South Australia act

Work Health and Safety Act 2012

In ForceSA

Jurisdiction

South Australia

Collection

act

Plain English Summary

8/10 complexity

This law creates a duty-based safety regime that requires businesses, officers, workers and those who design/supply/install plant or substances to eliminate or, if not possible, minimise workplace risks so far as reasonably practicable. It sets compliance processes (incident notification, inspector powers, prohibition/improvement notices, union entry permits) and a tribunal pathway for WHS disputes.

Duty‑holders bear compliance costs and civil/criminal penalties (including industrial manslaughter); inspectors, the regulator and the SAET decide enforcement and dispute outcomes, changing incentives around training, systems and supervision.

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What it does

The Work Health and Safety Act 2012 (SA) (the Act) establishes a comprehensive framework for securing the health, safety and welfare of workers and other persons at South Australian workplaces. Its primary object, set out in s 3(1), is to provide a "balanced and nationally consistent framework" by protecting people against harm through the elimination or minimisation of risks arising from work (s 3(1)(a)), facilitating effective representation, consultation and issue resolution (s 3(1)(b)), encouraging unions and employer organisations to play a constructive role (s 3(1)(c)), promoting education and training (s 3(1)(d)), securing compliance through enforcement (s 3(1)(e)), ensuring scrutiny of regulatory actions (s 3(1)(f)), driving continuous improvement (s 3(1)(g)) and maintaining national harmonisation (s 3(1)(h)).

At its core the Act adopts a risk-based, proactive approach. Section 17 requires duty holders to eliminate risks so far as is reasonably practicable and, if that is not possible, to minimise them. The concept of "reasonably practicable" is defined in s 18 as a weighing of likelihood and degree of harm, knowledge of hazards and controls, availability and suitability of controls, and whether the cost of controls is grossly disproportionate to the risk. This test applies to all duties and is central to compliance and enforcement.

The Act is structured in 14 Parts. Part 2 imposes health and safety duties. The primary duty on a person conducting a business or undertaking (PCBU) is contained in s 19: to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by the PCBU and of workers whose activities are influenced or directed by the PCBU. This extends to other persons who may be put at risk by the conduct of the business or undertaking. Specific duties are then layered on top: management or control of workplaces (s 20), fixtures, fittings or plant (s 21), design (s 22), manufacture (s 23), import (s 24), supply (s 25) and installation, construction or commissioning (s 26). Officers owe a due-diligence duty under s 27, workers a duty of reasonable care under s 28, and other persons at the workplace a similar duty under s 29.

Current sections

Direct links to the current provisions in Work Health and Safety Act 2012.

Part 1

Preliminary

Part 1—Preliminary

Div 1

Introduction

Division 1—Introduction 1—Short title This Act may be cited as the Work Health and Safety Act 2012.

Div 2

Object

Division 2—Object 3—Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by— (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant; and (b) providing for fair and effective workplace representation, consultation, co‑operation and issue resolution in relation to work health and safety; and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and (d) promoting the provision of advice, information, education and training in relation to work health and safety; and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and (f) ensuring appropriate scrutiny and review of actions 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 this jurisdiction. (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.

Div 3

Interpretation

Division 3—Interpretation

Subdiv 1

Definitions

Subdivision 1—Definitions 4—Definitions (1) In this Act, unless the contrary intention appears— advisory committee means the SafeWork SA Advisory Committee established under Division 5; approved code of practice means a code of practice approved under Part 14; authorised, in Part 4—see section 40; authorising authority means SAET; Category 1 offence—see section 31; Category 2 offence—see section 32; Category 3 offence—see section 33; compliance powers means the functions and powers conferred on an inspector under this Act; condition includes limitation and restriction; construct includes assemble, erect, reconstruct, reassemble and re‑erect; corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law; corresponding WHS law means— (a) the Dangerous Substances Act 1979; or (b) the Explosives Act 1936; or (c) the Fair Work Act 1994; or (d) the Mines and Works Inspection Act 1920; or (e) the Offshore Minerals Act 2000; or (f) the Petroleum (Submerged Lands) Act 1982; or (g) the Petroleum and Geothermal Energy Act 2000; or (h) the Petroleum Products Regulation Act 1995; or (i) any other Act brought within the ambit of this definition by the regulations; or (j) a law of another Australian jurisdiction corresponding, or substantially corresponding, to this Act; or (k) a law of another Australian jurisdiction brought within the ambit of this definition by the regulations; dangerous incident, in Part 3—see section 37; demolition includes deconstruction; Department means the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act; design, in relation to plant, a substance or a structure includes— (a) design of part of the plant, substance or structure; and (b) redesign or modify a design; disclose, in relation to information, includes divulge or communicate to any person or publish; discriminatory conduct, in Part 6—see section 105; document includes record; emergency services worker means— (a) a police officer; or (b) a member of the South Australian Metropolitan Fire Service, the South Australian Country Fire Service or the South Australian State Emergency Service; or (c) a fire control officer appointed under the Fire and Emergency Services Act 2005; or (d) the State Co‑ordinator or an authorised officer under the Emergency Management Act 2004; or (e) a person brought within the ambit of this definition by the regulations; employee record, in relation to an employee, has the same meaning as it has in the Privacy Act 1988 of the Commonwealth; employer organisation means— (a) an employer organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (b) an association of employers that is registered or recognised as such an association (however described) under a State or Territory industrial law; engage in conduct means doing an act or omitting to do an act; Executive Director means the person for the time being holding, or acting in, the position of Executive Director under Schedule 5 clause 3; Fair Work Act means the Fair Work Act 2009 of the Commonwealth; handling includes transport; health means physical and psychological health; health and safety duty—see section 30; health and safety representative, in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member; import means to bring into the jurisdiction from outside Australia; industrial manslaughter offence—see section 30A; inspector means an inspector appointed under Part 9; internal reviewer means— (b) a person appointed by the regulator under section 225; local authority means a council under the Local Government Act 1999; Magistrates Court means the Magistrates Court of South Australia; medical treatment means treatment by a medical practitioner registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); notifiable incident—see section 35; officer means— (a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or (b) an officer of the Crown within the meaning of section 247; or (c) an officer of a public authority within the meaning of section 252, other than an elected member of a local authority acting in that capacity; official of a union, in Part 7—see section 116; personal information has the same meaning as it has in the Privacy Act 1988 of the Commonwealth; person conducting a business or undertaking—see section 5; plant includes— (a) any machinery, equipment, appliance, container, implement and tool; and (b) any component of any of those things; and (c) anything fitted or connected to any of those things; prohibited reason, in Part 6—see section 106; public authority means— (a) an agency or instrumentality of the Crown; or (b) an administrative unit or department within the Public Service of this or any other State, or of the Commonwealth; reasonably practicable, in relation to a duty to ensure health and safety—see section 18; regulator means the Executive Director; relevant person conducting a business or undertaking, in Part 7—see section 116; relevant union, in Part 7—see section 116; relevant worker, in Part 7—see section 116; representative— (a) in relation to a person conducting a business or undertaking, means— (i) an employer organisation representing the person conducting the business or undertaking; or (ii) any other person that the person conducting the business or undertaking authorises to represent them; and (b) in relation to a worker, means— (i) the health and safety representative for the worker; or (ii) a union entitled to represent the industrial interests of the worker; or (iii) any other person that the worker authorises to represent them; review committee means a review committee constituted under Schedule 4; RTWSA means the Return to Work Corporation of South Australia; SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014; serious injury or illness, in Part 3—see section 36; State includes Territory; State or Territory industrial law has the same meaning as it has in the Fair Work Act; structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes— (a) buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels); and (b) any component of a structure; and (c) part of a structure; substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour; supply—see section 6; this Act includes the regulations; union means— (a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law; volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out‑of‑pocket expenses); WHS entry permit means a WHS entry permit issued under Part 7; WHS entry permit holder means a person who holds a WHS entry permit; WHS undertaking means an undertaking given under section 216(1); work group means a work group determined under Part 5; worker—see section 7; workplace—see section 8. (2) For the purposes of Part 2, a person engages in conduct with gross negligence if the conduct involves— (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk of causing the death or serious injury or illness of an individual, that the conduct merits criminal punishment for the offence. (3) For the purposes of Part 2, a person is reckless as to the risk to an individual of death or serious injury or illness if— (a) the person is aware of a substantial risk that death or serious injury or illness will happen; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (4) For the purposes of Part 2, the question of whether taking a risk is unjustifiable is a question of fact.

Subdiv 2

Other important terms

Subdivision 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. (3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership. (4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking. (5) An elected member of a local authority does not in that capacity conduct a business or undertaking. (6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. (7) A volunteer association does not conduct a business or undertaking for the purposes of this Act. (8) In this section— volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. 6—Meaning of supply (1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire‑purchase, whether as principal or agent. (2) A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied. (3) A supply of a thing does not include— (a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or (b) a prescribed supply. (4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if— (a) the financier has, in the course of the financier's business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and (b) the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer. (5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier's customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier's customer. 7—Meaning of worker (1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as— (a) an employee; or (b) a contractor or subcontractor; or (c) an employee of a contractor or subcontractor; or (d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or (e) an outworker; or (f) an apprentice or trainee; or (g) a student gaining work experience; or (h) a volunteer; or (i) a person of a prescribed class. (2) For 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. (3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking. 8—Meaning of workplace (1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. (2) In this section— place includes— (a) a vehicle, vessel, aircraft or other mobile structure; and (b) any waters and any installation on land, on the bed of any waters or floating on any waters. 9—Examples and notes (1) An example at the foot of a provision forms part of this Act. (2) A note at the foot of a provision forms part of this Act.

Div 4

Application of Act

Division 4—Application of Act 10—Act binds the Crown (1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities. (2) The Crown is liable for an offence against this Act. (3) Without limiting subsection (1), the Crown is liable for a contravention of a WHS civil penalty provision. (4) Section 7(2) of the Crown Proceedings Act 1992 does not apply in respect of proceedings before SAET under Part 5 Division 7A. 11—Extraterritorial application (1) It is the intention of the Parliament of the State that this Act should, so far as possible, operate to the full extent of the extraterritorial legislative power of the State. (2) Without limiting subsection (1), this Act applies in relation to work on a South Australian ship whether or not the ship is within the coastal waters of the State. ship includes a boat, vessel or craft; South Australian ship means a ship— (a) that is registered in the State; or (b) that is owned or under charter by the Crown; or (c) that is owned or under charter by a body corporate or other person— (i) whose principal office or place of business is in the State; or (ii) whose principal office or place of business with respect to the control or management of the ship is in the State. 12—Scope (1) The provisions of this Act are in addition to and do not derogate from the provisions of any other Act. (2) The provisions of this Act do not limit or derogate from any civil right or remedy and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied.

Div 5

SafeWork SA Advisory Committee

Division 5—SafeWork SA Advisory Committee 12A—Establishment of committee (1) The SafeWork SA Advisory Committee is established. (2) The advisory committee consists of 15 members of whom— (a) the following will be ex officio members: (i) the Minister; (ii) the regulator; (iii) the person for the time being holding, or acting in, the position of Chief Executive of the Department; (iv) the person for the time being holding, or acting in, the position of Chief Executive Officer of RTWSA; and (b) the following will be appointed by the Minister: (i) the presiding member; (ii) 4 members who, in the opinion of the Minister, are suitable to represent the interests of employees (following consultation with the United Trades and Labour Council of South Australia); (iii) 4 members who, in the opinion of the Minister, are suitable to represent the interests of employers (following consultation with the South Australian Employer's Chamber of Commerce and Industry and other associations representing the interests of employers); (iv) 1 member who, in the opinion of the Minister, is suitable to represent the interests of victims and their families; (v) 1 member who, in the opinion of the Minister, is suitable to represent the interests of work health and safety professionals. (3) Subject to subsection (4), a member of the advisory committee may appoint a suitable person to act as an alternate member and a person so appointed may, in the member's absence, act as a member of the committee. (4) A member of the advisory committee (other than the Minister) may only appoint someone under subsection (3) with the approval of the Minister. 12B—Terms and conditions of office (1) Subject to this section, an appointed member of the advisory committee will be appointed for a term not exceeding 3 years and will, on the expiration of a term of office, be eligible for reappointment. (2) A member of the advisory committee is entitled to fees, allowances and expenses approved by the Governor. (3) A member may be removed from office by the Minister if the member— (a) becomes mentally or physically incapable of carrying out satisfactorily their functions; or (b) is guilty of neglect of duty or dishonourable conduct; or (c) having been appointed as an officer or employee of an organisation representing the interests of a particular class of person, ceases to be an officer or employee of that organisation. (4) The office of an appointed member becomes vacant if the member— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice addressed to the Minister; or (d) is removed from office under subsection (3). (5) On the office of an appointed member becoming vacant, a person must be appointed in accordance with this Act to the vacant office. 12C—Functions (1) The advisory committee has the following functions: (a) to provide advice and recommendations on work health and safety matters to the regulator and the Minister, either on its own initiative or on request; (b) to consider and advise on ways to improve communication, consultation and collaboration between work health and safety stakeholders; (c) to consider and advise on compliance and education campaigns by the regulator; (d) to make recommendations in relation to approved codes of practice; (e) any other functions determined by the Minister or prescribed by the regulations. (2) For the purpose of performing its functions, the advisory committee may, with the approval of the Minister— (a) establish subcommittees (which may, but need not, consist of or include members of the advisory committee) to advise the advisory committee on any aspects of its functions, or to assist in the performance of its functions; and (b) conduct public meetings, discussions and inquiries on questions arising before the committee, and may do any other thing that is necessary for, or incidental to, the performance of its functions. 12D—Procedures at meetings (1) The presiding member (or their alternate member appointed under section 12A(3)) will preside at meetings of the advisory committee or, in their absence, a member chosen by those present will preside. (2) Subject to subsection (3), the advisory committee may act notwithstanding vacancies in its membership. (3) Subject to subsection (4), 8 members constitute a quorum of the advisory committee and no business may be transacted at a meeting of the committee unless a quorum is present. (4) A quorum will only be taken to be present if— (a) at least 1 member present is a member described in section 12A(2)(b)(ii); and (b) at least 1 member present is a member described in section 12A(2)(b)(iii). (5) Each member present at a meeting of the advisory committee is entitled to 1 vote on a matter arising for decision at the meeting and, in the event of an equality of votes, the person presiding is entitled to a second, or casting vote. (6) A decision carried by a majority of the votes cast by the members present at a meeting of the advisory committee is a decision of the committee. (7) Subject to this Act, the advisory committee may determine its own procedures. 12E—Conflict of interest A member of the advisory committee will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 by reason only of the fact that the member has an interest in a matter that is shared in common with employees generally or employers generally, or a substantial section of employers or employees. 12F—Confidentiality A member of the advisory committee who, as a member of the committee, acquires information that— (a) the member knows to be of a confidential nature; or (b) the committee classifies as confidential information, must not disclose the information without the approval of the Minister. 12G—Use of staff and facilities (1) The advisory committee may, with the agreement of the Minister, make use of the services of the staff, equipment or facilities of the Department. (2) The advisory committee may, with the agreement of a relevant agency or instrumentality, make use of the services of staff, equipment or facilities of any other agency or instrumentality of the Crown.

Part 2

Health and safety duties

Part 2—Health and safety duties Subdivision 1—Principles that apply to duties 13—Principles that apply to duties This Subdivision sets out the principles that apply to all duties that persons have under this Act. The principles will apply to duties under this Part and other Parts of this Act such as duties relating to incident notification and consultation. 14—Duties not transferrable A duty cannot be transferred to another person. 15—Person may have more than one duty A person can have more than one duty by virtue of being in more than one class of duty holder. 16—More than one person can have a duty (1) More than one 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 one person has a duty for the same matter, each person— (a) retains responsibility for the person's duty in relation to the matter; and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. 17—Management of risks (1) A duty imposed on a person to ensure health and safety requires the person— (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. (2) A person must comply with subsection (1) to the extent to which the person has the capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity. Subdivision 2—What is reasonably practicable 18—What is reasonably practicable in ensuring health and safety In this Act— reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including— (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about— (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Division 2—Primary duty of care 19—Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of— (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable— (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work; and (d) the safe use, handling and storage of plant, structures and substances; and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) If— (a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and (b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. (5) A self‑employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. A self‑employed person is also a person conducting a business or undertaking for the purposes of this section. Division 3—Further duties of persons conducting businesses or undertakings 20—Duty of persons conducting businesses or undertakings involving management or control of workplaces 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 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— (a) who, at a workplace, use the plant, substance or structure for a 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, decommissioning, dismantling or disposal of the plant; or (ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance; or (iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure; or (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning— (a) each purpose for which the plant, substance or structure was designed; and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2)(a) to (e). (5) The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters 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). 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— (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning— (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e). (5) The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters 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— (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The importer must— (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning— (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e). (5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters 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). 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 (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or Inspection, storage, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The supplier must— (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2); or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning— (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)(a) to (e). (5) The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters 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). 26—Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures (1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons— (a) who install or construct the plant or structure at a workplace; or (b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or (c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or (d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c). Division 4—Duty of officers, workers and other persons 27—Duty of officers (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. (2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. (3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps— (a) to acquire and keep up‑to‑date knowledge of work health and safety matters; and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and Examples— For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include: • reporting notifiable incidents; • consulting with workers; • ensuring compliance with notices issued under this Act; • ensuring the provision of training and instruction to workers about work health and safety; • ensuring that health and safety representatives receive their entitlements to training. (f) to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e). 28—Duties of workers While at work, a worker must— (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and (d) co‑operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. 29—Duties of other persons at the workplace A person at a workplace (whether or not the person has another duty under this Part) must— (a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act. Division 5—Offences and penalties 30—Health and safety duty health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part. 30A—Industrial manslaughter (1) A person (being a person conducting a business or undertaking or an officer of a person conducting a business or undertaking) commits an industrial manslaughter offence if— (b) the person engages in conduct that breaches that duty; and (c) the conduct causes the death of an individual to whom that duty is owed; and (d) the person— (i) engages in the conduct with gross negligence; or (ii) is reckless as to the risk to an individual of death or serious injury or illness. (a) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—20 years imprisonment; (b) in the case of an offence committed by a body corporate—$18 000 000. (2) For the purposes of this section, conduct causes the death of an individual if it substantially contributes to the death. (3) If at the trial of a person for an offence against this section the trier of fact is not satisfied that the accused is guilty of the offence charged but is satisfied that the accused is guilty of a Category 1 offence, a Category 2 offence or a Category 3 offence, the trier of fact may bring a verdict that the accused is guilty of that offence if the proceedings for the offence charged commenced within the applicable limitation period for the lesser offence. (4) To avoid doubt, an offence against this section is a major indictable offence. 31—Gross 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 exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and (c) the person— (i) engages in the conduct with gross negligence; or (ii) is reckless as to the risk to an individual of death or serious injury or illness. (a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300 000 or 5 years imprisonment or both; (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600 000 or 5 years imprisonment or both; (c) in the case of an offence committed by a body corporate—$3 000 000. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. 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. (a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150 000; (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300 000; (c) in the case of an offence committed by a body corporate—$1 500 000. 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. (a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50 000; (b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100 000; (c) in the case of an offence committed by a body corporate—$500 000. 34—Exceptions (1) To avoid doubt, an officer of a prescribed strata/community titles corporation who is a volunteer does not commit an offence for a failure to comply with a duty under section 27 (but may be liable for a failure to comply with another duty under this Act). (2) A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29. (3) 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. (4) However— (a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27; and (b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29. (5) In this section— prescribed strata/community titles corporation means— (a) a body corporate established under the Strata Titles Act 1988 or the Community Titles Act 1996; or (b) a company that holds land for the purposes of a building unit scheme consisting of 2 or more properties designed for separate occupation where the buildings comprising the scheme were erected before 22 February 1968.

Part 3

Incident notification

Part 3—Incident notification 35—What is a notifiable incident In this Act— notifiable incident means— (a) the death of a person; or (b) a serious injury or illness of a person; or (c) a dangerous incident. 36—What is a serious injury or illness serious injury or illness of a person means an injury or illness requiring the person to have— (a) immediate treatment as an in‑patient in a hospital; or (b) immediate treatment for— (i) the amputation of any part of his or her body; or (ii) a serious head injury; or (iii) a serious eye injury; or (iv) a serious burn; or (v) the separation of his or her skin from an underlying tissue (such as degloving or scalping); or (vi) a spinal injury; or (vii) the loss of a bodily function; or (viii) serious lacerations; or (c) medical treatment within 48 hours of exposure to a substance, and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind. 37—What is a dangerous incident dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person's health or safety emanating from an immediate or imminent exposure to— (a) an uncontrolled escape, spillage or leakage of a substance; or (b) an uncontrolled implosion, explosion or fire; or (c) an uncontrolled escape of gas or steam; or (d) an uncontrolled escape of a pressurised substance; or (e) electric shock; or (f) the fall or release from a height of any plant, substance or thing; or (g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations; or (h) the collapse or partial collapse of a structure; or (i) the collapse or failure of an excavation or of any shoring supporting an excavation; or (j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or (k) the interruption of the main system of ventilation in an underground excavation or tunnel; or (l) any other event prescribed by the regulations, but does not include an incident of a prescribed kind. 38—Duty to notify of notifiable incidents (1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. (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. The written notice can be given by fax, email or other electronic means. (4) A person giving notice by telephone must— (a) give the details of the incident requested by the regulator; and (b) if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made. (5) A written notice must be in a form, or contain the details, approved by the regulator. (6) If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking— (a) details of the information received; or (b) an acknowledgement of receiving the notice. (7) A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section. 39—Duty to preserve incident sites (1) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs. (2) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident. (3) Subsection (1) does not prevent any action— (a) to assist an injured person; or (b) to remove a deceased person; or (c) that is essential to make the site safe or to minimise the risk of a further notifiable incident; or (d) that is associated with a police investigation; or (e) for which an inspector or the regulator has given permission.

Part 4

Authorisations

Part 4—Authorisations 40—Meaning of authorised authorised means authorised by a licence, permit, registration or other authority (however described) as required by the regulations. 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) the regulations require the workplace or workplaces in that class of workplace to be authorised; and (b) the workplace is not authorised in accordance with the regulations. (a) in the case of an individual—$50 000; (b) in the case of a body corporate—$250 000. 42—Requirements for authorisation of plant or substance (1) A person must not use plant or a substance at a workplace if— (a) the regulations require 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 regulations. (2) A person who conducts a business or undertaking must not direct or allow a worker to use the plant or substance at a workplace if— (a) the regulations require 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 regulations. 43—Requirements for authorisation of work (1) A person must not carry out work at a workplace if— (a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and (b) the person, or the person on whose behalf the work is carried out, is not authorised in accordance with the regulations. (2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if— (a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and (b) the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with the regulations. 44—Requirements for prescribed qualifications or experience (1) A person must not carry out work at a workplace if— (a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and (b) the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience. (2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if— (a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience; and (b) the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience. 45—Requirement to comply with conditions of authorisation A person must comply with the conditions of any authorisation given to that person under the regulations.

Part 5

Consultation, representation and participation

Part 5—Consultation, representation and participation Division 1—Consultation, co‑operation and co‑ordination between duty holders 46—Duty to consult with other duty holders If more than one person has a duty in respect of 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. Division 2—Consultation with workers 47—Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, 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 matter; and (c) that the views of workers are taken into account by the person conducting the business or undertaking; and (d) that the workers consulted are advised of the outcome of the consultation in a timely 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; or (f) when carrying out any other activity prescribed by the regulations for the purposes of this section. Division 3—Health and safety representatives Subdivision 1—Request for election of health and safety representatives 50—Request for election of health and safety representative A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for one or more health and safety representatives to represent workers who carry out work for the business or undertaking. Subdivision 2—Determination of work groups 51—Determination of work groups (1) If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of one 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 one or more health and safety representatives. (3) A work group may be determined for workers at one 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 will 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 within 14 days after a request is made under section 50. (3) The purpose of the negotiations is to determine— (a) the number and composition of work groups to be represented by health and safety representatives; and (b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and (c) the workplace or workplaces to which the work groups will apply. (4) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement. (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) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups. 53—Notice to workers (1) The person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement. (2) The person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement. 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), 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 within 14 days after— (i) a request is made under section 50; or (ii) 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.

Subdiv 3

Multiple-business work groups

Subdivision 3—Multiple-business work groups 55—Determination of work groups of multiple businesses (1) Work groups may be determined for workers carrying out work for two or more persons conducting businesses or undertakings at one or more workplaces. (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 agreement. (4) The determination of one or more work groups under this Subdivision does not— (a) prevent the determination under this Subdivision or Subdivision 2 of any other work group of the workers concerned; or (b) affect any work groups of those workers that have already been determined under this Subdivision or Subdivision 2. 56—Negotiation of agreement for work groups of multiple businesses (1) Negotiations concerning work groups under this Subdivision must be directed only at the following: (a) the number and composition of work groups to be represented by health and safety representatives; (b) the number of health and safety representatives and deputy health and safety representatives (if any) for each work group; (c) the workplace or workplaces to which the work groups will apply; (d) the businesses or undertakings to which the work groups will apply. (2) A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations. (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) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements. 57—Notice to workers (1) A person conducting a business or undertaking involved in negotiations to determine a work group must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of any work groups determined by agreement. (2) A person conducting a business or undertaking involved in negotiations for the variation of an agreement concerning the determination of a work group or groups must, as soon as practicable after the negotiations are completed, notify the workers of the outcome of the negotiations and of the variation (if any) to the agreement. 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; 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 two 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.

Subdiv 4

Election of health and safety representatives

Subdivision 4—Election of health and safety representatives 60—Eligibility to be elected A worker is— (a) eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group; and (b) not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative. 61—Procedure for election of health and safety representatives (1) The workers in a work group may determine how an election of a health and safety representative for the work group is to be conducted. (2) However, an election must comply with the procedures (if any) prescribed by the regulations. (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 the regulations 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 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 regulations. (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 SAET 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 SAET is satisfied that a ground in subsection (1) is made out, SAET 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 representative. (3) Sections 64, 65, 66, 72 and 73 apply to deputy health and safety representatives in the same way as they apply to health and safety representatives.

Subdiv 5

Powers and functions of health and safety representatives

Subdivision 5—Powers and functions of health and safety representatives 68—Powers and functions of health and safety representatives (1) The powers and functions of a health and safety representative for a work group are— (a) to represent the workers in the work group in matters relating to work health and safety; and (b) to monitor the measures taken by the person conducting the relevant business or undertaking, or that person's representative, in compliance with this Act in relation to workers in the work group; and (c) to investigate complaints from members of the work group relating to work health and safety; and (d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking. (2) In exercising a power or performing a function, the health and safety representative may— (a) inspect the workplace or any part of the workplace at which a worker in the work group works— (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace; and (ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; and (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 one 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. A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part 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— (5) 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.

Subdiv 6

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

Subdivision 6—Obligations of person conducting business or undertaking to health and safety representatives 70—General obligations of person conducting business or undertaking (1) The person conducting a business or undertaking must— (a) consult, so far as is reasonably practicable, on work health and safety matters with any health and safety representative for a work group of workers carrying out work for the business or undertaking; and (b) confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and (c) allow any health and safety representative for the work group to have access to information 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 one 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 the regulations 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 the regulations. (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 section 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 the assistant's WHS entry permit is suspended or the assistant is disqualified from holding a WHS entry permit. (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) A health and safety representative is entitled to take at least the prescribed number of days per year off work for the purposes of attending a course of training in work health and safety that is— (a) approved by the regulator; and (b) a course that the health and safety representative is entitled under the regulations to attend; and (c) subject to subsection (6), chosen by the health and safety representative, in consultation with the person conducting the relevant business or undertaking. (2) The person conducting a business or undertaking must, at the request of 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 under subsection (1) (after undertaking the consultation referred to in subsection (1)(c)). (3) The person conducting the business or undertaking must— (a) as soon as practicable within the period of 3 months after the request is made, allow the health and safety representative time off work to attend the course of training; and (b) pay the course fees and any other reasonable costs associated with the health and safety representative's attendance at the course of training. (4) If— (a) a health and safety representative represents a work group of the workers of more than one 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 representative. (5) 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. (6) 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 (3) as to the matters set out in subsections (1)(c) and (3), either party may ask the regulator to appoint an inspector to decide the matter. (7) The inspector may decide the matter in accordance with this section. (8) 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 (7). (9) For the purposes of this section, the prescribed number of days, in relation to a health and safety representative, is— (a) during the first year of the health and safety representative's term of office—5 days; and (b) during the second year of the health and safety representative's term of office—3 days; and (c) during the third year of the health and safety representative's term of office—2 days, (and if the health and safety representative is re‑elected at the end of a term of office then paragraphs (a), (b) and (c) will again apply during that new term of office). 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(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 undertaking; and (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. Division 4—Health and safety committees 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 the regulations to do so, within the time prescribed by the regulations. (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. If a health and safety committee is not required to be established, other consultation procedures can be established for a workplace—see Division 2 of this Part. 76—Constitution of committee (1) Subject to subsections (2) to (4), 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 one or more of their number (who consent) to be members of the committee. (4) At least half of the members of the committee must be workers who are not nominated by the person conducting the business or undertaking. (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 co‑operation 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 the regulations 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) The 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 the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (3) The 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. (4) Despite subsection (3), the 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— Division 5—Issue resolution 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 one business or undertaking, the person conducting each business or undertaking or the person's representative; (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 in the regulations. (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 6 of this Part to cease work; or (b) a health and safety representative from issuing a provisional improvement notice or a direction under Division 6 of this Part 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.

Div 6

Right to cease or direct cessation of unsafe work

Division 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. 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. 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 of this Part. Notification of a dispute to SAET under Division 7A does not affect the operation of paragraph (b). (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 of this Part 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 the regulations referred to in section 72(1)(b); 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 corresponding WHS law. 85A—Reasonable concern In determining whether or not a worker or a health and safety representative had a reasonable concern for the purposes of sections 84 and 85, the availability of dispute resolution processes under Division 7A, and whether or not a notice has been given to SAET under that Division, are not relevant considerations. 86—Worker to notify if ceases work A worker who ceases work under this Division (otherwise than under a direction from a health and safety representative) 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. The issue resolution procedures in Division 5 of this Part can also be used to resolve an issue arising in relation to the cessation of work.

Div 7

Provisional improvement notices

Division 7—Provisional improvement notices 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 the regulations referred to in section 72(1)(b); 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 corresponding WHS law. (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. 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 to attend at the workplace. (2) The person must comply with the provisional improvement notice within the time specified in the notice. (a) in the case of an individual—$50 000; (b) in the case of a body corporate—$250 000. 100—Request for review of provisional improvement notice (1) Within 7 days after a provisional improvement notice is issued to a person— (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.

Div 7A

Work health and safety disputes

Division 7A—Work health and safety disputes 102A—Definitions for Division dispute means a dispute about a WHS matter that exists between any of the following persons: (a) a person conducting a business or undertaking; (b) a worker affected by the WHS matter (or the personal representative of a deceased worker who was affected by the WHS matter); (c) a health and safety representative affected by the WHS matter; (d) a relevant union for the WHS matter; relevant union for a WHS matter, means a union— (a) of which a worker who works at the workplace is a member or eligible to be a member; and (b) whose rules entitle the union to represent the worker's industrial interests; WHS matter means any of the following matters: (a) access to information by a health and safety representative under section 70(1)(c); (b) a request by a health and safety representative for an assistant to have access to the workplace under section 70(1)(g); (c) a matter about work health and safety that is an issue to which Division 5 applies; (d) an issue about cessation of work under Division 6. 102B—Notice of dispute may be given to SAET (1) This section applies if a dispute remains unresolved at least 24 hours after any of the parties to the dispute has, under another provision of this Part, asked the regulator to appoint an inspector to assist in resolving the dispute. (2) A party to the dispute may give SAET written notice of the dispute. (3) The notice must state each of the following matters: (a) the names of the parties to the dispute; (b) the workplace where the dispute exists; (c) the WHS matter the subject of the dispute; (d) if, under this Part, an inspector has been appointed to assist the parties to reach an agreement or resolve the dispute—whether a decision made by the inspector to exercise, or not to exercise, compliance powers under Part 10 is being reviewed under Part 12. (4) On receiving the notice, SAET must publish it on a website prescribed by rules made under the South Australian Employment Tribunal Act 2014. (5) If a relevant union for a worker affected by the WHS matter is not named as a party to the dispute in the notice, the union may notify SAET, in writing, that the union wants to participate in the resolution of the dispute. (6) A relevant union that gives notice under subsection (5) is taken to be a party to the dispute for the purposes of this Division. 102C—Action for settling dispute (1) This section applies if notice of a dispute has been given under section 102B. (2) SAET (constituted as an industrial relations commission) may deal with the dispute in any way it thinks fit for the prompt settlement of the dispute, including— (a) by means of mediation, conciliation or arbitration; or (b) by making a recommendation or expressing an opinion; or (c) if there are reasonable grounds to believe that an offence has been committed under this Act, by referring a matter to the regulator for potential investigation. (3) Without limiting subsection (2), if SAET deals with the dispute by arbitration, SAET may make any order it considers appropriate for the prompt settlement of the dispute. (4) A person must not contravene an order made under subsection (3). (b) in the case of a body corporate—$100 000. 102D—Review of particular decisions made by inspector (1) In dealing with the dispute, SAET (constituted as an industrial relations commission) may review a decision (a compliance decision) made by an inspector to exercise, or not to exercise, compliance powers under Part 10 to assist in resolving the dispute. (2) If SAET reviews a compliance decision under subsection (1), SAET— (a) may decide to— (i) confirm or vary the compliance decision; or (ii) set aside the compliance decision and substitute another decision that SAET considers appropriate; or (iii) set aside the compliance decision and return the matter to the inspector who made it with directions that SAET considers appropriate; and (b) must give the regulator notice of— (i) SAET's decision to review the compliance decision; and (ii) any decision made by SAET under paragraph (a) (the review decision). (3) A notice mentioned in subsection (2)(b)(i) must state that any review of the compliance decision, or any stay of the operation of the compliance decision, under Part 12 ends on the making of SAET's decision to review the compliance decision under this section. (4) Despite section 102C(3), SAET must not make an order staying the operation of the compliance decision. (5) A compliance decision reviewed by SAET under this section is, from the time SAET decides to review the decision, taken not to be a reviewable decision under section 223. (6) If the compliance decision is or has been the subject of review proceedings under Part 12— (a) any review of the compliance decision, or any stay of the operation of the compliance decision, under that Part ends when SAET decides to review the compliance decision; and (b) subsection (5) does not affect the validity of any action taken under Part 12 before the making of SAET's decision to review the compliance decision. 102E—Decision not to deal with dispute (1) SAET (constituted as an industrial relations commission) may decide not to deal with a dispute about a WHS matter if— (a) notice of the dispute was not given in accordance with section 102B; or (b) SAET considers the WHS matter the subject of the dispute is frivolous, vexatious, misconceived or lacking in substance. (2) Subsection (1) does not limit the grounds on which SAET may decide not to deal with the dispute. (3) SAET may make a decision under subsection (1) on its own initiative. 102F—Costs (1) A party to a dispute notified to SAET under this Division must bear the party's own costs in relation to the dispute. (2) However, SAET may order a party (the first party) to pay costs incurred by another party in relation to the dispute if SAET is satisfied— (a) the WHS matter the subject of the dispute is frivolous, vexatious, misconceived or lacking in substance; and (b) the first party notified the dispute to SAET or has otherwise acted without reasonable cause in relation to the dispute. (3) If SAET orders the payment of costs, the amount ordered may be recovered in a court of competent jurisdiction as a debt.

Div 8

Part not to apply to prisoners

Division 8—Part not to apply to prisoners 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.

Part 6

Discriminatory, coercive and misleading conduct

Part 6—Discriminatory, coercive and misleading conduct Division 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 was the dominant reason for the discriminatory conduct. Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason. 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 (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 (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 conduct A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104. (b) in the case of a body corporate—$500 000. Civil proceedings may be brought under Division 3 of this Part if a person requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason. 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 this Act. Civil proceedings may be brought under Division 3 of this Part 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 person. (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. 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 proceedings under this Act; or (c) ability to make a complaint or inquiry to a person or body empowered under this Act to seek compliance with this Act. (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. Division 2—Criminal proceedings in relation to discriminatory conduct 110—Proof of discriminatory conduct (1) This section applies if in proceedings for an offence of contravening section 104 or 107, 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) existed at the time the discriminatory conduct was engaged in. (2) If it is alleged that the discriminatory conduct was engaged in for a prohibited reason, that reason 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. 111—Order for compensation or reinstatement If a person is convicted or found guilty of an offence under section 104 or 107, 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 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 SAET for an order under this section. (2) SAET may make one 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 (b) requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason; or (c) contravened section 108. (3) For the purposes of subsection (2), the orders that SAET may make are— (a) an injunction; or (b) in the case of 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 SAET considers appropriate; or (c) in the case of 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 SAET 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 was a substantial reason for the conduct. (5) Nothing in this section is to be construed as limiting any other power of SAET. (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. Division 4—General 114—General provisions relating to orders (1) The making of an order in a proceeding under section 112 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 or 107 in relation to the same conduct. (2) If SAET 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 in a proceeding for an offence under section 104 or 107 in relation to the same conduct. (3) If a court makes an order under section 111 in a proceeding for an offence under section 104 or 107, SAET 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 3 of this Part 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 3 of this Part if the person has received compensation for the matter under a law of the Commonwealth or a State; or (c) commence or continue an application under Division 3 of this Part 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

Part 7—Workplace entry by WHS entry permit holders Division 7 of Part 13 sets out the procedure in relation to the bringing of proceedings in relation to WHS civil penalty provisions. 116—Definitions 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. Division 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 continuing and involves a risk to the health or safety of a relevant worker. (3) Furthermore, a WHS entry permit holder must— (a) give consideration as to whether it is reasonably practicable to give notice to the regulator about the proposed entry before exercising a power under subsection (1) in order to provide an opportunity for an inspector to attend at the workplace at the time of entry; and (b) if it is reasonably practicable to give notice to the regulator about the proposed entry, comply with any requirement prescribed by the regulations in relation to giving such a notice under this section. (4) The regulator must establish and maintain a policy that relates to the circumstances when inspectors will attend at workplaces when notified of the proposed entry of WHS entry permit holders under this section. (5) The regulator must ensure that the policy is published on a website that is maintained or used by the Department and the Minister must cause a copy of the policy to be laid before both Houses of Parliament. (6) If a WHS entry permit holder exercises a power of entry under this section without being accompanied by an inspector who has attended at the workplace in accordance with a policy under subsection (4)— (a) the WHS entry permit holder may furnish a report on the outcome of his or her inquiries at the workplace to the regulator in accordance with the regulations; and (b) on the receipt of a report under paragraph (a), the regulator must— (i) give consideration to what action (if any) should be taken on account of any suspected contravention of this Act outlined in the report; and (ii) if any such action is taken—advise the WHS entry permit holder of the action taken. 118—Rights that may be exercised while at workplace (1) While at the workplace under this Division, the WHS entry permit holder may do all or any 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; (ab) during the inspection— (i) take measurements or conduct tests directly relevant to the suspected contravention; and (ii) take photos and videos directly 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; (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. (1a) In taking measurements and conducting tests under subsection (1)(ab), the WHS entry permit holder— (a) may bring to the workplace and use equipment and materials that are reasonably necessary for the measurements or tests; and (b) must take account of the need to take the measurements and conduct the tests in compliance with this Act and other relevant laws. (1b) Despite subsection (1)(ab)— (a) insofar as is reasonably practicable, a photo or video must not be taken that records the image or voice of a person other than— (i) a relevant worker; or (ii) a worker at the workplace whose actions are directly affecting a relevant worker; or (iii) an inspector or emergency services worker attending the workplace; or (iv) a WHS entry permit holder attending the workplace; and (b) a photo or video must not be live streamed. (1c) Nothing in this section prevents a photo or video being taken for the purpose of documenting a person hindering or obstructing another person in contravention of this Part. (2) Despite subsection (1)— (a) the right of a WHS entry permit holder to require copies of a document under subsection (1)(d) is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder); and (b) the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. See also section 148 and the Privacy Act 1988 of the Commonwealth in relation to limits on the disclosure and use of information collected under this section. (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 a reasonable excuse. 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 the regulations, 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 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. (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 regulations. (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. (6) However, the right of a WHS entry permit holder to require copies of a document under this section is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder). Division 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, one 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 regulations. (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 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: $20 000. 124—WHS entry permit holder must also hold permit under other law (1) A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or under the Fair Work Act 1994. (2) A person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act for the purposes of subsection (1). 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 2 or 3 of this Part, have his or her WHS entry permit and photographic identification available for inspection by any person on request. 126—When right may be exercised A WHS entry permit holder may exercise a right under Division 2 or 3 of this Part 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 2 or 3 of this Part 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. 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. Division 5—WHS entry permits 131—Application for WHS entry permit (1) A union may apply to the authorising authority 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 statutory declaration by that person declaring that he or she— (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— (ii) the Fair Work Act 1994. (3) For the purposes of subsection (2)(c)(ii), a person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act. 132—Consideration of application In considering whether to issue a WHS entry permit, the authorising authority 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 (1) The authorising authority must not issue a WHS entry permit to an official of a union unless the authorising authority 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— (ii) the Fair Work Act 1994. (2) For the purposes of subsection (1)(c)(ii), a person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act. 134—Issue of WHS entry permit The authorising authority may issue a WHS entry permit to a person if the authorising authority has taken into account the matters in section 132 and is satisfied about the matters in section 133. 135—Conditions on WHS entry permit The authorising authority 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— (ii) the Fair Work Act 1994 (being when the relevant person ceases to have a right of entry under section 140 of that 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— (i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the Fair Work Act 1994. (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 authorising authority for a WHS entry permit held by a person to be revoked: (a) the regulator; (b) the relevant person conducting a business or undertaking; (c) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under this Part; (d) any other person affected by the exercise or purported exercise of a right under this Part by a WHS entry permit holder. (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 a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth, or is no longer eligible to exercise a right of entry under section 140 of the Fair Work Act 1994; 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—Authorising authority must permit WHS entry permit holder to show cause (1) If, on an application under section 138, the authorising authority is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2), the authorising authority must— (a) give the WHS entry permit holder written notice (a show cause notice); and (b) if the authorising authority considers it appropriate, suspend the operation of the WHS entry permit until the authorising authority 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 authorising authority 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 permit. 140—Determination of application (1) If the authorising authority is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make one 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; (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 authorising authority considers appropriate. (2) In deciding what action to take under subsection (1), in relation to a person, the authorising authority must take into account— (a) the seriousness of any findings of the authorising authority having regard to the object of this Act; and (b) any other matters the authority considers relevant. Division 6—Dealing with disputes 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—Authorising authority may deal with a dispute about a right of entry under this Act (1) The authorising authority 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 is reasonable). (2) The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. (3) If the authorising authority deals with the dispute by arbitration, it may make one 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 one or more persons; (e) any other order it considers appropriate. (4) The authorising authority 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; (vi) the regulator. (5) In dealing with a dispute, the authorising authority 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). In relation to liability of a body corporate see also sections 244 and 256. Division 7—Prohibitions 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. 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 2 of this Part 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 (d) the person reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988 of the Commonwealth): (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, proceedings 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. Division 8—General 149—Return of WHS entry permits (1) The person to whom a WHS entry permit is issued must return the permit to the authorising authority within 14 days of any of the following things happening: (a) the permit is revoked or suspended; (b) the permit expires. Maximum penalty: $2 000. (2) After the end of a period of suspension of a WHS entry permit, the authorising authority 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 authorising authority for the return of the permit; and (b) the permit has not expired. 150—Union to provide information to authorising authority The relevant union must advise the authorising authority 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 of the Commonwealth, (no matter when in force) cancelled or suspended or if the holder is no longer eligible to exercise a right of entry under section 140 of the Fair Work Act 1994; or (c) the union ceases to be— (i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the Fair Work Act 1994. 151—Register of WHS entry permit holders The authorising authority must keep available for public access an up to date register of WHS entry permit holders in accordance with the regulations.

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Sourced from South Australian Legislation (legislation.sa.gov.au), CC BY 4.0.

1 Work Health and Safety Act 2012

South Australia Work Health and Safety Act 2012 An Act to provide for the health, safety and welfare of persons at work; and for other purposes.

Contents Part 1—Preliminary Division 1—Introduction 1 Short title Division 2—Object 3 Object Division 3—Interpretation Subdivision 1—Definitions 4 Definitions Subdivision 2—Other important terms 5 Meaning of person conducting a business or undertaking 6 Meaning of supply 7 Meaning of worker 8 Meaning of workplace 9 Examples and notes Division 4—Application of Act 10 Act binds the Crown 11 Extraterritorial application 12 Scope Division 5—SafeWork SA Advisory Committee 12A Establishment of committee 12B Terms and conditions of office 12C Functions 12D Procedures at meetings 12E Conflict of interest 12F Confidentiality 12G Use of staff and facilities Part 2—Health and safety duties Division 1—Introductory Subdivision 1—Principles that apply to duties 13 Principles that apply to duties 14 Duties not transferrable 15 Person may have more than one duty 16 More than one person can have a duty 17 Management of risks Subdivision 2—What is reasonably practicable 18 What is reasonably practicable in ensuring health and safety Division 2—Primary duty of care 19 Primary duty of care Division 3—Further duties of persons conducting businesses or undertakings 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures 25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures 26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures Division 4—Duty of officers, workers and other persons 27 Duty of officers 28 Duties of workers 29 Duties of other persons at the workplace Division 5—Offences and penalties 30 Health and safety duty 30A Industrial manslaughter 31 Gross negligence or reckless conduct—Category 1 32 Failure to comply with health and safety duty—Category 2 33 Failure to comply with health and safety duty—Category 3 34 Exceptions Part 3—Incident notification 35 What is a notifiable incident 36 What is a serious injury or illness 37 What is a dangerous incident 38 Duty to notify of notifiable incidents 39 Duty to preserve incident sites Part 4—Authorisations 40 Meaning of authorised 41 Requirements for authorisation of workplaces 42 Requirements for authorisation of plant or substance 43 Requirements for authorisation of work 44 Requirements for prescribed qualifications or experience 45 Requirement to comply with conditions of authorisation Part 5—Consultation, representation and participation Division 1—Consultation, co‑operation and co‑ordination between duty holders 46 Duty to consult with other duty holders Division 2—Consultation with workers 47 Duty to consult workers 48 Nature of consultation 49 When consultation is required Division 3—Health and safety representatives Subdivision 1—Request for election of health and safety representatives 50 Request for election of health and safety representative Subdivision 2—Determination of work groups 51 Determination of work groups 52 Negotiations for agreement for work group 53 Notice to workers 54 Failure of negotiations Subdivision 3—Multiple-business work groups 55 Determination of work groups of multiple businesses 56 Negotiation of agreement for work groups of multiple businesses 57 Notice to workers 58 Withdrawal from negotiations or agreement involving multiple businesses 59 Effect of Subdivision on other arrangements Subdivision 4—Election of health and safety representatives 60 Eligibility to be elected 61 Procedure for election of health and safety representatives 62 Eligibility to vote 63 When election not required 64 Term of office of health and safety representative 65 Disqualification of health and safety representatives 66 Immunity of health and safety representatives 67 Deputy health and safety representatives Subdivision 5—Powers and functions of health and safety representatives 68 Powers and functions of health and safety representatives 69 Powers and functions generally limited to the particular work group Subdivision 6—Obligations of person conducting business or undertaking to health and safety representatives 70 General obligations of person conducting business or undertaking 71 Exceptions from obligations under section 70(1) 72 Obligation to train health and safety representatives 73 Obligation to share costs if multiple businesses or undertakings 74 List of health and safety representatives Division 4—Health and safety committees 75 Health and safety committees 76 Constitution of committee 77 Functions of committee 78 Meetings of committee 79 Duties of person conducting business or undertaking Division 5—Issue resolution 80 Parties to an issue 81 Resolution of health and safety issues 82 Referral of issue to regulator for resolution by inspector Division 6—Right to cease or direct cessation of unsafe work 83 Definition of cease work under this Division 84 Right of worker to cease unsafe work 85 Health and safety representative may direct that unsafe work cease 85A Reasonable concern 86 Worker to notify if ceases work 87 Alternative work 88 Continuity of engagement of worker 89 Request to regulator to appoint inspector to assist Division 7—Provisional improvement notices 90 Provisional improvement notices 91 Provisional improvement notice to be in writing 92 Contents of provisional improvement notice 93 Provisional improvement notice may give directions to remedy contravention 94 Minor changes to provisional improvement notice 95 Issue of provisional improvement notice 96 Health and safety representative may cancel notice 97 Display of provisional improvement notice 98 Formal irregularities or defects in notice 99 Offence to contravene a provisional improvement notice 100 Request for review of provisional improvement notice 101 Regulator to appoint inspector to review notice 102 Decision of inspector on review of provisional improvement notice Division 7A—Work health and safety disputes 102A Definitions for Division 102B Notice of dispute may be given to SAET 102C Action for settling dispute 102D Review of particular decisions made by inspector 102E Decision not to deal with dispute 102F Costs Division 8—Part not to apply to prisoners 103 Part does not apply to prisoners Part 6—Discriminatory, coercive and misleading conduct Division 1—Prohibition of discriminatory, coercive or misleading conduct 104 Prohibition of discriminatory conduct 105 What is discriminatory conduct 106 What is a prohibited reason 107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct 108 Prohibition of coercion or inducement 109 Misrepresentation Division 2—Criminal proceedings in relation to discriminatory conduct 110 Proof of discriminatory conduct 111 Order for compensation or reinstatement Division 3—Civil proceedings in relation to discriminatory or coercive conduct 112 Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct 113 Procedure for civil actions for discriminatory conduct Division 4—General 114 General provisions relating to orders 115 Prohibition of multiple actions Part 7—Workplace entry by WHS entry permit holders Division 1—Introductory 116 Definitions Division 2—Entry to inquire into suspected contraventions 117 Entry to inquire into suspected contraventions 118 Rights that may be exercised while at workplace 119 Notice of entry 120 Entry to inspect employee records or information held by another person Division 3—Entry to consult and advise workers 121 Entry to consult and advise workers 122 Notice of entry Division 4—Requirements for WHS entry permit holders 123 Contravening WHS entry permit conditions 124 WHS entry permit holder must also hold permit under other law 125 WHS entry permit to be available for inspection 126 When right may be exercised 127 Where the right may be exercised 128 Work health and safety requirements 129 Residential premises 130 WHS entry permit holder not required to disclose names of workers Division 5—WHS entry permits 131 Application for WHS entry permit 132 Consideration of application 133 Eligibility criteria 134 Issue of WHS entry permit 135 Conditions on WHS entry permit 136 Term of WHS entry permit 137 Expiry of WHS entry permit 138 Application to revoke WHS entry permit 139 Authorising authority must permit WHS entry permit holder to show cause 140 Determination of application Division 6—Dealing with disputes 141 Application for assistance of inspector to resolve dispute 142 Authorising authority may deal with a dispute about a right of entry under this Act 143 Contravening order made to deal with dispute Division 7—Prohibitions 144 Person must not refuse or delay entry of WHS entry permit holder 145 Person must not hinder or obstruct WHS entry permit holder 146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace 147 Misrepresentations about things authorised by this Part 148 Unauthorised use or disclosure of information or documents Division 8—General 149 Return of WHS entry permits 150 Union to provide information to authorising authority 151 Register of WHS entry permit holders Part 8—The regulator Division 1—Functions of regulator 152 Functions of regulator 152A Right of regulator to intervene in proceedings 153 Powers of regulator 154 Delegation by regulator Division 2—Powers of regulator to obtain information 155 Powers of regulator to obtain information Part 9—Securing compliance Division 1—Appointment of inspectors 156 Appointment of inspectors 157 Identity cards 158 Accountability of inspectors 159 Suspension and ending of appointment of inspectors Division 2—Functions and powers of inspectors 160 Functions and powers of inspectors 161 Conditions on inspectors' compliance powers 162 Inspectors subject to regulator's directions Division 3—Powers relating to entry Subdivision 1—General powers of entry 163 Powers of entry 164 Notification of entry 165 General powers on entry 166 Persons assisting inspectors Subdivision 2—Search warrants 167 Search warrants 168 Announcement before entry on warrant 169 Copy of warrant to be given to person with management or control of place Subdivision 3—Limitation on entry powers 170 Places used for residential purposes Subdivision 4—Specific powers on entry 171 Power to require production of documents and answers to questions 172 Protection against self‑incrimination 173 Warning to be given 174 Powers to copy and retain documents 175 Power to seize evidence etc 176 Inspector's power to seize dangerous workplaces and things 177 Powers supporting seizure 178 Receipt for seized things 179 Forfeiture of seized things 180 Return of seized things 181 Access to seized things Division 4—Damage and compensation 182 Damage etc to be minimised 183 Inspector to give notice of damage 184 Compensation Division 5—Other matters 185 Power to require name and address 186 Inspector may take affidavits 187 Attendance of inspector at inquiries Division 6—Offences in relation to inspectors 188 Offence to hinder or obstruct inspector 189 Offence to impersonate inspector 190 Offence to assault, threaten or intimidate inspector Part 10—Enforcement measures Division 1—Improvement notices 191 Issue of improvement notices 192 Contents of improvement notices 193 Compliance with improvement notice 194 Extension of time for compliance with improvement notices Division 2—Prohibition notices 195 Power to issue prohibition notice 196 Contents of prohibition notice 197 Compliance with prohibition notice Division 3—Non-disturbance notices 198 Issue of non‑disturbance notice 199 Contents of non‑disturbance notice 200 Compliance with non‑disturbance notice 201 Issue of subsequent notices Division 4—General requirements applying to notices 202 Application of Division 203 Notice to be in writing 204 Directions in notices 205 Recommendations in notice 206 Changes to notice by inspector 207 Regulator may vary or cancel notice 208 Formal irregularities or defects in notice 209 Issue and giving of notice 210 Display of notice Division 5—Remedial action 211 When regulator may carry out action 212 Power of the regulator to take other remedial action 213 Costs of remedial or other action Division 6—Injunctions 214 Application of Division 215 Injunctions for noncompliance with notices Part 11—Enforceable undertakings 216 Regulator may accept WHS undertakings 217 Notice of decision and reasons for decision 218 When a WHS undertaking is enforceable 219 Compliance with WHS undertaking 220 Contravention of WHS undertaking 221 Withdrawal or variation of WHS undertaking 222 Proceeding for alleged contravention Part 12—Review of decisions Division 1—Reviewable decisions 223 Which decisions are reviewable Division 2—Internal review 224 Application for internal review 225 Internal reviewer 226 Decision of internal reviewer 227 Decision on internal review 228 Stays of reviewable decisions on internal review Division 3—External review 229 Application for external review Part 13—Legal proceedings Division 1—General matters 230 Prosecutions 231 Procedure if prosecution is not brought 232 Limitation period for prosecutions 233 Multiple contraventions of health and safety duty provision Division 2—Sentencing for offences 234 Application of this Division 235 Orders generally 236 Adverse publicity orders 237 Orders for restoration 238 Work health and safety project orders 239 Release on the giving of a court‑ordered WHS undertaking 240 Injunctions 241 Training orders 242 Offence to fail to comply with order Division 3—Infringement notices 243 Infringement notices Division 4—Offences by bodies corporate 244 Imputing conduct to bodies corporate Division 5—The Crown 245 Offences and the Crown 246 WHS civil penalty provisions and the Crown 247 Officers 248 Responsible agency for the Crown Division 6—Public authorities 249 Application to public authorities that are bodies corporate 250 Proceedings against public authorities 251 Imputing conduct to public authorities 252 Officer of public authority 253 Proceedings against successors to public authorities Division 7—WHS civil penalty provisions 254 When is a provision a WHS civil penalty provision 255 Proceedings for contravention of WHS civil penalty provision 256 Involvement in contravention treated in same way as actual contravention 257 Contravening a civil penalty provision is not an offence 258 Civil proceeding rules and procedure to apply 259 Proceeding for a contravention of a WHS civil penalty provision 260 Proceeding may be brought by the regulator or an inspector 260A Proceeding may be brought by a party for contravention of certain orders relating to arbitrations 261 Limitation period for WHS civil penalty proceedings 262 Recovery of a monetary penalty 263 Civil double jeopardy 264 Criminal proceedings during civil proceedings 265 Criminal proceedings after civil proceedings 266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings Division 8—Civil liability not affected by this Act 267 Civil liability not affected by this Act Part 14—General Division 1—General provisions 268 Offence to give false or misleading information 269 Act does not affect legal professional privilege 270 Immunity from liability 271 Confidentiality of information 271A Additional ways that regulator may disclose information 272 N