provision

of this Act apply to a body corporate as if it were the

employer of a particular person, this section and

section 21C apply to the body corporate at such times

as the other provision is made to apply.

(2)

A body corporate to which this section applies shall, so far as is practicable, ensure that the safety or health of a person is not adversely affected wholly or in part as a

result of —

(a)	work that has been or is being undertaken by —

(i) the body corporate; or

(ii) a person carrying out work under the direction of the body corporate;

(b)	any hazard that arises from or is increased by —

(i) the work referred to in paragraph (a); or

(ii) the system of work that has been or is being operated by the body corporate.

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21C.

Breaches of section 21B

(1)	If a body corporate contravenes section 21B(2) in circumstances of gross negligence, the body corporate commits an offence and is liable to a level 4 penalty.

(2) If —

(a)	a body corporate —

(i) contravenes section 21B(2); and

(ii) by the contravention causes the death of, or serious harm to, a person;

and

subsection (1) does not apply,

the body corporate commits an offence and is liable to

a level 3 penalty.

(b)

(3) If —

(a)	a body corporate contravenes section 21B(2); and
(b)	neither subsection (1) nor subsection (2) applies,

the body corporate commits an offence and is liable to

a level 2 penalty.

(4)	A body corporate charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

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8. Part III Divisions 3, 4 and 5 and heading for Division 6 inserted

After section 23B the following Divisions and Division heading

are inserted —

“

Division 3 — Certain workplace situations to be treated

as employment

23C.	Terms used in this Division
In this Division —
“business” includes the operations of a public

authority;

“public authority” means —

(a)	a Minister of the Crown acting in the Minister’s official capacity;
(b)

a State Government department, State State agency; or

(c)	any other body or person, whether corporate or not and including a local government, that under a written law administers or carries on a social service or public utility for the

benefit of the State or a part of the State.

23D.

Contract work arrangements

(1)	This section applies where a person (the “principal”) in the course of trade or business engages a contractor (the “contractor”) to carry out work for the principal.
(2)	Where this section applies, section 19 has effect —

(a)	as if the principal were the employer of —

(i) the contractor; and

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(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned,

in relation to matters over which the principal

has the capacity to exercise control; and

(b) as if —

(i) the contractor; and

(ii) any person referred to in paragraph (a)(ii),

were employees of the principal in relation to

matters over which the principal has the

capacity to exercise control.

(3)	Where this section applies, the further duties referred to in subsection (4) apply —

(a)	as if the principal were the employer of —

(i) the contractor; and

(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned;

and

(b) as if —

(i) the contractor; and

(ii) any person referred to in paragraph (a)(ii),

were employees of the principal.

(4)	The further duties mentioned in subsection (3) are —

(a)	the duties of an employee under section 20; and
(b)	the duties of an employer under sections 23G(2) and 23I(3).

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(5)	An agreement or arrangement is void for the purposes of this section if it purports to give control to —

(a) a contractor; or

(b)	a person referred to in subsection (2)(a)(ii),

of any matter that —

(c)	comes within section 19 or 23G(2); and
(d)	is a matter over which the principal has the capacity to exercise control,

but this subsection does not prevent the making of a

written agreement as mentioned in section 23G(3).

(6)

A purported waiver by a contractor of a right that arises

directly or indirectly under this section is void.

(7)

Nothing in this section derogates from —

(a)	the duties of the principal to the contractor; or
(b)	the duties of the contractor to any person employed or engaged by the contractor.

23E.

Labour arrangements in general

(1)	This section applies where —

(a)	a person (the “worker”) for remuneration carries out work for another person (the “person mentioned in subsection (1)(a)”) in the course of trade or business;
(b)	that person has the power of direction and control in respect of the work in a similar manner to the power of an employer under a

contract of employment;

(c)	there is no contract of employment between the worker and that person; and
(d)	neither section 23D nor section 23F applies.

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(2)	Where this section applies, section 19 has effect as if —

(a)	the person mentioned in subsection (1)(a) were the employer of the worker; and
(b)

the worker were the employee of that person, in relation to any matter that —

(c)	comes within section 19; and
(d)	is a matter over which that person has the capacity to exercise control.

(3)	Where this section applies, the further duties referred to in subsection (4) apply as if —

(a)	the person mentioned in subsection (1)(a) were the employer of the worker; and
(b)	the worker were the employee of that person.

(4)	The further duties mentioned in subsection (3) are —

(a)	the duties of an employee under section 20; and
(b)	the duties of an employer under section 23I(3).

(5)	An agreement or arrangement is void for the purposes of this section to the extent that it purports to give control to the worker of any matter that —

(a)	comes within section 19; and
(b)	is a matter over which the person mentioned in subsection (1)(a) has the capacity to exercise control.

(6)

This section applies despite anything to the contrary in, or any inconsistent provision of, an agreement, whether made orally or in writing.

(7)

A purported waiver by a worker of a right that arises

directly or indirectly under this section is void.

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23F.

Labour hire arrangements

(1)	In this section —
“agent” —

(a)	means a person that carries on a business of providing workers to carry out work for clients of the person; and
(b)	includes a group training organisation as defined in section 7(1) of the Industrial Relations Act 1979;

“worker” includes an employee or a contractor.

(2)

This section applies where, under a labour hire

arrangement, work is carried out for remuneration by a

worker for a client of an agent (the “client”) in the

course of the client’s trade or business.

(3)

A labour hire arrangement exists where —

(a)	an agent has for remuneration agreed with the client to provide a worker to carry out work for the client;
(b)	there is no contract of employment between the worker and the client in relation to the work;
(c)	there is an agreement (which may be a contract of employment) between the worker and the agent as to the carrying out of work including in respect of remuneration and other entitlements; and
(d)	that agreement applies to the carrying out of the work by the worker for the client.

(4)	Where this section applies, section 19 has effect as if —

(a)	each of the agent and the client were the employer of the worker; and

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(b)	the worker were an employee of each of the agent and the client,

in relation to any matter that —

(c)	comes within section 19; and

(d) as regards —

(i) the agent, is a matter over which the agent has the capacity to exercise control; or

(ii) the client, is a matter over which the client has the capacity to exercise control.

(5)	Where this section applies, the further duties referred to in subsection (6) apply as if —

(a)	each of the agent and the client were the employer of the worker; and
(b)	the worker were an employee of each of the agent and the client.

(6)	The further duties mentioned in subsection (5) are —

(a)	the duties of an employee under section 20; and
(b)	the duties of an employer under section 23I(3).

(7)

This section applies despite anything to the contrary in, or any inconsistent provision of, an agreement, whether made orally or in writing.

(8)

A purported waiver by a worker of a right that arises

directly or indirectly under this section is void.

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Division 4 — Duty relating to certain

employment accommodation

23G.

Duty of employer to maintain safe premises

(1)	In this section —
“residential premises” —

(a)	means residential premises that are situated outside —

(i)

a townsite within the meaning in Administration Act 1997; and

(ii) the metropolitan region as defined in section 6 of the Metropolitan Region Town Planning Scheme Act 1959;

and

(b)	includes land and outbuildings that are intended to be used in connection with the occupation of the premises.

(2) Where —

(a)	an employee occupies residential premises that are owned by or under the control of the employee’s employer; and
(b)	the occupancy is necessary for the purposes of the employment because other accommodation is not reasonably available in the area

concerned,

the employer must, so far as is practicable, maintain the

premises so that the employee occupying the premises

is not exposed to hazards at the premises.

(3)

Subsection (2) does not apply if the occupancy is

pursuant to a written agreement containing terms that

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might reasonably be expected to apply to a letting of

the residential premises to a tenant.

(4)	This section does not apply to the occupation of residential premises by an employee who is employed at a workplace referred to in section 4(2).

23H.

Breaches of section 23G

(1)	If an employer contravenes section 23G(2) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.

(2) If —

(a) an employer —

(i) contravenes section 23G(2); and

(ii) by the contravention causes the death of, or serious harm to, an employee occupying premises as mentioned in that section;

and

subsection (1) does not apply,

the employer commits an offence and is liable to a

level 3 penalty.

(b)

(3) If —

(a)	an employer contravenes section 23G(2); and
(b)	neither subsection (1) nor subsection (2) applies,

the employer commits an offence and is liable to a

level 2 penalty.

(4)	In proceedings against a person for an offence under subsection (1) or (2) it is a defence if the person proves that the death or serious harm, as the case may be, would not have occurred if the employee had taken

Occupational Safety and Health Legislation Amendment and

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reasonable care to ensure the employee’s own safety

and health at the premises concerned.

(5)	An employer charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

Division 5 — Other duties

23I.

Notification of deaths, injuries and diseases

(1)	In this section —
“business of an employer” means —

(a)	the conduct of the undertaking or operations of an employer; and
(b)	work undertaken by an employer or any employee of an employer;

“business of a self-employed person” means —

(a)	the conduct of the undertaking or operations of a self-employed person; and
(b)	work undertaken by that person.

(2)	This section applies where —

(a)	at a workplace, or at residential premises to which section 23G(2) applies, an employee incurs an injury, or is affected by a disease, that —

(i) results in the death of the employee; or

(ii) is of a kind that is prescribed;

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(b)	at a workplace, a person who is not an employee incurs an injury in prescribed circumstances that —

(i) results in the death of the person; or

(ii) is of a kind that is prescribed,

in connection with —

(iii) the business of an employer; or

(iv) the business of a self-employed person.

(3)	The relevant person must —

(a) forthwith; or

as otherwise provided by the regulations,

notify the Commissioner in the prescribed form of the

injury or disease giving such particulars as may be

prescribed.

(b)

(4)	The relevant person is the employer concerned where —

(a)	subsection (2)(a) applies; or
(b)	the person incurs the injury in connection with the business of an employer.

(5)	The relevant person is the self-employed person concerned where the person incurs the injury in connection with the business of a self-employed person.

23J.

Breaches of section 23I

(1)

If an employer or self-employed person contravenes section 23I(3), the employer or self-employed person commits an offence.

(2)

In proceedings for an offence under subsection (1)

against a person who is taken by section 23D(2) to be

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an employer it is a defence if the person proves that

subsection (4) applies.

(3)	In proceedings against a person for an offence under subsection (1) that relates to an injury mentioned in section 23I(2)(b) it is a defence if the person proves that subsection (4) applies.
(4)	This subsection applies if the person did not know, and could not reasonably be expected to have known, of the injury or disease concerned.

23K.

Duty to inform employee who reports a hazard or

injury

(1)

This section applies where an employer receives from

an employee a report of a kind described in

section 20(2)(d).

(2)

The employer must, within a reasonable time after

receiving the report —

(a)	investigate the matter that has been reported and determine the action, if any, that the employer intends to take in respect of the matter; and
(b)	notify the employee of the determination so made.

(3)	If an employer contravenes subsection (2), the employer commits an offence.

23L.

Notification of hazard to person having control

of workplace

(1)	In this section —
“workplace” includes the means of access to and

egress from the workplace.

(2) If —

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(a)	the employer of any employee; or
(b)

a self-employed person carrying out work, at a workplace becomes of the opinion that —

(c)	a situation exists at the workplace that could constitute a hazard to any person;
(d)	the hazard is one that a person having control of the relevant part of the workplace (the “responsible person”) has a duty to remedy under section 22; and
(e)	the situation has not come to the attention of that person,

the employer or self-employed person must, so far as it

is reasonably practicable to do so, give notice of the

situation to the responsible person.

(3)

A notice under subsection (2) must be given as soon as

is reasonably practicable after the employer or

self-employed person becomes of the opinion

mentioned in that subsection.

(4)

An employer or self-employed person that fails to

comply with subsection (2) commits an offence.

Division 6 — Resolution of workplace issues, and

refusal to work on grounds of risk

”.

9. Section 41A inserted

After the heading to Part V the following section is inserted —

“

41A.	Extended meaning of “employer” and “employee”
In this Part —

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“employer” and “employee” include a person taken to

be an employer and an employee respectively by

operation of section 23D, 23E or 23F.

”.

10. Section 43 amended

After section 43(1) the following subsection is inserted —

“

(1a)	In subsection (1) —
“workplace” includes residential premises that an

employer is or was under a duty to maintain by

virtue of section 23G(2).

”.

11. Section 47A inserted

After the heading to Part VI the following section is inserted —

“

47A.	Extended meaning of “employer” and “employee”
In this Part —
“employer” and “employee” include a person taken to

be an employer and an employee respectively by

operation of section 23D, 23E or 23F.

”.

12. Section 49 amended

(1)	Section 49(2) is amended by inserting after “prohibition notice” — “

, other than in respect of an activity as defined in

subsection (7),

”.

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(2)	After section 49(6) the following subsection is inserted —

“

(7)	The application of this section extends to residential premises that are being or may be occupied by an employee as mentioned in section 23G(2), and for that purpose —

(a)	in this section —

(i)	“workplace” includes such premises; and

(ii) references to imminent and serious injury to, or imminent and serious harm to the health of, a person are to be read as applying only to an employee;

and

(b)	in this section and section 50 “activity” includes the occupation of such premises.

”.

13. Schedule amended

The Schedule is amended in item 24A by deleting “19(3)” and

inserting instead —

“ 23I ”.

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Part 3 — Amendments relating to offences

and penalties

14. Section 3 amended

Section 3(3) is amended by deleting “19(7), 20(5), 21(3), 22(5),

23(5) and 23A(3)” and inserting instead —

“

18A, 19A(2), 20A(2), 21A(2), 21C(2), 22A(2), 23AA(2),

23B(2) and 23H(2)

”.

15. Sections 3A and 3B inserted

After section 3 the following sections are inserted —

“

3A.

Penalty levels defined

(1)	Where a person is liable to a level one penalty for an offence against this Act the person is liable —

(a)	if the offence was committed by the person as an employee —

(i) for a first offence, to a fine of $5 000; and

(ii) for a subsequent offence, to a fine of $6 250;

(b)	if paragraph (a) does not apply —

(i) in the case of an individual —

(I)

for a first offence, to a fine of

$25 000; and

(II)

for a subsequent offence, to a

fine of $31 250;

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(ii) in the case of a body corporate —

(I)

for a first offence, to a fine of

$50 000; and

(II)

for a subsequent offence, to a

fine of $62 500.

(2)	Where a person is liable to a level 2 penalty for an offence against this Act the person is liable —

(a)	in the case of an individual —

(i) for a first offence, to a fine of $100 000; and

(ii) for a subsequent offence, to a fine of $125 000;

(b)	in the case of a body corporate —

(i) for a first offence, to a fine of $200 000; and

(ii) for a subsequent offence, to a fine of $250 000.

(3)	Where a person is liable to a level 3 penalty for an offence against this Act the person is liable —

(a)	in the case of an individual —

(i) for a first offence, to a fine of $200 000; and

(ii) for a subsequent offence, to a fine of $250 000;

(b)	in the case of a body corporate —

(i) for a first offence, to a fine of $400 000; and

(ii) for a subsequent offence, to a fine of $500 000.

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(4)	Where a person is liable to a level 4 penalty for an offence against this Act the person is liable —

(a)	in the case of an individual —

(i) for a first offence, to a fine of $250 000 and imprisonment for 2 years; and

(ii) for a subsequent offence, to a fine of $312 500 and imprisonment for 2 years;

(b)	in the case of a body corporate —

(i) for a first offence, to a fine of $500 000; and

(ii) for a subsequent offence, to a fine of $625 000.

3B.

Meaning of “first offence” and “subsequent

offence”

(1)	In this section —
“relevant day” means the day on which section 15 of

the Occupational Safety and Health Legislation operation.

(2)	For the purposes of this Act —

(a)	an offence is a first offence committed by a person if, at the time when the offence is committed, the person has not previously been convicted of any offence against this Act committed on or after the relevant day; and
(b)	an offence is a subsequent offence committed by a person if, at the time when the offence is committed, the person has previously been convicted of one or more offences against this Act committed on or after the relevant day.

”.

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16. Part III Division 1 inserted

After the heading to Part III the following Division is

inserted —

“

Division 1 — Preliminary

18A.

Meaning of gross negligence in relation to certain

breaches of this Part

(1)

This section applies to a contravention of section 19(1), 20(1) or (3), 21(1) or (2), 21B(2), 22(1), 23(1), (2), (3) or (3a), 23A or 23G(2).

(2)

A contravention of a provision mentioned in

subsection (1) is committed in circumstances of

gross negligence if —

(a) the offender —

(i) knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is

owed under that provision; but

(ii) acted or failed to act in disregard of that likelihood;

and

(b)	the contravention did in fact cause the death of, or serious harm to, such a person.

”.

17. Section 19 amended

Section 19(6), (7), (8) and (9) are repealed.

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18. Section 19A inserted

After section 19 the following section is inserted —

“

19A.

Breaches of section 19(1)

(1)	If an employer contravenes section 19(1) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.

(2) If —

(a) an employer —

(i) contravenes section 19(1); and

(ii) by the contravention causes the death of, or serious harm to, an employee;

and

subsection (1) does not apply,

the employer commits an offence and is liable to a

level 3 penalty.

(b)

(3) If —

(a)	an employer contravenes section 19(1); and
(b)	neither subsection (1) nor subsection (2) applies,

the employer commits an offence and is liable to a

level 2 penalty.

(4)	An employer charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

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”.

19. Section 20 amended

Section 20(4), (5) and (6) are repealed.

20. Section 20A inserted

After section 20 the following section is inserted —

“

20A.

Breaches of section 20(1) or (3)

(1)	If an employee contravenes section 20(1) or (3) in circumstances of gross negligence, the employee commits an offence and is liable —

(a)	for a first offence, to a fine of $25 000; and
(b)	for a subsequent offence, to a fine of $31 250.

(2) If —

(a) an employee —

(i) contravenes section 20(1) or (3); and

(ii) by the contravention causes the death of, or serious harm to, a person;

and

subsection (1) does not apply, the employee commits an offence and is liable —

(b)

(c)	for a first offence, to a fine of $20 000; and
(d)	for a subsequent offence, to a fine of $25 000.

(3) If —

(a)	an employee contravenes section 20(1) or (3); and
(b)	neither subsection (1) nor subsection (2) applies,

the employee commits an offence and is liable —

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(c)	for a first offence, to a fine of $10 000; and
(d)	for a subsequent offence, to a fine of $12 500.

(4)	An employee charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

21. Section 21 amended

Section 21(2), (3) and (4) are repealed.

22. Section 21A inserted

After section 21 the following section is inserted —

“

21A.

Breaches of section 21

(1)	If an employer or a self-employed person contravenes section 21(1) or (2) in circumstances of gross negligence, the employer or a self-employed person commits an offence and is liable to a level 4 penalty.

(2) If —

(a)	an employer or self-employed person —

(i) contravenes section 21(1) or (2); and

(ii) by the contravention causes the death of, or serious harm to, a person;

and

subsection (1) does not apply,

the employer or self-employed person commits an

offence and is liable to a level 3 penalty.

(b)

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(3) If —

(a)	an employer or self-employed person contravenes section 21(1) or (2); and
(b)	neither subsection (1) nor subsection (2) applies,

the employer or self-employed person commits an

offence and is liable to a level 2 penalty.

(4)	An employer or self-employed person charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

23. Section 22 amended

Section 22(4), (5) and (6) are repealed.

24. Section 22A inserted

After section 22 the following section is inserted —

“

22A.

Breaches of section 22(1)

(1)	If a person contravenes section 22(1) in circumstances of gross negligence, the person commits an offence and is liable to a level 4 penalty.

(2) If —

(a) a person —

(i) contravenes section 22(1); and

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(ii) by the contravention causes the death of, or serious harm to, a person —

(I)

who is at; or

(II)

who is using the means of

access to or egress from,

the workplace;

and

subsection (1) does not apply,

the person commits an offence and is liable to a level 3

penalty.

(b)

(3) If —

(a)	a person contravenes section 22(1); and
(b)	neither subsection (1) nor subsection (2) applies,

the person commits an offence and is liable to a level 2

penalty.

(4)	A person charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

25. Section 23 amended

Section 23(4), (5) and (6) are repealed.

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s. 26

26. Section 23AA inserted

After section 23 the following section is inserted —

“

23AA.

Breaches of section 23

(1)	If a person contravenes section 23(1), (2), (3) or (3a) in circumstances of gross negligence, the person commits an offence and is liable to a level 4 penalty.

(2) If —

(a) a person —

(i) contravenes section 23(1), (2), (3) or (3a); and

(ii)

by the contravention causes the death a duty is owed under that subsection;

and

subsection (1) does not apply,

the person commits an offence and is liable to a level 3

penalty.

(b)

(3) If —

(a)	a person contravenes section 23(1), (2), (3) or (3a); and
(b)	neither subsection (1) nor subsection (2) applies,

the person commits an offence and is liable to a level 2

penalty.

(4)	A person charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or

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(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

27. Section 23A amended

Section 23A(2), (3) and (4) are repealed.

28. Section 23B inserted

After section 23A the following section is inserted —

“

23B.

Breaches of section 23A

(1)	If a person contravenes section 23A in circumstances of gross negligence, the person commits an offence and is liable to a level 4 penalty.

(2) If —

(a) a person —

(i) contravenes section 23A; and

(ii) by the contravention causes the death of, or serious harm to, a person;

and

subsection (1) does not apply,

the person commits an offence and is liable to a level 3

penalty.

(b)

(3) If —

(a)	a person contravenes section 23A; and
(b)	neither subsection (1) nor subsection (2) applies,

the person commits an offence and is liable to a level 2

penalty.

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(4)	A person charged with an offence under —

(a)	subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b)	subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).

”.

29. Section 23B repealed

Section 23B is repealed.

30. Part VII Division 1 heading inserted

After the heading to Part VII the following heading is

inserted —

“

Division 1 — General provisions

”.

31. Section 54 replaced

Section 54 is repealed and the following section is inserted

instead —

“

54. General penalty

If a person commits an offence against this Act for

which a penalty is not otherwise provided, the person is

liable to a level one penalty.

”.

32. Section 54AA repealed

Section 54AA is repealed.

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33. Section 54A amended

Section 54A(2) is amended by deleting “and is liable to a fine

not exceeding $200 where the offence is committed by a person

as an employee and $1 000 in any other case for every day on

which the offence is so continued” and inserting instead —

“

and is liable to a fine not exceeding —

(a)	$200, where the offence is committed by a person as an employee;
(b)	$1 000, where the offence is committed by an individual and paragraph (a) does not apply; and
(c)	$2 000, where the offence is committed by a body corporate,

for every day on which the offence is so continued

”.

34. Section 55 amended

(1)	After section 55(1) the following subsections are inserted —

“

(1a)	Despite subsection (1), if a body corporate is guilty of an offence under section 19A(1), 21A(1), 21C(1), 22A(1), 23AA(1), 23B(1) or 23H(1) the following provisions apply —

(a)	a person referred to in subsection (1) is guilty of that offence if it is proved that —

(i) the offence was attributable to any neglect on the part of the person; or

(ii)	the acts or omissions to which

the person consented to or connived in proved against the body corporate,

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in circumstances where the person —

(iii) knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty was owed; but

(iv) acted or failed to act as mentioned in subparagraph (i) or (ii) in disregard of that likelihood;

(b)	referred to in subsection (1) is guilty of an offence under section 19A(2), 21A(2), 21C(2), 22A(2), 23AA(2), 23B(2) or 23H(2), as the

if paragraph (a) does not apply, a person of the body corporate —

(i) occurred with the consent or connivance of the person; or

(ii) was attributable to any neglect on the part of the person.

(1b)	A person convicted of an offence by virtue of subsection (1) or (1a) is liable to the penalty to which an individual who is convicted of that offence is liable.

”.

(2)

Section 55(2) is amended by deleting “subsection (1)” and

inserting instead —

“ subsections (1) and (1a) ”.

35. Section 55A inserted

After section 55 the following section is inserted —

“

55A.

No double jeopardy

A person is not liable to be punished twice under this

Act in respect of any act or omission.

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”.

36. Part VII Divisions 2 and 3 inserted

After section 55A the following Divisions are inserted —

“

Division 2 — Criminal proceedings against the Crown

55B.

Crown may be prosecuted

The Crown in any capacity may, in accordance with

this Division, be prosecuted for an offence against this

Act.

55C.

Prosecution against body corporate

(1)

Where the act or omission constituting the offence is

alleged against a body corporate that is an agent of the

Crown, the prosecution proceedings are to be taken

against the body corporate.

(2)

Subsection (1) includes a case where —

(a)	a body corporate is the successor in law, as defined in section 55F(1), of an agency or department; or
(b)	a body corporate is determined under section 55F(3).

55D.

Prosecution in other cases

(1) Where —

(a)	the act or omission constituting the offence is alleged against an agency or department that is an agent of the Crown (the “responsible agency”); and
(b)	section 55C does not apply,

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the prosecution proceedings are to be taken against the

Crown.

(2)

For the purposes of subsection (1) the WA Police is to

be treated as an agency of the Crown.

(3)

Proceedings referred to in subsection (1) may be

brought against the Crown under the title “State of

Western Australia”.

55E.

Provisions applicable to responsible agency

(1)	In this section —
“chief executive” means the person who is for the time being responsible for the day to day administration of a responsible agency;
“prosecution proceedings” means proceedings

referred to in section 55D(1).

(2)	For the purposes of prosecution proceedings —

(a)	the responsible agency —

(i) is to be specified in the charge for the offence;

(ii) is entitled to act for the Crown in the proceedings; and

(iii) subject to any rules of court, has the procedural rights and obligations of the Crown as the defendant in the proceedings;

and

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(b)	the complainant may during the proceedings, with the leave of the court, substitute another responsible agency for the agency in the

proceedings.

(3)

In prosecution proceedings a person authorised by the

chief executive of the responsible agency concerned

may act on behalf of the agency, and it is not necessary

for proof to be given of the authority of the person to

do so.

(4)

It is sufficient service of a document required to be served on a responsible agency for the purposes of prosecution proceedings if the document —

(a)	is delivered to a person who is or appears to be the chief executive of the responsible agency, or a person acting as such, at a place of business of the responsible agency; or
(b)	is sent by pre-paid letter addressed and posted to the responsible agency at its principal place of business in the State.

55F.

Proceedings where agency has ceased to exist

(1)	In this section —
“successor in law”, in relation to an agency or

department, means —

(a)	the sole successor; or
(b)	if there is more than one successor, the one that has the relevant functions formerly vested in the agency or department.

(2)	If an agency or department referred to in section 55D(1)(a) —

(a)	has ceased to exist; but

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(b)	has a successor in law to which section 55C(2) does not apply,

the successor in law is the responsible agency for the

purposes of section 55D(1).

(3)	If an agency or department referred to in section 55D(1)(a) —

(a)	has ceased to exist; and

(b) either —

(i) it has no apparent successor in law; or

(ii) there is doubt as to which agency or department has the relevant functions,

the responsible agency for the purposes of that section

is such agency of the Crown as the Minister

determines.

55G.

Penalties in proceedings against the Crown

(1)	In subsection (3)(b) —
“successor in law”, in relation to an agency or

department, means —

(a)	the successor in law as defined in section 55F(1); or
(b)	the agency of the Crown determined under section 55F(3).

(2)

The penalty that may be imposed on the Crown if it is convicted of an offence against this Act in proceedings referred to in section 55D(1) is the penalty applicable

to a body corporate.

(3)

In proceedings referred to in section 55D(1), a higher

penalty may be imposed for an offence involving a

responsible agency on the ground that it is a subsequent

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offence, only if the acts or omissions constituting the

previous offence or offences were those of —

(a)	the same responsible agency; or
(b)	a responsible agency of which it is the successor in law.

(4)	A penalty imposed in proceedings referred to in section 55D(1) cannot be enforced under the Fines, Penalties and Infringement Notices Enforcement Act 1994.

Division 3 — Undertaking by offender in lieu of

payment of fine

55H.	Terms used in this Division
In this Division —
“convicted” means found guilty of an offence, whether

after a plea of guilty or otherwise;

“court” means a safety and health magistrate

exercising jurisdiction under section 51C(1)(b);

“relevant offence” means an offence against —

(a)	section 24(4), 30(7), 35(4), 38(2), 39(3), 45(5), 47(1), 48(4), (5) or (6) or 49(5) or (6); or
(b)	the regulations.

55I.

Court may allow offender to make election

(1) Where —

(a)	a person (the “offender”) is convicted of one or more relevant offences; and
(b)	the court has fined the offender,

the court may, subject to subsection (2), make an order

allowing the offender to elect either —

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(c)	to pay the fine or fines; or
(d)	as an alternative, to enter into an undertaking with the Commissioner under section 55M not later than a day specified by the court.

(2)	A court is not to make an order under this section unless the court is satisfied that —

(a)

the breach of the relevant offence did not result in physical harm to any person;

(b)

the offender wishes an order to be made and the complainant does not oppose that being done;

(c)

reach agreement on the provisions of the

proposed undertaking within the time that the

the offender and the Commissioner are likely to subsection (1)(d); and

(d)	the cost to the offender of complying with the proposed undertaking will be substantially equivalent to the amount of the fine or fines imposed.

(3)	After the court has fined the offender, the court may adjourn the proceedings to allow —

(a)	the offender time to consider whether the offender wishes an order to be made; and
(b)	the complainant time to consider whether to oppose that being done,

as mentioned in subsection (2)(b).

(4)	Nothing in this Division limits the powers of a court under the Sentencing Act 1995.

55J.

Making of election

(1)	An election is made, pursuant to an order under section 55I(1), by the offender —

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(a)	lodging an election in writing with the clerk of the court in which the order was made; and
(b)	serving a copy of the election on the Commissioner,

not later than 28 days after the day on which the order

was made.

(2) If —

(a)	an order is made under section 55I(1); but
(b)	the offender fails to make an election in accordance with subsection (1),

the offender is taken, at the expiry of the period

mentioned in subsection (1), to have elected to pay the

fine or fines.

55K.

Failure to enter into undertaking

An election under section 55J to enter into an

undertaking lapses if the undertaking is for any reason

not entered into before the time allowed under

section 55I(1)(d).

55L.

Time for payment of fines

(1)

The liability of the offender to pay the fine or fines in

connection with which an order is made under

section 55I(1) is suspended by the making of the order.

(2)

If the offender elects to pay the fine or fines, for the

purposes of section 32 of the Fines, Penalties and

Infringement Notices Enforcement Act 1994 the fine

or fines are taken to have been imposed on the day on

which the election is made.

(3)

If the offender is taken by section 55J(2) to have

elected to pay the fine or fines, for the purposes of the

section referred to in subsection (2) the fine or fines are

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s. 36

taken to have been imposed at the time mentioned in

section 55J(2).

(4) If —

(a)	the offender elects to enter into an undertaking; but
(b)

the election lapses under section 55K,

for the purposes of the section referred to in

subsection (2) the fine or fines are taken to have been

imposed on the day specified under section 55I(1)(d).

55M.

Nature and terms of undertaking

(1)	An undertaking for the purposes of this Division is a document by which the offender gives undertakings to the Commissioner that the offender will —

(a)	take the action specified in the undertaking;
(b)	bear the costs and expenses of doing so; and
(c)	complete all of the required action not later than a day specified in the document.

(2)

The action required to be taken by the offender is to

come within the provisions described in section 55N(2)

or (3).

(3)

The provisions of the undertaking are to be such as are

agreed between the Commissioner and the offender.

(4)

The Commissioner is to furnish a copy of an

undertaking, and of any amendment made under

section 55Q, to the court concerned.

55N.

What may be included in undertaking

(1)	In this section —
“specified” means specified in the undertaking.

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(2)	An undertaking is to provide for the offender to do one or more of the following —

(a)	to take specified steps for the improvement of occupational safety and health —

(i) at a specified workplace; or

(ii) in connection with the business or operations of the offender;

(b)	to take specified steps to publicise details of —

(i) any specified offence;

(ii) its consequences;

(iii) the amount of the fine or fines imposed and the fact that the undertaking has been entered into under this Division; or

(iv) any other related matter;

(c)	to remedy any consequence of a specified offence, so far as it is practicable to do so, but not in a way that is excluded by subsection (4);
(d)	to carry out a specified project or activity for the improvement of occupational safety and health —

(i) in the community;

(ii) in a particular section of the community; or

(iii) in connection with a particular kind of activity in the State.

(3)	The Commissioner may require that an undertaking contain any incidental or supplementary provision that the Commissioner considers necessary or expedient to achieve its purpose, including provision for —

(a)	the reporting of matters; and

(b) providing proof of compliance,

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to the Commissioner.

(4)	An undertaking cannot provide for the offender to take any action —

(a)	that the offender has a duty to take in order to comply with any provision of this Act; or
(b)	for the taking of which an improvement notice or a prohibition notice could be issued.

55O.

Effect of undertaking

The liability of the offender to pay the fine or fines in

connection with which the undertaking is given —

(a)	is suspended by the giving of the undertaking; and
(b)	is cancelled by the full discharge of the offender’s obligations under the undertaking.

55P.

Failure to comply with undertaking

(1)	An offender commits an offence if the offender fails to fully discharge the obligations under an undertaking before the day specified in the undertaking in accordance with section 55M(1)(c).
(2)	A court that convicts an offender of an offence against subsection (1) must order that the fine or fines to which the undertaking relates be paid in addition to any
penalty imposed for the offence against subsection (1).
(3)	For the purposes of section 32 of the Fines, Penalties and Infringement Notices Enforcement Act 1994, the fine or fines to which an order under subsection (2)
applies are taken to be imposed on the day on which that order is made.

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55Q.	Amendment of undertaking
An undertaking may be amended by an instrument in writing signed by the offender and the Commissioner.
55R.	Undertaking may be published
The Commissioner may cause an undertaking to be published in any manner the Commissioner thinks fit including —

(a)	by publication in a newspaper; or
(b)	by posting a copy of the undertaking on an internet website maintained by the Commissioner.

”.

37. Section 60 amended

Section 60(6) is repealed and the following subsection is

inserted instead —

“

(6)	Regulations made under this Act may provide that contravention of a regulation constitutes an offence and provide for penalties not exceeding —

(a)	in the case of an offence committed by a person as an employee —

(i) for a first offence, a fine of $5 000; and

(ii) for a subsequent offence, a fine of $6 250;

(b)	in the case of an offence committed by an individual where paragraph (a) does not apply —

(i) for a first offence, a fine of $25 000; and

(ii) for a subsequent offence, a fine of $31 250;

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(c)	in the case of an offence committed by a body corporate —

(i) for a first offence, a fine of $50 000; and

(ii) for a subsequent offence, a fine of $62 500,

and if the offence is a continuing one a further penalty

not exceeding —

(d)	$200, in the case of an offence committed by a person as an employee;
(e)	$1 000, in the case of an offence committed by an individual where paragraph (d) does not apply; and
(f)	$2 000, in the case of an offence committed by a body corporate,

for each day or part of a day during which the offence continues after notice of the offence has been given by or on behalf of an inspector to the offender.

”.

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Amendments relating to safety and health representatives and

Part 4 — Amendments relating to safety and health

representatives and committees

38. Section 3 amended

Section 3(1) is amended as follows:

(a)	by inserting after the definition of “prohibition notice” —

“

“provisional improvement notice” means a

provisional improvement notice issued under

Part VI Division 2;

”;

(b)	in the definition of “safety and health committee” by inserting after “Part IV” —

“ Division 2 ”;

(c)	in the definition of “safety and health representative” by inserting after “Part IV” —

“ Division 1 ”.

39. Part IV Division 1 heading inserted

After the heading to Part IV the following heading is inserted —

“

Division 1 — Safety and health representatives

”.

40. Section 29 amended

(1)	Section 29 is amended by inserting before “An employee” the subsection designation “(1)”.

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s. 41

(2)	At the end of section 29 the following subsection is inserted —

“

(2)	The fact that a notice under subsection (1) requires an election for the workplace at which the employee works does not prevent —

(a)	the establishment of a scheme under section 30A that extends beyond that workplace; or
(b)	the making of a determination under section 30(4a) for that purpose.

”.

41. Section 30 amended

(1)	Section 30(4) is amended by deleting paragraphs (aa) and (b) and “and” after them and inserting instead —

“

(b)	the matters, areas or kinds of work in respect of which each safety and health representative is to exercise functions, so far as those things are not to be dealt with by provision of a kind mentioned in section 30B(2) or (3);
(ba)	how a vacancy in an office of safety and health representative that occurs in the circumstances mentioned in section 32(2)(b), (ba), (c) or (d) is to be dealt with; and

”.

(2)	After section 30(4) the following subsection is inserted —

“

(4a)	The employer and the delegate or delegates consulting under subsection (3a) may determine that provision of a kind mentioned in section 30B(2) or (3) should be
made.

”.

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(3)	Section 30(5) is repealed and the following subsection is inserted instead —

“

(5)	For the purposes of subsection (4)(c), but without limiting the generality of that provision, the employer and the delegate or delegates consulting under subsection (3a) may determine that —

(a)	the Electoral Commissioner appointed under the Electoral Act 1907; or
(b)	an organisation registered under Part II Division 4 of the Industrial Relations Act 1979,

is to be requested to conduct an election.

”.

42. Sections 30A, 30B and 30C inserted

After section 30 the following sections are inserted —

“

30A.

Election scheme may be established

(1)	In this section —
“consulting parties” means the employer and the

delegate or delegates consulting under

section 30(3a) on matters relating to the election of

a safety and health representative for a workplace,

and includes any delegates or delegates appointed

under section 30C.

(2)	If the consulting parties in respect of a workplace have made a determination referred to in section 30(4a), a written agreement may be made between the consulting parties establishing a scheme under this section.
(3)	If the consulting parties cannot reach agreement on any matter for the purposes of subsection (2) they may refer the matter to the Commissioner, who is to attempt to
resolve it to the satisfaction of the consulting parties.
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Amendments relating to safety and health representatives and	Part 4
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(4)

If the Commissioner is unable to resolve the matter, the

Commissioner is to refer it to the Tribunal for

determination.

(5)

If subsection (4) applies, references in this Division to a scheme under this section are references to a scheme consisting of the provisions of —

(a)	an agreement under subsection (2); and
(b)	the determination of the Tribunal under subsection (4).

30B.

What may be included in a scheme

(1)	In this section —
“contractor” and “principal” have the meanings

given to those terms in section 23D(1).

(2)	A scheme under section 30A (a “scheme”) may include provision for the election of one or more safety and health representatives for —

(a)	one or more workplaces in addition to the workplace referred to in section 30A(2); or
(b)	any group of employees of the employer concerned that constitutes a distinct unit of the employer’s workforce,

or may make provision for both of those matters, as the

case may require.

(3)	A scheme may despite any provision of this Part —

(a) provide for —

(i) a contractor; and

any person employed by a contractor,

to be treated, for the purposes of this Part, as

employees of the principal that engages the

contractor; and

(ii)

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(b)	provide for the principal that engages a contractor to be treated, for the purposes of this Part, as the employer of —

(i) the contractor; and

(ii) any person employed by the contractor.

(4)	A scheme may make provision for —

(a)	the scheme to apply to any subsequent election of a safety and health representative; and
(b)	the manner in which an amendment may be made to the scheme after it has been determined.

30C.

Appointment of further delegates may be required

(1)	In this section —
“additional employees” means employees who have

not been invited to appoint a delegate or delegates under section 30(1) or (2) because that subsection has not become applicable to the workplace at

which they work.

(2)

A scheme under section 30A cannot make provision of

the kind mentioned in section 30B(2) that will affect

additional employees unless subsection (3) of this

section is complied with.

(3)

If it is proposed that such provision be made the

employer must invite any additional employees at a

workplace to appoint a delegate or delegates in

accordance with subsection (4).

(4)

Additional employees who work at a workplace may,

upon being invited under subsection (3) to do so,

appoint a delegate or delegates from amongst their

number to represent them for the purposes of making

an agreement under section 30A(2).

”.

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Amendments relating to safety and health representatives and	Part 4
s. 43

43. Section 31 amended

(1)	Section 31(1) is repealed and the following subsection is inserted instead —

“

(1)	In this section —
“election” means an election required for the purpose

of electing a safety and health representative

following —

(a)	the giving of a notice under section 29 in relation to a workplace; or
(b)	a decision of an employer under section 30(2);

“relevant employee”, in relation to an election,

means —

(a)	an employee who works at the workplace to which the election relates; or
(b)	if a scheme has been established under section 30A for the election, an employee who —

(i) works at a workplace; or

is a member of a group of employees, to which the scheme applies.

(ii)

”.

(2)	Section 31(6) is repealed and the following subsections are inserted instead —

“

(6)	Subject to this section, an election shall be conducted and safety and health representatives shall be elected in accordance with —

(a)	any determination under section 30; and
(b)	if applicable, a scheme established under section 30A.

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(6a)	If there is any inconsistency between a determination under section 30 and a scheme established under section 30A, the latter prevails.

”.

(3)	Section 31(7) and (8) are repealed and the following subsections are inserted instead —

“

(7)

An election shall be by secret ballot.

(8)

Every relevant employee is entitled to vote at an

election.

(8a)

Only a relevant employee is eligible to be elected as a

safety and health representative at an election.

”.

(4)	Section 31(9) is amended by inserting after “If ” —

“

, after the relevant steps provided for by or under this

Division have been taken,

”.

(5)	Section 31(10) is amended by inserting after “notify the” —
“ Commissioner and the ”.
(6)	Section 31(10a) and (10b) are repealed.

44. Saving provision for existing safety and health representatives

The amendments made by section 43 do not affect the

continuation in office of any safety and health representative

who held office under Part IV of the Occupational Safety and

Health Act 1984 immediately before the commencement of that

section.

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Amendments relating to safety and health representatives and	Part 4
s. 45

45. Section 32 amended

Section 32(2)(b) is deleted and the following paragraphs are

inserted instead —

“

(b)	the person ceases to be an employee who works at a workplace for which the person was elected;

(ba) After section 33(3) the following subsection is inserted —

if the person was elected for a group of employees pursuant to a scheme under section 30A, the person ceases to be an employee who belongs to that group of employees;

”.

46. Section 33 amended

“

(4)	If a scheme has been established under section 30A, the references in this section to “the workplace”, “that workplace” and “a workplace” include —

(a)	if the scheme applies to more than one workplace, each workplace to which the scheme applies; and
(b)	if under the scheme a safety and health representative is elected for a group of employees, each workplace or part of a workplace at which any member of the group

works.

”.

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Part 4	Amendments relating to safety and health representatives and
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47. Section 34 amended

(1)	Section 34(2) is amended by deleting paragraph (b) and “or” after it and inserting instead —

”.

86. Section 32 amended

Section 32(2) is amended as follows:

(a)	by deleting paragraph (a) and inserting instead —

“

(a)	the person’s term of office expires and the person is not re-elected;

”;

(b)	by deleting paragraph (c) and inserting instead —

“

(c)	the person resigns from office by notice given to the employer;

”.

87. Section 33 amended

Section 33(1)(c) is amended by inserting after “himself ” —

“ or herself ”.

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Amendments to make expressions in the Act gender neutral	Part 7
s. 88

88. Section 34 amended

(1)	Section 34(1)(a) is amended by deleting “his employer or a commercial or business undertaking of his employer” and inserting instead —

“

the representative’s employer or a commercial

or business undertaking of the employer

”.

(2)	Section 34(1)(b) is amended as follows:

(a)	by deleting “his employer” in the first place where it occurs and inserting instead —

“ the representative’s employer ”;

(b)	by deleting “his employer” in the second and third places where it occurs and inserting instead —

“ the employer ”.

89. Section 35 amended

Section 35 is amended as follows:

(a)	in subsection (1)(b) by deleting “his” and inserting instead —

“ the employer’s ”;

(b)	in subsection (2)(a)(i) by deleting “him” and inserting instead —

“ the employer ”;

(c)	by repealing subsection (4) and inserting instead —

“

(4)	If an employer contravenes subsection (1) or (2), the employer commits an offence.

”.

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90. Section 40 amended

Section 40(a) is amended by deleting “his employees” and

inserting instead —

“ the employees of the employer ”.

91. Section 43 amended

Section 43(1)(l) is amended by deleting “he interviews” and

inserting instead —

“ the inspector interviews ”.

92. Section 45 amended

Section 45(5) is repealed and the following subsection is

inserted instead —

“

(5)	If an employer contravenes subsection (2a), the employer commits an offence.

”.

93. Section 47 amended

Section 47(1) is amended as follows:

(a)	by deleting “A person who” and inserting instead —

“ If a person ”;

(b)	by inserting immediately before “commits an offence” —

“ the person ”.

94. Section 48 amended

(1)

Section 48(3) is amended by deleting “to whom an

improvement notice is issued” and inserting instead —

“ issued with an improvement notice ”.

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Amendments to make expressions in the Act gender neutral	Part 7
s. 95

(2)	Section 48(4) is repealed and the following subsection is inserted instead —

“

(4)	Subject to sections 51 and 51A, if a person —

(a)	is issued with an improvement notice; and
(b)	does not comply with the notice within the time specified in it,

the person commits an offence.

”.

(3)

Section 48(5) is amended by deleting “to whom an

improvement notice is issued” and inserting instead —

“ issued with an improvement notice ”.

(4)

Section 48(6) is repealed and the following subsection is

inserted instead —

“

(6)	If a person contravenes subsection (3), (3a), (3c) or (3d), the person commits an offence.

”.

95. Section 49 amended

(1)

Section 49(1) is amended by deleting “who” in both places

where it appears and inserting instead —

“ that ”.

(2)

Section 49(5) and (6) are repealed and the following subsections

are inserted instead —

“

(5)

Subject to sections 51 and 51A, if a person issued with

a prohibition notice does not comply with the notice,

the person commits an offence.

(6)

If a person contravenes subsection (4), (4a), (4b) or

(4c), the person commits an offence.

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s. 96

”.

96. Section 50 amended

Section 50(2)(b) is amended by deleting “to whom it is issued”

and inserting instead —

“ issued with the notice ”.

97. Section 51 amended

Section 51(1)(a) and (b) are deleted and the following

paragraphs are inserted instead —

“

(a)	the person issued with the notice; or
(b)	the employer (if any) of the person issued with the notice.

”.

98. Section 51A amended

Section 51A(1) is amended by deleting “to whom notice of a

decision is issued” and inserting instead —

“ issued with notice of a decision ”.

99. Section 56 amended

Section 56(1) is amended as follows:

(a)	by deleting “An employer or prospective employer who in any way treats an employee or prospective employee less favourably than he otherwise would” and inserting instead —

“

If an employer or prospective employer in any way

treats an employee or prospective employee less

favourably than would otherwise be the case

”;

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Amendments to make expressions in the Act gender neutral	Part 7
s. 100

(b)	by inserting immediately before “commits” —

“ the employer or prospective employer ”.

100. Section 57 amended

(1)	Section 57(1) is amended by deleting “on whom a duty is imposed” and inserting instead —
“ that are subject to a duty ”.
(2)	Section 57(7) is amended by deleting “he” and inserting instead —
“ the person ”.

101. Schedule amended

The Schedule is amended as follows:

(a)	in item 9(a) by deleting “his employees” and inserting instead —

“ the employees of the employer, ”;

(b)	in item 9(b) by deleting “his” and inserting instead —

“ the employer, ”;

(c)	in items 16 and 25 by deleting “his employees” and inserting instead —

“ the employees of the employer ”.

102. Feminine pronoun inserted in various provisions

(1)

Each provision specified in the Table to this subsection is

amended by inserting after “he” —

“ or she ”.

Table

s. 12	s. 33(1)(e)
s. 13(3)	s. 34(1)(a), (b) and (c)
s. 20(2)(b) and (d)(ii)	s. 43(1)(c) and (d)

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Part 7	Amendments to make expressions in the Act gender neutral
s. 102

s. 25(2)(a)	s. 44
s. 26(1)	s. 45(3) (2 places)
s. 28(1)	s. 45(4) and (4)(a)
s. 31(11)	s. 46(1) (2 places)
s. 32(2)(d)	s. 55(1) and (2)
s. 33(1)	s. 56(2)
s. 33(1)(a)(ii)

(2)

Each provision specified in the Table to this subsection is

amended by inserting after “his” —

“ or her ”.

Table

s. 9(6)	s. 34(2)(a)
s. 18(4)	s. 34(4)(b)
s. 20(1), (2)(b) and (d)(ii)	s. 35(3)(a) and (b)
s. 26(1) and (2)	s. 43(1)(b), (m), (n) and (o)
s. 27	s. 43(2) (2 places)
s. 28(1)	s. 44
s. 33(1)(c), (d) and (f)	s. 47(1)(b) (2 places)
s. 33(3) (2 places)	s. 55(2)
s. 34(1)(b) (2nd and 3rd	s. 61(2)

places) and (c)

(3)

Each provision specified in the Table to this subsection is

amended by inserting after “him” —

“ or her ”.

Table

s. 16(2)	s. 34(3)
s. 18(4)	s. 43(1)(c), (l) and (o)
s. 26(1)	s. 61(1)(e)

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s. 103

103. Relative pronoun replaced

Each provision specified in the Table to this section is amended

by deleting “who” and inserting instead —

“ that ”.

Table

s. 6(6)	s. 28A(3)
s. 22(2)	s. 51(6) (2 places)
s. 23(3)	s. 54A(2)

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Part 8	Miscellaneous amendments
s. 104

Part 8 — Miscellaneous amendments

104. Section 3 amended

(1)	Section 3(1) is amended by inserting in the appropriate alphabetical positions — “

“Australian Standard” means a document having that title published by Standards Australia International Limited (ACN 087 326 690);

“Australian/New Zealand Standard” means a

document having that title published jointly by —

(a)

Standards Australia International Limited

(ACN 087 326 690); and

(b)

the Standards Council of New Zealand;

“import” means to bring into the State, whether from

outside Australia or otherwise;

“trainee” means a person belonging to a class of

persons defined by the regulations as trainees for

the purposes of this Act;

”.

(2)	Section 3(1) is amended by deleting the definition of “apprentice” and inserting instead — “

“apprentice” —

(a)	means an apprentice under the Industrial Training Act 1975; or
(b)	if Part 7 of the Vocational Education and Training Act 1996 comes into operation, means a person who, as an employee, has entered into an apprenticeship within the meaning of that term in section 58 of that Act;

”.

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s. 104

(3)

Section 3(1) is amended in the definition of “employee”, in

paragraph (b), by deleting “industrial”.

(4)

Section 3(1) is amended in the definition of “employer”, in

paragraph (b) as follows:

(a)	by deleting “, or industrial trainee” and inserting instead —

“ or trainee ”;

(b)	by deleting “industrial training agreement” and inserting instead —

“

traineeship scheme under the Industrial

Training Act 1975

”.

(5)

Section 3(1) is amended by deleting the definition of “industrial

trainee”.

(6)

Section 3(1) is amended in the definition of “inspector” by

deleting “Part V” and inserting instead —

“

section 42, and subject to section 42B(3), includes a restricted inspector appointed under section 42A

”.

(7)	Section 3(1) is amended by deleting the definition of “self-employed person” and inserting instead — “

“self-employed person” means an individual who

works for gain or reward otherwise than —

(a)	under a contract of employment; or
(b)	as an apprentice or trainee,

whether or not the individual is an employer;

”.

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Part 8	Miscellaneous amendments
s. 105

(8)	Section 3(1) is amended by deleting the definition of “supply” and inserting instead — “

“supply”, in relation to any plant or substance,

includes supply and re-supply by way of —

(a)	sale (including by auction), exchange, lease, hire, or hire-purchase, whether as principal or agent;
(b)	the disposal in a manner referred to in paragraph (a) of assets of a business that include any plant or substance; and
(c)	the disposal of all of the shares in a company that owns any plant or substance;

”.

105. Section 6 amended

(1)	Section 6 is amended by deleting subsection (2)(c) and “and” after it and inserting instead —

“

(c)

2 persons employed in the Public Service under Act 1994, of whom —

(i) one shall be nominated by the Minister; and

(ii)	department, as defined in section 4(1) of the Mines Safety and Inspection

the other shall be an officer of the whom the administration of that Act is committed;

and

”.

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Miscellaneous amendments	Part 8
s. 105

(2)	Section 6(2)(d) is amended as follows:

(a)	in subparagraph (i) by deleting “3” and inserting instead —

“ 2 ”;

(b)	in subparagraph (ii) by inserting after “persons” —

“

, of whom one shall be a person who has

knowledge of and experience in the

mining industry in the State,

”;

(c)	by deleting “and” after subparagraph (ii);
(d)	in subparagraph (iii) by deleting the full stop and inserting instead —

“ ; and ”;

(e)	by inserting after subparagraph (iii) the following subparagraph —

“

(iv) one shall be a person nominated by the Chamber of Minerals and Energy of Western Australia Inc.

”.

(3)	Section 6(3) is amended as follows:

(a)	by deleting “or (ii)” in both places where it occurs and inserting instead —

“ , (ii) or (iv) ”;

(b)	by deleting “considered suitable” and inserting instead —

“ who is suitably qualified, ”.

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106. Section 14A inserted

After section 14 the following section is inserted —

“

14A.

Mining Industry Advisory Committee

(1)	In this section —
“committee” means the committee referred to in

subsection (2);

“mining industry” means the mining industry in the

State;

“Ministers” means —

(a)	the Minister to whom the administration of this Act is committed; and
(b)	the Minister to whom the administration of the Mines Safety and Inspection Act 1994 is committed (the “Minister for Mines”),

acting jointly.

(2)

There is to be an advisory committee called the Mining

Industry Advisory Committee.

(3)

The functions of the committee are —

(a)	to advise and make recommendations to the Ministers and the Commission on occupational safety and health matters concerning the mining industry; and
(b)	to liaise with the Commission to coordinate activities on related functions and to maintain parallel standards,

and in particular, but without limiting the generality of

paragraphs (a) and (b) —

(c)	to inquire into and report to the Ministers regarding any matter referred to it by the

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Ministers relating to occupational safety and health in the mining industry;

(d)	to make recommendations to the Minister for Mines regarding the formulation, amendment, or repeal of laws relating to occupational safety
and health for which that Minister is responsible;
(e)	to prepare or recommend the adoption of codes of practice, guidelines, standards, specifications or other forms of guidance for the purpose of
assisting employers, self-employed persons, employees, manufacturers or other persons to maintain appropriate standards of occupational safety and health in the mining industry; and
(f)	to provide advice on —

(i) education and publications; and

(ii) training and training courses,

with respect to occupational safety and health

in the mining industry.

(4)

The chairperson of the committee is to be the member

of the Commission nominated under section 6(2)(c)(ii).

(5)

Subject to subsection (4), the Ministers —

(a)	are to appoint the members of; and
(b)	may alter or reconstitute,

the committee.

(6)	The members of the committee are entitled to be paid such remuneration and travelling and other allowances as may be determined by the Ministers on the recommendation of the Minister for Public Sector Management.

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(7)	Subject to any direction given to it by the Commission, the committee is to determine its own procedures.

”.

107. Section 48 amended

(1)	Section 48(3c) is repealed and the following subsection is inserted instead —

“

(3c)	If an improvement notice is issued —

(a)	to a self-employed person in respect of a contravention of section 21; or
(b)	to a body corporate to which section 21B applies in respect of a contravention of that section,

the person or body shall comply with subsection (3) and (3d) as if the person or body were an employer.

”.

(2)	After section 48(3c) the following subsection is inserted —

“

(3d)	If an improvement notice is modified by the Commissioner under section 51(5)(b), the employer shall cause a copy of the Commissioner’s decision to be displayed with the improvement notice, or a copy of it, as required by subsection (3).

”.

108. Section 49 amended

(1)	Section 49(4b) is repealed and the following subsection is inserted instead —

“

(4b)

If a prohibition notice is issued —

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(a)	to a self-employed person in respect of a contravention of section 21; or
(b)	to a body corporate to which section 21B applies in respect of a contravention of that section,

the person or body shall comply with subsection (4) and (4c) as if the person or body were an employer.

”.

(2)	After section 49(4b) the following subsection is inserted —

“

(4c)	If a prohibition notice is modified by the Commissioner under section 51(5)(b), the employer shall cause a copy of the Commissioner’s decision to be displayed with the prohibition notice, or a copy of it, as required by subsection (4).

”.

109. Section 50A inserted

After section 50 the following section is inserted —

“

50A.

Notices may be issued to the Crown

(1)	An improvement notice and a provisional improvement notice may be issued in respect of a contravention of this Act by the Crown in any of its capacities.
(2)	A prohibition notice may be issued in respect of an activity of or controlled by the Crown in any of its capacities.
(3)	If the contravention or activity relates to a body corporate that is an agent of the Crown, the notice is to be issued to the body corporate.
(4)	In the case of any other contravention or activity that relates to the Crown, the notice —

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(a)	is to be issued to the Crown under the title “State of Western Australia”; and
(b)	is to show the name of the responsible agency under Part VII Division 2 that would be specified in a charge for an offence in respect of that contravention or activity.

(5)	It is sufficient for the purposes of subsection (3) or (4) if the notice —

(a)	is delivered to a person at the workplace concerned who has, or reasonably appears to have, responsibility for the management or control of the workplace; or
(b)	is sent by pre-paid letter addressed and posted to the body corporate or responsible agency concerned at its principal place of business in the State.

(6)	If a notice is delivered to a person as mentioned in subsection (5)(a) the person must, as soon as is practicable, give a copy of the notice to the executive who is responsible for the day to day administration of the body corporate or responsible agency concerned.

”.

110. Section 51AA inserted

After section 51 the following section is inserted —

“

51AA.

Further power of Commissioner to cancel notice

(1)	The Commissioner, on his or her own initiative, may cancel an improvement notice or a prohibition notice by giving notice in writing of the cancellation, and the
reasons for it —

(a)	to the person issued with the notice; and

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(b)	if that person is an employee, to the employee’s employer.

(2)	The power conferred by subsection (1) is not to be exercised in respect of a notice —

(a)	during a period when a referral of the notice under section 51 is awaiting a determination of the Commissioner under that section; or
(b)	after a decision in respect of the notice has been referred to the Tribunal under section 51A,

but may be exercised at any other time and whether or not the notice has been affirmed under section 51(5)(a) or (b).

”.

111. Section 53 amended

(1)

Section 53 is amended by inserting before “In proceedings” the

subsection designation “(1)”.

(2)

Section 53(b) is amended by deleting “of persons at a particular

workplace”.

(3)

After section 53(b) the following paragraphs are inserted —

“

(ba)	a particular person was an employer of particular persons;

(bb) “ inspector or a restricted inspector under section 42A, ”.

a particular person was an employer at a

particular workplace;

”.

(4)

Section 53(f) is amended by deleting “inspector,” and inserting

instead —

(5)

At the end of section 53 the following subsections are

inserted —

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“

(2)

The person commencing a prosecution for an offence

against this Act is taken to be authorised under

section 52(1) to commence the prosecution, in the

absence of evidence to the contrary.

(3)

In proceedings for an offence against this Act,

production of a copy of —

(a) a code of practice;

(b) an Australian Standard; or

purporting to be certified by the Commissioner to be a

true copy as at any date or during any period is,

without proof of the signature of the Commissioner,

sufficient evidence of the contents of the code of

practice or Standard as at that date or during that

period.

”.

112. Section 56 amended

Section 56(1)(d) is deleted and the following paragraph is

inserted instead —

“

(d)	makes or has made a complaint in relation to safety or health to —

(i) the Commissioner;

(ii) an inspector;

(iii) a person who is or was his or her employer or fellow employee;

(iv) a safety and health representative; or

(v) a member of a safety and health committee,

”.

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113. Section 57A inserted

After section 57 the following section is inserted —

“

57A.

Visitors to comply with directions

(1)	In this section —
“authorised person”, in relation to a workplace,

means —

(a)	an employer of any employee at the workplace, including a person that is an employer by operation of section 23D, 23E or 23F;
(b)	any self-employed person carrying out work at the workplace; and
(c)	a person at the workplace who has the management and control of —

(i) the workplace; or

(ii) the work being carried out at the workplace;

“conduct” includes a failure to do a particular act or

thing;

“employee” includes a person who is an employee by

operation of section 23D, 23E or 23F.

(2)	Subsection (3) applies if —

(a)	a person (a “visitor”) is at a workplace otherwise than in the capacity of —

(i) an employer; (ii) an employee;

(iii) a self-employed person; or

(iv) a person having control, to any extent, of the workplace;

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and

(b)	an authorised person believes on reasonable grounds that —

(i) any conduct of the visitor at the workplace; or

(ii) the presence of the visitor in the workplace or in a particular part of the workplace,

constitutes a hazard to any person.

(3)	The authorised person may direct the visitor —

(a)	to immediately cease engaging in the conduct concerned; or
(b)	to immediately leave the workplace and not to return as a visitor to the workplace until permitted by the authorised person to do so.

(4)	A person who, without reasonable excuse, fails to comply with a direction given to the person under subsection (3) commits an offence.

”.

114. Schedule amended

The Schedule is amended as follows:

(a)	by inserting after item 1 the following item —

“

1A.	The imposition of duties on persons in relation to —

(a)	the identification of hazards at workplaces;
(b)	the assessment of risks resulting from such hazards; and
(c)	the taking of remedial or other action.

”;

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(b)	by inserting after item 4 the following item —

“

4A.	Duties to be observed by —

(a)	the owner; or

(b) of plant used at a workplace.

a person having the control,

”.

115. Mines Safety and Inspection Act 1994 amended and saving provision

(1)	The amendments in this section are to the Mines Safety and

Inspection Act 1994*.

[* Reprinted as at 17 March 2000.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 250.]

(2)	Section 4(1) is amended by deleting the definition of “Mines Occupational Safety and Health Advisory Board”.
(3)	Section 90 is repealed.
(4)	Section 93(1) is amended by deleting “Mines Occupational Safety and Health Advisory Board” and inserting instead —
“ Mining Industry Advisory Committee ”.
(5)	Section 103 is amended by deleting “Mines Occupational Safety and Health Advisory Board,” and inserting instead —
“ Mining Industry Advisory Committee ”.
(6)	Section 110(1)(b) is amended by deleting “the Mines Occupational Safety and Health Advisory Board,”.
(7)	The amendment made by subsection (5) does not affect the operation of section 103 of the Mines Safety and Inspection Act 1994, before the commencement of that subsection, in
relation to members of the Mines Occupational Safety and

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Health Advisory Board established under the section repealed by subsection (3).

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Part 9 — Repeal of Shearers’ Accommodation Act 1912

116. Shearers’ Accommodation Act 1912 repealed

The Shearers’ Accommodation Act 1912 is repealed.