Occupational Health and Safety (Commonwealth Employment) Regulations (Amendment) 1993 No. 5
EXPLANATORY STATEMENT
Statutory Rules 1993 No. 5
Issued by the Authority of the Minister for Industrial Relations
Occupational Health and Safety (Commonwealth Employment) Act 1991
Occupational Health and Safety (Commonwealth Employment) Regulations (Amendment)
Section 82 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
The Act provides for the protection of the health and safety of Commonwealth employees at work and provides a framework within which Commonwealth employers and employees may cooperate to address health and safety issues in the workplace. An object of the Act is to ensure that expert advice is available on occupational health and safety matters.
Section 68 of the Act requires employers to give to the Commission such notice and reports of accidents and dangerous occurrences as are required by regulation. Section 68 further provides that regulations may be made prescribing the time, manner and form in which notices and reports are to be given.
The Occupational Health and Safety (Commonwealth Employment) Regulations (the Regulations) prescribe a number of matters which are necessary for the effective operation of the scheme established by the Act. The substantive part of the amending Regulations have been made under section 68 of the Act and prescribe procedural matters in relation to notices and reports of accidents which are to be given by employers to Comcare. These notification and reporting .requirements are necessary for the effective operation of the Act as they will assist in ensuring the availability of information and expertise in health and safety matters.
A number of other amendments have also been made to the Regulations. As Comcare now has responsibility for administration of the Act and the Regulations references in the Regulations to the 'Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees' (the Commission) have been changed to references to 'Comcare'. The change is consequential to amendments made to the Commonwealth Employees Rehabilitation and Compensation Act 1988 (the CERC Act) in 1991. The Commission was restructured by dividing it into an administrative body called Comcare and a policy organisation with the same title as the Commission.
Amendments were also necessary in response to comments made by the Senate Standing Committee on Regulations and Ordinances on the adequacy of the Regulations. These include amendment to those regulations which prescribe the procedures for elections of health and safety representatives and to regulation 34 which provides for the form of notices to be given by investigators of the Commission to employers.
It was also necessary to correct a number of typographical errors in the Regulations.
Details of the Regulations are attached.
The Regulations will commence on 29 July 1993.
Section 68 of the Act provides for the notification and reporting of accidents and dangerous occurrences. New regulations 37A to 37F prescribe in detail the time, manner and form for notices and reports which are to be supplied to Comcare by employers.
Section 69 of the Act provides for requirements in relation to records of these incidents which must be maintained by employers. New regulation 37G makes provision for the length of time that records are to be retained by employers.
Section 75 of the Act provides that Comcare is to include in its annual report a range of statistical information including such matters as are prescribed. New regulation 37H prescribes requirements in relation to statistical reports which are to be given to Comcare.
Regulation 19 inserts new regulations 37A to 37H.
- new regulation 37A provides for time periods within which notification of accidents and dangerous occurrences are to be given to Comcare. The regulation provides that non-compliance with the requirements which are prescribed is an offence and subject to a fine of $1,000. It is a defence to non-compliance that it was not reasonably practicable to comply with the time period which has been prescribed.
- new regulation 37B provides in detail the content of notices of accidents and dangerous occurrences which are to be given to Comcare. The notice provides details of the employer, the workplace at which the incident occurred, details of the accident, details of the persons affected and of the person notifying the incident. Details of preventative action which has been undertaken or which is proposed is also to be provided.
- new regulation 37C provides that notices of deaths are to be given only by telephone and are to given at any time, both inside and outside business hours.
- new regulation 37D provides time periods within which reports of accidents and dangerous occurrences are to be given to Comcare. The regulation provides that non-compliance with the requirements which are prescribed is an offence and subject to a fine of $1,000. It is a defence to non-compliance that it was not reasonably practicable to comply with
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the time period which has been prescribed.
- new regulation 37E provides in detail the content of reports about accidents which employers are required to include in a report to Comcare. The report is to include details of the employer, the workplace at which the incident occurred, details of the accident, details of the persons affected and of the person reporting the incident. Details of preventative action which has been undertaken or which is proposed is also to be provided.
- new regulation 37F similarly provides for the form of reports about dangerous occurrences. The regulation prescribes a lesser range of information which employers are required to include in a report to Comcare.
- new regulation 37G provides that a record of a report is to be retained for a period of thirty years.
- new regulation 37H requires employers to give to Comcare statistics on the number of employees and hours worked during the reporting year. The regulation further provides that non-compliance with the regulation is to be an offence and liable to a fine of $1,000. It is to be a defence to non-compliance that it was not reasonably practicable to comply with the time period which has been prescribed.
Regulation 20 inserts a title to a new part 6 called "Part 6 - Modifications of the Act".
Regulation 21 adds a new regulation 39 to provide for external review, by the Administrative Appeals Tribunal, of decisions made by a returning officer in relation to an election of health and safety representatives. The decision to be made is whether or not the election should be declared void.
ATTACHMENT
Details of the proposed Occupational Health and Safety (Commonwealth Employment) Regulations (Amendment)
Regulation 1 provides that the amending Regulations are to commence on 29 July 1993.
Regulation 2 provides that the Regulations are to be amended.
Regulation 3 omits the definition of 'approved form'. The definition was no longer required as all forms are now prescribed in Schedule 1 to the Regulations.
Regulation 3 also defines a number of terms which are necessary to be prescribed for the process of giving notices and reports to Comcare.
Regulation 4 provides general requirements in relation to completion by employers of notices and reports.
Regulation 3 defines a dangerous occurrence and is relevant to regulations made under sections 68 and 69 of the Act.
Regulation 5 amends the definition of 'dangerous occurrence' to limit and clarify the meaning of the term.
'Employing authority' is defined in subsection 5(1) of the Act to include a person or body which is prescribed. Regulation 4 prescribes the Department of Defence as an employing authority.
Regulation 6 prescribes a number of Commonwealth bodies which are to the 'employing authorities' for the purposes of the Act.
Regulation 7 changes a reference to 'the Commission' in regulation 6 to a reference to 'Comcare'.
Part 3 of the Regulations prescribe the procedures for elections of heath and safety representatives. In particular, regulation 7 provides for notice to be given of an election; regulation 21 provides for election scrutineers to be appointed and regulation 28 makes provision for measures to deal with election irregularities.
Regulation 8 amends regulation 7 to make clear that employees are to be fully informed about elections of health and safety representatives.
Regulation 9 corrects a typographical error.
Regulation 10 inserts a new regulation 22A to provide for a procedure by which a scrutineer may inform a returning officer of an alleged election irregularity. The regulation further prescribes a method by which a returning officer may direct a person, not entitled to be present at an election count, to leave the count. Non-compliance with this direction is to be an offence and liable to a fine.
Regulation 11 changes a reference to 'the Commission' in regulation 29 to a reference to 'Comcare' and corrects an incorrect reference in the regulation.
Regulation 12 amends a reference in regulation 30 to the forms which are to be prescribed.
Regulation 13 and regulation 14 change references to 'the Commission' in regulation 31 and regulation 32 respectively to references to 'Comcare'.
Regulation 34 provides for the form of notices which are to be given by investigators of the Commission to employers and prescribes that the notices be in a form which is approved by the Commission.
Regulation 15 amends regulation 34 to provide that written notices provided by the Commission to employers for the purposes of subsection 44(2), subsection 45(1), subsection 46(1) and subsection 47(1) are to be in a form which is prescribed.
Regulation 16 has replaced regulation 35, which was no longer required, with a new regulation 35 which provides that a site of an accident or a dangerous occurrence is not to be disturbed. A fine of $1,000 for non-compliance with the provision is included. However, the regulation further provides for instances which may constitute a reasonable excuse for not complying with the regulation. Defences against prosecution for non-compliance with the regulation are also prescribed.
Paragraph 68(1)(b) of the Act provides that periods may be prescribed in relation to accidents during which an employee to deemed to be incapacitated from performing work.
Regulation 1 inserts a new regulation 36A prescribing two periods for which an employee, unable to perform work for the period, is to be incapacitated for the purposes of paragraph 68(1)(b).
Regulation 37 prescribes the manner in which notices are to be served under the Act and Regulations. Amendments to regulation 37 have been made as part of the notification and reporting regulations which are to be made under section 68 of the Act to prescribe procedural matters in relation to notices and reports of accidents and dangerous occurrences which are to be given by employers to Comcare.
Regulation 18 amends regulation 37 to provide that the regulation refers to service of reports as well as notices and to provide variable methods by which notices and reports from employers are to be given to Comcare.