Work Health and Safety Act 2011 (Qld)

Work Health and Safety Act 2011

An Act to provide comprehensively for work health and safety, to provide for a new definition of asbestos in particular legislation and for a work health and safety levy, to amend other legislation as a consequence, and to amend the Workers’ Compensation and Rehabilitation Act 2003 for particular purposes

Part 1    Preliminary

Division 1 Introduction

1   Short title

This Act may be cited as the Work Health and Safety Act 2011.

2   Commencement

(1)The following provisions commence on 1 January 2014—

(a)part 18, division 2;

(b)sections 391 and 401;

(c)schedule 4, part 1.

(2)Sections 395, 396, 397(2) and 398 to 400 commence immediately after the commencement of sections 391 and 401.

(3)The remaining provisions commence on a day to be fixed by proclamation.

Division 2 Object

3   Object

(1)The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—

(a)protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and

(b)providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

(c)encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and

(d)promoting the provision of advice, information, education and training in relation to work health and safety; and

(e)securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f)ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and

(g)providing a framework for continuous improvement and progressively higher standards of work health and safety; and

(h)maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland.

(2)In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable.

Note—

The numbering of this Act closely corresponds to the same numbering in a model Bill prepared for and approved by the Council of Australian Governments. To maximise uniformity between this Act and the model Bill, the numbers of some sections in the model Bill that are not relevant have not been used in the numbering of this Act, unless required for provisions particular to the State. Adoption of the numbering of the model Bill also results in alphanumeric numbering being used to insert further provisions particular to the State.

Division 3 Interpretation

Subdivision 1 Definitions

4   Definitions

The dictionary in schedule 5 defines particular words used in this Act.

Subdivision 2 Other important terms

5   Meaning of person conducting a business or undertaking

(1)For this Act, a person conducts a business or undertaking—

(a)whether the person conducts the business or undertaking alone or with others; and

(b)whether or not the business or undertaking is conducted for profit or gain.

(2)A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3)If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4)A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5)An elected member of a local government does not in that capacity conduct a business or undertaking.

(6)A regulation may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7)A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8)In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

6   Meaning of supply

(1)A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent.

(2)A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied.

(3)A supply of a thing does not include—

(a)the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or

(b)a prescribed supply.

(4)A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if—

(a)the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and

(b)the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer.

(5)If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier’s customer.

7   Meaning of worker

(1)A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—

(a)an employee; or

(b)a contractor or subcontractor; or

(c)an employee of a contractor or subcontractor; or

(d)an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e)an outworker; or

(f)an apprentice or trainee; or

(g)a student gaining work experience; or

(h)a volunteer; or

(i)a person of a prescribed class.

(2)For this Act, a police officer is—

(a)a worker; and

(b)at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.

(3)The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

8   Meaning of workplace

(1)A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

(2)In this section, place includes—

(a)a vehicle, vessel, aircraft or other mobile structure; and

(b)any waters and any installation on land, on the bed of any waters or floating on any waters.

9   Section number not used

See note to section 3.

Division 4 Application of Act

10   Act binds all persons

(1)This Act binds all persons including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.

(2)The State, the Commonwealth and the other States are liable for an offence against this Act.

(3)Without limiting subsection (1), the State, the Commonwealth and the other States are liable for a contravention of a WHS civil penalty provision.

11   Section number not used

See note to section 3.

12   Scope: application of Act to particular matters

Schedule 1 provides for the application of this Act to—

(a)dangerous goods and high risk plant; and

(b)matters dealt with under other legislation.

Part 2    Health and safety duties

Division 1 Introductory

Subdivision 1 Principles that apply to duties

13   Principles that apply to duties

This subdivision sets out the principles that apply to all duties that persons have under this Act.

Note—

The principles will apply to duties under this part and other parts of this Act including, for example, duties relating to incident notification and consultation.

14   Duties not transferable

A duty can not be transferred to another person.

15   Person may have more than 1 duty

A person can have more than 1 duty by virtue of being in more than 1 class of duty holder.

16   More than 1 person can have a duty

(1)More than 1 person can concurrently have the same duty.

(2)Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3)If more than 1 person has a duty for the same matter, each person—

(a)retains responsibility for the person’s duty in relation to the matter; and

(b)must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

17   Management of risks

A duty imposed on a person to ensure health and safety requires the person—

(a)to eliminate risks to health and safety, so far as is reasonably practicable; and

(b)if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

Subdivision 2 What is reasonably practicable

18   What is reasonably practicable in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a)the likelihood of the hazard or the risk concerned occurring; and

(b)the degree of harm that might result from the hazard or the risk; and

(c)what the person concerned knows, or ought reasonably to know, about—

(i)the hazard or the risk; and

(ii)ways of eliminating or minimising the risk; and

(d)the availability and suitability of ways to eliminate or minimise the risk; and

(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Division 2 Primary duty of care

19   Primary duty of care

(1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a)workers engaged, or caused to be engaged by the person; and

(b)workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a)the provision and maintenance of a work environment without risks to health and safety; and

(b)the provision and maintenance of safe plant and structures; and

(c)the provision and maintenance of safe systems of work; and

(d)the safe use, handling and storage of plant, structures and substances; and

(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

(4)If—

(a)a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and

(b)the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available;

the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

(5)A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

Note—

A self-employed person is also a person conducting a business or undertaking for the purposes of this section.

Division 3 Further duties of persons conducting businesses or undertakings

20   Duty of persons conducting businesses or undertakings involving management or control of workplaces

(1)In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include—

(a)the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(b)a prescribed person.

(2)The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

21   Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces

(1)In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include—

(a)the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

(b)a prescribed person.

(2)The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person.

22   Duties of persons conducting businesses or undertakings that design plant, substances or structures

(1)This section applies to a person (the designer) who conducts a business or undertaking that designs—

(a)plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b)a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons—

(a)who, at a workplace, use the plant, substance or structure for a purpose for which it was designed; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who carry out any reasonably foreseeable activity at a workplace in relation to—

(i)the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii)the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance; or

(iii)the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure; or

Example—

inspection, operation, cleaning, maintenance or repair of plant

(f)who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).

(3)The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4)The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning—

(a)each purpose for which the plant, substance or structure was designed; and

(b)the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity mentioned in subsection (2)(a) to (e).

(5)The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).

23   Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures

(1)This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures—

(a)plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b)a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons—

(a)who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who carry out any reasonably foreseeable activity at a workplace in relation to—

(i)the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii)the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii)the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

Example—

inspection, operation, cleaning, maintenance or repair of plant

(f)who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).

(3)The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4)The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning—

(a)each purpose for which the plant, substance or structure was designed or manufactured; and

(b)the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e).

(5)The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).

24   Duties of persons conducting businesses or undertakings that import plant, substances or structures

(1)This section applies to a person (the importer) who conducts a business or undertaking that imports—

(a)plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b)a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons—

(a)who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who carry out any reasonably foreseeable activity at a workplace in relation to—

(i)the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii)the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii)the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

Example—

inspection, operation, cleaning, maintenance or repair of plant

(f)who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).

(3)The importer must—

(a)carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or

(b)ensure that the calculations, analysis, testing or examination have been carried out.

(4)The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning—

(a)each purpose for which the plant, substance or structure was designed or manufactured; and

(b)the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e).

(5)The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).

25   Duties of persons conducting businesses or undertakings that supply plant, substances or structures

(1)This section applies to a person (the supplier) who conducts a business or undertaking that supplies—

(a)plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or

(b)a substance that is to be used, or could reasonably be expected to be used, at a workplace; or

(c)a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons—

(a)who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured; or

(b)who handle the substance at a workplace; or

(c)who store the plant or substance at a workplace; or

(d)who construct the structure at a workplace; or

(e)who carry out any reasonably foreseeable activity at a workplace in relation to—

(i)the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or

(ii)the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or

(iii)the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

Example—

inspection, storage, operation, cleaning, maintenance or repair of plant

(f)who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).

(3)The supplier must—

(a)carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or

(b)ensure that the calculations, analysis, testing or examination have been carried out.

(4)The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning—

(a)each purpose for which the plant, substance or structure was designed or manufactured; and

(b)the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and

(c)any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e).

(5)The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).

26   Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures

(1)This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons—

(a)who install or construct the plant or structure at a workplace; or

(b)who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or

(c)who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or

(d)who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b) or (c).

26A   Duty of persons conducting business or undertaking—codes of practice

A person conducting a business or undertaking must, if the Minister approves a code of practice for the purposes of this Act—

(a)comply with the code; or

(b)manage hazards and risks arising from the work carried out as part of the conduct of the business or undertaking in a way that is different to the code but provides a standard of health and safety that is equivalent to or higher than the standard required under the code.

Division 4 Duty of officers, workers and other persons

27   Duty of officers

(1)If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2)Subject to subsection (3), the maximum penalty applicable under division 5 for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3)Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of division 2 or 3 or this division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4)An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(5)In this section, due diligence includes taking reasonable steps—

(a)to acquire and keep up-to-date knowledge of work health and safety matters; and

(b)to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and

(c)to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and

(d)to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

(e)to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and

Example—

For paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—

•reporting notifiable incidents

•consulting with workers

•ensuring compliance with notices issued under this Act

•ensuring the provision of training and instruction to workers about work health and safety

•ensuring that health and safety representatives receive their entitlements to training.

(f)to verify the provision and use of the resources and processes mentioned in paragraphs (c) to (e).

28   Duties of workers

While at work, a worker must—

(a)take reasonable care for his or her own health and safety; and

(b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c)comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

(d)co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

29   Duties of other persons at the workplace

A person at a workplace, whether or not the person has another duty under this part, must—

(a)take reasonable care for his or her own health and safety; and

(b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and

(c)comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

Division 5 Offences and penalties

30   Health and safety duty

Health and safety duty means a duty imposed under division 2, 3 or 4.

31   Negligent or reckless conduct—category 1

(1)A person commits a category 1 offence if—

(a)the person has a health and safety duty; and

(b)the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and

(c)the person—

(i)engages in the conduct with negligence; or

(ii)is reckless as to the risk to the individual of death or serious injury or illness.

Maximum penalty—

(a)for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3,000 penalty units or 5 years imprisonment; or

(b)for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—6,000 penalty units or 5 years imprisonment; or

(c)for an offence committed by a body corporate—30,000 penalty units.

Note—

In this division, the penalty applicable to a body corporate is separately expressed. Otherwise the Penalties and Sentences Act 1992, section 181B applies for this Act.

(2)The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.

(3)A category 1 offence is a crime.

32   Failure to comply with health and safety duty—category 2

A person commits a category 2 offence if—

(a)the person has a health and safety duty; and

(b)the person fails to comply with that duty; and

(c)the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty—

(a)for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,500 penalty units; or

(b)for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3,000 penalty units; or

(c)for an offence committed by a body corporate—15,000 penalty units.

Note—

See also the note to section 31(1).

33   Failure to comply with health and safety duty—category 3

A person commits a category 3 offence if—

(a)the person has a health and safety duty; and

(b)the person fails to comply with that duty.

Maximum penalty—

(a)for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—500 penalty units; or

(b)for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,000 penalty units; or

(c)for an offence committed by a body corporate—5,000 penalty units.

Note—

See also the note to section 31(1).

33A   Duty prevails over particular excuses

For an offence against section 32 or 33, the Criminal Code sections 23(1) and 24 are subject to divisions 1 to 4.

34   Exceptions

(1)A volunteer does not commit an offence under this division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.

(2)An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act.

(3)However—

(a)an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27; and

(b)a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.

Part 2A    Industrial manslaughter

34A   Definitions for part

(1)In this part—

conduct means an act or omission to perform an act.

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

senior officer, of a person conducting a business or undertaking, means—

(a)if the person is a corporation—an executive officer of the corporation; or

(b)otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person’s functions.

(2)For this part, a person’s conduct causes death if it substantially contributes to the death.

Note—

In relation to the numbering of this part, see the note to section 3.

34B   Exceptions

(1)A volunteer does not commit an offence under this part.

(2)Despite section 34(2), a senior officer of an unincorporated association (other than a volunteer) may commit an offence under this part.

(3)The Criminal Code, section 23 does not apply to an offence under this part.

34C    Industrial manslaughter—person conducting business or undertaking

(1)A person conducting a business or undertaking commits an offence if—

(a)an individual to whom the person has a health and safety duty—

(i)dies; or

(ii)is injured and later dies; and

(b)the person’s conduct causes the death of the individual; and

(c)the person is negligent about causing the death of the individual by the conduct.

Maximum penalty—

(a)for an individual—20 years imprisonment; or

(b)for a body corporate—100,000 penalty units.

(2)An offence against subsection (1) is a crime.

34D   Industrial manslaughter—senior officer

(1)A senior officer of a person conducting a business or undertaking commits an offence if—

(a)an individual to whom the person has a health and safety duty—

(i)dies; or

(ii)is injured and later dies; and

(b)the senior officer’s conduct causes the death of the individual; and

(c)the senior officer is negligent about causing the death of the individual by the conduct.

Maximum penalty—20 years imprisonment.

(2)An offence against subsection (1) is a crime.

34E    Alternative offences to industrial manslaughter

(1)On an indictment charging a person with an offence against this part, the person may alternatively be convicted of a category 1 offence or a category 2 offence (in either case an alternative offence) if the alternative offence is established by the evidence.

(2)A person may be convicted under subsection (1) of an alternative offence even if the applicable limitation period under section 232(1) for the alternative offence ended before the proceedings for the offence against this part were taken.

Part 3    Incident notification

35   What is a notifiable incident

In this Act, notifiable incident means—

(a)the death of a person; or

(b)a serious injury or illness of a person; or

(c)a dangerous incident.

36   What is a serious injury or illness

In this part, serious injury or illness of a person means an injury or illness requiring the person to have—

(a)immediate treatment as an in-patient in a hospital; or

(b)immediate treatment for—

(i)the amputation of any part of his or her body; or

(ii)a serious head injury; or

(iii)a serious eye injury; or

(iv)a serious burn; or

(v)the separation of his or her skin from an underlying tissue (for example, degloving or scalping); or

(vi)a spinal injury; or

(vii)the loss of a bodily function; or

(viii)serious lacerations; or

(c)medical treatment within 48 hours of exposure to a substance;

and includes any other injury or illness prescribed under a regulation but does not include an illness or injury of a prescribed kind.

37   What is a dangerous incident

In this part, a dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to—

(a)an uncontrolled escape, spillage or leakage of a substance; or

(b)an uncontrolled implosion, explosion or fire; or

(c)an uncontrolled escape of gas or steam; or

(d)an uncontrolled escape of a pressurised substance; or

(e)electric shock; or

(f)the fall or release from a height of any plant, substance or thing; or

(g)the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use under a regulation; or

(h)the collapse or partial collapse of a structure; or

(i)the collapse or failure of an excavation or of any shoring supporting an excavation; or

(j)the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or

(k)the interruption of the main system of ventilation in an underground excavation or tunnel; or

(l)any other event prescribed under a regulation;

but does not include an incident of a prescribed kind.

38   Duty to notify of notifiable incidents

(1)A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.

Maximum penalty—100 penalty units.

(2)The notice must be given as required under this section and by the fastest possible means.

(3)The notice must be given—

(a)by telephone; or

(b)in writing.

Example—

The written notice can be given by facsimile, email or other electronic means.

(4)A person giving notice by telephone must—

(a)give the details of the incident requested by the regulator; and

(b)if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made.

(5)A written notice must be in a form, or contain the details, approved by the regulator.

(6)If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking—

(a)details of the information received; or

(b)an acknowledgement of receiving the notice.

(7)A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section.

Maximum penalty—50 penalty units.

39   Duty to preserve incident sites

(1)The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.

Maximum penalty—100 penalty units.

(2)In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident.

(3)Subsection (1) does not prevent any action—

(a)to assist an injured person; or

(b)to remove a deceased person; or

(c)that is essential to make the site safe or to minimise the risk of a further notifiable incident; or

(d)that is associated with a police investigation; or

(e)for which an inspector or the regulator has given permission.

Part 4    Authorisations

40   Meaning of authorised

In this part, authorised means authorised by a licence, permit, registration or other authority (however described) as required under a regulation.

41   Requirements for authorisation of workplaces

A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if—

(a)a regulation requires the workplace or workplaces in that class of workplace to be authorised; and

(b)the workplace is not authorised under the regulation.

Maximum penalty—500 penalty units.

42   Requirements for authorisation of plant or substance

(1)A person must not use plant or a substance at a workplace if—

(a)a regulation requires the plant or substance or its design to be authorised; and

(b)the plant or substance or its design is not authorised under the regulation.

Maximum penalty—200 penalty units.

(2)A person who conducts a business or undertaking must not direct or allow a worker to use plant or a substance at a workplace if—

(a)a regulation requires the plant or substance or its design to be authorised; and

(b)the plant or substance or its design is not authorised in under a regulation.

Maximum penalty—200 penalty units.

43   Requirements for authorisation of work

(1)A person must not carry out work at a workplace if—

(a)a regulation requires the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and

(b)the person, or the person on whose behalf the work is carried out, is not authorised under a regulation.

Maximum penalty—200 penalty units.

(2)A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if—

(a)a regulation requires the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and

(b)the person, or the person on whose behalf the work is to be carried out, is not authorised under a regulation.

Maximum penalty—200 penalty units.

44   Requirements for prescribed qualifications or experience

(1)A person must not carry out work at a workplace if—

(a)a regulation requires the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and

(b)the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

Maximum penalty—200 penalty units.

(2)A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if—

(a)a regulation requires the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and

(b)the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

Maximum penalty—200 penalty units.

45   Requirement to comply with conditions of authorisation

A person must comply with the conditions of any authorisation given to that person under a regulation.

Maximum penalty—200 penalty units.

Part 5    Consultation, representation and participation

Division 1AA Preliminary

45A   Definitions for part

In this part—

excluded entity, for representing or assisting a worker or the health and safety representative for a worker, see section 45B.

relevant union, for a worker, whether the worker is a health and safety representative or another worker, means a union—

(a)of which the worker is a member or is eligible to be a member; and

(b)whose rules entitle the union to represent the worker’s industrial interests.

representative, in relation to a worker, means—

(a)the health and safety representative for the worker; or

(b)a suitable entity for representing the worker that is authorised by the worker to represent the worker.

suitable entity, for representing or assisting a worker or the health and safety representative for a worker, means—

(a)a relevant union for the worker; or

(b)another entity that—

(i)is authorised by the worker or representative to represent or assist the worker or representative; but

(ii)is not an excluded entity for representing or assisting the worker or representative.

45B   Meaning of excluded entity

(1)Each of the following entities is an excluded entity for representing or assisting a worker or the health and safety representative for a worker—

(a)the following entities (each an excluded body)—

(i)an entity, other than a union, that is an association of employees or independent contractors, or both;

(ii)an entity, other than a union or an association mentioned in subparagraph (i), that represents, or purports to represent, the industrial interests of the worker or representative;

(iii)an entity that demands or receives a fee from another excluded body, for representing, or purporting to represent, the industrial interests of the worker or representative;

(iv)a union that is not a relevant union for the worker;

(b)an individual who—

(i)is an officer or employee of an excluded body; or

(ii)is acting as an agent of an excluded body; or

(iii)is otherwise representing or purporting to represent an excluded body.

(2)An association of a type mentioned in subsection (1)(a)(i) is an excluded entity whether or not the association is registered or recognised as an association of that type (however described) under a State or Territory industrial law.

(3)Despite subsection (1)(b), an individual is not an excluded entity under subsection (1)(b)(iii) only because the individual is a member of an excluded body.

Division 1 Consultation, cooperation and coordination between duty holders

46   Duty to consult with other duty holders

If more than 1 person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter.

Maximum penalty—200 penalty units.

Division 2 Consultation with workers

47   Duty to consult workers

(1)The person conducting a business or undertaking must, so far as is reasonably practicable, consult, as required under this division and any regulation, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.

Maximum penalty—200 penalty units.

(2)If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

(3)The agreed procedures must not be inconsistent with section 48.

48   Nature of consultation

(1)Consultation under this division requires—

(a)that relevant information about the matter is shared with workers; and

(b)that workers be given a reasonable opportunity—

(i)to express their views and to raise work health or safety issues in relation to the matter; and

(ii)to contribute to the decision-making process relating to the matter; and

(c)that the views of workers are taken into account by the person conducting the business or undertaking; and

(d)that the workers consulted are advised of the outcome of the consultation in a timely way.

(2)If the workers are represented by a health and safety representative, the consultation must involve that representative.

(3)Also, if 1 or more of the workers ask the person conducting the business or undertaking to consult with their representative, the consultation must involve that representative.

(4)Subsection (5) applies if—

(a)the consultation involves a representative under subsection (3); and

(b)the parties to the consultation agree that the consultation is to be carried out at a workplace where 1 or more of the workers work.

(5)The person conducting the business or undertaking must carry out the consultation only at the time and place agreed to by the parties.

(6)Subsection (1)(a) does not require the person conducting the business or undertaking to allow a representative to have access to—

(a)personal or medical information concerning a worker without the worker’s consent, unless the information is in a form that—

(i)does not identify the worker; and

(ii)could not reasonably be expected to lead to the identification of the worker; or

(b)information that is confidential commercial information.

49   When consultation is required

Consultation under this division is required in relation to the following health and safety matters—

(a)when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking;

(b)when making decisions about ways to eliminate or minimise those risks;

(c)when making decisions about the adequacy of facilities for the welfare of workers;

(d)when proposing changes that may affect the health or safety of workers;

(e)when making decisions about the procedures for—

(i)consulting with workers; or

(ii)resolving work health or safety issues at the workplace; or

(iii)monitoring the health of workers; or

(iv)monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or

(v)providing information and training for workers; or

(f)when carrying out any other activity prescribed under a regulation for this section.

Division 3 Health and safety representatives

Subdivision 1 Request for election of health and safety representatives

50   Request for election of health and safety representative

A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for 1 or more health and safety representatives to represent workers who carry out work for the business or undertaking.

50A   Prohibition of hindering etc. request for election of health and safety representative

A person conducting a business or undertaking must not intentionally hinder, prevent or discourage a worker from making a request under section 50 to facilitate the conduct of an election for 1 or more health and safety representatives.

Maximum penalty—200 penalty units.

50B    Invitation to request election of health and safety representatives

(1)This section applies to a person conducting a business or undertaking if—

(a)a health and safety representative has not been elected to represent workers who carry out work for the business or undertaking; or

(b)the term of office of a health and safety representative for a work group ends under section 64(1); or

(c)a health and safety representative for a work group ceases to hold office under section 64(2).

(2)The person conducting the business or undertaking must, at the time or within the period required under subsection (3)—

(a)notify the workers who work for the business or undertaking in writing about the following matters—

(i)that a worker may request an election for 1 or more health and safety representatives under section 50;

(ii)the process for the determination of work groups;

(iii)who may represent the workers in negotiations under section 52;

(iv)the process for the election of health and safety representatives;

(v)the powers and functions of health and safety representatives; and

(b)invite the workers to ask the person to facilitate an election for 1 or more health and safety representatives under section 50.

(3)The person conducting the business or undertaking must take the action mentioned in subsection (2)(a) and (b)—

(a)if subsection (1)(a) applies—

(i)as soon as possible after the business or undertaking is first conducted; or

(ii)as soon as possible after the commencement; or

(iii)if a notification and invitation mentioned in subsection (2) have been given to the workers—within 1 year after the notification and invitation were last given; or

(b)if subsection (1)(b) applies—as soon as reasonably practicable after the day the term of office of the health and safety representative ends; or

(c)if subsection (1)(c) applies—as soon as reasonably practicable after the day the health and safety representative ceased to hold office.

Subdivision 2 Determination of work groups

51   Determination of work groups

(1)If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of 1 or more work groups of workers.

(2)The purpose of determining a work group is to facilitate the representation of workers in the work group by 1 or more health and safety representatives.

(3)A work group may be determined for workers at 1 or more workplaces.

52   Negotiations for agreement for work group

(1)A work group must be determined by negotiation and agreement among the following parties—

(a)the person conducting the business or undertaking;

(b)the workers who are proposed to form the work group or their representatives;

(c)a relevant union for a worker who is proposed to form part of the work group if the union notifies the person conducting the business or undertaking, in writing, that the union wants to be a party to the negotiation and agreement.

(2)The person conducting the business or undertaking must take all reasonable steps to complete the negotiations within 14 days after a request is made under section 50.

(3)The purpose of the negotiations is to determine—

(a)the number and composition of work groups to be represented by health and safety representatives; and

(b)the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and

(c)the workplace or workplaces to which the work groups will apply; and

(d)the businesses or undertakings to which the work groups will apply.

(4)The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.

(4A)Subsection (4B) applies if—

(a)negotiations for a variation of an agreement concerning the determination of a work group or groups are started by the parties to the agreement; and

(b)a relevant union is not a party to the agreement.

(4B)The relevant union may become a party to the negotiations by notifying the person conducting the business or undertaking, in writing, that the union wants to be a party to the negotiations.

(5)For negotiations under subsection (1) or (4), the person conducting the business or undertaking must negotiate with and must not exclude from the negotiations—

(a)if a worker has asked the person to negotiate with a representative of the worker—the worker’s representative; or

(b)if a relevant union has become a party to the negotiations under subsection (1)(c) or (4B)—the relevant union.

Maximum penalty—100 penalty units.

(5A)Subsection (5B) applies if—

(a)a representative for a worker or a relevant union is a party to the negotiations under subsection (1) or (4); and

(b)the parties to the negotiations agree that the negotiations are to be carried out at a workplace where 1 or more of the workers work.

(5B)The parties must—

(a)agree on when and where in the workplace the negotiations are to be carried out; and

(b)carry out the negotiations only at the agreed time and place.

(5C)The parties to the negotiations under subsection (1) or (4) may agree to extend the period for the negotiations.

(6)A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups.

53   Notice to workers

(1)The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.

Maximum penalty—20 penalty units.

(2)The person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.

Maximum penalty—20 penalty units.

54   Failure of negotiations

(1)If negotiations to make or vary an agreement fail, any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section.

(2)For this section, negotiations have failed if agreement is not reached on a matter mentioned in section 52(3), or a matter relating to the variation of the agreement, at the end of—

(a)for negotiations to make an agreement—14 days after a request is made under section 50; or

(b)for negotiations to vary an agreement—14 days after a party to the agreement requests a variation; or

(c)for negotiations for which the parties have agreed to extend the period under section 52(5C)—the extended period.

(3)An inspector appointed under subsection (1) must attempt to assist the parties to agree on any matter mentioned in section 52(3) that is in dispute.

(4)Subsection (5) applies if the inspector reasonably believes that the parties are unlikely to reach an agreement on a matter mentioned in subsection (3) within 7 days after the appointment.

(5)The inspector must, within 7 days after the appointment—

(a)for negotiations to make an agreement—

(i)decide any matter mentioned in section 52(3) that has not been determined by the parties; or

(ii)decide that a work group should not be determined; or

(b)for negotiations to vary an agreement—

(i)decide a matter that is the subject of the proposed variation; or

(ii)decide that the agreement should not be varied.

(6)A decision under subsection (5)(a) or (b) is taken to be an agreement between the parties under section 52.

(7)A failure to comply with subsection (3), (4) or (5) does not invalidate a decision or a purported decision under subsection (5)(a) or (b).

Subdivision 3 Multiple-business work groups

55   Determination of work groups of multiple businesses

(1)Work groups may be determined for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces.

(2)The particulars of the work groups are to be determined by negotiation and agreement, under section 56, between each of the persons conducting the businesses or undertakings and the workers.

(3)The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.

(4)The determination of 1 or more work groups under this subdivision does not—

(a)prevent the determination under this subdivision or subdivision 2 of any other work group of the workers concerned; or

(b)affect any work groups of those workers that have already been determined under this subdivision or subdivision 2.

56   Negotiation of agreement for work groups of multiple businesses

(1)Negotiations concerning work groups under this subdivision must be directed only at the following—

(a)the number and composition of work groups to be represented by health and safety representatives;

(b)the number of health and safety representatives and deputy health and safety representatives (if any) for each work group;

(c)the workplace or workplaces to which the work groups will apply;

(d)the businesses or undertakings to which the work groups will apply.

(2)A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.

Maximum penalty—100 penalty units.

(3)If agreement can not be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter.

(4)A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements.

57   Notice to workers

(1)A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement.

Maximum penalty—20 penalty units.

(2)A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement.

Maximum penalty—20 penalty units.

58   Withdrawal from negotiations or agreement involving multiple businesses

(1)A party to a negotiation for an agreement, or to an agreement, concerning a work group under this subdivision may withdraw from the negotiation or agreement at any time by giving reasonable notice (in writing) to the other parties.

(2)If a party withdraws from an agreement concerning a work group under this subdivision—

(a)the other parties must negotiate a variation to the agreement under section 56; and

(b)the withdrawal does not affect the validity of the agreement between the other parties in the meantime.

59   Effect of subdivision on other arrangements

To remove doubt, it is declared that, nothing in this subdivision affects the capacity of 2 or more persons conducting businesses or undertakings and their workers to enter into other agreements or make other arrangements, in addition to complying with this part, concerning the representation of those workers.

Subdivision 4 Election of health and safety representatives

60   Eligibility to be elected

A worker is—

(a)eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group; and

(b)not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative.

61   Procedure for election of health and safety representatives

(1)The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted.

(2)However, an election must comply with the procedures (if any) prescribed under a regulation.

(3)If a majority of the workers in a work group so determine, a suitable entity for assisting 1 or more of the workers may assist in conducting the election.

(4)The person conducting the business or undertaking to which the work group relates must provide any resources, facilities and assistance that are reasonably necessary or are prescribed under a regulation to enable elections to be conducted.

Maximum penalty—100 penalty units.

62   Eligibility to vote

(1)A health and safety representative for a work group is to be elected by members of that work group.

(2)All workers in a work group are entitled to vote for the election of a health and safety representative for that work group.

62A   Prohibition of hindering etc. election of health and safety representative

A person conducting a business or undertaking must not intentionally hinder, prevent or discourage—

(a)the election of a health and safety representative or a deputy health and safety representative under this subdivision; or

(b)the person conducting the election from following the procedures mentioned in section 61(2).

Maximum penalty—200 penalty units.

63   When election not required

If the number of candidates for election as a health and safety representative for a work group equals the number of vacancies, the election need not be conducted and each candidate is to be taken to have been elected as a health and safety representative for the work group.

64   Term of office of health and safety representative

(1)A health and safety representative for a work group holds office for 3 years.

(2)However a person ceases to hold office as a health and safety representative for a work group if—

(a)the person resigns as a health and safety representative for the work group by written notice given to the person conducting the relevant business or undertaking; or

(b)the person ceases to be a worker in the work group for which he or she was elected as a health and safety representative; or

(c)the person is disqualified under section 65 from acting as a health and safety representative; or

(d)the person is removed from that position by a majority of the members of the work group under a regulation.

(3)A health and safety representative is eligible for re-election.

65   Disqualification of health and safety representatives

(1)An application may be made to the commission to disqualify a health and safety representative on the ground that the representative has—

(a)exercised a power or performed a function as a health and safety representative for an improper purpose; or

(b)used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative.

(2)The following persons may make an application under this section—

(a)any person adversely affected by—

(i)the exercise of a power or the performance of a function mentioned in subsection (1)(a); or

(ii)the use or disclosure of information mentioned in subsection (1)(b);

(b)the regulator.

(3)If the commission is satisfied that a ground in subsection (1) is made out, the commission may disqualify the health and safety representative for a stated period or indefinitely.

(4)A person dissatisfied with the decision of the commission may appeal under the Industrial Relations Act 2016, chapter 11, part 6.

Note—

See the Industrial Relations Act 2016, chapter 11, part 6.

66   Immunity of health and safety representatives

A health and safety representative is not personally liable for anything done or omitted to be done in good faith—

(a)in exercising a power or performing a function under this Act; or

(b)in the reasonable belief that the thing was done or omitted to be done in the exercise of a power or the performance of a function under this Act.

67   Deputy health and safety representatives

(1)Each deputy health and safety representative for a work group is to be elected in the same way as a health and safety representative for the work group.

(2)If the health and safety representative for a work group ceases to hold office or is unable (because of absence or any other reason) to exercise the powers or perform the functions of a health and safety representative under this Act—

(a)the powers and functions may be exercised or performed by a deputy health and safety representative for the work group; and

(b)this Act applies in relation to the deputy health and safety representative as if he or she were the health and safety representative.

(3)Sections 64, 65, 66, 72 and 73 apply to deputy health and safety representatives in the same way as they apply to health and safety representatives.

Subdivision 4A Disqualification process

67A   Definition for subdivision

In this subdivision—

applicant means—

(a)if the application under section 65 is made by the regulator—the regulator; or

(b)if the application under section 65 is made by a person other than the regulator—the person and the regulator.

Note—

In relation to the numbering of this subdivision, see the note to section 3.

67B   Application of subdivision

This subdivision applies for the purpose of an application to the commission under section 65 to disqualify a health and safety representative.

67C   Decision on application may be given on the papers or at a hearing

The commission may decide whether or not to take action on the application entirely or partly from a consideration of the documents filed.

67D   Applications decided on the papers

(1)This section applies if the commission decides to decide the application after a consideration of the documents filed and without a hearing.

(2)The commission must give the applicant and the representative a written notice stating—

(a)the commission is considering whether to disqualify the representative for a period or indefinitely (the proposed action); and

(b)the reason for the proposed action; and

(c)if the proposed action is disqualification for a period—the proposed suspension period; and

(d)an invitation—

(i)to the representative to show in writing, within a stated time of at least 14 days after the date of the notice, why the proposed action should not be taken; and

(ii)to the applicant to comment in writing, within a stated time of at least 14 days after the date of the notice, on the appropriateness of the proposed action.

(3)The commission may take action under section 65(3) after considering all documents filed in the application and all written submissions made within the time allowed under subsection (2)(d).

(4)Under section 65(3), the commission may—

(a)if the proposed action is to disqualify the representative for a period—disqualify the representative for a stated period that is no longer than the proposed disqualification period; or

(b)if the proposed action is to disqualify the representative for an indefinite period—disqualify the representative indefinitely or for a period.

67E   Applications decided at a hearing

(1)This section applies if the commission decides to decide the application at a hearing.

(2)The commission must give the applicant and the representative at least 14 days notice of the hearing date.

(3)To the extent practicable, the hearing is to be conducted under the rules applying to hearings of the commission under the Industrial Relations Act 2016 with necessary changes or, if the rules make no provision or insufficient provision, in accordance with directions of the commission.

(4)The commission may take action under section 65(3) after considering the evidence and submissions in relation to the application.

(5)The commission may—

(a)disqualify the representative for a stated period; or

(b)disqualify the representative indefinitely.

67F   Notice of decision

The commission must give the applicant and the representative a written notice stating—

(a)the decision; and

(b)the reasons for the decision; and

(c)that the applicant or the representative may appeal against the decision under the Industrial Relations Act 2016, chapter 11, part 6.

Subdivision 5 Powers and functions of health and safety representatives

68   Powers and functions of health and safety representatives

(1)The powers and functions of a health and safety representative for a work group are—

(a)to represent the workers in the work group in matters relating to work health and safety; and

(b)to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group; and

(c)to investigate complaints from members of the work group relating to work health and safety; and

(d)to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.

(2)In exercising a power or performing a function, the health and safety representative may—

(a)inspect the workplace or any part of the workplace at which a worker in the work group works—

(i)at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace; and

(ii)at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; and

(aa)accompany a WHS entry permit holder if—

(i)the WHS entry permit holder enters, under part 7, a workplace where a worker in the work group works; and

(ii)the WHS entry permit holder’s reason for entry relates to the work group or a part of the workplace where a worker in the work group works; and

(b)accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works; and

(c)with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and—

(i)an inspector; or

(ii)the person conducting the business or undertaking at that workplace or the person’s representative; and

(d)with the consent of 1 or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and—

(i)an inspector; or

(ii)the person conducting the business or undertaking at that workplace or the person’s representative; and

(e)request the establishment of a health and safety committee; and

(f)request and receive information concerning the work health and safety of workers in the work group; and

(g)whenever necessary, request the assistance of a suitable entity for the health and safety representative.

Note—

A health and safety representative also has a power under division 6 to direct work to cease in certain circumstances and under division 7 to issue provisional improvement notices.

(3)Despite subsection (2)(f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that—

(a)does not identify the worker; and

(b)could not reasonably be expected to lead to the identification of the worker.

(4)Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

69   Powers and functions generally limited to the particular work group

(1)A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group.

(2)Subsection (1) does not apply if—

(a)there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or

(b)a member of another work group asks for the representative’s assistance;

and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.

(3)In this section, another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates.

Subdivision 6 Obligations of person conducting business or undertaking to health and safety representatives

70   General obligations of person conducting business or undertaking

(1)The person conducting a business or undertaking must—

(a)consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking; and

(b)confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and

(c)allow any health and safety representative for the work group to have access to information (including any information requested by a health and safety representative under section 68(2)(f)) that the person has relating to—

(i)hazards (including associated risks) at the workplace affecting workers in the work group; and

(ii)the health and safety of the workers in the work group; and

(ca)if the person becomes aware a notice of entry under part 7 or a notice under part 10 relating to a work group (a relevant notice) has been given, but the person has not been given a copy of the notice—inform a health and safety representative for the work group about the relevant notice as soon as reasonably practicable after becoming aware of the notice; and

(cb)if the person is given a relevant notice—give a copy of the relevant notice to a health and safety representative for the work group as soon as reasonably practicable after being given the notice; and

(cc)if a notifiable incident arising out of the conduct of the business or undertaking has occurred that affects a work group—give to a health and safety representative for the work group a copy of either of the following relating to the work group—

(i)the written notice given to the regulator under section 38, as soon as practicable after it is given;

(ii)the information received by the person from the regulator under section 38(6), as soon as practicable after it is received; and

(d)with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and—

(i)an inspector; or

(ii)the person conducting the business or undertaking at that workplace or the person’s representative; and

(e)with the consent of 1 or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and—

20   Minutes

An industry sector standing committee must keep minutes of its proceedings.

Division 7 Provisions about industry sector standing committee members

21   Duration of appointment

(1)The appointment of a member is for the term, not longer than 3 years, decided by the Minister.

(2)The office of a member becomes vacant if—

(a)the member resigns by signed notice of resignation given to the Minister; or

(b)the member is found guilty of an indictable offence or an offence against this Act; or

(c)the member is absent, without the Minister’s leave and without reasonable excuse, from 3 consecutive ordinary meetings of the committee; or

(d)the member’s appointment is ended by the Minister under subsection (3).

(3)The Minister may, at any time, end the appointment of a member for any reason or none.

22   Leave of absence

(1)The Minister may approve a leave of absence for a member.

(2)If a leave of absence is approved, the Minister may appoint someone else as an acting member during the member’s approved leave of absence.

(3)The Minister must have regard to the committee’s membership requirements under section 16 when appointing someone as an acting member.

23   Conditions of appointment

(1)A member is appointed on a part-time basis.

(2)A member is entitled to be paid the remuneration and allowances fixed by the Minister.

Part 2A    Consultative committee

Division 1 Preliminary

23A   Definitions for part

In this part—

affected person means a person who is affected, directly or indirectly, by a workplace incident that involves death or a serious injury or illness.

affected persons committee ...

committee member see section 23D(1).

consultative committee see section 23B.

workplace incident means an incident that happens at a workplace, including a workplace to which this Act does not apply.

Division 2 Establishment and functions

23B    Establishment

The Consultative Committee for Work-related Fatalities and Serious Incidents (the consultative committee) is established.

23C   Functions

(1)The primary function of the consultative committee is to give advice and make recommendations to the Minister about the information and support needs of affected persons.

(2)Without limiting subsection (1), the consultative committee may discharge its primary function by—

(a)providing advice about, and contributing to the development and review of, policies, practices and strategies for liaising with and providing information and support to affected persons; and

(b)considering and making recommendations about other matters relating to the information and support needs of affected persons referred to the committee by the Minister.

(3)The regulator must give the consultative committee the necessary administrative and other support to enable the committee to perform its functions efficiently and effectively.

Division 3 Membership

23D   Membership

(1)The consultative committee consists of the following members (each a committee member) appointed by the Minister—

(a)the chairperson;

(b)the deputy chairperson;

(c)at least 4 other members, each of whom represents—

(i)an affected person; or

(ii)a person affected, directly or indirectly, by a relevant incident.

(2)A person may be appointed as the chairperson or deputy chairperson if—

(a)the person has or had a serious injury or illness as a result of a workplace incident or a relevant incident; or

(b)a relative of the person died, or has or had a serious injury or illness, as a result of a workplace incident or a relevant incident.

(3)In appointing a committee member, the Minister must have regard to providing for balanced gender representation in the membership of the committee.

(4)In this section—

relevant incident means an incident, other than a workplace incident, involving death or serious injury or illness, if the circumstances of the incident are relevant to securing the health and safety of workers and workplaces.

23E   Term of appointment

(1)A committee member holds office for the term, not longer than 3 years, decided by the Minister.

(2)Subsection (1) does not prevent a committee member from being reappointed.

23F   Vacancy in office

(1)A committee member’s office becomes vacant if—

(a)the member completes the member’s term of office and is not reappointed; or

(b)the member resigns office by signed notice given to the Minister; or

(c)the member is found guilty of an indictable offence or an offence against this Act; or

(d)the member is absent, without the Minister’s leave and without reasonable excuse, from 3 consecutive ordinary meetings of the consultative committee; or

(e)the member’s appointment is ended by the Minister under subsection (2).

(2)The Minister may, at any time, end the appointment of a committee member for any reason or none.

23G   Conditions of appointment

(1)A committee member is appointed on a part-time basis.

(2)A committee member is to be paid the remuneration and allowances decided by the Minister.

(3)A committee member holds office on the terms, not otherwise provided for by this Act, decided by the Minister.

(4)A committee member is appointed under this Act and not the Public Sector Act 2022.

23H   Leave of absence

The Minister may—

(a)approve a leave of absence for a committee member; and

(b)appoint someone else to act in the office of the committee member while the member is absent on leave.

Division 4 Proceedings

23I   Conduct of business

Subject to this division, the consultative committee may conduct its business, including its meetings, in the way it considers appropriate.

23J   Quorum

A quorum for the consultative committee is one-half the number of its committee members, or if one-half is not a whole number, the next highest whole number.

23K   Meetings

(1)Meetings of the consultative committee are to be held at the times and places the chairperson decides.

(2)However, the chairperson must call a meeting if asked in writing to do so by—

(a)the Minister; or

(b)at least the number of committee members forming a quorum for the committee.

23L   Presiding at meetings

(1)The chairperson presides at all meetings of the consultative committee at which the chairperson is present.

(2)If the chairperson is absent from a meeting, the deputy chairperson is to preside.

(3)If neither the chairperson nor the deputy chairperson is present at a meeting, the committee member chosen by the members present is to preside.

23M   Minutes

The consultative committee must keep minutes of its meetings.

Division 5 Other matters

23N   Disclosure of interests

(1)This section applies to a committee member if—

(a)the member has a direct interest in an issue being considered, or about to be considered, by the consultative committee; and

(b)the interest could conflict with the proper performance of the member’s duties about the consideration of the issue.

(2)As soon as practicable after the relevant facts come to the committee member’s knowledge, the member must disclose the nature of the interest to a meeting of the consultative committee.

(3)Unless the consultative committee otherwise decides, the committee member must not—

(a)be present when the committee considers the issue; or

(b)take part in a decision of the committee about the issue.

(4)The committee member must not be present when the consultative committee is considering its decision under subsection (3).

(5)If there is another person who must, under subsection (2), also disclose an interest in the issue, the other person must not—

(a)be present when the consultative committee is considering its decision under subsection (3); or

(b)take part in making the decision.

(6)Subsection (7) applies if—

(a)because of this section, a committee member is not present at a meeting for considering or deciding an issue, or making a decision under subsection (3); and

(b)there would be a quorum if the committee member were present.

(7)The remaining committee members present are a quorum of the consultative committee for considering or deciding the issue, or making a decision under subsection (3), for the meeting.

23O   Annual report

(1)As soon as practicable, but within 4 months, after the end of each financial year, the consultative committee must give the Minister a written report about the performance of its functions during the year.

(2)The Minister must table a copy of the report in the Legislative Assembly within 14 sitting days after receiving it.

Part 3    Self-insurance report

24   Application for report relating to workers’ compensation self-insurance

(1)The Workers’ Compensation Regulator must apply to the regulator for a report about the occupational health and safety performance of an employer or a group employer for the purpose of an application or renewal for self-insurance under the Workers’ Compensation and Rehabilitation Act 2003.

(2)The employer or group employer must pay the fee calculated under a regulation for the preparation of the report.

(3)The regulator must—

(a)prepare the report having regard to the occupational health and safety performance standards published by the regulator; and

(b)give the report to the Workers’ Compensation Regulator within 3 months after receiving the application for the report.

(4)In this section—

employer see the Workers’ Compensation and Rehabilitation Act 2003, section 30.

group employer see the Workers’ Compensation and Rehabilitation Act 2003, schedule 6.

Part 4    WHS prosecutor

Division 1 Office of the WHS prosecutor

25   Establishment

There must be a Work Health and Safety Prosecutor (the WHS prosecutor).

26   WHS prosecutor represents the State

(1)The WHS prosecutor represents the State.

(2)Without limiting subsection (1), the WHS prosecutor has the status, privileges and immunities of the State.

Division 2 Functions and powers

27   Functions of WHS prosecutor

The functions of the WHS prosecutor are—

(a)to conduct and defend proceedings under this Act before a court or tribunal; and

(b)to advise the regulator on matters relating to this Act; and

(c)any other function given to the WHS prosecutor under this Act or another Act.

28   Powers

(1)The WHS prosecutor has the powers given under this Act or another Act.

(2)Also, the WHS prosecutor has the power to do all things necessary or convenient to be done in performing his or her functions.

29   Not under Ministerial control

In performing the functions and exercising the powers of the WHS prosecutor, the WHS prosecutor is not under the control or direction of the Minister.

30   Delegation

The WHS prosecutor may delegate the WHS prosecutor’s functions and powers under this Act or another Act to an appropriately qualified member of the WHS prosecutor’s staff.

Division 3 Appointment of WHS prosecutor and related matters

31   Appointment

(1)The WHS prosecutor is appointed by the Governor in Council on the recommendation of the Minister.

(2)The Minister may recommend a person for appointment only if—

(a)the person is a lawyer who has been admitted to practise for at least 5 years; and

(b)the Minister is satisfied the person has demonstrated qualities of leadership, management and innovation in a senior government or private sector role.

32   WHS prosecutor appointed under this Act

The WHS prosecutor is appointed under this Act and not under the Public Sector Act 2022.

33   Term of office

Subject to this division, the WHS prosecutor—

(a)holds office for not more than 5 years, as stated in the WHS prosecutor’s instrument of appointment; and

(b)is eligible for reappointment on the ending of the WHS prosecutor’s term of appointment.

34   Conditions of appointment

(1)The WHS prosecutor is to be paid the remuneration and allowances decided by the Governor in Council.

(2)The WHS prosecutor holds office on the terms and conditions decided by the Governor in Council, to the extent the terms and conditions are not provided for by this Act.

35   Preservation of rights of WHS prosecutor

(1)This section applies if a public service officer is appointed as the WHS prosecutor.

(2)The person keeps all rights accrued or accruing to the person as a public service officer as if service as the WHS prosecutor were a continuation of service as a public service officer.

(3)At the end of the person’s term of office or on resignation as the WHS prosecutor, the person’s service as the WHS prosecutor is taken to be service of a like nature in the public service for deciding the person’s rights as a public service officer.

36   Other employment limited

Other than under this Act, the WHS prosecutor must not, without the Minister’s consent, engage in any work relating to—

(a)a person conducting a business or undertaking who has been charged with an offence under this Act; or

(b)consultancy on work health and safety matters with a person conducting a business or undertaking.

37   WHS prosecutor’s previous involvement does not prevent or limit performance of functions

(1)This section applies to a person appointed as the WHS prosecutor if—

(a)before the appointment, the person was involved in a matter in the practice of the person’s profession; and

(b)at the time of the appointment, the matter has not been finally decided or otherwise dealt with.

(2)The involvement does not prevent the person from, or limit the person in, performing the person’s functions as WHS prosecutor.

(3)However, the person must not—

(a)disclose information given to the person in his or her professional capacity in relation to the matter before the person’s appointment as WHS prosecutor, other than to—

(i)the person for whom the WHS prosecutor was acting in the matter in the practice of the WHS prosecutor’s profession; or

(ii)a legal representative of that person; or

(iii)a person authorised by the person or legal representative mentioned in subparagraph (i) or (ii) to receive the information; or

(b)act personally in relation to the matter.

38   Vacancy in office

(1)The office of the WHS prosecutor becomes vacant if the WHS prosecutor—

(a)resigns office by signed notice to the Minister giving at least 1 month’s notice; or

(b)is convicted of an indictable offence; or

(c)is an insolvent under administration; or

(d)is removed from office by the Governor in Council under subsection (3).

(2)Also, if the WHS prosecutor is suspended by the Minister under subsection (5), the office is vacant during the period of suspension.

(3)The Governor in Council may, at any time, remove the WHS prosecutor from office on the recommendation of the Minister.

(4)The Minister may recommend the WHS prosecutor’s removal if the Minister is satisfied the WHS prosecutor—

(a)has been guilty of misconduct; or

(b)is incapable of performing his or her duties; or

(c)has neglected his or her duties or performed them incompetently.

(5)The Minister may suspend the WHS prosecutor for up to 60 days by signed notice to the WHS prosecutor if—

(a)there is an allegation of misconduct against the WHS prosecutor; or

(b)the Minister is satisfied a matter has arisen in relation to the WHS prosecutor that may be grounds for removal under this section.

39   Acting WHS prosecutor

(1)If there is a vacancy in the office of the WHS prosecutor or the WHS prosecutor is absent or for any other reason is unable to perform the functions of the office, the Minister may appoint a person to act as the WHS prosecutor for a period of not more than 6 months.

(2)A person can not be appointed to act as the WHS prosecutor unless the Minister could recommend the person be appointed as WHS prosecutor under section 31.

(3)A person appointed to act as the WHS prosecutor may be appointed to act as WHS prosecutor for a further period—

(a)if the appointment is continuous on 1 or more of the person’s previous appointments as acting WHS prosecutor and the total period of continuous appointments is not more than 6 months—by the Minister; or

(b)otherwise—by the Governor in Council.

(4)The Governor in Council may, at any time, cancel the appointment of a person to act as the WHS prosecutor.

40   Not a statutory body for particular Acts

To remove any doubt, it is declared that the WHS prosecutor is not a statutory body for the Statutory Bodies Financial Arrangements Act 1982 or the Financial Accountability Act 2009.

Division 4 Office and staff

41   Establishment

(1)The Office of the WHS Prosecutor is established.

(2)The office consists of the WHS prosecutor and the WHS prosecutor’s staff.

42   Function

The office’s function is to help the WHS prosecutor perform his or her functions.

43   Staff

The WHS prosecutor’s staff are employed under the Public Sector Act 2022.

44   Control of office

(1)The WHS prosecutor controls the office.

(2)Subsection (1) does not prevent the attachment of the office to the department for the purpose of ensuring the office is supplied with the administrative support services it requires to carry out its functions effectively and efficiently.

Division 5 Information exchange

45   Definition for division

In this division—

information includes a document.

46   WHS prosecutor may ask regulator for information

(1)The WHS prosecutor may ask the regulator for information relevant to the performance of a function of the WHS prosecutor.

(2)The regulator must take reasonable steps to provide the information.

47   Regulator’s duty to disclose information to WHS prosecutor

(1)This section applies in relation to a proceeding for—

(a)an offence under this Act; or

(b)a contravention of a WHS civil penalty provision.

(2)The regulator has a duty to disclose to the WHS prosecutor all information relevant to the proceeding, including knowledge of a matter relevant to the proceeding, in the possession or control of the regulator.

(3)The duty continues until the proceeding is finally decided or otherwise ends.

Division 6 Miscellaneous

48   Guidelines

(1)The WHS prosecutor must issue, and publish on the WHS prosecutor’s website, general guidelines in relation to the prosecution of offences under this Act.

(2)Also, the WHS prosecutor may issue written guidelines to any of the following persons—

(a)staff of the WHS prosecutor;

(b)the regulator;

(c)public service employees employed in the department undertaking work relevant to the WHS prosecutor’s functions under this Act.

(3)Guidelines issued under subsection (2)—

(a)must be consistent with this Act; and

(b)may include the following matters—

(i)procedures for the referral of matters by the regulator to the WHS prosecutor;

(ii)principles and procedures for the conduct of proceedings for offences under this Act, including procedures relating to the roles of the WHS prosecutor and the regulator.

(4)Subsection (3)(b) does not limit the matters for which guidelines may be issued under subsection (2).

(5)A guideline must not be issued in relation to a particular case.

49   Annual report

(1)As soon as practicable after the close of each financial year but not later than 4 months after the close, the WHS prosecutor must give the Minister a report on the performance of the WHS prosecutor’s functions during that year.

(2)The report must include a copy of each guideline made under section 48 in force during the financial year.

(3)The Minister must table a copy of the report in the Legislative Assembly within 14 sitting days after the Minister receives it.

Schedule 2A Reviewable decisions

section 223

Item	Provision under which reviewable decision is made	Eligible person in relation to reviewable decision	External review body
4	Section 102 decision on review of provisional improvement notice	(1)  The person to whom the provisional improvement notice was issued. (2)  The health and safety representative who issued the provisional improvement notice. (3)  A worker whose interests are affected by the decision. (4)  A health and safety representative who represents a worker whose interests are affected by the decision. (5)  A person conducting a business or undertaking whose interests are affected by the decision.	commission
5	Section 179 forfeiture of thing	The person entitled to the thing.	commission
6	Section 180 return of seized things	The person entitled to the thing.	commission
7	Section 191 issue of improvement notice	(1)  The person to whom the notice was issued. (2)  A person conducting a business or undertaking whose interests are affected by the decision. (3)  A worker whose interests are affected by the decision. (4)  A health and safety representative who represents a worker whose interests are affected by the decision.	commission
8	Section 194 extension of time for compliance with improvement notice	(1)  The person to whom the notice was issued. (2)  A person conducting a business or undertaking whose interests are affected by the decision. (3)  A worker whose interests are affected by the decision. (4)  A health and safety representative who represents a worker whose interests are affected by the decision.	commission
9	Section 195 issue of prohibition notice	(1)  The person to whom the notice was issued. (2)  The person with management or control of the workplace, plant or substance. (3)  A person conducting a business or undertaking whose interests are affected by the decision. (4)  A worker whose interests are affected by the decision. (5)  A health and safety representative who represents a worker whose interests are affected by the decision. (6)  A health and safety representative who gave a direction under section 85 to cease work, that is relevant to the prohibition notice.	commission
10	Section 198 issue of a non-disturbance notice	(1)  The person to whom the notice was issued. (2)  The person with management or control of the workplace. (3)  A person conducting a business or undertaking whose interests are affected by the decision. (4)  A worker whose interests are affected by the decision. (5)  A health and safety representative who represents a worker whose interests are affected by the decision.	commission
11	Section 201 issue of subsequent notice	(1)  The person to whom the notice was issued. (2)  The person with management or control of the workplace. (3)  A person conducting a business or undertaking whose interests are affected by the decision. (4)  A worker whose interests are affected by the decision. (5)  A health and safety representative who represents a worker whose interests are affected by the decision.	commission
12	Section 207 decision of regulator to vary or cancel notice	(1)  The person to whom the notice was issued. (2)  The person with management or control of the workplace. (3)  A person conducting a business or undertaking whose interests are affected by the decision. (4)  A worker whose interests are affected by the decision. (5)  A health and safety representative who represents a worker whose interests are affected by the decision. (6)  In the case of a prohibition notice, a health and safety representative whose direction under section 85 to cease work gave rise to the notice.	commission
13	A provision prescribed under a regulation	A person prescribed under a regulation as eligible to apply for review of the reviewable decision.	QCAT or the commission as prescribed under a regulation

Schedule 3 Regulation-making powers

section 276(2)

1   Duties

(1)Matters relating to the way in which duties imposed by this Act are to be performed.

(2)Matters relating to the regulation or prohibition of stated activities or a stated class of activities—

(a)at workplaces or a stated class of workplaces; or

(b)by a stated class of persons on whom duties or obligations are imposed by this Act;

to eliminate or minimise risks to health and safety.

(3)Imposing duties on persons in relation to any matter provided for under a regulation.

2   Incidents

Matters relating to incidents at workplaces including—

(a)regulating or requiring the taking of any action to avoid an incident at a workplace or in the course of conducting a business or undertaking; and

(b)regulating, requiring or prohibiting the taking of any action in the event of an incident at a workplace or in the conduct of a business or undertaking.

3   Plant, substances or structures

Matters relating to plant, substances or structures, including—

(a)regulating the storage and handling of plant, substances and structures; and

(b)regulating or requiring—

(i)the examination, testing, labelling, maintenance or repair of plant and structures; or

(ii)the examination, testing, analysis or labelling of any substance.

4   Protection and welfare of workers

Matters relating to the protection and welfare of workers including—

(a)regulating or requiring the provision and use of protective clothing or equipment, or rescue equipment, in stated circumstances; and

(b)regulating or requiring the provision of stated facilities for the welfare of workers at the workplace; and

(c)matters relating to health and safety in relation to accommodation provided to workers.

5   Hazards and risks

Matters relating to hazards and risks including—

(a)the prescribing of standards relating to the use of or exposure to any physical, biological, chemical or psychological hazard; and

(b)matters relating to safety cases, safety management plans and safety management systems, however described; and

(c)matters relating to measures to control risks.

6   Records and notices

(1)The keeping and availability of records of health and safety representatives and deputy health and safety representatives.

(2)The keeping of records in relation to incidents.

(3)The keeping of records of stated activities, matters or things to be kept by stated persons.

(4)The giving of notice of or information about stated activities, matters or things to the regulator, an inspector or other stated person.

6A   Training, assessment or instruction

Matters relating to organisations providing training, assessment or instruction for an authorisation or about working safely in a workplace in a particular industry, including providing for—

(a)the standard of training, assessment or instruction required—

(i)for an authorisation; or

(ii)for training about working safely in a workplace in a particular industry; and

(b)the approval of the training, assessment and instruction provided by an organisation—

(i)for an authorisation as suitable for the authorisation; or

(ii)for training about working safely in a workplace in a particular industry; and

(c)the approval of an organisation to provide training, assessment and instruction—

(i)for an authorisation; or

(ii)about working safely in a workplace in a particular industry.

7   Authorisations

(1)Matters relating to authorisations (including licences, registrations and permits) and qualifications, and experience for the purposes of part 4 or a regulation including providing for—

(a)applications for the grant, issue, renewal, variation, suspension and cancellation of authorisations, including the minimum age to be eligible for an authorisation; and

(b)the evidence and information to be provided in relation to applications including the provision of statutory declarations; and

(c)exemptions; and

(d)variations of authorisations by the regulator whether on application or otherwise; and

(e)authorisation of persons as trainers and assessors; and

(f)examination of applicants for authorisations; and

(g)conditions of authorisations; and

(h)fees for applications for the grant, issue, renewal and variation of authorisations.

(2)The recognition of authorisations under corresponding laws and exceptions to recognition.

(3)The sharing of information with corresponding regulators relating to the grant, issue, renewal, variation, suspension or cancellation of authorisations.

8   Work groups

Matters relating to work groups and variation of work groups and agreements or variations of agreements relating to the determination of work groups.

9   Health and safety committees and health and safety representatives

Matters relating to health and safety committees and health and safety representatives.

9A   Work health and safety officers

Matters relating to—

(a)procedures for applications for certificates of authority for appointment as work health and safety officers; and

(b)approving work health and safety officer courses and work health and safety officer recertification courses.

10   Issue resolution

Matters relating to issue resolution including—

(a)the minimum requirements for an agreed procedure for resolving an issue; and

(b)the requirements for a default issue resolution procedure where there is no agreed procedure.

11   WHS entry permits

Matters relating to WHS entry permits, including providing for—

(a)eligibility for WHS entry permits; and

(b)procedures for applications for WHS entry permits and objections to applications for WHS entry permits; and

(c)conditions of WHS entry permits; and

(d)the form of WHS entry permits; and

(e)requirements for training; and

(f)records of WHS entry permits.

12   Identity cards

Matters relating to identity cards.

13   Forfeiture

Matters relating to—

(a)costs of forfeiture and disposal of forfeited things; and

(b)disposal of seized things and forfeited things.

14   Review of decisions

Matters relating to the review of decisions under a regulation including—

(a)prescribing decisions as reviewable decisions for the purposes of part 12 or for the purposes of a regulation; and

(b)prescribing procedures for internal and external review of decisions under a regulation; and

(c)conferring jurisdiction on a court, the commission or QCAT to conduct reviews under a regulation.

Schedule 5 Dictionary

section 4

affected person, for schedule 2, part 2A, see schedule 2, section 23A.

affected persons committee ...

applicant, for part 5, division 3, subdivision 4A, see section 67A.

approved code of practice means a code of practice approved under part 14.

assessment report see section 103E(1).

authorised, for part 4, see section 40.

category 1 offence see section 31.

category 2 offence see section 32.

category 3 offence see section 33.

causes, for part 2A, see section 34A(2).

cease work notice, for part 5, see section 85.

cease work under this division, for part 5, division 6, see section 83.

commission means the Queensland Industrial Relations Commission.

committee member, for schedule 2, part 2A, see schedule 2, section 23D(1).

compliance powers means the functions and powers conferred on an inspector under this Act.

condition includes limitation and restriction.

conduct, for part 2A, see section 34A(1).

confidential commercial information means—

(a)information about a trade secret; or

(b)financial information or other information that has commercial value and, if disclosed, will cause significant financial harm to a business or undertaking.

construct includes assemble, erect, reconstruct, reassemble and re-erect.

consultative committee, for schedule 2, part 2A, see schedule 2, section 23B.

corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law.

corresponding WHS law means—

(a)a law of the Commonwealth or another State corresponding, or substantially corresponding, to this Act; or

(b)a law of the Commonwealth or another State that is declared under a regulation to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act.

court, for part 13, division 7, see section 255.

dangerous incident, for part 3 and section 176, see section 37.

demolition includes deconstruction.

design, in relation to plant, a substance or a structure includes—

(a)design of part of the plant, substance or structure; and

(b)redesign or modify a design.

disclose, in relation to information, includes divulge or communicate to any person or publish.

discriminatory conduct, for part 6, see section 105.

dispute, for part 5, division 7A, see section 102A.

document includes record.

employee record, in relation to an employee, has the same meaning as it has in the Privacy Act 1988 of the Commonwealth.

employer organisation means an organisation of employers.

engages in conduct means doing an act or omitting to do an act.

excluded entity, for representing or assisting a worker or the health and safety representative for a worker, see section 45B.

executive officer, of a corporation, for part 2A, see section 34A(1).

external review body see section 223(1)(c).

Fair Work Act means the Fair Work Act 2009 of the Commonwealth.

handling includes transport.

health means physical and psychological health.

health and safety committee matter, for part 5, division 7A, see section 102A.

health and safety duty see section 30.

health and safety representative, in relation to a worker, means the health and safety representative elected under part 5 for the work group of which the worker is a member.

import means to bring into Queensland from outside Australia.

improvement notice see section 191.

industrial officer authority means an authority issued under the Industrial Relations Act 2016, section 337.

industrial registrar means the registrar appointed under the Industrial Relations Act 2016, section 514.

information, for schedule 2, part 4, division 5, see schedule 2, section 45.

infringement notice means an infringement notice under the State Penalties Enforcement Act 1999.

inspector means an inspector appointed under part 9.

internal reviewer means—

(a)the regulator; or

(b)a person appointed by the regulator under section 225.

medical treatment means treatment by a doctor.

non-disturbance notice see section 198.

notifiable incident see section 35.

offender, for part 13, division 2, see section 234.

officer means—

(a)an officer within the meaning of section 9AD of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or

(b)an officer of the State, Commonwealth or another State within the meaning of section 247; or

(c)an officer of a public authority within the meaning of section 252;

other than an elected member of a local government acting in that capacity.

official of a union, for part 7, see section 116.

person conducting a business or undertaking see section 5.

personal information has the same meaning as it has in the Privacy Act 1988 of the Commonwealth.

plant includes—

(a)any machinery, equipment, appliance, container, implement and tool; and

(b)any component of any of those things; and

(c)anything fitted or connected to any of those things.

prohibited reason, for part 6, see section 106.

prohibition notice see section 195.

public authority means—

(a)an authority or body established or incorporated for a public purpose by a law of the State, another State or of the Commonwealth, including a body corporate incorporated under a law of the State, another State or of the Commonwealth in which the State, the other State or the Commonwealth has a controlling interest; or

(b)a GOC; or

(c)a rail government entity under the Transport Infrastructure Act 1994; or

(d)local government; or

(e)a statutory body under the Statutory Bodies Financial Arrangements Act 1982.

reasonably practicable, in relation to a duty to ensure health and safety, see section 18.

regulator see schedule 2, part 1.

relevant person conducting a business or undertaking, for part 7, see section 116.

relevant union—

(a)for part 7, see section 116; or

(b)otherwise, for a worker, whether the worker is a health and safety representative or another worker, see section 45A.

relevant worker, for part 7, see section 116.

repeal, for—

(a)part 16, division 1, see section 279; or

(b)part 16, division 2, see section 298.

repealed Act, for—

(a)part 16, division 1, see section 279; or

(b)part 16, division 2, see section 298.

representative, in relation to a worker, see section 45A.

senior officer, of a person conducting a business or undertaking, for part 2A, see section 34A(1).

serious injury or illness, for part 3, section 176 and schedule 2, see section 36.

State or Territory industrial law has the same meaning as it has in the Fair Work Act.

structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes—

(a)buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and

(b)any component of a structure; and

(c)part of a structure.

substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.

suitable entity, for representing or assisting a worker or the health and safety representative for a worker, see section 45A.

supply see section 6.

union means—

(a)an employee organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cwlth); or

(b)an employee organisation registered under the Industrial Relations Act 2016, chapter 12.

volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).

WHS civil penalty provision see section 254.

WHS entry permit means a WHS entry permit issued under part 7.

WHS entry permit holder means a person who holds a WHS entry permit.

WHS matter, for part 5, division 7A, see section 102A.

WHS prosecutor see schedule 2, section 25.

WHS undertaking means an undertaking given under section 216(1).

worker see section 7.

work group means a work group determined under part 5.

work group determination matter, for part 5, division 7A, see section 102A.

work group variation matter, for part 5, division 7A, see section 102A.

workplace see section 8.

workplace incident, for schedule 2, part 2A, see schedule 2, section 23A.