Saturday, June 22, 2013

WORK HEALTH AND SAFETY ACT 2011 NO. 137, 2011 AN ACT RELATING TO WORK HEALTH AND SAFETY, AND FOR RELATED PURPOSES – ASSENTED TO 29 NOVEMBER 2011

This is not the whole Act, but is sections that have caught my eye in my research. The most important thing to realise is that EVERY TIME you interact with a council employee, police officer, tribunal member, magistrate, judge, justice, politician, agent, Centrelink staff etc, you are in a workplace and now two realities emerge.
1. THEY have to obey the words of this Act with respect to how they treat you in the workplace, and
2. YOU are entitled to be treated in a respectful manner free from BULLYING AND HARASSMENT from THEM.
                   This Act commences on 1 January 2012.
             (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; 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 as is reasonably practicable.
             (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 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

             (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, the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee (all within the meaning of the Australian Federal Police Act 1979) is:
                     (a)  a worker; and
                     (b)  at work throughout the time when the person is on duty or lawfully performing the functions of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, but not otherwise; and
                     (c)  carrying out work for a business or undertaking conducted by the Commonwealth when the person is on duty or lawfully performing the functions of the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee, but not otherwise; and
                     (d)  an employee of the Commonwealth.
          (2A)  For the purposes of this Act, a member of the Defence Force is:
                     (a)  a worker; and
                     (b)  at work throughout the time when the person is lawfully performing the functions of a member of the Defence Force, but not otherwise; and
                     (c)  carrying out work for a business or undertaking conducted by the Commonwealth when the person is lawfully performing those functions, but not otherwise; and
                     (d)  an employee of the Commonwealth.
          (2B)  For the purposes of this Act, a person who is the holder of, or acting in, an office established by a law of the Commonwealth or a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island) is:
                     (a)  a worker; and
                     (b)  at work throughout the time when the person is lawfully performing the functions of that office, but not otherwise; and
                     (c)  carrying out work for a business or undertaking conducted by the Commonwealth when the person is lawfully performing those functions, but not otherwise; and
                     (d)  an employee of the Commonwealth.
          (2C)  For the purposes of this Act, a person who constitutes, or is acting as the person constituting, a public authority is:
                     (a)  a worker; and
                     (b)  at work throughout the time when the person is lawfully performing the functions of that authority, but not otherwise; and
                     (c)  carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and
                     (d)  an employee of the public authority.
          (2D)  For the purposes of this Act, a person who is, or is acting as, a member or a deputy member of a public authority is:
                     (a)  a worker; and
                     (b)  at work throughout the time when the person is lawfully performing the functions of the public authority, but not otherwise; and
                     (c)  carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and
                     (d)  an employee of the public authority.
          (2E)  For the purposes of this Act, a person who is, or is acting as, a member or a deputy member of a body established by or under an Act establishing a public authority for a purpose associated with the performance of the functions of the public authority is:
                     (a)  a worker; and
                     (b)  at work throughout the time when the person is lawfully performing the functions of the body, but not otherwise; and
                     (c)  carrying out work for a business or undertaking conducted by the public authority when the person is lawfully performing those functions, but not otherwise; and
                     (d)  an employee of the public authority.
           (2F)  The Minister may, by instrument in writing, declare that a person of a class specified in the declaration is, for the purposes of this Act:
                     (a)  a worker; and
                     (b)  at work throughout the time specified in the declaration; and
                     (c)  carrying out work for a business or undertaking conducted by the Commonwealth, or a public authority specified in the declaration, when the person is performing functions of the kind specified in the declaration; and
                     (d)  an employee of the Commonwealth, or a public authority specified in the declaration.
          (2G)  A declaration under subsection (2F) may only be made in relation to a class of persons if persons of that class engage in activities or perform acts:
                     (a)  where the declaration specifies that persons of that class are carrying out work for a business or undertaking conducted by the Commonwealth, or are employees of the Commonwealth:
                              (i)  at the request or direction of the Commonwealth; or
                             (ii)  for the benefit of the Commonwealth; or
                            (iii)  by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or
                     (b)  where the declaration specifies that persons of that class are carrying out work for a business or undertaking conducted by a public authority specified in the declaration, or are employees of a public authority specified in the declaration:
                              (i)  at the request or direction of the public authority; or
                             (ii)  for the benefit of the public authority.
          (2H)  A declaration under subsection (2F) has effect according to its terms.
             (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.
             (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.

             (1)  This Act binds the Commonwealth.
             (2)  The Commonwealth is liable for an offence against this Act.
             (3)  Without limiting subsection (1), the Commonwealth is liable for a contravention of a WHS civil penalty provision.
The Commonwealth and public authorities
             (1)  This Act applies in relation to each of the following:
                     (a)  if the Commonwealth is conducting a business or undertaking:
                              (i)  the Commonwealth; and
                             (ii)  an officer of the Commonwealth;
                     (b)  if a public authority is conducting a business or undertaking:
                              (i)  the public authority; and
                             (ii)  an officer of the public authority;
                     (c)  to the extent that a person is a worker and carries out work in any capacity for a business or undertaking conducted by the Commonwealth or a public authority—that person;
                     (d)  to the extent that a person is a worker and is taken to carry out work for a business or undertaking conducted by the Commonwealth or a public authority because of section 7—that person;
                     (e)  if work is carried out by a worker at a place (as defined for the purposes of section 8) for a business or undertaking conducted by the Commonwealth or a public authority—that place;
                      (f)  if work is taken to be carried out by a worker at a place (as defined for the purposes of section 8) for a business or undertaking conducted by the Commonwealth or a public authority because of section 7—that place.
             (2)  For the purposes of this Act, the administration of the Australian Capital Territory, the Northern Territory or Norfolk Island is not a business or undertaking conducted by the Commonwealth.
             (3)  A corresponding WHS law does not apply in relation to the Commonwealth or a public authority.
 Non‑Commonwealth licensees
             (4)  During the transitional period for a non‑Commonwealth licensee, this Act applies in relation to each of the following:
                     (a)  if the non‑Commonwealth licensee is conducting a business or undertaking—the non‑Commonwealth licensee;
                     (b)  to the extent that a person carries out work in any capacity for the non‑Commonwealth licensee—the person;
                     (c)  if work is carried out at a place (as defined for the purposes of section 8) for a business or undertaking conducted by the non‑Commonwealth licensee—that place.
             (5)  During the transitional period for a non‑Commonwealth licensee, a corresponding WHS law does not apply in relation to the non‑Commonwealth licensee.
             (6)  The transitional period for a non‑Commonwealth licensee:
                     (a)  begins on the commencement of this Act; and
                     (b)  ends on a day prescribed by the regulations for the non‑Commonwealth licensee, or a class of non‑Commonwealth licensees of which the non‑Commonwealth licensee is a member.
             (7)  The regulations may make provisions of a transitional, application or saving nature relating to non‑Commonwealth licensees.
             (8)  Without limiting subsection (7), regulations made for the purposes of that subsection may make modifications to the provisions of this Act, the Occupational Health and Safety Act 1991 and any instrument made under this Act or the Occupational Health and Safety Act 1991.
Concurrent operation
             (9)  Both this Act and a corresponding WHS law may apply in relation to a worker or a workplace.
Double jeopardy
           (10)  If a person is convicted of an offence under this Act in relation to an act or omission, the person is not liable to be convicted of the same offence under a corresponding WHS law in relation to the same act or omission.
           (11)  If a person is convicted of an offence under a corresponding WHS law in relation to an act or omission, the person is not liable to be convicted of the same offence under this Act in relation to the same act or omission.
           (12)  If a monetary penalty is imposed on a person under this Act in relation to an act or omission that contravenes a WHS civil penalty provision, the person is not liable to a monetary penalty under a corresponding WHS law for the contravention of the same WHS civil penalty provision under that law by the same act or omission.
           (13)  If a monetary penalty is imposed on a person under a corresponding WHS law in relation to an act or omission that contravenes a WHS civil penalty provision, the person is not liable to a monetary penalty under this Act for the contravention of the same WHS civil penalty provision under this Act by the same act or omission.
             (1)  This Act does not apply in relation to any vessel (including a ship or a barge) or any structure to which the Occupational Health and Safety (Maritime Industry) Act 1993 applies.
             (2)  This Act does not apply in relation to a facility to which Schedule 3 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 applies.
                   If a person has a duty in relation to a matter under this Act and another person has a duty under a corresponding WHS law in relation to the same matter, the person who has the duty under this Act must consult, co‑operate and co‑ordinate activities with the other person.
             (1)  Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia’s national security.
             (2)  Without limiting the generality of subsection (1), the Director‑General of Security may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to a person carrying out work for the Director‑General of Security.
             (3)  A declaration under subsection (2) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.
             (4)  In administering the Australian Security Intelligence Organisation and in the exercise of the power under subsection (2), the Director‑General of Security must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia’s national security.
             (1)  Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia’s defence.
             (2)  Without limiting the generality of subsection (1), the Chief of the Defence Force may, by instrument in writing, declare that specified provisions of this Act do not apply, or apply subject to such modifications as are set out in the declaration, in relation to:
                     (a)  a specified activity; or
                     (b)  a specified member of the Defence Force; or
                     (c)  members of the Defence Force included in a specified class of such members.
             (3)  A declaration under subsection (2) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.
             (4)  In the exercise of the power under subsection (2), the Chief of the Defence Force must take into account the need to promote the objects of this Act to the greatest extent consistent with the maintenance of Australia’s defence.
             (1)  Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to:
                     (a)  an existing or future covert operation of the Australian Federal Police; or
                     (b)  an existing or future international operation of the Australian Federal Police.
Note 1:       Under section 12C, this Act does not require or permit a person to take action or refrain from taking action if that action would be, or could reasonably be expected to be, prejudicial to Australia’s national security. This might occur, for example, where the Australian Federal Police work in cooperation with an intelligence agency or respond to an imminent terrorist threat.
Note 2:       Under section 12D, this Act does not require or permit a person to take action or refrain from taking action if that action would be, or could reasonably be expected to be, prejudicial to Australia’s defence.
             (2)  In this section:
AFP appointee has the same meaning as in the Australian Federal Police Act 1979.
covert operation means the performance of a function or service under section 8 of the Australian Federal Police Act 1979 where knowledge of the operation by an unauthorised person, may:
                     (a)  reduce the effectiveness of the performance of the function or service; or
                     (b)  expose a person to the danger of physical harm or death arising from the actions of another person.
Note:          A covert operation might, for example, include an undercover operation to identify those involved in drug trafficking, but would not include general duties policing.
international operation means an operation to maintain order in a foreign country where:
                     (a)  because of the environment in which the operation is undertaken, it is not reasonably practicable to eliminate risks to the health and safety of an AFP appointee involved in the operation; and
                     (b)  the Commissioner of the Australian Federal Police has taken all steps reasonably practicable to minimise risks to the health and safety of an AFP appointee involved in the operation.
unauthorised person in relation to a covert operation, means a person, including an AFP appointee, who is not involved in the approval, planning or execution of the operation.
             (1)  Section 4AB of the Crimes Act 1914 does not apply to the provisions of this Act.
             (2)  Strict liability applies to each physical element of each offence under this Act, unless otherwise stated.
             (3)  Section 15.1 of the Criminal Code (extended geographical jurisdiction—category A) applies to an offence against this Act.
                   A duty cannot be transferred to another person.
                   A person can have more than 1 duty by virtue of being in more than 1 class of duty holder.
             (1)  More than 1 person can concurrently have the same duty.
             (2)  Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
             (3)  If more than 1 person has a duty for the same matter, each person:
                     (a)  retains responsibility for the person’s duty in relation to the matter; and
                     (b)  must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
                   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.

             (1)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
                     (a)  workers engaged, or caused to be engaged by the person; and
                     (b)  workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
             (2)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
             (3)  Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
                     (a)  the provision and maintenance of a work environment without risks to health and safety; and
                     (b)  the provision and maintenance of safe plant and structures; and
                     (c)  the provision and maintenance of safe systems of work; and
                     (d)  the safe use, handling and storage of plant, structures and substances; and
                     (e)  the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
                      (f)  the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
                     (g)  that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
             (4)  If:
                     (a)  a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and
                     (b)  the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available;
the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.
             (5)  A self‑employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.
Note:          A self‑employed person is also a person conducting a business or undertaking for the purposes of this section.

             (1)  In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include:
                     (a)  the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or
                     (b)  a prescribed person.
             (2)  The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person.
             (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
                      (f)  to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e).
Examples:  For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include:
(a)    reporting notifiable incidents;
(b)    consulting with workers;
(c)    ensuring compliance with notices issued under this Act;
(d)    ensuring the provision of training and instruction to workers about work health and safety;
(e)    ensuring that health and safety representatives receive their entitlements to training.
                   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.
                   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.
             (1)  A person commits a Category 1 offence if:
                     (a)  the person has a health and safety duty; and
                     (b)  the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and
                     (c)  the person is reckless as to the risk to an individual of death or serious injury or illness.
Penalty:
                     (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.
                   A person commits a Category 2 offence if:
                     (a)  the person has a health and safety duty; and
                     (b)  the person fails to comply with that duty; and
                     (c)  the failure exposes an individual to a risk of death or serious injury or illness.
Penalty:
                     (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.
                   A person commits a Category 3 offence if:
                     (a)  the person has a health and safety duty; and
                     (b)  the person fails to comply with that duty.
Penalty:
                     (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.
             (1)  A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.
             (2)  An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act.
             (3)  However:
                     (a)  an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27; and
                     (b)  a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29.

                   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.
                   In this Part, a dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to:
                     (a)  an uncontrolled escape, spillage or leakage of a substance; or
                     (b)  an uncontrolled implosion, explosion or fire; or
                     (c)  an uncontrolled escape of gas or steam; or
                     (d)  an uncontrolled escape of a pressurised substance; or
                     (e)  electric shock; or
                      (f)  the fall or release from a height of any plant, substance or thing; or
                     (g)  the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use 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.

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

In 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.
                   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.
             (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.
             (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.
                   A worker who ceases work under this Division must:
                     (a)  as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this Division unless the worker ceased work under a direction from a health and safety representative; and
                     (b)  remain available to carry out suitable alternative work.
                   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.
                   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.
                   The health and safety representative or the person conducting the business or undertaking or the worker may ask the regulator to appoint an inspector to attend the workplace to assist in resolving an issue arising in relation to the cessation of work.
Note:          The issue resolution procedures in Division 5 of this Part can also be used to resolve an issue arising in relation to the cessation of work.



             (1)  A person must not engage in discriminatory conduct for a prohibited reason.
Penalty:
                     (a)  In the case of an individual—$100 000.
                     (b)  In the case of a body corporate—$500 000.
             (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.
Note:          Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason.
             (3)  For the purposes of the application of the Criminal Code in relation to an offence under subsection (1), intention is the fault element for the physical element of engaging in 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.
                   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.
             (1)  A person must not request, instruct, induce, encourage, authorise or assist another person to engage in discriminatory conduct in contravention of section 104.
Penalty:
                     (a)  In the case of an individual—$100 000.
                     (b)  In the case of a body corporate—$500 000.
Note:          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.
             (2)  For the purposes of the application of the Criminal Code in relation to an offence under subsection (1), intention is the fault element for the physical element of requesting, instructing, inducing, encouraging, authorising or assisting another person to engage in conduct.
             (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.
Penalty:
                     (a)  In the case of an individual—$100 000.
                     (b)  In the case of a body corporate—$500 000.
Note:          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.
             (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.
Penalty:
                     (a)  In the case of an individual—$100 000.
                     (b)  In the case of a body corporate—$500 000.
             (2)  Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.


             (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; and
                     (c)  adduces evidence that the discriminatory conduct was engaged in for a prohibited reason.
             (2)  The reason alleged for the discriminatory conduct is presumed to be the dominant reason for that conduct unless the accused proves on the balance of probabilities, that the reason was not the dominant reason for the conduct.
             (3)  To avoid doubt, the burden of proof on the accused under subsection (2) is a legal burden of proof.
                   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.


             (1)  An eligible person may apply to a court for an order under this section.
             (2)  The court may make 1 or more of the orders set out in subsection (3) in relation to a person who has:
                     (a)  engaged in discriminatory conduct for a prohibited reason; or
                     (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 the court 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 the court 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 the court considers appropriate.
             (4)  For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 was a substantial reason for the conduct.
             (5)  Nothing in this section is to be construed as limiting any other power of the court.
             (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).
             (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.
http://www.comlaw.gov.au/Details/C2011A00137

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1 comment:

  1. It is important that employers take adequate care of their employees in order to avoid accidents and also to ensure that employees understand the care they must take of themselves while at work. Health and safety act really useful for the workers to avoid the risk injury or accident at workplace.

    Regard
    UK Health and Safety Consultant.

    ReplyDelete