Work Health and Safety Act 2011

Division 2.1.2 Constitution and meetings 212 2.3 Membership 212 2.3A Meaning of appointed member—div 2.1.2 212

Page contents 15 2.4 Terms of appointment 213 2.5 Chair and deputy chair 213 2.6 Leave 213 2.7 Disclosure of interest 214 2.8 Reporting of disclosed council interests to Minister 215 2.9 Ending appointment of council member 216 2.10 Calling meetings 217 2.11 Presiding member at council meetings 218 2.12 Quorum at council meetings 218 2.13 Voting at council meetings 218 2.14 Conduct of council meetings etc 218 2.15 Protection of council members from liability 219 Division 2.1.3 Advisory committees 219 2.16 Establishment 219 Part 2.2 Office of the Work Health and Safety Commissioner 220 Division 2.2.1 Preliminary 220 2.17 Definitions—pt 2.2 220 Division 2.2.2 Establishment and functions of office 220 2.18 Establishment of office 220 2.19 Constitution of office 220 2.20 Functions of office 220 Division 2.2.3 Work health and safety commissioner 221 2.21 Appointment of WHS commissioner 221 2.22 Functions of WHS commissioner 222 2.23 Independence of WHS commissioner and Ministerial directions 223 2.24 Duty of good conduct 223 2.25 Disclosure of interests 224 2.26 Outside employment 224 2.27 Ending appointment—generally 225 2.28 Ending appointment—council no-confidence resolution 225 2.29 Leave of absence 226 Division 2.2.4 Office—staff 226 2.30 Meaning of staff of the office—pt 2.2 226

Page contents 16 Work Health and Safety Act 2011 2.31 Appointment of deputy WHS commissioner 227 2.32 Employment of staff 227 2.33 Engagement of consultants and contractors 227 2.34 Independence of staff of the office 228 2.35 Delegation of functions 228 2.36 Other arrangements for staff and facilities 228 Division 2.2.5 Office—policy and reporting framework 229 2.37 Compliance and enforcement policy 229 2.38 Strategic plan 230 2.39 Ministerial statement of expectations 231 2.40 Statement of operational intent 232 2.41 Annual report 232 Schedule 3 Regulation-making powers 234 1 Duties 234 2 Incidents 234 3 Plant, substances or structures 235 4 Protection and welfare of workers 235 5 Hazards and risks 235 6 Records and notices 236 7 Authorisations 236 8 Work groups 237 9 Health and safety committees and health and safety representatives 237 10 Issue resolution 237 11 WHS entry permits 237 12 Identity cards 238 13 Forfeiture 238 14 Review of decisions 238 Schedule 4 Penalty amounts 239 4.1 Monetary penalties—categories 1 to 3 239 4.1A Monetary penalties—industrial manslaughter 240 4.2 Monetary penalties—tiers A to I 241

Page contents 17 4.3 Monetary penalties—WHS civil penalty tiers 1 to 4 243 4.4 Indexation of penalty amounts 245 4.5 Rounding of maximum penalty amounts 245 4.6 Notification of adjusted maximum penalty amounts 246 Dictionary 247 1 About the endnotes 256 2 Abbreviation key 256 3 Legislation history 257 4 Amendment history 262 5 Earlier republications 276 6 Expired transitional or validating provisions 279

An Act about work health and safety, and for other purposes

1 Name of Act This Act is the Work Health and Safety Act 2011. Division 1.2 Object 3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by— (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant; and (b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and (d) promoting the provision of advice, information, education and training in relation to work health and safety; and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

Object Division 1.2 (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in the ACT. (2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.

Subdivision 1.3.1 Definitions

4 Definitions The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘employee record, in relation to an employee—see the Privacy Act 1988 (Cwlth), section 6 (1).’ means that the term ‘employee record’ is defined in that section and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)). Subdivision 1.3.2 Other important terms

5 Meaning of person conducting a business or undertaking (1) For the purposes of this Act, a person conducts a business or undertaking— (a) whether the person conducts the business or undertaking alone or with others; and (b) whether or not the business or undertaking is conducted for profit or gain. (2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

Interpretation Division 1.3 (3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership. (4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that (5) A regulation may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. (6) A volunteer association does not conduct a business or undertaking for the purposes of this Act. (7) In this section: volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

6 Meaning of supply (1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent. (2) A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied. (3) A supply of a thing does not include— (a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or (b) a prescribed supply.

(4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if— (a) the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and (b) the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer. (5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier’s customer.

7 Meaning of worker (1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as— (a) an employee; or (b) a contractor or subcontractor; or (c) an employee of a contractor or subcontractor; or (d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or (e) an outworker; or (f) an apprentice or trainee; or (g) a student gaining work experience; or

Interpretation Division 1.3 (h) a volunteer; or (i) a person of a prescribed class. Note Power to make a regulation includes power to make different provision for different classes (see Legislation Act, s 48). (2) For the purposes of this Act, a police officer is— (a) a worker; and (b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise. (3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or

8 Meaning of workplace (1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. (2) In this section: place includes— (a) a vehicle, vessel, aircraft or other mobile structure; and (b) any waters and any installation on land, on the bed of any waters or floating on any waters.

9 Examples and notes (1) An example at the foot of a provision forms part of this Act. Note The Legislation Act, s 126 and s 132, deals with examples. (2) A note at the foot of a provision forms part of this Act. (3) Subsection (2) displaces the Legislation Act 2001, section 127 (Material that is not part of Act or statutory instrument).

10 Act binds the Crown (1) This Act binds the Crown in right of the Territory and, in so far as the legislative power of the Legislative Assembly permits, the Crown in all its other capacities. (2) The Territory is liable for an offence against this Act. (3) Without limiting subsection (1), the Territory is liable for a contravention of a WHS civil penalty provision.

11 Extraterritorial application The Criminal Code 2002, part 2.7 (Geographical application) extends the application of a territory law that creates an offence beyond the territorial limits of the ACT (and Australia) if the required geographical nexus exists for the offence.

Application of Act Division 1.4

12 Scope (1) The duties under this Act in relation to hazardous chemicals are in addition to duties in relation to them under any other law in force in the ACT. Note 1 A reference to an Act includes a reference to statutory instruments made or in force under the Act, including any regulation and any law or instrument applied, adopted or incorporated by the Act (see Legislation Note 2 Other legislation in force in the ACT relating to hazardous chemicals includes the following: • Dangerous Goods (Road Transport) Act 2009 • Emergencies Act 2004 • Environment Protection Act 1997 • Medicines, Poisons and Therapeutic Goods Act 2008. Note 3 See the Emergencies Act 2004 for provisions relating to hazardous materials incidents (which may include dangerous occurrences). Note 4 See the Dangerous Goods (Road Transport) Act 2009 for the transport by road of certain hazardous chemicals that are classified as dangerous goods under that Act. (2) A duty or power under another territory law in relation to a work health and safety matter has no effect to the extent that it is inconsistent with a duty under this Act in relation to the same matter. (3) However, a duty or power under another territory law in relation to a work health and safety matter must not be taken to be inconsistent with a duty under this Act to the extent that they can operate concurrently. hazardous chemical—see the Work Health and Safety Regulation 2011, dictionary.

12AA Application of Act to dangerous goods and high risk plant—sch 1

Schedule 1 provides for the application of this Act to dangerous goods and high risk plant.

12A Offences are offences of strict liability Strict liability applies to each physical element of each offence under this Act unless otherwise stated in the section containing the offence.

12B Offences against Act—application of Criminal Code etc (1) Other legislation applies in relation to offences against this Act. Note Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). (2) However, the Criminal Code, part 2.5 (Corporate criminal responsibility) does not apply to an offence against this Act. Note For this Act, corporate criminal responsibility is dealt with by div 13.4.

Introductory Division 2.1

Subdivision 2.1.1 Principles that apply to duties

13 Principles that apply to duties This subdivision sets out the principles that apply to all duties that persons have under this Act. Note 1 The principles will apply to duties under this part and other parts of this Act such as duties relating to incident notification and consultation. Note 2 A reference to an Act includes a reference to statutory instruments made

14 Duties not transferrable A duty cannot be transferred to another person.

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

16 More than 1 person can have a duty (1) More than 1 person can concurrently have the same duty. (2) Each duty-holder must comply with that duty to the standard required by this Act even if another duty-holder has the same duty.

(3) If more than 1 person has a duty for the same matter, each person— (a) retains responsibility for the person’s duty in relation to the (b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

17 Management of risks A duty imposed on a person to ensure health and safety requires the (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably Subdivision 2.1.2 What is reasonably practicable

18 What is reasonably practicable in ensuring health and safety reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including— (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and

Primary duty of care Division 2.2 (c) what the person concerned knows, or ought reasonably to know, about— (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk—the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of— (a) workers engaged, or caused to be engaged, by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable— (a) the provision and maintenance of a work environment without risks to health and safety; and

(b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work; and (d) the safe use, handling, storage and transport of plant, structures and substances; and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) If: (a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or (b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. (5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. Note A self-employed person is also a person conducting a business or undertaking for the purposes of this section.

Division 2.3 Further duties of persons conducting businesses or undertakings

20 Duty of persons conducting businesses or undertakings involving management or control of workplaces (1) In this section: person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include— (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or (b) a prescribed person. (2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.

21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces (1) In this section: person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include— (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or

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

22 Duties of persons conducting businesses or undertakings that design plant, substances or structures (1) This section applies to a person (the designer) who conducts a business or undertaking that designs— (2) The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons— purpose for which it was designed; or

(i) the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, (ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance; or (iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition (3) The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning— designed; and

purpose for which it was designed or when carrying out any activity referred to in subsection (2) (a) to (e). (5) The designer, on request, must, so far as is reasonably practicable,

23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures (1) This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures— (2) The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons— purpose for which it was designed or manufactured; or

(3) The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning—

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

24 Duties of persons conducting businesses or undertakings that import plant, substances or structures (1) This section applies to a person (the importer) who conducts a business or undertaking that imports— (2) The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons— purpose for which it was designed or manufactured; or

(3) The importer must— (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning—

(5) The importer, on request, must, so far as is reasonably practicable,

25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures (1) This section applies to a person (the supplier) who conducts a business or undertaking that supplies— (2) The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons— (a) who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured; or

(3) The supplier must— (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning—

(5) The supplier, on request, must, so far as is reasonably practicable,

26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures (1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons— (a) who install or construct the plant or structure at a workplace; or (b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or (c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or

Duty of officers, workers and other persons Division 2.4 (d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c). Division 2.4 Duty of officers, workers and other persons

27 Duty of officers (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. Note 1 Officer—see the dictionary. Note 2 Person includes a corporation, an unincorporated association and a partnership (see dictionary and Legislation Act, s 160). Note 3 A reference to an Act includes a reference to statutory instruments made (2) Subject to subsection (3), the maximum penalty applicable under division 2.5 (Offences and penalties) or division 2.6 (Industrial manslaughter) for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

Division 2.4 Duty of officers, workers and other persons (3) Despite anything to the contrary in section 33 (Failure to comply with health and safety duty—category 3), if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of division 2.2 (Primary duty of care), division 2.3 (Further duties of persons conducting businesses or undertakings) or this division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section: due diligence includes taking reasonable steps— (a) to acquire and keep up-to-date knowledge of work health and safety matters; and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and

Duty of officers, workers and other persons Division 2.4 (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and (f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e). Examples—par (e) The duties or obligations under this Act of a person conducting a business or undertaking may include: • reporting notifiable incidents • consulting with workers • ensuring compliance with notices issued under this Act • ensuring the provision of training and instruction to workers about work health and safety • ensuring that health and safety representatives receive their entitlements to training

28 Duties of workers While at work, a worker must— (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and

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

29 Duties of other persons at the workplace A person at a workplace (whether or not the person has another duty under this part) must— (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

30 Health and safety duty health and safety duty means a duty imposed under— (c) division 2.4 (Duty of officers, workers and other persons).

Offences and penalties Division 2.5

31 Negligence or reckless conduct—category 1 (1) A person commits a category 1 offence if— (b) the person, without reasonable excuse, engages in conduct that— (i) exposes an individual to whom the duty is owed to a risk of death or serious injury or illness; or (ii) if the person is an officer of a person conducting a business or undertaking—exposes an individual, to whom the person conducting a business or undertaking owes a health and safety duty, to a risk of death or serious injury or illness; and (c) the person— (i) engages in the conduct with negligence; or (ii) is reckless as to the risk to an individual of death or serious injury or illness. (a) for an individual—category 1 monetary penalty or imprisonment for 10 years or both; or (b) for a body corporate—category 1 monetary penalty. Note Strict liability applies to s (1) (a) (see s 12A). (2) The prosecution has the burden of proving that the conduct was engaged in without reasonable excuse. (3) A category 1 offence is declared to be an indictable offence. Note An indictable offence is an offence punishable by imprisonment for longer than 2 years or an offence declared by an ACT law to be an indictable offence (see Legislation Act, s 190 (1)).

32 Failure to comply with health and safety duty—category 2 A person commits a category 2 offence if— (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. Maximum penalty: category 2 monetary penalty.

33 Failure to comply with health and safety duty—category 3 A person commits a category 3 offence if— (b) the person fails to comply with that duty. Maximum penalty: category 3 monetary penalty.

34 Exceptions (1) A volunteer does not commit an offence under this division for a failure to comply with a health and safety duty, except a duty under section 28 (Duties of workers) or section 29 (Duties of other persons at the workplace). (2) An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act. or in force under the Act, including regulations and any law or instrument

Industrial manslaughter Division 2.6 (3) However— (a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27 (Duties of officers); and (b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.

34A Industrial manslaughter (1) A person commits an offence if— (a) the person conducts a business or undertaking, or is an officer of a person who conducts a business or undertaking; and (b) the person has a health and safety duty; and (c) the person engages in conduct; and (d) the conduct results in a breach of the health and safety duty; and (e) the conduct causes— (i) the death of a worker; or (ii) an injury to a worker and the injury later causes the death of the worker; or (iii) the death of another person; and

(f) the person is reckless or negligent about causing the death of the worker or other person by the conduct. (a) for an individual—imprisonment for 20 years; or (b) for a body corporate—industrial manslaughter monetary penalty. Note See s 244 and s 245 for imputing conduct to a body corporate or the Territory. (2) Strict liability only applies to subsection (1) (a) and (b). Note Subsection (2) displaces s 12A which states that strict liability applies to each physical element of each offence under this Act unless otherwise stated in the section containing the offence. (3) An offence against this section is declared to be an indictable offence. Note An indictable offence is an offence punishable by imprisonment for longer than 2 years or an offence declared by an ACT law to be an indictable offence (see Legislation Act, s 190 (1)). causes death—a person’s conduct causes death if the conduct substantially contributes to the death. health and safety duty means a duty imposed under— (c) section 27 (Duty of officers).

Industrial manslaughter Division 2.6

34B Alternative verdict for industrial manslaughter (1) This section applies if, in a prosecution for an industrial manslaughter offence, the trier of fact— (a) is not satisfied beyond reasonable doubt that the defendant committed an industrial manslaughter offence; and (b) is satisfied beyond reasonable doubt that the defendant committed an alternative offence. (2) The trier of fact may find the defendant guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to that finding of guilt. alternative offence, for an industrial manslaughter offence, means a category 1 offence or a category 2 offence.

35 What is a notifiable incident notifiable incident means any of the following arising out of the conduct of a business or undertaking: (a) the death of a person; (b) a serious injury or illness of a person; (c) a dangerous incident; (d) a sexual assault incident.

36 What is a serious injury or illness—pt 3 (1) In this part: serious injury or illness, in relation to a person, means— (a) an injury or illness that would ordinarily require the person to have immediate treatment as an in-patient of a hospital, whether or not treatment is available or sought; or (b) any of the following injuries or illnesses if a person would ordinarily seek immediate treatment, whether or not treatment is available or sought: (i) the amputation of a body part; (ii) a serious eye injury; (iii) a serious burn; (iv) the separation of skin from an underlying tissue, such as degloving or scalping; (v) a spinal injury, including a fracture of 1 or more vertebrae; (vi) a fracture of the pelvis, the skull or other facial bones;

(vii) another serious bone fracture; (viii) a serious crush injury; (ix) the loss of a bodily function; (x) serious lacerations; or (c) a serious head injury or illness, including any head injury or illness resulting from— (i) a significant blow, knock or other shock to the person’s head, whether or not immediate treatment is sought; or (ii) repeated blows, knocks or shocks to the person’s head; or (d) an injury or illness for which the person seeks treatment from a relevant registered health professional within 48 hours after exposure to a substance; or (e) an injury or illness prescribed by regulation. (2) A regulation may prescribe that an injury or illness is not a serious injury or illness for this part. relevant registered health professional means— (a) a doctor; or (b) an enrolled nurse; or (c) a nurse; or (d) a person registered under the Health Practitioner Regulation National Law (ACT) to practise in the paramedicine profession (other than as a student).

37 What is a dangerous incident—pt 3 (1) In this part: dangerous incident means any of the following incidents, in relation to a workplace, that immediately or imminently exposes a person to a serious risk to the person’s health and safety: (a) an uncontrolled escape, spillage or leakage of a substance; (b) an uncontrolled fire, implosion or explosion, including an electrical explosion or an arc flash explosion; (c) an uncontrolled escape of gas or steam; (d) an uncontrolled escape of a pressurised substance; (e) an electric shock; (f) the fall or release from a height of a thing; (g) the collapse, overturning, failure or malfunction of, or damage to, plant that is required to be authorised for use in accordance with a regulation; (h) a mobile plant incident; (i) the collapse or partial collapse of a structure; (j) the collapse or failure of an excavation or of any shoring supporting an excavation; (k) the inrush of water, mud or gas in workings, in an underground excavation or tunnel; (l) the interruption of the main system of ventilation in an underground excavation or tunnel; (m) a serious fall; (n) another incident prescribed by regulation. (2) A regulation may prescribe that an incident is not a dangerous incident for this part.

mobile plant means plant designed to move or be moved, either autonomously or under the direct or remote control of an operator. mobile plant incident means an incident in which— (a) mobile plant overturns or partially overturns; or (b) mobile plant collides with a person or thing; or (c) a person is pinned to the ground or another thing by mobile plant; or (d) a person is ejected from mobile plant; or (e) mobile plant malfunctions; or (f) mobile plant that is ordinarily controlled directly or remotely by an operator moves while not under control. serious fall means a person falling, or the risk of a person falling— (a) from 1 level to a lower level; or (b) into a hole, trench, pit or void; or (c) into a body of water; or (d) onto a dangerous surface or object.

37A What is a sexual assault incident—pt 3 sexual assault incident means an incident (including a suspected incident) in relation to a workplace that exposes a worker or any other person at the workplace to sexual assault.

38 Duty to notify of notifiable incidents (1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident has occurred. (2) The notice must be given in accordance with this section and by the fastest possible means. (3) The notice must be given— (a) by telephone; or (b) in writing. Note The written notice can be given by fax or email, see the Legislation Act, pt 19.5. (4) A person giving notice by telephone must— (a) give the details of the incident requested by the regulator; and (b) if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made. (5) A written notice must be in a form, or contain the details, approved by the regulator. Note If a form is approved under s 277 for a written notice, the form must be used. (6) If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking— (a) details of the information received; or (b) an acknowledgment of receiving the notice.

(7) A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section. (8) Despite anything else in this section, if a notifiable incident for which notice is required to be given is reported in accordance with the Dangerous Substances Act 2004, the reporting under that Act is taken to be adequate notice of the incident for the purposes of this Act. (9) For a sexual assault incident, the person conducting the business or undertaking— (a) need only give the following details about the incident: (i) the name and contact details of the person conducting the business or undertaking; (ii) a description of the workplace where the incident happened; (iii) whether or not the incident was reported to police; and (b) must not give information disclosing the identity of any person involved in the incident when notifying the regulator.

39 Duty to preserve incident sites and evidence (1) The person with management or control of a workplace at which a notifiable incident has occurred must, so far as reasonably practicable, ensure— (a) the site where the incident occurred is preserved until released by an inspector; and

(b) evidence of the incident, including electronic and digital records and witness details, is preserved. (1A) To remove any doubt, an inspector may release the whole or any part of the site under subsection (1) (a). (2) In this section, a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident. (3) This section does not prevent any action— (a) to assist an injured person; or (b) to remove a deceased person; or (c) that is essential to make the site safe or to minimise the risk of a further notifiable incident; or (d) that is associated with a police investigation; or (e) for which an inspector or the regulator has given permission.

39A Person conducting business or undertaking and person with management or control of workplace to notify each other of notifiable incidents (1) A person with a duty under section 38 must, immediately after becoming aware of the notifiable incident activating the duty, ensure a person with a corresponding duty under section 39 is notified of the incident.

(2) A person with a duty under section 39 must, immediately after becoming aware of the notifiable incident activating the duty, ensure a person with a corresponding duty under section 38 is notified of the incident.

40 Meaning of authorised—pt 4 authorised means authorised by a licence, permit, registration or other authority (however described) as required by regulation.

41 Requirements for authorisation of workplaces A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if— (a) a regulation requires the workplace or workplaces in that class of workplace to be authorised; and (b) the workplace is not authorised in accordance with the

42 Requirements for authorisation of plant or substance (1) A person must not use plant or a substance at a workplace if— (a) a regulation requires the plant or substance or its design to be authorised; and (b) the plant or substance or its design is not authorised in accordance with the regulation.

Authorisations Part 4 allow a worker to use the plant or substance at a workplace if— (a) a regulation requires the plant or substance or its design to be authorised; and (b) the plant or substance or its design is not authorised in accordance with the regulation.

43 Requirements for authorisation of work (1) A person must not carry out work at a workplace if— by, or on behalf of, a person who is authorised; and (b) the person, or the person on whose behalf the work is carried out, is not authorised in accordance with the regulation. allow a worker to carry out work at a workplace if— by, or on behalf of, a person who is authorised; and (b) the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with the regulation.

44 Requirements for prescribed qualifications or experience (1) A person must not carry out work at a workplace if— by, or under the supervision of, a person who has prescribed qualifications or experience; and (b) the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience. allow a worker to carry out work at a workplace if— by, or under the supervision of, a person who has prescribed qualifications or experience; and (b) the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

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

Consultation, cooperation and coordination between duty-holders Division 5.1 Part 5 Consultation, representation and participation Division 5.1 Consultation, cooperation and coordination between duty-holders 46 Duty to consult with other duty-holders If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.

47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this division and the regulation, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. (2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.

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

48 Nature of consultation (1) Consultation under this division requires— (a) that relevant information about the matter is shared with workers; and (b) that workers be given a reasonable opportunity— (i) to express their views and to raise work health or safety issues in relation to the matter; and (ii) to contribute to the decision-making process relating to the (c) that the views of workers are taken into account by the person conducting the business or undertaking; and (d) that the workers consulted are advised of the outcome of the consultation in a timely manner. (2) If the workers are represented by a health and safety representative, the consultation must involve that representative.

49 When consultation is required Consultation under this division is required in relation to the following health and safety matters: (a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking; (b) when making decisions about ways to eliminate or minimise those risks; (c) when making decisions about the adequacy of facilities for the welfare of workers;

(d) when proposing changes that may affect the health or safety of workers; (e) when making decisions about the procedures for— (i) consulting with workers; or (ii) resolving work health or safety issues at the workplace; or (iii) monitoring the health of workers; or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or (v) providing information and training for workers; (f) when carrying out any other activity prescribed by regulation for the purposes of this section.

Subdivision 5.3.1A Definitions

49A Meaning of major construction project—pt 5 (1) For this part, a major construction project is a project involving construction work with a contract price that is more than— (a) $5 000 000; or (b) if a regulation prescribes another amount—the prescribed amount. (2) However, a major construction project does not include a project in which construction work involves only the construction of a single dwelling house. construction work—see the Work Health and Safety Regulation 2011, dictionary.

contract price, for a major construction project— (a) means the contract price agreed with the principal contractor before work starts on the project; but (b) does not include any variations to the contract price made during the project.

49B Meaning of principal contractor—pt 5 (1) In this part, a person conducting a business or undertaking that commissions a major construction project is, subject to this section, the principal contractor for the project. (2) If the person mentioned in subsection (1) engages another person conducting a business or undertaking as principal contractor for the major construction project and authorises the person to have management or control of the workplace and to discharge the duties of a principal contractor under this division, the person so engaged is the principal contractor for the project. (3) A construction project has only 1 principal contractor at any specific time. Note A person with management or control of a workplace must comply with s 20.

49C Meaning of eligible union—div 5.3 (1) In this division: eligible union, for a major construction project, means a registered employee association that is eligible to represent the industrial interests of 1 or more workers carrying out work in connection with the project. (2) In this section: registered employee association—see the Fair Work Act 2009 (Cwlth), section 12.

Subdivision 5.3.1 Request for election of health and safety

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

50A Consultation with eligible unions—major construction project (2) The principal contractor for the major construction project must, before work on the project commences, consult with each eligible union for the project about the following: by health and safety representatives on the major construction project; health and safety representatives (if any) to be elected; (c) anything else prescribed by regulation. (3) Subsection (2) does not apply if the regulator has, under section 50B, exempted the principal contractor from complying with this section.

(4) For the purposes of subsection (2), the principal contractor must give each eligible union written notice of the major construction project and the requirement to consult with the union about the matters mentioned in subsection (2). Note For how documents may be given, see the Legislation Act, pt 19.5. (5) The notice must include a statement that, if the eligible union wants to participate in the consultation, the union must respond, in writing, to the notice not later than 14 days after receiving the notice. (6) The principal contractor is taken to have consulted with an eligible union if— (a) the principal contractor gives the eligible union a notice under subsection (4); and (b) the union fails to respond to the notice within the time mentioned in subsection (5). (7) To remove any doubt, this section does not give an eligible union a right of entry to the workplace.

50B Exemption from certain requirements under this part (1) On application by the principal contractor for a major construction project, the regulator may, by written notice, exempt the principal contractor from complying with 1 or more of the following sections: (a) section 50A; (b) section 50C; (c) section 52 (2) (a) (Negotiations for agreement for work group); (d) section 72A (Obligation to train health and safety representatives—major construction project); (e) a regulation under section 75 (Health and safety committees) requiring the principal contractor to establish a health and safety committee;

(f) section 79A (Obligation to train health and safety committee members—major construction project). (2) The exemption is subject to the conditions stated in the notice of exemption. (3) The regulator may issue guidelines in relation to the matters that may be taken into account when deciding whether to exempt the principal contractor for a major construction project from complying with section 50A. (4) A guideline is a notifiable instrument.

50C Election of health and safety representatives—major construction project (2) The principal contractor for the major construction project must, when work starts at the project, facilitate the conduct of an election of 1 or more health and safety representatives to represent workers who carry out work for the project. Subdivision 5.3.2 Determination of work groups

51 Determination of work groups (1) This section applies if— (a) a request is made under section 50 (Request for election of health and safety representative); or (b) the principal contractor for a major construction project is required, under section 50C (2), to facilitate the conduct of an election. (1A) The person conducting the business or undertaking, or the principal contractor, must facilitate the determination of 1 or more work groups of workers.

(2) The purpose of determining a work group is to facilitate the representation of workers in the work group by 1 or more health and safety representatives. (3) A work group may be determined for workers at 1 or more workplaces.

52 Negotiations for agreement for work group (1) A work group is to be determined by negotiation and agreement between— (a) the person conducting the business or undertaking; and (b) the workers who are proposed to form the work group or their representatives. (2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers— (a) for a major construction project—when work on the project commences; or (b) in any other case—within 14 days after the day a request is made under section 50 (Request for election of health and safety representative). (3) The purpose of the negotiations is to determine— by health and safety representatives; and health and safety representatives (if any) to be elected; and (c) the workplace or workplaces to which the work groups will apply. (4) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the

(5) The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations. (6) A regulation may prescribe the matters that must be taken into account in negotiations for, and determination of, work groups and variations of agreements concerning work groups. (7) In this section: person conducting a business or undertaking includes the principal contractor for a major construction project.

53 Notice to workers (1) The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable outcome of the negotiations and of any work groups determined by

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

54 Failure of negotiations (1) If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section. (2) An inspector appointed under subsection (1) may decide— (a) the matters referred to in section 52 (3) (Negotiations for agreement for work group) or any of those matters which is the subject of the proposed variation (as the case requires); or (b) that work groups should not be determined or that the agreement should not be varied (as the case requires). (3) For the purposes of this section, there is a failure of negotiations if— (a) the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced— (i) for a major construction project—when work on the project commences; or (ii) within 14 days after the day a request is made under section 50 (Request for election of health and safety representative); or

(iii) within 14 days after the day a party to the agreement requests the variation of the agreement; or (b) agreement cannot be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence. (4) A decision under this section is taken to be an agreement under section 52. (5) In this section: person conducting a business or undertaking includes the principal contractor for a major construction project. Subdivision 5.3.3 Multiple-business work groups

55 Determination of work groups of multiple businesses (1) Work groups may be determined for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces. Note For a major construction project to which s 50A applies, the principal contractor for the project must consult with the eligible unions for the project before work commences on the project (see s 50A (2)). (2) The particulars of the work groups are to be determined by negotiation and agreement, in accordance with section 56, between each of the persons conducting the businesses or undertakings and the workers. (3) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the

(4) The determination of 1 or more work groups under this subdivision does not— (a) prevent the determination under this subdivision or subdivision 5.3.2 (Determination of work groups) of any other work group of the workers concerned; or (b) affect any work groups of those workers that have already been determined under this subdivision or subdivision 5.3.2.

56 Negotiation of agreement for work groups of multiple businesses (1) Negotiations concerning work groups under this subdivision must be directed only at the following: by health and safety representatives; health and safety representatives (if any) for each work group; (c) the workplace or workplaces to which the work groups will apply; (d) the businesses or undertakings to which the work groups will apply. (2) A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.

(3) If agreement cannot be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter. (4) A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements.

57 Notice to workers (1) A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable outcome of the negotiations and of any work groups determined by (2) A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable outcome of the negotiations and of the variation (if any) to the

58 Withdrawal from negotiations or agreement involving multiple businesses (1) A party to a negotiation for an agreement, or to an agreement, concerning a work group under this subdivision may withdraw from the negotiation or agreement at any time by giving reasonable notice (in writing) to the other parties. (2) If a party withdraws from an agreement concerning a work group under this subdivision— (a) the other parties must negotiate a variation to the agreement in accordance with section 56 (Negotiation of agreement for work groups of multiple businesses); and (b) the withdrawal does not affect the validity of the agreement between the other parties in the meantime.

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

Subdivision 5.3.4 Election of health and safety

60 Eligibility to be elected A worker is— (a) eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group; and (b) not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 (Disqualification of health and safety representatives) from being a health and safety

61 Procedure for election of health and safety (1) The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted. (2) However, an election must comply with the procedures (if any) prescribed by regulation. (3) If a majority of the workers in a work group so determine, the election may be conducted with the assistance of a union or other person or organisation. (4) The person conducting the business or undertaking to which the work group relates must provide any resources, facilities and assistance that are reasonably necessary or are prescribed by regulation to enable elections to be conducted.

62 Eligibility to vote (1) A health and safety representative for a work group is to be elected by members of that work group. (2) All workers in a work group are entitled to vote for the election of a health and safety representative for that work group.

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

64 Term of office of health and safety representative (1) A health and safety representative for a work group holds office for 3 years. (2) However, a person ceases to hold office as a health and safety representative for a work group if— (a) the person resigns as a health and safety representative for the work group by written notice given to the person conducting the relevant business or undertaking; or (b) the person ceases to be a worker in the work group for which he or she was elected as a health and safety representative; or (c) the person is disqualified under section 65 (Disqualification of health and safety representatives) from acting as a health and safety representative; or (d) the person is removed from that position by a majority of the members of the work group in accordance with the regulation. (3) A health and safety representative is eligible for re-election.

65 Disqualification of health and safety representatives (1) An application may be made to the Magistrates Court to disqualify a health and safety representative on the ground that the representative has— (a) exercised a power or performed a function as a health and safety representative for an improper purpose; or (b) used or disclosed any information he or she acquired as a health and safety representative for a purpose other than in connection with the role of health and safety representative. (2) The following persons may make an application under this section: (a) any person adversely affected by— (i) the exercise of a power or the performance of a function referred to in subsection (1) (a); or (ii) the use or disclosure of information referred to in subsection (1) (b); (b) the regulator. (3) If the court is satisfied that a ground in subsection (1) is made out, the court may disqualify the health and safety representative for a specified period or indefinitely.

66 Immunity of health and safety representatives A health and safety representative is not personally liable for anything done or omitted to be done in good faith— (a) in exercising a power or performing a function under this Act; or

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

67 Deputy health and safety representatives (1) Each deputy health and safety representative for a work group is to be elected in the same way as a health and safety representative for the work group. (2) If the health and safety representative for a work group ceases to hold office or is unable (because of absence or any other reason) to exercise the powers or perform the functions of a health and safety representative under this Act— (a) the powers and functions may be exercised or performed by a deputy health and safety representative for the work group; and (b) this Act applies in relation to the deputy health and safety representative as if he or she were the health and safety (3) Section 64 (Term of office of health and safety representative), section 65 (Disqualification of health and safety representatives), section 66 (Immunity of health and safety representatives) and section 72 (Obligation to train health and safety representatives) apply to deputy health and safety representatives in the same way as they apply to health and safety representatives.

Subdivision 5.3.5 Powers and functions of health and safety representatives

68 Powers and functions of health and safety (1) The powers and functions of a health and safety representative for a work group are— (a) to represent the workers in the work group in matters relating to work health and safety; and (b) to monitor the measures taken by the person conducting the relevant business or undertaking, or that person’s representative, in compliance with this Act in relation to workers in the work group; and (c) to investigate complaints from members of the work group relating to work health and safety; and (d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking. Note A provision of a law that gives a person a function also gives the person powers necessary and convenient to exercise the function (see Legislation Act, s 196). (2) In exercising a power or performing a function, the health and safety representative may— (a) inspect the workplace or any part of the workplace at which a worker in the work group works— (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace; and

(ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; and (b) accompany an inspector during an inspection of the workplace, or part of the workplace, at which a worker in the work group works; and (c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and— (d) with the consent of 1 or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and— (e) request the establishment of a health and safety committee; and (f) receive information concerning the work health and safety of workers in the work group; and (g) whenever necessary, request the assistance of any person. Note A health and safety representative also has power under div 5.6 to direct work to cease in certain circumstances and under div 5.7 to issue provisional improvement notices.

(3) Despite subsection (2) (f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that— (4) Nothing in this Act imposes, or is taken to impose, a duty on a health and safety representative in that capacity.

69 Powers and functions generally limited to the particular work group (1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group. (2) Subsection (1) does not apply if— (a) there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or (b) a member of another work group asks for the representative’s assistance, and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.

another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates. Subdivision 5.3.6 Obligations of person conducting business or undertaking to health and safety representatives

70 General obligations of person conducting business or undertaking (1) The person conducting a business or undertaking must— (a) consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or (b) confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and (c) allow any health and safety representative for the work group to have access to information that the person has relating to— (i) hazards (including associated risks) at the workplace affecting workers in the work group; and (ii) the health and safety of the workers in the work group; and

(d) with the consent of a worker that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between the worker and— (e) with the consent of 1 or more workers that the health and safety representative represents, allow the health and safety representative to be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and— (f) provide any resources, facilities and assistance to a health and safety representative for the work group that are reasonably necessary or prescribed by regulation to enable the representative to exercise his or her powers or perform his or her functions under this Act; and (g) allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided; and (h) permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works; and

(i) provide any other assistance to the health and safety representative for the work group that may be required by (2) The person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers and perform his or her functions under this Act. (3) Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

71 Exceptions from obligations under s 70 (1) (1) This section applies despite section 70 (1). (2) The person conducting a business or undertaking must not allow a health and safety representative to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that—

(3) The person conducting a business or undertaking is not required to give financial assistance to a health and safety representative for the purpose of the assistance referred to in section 70 (1) (g). (4) The person conducting a business or undertaking is not required to allow a person assisting a health and safety representative for a work group to have access to the workplace— (a) if the assistant has had his or her WHS entry permit revoked; or (b) during any period that— (i) the assistant’s WHS entry permit is suspended; or (ii) the assistant is disqualified from holding a WHS entry (5) The person conducting a business or undertaking may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative for a work group. (6) If access is refused to a person assisting a health and safety representative under subsection (5), the health and safety representative may ask the regulator to appoint an inspector to assist in resolving the matter.

72 Obligation to train health and safety representatives (1) The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is—

(b) a course that the health and safety representative is entitled under the regulation to attend; and (c) chosen by the health and safety representative. (2) The person conducting the business or undertaking must— request is made, allow the health and safety representative time off work to attend the course of training; and with the health and safety representative’s attendance at the course of training. (3) If— (a) a health and safety representative represents a work group of the workers of more than 1 business or undertaking; and (b) the person conducting any of those businesses or undertakings has complied with this section in relation to the representative, each of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the (4) Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (5) If agreement cannot be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) about a matter mentioned in subsection (2), either party may ask the regulator to appoint an inspector to decide the matter.

(7) A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6). (8) This section does not apply to a workplace to which section 72A applies.

72A Obligation to train health and safety representatives— major construction project (2) The principal contractor for the major construction project must ensure the health and safety representative for the project attends a course of training in work health and safety that is— (b) a course that the health and safety representative is entitled under the regulation to attend; and (c) subject to subsection (6), chosen by the health and safety representative, in consultation with the principal contractor. (3) The principal contractor must— day the health and safety representative is elected, ensure the health and safety representative has time off work to attend the course of training; and with the health and safety representative’s attendance at the course of training.

(4) Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (5) If agreement cannot be reached between the principal contractor for the major construction project and the health and safety representative within the time required by subsection (3) as to the matters set out in subsections (2) (c) and (3), either party may ask the regulator to appoint an inspector to decide the matter. (7) The principal contractor for the major construction project must ensure the health and safety representative attends a course decided by the inspector and pay the costs decided by the inspector under subsection (6). (8) Subsection (7) does not apply if the regulator has, under section 50B (Exemption from certain requirements under this part), exempted the principal contractor from complying with this section.

73 Obligation to share costs if multiple businesses or undertakings (1) If a health and safety representative, or deputy health and safety representative (if any), represents a work group of workers carrying out work for 2 or more persons conducting businesses or undertakings— (a) the costs of the representative exercising powers and performing functions under this Act; and

(b) the costs referred to in section 72 (2) (b) or section 72A (3) (b), for which any of the persons conducting those businesses or undertakings are liable must be apportioned equally between each of those persons unless they agree otherwise. (2) An agreement to apportion the costs in another way may be varied at any time by negotiation and agreement between each of the persons conducting the businesses or undertakings.

74 List of health and safety representatives (1) A person conducting a business or undertaking must ensure that— (a) a list of each health and safety representative and deputy health and safety representative (if any) for each work group of workers carrying out work for the business or undertaking is prepared and kept up to date; and (b) a copy of the up-to-date list is displayed— (i) at the principal place of business of the business or (ii) at any other workplace that is appropriate taking into account the constitution of the relevant work group or work groups, in a manner that is readily accessible to workers in the relevant work group or work groups. (2) A person conducting a business or undertaking must provide a copy of the up-to-date list prepared under subsection (1) to the regulator as soon as practicable after it is prepared.

75 Health and safety committees (1) The person conducting a business or undertaking at a workplace must establish a health and safety committee for the business or undertaking or part of the business or undertaking— (a) within 2 months after being requested to do so by— (i) a health and safety representative for a work group of workers carrying out work at that workplace; or (ii) 5 or more workers at that workplace; or (b) if required by regulation to do so, within the time prescribed by (2) A person conducting a business or undertaking at a workplace may establish a health and safety committee for the workplace or part of the workplace on the person’s own initiative. Note If a health and safety committee is not required to be established, other consultation procedures can be established for a workplace—see div 5.2.

76 Constitution of committee (1) Subject to subsections (2) to (4A), the constitution of a health and safety committee may be agreed between the person conducting the business or undertaking and the workers at the workplace. (2) If there is a health and safety representative at a workplace, that representative, if he or she consents, is a member of the committee. (3) If there are 2 or more health and safety representatives at a workplace, those representatives may choose 1 or more of their number (who consent) to be members of the committee.

Health and safety committees Division 5.4 (4) At least half of the members of the committee must be workers who are not nominated by the person conducting the business or (4A) If the committee is established by the principal contractor for a major construction project, at least half the members of the committee must be workers carrying out work on the project. (5) If agreement is not reached under this section within a reasonable time, any party may ask the regulator to appoint an inspector to decide the matter. (6) An inspector appointed on a request under subsection (5) may decide the constitution of the health and safety committee or that the committee should not be established. (7) A decision of an inspector under this section is taken to be an agreement under this section between the parties.

77 Functions of committee The functions of a health and safety committee are— (a) to facilitate cooperation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers’ health and safety at work; and (b) to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace; and (c) any other functions prescribed by regulation or agreed between the person conducting the business or undertaking and the committee.

78 Meetings of committee A health and safety committee must meet— (a) at least once every 3 months; and (b) at any reasonable time at the request of at least half of the members of the committee.

79 Duties of person conducting business or undertaking (1) A person conducting a business or undertaking must allow each member of the health and safety committee to spend the time that is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee. (2) Any time that a member of a health and safety committee spends for the purposes set out in subsection (1) must be with such pay as he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (3) A person conducting a business or undertaking must allow the health and safety committee for a workplace to have access to information that the person has relating to— (a) hazards (including associated risks) at the workplace; and (b) the health and safety of the workers at the workplace.

Health and safety committees Division 5.4 (4) Despite subsection (3), a person conducting a business or undertaking must not allow the health and safety committee to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that—

79A Obligation to train health and safety committee members—major construction project (2) The principal contractor for the major construction project must ensure the members of the health and safety committee for the major construction project attend a course of training in work health and safety that is— (b) a course that the members are entitled under the regulation to attend; and (c) subject to subsection (6), chosen by the health and safety committee, in consultation with the principal contractor. (3) The principal contractor for the major construction project must— day the health and safety committee is constituted, ensure members of the health and safety committee have time off work to attend the course of training; and with each member’s attendance at the course of training.

(4) Any time that a member of a health and safety committee is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (5) If agreement cannot be reached between the principal contractor for the major construction project and the health and safety committee within the time required by subsection (3) as to the matters set out in subsections (2) (c) and (3), either party may ask the regulator to appoint an inspector to decide the matter. (7) The principal contractor for the major construction project must ensure the members of the health and safety committee attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6). (8) Subsection (7) does not apply if the regulator has, under section 50B (Exemption from certain requirements under this part), exempted the principal contractor from complying with this section.

80 Parties to an issue (1) In this division: parties, in relation to an issue, means the following: (a) the person conducting the business or undertaking or the person’s representative; (b) if the issue involves more than 1 business or undertaking—the person conducting each business or undertaking or the person’s representative;

Issue resolution Division 5.5 (c) if the worker or workers affected by the issue are in a work group—the health and safety representative for that work group or his or her representative; (d) if the worker or workers affected by the issue are not in a work group—the worker or workers or their representative. (2) A person conducting a business or undertaking must ensure that the person’s representative (if any) for the purposes of this division— (a) is not a health and safety representative; and (b) has an appropriate level of seniority, and is sufficiently competent, to act as the person’s representative.

81 Resolution of health and safety issues (1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue. (2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed by regulation. (3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.

82 Referral of issue to regulator for resolution by inspector (1) This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue. (2) A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue.

(3) A request to the regulator under this section does not prevent— (a) a worker from exercising the right under division 5.6 to cease work; or (b) a health and safety representative from issuing a provisional improvement notice or a direction under division 5.6 to cease work. (4) On attending a workplace under this section, an inspector may exercise any of the inspector’s compliance powers under this Act in relation to the workplace.

Division 5.6 Right to cease or direct cessation of unsafe work

83 Definition of cease work under this division cease work under this division means— (a) to cease, or refuse, to carry out work under section 84; or (b) to cease work on a direction under section 85 (Health and safety representative may direct that unsafe work cease).

84 Right of worker to cease unsafe work A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.

Right to cease or direct cessation of unsafe work Division 5.6

85 Health and safety representative may direct that unsafe work cease (1) A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard. (2) However, the health and safety representative must not give a worker a direction to cease work unless the matter is not resolved after— (a) consulting about the matter with the person conducting the business or undertaking for whom the workers are carrying out work; and (b) attempting to resolve the matter as an issue under division 5.5 (Issue resolution). (3) The health and safety representative may direct the worker to cease work without carrying out that consultation or attempting to resolve the matter as an issue under division 5.5 if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction. (4) The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3). (5) The health and safety representative must inform the person conducting the business or undertaking of any direction given by the health and safety representative to workers under this section. (6) A health and safety representative cannot give a direction under this section unless the representative has— (a) completed initial training prescribed by regulation referred to in section 72 (1) (b) (Obligation to train health and safety representatives) or section 72A (2) (b) (Obligation to train health and safety representatives—major construction project); or

(b) previously completed that training when acting as a health and safety representative for another work group; or (c) completed training equivalent to that training under a

86 Worker to notify if ceases work A worker who ceases work under this division must— (a) as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this division, unless the worker ceased work under a direction from a health and safety representative; and (b) remain available to carry out suitable alternative work.

87 Alternative work If a worker ceases work under this division, the person conducting the business or undertaking may direct the worker to carry out suitable alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties.

88 Continuity of engagement of worker If a worker ceases work under this division, that action does not affect the continuity of engagement of the worker for prescribed purposes if the worker has not unreasonably failed to comply with a direction to carry out suitable alternative work— (a) at the same or another workplace; and (b) that was safe and appropriate for the worker to carry out.

89 Request to regulator to appoint inspector to assist The health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work. Note The issue resolution procedures in div 5.5 can also be used to resolve an issue arising in relation to the cessation of work.

90 Provisional improvement notices (1) This section applies if a health and safety representative reasonably believes that a person— (a) is contravening a provision of this Act; or (b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated. (2) The health and safety representative may issue a provisional improvement notice requiring the person to— (a) remedy the contravention; or (b) prevent a likely contravention from occurring; or (c) remedy the things or operations causing the contravention or likely contravention. (3) However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.

(4) A health and safety representative cannot issue a provisional improvement notice unless the representative has— (a) completed initial training prescribed by regulation referred to in section 72 (1) (b) (Obligation to train health and safety representatives) or section 72A (2) (b) (Obligation to train health and safety representatives—major construction project); or (b) previously completed that training when acting as a health and safety representative for another work group; or (c) completed training equivalent to that training under a (5) A health and safety representative cannot issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.

91 Provisional improvement notice to be in writing A provisional improvement notice must be in writing.

92 Contents of provisional improvement notice A provisional improvement notice must state— (a) that the health and safety representative believes the person— (i) is contravening a provision of this Act; or (ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated; and (b) the provision the representative believes is being, or has been, contravened; and (c) briefly, how the provision is being, or has been contravened; and

(d) the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention.

93 Provisional improvement notice may give directions to remedy contravention (1) A provisional improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates. (2) A direction included in a provisional improvement notice may— (a) refer to a code of practice; and (b) offer the person to whom it is issued a choice of ways in which to remedy the contravention.

94 Minor changes to provisional improvement notice A health and safety representative may make minor changes to a provisional improvement notice— (a) for clarification; or (b) to correct errors or references; or (c) to reflect changes of address or other circumstances.

95 Issue of provisional improvement notice A provisional improvement notice may be issued to a person in accordance with section 209 (Issue and giving of notice).

96 Health and safety representative may cancel notice The health and safety representative may, at any time, cancel a provisional improvement notice issued to a person by written notice given to that person.

97 Display of provisional improvement notice (1) A person to whom a provisional improvement notice is issued must as soon as practicable display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice. (2) A person must not intentionally remove, destroy, damage or deface a notice displayed under subsection (1) during the period that the notice is in force.

98 Formal irregularities or defects in notice A provisional improvement notice is not invalid only because of— (a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or (b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person.

99 Offence to contravene a provisional improvement notice (1) This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 (Regulator to appoint inspector to review notice) to attend at the workplace. (2) The person must comply with the provisional improvement notice within the time specified in the notice.

100 Request for review of provisional improvement notice (1) Within 7 days after a provisional improvement notice is issued to a (a) the person to whom it was issued; or (b) if the person is a worker—the person conducting the business or undertaking at the workplace at which the worker carries out work, may ask the regulator to appoint an inspector to review the notice. (2) If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review.

101 Regulator to appoint inspector to review notice (1) The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100. (2) The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice. (3) An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired.

102 Decision of inspector on review of provisional improvement notice (1) After reviewing the provisional improvement notice, the inspector must— (a) confirm the provisional improvement notice; or (b) confirm the provisional improvement notice with changes; or (c) cancel the provisional improvement notice.

(2) The inspector must give a copy of his or her decision to— (a) the applicant for the review of the provisional improvement notice; and (b) the health and safety representative who issued the notice. (3) A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act.

103 Part does not apply to prisoners Nothing in this part applies to a worker who is a prisoner in custody in a prison or police gaol. Note Work health and safety of detainees in correctional centres and elsewhere is dealt with in the Corrections Management Act 2007, s 219.

Part 6 Discriminatory, coercive and misleading conduct Division 6.1 Prohibition of discriminatory, coercive or misleading conduct 104 Prohibition of discriminatory conduct (1) A person must not engage in discriminatory conduct for a prohibited reason. (2) A person commits an offence under subsection (1) only if the reason referred to in section 106 (What is a prohibited reason) was the dominant reason for the discriminatory conduct. Note A civil proceeding may be brought under div 6.3 in relation to discriminatory conduct engaged in for a prohibited reason. (3) For the purposes of the application of the Criminal Code 2002 in relation to an offence under subsection (1), intention is the fault element for the physical element of engaging in conduct.

105 What is discriminatory conduct (1) For the purposes of this part, a person engages in discriminatory conduct if— (a) the person— (i) dismisses a worker; or (ii) terminates a contract for services with a worker; or (iii) puts a worker to his or her detriment in the engagement of the worker; or (iv) alters the position of a worker to the worker’s detriment; or

Division 6.1 Prohibition of discriminatory, coercive or misleading conduct (b) the person— (i) refuses or fails to offer to engage a prospective worker; or (ii) treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement; or (c) the person terminates a commercial arrangement with another person; or (d) the person refuses or fails to enter into a commercial arrangement with another person. (2) For the purposes of this part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action.

106 What is a prohibited reason Conduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person referred to in section 105 (1) (c) or (d) (as the case requires)— (a) is, has been or proposes to be a health and safety representative or a member of a health and safety committee; or (b) undertakes, has undertaken or proposes to undertake another role under this Act; or (c) exercises a power or performs a function or has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee; or (d) exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way; or

(e) performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way; or (f) refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way; or (g) assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to any person exercising a power or performing a function under this Act; or (h) raises or has raised or proposes to raise an issue or concern about work health and safety with— (i) the person conducting a business or undertaking; or (ii) an inspector; or (iii) a WHS entry permit-holder; or (iv) a health and safety representative; or (v) a member of a health and safety committee; or (vi) another worker; or (vii) any other person who has a duty under this Act in relation to the matter; or (viii) any other person exercising a power or performing a function under this Act; or (i) is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act; or

Division 6.1 Prohibition of discriminatory, coercive or misleading conduct (j) is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act.

107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory (1) A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104 (Prohibition of discriminatory conduct). Note A civil proceeding may be brought under div 6.3 if a person requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason. (2) For the purposes of the application of the Criminal Code 2002 in relation to an offence under subsection (1), intention is the fault element for the physical element of requesting, instructing, inducing, encouraging, authorising or assisting another person to engage in conduct.

108 Prohibition of coercion or inducement (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person— (a) to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act; or (b) to perform or not to perform a function, or to propose to perform or not to perform a function, under this Act; or

(c) to exercise or not to exercise a power or perform a function, or to propose to exercise or not to exercise a power or perform a function, in a particular way; or (d) to refrain from seeking, or continuing to undertake, a role under Note A civil proceeding may be brought under div 6.3 in relation to a contravention of this section. (2) In this section, a reference to taking action or threatening to take action against a person includes a reference to not taking a particular action or threatening not to take a particular action in relation to that (3) To avoid doubt, a reasonable direction given by an emergency services worker in an emergency is not an action with intent to coerce or induce a person. emergency services worker means— (a) a police officer; or (b) a member of an emergency service. Note An emergency service means the ambulance service, the fire and rescue service, the rural fire service or the SES (see Legislation Act, dict, pt 1).

109 Misrepresentation (1) A person must not knowingly or recklessly make a false or misleading representation to another person about that other person’s— (a) rights or obligations under this Act; or (b) ability to initiate, or participate in, a process or proceeding under this Act; or

Division 6.2 Criminal proceedings in relation to discriminatory conduct (c) ability to make a complaint or inquiry to a person or body empowered under this Act to seek compliance with this Act. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. Division 6.2 Criminal proceedings in relation to discriminatory conduct

110 Proof of discriminatory conduct (1) This section applies if, in a proceeding for an offence against section 104 (Prohibition of discriminatory conduct) or section 107 (Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct), the prosecution— (a) proves that the discriminatory conduct was engaged in; and (b) proves that a circumstance referred to in section 106 (a) to (j) (What is a prohibited reason) existed at the time the discriminatory conduct was engaged in; and (c) adduces evidence that the discriminatory conduct was engaged in for a prohibited reason. (2) The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves, on the balance of probabilities, that the reason was not the dominant reason for the conduct. (3) To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof.

Civil proceedings in relation to discriminatory or coercive conduct Division 6.3

111 Order for compensation or reinstatement If a person is convicted or found guilty of an offence against section 104 (Prohibition of discriminatory conduct) or section 107 (Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct), the court may (in addition to imposing a penalty) make either or both of the following orders: (a) an order that the offender pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate; (b) in relation to a person who was or is an employee or prospective employee, an order that— (i) the person be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or (ii) the person be employed in the position for which he or she had applied or a similar position. Division 6.3 Civil proceedings in relation to discriminatory or coercive conduct

112 Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct (1) An eligible person may apply to— (a) the Supreme Court for an order under subsection (3) (a); or (b) a court of competent jurisdiction for an order under subsection (3) (b) to (d). (2) The court may make 1 or more of the orders set out in subsection (3) in relation to a person who has— (a) engaged in discriminatory conduct for a prohibited reason; or

Division 6.3 Civil proceedings in relation to discriminatory or coercive conduct (b) requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason; or (c) contravened section 108 (Prohibition of coercion or inducement). (3) For the purposes of subsection (2), the orders that the court may make are— (a) an injunction; or (b) for conduct referred to in subsection (2) (a) or (b)—an order that the person pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the court considers appropriate; or (c) for conduct referred to in subsection (2) (a) in relation to a worker who was or is an employee or prospective employee— an order that— (i) the worker be reinstated or re-employed in his or her former position or, if that position is not available, in a similar position; or (ii) the prospective worker be employed in the position for which he or she had applied or a similar position; or (d) any other order that the court considers appropriate. (4) For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 (What is a prohibited reason) was a substantial reason for the conduct. (5) Nothing in this section is to be construed as limiting any other power of the court.

Civil proceedings in relation to discriminatory or coercive conduct Division 6.3 (6) For the purposes of this section, each of the following is an eligible person: (a) a person affected by the contravention; (b) a person authorised as a representative by a person referred to in paragraph (a).

113 Procedure for civil actions for discriminatory conduct (1) A proceeding brought under section 112 must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued. (2) In a proceeding under section 112 in relation to conduct referred to in section 112 (2) (a) or (b), if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct. (3) It is a defence to a proceeding under section 112 in relation to conduct referred to in section 112 (2) (a) or (b) if the defendant proves that— (a) the conduct was reasonable in the circumstances; and (b) a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law. (4) To avoid doubt, the burden of proof on the defendant under subsections (2) and (3) is a legal burden of proof.

114 General provisions relating to orders (1) The making of an order in a proceeding under section 112 (Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct) in relation to conduct referred to in section 112 (2) (a) or (b) does not prevent the bringing of a proceeding for an offence under section 104 (Prohibition of discriminatory conduct) or section 107 (Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct) in relation to the same conduct. (2) If the court makes an order under section 112 in a proceeding in relation to conduct referred to in section 112 (2) (a) or (b), the court cannot make an order under section 111 (Order for compensation or reinstatement) in a proceeding for an offence under section 104 or section 107 in relation to the same conduct. (3) If the court makes an order under section 111 in a proceeding for an offence under section 104 or section 107, the court cannot make an order under section 112 in a proceeding in relation to conduct referred to in section 112 (2) (a) or (b) that is the same conduct.

115 Prohibition of multiple actions A person cannot— (a) commence a proceeding under division 6.3 (Civil proceedings in relation to discriminatory or coercive conduct) if the person has commenced a proceeding or made an application or complaint in relation to the same matter under a law of the Commonwealth or a State and that proceeding, application or complaint has not been withdrawn; or (b) recover any compensation under division 6.3 if the person has received compensation for the matter under a law of the Commonwealth or a State; or

General Division 6.4 (c) commence or continue an application under division 6.3 if the person has failed in a proceeding, application or complaint in relation to the same matter under a law of the Commonwealth or a State, other than a proceeding, application or complaint relating to workers’ compensation.

Part 7 Workplace entry by WHS entry permit-holders Note Div 13.7 sets out the procedure in relation to the bringing of a proceeding in relation to WHS civil penalty provisions.

116 Definitions—pt 7 official of a union means a person who holds an office in, or is an employee of, the union. relevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit-holder is exercising or proposes to exercise the right of entry. relevant union means the union that a WHS entry permit-holder represents. relevant worker, in relation to a workplace, means a worker— (a) who is a member, or eligible to be a member, of a relevant union; and (b) whose industrial interests the relevant union is entitled to represent; and (c) who works at that workplace.

Entry to inquire into suspected contraventions Division 7.2

Division 7.2 Entry to inquire into suspected contraventions

117 Entry to inquire into suspected contraventions (1) A WHS entry permit-holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit-holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.

118 Rights that may be exercised while at workplace (1) While at the workplace under this division, the WHS entry permit-holder may do 1 or more of the following in relation to the suspected contravention of this Act: (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention; (b) consult with the relevant workers in relation to the suspected contravention; (c) consult with the relevant person conducting a business or undertaking about the suspected contravention; (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit-holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that— (i) is kept at the workplace; or (ii) is accessible from a computer that is kept at the workplace;

(da) take photographs, films, or audio, video or other recordings relevant to the suspected contravention; (e) warn any person whom the WHS entry permit-holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk. (2) However, if it would result in a contravention of a law of the Commonwealth or a law of a State— (a) the relevant person is not required, under subsection (1) (d), to allow the WHS entry permit-holder to inspect or make copies of a document; and (b) the WHS entry permit-holder must not, under subsection (1) (da), take photographs, films, or audio, video or other recordings. Note State includes the Northern Territory (see Legislation Act, dict, pt 1). (3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) (d). (4) Subsection (3) places an evidential burden on the defendant to show

Entry to inquire into suspected contraventions Division 7.2 (5) If, in the course of inquiring into a suspected contravention of this Act, the WHS entry permit-holder reasonably suspects that another contravention of this Act has occurred, the WHS entry permit-holder may exercise a right mentioned in subsection (1) in relation to the other contravention. Note 1 Evidential burden—see the Criminal Code, s 58. Note 2 At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking (see s 120). Note 3 The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 (Cwlth).

118A Notice of exercise of right under s 118 (1) (da) (1) This section applies in relation to the exercise of a right under section 118 (1) (da) by a WHS entry permit-holder. (2) The WHS entry permit-holder must give notice to the relevant person conducting a business or undertaking about the exercise of the right— (a) if, at the time the WHS entry permit-holder enters the workplace under this division, the WHS entry permit-holder intends to exercise the right in relation to the suspected contravention of this Act—as soon as reasonably practicable after entering the workplace; and (b) if, while at a workplace under this division, the WHS entry permit-holder forms the intention to exercise, or has exercised, the right in relation to another contravention of this Act in the circumstances mentioned in section 118 (5)—as soon as reasonably practicable after forming that intention or exercising the right.

119 Notice of entry (1) A WHS entry permit-holder must, as soon as is reasonably practicable after entering a workplace under this division, give notice of the entry and the suspected contravention, in accordance with regulation, to— (a) the relevant person conducting a business or undertaking; and (b) the person with management or control of the workplace. (2) Subsection (1) does not apply if to give the notice would— (a) defeat the purpose of the entry to the workplace; or (b) unreasonably delay the WHS entry permit-holder in an urgent case. (3) Subsection (1) does not apply to an entry to a workplace under this division to inspect or make copies of documents referred to in section 120.

120 Entry to inspect employee records or information held by another person (1) This section applies if a WHS entry permit-holder is entitled under section 117 (Entry to inquire into suspected contraventions) to enter a workplace to inquire into a suspected contravention of this Act. (2) For the purposes of the inquiry into the suspected contravention, the WHS entry permit-holder may enter any workplace for the purpose of inspecting, or making copies of— (a) employee records that are directly relevant to a suspected contravention; or (b) other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking.

Entry to consult and advise workers Division 7.3 (3) Before doing so, the WHS entry permit-holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking. (4) The notice must comply with the regulation. (5) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. Note The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 (Cwlth). Division 7.3 Entry to consult and advise workers

121 Entry to consult and advise workers (1) A WHS entry permit-holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, 1 or more relevant workers who wish to participate in the discussions. (2) A WHS entry permit-holder may, after entering a workplace under this division, warn any person whom the WHS entry permit-holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.

122 Notice of entry (1) Before entering a workplace under this division, a WHS entry permit-holder must give notice of the proposed entry to the relevant person conducting a business or undertaking. (2) The notice must comply with the regulation. (3) The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry.

Division 7.4 Requirements for WHS entry permit-holders Division 7.4 Requirements for WHS entry permit-holders 123 Contravening WHS entry permit conditions A WHS entry permit-holder must not contravene a condition imposed on the WHS entry permit. Maximum penalty: WHS civil penalty provision tier 1.

124 WHS entry permit-holder must also hold permit under other law A WHS entry permit-holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act.

125 WHS entry permit to be available for inspection A WHS entry permit-holder must, at all times that he or she is at a workplace under a right of entry under division 7.2 (Entry to inquiry into suspected contraventions) or division 7.3 (Entry to consult and advise workers), have his or her WHS entry permit and photographic identification available for inspection by any person on request.

Requirements for WHS entry permit-holders Division 7.4

126 When right may be exercised A WHS entry permit-holder may exercise a right under division 7.2 (Entry to inquire into suspected contraventions) or division 7.3 (Entry to consult and advise workers) only during the usual working hours at the workplace.

127 Where the right may be exercised A WHS entry permit-holder may exercise a right of entry to a workplace only in relation to— (a) the area of the workplace where the relevant workers work; or (b) any other work area that directly affects the health or safety of those workers.

128 Work health and safety requirements A WHS entry permit-holder must not exercise a right of entry to a workplace under division 7.2 (Entry to inquire into suspected contraventions) or division 7.3 (Entry to consult and advise workers) unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with— (a) any work health and safety requirement that applies to the workplace; and (b) any other legislated requirement that applies to that type of workplace.

WHS entry permits

129 Residential premises A WHS entry permit-holder must not enter any part of a workplace that is used only for residential purposes.

130 WHS entry permit-holder not required to disclose names of workers (1) A WHS entry permit-holder is not required to disclose to the relevant person conducting a business or undertaking, or the person with management or control of the workplace, the name of any worker at the workplace. (2) A WHS entry permit-holder who wishes to disclose to the relevant person conducting a business or undertaking, or the person with management or control of the workplace, the name of any worker may only do so with the consent of the worker.

131 Application for WHS entry permit (1) A union may apply to the regulator for the issue of a WHS entry permit to a person who is an official of the union. (2) The application must specify the person who is to hold the WHS entry permit and include a statement by that person declaring that he or she— (a) is an official of the union; and (b) has satisfactorily completed the prescribed training; and

WHS entry permits Division 7.5 (c) holds, or will hold, an entry permit under the Fair Work Act. Note It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).

132 Consideration of application In considering whether to issue a WHS entry permit, the regulator must take into account— (a) the object of this Act; and (b) the object of allowing union right of entry to workplaces for work health and safety purposes.

133 Eligibility criteria The regulator must not issue a WHS entry permit to an official of a union unless the regulator is satisfied that the official— (a) is an official of the union; and (b) has satisfactorily completed the prescribed training; and (c) holds, or will hold, an entry permit under the Fair Work Act.

134 Issue of WHS entry permit The regulator may issue a WHS entry permit to a person if the regulator has taken into account the matters in section 132 (Consideration of application) and is satisfied about the matters in section 133.

135 Conditions on WHS entry permit The regulator may impose conditions on a WHS entry permit.

136 Term of WHS entry permit A WHS entry permit has effect for a term of 3 years from the date it is issued.

137 Expiry of WHS entry permit (1) Unless it is earlier revoked, a WHS entry permit expires at the first of the following to occur: (a) at the end of the term of the WHS entry permit; (b) at the end of the term of the entry permit held by the WHS entry permit-holder under the Fair Work Act; (c) when the permit-holder ceases to be an official of the union that applied for the permit; (d) the union that applied for the permit ceases to be an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 (Cwlth). (2) An application may be made for the issue of a subsequent WHS entry permit before or after the current WHS entry permit expires.

138 Application to revoke WHS entry permit (1) The following persons may apply to the regulator for a WHS entry permit held by a person to be revoked: (a) the relevant person conducting a business or undertaking; (b) any other person in relation to whom the WHS entry permit-holder has exercised or purported to exercise a right under this part; (c) any other person affected by the exercise or purported exercise of a right under this part by a WHS entry permit-holder. Note The regulator has power to reverse or change the decision. The power to reverse or change the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision (see Legislation Act, s 180).

WHS entry permits Division 7.5 (2) The grounds for an application for revocation of a WHS entry permit are— (a) that the permit-holder no longer satisfies the eligibility criteria for— (i) a WHS entry permit; or (ii) an entry permit under a corresponding WHS law, the Fair Work Act or the Workplace Relations Act 1996 (Cwlth); or (b) that the permit-holder has contravened any condition of the WHS entry permit; or (c) that the permit-holder has acted, or purported to act, in an improper manner in the exercise of any right under this Act; or (d) in exercising or purporting to exercise a right under this part, that the permit-holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace. (3) The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned. (4) The person who holds the WHS entry permit and the union that the WHS entry permit-holder represents are parties to the application.

139 Regulator must permit WHS entry permit-holder to show cause (1) If, on an application under section 138, the regulator is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138 (2) (a), the regulator must— (a) give the WHS entry permit-holder written notice (a show cause notice); and (b) if the regulator considers it appropriate—suspend the operation of the WHS entry permit until the regulator decides the application for revocation. (2) The show cause notice must— (a) contain a statement to the effect that the WHS entry permit-holder may, not later than 21 days after the day the WHS entry permit-holder is given the notice, give the regulator written reasons explaining why the WHS entry permit should not be revoked; and (b) be accompanied by a summary of the reasons for the application; and (c) if applicable, be accompanied by a notice of suspension of the

140 Determination of application (1) If the regulator is satisfied on the balance of probabilities about any of the matters in section 138 (2) (Application to revoke WHS entry permit), it may make 1 or more of the following orders: (a) an order imposing conditions on the WHS entry permit; (b) an order suspending the WHS entry permit; (c) an order revoking the WHS entry permit;

Dealing with disputes Division 7.6 (d) an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked; (e) an order imposing any alternative action the regulator considers appropriate. (2) In deciding what action to take under subsection (1), in relation to a person, the regulator must take into account— (a) the seriousness of any findings of the regulator having regard to the object of this Act; and (b) any other matters the regulator considers relevant.

141 Application for assistance of inspector to resolve dispute If a dispute arises about the exercise, or purported exercise, by a WHS entry permit-holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute.

142 Regulator may deal with a dispute about a right of entry under this Act (1) The regulator may deal with a dispute about the exercise or purported exercise by a WHS entry permit-holder of a right of entry under this Act (including a dispute about whether a request under section 128 (Work health and safety requirements) is reasonable). (2) The regulator may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. (3) If the regulator deals with the dispute by arbitration, it may make 1 or more of the following orders: (a) an order imposing conditions on a WHS entry permit; (b) an order suspending a WHS entry permit;

(c) an order revoking a WHS entry permit; (d) an order about the future issue of WHS entry permits to 1 or more persons; (e) any other order it considers appropriate. (4) The regulator may deal with the dispute— (a) on its own initiative; or (b) on application by any of the following to whom the dispute relates: (i) a WHS entry permit-holder; (ii) the relevant union; (iii) the relevant person conducting a business or undertaking; (iv) any other person in relation to whom the WHS entry permit-holder has exercised or purported to exercise the right of entry; (v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit-holder. (5) In dealing with a dispute, the regulator must not confer any rights on the WHS entry permit-holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit-holder under this part.

143 Contravening order made to deal with dispute A person must not contravene an order under section 142 (3).

Prohibitions Division 7.7

144 Person must not refuse or delay entry of WHS entry permit-holder (1) A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit-holder who is entitled to enter the workplace under this part. (2) Subsection (1) places an evidential burden on the accused to show a

145 Person must not hinder or obstruct WHS entry permit-holder A person must not intentionally and unreasonably hinder or obstruct a WHS entry permit-holder in entering a workplace or in exercising any rights at a workplace in accordance with this part.

146 WHS entry permit-holder must not delay, hinder or obstruct any person or disrupt work at workplace A WHS entry permit-holder exercising, or seeking to exercise, rights in accordance with this part must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper manner.

147 Misrepresentations about things authorised by this part (1) A person must not take action— (a) with the intention of giving the impression; or (b) reckless as to whether the impression is given, that the doing of a thing is authorised by this part if it is not so authorised. (2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

148 Unauthorised use or disclosure of information or documents A person must not use or disclose information or a document obtained under division 7.2 (Entry to inquire into suspected contraventions) in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention, unless— (a) the person reasonably believes that the use or disclosure is necessary to lessen or prevent— (i) a serious risk to a person’s health or safety; or (ii) a serious threat to public health or safety; or (b) the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or (c) the use or disclosure is required or authorised by or under law; or

General Division 7.8 (d) the person reasonably believes that the use or disclosure is reasonably necessary for 1 or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988 (Cwlth)): (i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law; (ii) the enforcement of laws relating to the confiscation of the proceeds of crime; (iii) the protection of the public revenue; (iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct; (v) the preparation for, or conduct of, a proceeding before any court or tribunal, or implementation of the orders of a court or tribunal; or (e) if the information is, or the document contains, personal information—the use or disclosure is made with the consent of the individual to whom the information relates.

149 Return of WHS entry permits (1) The person to whom a WHS entry permit is issued must return the permit to the regulator within 14 days of any of the following things happening: (a) the permit is revoked or suspended;

(b) the permit expires. Maximum penalty: WHS civil penalty provision tier 4. (2) After the end of a period of suspension of a WHS entry permit, the regulator must return the WHS entry permit to the person to whom it was issued if— (a) the person, or the person’s union, applies to the regulator for the return of the permit; and (b) the permit has not expired.

150 Union to provide information to regulator The relevant union must advise the regulator if— (a) the WHS entry permit-holder resigns from or otherwise leaves the union; or (b) the WHS entry permit-holder has had any entry permit granted under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 (Cwlth) (no matter when in force) cancelled or suspended; or (c) the union ceases to be an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 (Cwlth). Maximum penalty: WHS civil penalty provision tier 3.

151 Register of WHS entry permit-holders The regulator must keep available for public access an up-to-date register of WHS entry permit-holders in accordance with the

The regulator Part 8 Functions of regulator Division 8.1

Division 8.1 Functions of regulator

152 Functions of regulator The regulator has the following functions: (a) to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act; (b) to monitor and enforce compliance with this Act; (c) to provide advice and information on work health and safety to duty-holders under this Act and to the community; (d) to collect, analyse and publish statistics relating to work health and safety; (e) to foster a cooperative, consultative relationship between duty-holders and the persons to whom they owe duties and their representatives in relation to work health and safety matters; (f) to promote and support education and training on matters relating to work health and safety; (g) to engage in, promote and coordinate the sharing of information to achieve the object of this Act, including the sharing of information with a corresponding regulator; (h) to conduct and defend proceedings under this Act before a court or tribunal; (i) any other function given to the regulator by this Act or another territory law.

153 Powers of regulator Without limiting section 152, the regulator has all the powers and functions that an inspector has under this Act. Note A provision of a law that gives a function to an entity also gives the entity the powers necessary and convenient to exercise the function (see the Legislation Act, s 196).

154 Delegation by regulator The regulator may delegate the regulator’s powers and functions under this Act, or another Territory law, to another person. Note A delegation must be in writing. The power to delegate may not be delegated. A delegation may be conditional. A delegation may be amended or revoked. The delegator may exercise a power or function that has been delegated, despite the delegation (see Legislation Act, pt 19.4). Division 8.2 Powers of regulator to obtain information

155 Powers of regulator to obtain information (1) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence— (a) in relation to a possible contravention of this Act; or (b) that will assist the regulator to monitor or enforce compliance with this Act.

The regulator Part 8 Powers of regulator to obtain information Division 8.2 (2) The regulator may, by written notice served on the person, require the person to do 1 or more of the following: (a) to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge; (b) to produce to the regulator, in accordance with the notice, those documents; (c) to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents. Note For how documents may be served, see the Legislation Act, pt 19.5. (2A) The notice may be served in any way that a notice may be issued or given under section 209 (Issue and giving of notice). (3) The notice must— (a) state that the requirement is made under this section; and (b) contain a statement to the effect that it is an offence to refuse or fail to comply with the requirement without reasonable excuse; and (c) if the notice requires the person to provide information or documents or answer questions— (i) contain a statement about the effect of— (A) section 172 (Abrogation of privilege against self-incrimination); and (B) section 269 (Act does not affect legal professional privilege); and (ii) state that the person may attend with a legal practitioner.

(4) The regulator must not make a requirement under subsection (2) (c) unless the regulator has taken all reasonable steps to obtain the information under subsection (2) (a) and (b) and has been unable to do so. (5) A person must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. (6) Subsection (5) places an evidential burden on the accused to show a (7) Section 172 (with any necessary changes) applies to a requirement under this section. (8) A notice may be served on a person under this section even though— (a) the person is outside the ACT; or (b) the notice relates to information, documents or evidence— (i) outside the ACT; or (ii) relating to a matter happening outside the ACT.

Appointment of inspectors Division 9.1

Division 9.1 Appointment of inspectors

156 Appointment of inspectors The regulator may appoint any of the following as an inspector: (a) a public servant; (b) an employee of a public authority; (c) the holder of a statutory office; (d) a person who is appointed as an inspector under a corresponding WHS law; (e) a person in a prescribed class of persons.

157 Identity cards (1) The regulator must give each inspector an identity card that includes— (a) the person’s name; and (b) a statement that the person is an inspector; and (c) a recent photograph of the person; and (d) the card’s date of issue and expiry; and (e) anything else prescribed by regulation. (2) An inspector must produce his or her identity card for inspection on request when exercising compliance powers. (3) If a person to whom an identity card has been issued ceases to be an inspector, the person must return the identity card to the regulator as soon as practicable.

158 Accountability of inspectors (1) An inspector must give written notice to the regulator of all interests, pecuniary or otherwise, that the inspector has, or acquires, and that conflict or could conflict with the proper performance of the inspector’s functions. (2) The regulator must give a direction to an inspector not to deal, or to no longer deal, with a matter if— (a) the regulator becomes aware that the inspector has a potential conflict of interest in relation to a matter; and (b) the regulator considers that the inspector should not deal, or should no longer deal, with the matter.

159 Suspension and ending of appointment of inspectors (1) The regulator may suspend or end the appointment of an inspector. (2) A person’s appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector.

160 Functions and powers of inspectors An inspector has the following functions and powers under this Act: (a) to provide information and advice about compliance with this Act; (b) to assist in the resolution of— (i) work health and safety issues at workplaces; and (ii) issues related to access to a workplace by an assistant to a health and safety representative; and

(iii) issues related to the exercise or purported exercise of a right of entry under part 7 (Workplace entry by WHS entry permit-holders); (c) to review disputed provisional improvement notices; (d) to require compliance with this Act through the issuing of notices; (e) to investigate contraventions of this Act and assist in the prosecution of offences; (f) to attend coronial inquests in relation to work-related deaths and examine witnesses.

161 Conditions on inspectors’ compliance powers An inspector’s compliance powers are subject to any conditions specified in the instrument of the inspector’s appointment.

162 Inspectors subject to regulator’s directions (1) An inspector is subject to the regulator’s directions in the exercise of the inspector’s compliance powers. (2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.

Subdivision 9.3.1 General powers of entry

163 Powers of entry (1) An inspector may at any time enter a place that is, or that the inspector reasonably suspects is, a workplace. (2) An entry may be made under subsection (1) with, or without, the consent of the person with management or control of the workplace.

(3) If an inspector enters a place under subsection (1) and it is not a workplace, the inspector must leave the place immediately. (4) An inspector may enter any place if the entry is authorised by a search warrant. Note An inspector may enter residential premises to gain access to a workplace (see s 170 (c)).

164 Notification of entry (1) An inspector may enter a place under section 163 without prior notice to any person. (2) An inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify the following persons of the entry and the purpose of the entry: (a) the relevant person conducting a business or undertaking at the workplace; (b) the person with management or control of the workplace; (c) any health and safety representative for workers carrying out work for that business or undertaking at the workplace. (3) However, an inspector is not required to notify any person if to do so would defeat the purpose for which the place was entered or cause unreasonable delay. relevant person conducting a business or undertaking means the person conducting a business or undertaking in relation to which the inspector is exercising the powers of entry.

165 General powers on entry (1) An inspector who enters a workplace under section 163 may do 1 or more of the following: (a) inspect, examine and make inquiries at the workplace;

(b) inspect and examine anything (including a document) at the workplace; (c) bring to the workplace and use any equipment or materials that may be required; (d) take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings); (e) take and remove for analysis a sample of any substance or thing without paying for it; (f) require a person at the workplace to give the inspector reasonable help to exercise the inspector’s powers under paragraphs (a) to (e); (g) exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of (2) A person required to give reasonable help under subsection (1) (f) must not, without reasonable excuse, refuse or fail to comply with the requirement. (3) Subsection (2) places an evidential burden on the accused to show a

166 Persons assisting inspectors (1) A person (the assistant), including an interpreter, may accompany the inspector entering a workplace under section 163 (Powers of entry) to assist the inspector if the inspector considers the assistance is necessary.

(2) The assistant— (a) may do the things at the place and in the manner that the inspector reasonably requires to assist the inspector to exercise compliance powers; but (b) must not do anything that the inspector does not have power to do, except as permitted under a search warrant. (3) Anything done lawfully by the assistant is taken for all purposes to have been done by the inspector. Subdivision 9.3.2 Search warrants

167 Search warrants (1) An inspector may apply to a magistrate for a search warrant for a place. (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. (4) The magistrate may issue a search warrant only if the magistrate is satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and (b) the evidence is, or may be within the next 72 hours, at the place.

(5) The search warrant must state— (a) that an inspector may, with any necessary and reasonable help and force, enter the place and exercise the inspector’s compliance powers; and (b) the offence for which the search warrant is issued; and (c) the evidence that may be seized under the search warrant; and (d) the hours when the place may be entered; and (e) the date, within 7 days after the day of the search warrant’s issue, the search warrant ends.