Western Australia
Occupational Safety and Health Act 1984
Western Australia
Occupational Safety and Health Act 1984
CONTENTS
Part I — Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
3A. Penalty levels defined 7
3B. Meaning of “first offence” and “subsequent offence” 8
4. Application of this Act 9
4A. Act does not operate to affect adversely certain police operations 10
5. Objects 11
Part II — Commission for Occupational Safety and Health
6. The Commission 13
6A. Deputy chairperson 15
7. Acting members 15
8. Terms and conditions of appointed members 16
9. WorkSafe Western Australia Commissioner 16
10. Vacation of office 17
11. Leave of absence 18
12. Casual vacancies 18
13. Meetings of the Commission 18
14. Functions of the Commission 20
14A. Mining Industry Advisory Committee 21
15. Advisory committees 23
16. Annual report 24
17. Staff to assist the Commission 24
18. The Commissioner and the department 24
Part III — General provisions relating to occupational safety and health
Division 1 — Preliminary
18A. Meaning of gross negligence in relation to certain breaches of this Part 26
Division 2 — General workplace duties
19. Duties of employers 26
19A. Breaches of section 19(1) 28
20. Duties of employees 28
20A. Breaches of section 20(1) or (3) 29
21. Duties of employers and self‑employed persons 30
21A. Breaches of section 21 31
21B. Duty placed on body corporate to which section 23D, 23E or 23F applies 32
21C. Breaches of section 21B 33
22. Duties of persons who have control of workplaces 33
22A. Breaches of section 22(1) 34
23. Duties of manufacturers, etc. 35
23AA. Breaches of section 23 37
23A. Prohibited activities in prescribed areas 38
23B. Breaches of section 23A 38
Division 3 — Certain workplace situations to be treated as employment
23C. Terms used in this Division 39
23D. Contract work arrangements 39
23E. Labour arrangements in general 41
23F. Labour hire arrangements 43
Division 4 — Duty relating to certain employment accommodation
23G. Duty of employer to maintain safe premises 44
23H. Breaches of section 23G 45
Division 5 — Other duties
23I. Notification of deaths, injuries and diseases 47
23J. Breaches of section 23I 48
23K. Duty to inform employee who reports a hazard or injury 48
23L. Notification of hazard to person having control of workplace 49
Division 6 — Resolution of workplace issues, and refusal to work on grounds of risk
24. Resolution of issues at the workplace 50
25. Inspector may be notified where issues unresolved 51
26. Refusal by employees to work in certain cases 51
27. Assignment of other work 52
28. Entitlements to continue 52
28A. Offences — refusal to work 53
Part IV — Safety and health representatives and committees
Division 1 — Safety and health representatives
29. Notices requiring election of safety and health representatives 55
30. Consultation on matters relevant to elections 55
30A. Election scheme may be established 57
30B. What may be included in a scheme 58
30C. Appointment of further delegates may be required 59
31. Election of safety and health representatives 59
32. Terms of office 61
33. Functions of safety and health representatives 61
34. Disqualification of safety and health representatives 63
35. Certain duties of employers in relation to safety and health representatives 65
35A. Discrimination against safety and health representative in relation to employment 67
35B. Discrimination against safety and health representative in relation to contract for services 68
35C. Claim may be referred to the Tribunal 69
35D. Remedies that may be granted 70
Division 2 — Safety and health committees
36. Interpretation 71
37. Employees to appoint representatives 72
38. Obligation of employer to establish a safety and health committee 72
39. Request for establishment of safety and health committee 72
39A. Referral of question to Commissioner 73
39B. Employer may establish a safety and health committee 74
39C. How safety and health committee to be constituted 74
39D. Commissioner may make determination in certain cases 75
39E. Functions of committee may cover more than one workplace 76
39F. Amendment of agreement and abolition of committee 77
39G. Review of Commissioner’s decision 78
40. Functions of safety and health committees 79
41. Procedures 80
Part V — Inspectors
41A. Extended meaning of “employer” and “employee” 81
42. Appointment of inspectors 81
42A. Appointment of restricted inspectors 81
42B. Powers of restricted inspector 82
42C. Certificate of appointment 82
43. Powers 83
44. Interpreters 85
45. Notification by inspector 86
46. Samples 87
47. Offences 88
Part VI — Improvement and prohibition notices
Division 1 — Issue of notices by inspector
47A. Extended meaning of “employer” and “employee” 90
48. Inspectors may issue improvement notices 90
49. Inspectors may issue prohibition notices 92
50. Notices may include directions 95
50A. Notices may be issued to the Crown 95
51. Review of notices 96
51AA. Further power of Commissioner to cancel notice 97
51A. Further review of notices 98
Division 2 — Issue of provisional improvement notices by safety and health representative
51AB. Definition 99
51AC. Issue of provisional improvement notices 99
51AD. Consultation required before issue 100
51AE. Contents of notice 101
51AF. Provisional notices may include directions 102
51AG. Failure to comply with notice 102
51AH. Review of notice by an inspector 102
Part VIA — Safety and health magistrates
51B. Safety and health magistrates 105
51C. Jurisdiction of safety and health magistrate 105
51D. Representation 106
51E. Administrative arrangements 106
Part VIB — Occupational Safety and Health Tribunal
51F. Interpretation 107
51G. Industrial Relations Commission sitting as the Occupational Safety and Health Tribunal 107
51H. Jurisdiction to be exercised by Commissioner with requisite qualifications 107
51I. Practice, procedure and appeals 108
51J. Conciliation 109
51K. Certain matters to be heard together 110
Part VII — Legal proceedings
Division 1 — General provisions
52. Prosecutions 112
53. Evidentiary provisions 112
54. General penalty 113
54A. Continuing offences 114
54B. Appeals 114
55. Offences by bodies corporate 115
55A. No double jeopardy 116
Division 2 — Criminal proceedings against the Crown
55B. Crown may be prosecuted 117
55C. Prosecution against body corporate 117
55D. Prosecution in other cases 117
55E. Provisions applicable to responsible agency 118
55F. Proceedings where agency has ceased to exist 119
55G. Penalties in proceedings against the Crown 120
Division 3 — Undertaking by offender in lieu of payment of fine
55H. Terms used in this Division 120
55I. Court may allow offender to make election 121
55J. Making of election 122
55K. Failure to enter into undertaking 122
55L. Time for payment of fines 123
55M. Nature and terms of undertaking 123
55N. What may be included in undertaking 124
55O. Effect of undertaking 125
55P. Failure to comply with undertaking 125
55Q. Amendment of undertaking 126
55R. Undertaking may be published 126
Part VIII — Miscellaneous
56. Discrimination 127
57. Codes of practice 128
57A. Visitors to comply with directions 129
58. Governor may transfer administration of certain laws to Minister 130
59. Liability of members 131
60. Regulations 132
61. Review of Act 134
Schedule 135
Subject matter for regulations 135
Notes
Compilation table 139
Provisions that have not come into operation 141
Western Australia
Occupational Safety and Health Act 1984
An Act to promote and improve standards for occupational safety and health, to establish the Commission for Occupational Safety and Health, to provide for a tribunal for the determination of certain matters and claims, to facilitate the coordination of the administration of the laws relating to occupational safety and health and for incidental and other purposes.
[Long title amended by No. 30 of 1995 s. 4; No. 74 of 2003 s. 87(2); No. 51 of 2004 s. 62.]
Part I — Preliminary
[Heading inserted by No. 43 of 1987 s. 4.]
1. Short title
This Act may be cited as the Occupational Safety and Health Act 1984 1.
[Section 1 amended by No. 30 of 1995 s. 5.]
2. Commencement
The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation 1.
3. Interpretation
(1) In this Act unless the contrary intention appears —
“appointed member” means a member of the Commission referred to in section 6(2)(a) or (d);
“apprentice” —
(a) means an apprentice under the Industrial Training Act 1975; or
(b) if Part 7 of the Vocational Education and Training Act 1996 comes into operation, means a person who, as an employee, has entered into an apprenticeship within the meaning of that term in section 58 of that Act;
“Australian Standard” means a document having that title published by Standards Australia International Limited (ACN 087 326 690);
“Australian/New Zealand Standard” means a document having that title published jointly by —
(a) Standards Australia International Limited (ACN 087 326 690); and
(b) the Standards Council of New Zealand;
“chairperson” means the chairperson of the Commission;
“code of practice” means a code of practice approved by the Minister under Part VIII;
“Commission” means the Commission for Occupational Safety and Health established under this Act;
“Commissioner” means the person holding office as WorkSafe Western Australia Commissioner under section 9;
“Commissioner of Police” means the person holding the office of Commissioner of Police under the Police Act 1892;
“department” means the department of the Public Service of the State principally assisting the Minister in the administration of this Act;
“employee” means —
(a) a person by whom work is done under a contract of employment; or
(b) an apprentice or trainee;
“employer” means —
(a) a person that employs an employee under a contract of employment; and
(b) in relation to an apprentice or trainee, the person that employs the apprentice or trainee under an apprenticeship or traineeship scheme under the Industrial Training Act 1975;
“hazard”, in relation to a person, means anything that may result in —
(a) injury to the person; or
(b) harm to the health of the person;
“import” means to bring into the State, whether from outside Australia or otherwise;
“improvement notice” means an improvement notice issued under Part VI;
“inspector” means an inspector appointed under section 42, and subject to section 42B(3), includes a restricted inspector appointed under section 42A;
“plant” includes any machinery, equipment, appliance, implement, or tool and any component or fitting thereof or accessory thereto;
“police officer” means a person appointed —
(a) under Part I of the Police Act 1892 to be a member of the Police Force of Western Australia;
(b) under Part III of the Police Act 1892 to be a special constable; or
(c) under Part IIIA of the Police Act 1892 to be an aboriginal aide;
“practicable” means reasonably practicable having regard, where the context permits, to —
(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;
(b) the state of knowledge about —
(i) the injury or harm to health referred to in paragraph (a);
(ii) the risk of that injury or harm to health occurring; and
(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;
and
(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);
“prescribed law” means a law prescribed for the purposes of section 14(1)(b);
“prohibition notice” means a prohibition notice issued under Part VI;
“provisional improvement notice” means a provisional improvement notice issued under Part VI Division 2;
“risk”, in relation to any injury or harm, means the probability of that injury or harm occurring;
“safety and health committee” means a safety and health committee established under Part IV Division 2;
“safety and health magistrate” means a person holding office as a safety and health magistrate under section 51B;
“safety and health representative” means a safety and health representative elected under Part IV Division 1;
“self‑employed person” means an individual who works for gain or reward otherwise than —
(a) under a contract of employment; or
(b) as an apprentice or trainee,
whether or not the individual is an employer;
“supply”, in relation to any plant or substance, includes supply and re‑supply by way of —
(a) sale (including by auction), exchange, lease, hire, or hire‑purchase, whether as principal or agent;
(b) the disposal in a manner referred to in paragraph (a) of assets of a business that include any plant or substance; and
(c) the disposal of all of the shares in a company that owns any plant or substance;
“trade union” means —
(a) an organisation registered under section 53 of the Industrial Relations Act 1979; or
(b) an organisation registered under the Industrial Relations Act 1988 2 of the Parliament of the Commonwealth and having employees as its members, or a branch of any such organisation;
“trainee” means a person belonging to a class of persons defined by the regulations as trainees for the purposes of this Act;
“transferred law” means a law or a provision of a law transferred to the administration of the Minister pursuant to an order under this Act;
“Tribunal” has the meaning given to that term in section 51G(2);
“WA Police” means the Police Force of Western Australia provided for by the Police Act 1892;
“workplace” means a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self‑employed persons work or are likely to be in the course of their work.
(2) Anything that, under this Act, is required to be served on, or otherwise done in relation to, an employer in relation to a workplace or a matter related to a workplace, is deemed to have been so served or done if it is served on, or done in relation to, a person at the workplace who has or reasonably appears to have responsibility for the management or control of the workplace.
(3) For the purposes of sections 18A, 19A(2), 20A(2), 21A(2), 21C(2), 22A(2), 23AA(2), 23B(2) and 23H(2), a contravention causes serious harm to a person if it causes any bodily injury to the person, or causes the person to have a disease, of such a nature as to —
(a) endanger, or be likely to endanger, the person’s life; or
(b) result, or be likely to result, in permanent injury or harm to the person’s health.
(4) For the purposes of this Act, a police officer is to be treated as an employee of the Crown.
(5) Without limiting any other provision of this Act, a police officer is at work during any period of time when the officer is performing a function of a police officer, whether or not the officer is rostered on duty and, in relation to a police officer, the expressions “work” and “at work” are to be construed accordingly.
[Section 3 amended by No. 43 of 1987 s. 5; No. 30 of 1995 s. 6; No. 79 of 1995 s. 67(5); No. 54 of 2002 s. 4; No. 74 of 2003 s. 87(3); No. 51 of 2004 s. 14, 38, 63, 73 and 104.]
3A. Penalty levels defined
(1) Where a person is liable to a level one penalty for an offence against this Act the person is liable —
(a) if the offence was committed by the person as an employee —
(i) for a first offence, to a fine of $5 000; and
(ii) for a subsequent offence, to a fine of $6 250;
(b) if paragraph (a) does not apply —
(i) in the case of an individual —
(I) for a first offence, to a fine of $25 000; and
(II) for a subsequent offence, to a fine of $31 250;
or
(ii) in the case of a body corporate —
(I) for a first offence, to a fine of $50 000; and
(II) for a subsequent offence, to a fine of $62 500.
(2) Where a person is liable to a level 2 penalty for an offence against this Act the person is liable —
(a) in the case of an individual —
(i) for a first offence, to a fine of $100 000; and
(ii) for a subsequent offence, to a fine of $125 000;
or
(b) in the case of a body corporate —
(i) for a first offence, to a fine of $200 000; and
(ii) for a subsequent offence, to a fine of $250 000.
(3) Where a person is liable to a level 3 penalty for an offence against this Act the person is liable —
(a) in the case of an individual —
(i) for a first offence, to a fine of $200 000; and
(ii) for a subsequent offence, to a fine of $250 000;
or
(b) in the case of a body corporate —
(i) for a first offence, to a fine of $400 000; and
(ii) for a subsequent offence, to a fine of $500 000.
(4) Where a person is liable to a level 4 penalty for an offence against this Act the person is liable —
(a) in the case of an individual —
(i) for a first offence, to a fine of $250 000 and imprisonment for 2 years; and
(ii) for a subsequent offence, to a fine of $312 500 and imprisonment for 2 years;
or
(b) in the case of a body corporate —
(i) for a first offence, to a fine of $500 000; and
(ii) for a subsequent offence, to a fine of $625 000.
[Section 3A inserted by No. 51 of 2004 s. 15.]
3B. Meaning of “first offence” and “subsequent offence”
(1) In this section —
“relevant day” means the day on which section 15 of the Occupational Safety and Health Legislation Amendment and Repeal Act 2004 1 comes into operation.
(2) For the purposes of this Act —
(a) an offence is a first offence committed by a person if, at the time when the offence is committed, the person has not previously been convicted of any offence against this Act committed on or after the relevant day; and
(b) an offence is a subsequent offence committed by a person if, at the time when the offence is committed, the person has previously been convicted of one or more offences against this Act committed on or after the relevant day.
[Section 3B inserted by No. 51 of 2004 s. 15.]
4. Application of this Act
(1) This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities.
(1a) The functions that the Crown has under this Act because a police officer is to be treated as an employee of the Crown are, so far as they concern a police officer, to be performed by the Commissioner of Police.
(1b) This Act has effect subject to any instrument for the time being in force under section 6A of the Mines Safety and Inspection Act 1994.
(2) Subject to this section and except as may be otherwise expressly provided by Parliament, this Act does not apply to or in relation to any workplace that is, or at which work is carried out on, a mine, petroleum well or petroleum pipeline to which the Mining Act 1978, the Mines Safety and Inspection Act 1994, the Petroleum Act 1967, the Petroleum (Submerged Lands) Act 1982 or the Petroleum Pipelines Act 1969, applies.
(2a) Subsection (2) does not prevent a provision of Part II from applying in relation to a workplace that is, or at which work is carried out on, a mine to which the Mining Act 1978, or the Mines Safety and Inspection Act 1994, applies.
(3) The Minister and the Minister for the time being administering the Act referred to in subsection (2) that is concerned may, by instrument in writing, jointly declare that this Act, or such provision of or under this Act as is specified in the instrument shall, for such period as is described in the instrument, apply to or in relation to a workplace referred to in subsection (2), or any part of such workplace that is specified in the instrument.
(4) On the service of a copy of the instrument mentioned in subsection (3) on an employer that would be subject to a duty under this Act if this Act applied in accordance with the instrument, this Act shall so apply in relation to the workplace or part of a workplace concerned to the exclusion of any inconsistent provision of or under the Act referred to in subsection (2) that is concerned.
(5) A copy of each instrument under subsection (3) shall be published in the Gazette as soon as practicable after the instrument is made and before it is so published a person, other than the employer served with the instrument under subsection (4), that is subject to a provision of or under this Act by reason of that subsection is not guilty of an offence against a provision of or under this Act if the person proves that the person did not know, and could not reasonably be expected to have known, that the provision so applied.
[Section 4 inserted by No. 43 of 1987 s. 7; amended by No. 84 of 1990 s. 2; No. 62 of 1994 s. 109; No. 54 of 2002 s. 5; No. 51 of 2004 s. 74; No. 68 of 2004 s. 94.]
4A. Act does not operate to affect adversely certain police operations
(1) In this section —
“covert operation” means the performance of a function of a police officer in circumstances where —
(a) a covert operation is undertaken by WA Police for the purpose of obtaining information about criminal activity;
(b) performance of the function is not practicable without exposing a police officer to a risk of imminent and serious injury or imminent and serious harm to the police officer’s health; and
(c) unless the performance of the function is secret or confidential, it would be likely that —
(i) the effectiveness of the performance of the function is reduced; or
(ii) a person is exposed to the danger of physical harm arising from the actions of another person;
“dangerous operation” means the performance of a function of a police officer in circumstances where performance of that function —
(a) is reasonably necessary; and
(b) is not practicable without exposing a police officer to a risk of imminent and serious injury or imminent and serious harm to the police officer’s health.
(2) A police officer cannot refuse to work as mentioned in section 26(1) if the refusal to work would adversely affect, or could reasonably be expected to affect adversely, a covert operation or a dangerous operation.
(3) An inspector cannot issue a prohibition notice under section 49(1) to prohibit an activity if prohibiting the carrying on of the activity would adversely affect, or could reasonably be expected to affect adversely, a covert operation or a dangerous operation.
[Section 4A inserted by No. 54 of 2002 s. 6.]
5. Objects
The objects of this Act are —
(a) to promote and secure the safety and health of persons at work;
(b) to protect persons at work against hazards;
(c) to assist in securing safe and hygienic work environments;
(d) to reduce, eliminate and control the hazards to which persons are exposed at work;
(e) to foster cooperation and consultation between and to provide for the participation of employers and employees and associations representing employers and employees in the formulation and implementation of safety and health standards to current levels of technical knowledge and development;
(f) to provide for formulation of policies and for the coordination of the administration of laws relating to occupational safety and health;
(g) to promote education and community awareness on matters relating to occupational safety and health.
[Section 5 amended by No. 43 of 1987 s. 8; No. 30 of 1995 s. 47.]
Part II — Commission for Occupational Safety and Health
[Heading inserted by No. 74 of 2003 s. 87(4).]
6. The Commission
(1) There shall be a Commission for Occupational Safety and Health.
(2) The Commission shall consist of —
(a) a person nominated by the Minister and appointed by the Governor as chairperson;
(b) the Commissioner;
(c) 2 persons employed in the Public Service under Part 3 of the Public Sector Management Act 1994, of whom —
(i) one shall be nominated by the Minister; and
(ii) the other shall be an officer of the department, as defined in section 4(1) of the Mines Safety and Inspection Act 1994, nominated by the Minister to whom the administration of that Act is committed;
and
(d) 9 persons appointed by the Governor of whom —
(i) 2 shall be persons nominated for appointment by the body known as the Chamber of Commerce and Industry of Western Australia (Inc);
(ii) 3 shall be persons, of whom one shall be a person who has knowledge of and experience in the mining industry in the State, nominated for appointment by the body known as The Trades and Labor Council of Western Australia;
(iii) 3 shall be persons having knowledge of or experience in occupational safety and health who shall be nominated for appointment by the Minister after consultation between the Minister and the bodies referred to in subparagraphs (i) and (ii); and
(iv) one shall be a person nominated by the Chamber of Minerals and Energy of Western Australia Inc.
(3) Where any of the bodies referred to in subsection (2)(d)(i), (ii) or (iv) fails to make a nomination within 60 days after being requested in writing by the Minister to do so the Governor may appoint any person who is suitably qualified, and any person so appointed shall be deemed to have been nominated pursuant to subsection (2)(d)(i), (ii) or (iv), as the case may be.
(4) A nomination for the purposes of subsection (2)(c) may be made from time to time, may be made by reference to the holder of a specified office and may be expressed to operate for a period or in such circumstances as are specified in the instrument of nomination.
(5) In addition to the name mentioned in subsection (1), the Commission may use, and operate under, the name “WorkSafe W A”.
(6) A person other than the Commission that uses or operates under the name mentioned in subsection (1) or (5), or any name that is so similar that it is likely to be misunderstood as referring to the Commission, commits an offence.
(7) Nothing in subsection (6) prevents the department of the Public Service principally assisting the Minister in the administration of this Act from using or operating under the name of “WorkSafe Western Australia” or a similar name if that designation is given to it under section 35 of the Public Sector Management Act 1994.
[Section 6 amended by No. 30 of 1995 s. 8; No. 74 of 2003 s. 87(5); No. 51 of 2004 s. 103 and 105.]
6A. Deputy chairperson
(1) The Minister shall appoint one of the members of the Commission to be deputy chairperson of the Commission.
(2) During any vacancy in the office of chairperson or while the chairperson is unable to act by reason of sickness, absence or other cause, the deputy chairperson shall perform the functions of the chairperson.
(3) No act or omission of the deputy chairperson acting as the chairperson shall be questioned on the ground that the occasion for so acting had not arisen or had ceased.
[Section 6A inserted by No. 30 of 1995 s. 9.]
7. Acting members
(1) If —
(a) an appointed member is unable to act by reason of sickness, absence or other cause; or
(b) the office of an appointed member is vacant and has not been filled in accordance with this Act,
the Minister may appoint an eligible person to act temporarily in the place of that appointed member, and while so acting according to the tenor of the appointment that other person has all of the functions, powers and immunities of that appointed member.
(2) Where an appointed member who is deputy chairperson is performing the functions of the chairperson, the Minister may, under subsection (1), appoint another eligible person to act in the place of that appointed member.
(3) No act or omission of a person acting in the place of another under this section is to be questioned on the ground that the occasion for the appointment or so acting had not arisen or had ceased.
(4) The appointment of a person as an acting member may be terminated at any time by the Minister.
[Section 7 inserted by No. 30 of 1995 s. 10.]
8. Terms and conditions of appointed members
(1) An appointed member shall hold office for such term not exceeding 3 years as is specified in the instrument of appointment and is eligible for re‑appointment.
(2) An appointed member other than a person who is an officer of the Public Service of the State is entitled to such remuneration and allowances as are determined by the Minister on the recommendation of the Minister for Public Sector Management 3.
[Section 8 amended by No. 51 of 2004 s. 75.]
9. WorkSafe Western Australia Commissioner
(1) The Governor shall appoint a person to be WorkSafe Western Australia Commissioner.
(2) The Commissioner shall be appointed for such term not exceeding 5 years as is specified in the instrument of appointment and on the expiration of the term is eligible for re‑appointment.
(3) Subject to the Salaries and Allowances Act 1975, the Commissioner is entitled to such conditions of service as are determined by the Minister from time to time on the recommendation of the Minister for Public Sector Management 3.
(4) If a person appointed to be Commissioner was immediately before that appointment an officer of the Public Service of the State the person shall despite that appointment retain all existing and accruing rights on appointment as Commissioner.
(5) If a person appointed to be Commissioner was immediately before that appointment a public service officer within the meaning of the Public Sector Management Act 1994, the person is entitled upon resigning his or her office as Commissioner or upon ceasing to be Commissioner to be appointed to an office in the Public Service of the State not lower in status than the office the person so occupied immediately before appointment as Commissioner.
(6) The Commissioner shall not engage in paid employment outside his or her duties and functions under this Act without first obtaining the approval in writing of the Minister.
[(7) repealed]
(8) In addition to the name mentioned in subsection (1), the Commissioner may use, and operate under, the name “WorkSafe W A Commissioner”.
[Section 9 amended by No. 43 of 1987 s. 10; No. 55 of 1987 s. 4; No. 32 of 1994 s. 19; No. 30 of 1995 s. 11 and 47; No. 51 of 2004 s. 76 and 102(2).]
10. Vacation of office
A person’s office as Commissioner or as an appointed member becomes vacant if —
(a) the person’s term of office expires; or
(b) the person —
(i) dies;
(ii) becomes permanently incapable of performing the duties of the office;
(iii) resigns from office by written notice addressed to the Minister;
(iv) is an undischarged bankrupt or a person whose property is subject to an order or arrangement under the laws relating to bankruptcy;
(v) is removed from office by the Governor on the grounds of neglect of duty, incompetence or the person’s behaviour; or
(vi) is absent without leave of the Minister from 3 consecutive meetings of the Commission;
or
(c) being a member appointed under section 6(2)(d)(i), (ii) or (iv), the person’s nomination is revoked.
[Section 10 inserted by No. 51 of 2004 s. 77.]
11. Leave of absence
The Minister may grant leave of absence to an appointed member on such terms and conditions as the Minister determines.
12. Casual vacancies
Where an office of appointed member becomes vacant otherwise than by effluxion of time a person appointed to the vacancy shall hold office only for the balance of the term of the person whose vacancy he or she fills.
[Section 12 amended by No. 51 of 2004 s. 102(1).]
13. Meetings of the Commission
(1) The chairperson may at any time and shall when so requested by the Minister or by not less than 5 members of the Commission convene a meeting of the Commission to be held at a time and place to be determined by the chairperson.
(2) The Commission shall meet at least 6 times a year at intervals of not more than 3 months.
(3) The chairperson shall preside at any meeting of the Commission at which he or she is present.
(4) If both the chairperson and the deputy chairperson are absent from a meeting of the Commission, the members present shall elect by secret ballot one of their number to preside at that meeting and that member shall have, in addition to the powers of a member of the Commission, the powers of the chairperson under this section.
(5) At a meeting of the Commission 7 members constitute a quorum.
(6) Subject to subsection (6a), at a meeting of the Commission —
(a) only members appointed under section 6(2)(d) are entitled to vote; and
(b) where any question requiring a vote arises the question shall be decided by a majority of the votes of the members appointed under section 6(2)(d) if, and only if, not less than 6 of those members also constitute such majority.
(6a) If —
(a) on a vote at a meeting of the Commission, a majority of the votes of members appointed under section 6(2)(d) is constituted by 5 of those members; and
(b) on a vote at a subsequent meeting of the Commission on the same question, a majority of the votes is constituted by 5 of those members,
the chairperson may, at that subsequent meeting, cast a vote to be included in the majority vote.
(7) Subject to the presence of a quorum the Commission may act notwithstanding any vacancy in its membership.
(8) A member of the Commission who has a pecuniary interest whether direct or indirect in any matter to be considered by the Commission shall declare the nature of that interest at every meeting at which the matter is considered.
(9) Subject to this Act, the Commission may determine its own procedures.
(10) It is the duty of the Commission to work for the attainment of the objects of this Act by achieving a consensus, as far as this is practicable, among its members.
[Section 13 amended by No. 30 of 1995 s. 12; No. 51 of 2004 s. 102(1).]
14. Functions of the Commission
(1) The functions of the Commission are —
(a) to inquire into and report to the Minister upon any matters referred to it by the Minister;
(b) to make recommendations to the Minister with respect to —
(i) this Act;
(ii) any law or provision of a law, relating to occupational safety and health that is administered by the Minister and any law or provision of a law relating to occupational safety and health that is prescribed for the purposes of this paragraph; and
(iii) subsidiary legislation, guidelines and codes of practice proposed to be made under or for the purposes of any prescribed law;
(c) to examine, review and make recommendations to the Minister in relation to existing and proposed registration or licensing schemes relating to occupational safety and health;
(d) to provide advice to and cooperate with Government departments, public authorities, trade unions, employer organisations and other interested persons in relation to occupational safety and health;
(e) to formulate or recommend standards, specifications or other forms of guidance for the purpose of assisting employers, self employed persons and employees to maintain appropriate standards of occupational safety and health;
(f) to promote education and training in occupational safety and health as widely as possible;
(g) in cooperation with educational authorities or bodies to devise and approve courses in relation to occupational safety and health;
(h) having regard to the criteria laid down by the National Occupational Health and Safety Commission, to advise persons on training in occupational safety and health and to formulate and accredit training courses in occupational safety and health;
(i) to recommend to the Minister the establishment of public inquiries into any matter relating to occupational safety and health;
(j) to collect, publish and disseminate information on occupational safety and health;
(k) to formulate reporting procedures and monitoring arrangements for identification of workplace hazards, and incidents in which injury or death is likely to occur in an occupational situation; and
(l) to commission and sponsor research into occupational safety and health.
(2) The Commission may issue for public review and comment any regulations, codes of practice or guidelines with respect to which it proposes under subsection (1)(b) to make any recommendations to the Minister.
(3) The Commission shall ensure, as far as is practicable, that any information it provides is in such language and form as are appropriate for the persons to whom the information is directed.
(4) The Minister shall within 60 days after receiving from the Commission a recommendation under subsection (1) make reply in writing to the Commission in relation to that recommendation.
[Section 14 amended by No. 43 of 1987 s. 11; No. 30 of 1995 s. 47.]
14A. Mining Industry Advisory Committee
(1) In this section —
“committee” means the committee referred to in subsection (2);
“mining industry” means the mining industry in the State;
“Ministers” means —
(a) the Minister to whom the administration of this Act is committed; and
(b) the Minister to whom the administration of the Mines Safety and Inspection Act 1994 is committed (the “Minister for Mines”),
acting jointly.
(2) There is to be an advisory committee called the Mining Industry Advisory Committee.
(3) The functions of the committee are —
(a) to advise and make recommendations to the Ministers and the Commission on occupational safety and health matters concerning the mining industry; and
(b) to liaise with the Commission to coordinate activities on related functions and to maintain parallel standards,
and in particular, but without limiting the generality of paragraphs (a) and (b) —
(c) to inquire into and report to the Ministers regarding any matter referred to it by the Ministers relating to occupational safety and health in the mining industry;
(d) to make recommendations to the Minister for Mines regarding the formulation, amendment, or repeal of laws relating to occupational safety and health for which that Minister is responsible;
(e) to prepare or recommend the adoption of codes of practice, guidelines, standards, specifications or other forms of guidance for the purpose of assisting employers, self‑employed persons, employees, manufacturers or other persons to maintain appropriate standards of occupational safety and health in the mining industry; and
(f) to provide advice on —
(i) education and publications; and
(ii) training and training courses,
with respect to occupational safety and health in the mining industry.
(4) The chairperson of the committee is to be the member of the Commission nominated under section 6(2)(c)(ii).
(5) Subject to subsection (4), the Ministers —
(a) are to appoint the members of; and
(b) may alter or reconstitute,
the committee.
(6) The members of the committee are entitled to be paid such remuneration and travelling and other allowances as may be determined by the Ministers on the recommendation of the Minister for Public Sector Management.
(7) Subject to any direction given to it by the Commission, the committee is to determine its own procedures.
[Section 14A inserted by No. 51 of 2004 s. 106.]
15. Advisory committees
(1) The Commission may at any time and when so requested by the Minister shall appoint advisory committees to assist it in the performance of its functions and duties.
(2) Subject to this section, an advisory committee shall consist of such number of persons as are appointed by the Commission.
(3) Subject to the direction of the Commission an advisory committee may determine its own procedures.
(4) The members of advisory committees are entitled to be paid such remuneration and travelling and other allowances as may be determined by the Minister on the recommendation of the Minister for Public Sector Management 3.
(5) In appointing persons to be members of advisory committees under this section the Commission —
(a) shall, as far as is practicable, appoint persons who represent employers, employees and persons having knowledge of or experience in occupational safety and health; and
(b) shall have regard to the desirability of having a reasonable number of men and women, including persons of differing ethnic backgrounds and other groups with special needs.
[Section 15 amended by No. 30 of 1995 s. 47.]
16. Annual report
(1) The Commission shall on or before 31 October in each year prepare and submit to the Minister a report of its operations and the operation of this Act and any prescribed law during the year ending on the preceding 30 June.
(2) The Minister shall cause a report submitted under this section to be laid before each House of Parliament within 12 sitting days of such House of its receipt by him or her.
[Section 16 amended by No. 51 of 2004 s. 102(3).]
17. Staff to assist the Commission
There shall be appointed under and subject to Part 3 of the Public Sector Management Act 1994 such officers and employees as are necessary to assist the Commission in the performance of its functions and duties.
[Section 17 amended by No. 32 of 1994 s. 19; No. 30 of 1995 s. 47.]
18. The Commissioner and the department
(1) The Commissioner is subject to the control and direction of the Minister, and is responsible to the Minister for the administration of this Act and any other law relating to occupational safety and health administered by the Minister.
(2) There shall be appointed under and subject to Part 3 of the Public Sector Management Act 1994 such officers as are necessary for the administration of this Act and any law relating to occupational safety and health administered by the Minister.
(3) The offices of Commissioner and chief executive officer of the department may be held by the same person.
(4) The Commissioner may, either generally or as provided by the instrument of delegation, by writing signed by him or her, delegate to any officer of the department any of his or her functions under this Act other than this power of delegation, and a function performed in accordance with a delegation under this subsection is deemed to be performed by the Commissioner.
[Section 18 amended by No. 43 of 1987 s. 12; No. 55 of 1987 s. 5; No. 32 of 1994 s. 19; No. 30 of 1995 s. 47; No. 51 of 2004 s. 102(2) and (3).]
Part III — General provisions relating to occupational safety and health
[Heading inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 47.]
Division 1 — Preliminary
[Heading inserted by No. 51 of 2004 s. 16.]
18A. Meaning of gross negligence in relation to certain breaches of this Part
(1) This section applies to a contravention of section 19(1), 20(1) or (3), 21(1) or (2), 21B(2), 22(1), 23(1), (2), (3) or (3a), 23A or 23G(2).
(2) A contravention of a provision mentioned in subsection (1) is committed in circumstances of gross negligence if —
(a) the offender —
(i) knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is owed under that provision; but
(ii) acted or failed to act in disregard of that likelihood;
and
(b) the contravention did in fact cause the death of, or serious harm to, such a person.
[Section 18A inserted by No. 51 of 2004 s. 16.]
Division 2 — General workplace duties
[Heading inserted by No. 51 of 2004 s. 4.]
19. Duties of employers
(1) An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the “employees”) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall —
(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards;
(b) provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards;
(c) consult and cooperate with safety and health representatives, if any, and other employees at the workplace, regarding occupational safety and health at the workplace;
(d) where it is not practicable to avoid the presence of hazards at the workplace, provide the employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and
(e) make arrangements for ensuring, so far as is practicable, that —
(i) the use, cleaning, maintenance, transportation and disposal of plant; and
(ii) the use, handling, processing, storage, transportation and disposal of substances,
at the workplace is carried out in a manner such that the employees are not exposed to hazards.
(2) In determining the training required to be provided in accordance with subsection (1)(b) regard shall be had to the functions performed by employees and the capacities in which they are employed.
[Section 19 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 13 and 47; No. 51 of 2004 s. 5, 17 and 78.]
19A. Breaches of section 19(1)
(1) If an employer contravenes section 19(1) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.
(2) If —
(a) an employer —
(i) contravenes section 19(1); and
(ii) by the contravention causes the death of, or serious harm to, an employee;
and
(b) subsection (1) does not apply,
the employer commits an offence and is liable to a level 3 penalty.
(3) If —
(a) an employer contravenes section 19(1); and
(b) neither subsection (1) nor subsection (2) applies,
the employer commits an offence and is liable to a level 2 penalty.
(4) An employer charged with an offence under —
(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).
[Section 19A inserted by No. 51 of 2004 s. 18.]
20. Duties of employees
(1) An employee shall take reasonable care —
(a) to ensure his or her own safety and health at work; and
(b) to avoid adversely affecting the safety or health of any other person through any act or omission at work.
(2) Without limiting the generality of subsection (1), an employee contravenes that subsection if the employee —
(a) fails to comply, so far as the employee is reasonably able, with instructions given by the employee’s employer for the safety or health of the employee or for the safety or health of other persons;
(b) fails to use such protective clothing and equipment as is provided, or provided for, by his or her employer as mentioned in section 19(1)(d) in a manner in which he or she has been properly instructed to use it;
(c) misuses or damages any equipment provided in the interests of safety or health; or
(d) fails to report forthwith to the employee’s employer —
(i) any situation at the workplace that the employee has reason to believe could constitute a hazard to any person that the employee cannot correct; or
(ii) any injury or harm to health of which he or she is aware that arises in the course of, or in connection with, his or her work.
(3) An employee shall cooperate with the employee’s employer in the carrying out by the employer of the obligations imposed on the employer under this Act.
[Section 20 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 14 and 47; No. 51 of 2004 s. 19, 79, 102(1) and (2).]
20A. Breaches of section 20(1) or (3)
(1) If an employee contravenes section 20(1) or (3) in circumstances of gross negligence, the employee commits an offence and is liable —
(a) for a first offence, to a fine of $25 000; and
(b) for a subsequent offence, to a fine of $31 250.
(2) If —
(a) an employee —
(i) contravenes section 20(1) or (3); and
(ii) by the contravention causes the death of, or serious harm to, a person;
and
(b) subsection (1) does not apply,
the employee commits an offence and is liable —
(c) for a first offence, to a fine of $20 000; and
(d) for a subsequent offence, to a fine of $25 000.
(3) If —
(a) an employee contravenes section 20(1) or (3); and
(b) neither subsection (1) nor subsection (2) applies,
the employee commits an offence and is liable —
(c) for a first offence, to a fine of $10 000; and
(d) for a subsequent offence, to a fine of $12 500.
(4) An employee charged with an offence under —
(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).
[Section 20A inserted by No. 51 of 2004 s. 20.]
21. Duties of employers and self‑employed persons
(1) A self‑employed person shall take reasonable care to ensure his or her own safety and health at work.
(2) An employer or self‑employed person shall, so far as is practicable, ensure that the safety or health of a person, not being (in the case of an employer) an employee of the employer, is not adversely affected wholly or in part as a result of —
(a) work that has been or is being undertaken by —
(i) the employer or any employee of the employer; or
(ii) the self‑employed person;
or
(b) any hazard that arises from or is increased by —
(i) the work referred to in paragraph (a); or
(ii) the system of work that has been or is being operated by the employer or the self‑employed person.
[Section 21 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 15 and 47; No. 51 of 2004 s. 6 and 21.]
21A. Breaches of section 21
(1) If an employer or a self‑employed person contravenes section 21(1) or (2) in circumstances of gross negligence, the employer or a self‑employed person commits an offence and is liable to a level 4 penalty.
(2) If —
(a) an employer or self‑employed person —
(i) contravenes section 21(1) or (2); and
(ii) by the contravention causes the death of, or serious harm to, a person;
and
(b) subsection (1) does not apply,
the employer or self‑employed person commits an offence and is liable to a level 3 penalty.
(3) If —
(a) an employer or self‑employed person contravenes section 21(1) or (2); and
(b) neither subsection (1) nor subsection (2) applies,
the employer or self‑employed person commits an offence and is liable to a level 2 penalty.
(4) An employer or self‑employed person charged with an offence under —
(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).
[Section 21A inserted by No. 51 of 2004 s. 22.]
21B. Duty placed on body corporate to which section 23D, 23E or 23F applies
(1) If section 23D, 23E or 23F makes any other provision of this Act apply to a body corporate as if it were the employer of a particular person, this section and section 21C apply to the body corporate at such times as the other provision is made to apply.
(2) A body corporate to which this section applies shall, so far as is practicable, ensure that the safety or health of a person is not adversely affected wholly or in part as a result of —
(a) work that has been or is being undertaken by —
(i) the body corporate; or
(ii) a person carrying out work under the direction of the body corporate;
or
(b) any hazard that arises from or is increased by —
(i) the work referred to in paragraph (a); or
(ii) the system of work that has been or is being operated by the body corporate.
[Section 21B inserted by No. 51 of 2004 s. 7.]
21C. Breaches of section 21B
(1) If a body corporate contravenes section 21B(2) in circumstances of gross negligence, the body corporate commits an offence and is liable to a level 4 penalty.
(2) If —
(a) a body corporate —
(i) contravenes section 21B(2); and
(ii) by the contravention causes the death of, or serious harm to, a person;
and
(b) subsection (1) does not apply,
the body corporate commits an offence and is liable to a level 3 penalty.
(3) If —
(a) a body corporate contravenes section 21B(2); and
(b) neither subsection (1) nor subsection (2) applies,
the body corporate commits an offence and is liable to a level 2 penalty.
(4) A body corporate charged with an offence under —
(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).
[Section 21C inserted by No. 51 of 2004 s. 7.]
22. Duties of persons who have control of workplaces
(1) A person that has, to any extent, control of —
(a) a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or
(b) the means of access to and egress from a workplace,
shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.
(2) Where a person has, by virtue of a contract or lease, an obligation of any extent in relation to the maintenance or repair of a workplace or the means of access to and egress from the workplace, the person shall be treated for the purposes of subsection (1) as being a person that has control of that workplace or that means of access or egress.
(3) A reference in this section to a person having control of any workplace or means of access to or egress from a workplace is a reference to a person having control of that workplace or that means of access or egress in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not).
[(4)‑(6) repealed]
(7) This section does not apply to a person whose duties are set out in section 20.
[Section 22 inserted by No. 30 of 1995 s. 16; amended by No. 51 of 2004 s. 23, 80 and 103.]
22A. Breaches of section 22(1)
(1) If a person contravenes section 22(1) in circumstances of gross negligence, the person commits an offence and is liable to a level 4 penalty.
(2) If —
(a) a person —
(i) contravenes section 22(1); and
(ii) by the contravention causes the death of, or serious harm to, a person —
(I) who is at; or
(II) who is using the means of access to or egress from,
the workplace;
and
(b) subsection (1) does not apply,
the person commits an offence and is liable to a level 3 penalty.
(3) If —
(a) a person contravenes section 22(1); and
(b) neither subsection (1) nor subsection (2) applies,
the person commits an offence and is liable to a level 2 penalty.
(4) A person charged with an offence under —
(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).
[Section 22A inserted by No. 51 of 2004 s. 24.]
23. Duties of manufacturers, etc.
(1) A person that designs, manufactures, imports or supplies any plant for use at a workplace shall, so far as is practicable —
(a) ensure that the design and construction of the plant is such that persons who properly install, maintain or use the plant are not in doing so, exposed to hazards;
(b) test and examine, or arrange for the testing and examination of, the plant so as to ensure that its design and construction are as mentioned in paragraph (a); and
(c) ensure that adequate information in respect of —
(i) any dangers associated with the plant;
(ii) the specifications of the plant and the data obtained on the testing of the plant as mentioned in paragraph (b);
(iii) the conditions necessary to ensure that persons properly using the plant are not, in so doing, exposed to hazards; and
(iv) the proper maintenance of the plant,
is provided when the plant is supplied and thereafter whenever requested.
(2) A person that erects or installs any plant for use at a workplace shall, so far as is practicable, ensure that it is so erected or installed that persons who properly use the plant are not subjected to any hazard that arises from, or is increased by, the way in which the plant is erected or installed.
(3) A person that manufactures, imports or supplies any substance for use at a workplace shall, so far as is practicable, ensure that adequate toxicological data in respect of the substance and such other data as is relevant to the safe use, handling, processing, storage, transportation and disposal of the substance is provided —
(a) when the substance is supplied; and
(b) thereafter whenever requested.
(3a) A person that designs or constructs any building or structure, including a temporary structure, for use at a workplace shall, so far as is practicable ensure that the design and construction of the building or structure is such that —
(a) persons who properly construct, maintain, repair or service the building or structure; and
(b) persons who properly use the building or structure,
are not, in doing so, exposed to hazards.
[Section 23 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 17; No. 51 of 2004 s. 25, 81 and 103.]
23AA. Breaches of section 23
(1) If a person contravenes section 23(1), (2), (3) or (3a) in circumstances of gross negligence, the person commits an offence and is liable to a level 4 penalty.
(2) If —
(a) a person —
(i) contravenes section 23(1), (2), (3) or (3a); and
(ii) by the contravention causes the death of, or serious harm to, a person to whom a duty is owed under that subsection;
and
(b) subsection (1) does not apply,
the person commits an offence and is liable to a level 3 penalty.
(3) If —
(a) a person contravenes section 23(1), (2), (3) or (3a); and
(b) neither subsection (1) nor subsection (2) applies,
the person commits an offence and is liable to a level 2 penalty.
(4) A person charged with an offence under —
(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).
[Section 23AA inserted by No. 51 of 2004 s. 26.]
23A. Prohibited activities in prescribed areas
(1) A person shall not —
(a) engage in any activity, other than a prescribed activity; or
(b) engage in a prescribed activity, other than in a prescribed manner,
at a workplace in an area of the State prescribed for the purposes of this section.
[(2)‑(4) repealed]
[Section 23A inserted by No. 30 of 1995 s. 18; amended by No. 51 of 2004 s. 27.]
23B. Breaches of section 23A
(1) If a person contravenes section 23A in circumstances of gross negligence, the person commits an offence and is liable to a level 4 penalty.
(2) If —
(a) a person —
(i) contravenes section 23A; and
(ii) by the contravention causes the death of, or serious harm to, a person;
and
(b) subsection (1) does not apply,
the person commits an offence and is liable to a level 3 penalty.
(3) If —
(a) a person contravenes section 23A; and
(b) neither subsection (1) nor subsection (2) applies,
the person commits an offence and is liable to a level 2 penalty.
(4) A person charged with an offence under —
(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).
[Section 23B inserted by No. 51 of 2004 s. 28.]
Division 3 — Certain workplace situations to be treated as employment
[Heading inserted by No. 51 of 2004 s. 8.]
23C. Terms used in this Division
In this Division —
“business” includes the operations of a public authority;
“public authority” means —
(a) a Minister of the Crown acting in the Minister’s official capacity;
(b) a State Government department, State trading concern, State instrumentality or State agency; or
(c) any other body or person, whether corporate or not and including a local government, that under a written law administers or carries on a social service or public utility for the benefit of the State or a part of the State.
[Section 23C inserted by No. 51 of 2004 s. 8.]
23D. Contract work arrangements
(1) This section applies where a person (the “principal”) in the course of trade or business engages a contractor (the “contractor”) to carry out work for the principal.
(2) Where this section applies, section 19 has effect —
(a) as if the principal were the employer of —
(i) the contractor; and
(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned,
in relation to matters over which the principal has the capacity to exercise control; and
(b) as if —
(i) the contractor; and
(ii) any person referred to in paragraph (a)(ii),
were employees of the principal in relation to matters over which the principal has the capacity to exercise control.
(3) Where this section applies, the further duties referred to in subsection (4) apply —
(a) as if the principal were the employer of —
(i) the contractor; and
(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned;
and
(b) as if —
(i) the contractor; and
(ii) any person referred to in paragraph (a)(ii),
were employees of the principal.
(4) The further duties mentioned in subsection (3) are —
(a) the duties of an employee under section 20; and
(b) the duties of an employer under sections 23G(2) and 23I(3).
(5) An agreement or arrangement is void for the purposes of this section if it purports to give control to —
(a) a contractor; or
(b) a person referred to in subsection (2)(a)(ii),
of any matter that —
(c) comes within section 19 or 23G(2); and
(d) is a matter over which the principal has the capacity to exercise control,
but this subsection does not prevent the making of a written agreement as mentioned in section 23G(3).
(6) A purported waiver by a contractor of a right that arises directly or indirectly under this section is void.
(7) Nothing in this section derogates from —
(a) the duties of the principal to the contractor; or
(b) the duties of the contractor to any person employed or engaged by the contractor.
[Section 23D inserted by No. 51 of 2004 s. 8.]
23E. Labour arrangements in general
(1) This section applies where —
(a) a person (the “worker”) for remuneration carries out work for another person (the “person mentioned in subsection (1)(a)”) in the course of trade or business;
(b) that person has the power of direction and control in respect of the work in a similar manner to the power of an employer under a contract of employment;
(c) there is no contract of employment between the worker and that person; and
(d) neither section 23D nor section 23F applies.
(2) Where this section applies, section 19 has effect as if —
(a) the person mentioned in subsection (1)(a) were the employer of the worker; and
(b) the worker were the employee of that person,
in relation to any matter that —
(c) comes within section 19; and
(d) is a matter over which that person has the capacity to exercise control.
(3) Where this section applies, the further duties referred to in subsection (4) apply as if —
(a) the person mentioned in subsection (1)(a) were the employer of the worker; and
(b) the worker were the employee of that person.
(4) The further duties mentioned in subsection (3) are —
(a) the duties of an employee under section 20; and
(b) the duties of an employer under section 23I(3).
(5) An agreement or arrangement is void for the purposes of this section to the extent that it purports to give control to the worker of any matter that —
(a) comes within section 19; and
(b) is a matter over which the person mentioned in subsection (1)(a) has the capacity to exercise control.
(6) This section applies despite anything to the contrary in, or any inconsistent provision of, an agreement, whether made orally or in writing.
(7) A purported waiver by a worker of a right that arises directly or indirectly under this section is void.
[Section 23E inserted by No. 51 of 2004 s. 8.]
23F. Labour hire arrangements
(1) In this section —
“agent” —
(a) means a person that carries on a business of providing workers to carry out work for clients of the person; and
(b) includes a group training organisation as defined in section 7(1) of the Industrial Relations Act 1979;
“worker” includes an employee or a contractor.
(2) This section applies where, under a labour hire arrangement, work is carried out for remuneration by a worker for a client of an agent (the “client”) in the course of the client’s trade or business.
(3) A labour hire arrangement exists where —
(a) an agent has for remuneration agreed with the client to provide a worker to carry out work for the client;
(b) there is no contract of employment between the worker and the client in relation to the work;
(c) there is an agreement (which may be a contract of employment) between the worker and the agent as to the carrying out of work including in respect of remuneration and other entitlements; and
(d) that agreement applies to the carrying out of the work by the worker for the client.
(4) Where this section applies, section 19 has effect as if —
(a) each of the agent and the client were the employer of the worker; and
(b) the worker were an employee of each of the agent and the client,
in relation to any matter that —
(c) comes within section 19; and
(d) as regards —
(i) the agent, is a matter over which the agent has the capacity to exercise control; or
(ii) the client, is a matter over which the client has the capacity to exercise control.
(5) Where this section applies, the further duties referred to in subsection (6) apply as if —
(a) each of the agent and the client were the employer of the worker; and
(b) the worker were an employee of each of the agent and the client.
(6) The further duties mentioned in subsection (5) are —
(a) the duties of an employee under section 20; and
(b) the duties of an employer under section 23I(3).
(7) This section applies despite anything to the contrary in, or any inconsistent provision of, an agreement, whether made orally or in writing.
(8) A purported waiver by a worker of a right that arises directly or indirectly under this section is void.
[Section 23F inserted by No. 51 of 2004 s. 8.]
Division 4 — Duty relating to certain employment accommodation
[Heading inserted by No. 51 of 2004 s. 8.]
23G. Duty of employer to maintain safe premises
(1) In this section —
“residential premises” —
(a) means residential premises that are situated outside —
(i) a townsite within the meaning in section 26(1) of the Land Administration Act 1997; and
(ii) the metropolitan region as defined in the Planning and Development Act 2005;
and
(b) includes land and outbuildings that are intended to be used in connection with the occupation of the premises.
(2) Where —
(a) an employee occupies residential premises that are owned by or under the control of the employee’s employer; and
(b) the occupancy is necessary for the purposes of the employment because other accommodation is not reasonably available in the area concerned,
the employer must, so far as is practicable, maintain the premises so that the employee occupying the premises is not exposed to hazards at the premises.
(3) Subsection (2) does not apply if the occupancy is pursuant to a written agreement containing terms that might reasonably be expected to apply to a letting of the residential premises to a tenant.
(4) This section does not apply to the occupation of residential premises by an employee who is employed at a workplace referred to in section 4(2).
[Section 23G inserted by No. 51 of 2004 s. 8; amended by No. 38 of 2005 s. 15.]
23H. Breaches of section 23G
(1) If an employer contravenes section 23G(2) in circumstances of gross negligence, the employer commits an offence and is liable to a level 4 penalty.
(2) If —
(a) an employer —
(i) contravenes section 23G(2); and
(ii) by the contravention causes the death of, or serious harm to, an employee occupying premises as mentioned in that section;
and
(b) subsection (1) does not apply,
the employer commits an offence and is liable to a level 3 penalty.
(3) If —
(a) an employer contravenes section 23G(2); and
(b) neither subsection (1) nor subsection (2) applies,
the employer commits an offence and is liable to a level 2 penalty.
(4) In proceedings against a person for an offence under subsection (1) or (2) it is a defence if the person proves that the death or serious harm, as the case may be, would not have occurred if the employee had taken reasonable care to ensure the employee’s own safety and health at the premises concerned.
(5) An employer charged with an offence under —
(a) subsection (1) may, instead of being convicted of that offence, be convicted of an offence under subsection (2) or (3); or
(b) subsection (2) may, instead of being convicted of that offence, be convicted of an offence under subsection (3).
[Section 23H inserted by No. 51 of 2004 s. 8.]
Division 5 — Other duties
[Heading inserted by No. 51 of 2004 s. 8.]
23I. Notification of deaths, injuries and diseases
(1) In this section —
“business of an employer” means —
(a) the conduct of the undertaking or operations of an employer; and
(b) work undertaken by an employer or any employee of an employer;
“business of a self‑employed person” means —
(a) the conduct of the undertaking or operations of a self‑employed person; and
(b) work undertaken by that person.
(2) This section applies where —
(a) at a workplace, or at residential premises to which section 23G(2) applies, an employee incurs an injury, or is affected by a disease, that —
(i) results in the death of the employee; or
(ii) is of a kind that is prescribed;
or
(b) at a workplace, a person who is not an employee incurs an injury in prescribed circumstances that —
(i) results in the death of the person; or
(ii) is of a kind that is prescribed,
in connection with —
(iii) the business of an employer; or
(iv) the business of a self‑employed person.
(3) The relevant person must —
(a) forthwith; or
(b) as otherwise provided by the regulations,
notify the Commissioner in the prescribed form of the injury or disease giving such particulars as may be prescribed.
(4) The relevant person is the employer concerned where —
(a) subsection (2)(a) applies; or
(b) the person incurs the injury in connection with the business of an employer.
(5) The relevant person is the self‑employed person concerned where the person incurs the injury in connection with the business of a self‑employed person.
[Section 23I inserted by No. 51 of 2004 s. 8.]
23J. Breaches of section 23I
(1) If an employer or self‑employed person contravenes section 23I(3), the employer or self‑employed person commits an offence.
(2) In proceedings for an offence under subsection (1) against a person who is taken by section 23D(2) to be an employer it is a defence if the person proves that subsection (4) applies.
(3) In proceedings against a person for an offence under subsection (1) that relates to an injury mentioned in section 23I(2)(b) it is a defence if the person proves that subsection (4) applies.
(4) This subsection applies if the person did not know, and could not reasonably be expected to have known, of the injury or disease concerned.
[Section 23J inserted by No. 51 of 2004 s. 8.]
23K. Duty to inform employee who reports a hazard or injury
(1) This section applies where an employer receives from an employee a report of a kind described in section 20(2)(d).
(2) The employer must, within a reasonable time after receiving the report —
(a) investigate the matter that has been reported and determine the action, if any, that the employer intends to take in respect of the matter; and
(b) notify the employee of the determination so made.
(3) If an employer contravenes subsection (2), the employer commits an offence.
[Section 23K inserted by No. 51 of 2004 s. 8.]
23L. Notification of hazard to person having control of workplace
(1) In this section —
“workplace” includes the means of access to and egress from the workplace.
(2) If —
(a) the employer of any employee; or
(b) a self‑employed person carrying out work,
at a workplace becomes of the opinion that —
(c) a situation exists at the workplace that could constitute a hazard to any person;
(d) the hazard is one that a person having control of the relevant part of the workplace (the “responsible person”) has a duty to remedy under section 22; and
(e) the situation has not come to the attention of that person,
the employer or self‑employed person must, so far as it is reasonably practicable to do so, give notice of the situation to the responsible person.
(3) A notice under subsection (2) must be given as soon as is reasonably practicable after the employer or self‑employed person becomes of the opinion mentioned in that subsection.
(4) An employer or self‑employed person that fails to comply with subsection (2) commits an offence.
[Section 23L inserted by No. 51 of 2004 s. 8.]
Division 6 — Resolution of workplace issues, and refusal to work on grounds of risk
[Heading inserted by No. 51 of 2004 s. 8.]
24. Resolution of issues at the workplace
(1) Where an issue relating to occupational safety or health arises at a workplace the employer shall, in accordance with the relevant procedure, attempt to resolve the issue with —
(a) the safety and health representative;
(b) the safety and health committee; or
(c) the employees,
whichever is specified in the relevant procedure.
(2) For the purposes of subsection (1), “the relevant procedure” means the procedure agreed between the employer and the employees as applying in respect of the workplace concerned or, where no procedure is so agreed, the procedure prescribed for that purpose in the regulations.
(3) Where attempts to resolve an issue as mentioned in subsection (1) do not succeed and there is both a safety and health representative and a safety and health committee in respect of the workplace concerned, the safety and health representative shall refer the issue to the safety and health committee for it to attempt to resolve the issue.
(4) If a person contravenes subsection (1) or (3), the person commits an offence.
[Section 24 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 47; No. 51 of 2004 s. 82.]
25. Inspector may be notified where issues unresolved
(1) Where attempts to resolve an issue as mentioned in section 24 are unsuccessful, and where there is a risk of imminent and serious injury to, or imminent and serious harm to the health of any person, the employer, a safety and health representative or, if there is no safety and health representative, an employee may notify an inspector thereof.
(2) An inspector, upon being notified under subsection (1), shall attend forthwith at the workplace and either —
(a) take such action under this Act as he or she considers appropriate; or
(b) determine that in the circumstances no action is required to be taken under this Act.
[Section 25 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 19; No. 51 of 2004 s. 102(1).]
26. Refusal by employees to work in certain cases
(1) Nothing in section 25 prevents an employee from refusing to work where he or she has reasonable grounds to believe that to continue to work would expose him or her or any other person to a risk of imminent and serious injury or imminent and serious harm to his or her health.
(1a) In determining whether an employee has reasonable grounds for the belief referred to in subsection (1) it is relevant to consider whether an inspector has attended the workplace upon being notified under section 25(1) of the risk and whether —
(a) the measures, if any, required by the inspector to be taken to remedy the matters giving rise to the risk have been taken;
(b) the requirements, if any, of the inspector to remedy the matters giving rise to the risk have ceased to have effect; or
(c) the inspector has determined that no action is required to be taken under this Act.
(2) An employee who refuses to work as mentioned in subsection (1) shall forthwith notify his or her employer and, if there is a safety and health representative for the workplace concerned, such safety and health representative, and the matter shall be regarded as an issue to which section 24(1) applies.
(2a) An employee who refuses to work as mentioned in subsection (1) shall not leave the workplace concerned until the employee has notified the employer under subsection (2) and that employer has authorised the employee to leave that workplace.
(2b) Subsection (2a) does not apply if the employee has reasonable grounds to believe that to remain at the workplace concerned would expose the employee to a risk of imminent and serious injury or imminent and serious harm to his or her health.
(3) An employee who contravenes subsection (2) or (2a) commits an offence.
[Section 26 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 20 and 47; No. 51 of 2004 s. 102.]
27. Assignment of other work
An employee who refuses to work as mentioned in section 26(1) may be given reasonable alternative work to do until the employee resumes his or her usual work.
[Section 27 inserted by No. 43 of 1987 s. 13; amended by No. 51 of 2004 s. 83 and 102(2).]
28. Entitlements to continue
(1) An employee who refuses to work as mentioned in section 26(1) is entitled to the same pay and other benefits, if any, to which he or she would be entitled if the employee had continued to do his or her usual work.
(1a) Subsection (1) does not apply if —
(a) the employee leaves the workplace without the authorisation of the employer as required under section 26(2a); or
(b) the employee refuses to do reasonable alternative work that the employee is given under section 27.
(2) A dispute arising as to —
(a) whether a person is entitled to any pay or benefit; or
(b) the pay or benefit to which a person is entitled,
in accordance with subsection (1), may be referred by any party to the dispute to the Tribunal for determination.
[Section 28 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 21 and 47; No. 51 of 2004 s. 69(1), 84, 102(1) and (2).]
28A. Offences — refusal to work
(1) In this section “disentitled employee” means an employee who refuses to work for any period —
(a) on the grounds that to do so would involve a risk of injury or harm to the health of any person; or
(b) on the grounds that another employee refuses to work because to do so would involve a risk of injury or harm to the health of any person,
but does not include a person who has refused to work as mentioned in section 26(1) and who is entitled to pay and other benefits under section 28(1).
(2) An employee who accepts from his or her employer, in respect of any period during which that employee is a disentitled employee, any pay or other benefits to which the employee would have been entitled if he or she had continued to work commits an offence.
(3) An employer that pays or provides to an employee, in respect of any period during which the employee is a disentitled employee, any pay or other benefits to which the employee would have been entitled if the employee had continued to work commits an offence.
(4) In subsections (2) and (3) a reference to pay and other benefits does not include a reference to any payment or benefit prescribed for the purposes of this section.
(5) This section has effect despite any provision of any other written law, including the Industrial Relations Act 1979, and any order, award or agreement made or registered under that Act.
[Section 28A inserted by No. 30 of 1995 s. 22; amended by No. 51 of 2004 s. 103.]
Part IV — Safety and health representatives and committees
[Heading inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 47.]
Division 1 — Safety and health representatives
[Heading inserted by No. 51 of 2004 s. 39.]
29. Notices requiring election of safety and health representatives
(1) An employee who works at a workplace may give notice to the employer requiring the election of a safety and health representative for the workplace.
(2) The fact that a notice under subsection (1) requires an election for the workplace at which the employee works does not prevent —
(a) the establishment of a scheme under section 30A that extends beyond that workplace; or
(b) the making of a determination under section 30(4a) for that purpose.
[Section 29 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 47; No. 51 of 2004 s. 40.]
30. Consultation on matters relevant to elections
(1) An employer shall, within 21 days of being given notice under section 29 requiring the election of a safety and health representative, invite the employees who work at the workplace in respect of which the notice is given to appoint a delegate or delegates in accordance with subsection (3).
(2) An employer may, at any time the employer requires the election of a safety and health representative for a workplace of the employer, invite the employees who work at the workplace to appoint a delegate or delegates in accordance with subsection (3).
(3) The employees who work at a workplace may, upon being invited under this section to do so, appoint a delegate or delegates from amongst their number to represent them.
(3a) An employer shall consult with the delegate or delegates, as the case requires, appointed under this section as to the matters which are required to be determined under this section.
(4) The matters requiring to be determined under this section in relation to an election are —
(a) the number of safety and health representatives to be elected;
(b) the matters, areas or kinds of work in respect of which each safety and health representative is to exercise functions, so far as those things are not to be dealt with by provision of a kind mentioned in section 30B(2) or (3);
(ba) how a vacancy in an office of safety and health representative that occurs in the circumstances mentioned in section 32(2)(b), (ba), (c) or (d) is to be dealt with; and
(c) the person by whom and the manner in which the election is to be conducted.
(4a) The employer and the delegate or delegates consulting under subsection (3a) may determine that provision of a kind mentioned in section 30B(2) or (3) should be made.
(5) For the purposes of subsection (4)(c), but without limiting the generality of that provision, the employer and the delegate or delegates consulting under subsection (3a) may determine that —
(a) the Electoral Commissioner appointed under the Electoral Act 1907; or
(b) an organisation registered under Part II Division 4 of the Industrial Relations Act 1979,
is to be requested to conduct an election.
(6) Any matter mentioned in subsection (4) that remains unresolved notwithstanding attempts to resolve it under subsection (3a) may be referred to the Commissioner who shall, if unable to resolve the matter to the satisfaction of each of the parties concerned, refer the matter to the Tribunal for determination.
(7) If an employer contravenes subsection (1) or (3a), the employer commits an offence.
[Section 30 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 23 and 47; No. 51 of 2004 s. 41, 69(1) and 85.]
30A. Election scheme may be established
(1) In this section —
“consulting parties” means the employer and the delegate or delegates consulting under section 30(3a) on matters relating to the election of a safety and health representative for a workplace, and includes any delegates or delegates appointed under section 30C.
(2) If the consulting parties in respect of a workplace have made a determination referred to in section 30(4a), a written agreement may be made between the consulting parties establishing a scheme under this section.
(3) If the consulting parties cannot reach agreement on any matter for the purposes of subsection (2) they may refer the matter to the Commissioner, who is to attempt to resolve it to the satisfaction of the consulting parties.
(4) If the Commissioner is unable to resolve the matter, the Commissioner is to refer it to the Tribunal for determination.
(5) If subsection (4) applies, references in this Division to a scheme under this section are references to a scheme consisting of the provisions of —
(a) an agreement under subsection (2); and
(b) the determination of the Tribunal under subsection (4).
[Section 30A inserted by No. 51 of 2004 s. 42.]
30B. What may be included in a scheme
(1) In this section —
“contractor” and “principal” have the meanings given to those terms in section 23D(1).
(2) A scheme under section 30A (a “scheme”) may include provision for the election of one or more safety and health representatives for —
(a) one or more workplaces in addition to the workplace referred to in section 30A(2); or
(b) any group of employees of the employer concerned that constitutes a distinct unit of the employer’s workforce,
or may make provision for both of those matters, as the case may require.
(3) A scheme may despite any provision of this Part —
(a) provide for —
(i) a contractor; and
(ii) any person employed by a contractor,
to be treated, for the purposes of this Part, as employees of the principal that engages the contractor; and
(b) provide for the principal that engages a contractor to be treated, for the purposes of this Part, as the employer of —
(i) the contractor; and
(ii) any person employed by the contractor.
(4) A scheme may make provision for —
(a) the scheme to apply to any subsequent election of a safety and health representative; and
(b) the manner in which an amendment may be made to the scheme after it has been determined.
[Section 30B inserted by No. 51 of 2004 s. 42.]
30C. Appointment of further delegates may be required
(1) In this section —
“additional employees” means employees who have not been invited to appoint a delegate or delegates under section 30(1) or (2) because that subsection has not become applicable to the workplace at which they work.
(2) A scheme under section 30A cannot make provision of the kind mentioned in section 30B(2) that will affect additional employees unless subsection (3) of this section is complied with.
(3) If it is proposed that such provision be made the employer must invite any additional employees at a workplace to appoint a delegate or delegates in accordance with subsection (4).
(4) Additional employees who work at a workplace may, upon being invited under subsection (3) to do so, appoint a delegate or delegates from amongst their number to represent them for the purposes of making an agreement under section 30A(2).
[Section 30C inserted by No. 51 of 2004 s. 42.]
31. Election of safety and health representatives
(1) In this section —
“election” means an election required for the purpose of electing a safety and health representative following —
(a) the giving of a notice under section 29 in relation to a workplace; or
(b) a decision of an employer under section 30(2);
“relevant employee”, in relation to an election, means —
(a) an employee who works at the workplace to which the election relates; or
(b) if a scheme has been established under section 30A for the election, an employee who —
(i) works at a workplace; or
(ii) is a member of a group of employees,
to which the scheme applies.
[(2)-(5) repealed]
(6) Subject to this section, an election shall be conducted and safety and health representatives shall be elected in accordance with —
(a) any determination under section 30; and
(b) if applicable, a scheme established under section 30A.
(6a) If there is any inconsistency between a determination under section 30 and a scheme established under section 30A, the latter prevails.
(7) An election shall be by secret ballot.
(8) Every relevant employee is entitled to vote at an election.
(8a) Only a relevant employee is eligible to be elected as a safety and health representative at an election.
(9) If, after the relevant steps provided for by or under this Division have been taken, only one eligible candidate is nominated for election to an office of safety and health representative —
(a) a ballot need not to be held; and
(b) that candidate shall be deemed to have been duly elected.
(10) The person conducting an election shall notify the Commissioner and the employer concerned of the results of the election.
(11) Where a question relating to an election arises, the matter may be referred by any person interested in the question to the Commissioner who shall, if he or she is unable to resolve the matter to the satisfaction of the persons concerned, refer the matter to the Tribunal for determination.
[Section 31 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 24 and 47; No. 51 of 2004 s. 43, 69(1) and 102(1).]
32. Terms of office
(1) A person who is elected as a safety and health representative holds office, subject to this Act, for a term of 2 years.
(2) A person ceases to hold office as a safety and health representative if —
(a) the person’s term of office expires and the person is not re‑elected;
(b) the person ceases to be an employee who works at a workplace for which the person was elected;
(ba) if the person was elected for a group of employees pursuant to a scheme under section 30A, the person ceases to be an employee who belongs to that group of employees;
(c) the person resigns from office by notice given to the employer;
(d) he or she is disqualified under section 34.
[Section 32 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 47; No. 51 of 2004 s. 45, 86 and 102(1).]
33. Functions of safety and health representatives
(1) The functions of a safety and health representative are, in the interests of safety and health at the workplace for which he or she was elected —
(a) to inspect that workplace or any part of it —
(i) at such times as are agreed with the employer; or
(ii) where he or she has not inspected the workplace, or that part of it, in the preceding 30 days, at any time upon giving reasonable notice to the employer;
(b) immediately, in the event of an accident, a dangerous occurrence, or a risk of imminent and serious injury to, or imminent and serious harm to the health of, any person, to carry out any appropriate investigation in respect of the matter;
(c) to keep himself or herself informed as to the safety and health information provided by his or her employer in accordance with this Act and liaise as necessary with the department and other Government and private bodies;
(d) forthwith to report to the employer any hazard or potential hazard to which any person is, or might be, exposed at the workplace that comes to his or her notice;
(e) where there is a safety and health committee for the workplace, to refer to it any matters that he or she thinks should be considered by the committee;
(f) to consult and cooperate with his or her employer on all matters relating to the safety or health of persons in the workplace;
(g) liaise with the employees regarding matters concerning the safety or health of persons in the workplace.
(2) A safety and health representative for a workplace has such powers as are necessary for the carrying out of the safety and health representative’s functions under this Part and in particular, but without limiting the generality of this provision may, where requested to do so by an inspector, accompany an inspector while the inspector is carrying out, at the workplace, any of the inspector’s functions under this Act.
(3) A safety and health representative incurs no civil liability arising from his or her performance of, or his or her failure to perform, any function of a safety and health representative under this Act.
(4) If a scheme has been established under section 30A, the references in this section to “the workplace”, “that workplace” and “a workplace” include —
(a) if the scheme applies to more than one workplace, each workplace to which the scheme applies; and
(b) if under the scheme a safety and health representative is elected for a group of employees, each workplace or part of a workplace at which any member of the group works.
[Section 33 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 25 and 47; No. 51 of 2004 s. 46, 87, 102(1) and (2).]
34. Disqualification of safety and health representatives
(1) A party mentioned in subsection (2) may refer to the Tribunal the question of whether a safety and health representative should be disqualified on the grounds that —
(a) he or she has done anything under this Act with the intention only of causing harm to the representative’s employer or a commercial or business undertaking of the employer;
(b) he or she has used or disclosed any information acquired from the representative’s employer in his or her capacity as a safety and health representative for a purpose that is not connected with the performance of his or her functions under this Act with the intention of causing harm to the employer or a commercial or business undertaking of the employer; or
(c) he or she has failed adequately to perform his or her functions under this Act,
or on any number of those grounds.
(2) A reference under subsection (1) relating to the disqualification of a safety and health representative may be made by —
(a) his or her employer;
(b) a relevant employee; or
(c) the Commissioner.
(3) If, upon a reference under subsection (1), the Tribunal is satisfied that grounds for the disqualification of the safety and health representative exist, the Tribunal may disqualify him or her for a specified period, or permanently, from holding office as a safety and health representative.
(4) In determining what disqualification, if any, should be imposed under subsection (3), the Tribunal shall take into account —
(a) the harm, if any, caused to the employer or a commercial or business undertaking of the employer;
(b) the past record of the safety and health representative in performing his or her functions under this Act; and
(c) whether the safety and health representative acted contrary to the public interest,
and may take into account any other matters that the Tribunal considers relevant.
(5) In subsection (2)(b) —
“relevant employee” means —
(a) an employee who works at the workplace concerned;
(b) if the safety and health representative was elected for more than one workplace pursuant to a scheme established under section 30A, an employee who works at any such workplace; or
(c) if under a scheme referred to in paragraph (b) the safety and health representative was elected for a group of employees, an employee who is a member of the group.
[Section 34 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 26 and 47; No. 51 of 2004 s. 47, 69(1), (2), 88 and 102.]
35. Certain duties of employers in relation to safety and health representatives
(1) Where there is any safety and health representative for a workplace the employer shall —
(a) subject to subsection (2), make available to each safety and health representative such information as the employer has, or could reasonably be expected to have, relating to —
(i) hazards to persons that arise or may arise at the workplace;
(ii) so far as it is relevant to the hazards mentioned in subparagraph (i), the plant and substances used at the workplace and the systems of work at the workplace; and
(iii) the safety and health of employees who work at the workplace;
(b) where an employee so requests, permit a safety and health representative to be present at any interview concerning occupational safety or health between the employer or the employer’s representative and the employee;
(c) consult with safety and health representatives on intended changes to the workplace or the plant or substances used at the workplace where those changes may reasonably be expected to affect the safety or health of employees at the workplace;
(d) ensure that a safety and health representative receives any entitlement that becomes due to him or her under subsection (1b) or (3);
[(e) deleted]
(f) where any accident or dangerous occurrence takes place in a workplace where employees who are represented by a safety and health representative work, ensure that the safety and health representative is notified thereof forthwith; and
(g) provide safety and health representatives with such facilities and assistance as are necessary or prescribed for the purposes of the performance by them of their functions under this Part.
(1a) If, pursuant to a scheme under section 30A, a safety and health representative has been elected for a group of employees, the references in subsection (1) to “a workplace” and “the workplace” include any workplace at which any member of the group works.
(1b) Where a safety and health representative attends a course of training —
(a) for which, under subsection (3), the representative is entitled to take time off work; and
(b) that is prescribed for the purposes of this paragraph,
the employer is liable to pay, to the extent that is prescribed —
(c) the tuition fee for the course; and
(d) other costs incurred by the representative in connection with attendance at the course.
(2) An employer —
(a) shall not make available to a safety and health representative any medical information concerning an employee unless —
(i) the employee has consented to the employer doing so; or
(ii) it is in a form that does not identify, nor permit the identification of, the employee;
and
(b) is not required by subsection (1)(a) to make available information disclosing a trade secret.
(3) The regulations may prescribe the entitlements of a safety and health representative for the purposes of —
(a) performing his or her functions under this Act; and
(b) his or her attendance at courses of training accredited under section 14(1)(h),
but the entitlements for those purposes may be varied, in a way not less favourable to the safety and health representative than that prescribed in the regulations, by agreement with the employer concerned or by a determination made by the Tribunal upon a reference made to the Tribunal under this subsection by the employer, the safety and health representative, or the Commissioner.
(3a) In subsection (3) —
“entitlements” means —
(a) the time that a safety and health representative is to be permitted to take off work with pay; and
(b) payments to which a safety and health representative is entitled for attendance at a course of training in his or her own time.
(4) If an employer contravenes subsection (1) or (2), the employer commits an offence.
[Section 35 inserted by No. 43 of 1987 s. 13; amended by No. 30 of 1995 s. 27 and 47; No. 51 of 2004 s. 48, 69(1) and (2), 89 and 102(2).]
35A. Discrimination against safety and health representative in relation to employment
(1) An employer or a prospective employer must not cause disadvantage to a person for the dominant or substantial reason that the person —
(a) is or was a safety and health representative; or
(b) is performing or has performed any function as a safety and health representative.
(2) For the purposes of subsection (1) an employer causes disadvantage to a person if the employer —
(a) dismisses the person from employment;
(b) demotes the person or fails to give the person a promotion that the person could reasonably have expected;
(c) detrimentally alters the person’s employment position; or
(d) detrimentally alters the person’s pay or other terms and conditions of employment.
(3) For the purposes of subsection (1) a prospective employer causes disadvantage to a person if the prospective employer refuses to employ the person.
(4) An employer or prospective employer that contravenes subsection (1) commits an offence.
[Section 35A inserted by No. 51 of 2004 s. 49.]
35B. Discrimination against safety and health representative in relation to contract for services
(1) In this section —
“contractor” and “principal” have the meanings given to those terms in section 23D(1).
(2) Where a scheme under section 30A makes provision of the kind described in section 30B(3), a principal must not —
(a) terminate the engagement of a contractor; or
(b) subject a contractor to any other detriment,
for the dominant or substantial reason that the contractor or a person employed by the contractor —
(c) is or was a safety and health representative; or
(d) is performing or has performed any function as a safety and health representative.
(3) A principal that contravenes subsection (2) commits an offence.
[Section 35B inserted by No. 51 of 2004 s. 49.]
35C. Claim may be referred to the Tribunal
(1) A person may —
(a) refer to the Tribunal —
(i) a claim that the person’s employer or a prospective employer has caused disadvantage to the person in contravention of section 35A; or
(ii) in the case of a contractor referred to in section 35B, a claim that the principal has contravened that section;
and
(b) request the Tribunal to make one or more of the orders provided for by section 35D.
(2) Subsection (1) applies whether or not —
(a) the employer or prospective employer has been convicted of an offence under section 35A(4); or
(b) the principal has been convicted of an offence under section 35B(3).
(3) A referral under subsection (1) may also be made on a person’s behalf by an agent or legal practitioner referred to in section 31 of the Industrial Relations Act 1979.
(4) Section 80E(1) of the Industrial Relations Act 1979 does not apply to a claim under subsection (1) by a Government officer within the meaning of that section.
[Section 35C inserted by No. 51 of 2004 s. 49.]
35D. Remedies that may be granted
(1) If, on the hearing of a claim under section 35C(1)(a)(i), the Tribunal is satisfied that an employer or a prospective employer has contravened section 35A, the Tribunal may —
(a) in the case of an employer, order the employer —
(i) to reinstate the claimant if the claimant was dismissed from employment;
(ii) to pay to the claimant such sum of money as the Tribunal considers adequate as compensation for loss of employment or loss of earnings; or
(iii) both to reinstate the claimant and to pay the claimant the sum of money referred to in subparagraph (ii),
as the Tribunal thinks fit; or
(b) in the case of a prospective employer, order that person to pay the claimant such sum of money as the Tribunal thinks fit.
(2) If, on the hearing of a claim under section 35C(1)(a)(ii), the Tribunal is satisfied that a principal has contravened section 35B, the Tribunal may order the principal to pay the claimant such sum of money as the Tribunal thinks fit.
(3) In determining a claim under section 35C(1)(a)(i) the Tribunal may make any order of the kind mentioned in section 23A(3), (4) and (5)(a) of the Industrial Relations Act 1979 as if the claim were a claim to which section 23A of that Act applies.
(4) In the determination of the amount of compensation for any loss of employment, loss of earnings or detriment —
(a) the Tribunal is to have regard to any redress the claimant has obtained under another enactment; and
(b) the claimant is not entitled to compensation both under this section and otherwise for the same loss of employment, loss of earnings or detriment.
[Section 35D inserted by No. 51 of 2004 s. 49.]
Division 2 — Safety and health committees
[Heading inserted by No. 51 of 2004 s. 50.]
36. Interpretation
(1) In this Division —
“allowed period” means —
(a) 3 months; or
(b) such longer period as the Commissioner may allow on application by a consultation party;
“consultation party” means a person that comes within section 39C(2)(a), (b) or (c);
“prescribed requirements” means —
(a) the provisions of —
(i) an agreement under section 39C(2); and
(ii) section 39C(3);
(b) the terms of a determination of —
(i) the Commissioner, under section 39D; or
(ii) the Tribunal, under section 39G,
in respect of the workplace concerned or, if any agreement under section 39E applies, any workplace concerned; and
(c) any requirement of the regulations.
(2) In this Division references to a “safety and health representative for the workplace” or a “safety and health representative for a workplace” include a safety and health representative elected for a group of employees pursuant to a scheme under section 30A if any member of the group works at the workplace concerned.
[Section 36 inserted by No. 51 of 2004 s. 50.]
37. Employees to appoint representatives
Whenever required for the purpose of making an agreement under section 39C(2) or 39E(1) in respect of a workplace, the employees who work at the workplace are to appoint, from amongst their number, one or more employees —
(a) to represent them for that purpose; or
(b) as may be required, to replace any employee previously appointed under this section.
[Section 37 inserted by No. 51 of 2004 s. 50.]
38. Obligation of employer to establish a safety and health committee
(1) An employer must, in accordance with the prescribed requirements, establish a safety and health committee for a workplace within the allowed period after —
(a) the coming into operation of a regulation requiring the employer to do so;
(b) service on the employer of a notice by the Commissioner requiring the employer to do so; or
(c) being requested under section 39(1) to do so,
unless, in the case mentioned in paragraph (c), the Commissioner has decided under section 39A that a safety and health committee is not required to be established for the workplace concerned.
(2) If an employer contravenes subsection (1), the employer commits an offence.
[Section 38 inserted by No. 51 of 2004 s. 50.]
39. Request for establishment of safety and health committee
(1) An employee who works at a workplace may request the employer to establish a safety and health committee for the workplace.
(2) If a request is made under subsection (1), the employer must within 21 days after the request is received either —
(a) notify —
(i) the employee who made the request; and
(ii) any safety and health representative for the workplace,
that the employer agrees to the request; or
(b) under section 39A, refer to the Commissioner the question whether a safety and health committee should be established for the workplace.
(3) If an employer contravenes subsection (2), the employer commits an offence.
[Section 39 inserted by No. 51 of 2004 s. 50.]
39A. Referral of question to Commissioner
(1) If —
(a) a request has been made to an employer under section 39(1) in respect of a workplace; and
(b) the employer considers that the circumstances of the case are such that the employer should not be required to establish a safety and health committee for the workplace,
the employer may refer to the Commissioner the question of whether a safety and health committee should be so established.
(2) The employer must give notice of a referral under this section to —
(a) the employee concerned; and
(b) any safety and health representative for the workplace.
(3) The Commissioner is to —
(a) decide a question referred to the Commissioner under subsection (1); and
(b) notify the employer and the employee concerned of the decision.
[Section 39A inserted by No. 51 of 2004 s. 50.]
39B. Employer may establish a safety and health committee
An employer may, on the employer’s own initiative and in accordance with the prescribed requirements, establish a safety and health committee for a workplace if —
(a) a regulation referred to in section 38(1)(a) has not come into operation;
(b) a notice referred to in section 38(1)(b) has not been served on the employer; or
(c) a request has not been made under section 39(1),
in respect of the workplace.
[Section 39B inserted by No. 51 of 2004 s. 50.]
39C. How safety and health committee to be constituted
(1) In this section —
“workplace”, where an agreement under section 39E applies, includes 2 or more workplaces.
(2) Subject to subsection (3), the composition, and the manner in which persons become members, of a safety and health committee for a workplace are to be determined by agreement in writing between —
(a) the employer;
(b) any safety and health representative for the workplace; and
(c) the employees appointed under section 37 in respect of the workplace.
(3) At least one half of the members of a safety and health committee for a workplace must be persons each of whom is —
(a) a safety and health representative for the workplace; or
(b) an employee who works at the workplace and holds office as a member representing other employees.
[Section 39C inserted by No. 51 of 2004 s. 50.]
39D. Commissioner may make determination in certain cases
(1) This section applies if —
(a) a consultation party considers that discussions for the purpose of making an agreement under section 39C —
(i) cannot commence or continue because there are no employees appointed under section 37 in respect of the workplace concerned;
(ii) have not been commenced or continued in good faith by any party;
(iii) are being unreasonably delayed; or
(iv) have broken down;
or
(b) the employer concerned considers that for some other reason it is unlikely that the employer will be able to comply with section 38(1) within the allowed period under that section.
(2) The employer or other consultation party may refer to the Commissioner for determination —
(a) the matters that are required to be settled by agreement under section 39C; or
(b) any particular matter mentioned in paragraph (a) on which the parties cannot agree.
(3) On such a referral, the Commissioner is to —
(a) make any necessary determination; and
(b) notify the employer or other party concerned of the determination.
[Section 39D inserted by No. 51 of 2004 s. 50.]
39E. Functions of committee may cover more than one workplace
(1) If —
(a) an employer —
(i) is under an obligation by operation of section 38(1); or
(ii) wishes to take action for the purposes of section 39B,
in respect of more than one workplace of the employer; and
(b) a safety and health committee has not been established for one or more of those workplaces,
the parties concerned may agree in writing that one safety and health committee is to be established to exercise functions in relation to each of the workplaces to which paragraph (b) applies.
(2) For the purposes of subsection (1) the parties concerned are —
(a) the employer;