occupational health and safety amendment bill 2007explanatory note page 2 occupational health and...

Introduced by Mr B R O'Farrell, MP First print

New South Wales

Occupational Health and Safety Amendment Bill 2007

Explanatory noteThis explanatory note relates to this Bill as introduced into Parliament.

Overview of BillThe object of this Bill is to amend the Occupational Health and Safety Act 2000, andrelated Acts, following the 5-year statutory review of that Act.

Outline of provisionsClause 1 sets out the name (also called the short title) of the proposed Act.Clause 2 provides for the commencement of the proposed Act on the date of assent(except for the provisions that are specified to commence on a day or days to beappointed by proclamation).Clause 3 is a formal provision that gives effect to the amendments to theOccupational Health and Safety Act 2000 set out in Schedule 1.Clause 4 is a formal provision that gives effect to the amendments to the WorkplaceInjury Management and Workers Compensation Act 1998 set out in Schedule 2.Clause 5 is a formal provision that gives effect to the amendments to the IndustrialRelations Act 1996 set out in Schedule 3.

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Clause 6 is a formal provision that gives effect to the amendments to the Crimes(Sentencing Procedure) Act 1999 set out in Schedule 4.Clause 7 is a formal provision that gives effect to the amendments to the Fines Act1996 set out in Schedule 5.Clause 8 is a formal provision that gives effect to the amendments to the mine safetylegislation specified in Schedule 6 as set out in that Schedule.Clause 9 is a formal provision that gives effect to the amendments to theOccupational Health and Safety Regulation 2001 set out in Schedule 7.Clause 10 provides for the repeal of the proposed Act on the day following the dayon which all of the provisions of the proposed Act have commenced. Once theamendments have commenced the proposed Act will be spent and section 30 of theInterpretation Act 1987 provides that the repeal of an amending Act does not affectthe amendments made by that Act.

Schedule 1 Amendment of Occupational Health and Safety Act 2000

Schedule 1 [1] makes it clear that it is an object of the Occupational Health andSafety Act 2000 to encourage employers, employees and others to take an active roleto protect themselves and other people in the workplace against risks to health orsafety.Schedule 1 [3] inserts a note to indicate that the role and functions of WorkCover insecuring the objectives of the Occupational Health and Safety Act 2000 are set out insections 22 and 23 of the Workplace Injury Management and Workers CompensationAct 1998.Section 10 (3) (b) of the Occupational Health and Safety Act 2000 excludes privatedwellings (and plant or substances used in such dwellings) from the duty imposed ona person who has control of premises used by people as a place of work to ensure thatthe premises are safe and without risks to health. Schedule 1 [9] amends thisparagraph so that the exclusion extends to common property that no resident has anexclusive right to occupy.Schedule 1 [11] clarifies that the consultation process that employers are required toundertake under the Occupational Health and Safety Act 2000 is to be carried outonly so far as is reasonably practicable.Schedule 1 [12] inserts proposed section 17A into the Occupational Health andSafety Act 2000. Proposed section 17A provides for an inspector to determine anydisagreement between employers and employees with respect to consultationarrangements on the request of either party.Schedule 1 [14] imposes a duty on employees to take reasonable care for their ownhealth and safety while at work (with a maximum penalty for a contravention of this

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duty being 45 penalty units in the case of a previous offender or 30 penalty units inany other case).Schedule 1 [19] inserts proposed section 23A into the Occupational Health andSafety Act 2000. Section 23 of that Act provides that it is an offence for an employerto, among other things, dismiss an employee because the employee makes acomplaint about a workplace matter that the employee considers is not safe or is arisk to health, or because the employee is a member of an OHS committee or is anOHS representative. Proposed section 23A makes it clear that an employee who isdismissed because of one of those reasons may apply to the Industrial Court of NSWfor an order for reinstatement or re-employment. Schedule 1 [17] makes aconsequential amendment.Section 26 of the Occupational Health and Safety Act 2000 currently provides that adirector or person concerned in the management of a company is liable for thecontravention of the Act or regulations by the corporation unless that person used alldue diligence to prevent the contravention by the corporation or was not in a positionto influence the conduct of the corporation in relation to its contravention of theprovision. Schedule 1 [20] substitutes section 26, replacing the current provisionwith a new provision that is more consistent with the Corporations Act 2001 of theCommonwealth and captures a wider range of persons involved in a corporation. Theproposed new provision provides that an officer of a corporation (within the meaningof the Commonwealth Act) is liable for a contravention of the Act or regulations bythe corporation if the contravention is attributable to that officer’s failing to takereasonable care. The proposed new provision sets out the matters that must be takeninto account in determining whether a contravention is attributable to an officer’sfailure to take reasonable care and provides that an officer who is a volunteer is notliable for such a contravention. Schedule 1 [6] and [23] make consequentialamendments.Schedule 1 [21] enables the regulations to extend the operation of section 8 (Dutiesof employers), Division 2 (Duty to consult) of Part 2, section 20 (Duties ofemployees), section 23 (Unlawful dismissal or other victimisation of employee) andany other prescribed provision of the Occupational Health and Safety Act 2000 toclothing outworkers and employees of clothing outworkers.Where appropriate, the offence provisions in the Occupational Health and Safety Act2000 have been amended to include, as an element of the offence, “reasonablypracticable”, “reasonably necessary” or “without reasonable excuse” (for example,the duty to ensure health and safety so far as is reasonably practicable) (see Schedule1 [5], [7], [8], [10], [15], [16], [32], [38], [39], [42] and [49]). Schedule 1 [4] insertsproposed section 7A into the Occupational Health and Safety Act 2000. Proposedsection 7A clarifies that a duty imposed to ensure health and safety so far as isreasonably practicable requires the elimination of risks so far as is reasonablypracticable and the reduction of these risks to the lowest level reasonably practicable(if elimination is not reasonably practicable). The matters that are relevant indetermining what is reasonably practicable in relation to ensuring health and safetyare also set out in proposed section 7A. Schedule 1 [22] omits the current defence in



Explanatory note

section 28 of the Act as a consequence of these amendments. Schedule 1 [2] and [6]also make consequential amendments. Schedule 1 [25] makes an amendment consequential on the amendment to theIndustrial Relations Act 1996 in Schedule 3 [3].Schedule 1 [29] inserts Division 2 (proposed sections 46A–46D) and Division 3(proposed sections 46E–46G) into Part 4 of the Occupational Health and Safety Act2000. Proposed Division 2 makes provision for WorkCover to make guidelines withrespect to the application of certain provisions of the Act and how it may exercise adiscretion under the Act or regulations. The process for making, amending andrevoking the guidelines is provided for in the Division. Proposed Division 3 allowsWorkCover to provide advice to a person who has a duty under the Act or regulationsabout complying with that duty. Any written advice must also be given to an OHSemployee representative. Schedule 1 [26]–[28] and [46]–[48] make consequentialamendments. Schedule 1 [30] clarifies that where a person is required to give evidence in writingor orally to an inspector under section 62 of the Occupational Health and Safety Act2000, that person can do so by answering questions or otherwise furnishinginformation. Schedule 1 [31] makes provision for the recording of any such oralevidence.Schedule 1 [33] provides that section 101 (Service of notices) of the OccupationalHealth and Safety Act 2000 applies to the service of notices under Division 2 (Powersof inspectors) of Part 5 of the Act.Section 77 of the Occupational Health and Safety Act 2000 gives an authorisedrepresentative of an industrial organisation the power to enter premises for thepurpose of investigating any suspected breach of the occupational health and safetylegislation. Schedule 1 [35] provides for any dispute about the entitlement of anauthorised representative to enter the premises to be referred to the IndustrialRelations Commission if WorkCover is unable to resolve the dispute.Schedule 1 [36] makes it an offence for an authorised representative, who enterspremises for the purposes of investigating a suspected breach, to deliberately hinderor obstruct the occupier of the premises (maximum penalty: 100 penalty units).Schedule 1 [37] makes provision for an authorised representative of an industrialorganisation of employees to enter a place of work to discuss matters relating tooccupational health and safety with a member, or person eligible to be a member, ofthat organisation. The discussion may only take place while the person is on a workbreak and the authorised representative must give the occupier of the place of work24 hours notice before entering the premises. Schedule 1 [34] makes a consequentialamendment.Schedule 1 [40] and [41] require an inspector who issues an improvement orprohibition notice to give a copy of the notice to the chairperson of the OHScommittee or a specified OHS representative (where a committee does not exist).



Explanatory note

Schedule 1 [43] inserts Division 5 (proposed sections 103A–103E) into Part 6 of theOccupational Health and Safety Act 2000. The proposed Division providesWorkCover with an additional enforcement option in respect of a contravention oralleged contravention of the Act or the regulations by allowing WorkCover to accepta written undertaking by a person to remedy a contravention or prevent any furthercontravention. The Division does not apply to a contravention of section 32A(Reckless conduct causing death at workplace by person with OHS duties) of the Act.While an undertaking is in force, proceedings may not be instituted against theperson in respect of the contravention to which the undertaking relates. Proceduresfor the acceptance, withdrawal and enforcement of undertakings are set out in theproposed Division. Proposed section 103E makes provision with respect to theadmissibility of evidence concerning an undertaking. Schedule 1 [46] makes aconsequential amendment.Schedule 1 [44] inserts Part 6A (proposed sections 103F—103L) into theOccupational Health and Safety Act 2000. Proposed section 103G makes provisionfor the issue of safety recommendation notices by employee safety representatives(being a chairperson of an OHS committee or an OHS representative) if the employeesafety representative believes that an employer is contravening the Act or regulationsor is likely to repeat or continue a past contravention. The safety recommendationnotice cannot be issued until the employee safety representative has consulted withthe employer. The notice may require the employer to remedy the contraventionwithin a specified time period and may include recommendations as to the measuresto be taken to remedy the contravention. Once such a notice has been issued, theemployer must comply with the notice within 7 days unless the employer requestsWorkCover to arrange for an inspector to attend the workplace and inquire into thematter. The employee safety representative may also request the attendance of aninspector if the employer has not fully complied with the notice within 7 days. Theinspector is required to make a determination in respect of whether or not therequirements of the notice are to be confirmed. If confirmed, the inspector must issuean improvement or prohibition notice. The notice is withdrawn if the inspector failsto confirm it. Proposed section 103I provides for the review of a determination of aninspector to withdraw the notice. The review is conducted by WorkCover andWorkCover’s decision may then be appealed to the Local Court in certaincircumstances. Proposed section 103J makes it an offence for an employee safetyrepresentative to misuse his or her powers with respect to safety recommendationnotices (maximum penalty: 45 penalty units in the case of a previous offender and 30penalty units in any other case).Schedule 1 [13], [18] and [46] make consequential amendments.Schedule 1 [45] provides that proceedings for an offence against the OccupationalHealth and Safety Act 2000 or the regulations may be instituted by WorkCover(rather than an inspector as currently provided for in the Act). Schedule 1 [24] and[46] make consequential amendments.



Explanatory note

Schedule 1 [50] inserts proposed sections 136A and 136B into the OccupationalHealth and Safety Act 2000.Proposed section 136A (1) makes it an offence for a person to obtain or attempt toobtain, by deception, any financial advantage (for himself or herself or any otherperson) in connection with any authority conferred by or under the Act on the person(or other person) if the person knows or has reason to believe that the person (or otherperson) did not have that authority (maximum penalty: 500 penalty units orimprisonment for 2 years, or both). Proposed section 136A (2) makes it an offencefor a person to hold himself or herself out as having an accreditation, licence or otherauthorisation conferred by or under the Act if the person doesn’t have (and is awarethat he or she doesn’t have) that authorisation (maximum penalty: 70 penalty units).Proposed section 136B makes provision for WorkCover to communicate certaininformation to an officer or authority engaged in administering or executing a law ofanother Australian jurisdiction relating to occupational health and safety. Schedule1 [46] makes a consequential amendment.Schedule 1 [51] enables the making of regulations of a savings or transitional natureconsequent on the enactment of the proposed Act.

Schedule 2 Amendment of Workplace Injury Management and Workers Compensation Act 1998

Schedule 2 [1] and [2] amend the provisions of the Workplace Injury Managementand Workers Compensation Act 1998 that set out the general and specific functionsof WorkCover so that the advisory and educational functions of WorkCover arenoted in those provisions. WorkCover’s role in assisting employers, workers andothers to comply with occupational health and safety legislation and eliminate orreduce risks to health and safety is also noted.

Schedule 3 Amendment of Industrial Relations Act 1996

Schedule 3 [1] and [2] amend section 196 of the Industrial Relations Act 1996 toprovide for a right of appeal to the Full Bench of the Industrial Court against aninterlocutory judgment or order given or made by a member of that Court (in thesame terms as the appeal that lies to the Court of Criminal Appeal from a SupremeCourt judge in indictable proceedings).Schedule 3 [3] omits section 197A of the Industrial Relations Act 1996 to removethe right of appeal by WorkCover, the Department of Primary Industries or theDirector of Public Prosecutions to the Full Bench of the Industrial Court against adecision of the Industrial Court or a Local Court constituted by an Industrial or otherMagistrate to acquit a person of an offence under certain occupational health andsafety legislation.



Explanatory note

Schedule 4 Amendment of Crimes (Sentencing Procedure) Act 1999

Schedule 4 amends section 27 of the Crimes (Sentencing Procedure) Act 1999 sothat a victim impact statement may be tendered to the Industrial Court in relation tooffences under the Occupational Health and Safety Act 2000 involving recklessconduct causing death. Currently, victim impact statements in relation to OHSoffences being dealt with by the Industrial Court can only be tendered with respectto general duties offences involving a fatality or actual physical bodily harm.

Schedule 5 Amendment of Fines Act 1996Schedule 5 [1] and [2] make provision for information about whether or not a fine,that was imposed for an offence against the Occupational Health and Safety Act2000, has been paid to be disclosed to the next of kin of any person that was killed asa result of the commission of the offence.

Schedule 6 Amendment of mine safety legislationSchedule 6.1 [2] omits section 150 (Bringing concerns regarding health, safety orwelfare to the attention of operators) of the Coal Mine Health and Safety Act 2002 asa consequence of the amendment to the Occupational Health and Safety Act 2000 inSchedule 1 [29] (the introduction of WorkCover guidelines and compliance advice).Schedule 6.2 [2] makes a similar consequential amendment to section 131 (Bringingconcerns regarding health, safety or welfare to the attention of operators) of the MineHealth and Safety Act 2004.Schedule 6.1 [1] and 6.2 [1] make amendments by way of statute law revision.

Schedule 7 Amendment of Occupational Health and Safety Regulation 2001

Schedule 7 [2] provides that any duty in the Occupational Health and SafetyRegulation 2001 to take or refrain from taking any action for the protection of healthor safety applies only so far as it is reasonably practicable to take or refrain fromtaking that action. Schedule 7 [1] makes a consequential amendment.Schedule 7 [3] makes a statute law revision amendment.Schedule 7 [4] amends clause 358 of the Occupational Health and Safety Regulation2001 so that a reference in any of the following provisions of the Act to WorkCover,in connection with the application of a provision to a mine, is taken to be a referenceto the Department of Primary Industries: sections 17A, 77 (2), 106 (c) and 136B,Division 5 (Undertakings) of Part 6 and Part 6A.


Contents

New South Wales


Introduced by Mr B R O'Farrell, MP First print

Page1 Name of Act 22 Commencement 23 Amendment of Occupational Health and Safety Act 2000

No 40 24 Amendment of Workplace Injury Management and Workers

Compensation Act 1998 No 86 25 Amendment of Industrial Relations Act 1996 No 17 26 Amendment of Crimes (Sentencing Procedure) Act 1999

No 92 27 Amendment of Fines Act 1996 No 99 28 Amendment of mine safety legislation 29 Amendment of Occupational Health and Safety Regulation

2001 210 Repeal of Act 3

Schedule 1 Amendment of Occupational Health and Safety Act 2000 4

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Contents

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Schedule 2 Amendment of Workplace Injury Management and Workers Compensation Act 1998 26

Schedule 3 Amendment of Industrial Relations Act 1996 27Schedule 4 Amendment of Crimes (Sentencing Procedure) Act 1999 28Schedule 5 Amendment of Fines Act 1996 29Schedule 6 Amendment of mine safety legislation 30Schedule 7 Amendment of Occupational Health and Safety Regulation

2001 31

Contents page 2

No , 2007

A Bill for


New South Wales

An Act to amend the Occupational Health and Safety Act 2000, and related Acts,following the 5-year statutory review of that Act.

Occupational Health and Safety Amendment Bill 2007 Clause 1

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The Legislature of New South Wales enacts:

1 Name of ActThis Act is the Occupational Health and Safety Amendment Act 2007.

2 Commencement(1) This Act commences on the date of assent, except as provided by

subsection (2).(2) The following provisions of this Act commence on a day or days to be

appointed by proclamation:(a) Schedule 1 [4]–[8], [10]–[23], [32], [34]–[39], [42], [44] and [46]

and [49], (b) Schedule 7 [1] and [2].

3 Amendment of Occupational Health and Safety Act 2000 No 40The Occupational Health and Safety Act 2000 is amended as set out inSchedule 1.

4 Amendment of Workplace Injury Management and Workers Compensation Act 1998 No 86

The Workplace Injury Management and Workers Compensation Act1998 is amended as set out in Schedule 2.

5 Amendment of Industrial Relations Act 1996 No 17The Industrial Relations Act 1996 is amended as set out in Schedule 3.

6 Amendment of Crimes (Sentencing Procedure) Act 1999 No 92The Crimes (Sentencing Procedure) Act 1999 is amended as set out inSchedule 4.

7 Amendment of Fines Act 1996 No 99The Fines Act 1996 is amended as set out in Schedule 5.

8 Amendment of mine safety legislationThe Acts specified in Schedule 6 are amended as set out in thatSchedule.

9 Amendment of Occupational Health and Safety Regulation 2001The Occupational Health and Safety Regulation 2001 is amended as setout in Schedule 7.

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Occupational Health and Safety Amendment Bill 2007 Clause 10

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10 Repeal of Act(1) This Act is repealed on the day following the day on which all of the

provisions of this Act have commenced.(2) The repeal of this Act does not, because of the operation of section 30

of the Interpretation Act 1987, affect any amendment made by this Act.

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(Section 3)

[1] Section 3 ObjectsInsert after section 3 (b):

(b1) to encourage employers, employees and others withoccupational health and safety duties to take an active roleto protect themselves and other people at a place of workagainst risks to health or safety at the place of work,

[2] Section 3 (e)Omit section 3 (e). Insert instead:

(e) to ensure that risks to health and safety at a place of workare identified, assessed and:(i) eliminated, or

(ii) if that is not reasonably practicable, reduced to thelowest level that is reasonably practicable,

[3] Section 3, NoteInsert at the end of the section:

Note. See sections 22 and 23 of the Workplace Injury Management andWorkers Compensation Act 1998 for the role and functions ofWorkCover in securing the objectives of this Act.

[4] Section 7AInsert before section 8:

7A The concept of ensuring health and safety(1) A duty imposed on a person by this Division (or by any other

provision of or made under this Act) to ensure, so far as isreasonably practicable, 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 reduce the risks to the lowest levelreasonably practicable.

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(2) For the purposes of this Division (or of any such other provision),regard must be had to the following matters in determining whatis (or was at a particular time) reasonably practicable in relationto ensuring health and safety:(a) what the person concerned knows, or ought reasonably to

know, about the hazards giving rise to the risk concerned,(b) the likelihood of the risk eventuating,(c) the degree of harm that would result if the risk eventuated,(d) what the person concerned knows, or ought reasonably to

know, about any ways of eliminating or reducing the risk,(e) the availability and suitability of ways to eliminate or

reduce the risk,(f) the cost of eliminating or reducing the risk.

(3) This section is enacted for the avoidance of doubt.

[5] Section 8 Duties of employersInsert “, so far as is reasonably practicable,” after “must” wherever occurringin section 8 (1) and (2).

[6] Section 8, noteOmit the note. Insert instead:

Note. See section 12 for the penalty for an offence against this sectionand other provisions of this Division. Division 4 makes ancillary provisionwith respect to those offences, including section 26 (liability of officers ofcorporations). See also Division 2 for duty of employer to consultemployees.

[7] Section 9 Duties of self-employed personsInsert “, so far as is reasonably practicable,” after “must”.

[8] Section 10 Duties of controllers of work premises, plant or substancesInsert “, so far as is reasonably practicable,” after “must” wherever occurringin section 10 (1) and (2).

[9] Section 10 (3) (b)Insert “or dwellings (including common property that no resident has anexclusive right to occupy)” after “private dwelling”.

[10] Section 11 Duties of designers, manufacturers and suppliers of plant and substances for use at workInsert “, so far as is reasonably practicable” after “must” in section 11 (1).

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[11] Section 15 When consultation requiredInsert at the end of the section:

(2) This Division requires consultation in a particular case only so faras it is reasonably practicable in the circumstances of that case.

[12] Section 17AInsert after section 17:

17A Determination by inspector of unresolved matters concerning consultation arrangements(1) This section applies to negotiations between employers and

employees (or persons acting on their behalf) with respect toconsultation arrangements under sections 16 and 17.

(2) Any of the parties to the negotiations may, if agreement is notreached within a reasonable time, ask Workcover to arrange foran inspector to determine any matter concerning consultationarrangements that is unresolved.

(3) An inspector who determines an unresolved matter must givewritten notice of the determination to the parties and the partiesmust give effect to the determination.

(4) The negotiations to which this section applies and anydeterminations of unresolved matters by an inspector are to haveregard to the diversity of the employees and their work (includingany particular matters prescribed by the regulations) so as toensure that the consultation arrangements provide effectiverepresentation for relevant workgroups.This subsection does not require the establishment of separateworkgroups for different categories of employees, places of workor other matters referred to in the regulations.Note. See clause 23 of the Occupational Health and Safety Regulation2001 for particulars required to be taken into account under thissubsection.

(5) A determination of an inspector under this section is subject toreview by WorkCover and appeal to an Industrial Magistrate, andfor that purpose sections 96 and 97 apply in respect of any suchdetermination as if it were the issue of a notice under Part 6.

[13] Section 18 Functions of OHS committees and OHS representativesInsert “See Part 6A for issue of safety recommendation notices by approvedOHS representatives.” at the beginning of the Note to that section.

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[14] Section 20 Duties of employeesInsert after section 20 (2) (and before the penalty provision for the section):

(3) An employee must, while at work, take reasonable care for his orher own health and safety.

(4) In determining, for the purposes of this section, whether anemployee failed to take reasonable care, regard must be had towhat the employee knew about the relevant circumstances.

[15] Section 20 (2)Insert “reasonably” before “necessary”.

[16] Section 21 Person not to interfere with or misuse things provided for health, safety and welfareInsert “and without reasonable excuse” after “recklessly”.

[17] Section 23 Unlawful dismissal or other victimisation of employeeInsert “section 23A of this Act and” after “See” in the Note to the section.

[18] Section 23 (1) (c)Insert “or Part 6A” after “Division 2”.


23A Application for reinstatement of employee unlawfully dismissed under section 23(1) In this section:

reinstatement includes re-employment.unlawful dismissal means the dismissal of an employee incontravention of section 23.

(2) An employee who has been unlawfully dismissed may, within 21days after the dismissal, apply to the Industrial Court of NSW forreinstatement. The Court may accept an application that is madeout of time if it considers that there is a sufficient reason to do so.

(3) An industrial organisation of employees may make such anapplication on behalf of the employee.

(4) The Industrial Court of NSW may, on such an application, orderthe employer to reinstate the employee in accordance with theterms of the order.

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(5) If the Industrial Court of NSW is satisfied that the applicant wasunlawfully dismissed:(a) the Court is to order the employee to be reinstated in his or

her former employment or in any other employment that isno less advantageous to the employee, except as providedby paragraph (b), or

(b) if the employer satisfies the Court that it would beimpracticable to reinstate the employee—the Court mayorder the employer to pay to the employee an amount ofcompensation determined by the Court to be appropriate inthe circumstances (but not exceeding the amount ofremuneration the employee would have received but forthe dismissal in the period of 6 months following thedismissal).

(6) If the Industrial Court of NSW orders reinstatement under thissection, it may order that the period of employment of theapplicant with the employer is taken not to have been broken bythe dismissal.

(7) An application under this section may be made regardless ofwhether the employer has been convicted of an offence againstsection 23.

(8) The Industrial Court of NSW must not make an order on anapplication under this section if:(a) another Act or a statutory instrument provides for redress

to the employee in relation to the dismissal, and(b) the employee has commenced proceedings under the other

Act or instrument or has not lodged a written undertakingnot to proceed under the other Act or instrument.

(9) In any proceedings under this section, if an employee establishesthat a matter referred to in section 23 (1) (a), (b) or (c) occurredor existed before the employee’s dismissal, it is presumed that theemployee was dismissed because of that matter. Thatpresumption is rebutted if the employer satisfies the IndustrialCourt of NSW that the matter was not a substantial and operativecause of the dismissal.Note. Appeals against a decision of the Industrial Court of NSW underthis section are dealt with under Part 7 of Chapter 4 of the IndustrialRelations Act 1996.

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[20] Section 26Omit the section. Insert instead:

26 Liability of officers of corporations(1) If:

(a) a corporation contravenes a provision of this Act or theregulations, and

(b) a contravention of the provision is an offence, and(c) the contravention by the corporation is attributable to an

officer of the corporation failing to take reasonable care,the officer is guilty of an offence.Maximum penalty: the same maximum penalty that is applicableto contraventions of the provision by individuals.

(2) In determining whether a contravention by a corporation isattributable to an officer of the corporation failing to takereasonable care, regard must be had to the following:(a) what the officer knew about the matter concerned,(b) the extent of the officer’s ability to make, or participate in

the making of, decisions that affect the corporation inrelation to the matter concerned,

(c) whether the contravention by the corporation is alsoattributable to an act or omission of any other person,

(d) any other relevant matter.(3) An officer of a corporation who is a volunteer is not liable to be

prosecuted under this section for anything done or omitted to bedone by the officer as a volunteer.

(4) An officer of a corporation may be proceeded against andconvicted of an offence under subsection (1) whether or not thecorporation has been proceeded against or has been convicted ofan offence in relation to the contravention.

(5) Nothing in this section affects any liability imposed on acorporation for a contravention of the provision concerned.

(6) In this section:contravene means contravene by act or omission.corporation means any body corporate (including a bodycorporate representing the Crown).officer of a corporation has the same meaning as it has in section9 of the Corporations Act 2001 of the Commonwealth. For that

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purpose, section 9 applies as if a reference to a corporation werea reference to a corporation within the meaning of this section.volunteer means a person who is acting on a voluntary basis,regardless of whether the person receives out-of-pocketexpenses.


27A Clothing outworkers—applied duties(1) This section applies for the purposes of:

(a) section 8 (Duties of employers), and(b) Part 2, Division 2 (Duty to consult), and(c) section 20 (Duties of employees) and section 23 (Unlawful

dismissal or other victimisation of employee), and (d) any other provision of this Act prescribed by the

regulations.(2) If the regulations so require:

(a) a reference to an employee includes a reference to aclothing outworker engaged by an employer and anyemployees of the outworker, and

(b) the duties of an employer extend to a clothing outworkerengaged by the employer, and any employees of theoutworker, but only in relation to matters over which theemployer has control or would have control if not for anyagreement purporting to limit or remove that control.

(3) A provision of this Act that applies in relation to a clothingoutworker or employer because of this section applies with suchmodifications as are prescribed by the regulations.

(4) In this section:clothing outworker means a person described in clause 1 (f) ofSchedule 1 to the Industrial Relations Act 1996 as an employee.employer means a person described in clause 1 (f) of Schedule 1to the Industrial Relations Act 1996 as an employer.

[22] Section 28 DefenceOmit the section.

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[23] Section 32A Reckless conduct causing death at workplace by person with OHS dutiesOmit section 32A (6). Insert instead:

(6) Section 26 does not apply to an offence against this section.However, this does not prevent an officer of a corporation frombeing prosecuted under this section for an offence committed bythe officer.

[24] Section 32B Prosecution for offences under this PartOmit “by an inspector” from section 32B (2). Insert instead “by WorkCover”.

[25] Section 32B (4)Omit the subsection.

[26] Part 4, headingOmit the heading. Insert instead:

Part 4 Industry codes of practice, guidelines and compliance advice

Division 1 Industry codes of practice[27] Section 40 Purpose of industry codes of practice

Insert “in particular industries” after “employers and others”.

[28] Section 45 Amendment or revocation of codesOmit “Part”. Insert instead “Division”.

[29] Part 4, Divisions 2 and 3Insert after section 46:

Division 2 Guidelines46A Purpose of guidelines

The purpose of a guideline is to provide practical guidance toemployers and others who have duties under this Act or theregulations about complying with those duties.

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46B Guidelines(1) WorkCover may, in accordance with this Division, make

guidelines on the way in which:(a) a provision of this Act or the regulations would, in

WorkCover’s opinion, apply to a class of persons or to aset of circumstances, or

(b) a discretion of WorkCover under a provision of this Act orthe regulations would be exercised.

(2) If WorkCover proposes to make guidelines, it must:(a) publish notice of the proposed guidelines in the Gazette

and on WorkCover’s internet website, and(b) include in the notice a statement that written submissions

or comments on the proposed guidelines may be made toWorkCover by a specified date, and

(c) provide a copy of the notice to the Workers Compensationand Workplace Occupational Health and Safety Council(or the Mine Safety Advisory Council if in connection withthe application of this section to a mine), and

(d) give a copy of the proposed guidelines to each person whorequests it before that specified date.

(3) After considering any submissions and comments received byWorkCover by the specified date, WorkCover may make theguidelines (with or without modifications) by causing them to bepublished in the Gazette as guidelines under this Division.

46C Amendment or revocation of guidelinesGuidelines made under this Division may be amended or revokedby publishing notice of the amendment or revocation, providingcopies of the notice and considering any comments orsubmissions with respect to the notice in accordance with theprocedures in section 46B for the making guidelines.

46D Use of guidelines and liability(1) Guidelines made by Workcover are not admissible in evidence in

any proceedings for an offence against this Act or the regulations.(2) Guidelines made by Workcover do not give rise to:

(a) any liability of, or other claim against, WorkCover, or

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(b) any right, expectation, duty or obligation that would nototherwise be conferred or imposed on a person, or

(c) any defence that would not otherwise be available to thatperson.

Division 3 Compliance advice46E Purpose of compliance advice

The purpose of compliance advice is to provide practicalguidance to specific employers and others who have duties underthis Act or the regulations about complying with those duties.

46F Compliance advice(1) WorkCover may give advice to a person who has a duty under

this Act or the regulations about complying with that duty.(2) WorkCover’s power under this section to give compliance advice

may also be exercised by an inspector or, if WorkCoverauthorises any other person to exercise the power, that otherperson.

(3) If compliance advice is given to a person under this section inwritten form, a copy of the advice must also be given to an OHScommittee or OHS representative representing employeesaffected by the advice.

46G Use of compliance advice and liability(1) Compliance advice given by Workcover is not admissible in

evidence in any proceedings for an offence against this Act or theregulations.

(2) Compliance advice given by Workcover does not give rise to:(a) any liability of, or other claim against, WorkCover, or(b) any right, expectation, duty or obligation that would not

otherwise be conferred or imposed on a person, or(c) any defence that would not otherwise be available to that

person.(3) An inspector, or any other person exercising WorkCover’s power

to give compliance advice, is not liable for any thing done oromitted to be done in good faith.

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[30] Section 62 Power of inspectors to obtain information, documents and evidenceInsert “(by answering questions or otherwise furnishing information)” after“evidence” in section 62 (1) (c).

[31] Section 62 (2A)Insert after section 62 (2):

(2A) An inspector may record oral evidence given by a person underthis section (by means of an audio, video or other recording). Theconsent of the person to the recording is not required if the personis informed beforehand that the evidence will be recorded.

[32] Section 71 Powers supporting taking of thingsInsert “, without reasonable excuse,” after “must not” in section 71 (3).


75A Service of noticesSection 101 applies to the service of notices under this Division.

[34] Part 5, Division 3Omit the heading to the Division. Insert instead:

Division 3 Entry and inspection powers of authorised employees’ representatives—suspected breach

[35] Section 77 Powers of entry of places of workInsert at the end of the section:

(2) Any dispute about the entitlement of an authorised representativeto enter any premises under this section may, if WorkCover isunable to resolve the dispute, be referred to the IndustrialRelations Commission by any party to the dispute. TheCommission may make such order as it considers appropriate forthe resolution of the dispute in accordance the rights andobligations of the parties under this section.Note. See section 136 for offence if person obstructs, hinders orimpedes lawful entry.

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83A Misuse of powers by authorised representative(1) An authorised representative who enters premises under this

Division must not deliberately hinder or obstruct the occupier ofthe premises or the persons at the premises during their workingtime.Maximum penalty: 100 penalty units.

(2) The power of the Industrial Registrar under section 299 (4) of theIndustrial Relations Act 1996 to revoke an authority extends toany contravention of subsection (1) by the authorisedrepresentative or to any other improper action of the authorisedrepresentative in exercising a power under this Division.

[37] Part 5, Division 3AInsert after section 85:

Division 3A Entry powers of authorised employees’ representatives—health and safety discussions

85A DefinitionIn this Division:authorised representative of an industrial organisation ofemployees, means an officer of that organisation (including anyperson who is concerned in, or takes part in, the management ofthat organisation) who is authorised under Part 7 of Chapter 5 ofthe Industrial Relations Act 1996.

85B Powers of entry of places of work for discussing occupational health and safety(1) An authorised representative of an industrial organisation of

employees may enter any premises the representative has reasonto believe is a place of work where members of that organisation(or persons who are eligible to be members of that organisation)work for the purpose of discussing matters relating tooccupational health and safety.

(2) After entering the place of work, the authorised representativemay discuss matters relating to occupational health and safety atthat place with any such member (or person) who wishes to takepart in such a discussion.

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(3) Any such discussion may take place only when the member orperson is on a work break (including a meal break).

85C Notice of entryAn authorised representative authorised to enter premises underthis Division must give the occupier of the place of work writtennotice of the entry and the reasons for the entry at least 24 hoursbefore entering the premises.

85D Application of other provisions concerning entry powersSections 79, 80, 82, 83, 83A and 85 apply in respect of an entryto premises under this Division in the same way that thosesections apply in respect of an entry to premises under Division 3.Note. See section 136 for offence if person obstructs, hinders orimpedes lawful entry.

[38] Section 86 Notification of incidentsInsert “(unless the occupier has a reasonable excuse for not doing so)” after“following incidents” in section 86 (1).

[39] Section 90 Offence: failure to comply with investigation noticeInsert “(unless the occupier has a reasonable excuse for not doing so)” after“must”.

[40] Section 91 Issue of improvement noticesInsert after section 91 (4):

(5) An inspector who issues an improvement notice is to give a copyof the notice to the chairperson of an OHS committee or (if thereis no committee) to an OHS representative representingemployees affected by the notice. The notice may also be givento any other person representing the employees as the inspectorconsiders appropriate.

[41] Section 93 Issue of prohibition noticesInsert after section 93 (2):

(3) An inspector who issues a prohibition notice is to give a copy ofthe notice to the chairperson of an OHS committee or (if there isno committee) to an OHS representative representing employeesaffected by the notice. The notice may also be given to any otherperson representing the employees as the inspector considersappropriate.

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[42] Section 102 Exhibition of noticesInsert “, without reasonable excuse,” after “must not” in section 102 (2).

[43] Part 6, Division 5Insert after section 103:

Division 5 Undertakings103A WorkCover may accept undertakings

(1) WorkCover may accept a written undertaking given by a personto remedy a contravention or alleged contravention of this Act(except section 32A) or the regulations by the person or to takeaction to prevent any such further contravention by the person.

(2) WorkCover may accept the undertaking by giving the personnotice in writing of its acceptance of the undertaking.Note. Proceedings against the person for the contravention concernedis stayed if an undertaking given by the person is accepted - see section103C.

(3) The person who has given an undertaking may, at any time, varythe undertaking with the written acceptance of WorkCover.

(4) WorkCover must lodge an undertaking (or variation) that it hasaccepted with the Registry of the Industrial Court of NSW within7 days of that acceptance.

(5) Information relating to undertakings that have been accepted byWorkCover is to be publicly accessible on WorkCover’s website.

103B Withdrawal of undertaking(1) The person who has given an undertaking may, at any time,

withdraw the undertaking with the written consent ofWorkCover.

(2) If WorkCover is satisfied that a person has contravened anundertaking given by the person, WorkCover may withdraw theundertaking by notice in writing to the person.Note. The withdrawal of the undertaking enables proceedings to betaken against the person for the offence concerned. An alternative towithdrawal of the undertaking, is proceedings in the Industrial Court toenforce the undertaking under section 103D (1) and (2). Whether or notthe undertaking is withdrawn, action may be taken in the Industrial Courtto penalise the breach of the undertaking - section 103D (3).

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103C No proceedings for offence where undertaking in force(1) Proceedings for an offence against this Act or the regulations

cannot be instituted or continued against a person in respect of thecontravention or alleged contravention to which an undertakingthat has been accepted under section 103A relates, unless theundertaking has been duly withdrawn under section 103B.

(2) A court before which any such proceedings are taken may, for thepurposes of those proceedings, determine whether anundertaking relates to the proceedings and whether any suchundertaking had been contravened and duly withdrawn byWorkCover.

(3) The period within which any such proceedings may be takenfollowing the withdrawal of an undertaking is extended by theperiod during with the undertaking remained in force.

103D Enforcement of undertakings(1) If an undertaking has been lodged with the Registry of the

Industrial Court of NSW, Workcover may enforce theundertaking as if it were an order of that Court.

(2) If the Industrial Court of NSW is satisfied that the person whogave the undertaking has contravened the undertaking, the Courtmay make any one or more of the following orders:(a) an order that the person must comply with the undertaking

or take specified action to comply with the undertaking,(b) any other order the Court considers appropriate to remedy

the contravention of the undertaking.(3) In addition, WorkCover may take proceedings in the Industrial

Court of NSW for the contravention of the undertaking as if itwere an order of that Court. Any such proceedings may be takenwhether or not the undertaking has been withdrawn.

103E Admissibility of evidence relating to undertakings(1) Except as provided by this section, evidence concerning an

undertaking under this Division (including negotiations relatingto an undertaking, whether or not an undertaking is entered into)is not admissible in any criminal or civil proceedings before anycourt or tribunal.

(2) Any such evidence is admissible in connection with thefollowing:(a) proceedings for a contravention of the undertaking,(b) proceedings to enforce the undertaking,

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(c) proceedings relating to the entering into of theundertaking.

(3) To avoid doubt, any such evidence is not admissible inproceedings for the offence to which the undertaking (ornegotiations) relate in the event that the undertaking is withdrawnor not finally entered into.

[44] Part 6AInsert after Part 6:

Part 6A Safety recommendation notices103F Employee safety representatives

(1) For the purposes of this Part, an employee safety representativeis a person authorised under this section to issue safetyrecommendation notices.

(2) The following persons are authorised to issue safetyrecommendation notices:(a) the chairperson of an OHS committee for the purposes of

protecting employees represented by the committee,(b) an OHS representative for the purposes of protecting

employees represented by that OHS representative (beingemployees not represented by an OHS committee).

(3) A person is not authorised to issue safety recommendationnotices unless the person has undertaken a course of trainingapproved by WorkCover for the purposes of this Part.

(4) A person is not authorised to issue safety recommendationnotices if the person’s authority is withdrawn under section 103J.

103G Issue of safety recommendation notices(1) If an employee safety representative believes on reasonable

grounds that an employer:(a) is contravening a provision of this Act or the regulations;

or(b) has contravened such a provision in circumstances that

make it likely that the contravention will continue or berepeated,

the employee safety representative may issue to the employer asafety recommendation notice that makes recommendations tothe employer about remedying the contravention or the matters

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occasioning it within the period specified in the notice (being aperiod of at least 8 days after the issue of the notice).

(2) A safety recommendation notice may only be issued in respect ofthe contravention of a provision that directly affects the health orsafety of the employees for whose protection the employee safetyrepresentative is authorised to issue the notice.Note. Section 103F (2) describes the relevant employees for whoseprotection the representative is authorised to issue notices.

(3) A safety recommendation notice may not be issued until theemployee safety representative has consulted the employer (or arepresentative of the employer), in accordance with applicableconsultation arrangements established at the place of work, aboutremedying the contravention or the matters occasioning it and hasgiven the employer a reasonable opportunity to remedy thecontravention or matters.

(4) A safety recommendation notice must:(a) state the employee safety representative’s belief on which

the issue of the notice is based, and(b) state the grounds for that belief, and(c) specify the provision of this Act or the regulations in

respect of which that belief is held, and(d) include information about the employer’s right to seek a

review of the notice by an inspector, and(e) be in a form approved by WorkCover.

(5) A safety recommendation notice may include recommendationsas to the measures to be taken to remedy the contravention ormatters occasioning it. A recommendation may:(a) adopt by reference, the requirements of any industry or

other code of practice or standard, and(b) suggest to the employer a choice of ways in which to

remedy the contravention or matter.

103H Request for attendance of inspector at place of work to determine whether safety recommendation notice should be confirmed(1) An employer to whom a safety recommendation notice has been

issued may, within 7 days after the issue of the notice, requestWorkCover to arrange for an inspector to attend at the place ofwork to inquire into the matter if the employer does not accept therecommendations of the notice.

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(2) If the employer does not make such a request within that period,the employee safety representative who issued the notice mayrequest WorkCover to arrange for an inspector to attend at theplace of work to inquire into the matter if the representativebelieves on reasonable grounds that the employer has notremedied the contravention or matter to which the notice relates.

(3) WorkCover must ensure that an inspector attends the place ofwork as soon as possible after a request is made under this section(but in any case within 14 days after the request is made).

(4) The inspector must, as soon as possible:(a) inquire into the contravention or matter to which the safety

recommendation notice relates, and(b) determine whether or not to confirm the notice.

(5) If the inspector determines to confirm the notice, the inspectormust issue an improvement or prohibition notice under Part 6 thatrequires the employer to comply with the recommendations ofthe notice (with or without variation). The requirements of theimprovement or prohibition notice replace the recommendationsof the safety recommendation notice. Note. For failure to comply with a notice see sections 92 and 94 and forrights of review and appeal see sections 96 and 97.

(6) If the inspector determines not to confirm the notice, theinspector must withdraw the notice and notify the employeesafety representative and the employer in writing of thewithdrawal of the notice. The notification must set out thereasons for the inspector’s determination.Note. An inspector attending a place of work may also providecompliance advice under Division 3 of Part 4.

(7) A further safety recommendation notice cannot be issued toremedy the same contravention or the same matters occasioningit.

103I Review and appeal against decision of inspector to withdraw safety recommendation notice(1) An employee safety representative may apply in writing to

WorkCover for a review of the determination of the inspector towithdraw a safety recommendation notice issued by thatrepresentative.

(2) An application must be made within 7 days after the notice iswithdrawn or, if the regulations prescribe a different period,within the period so prescribed. An application for review may bemade only once in respect of any particular notice.

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(3) WorkCover is to review the determination of the inspector that isthe subject of a duly made application for review and may:(a) confirm the determination of the inspector, or(b) revoke the withdrawal of the safety recommendation

notice and exercise the powers of the inspector to issue animprovement notice or prohibition notice in respect of thecontravention or matter.

(4) An applicant for review who is not satisfied with a decision ofWorkCover to confirm the determination of the inspector towithdraw the safety recommendation notice may appeal againstthe determination of the inspector to a Local Court constituted byan Industrial Magistrate sitting alone.

(5) The Local Court may, on the appeal:(a) confirm the determination of the inspector, or(b) revoke the withdrawal of the safety recommendation

notice and refer the matter back to WorkCover todetermine under subsection (3) having regard to thematters raised in the appeal.

(6) An improvement notice or prohibition notice issued byWorkCover in accordance with this section is taken to be a sucha notice issued by an inspector under this Act, except that anapplication to WorkCover by the employer for review of thenotice under section 96 is not available.

103J Misuse of powers of employee safety representative(1) An employee safety representative must not misuse the powers

conferred by this Part.Maximum penalty:(a) in the case of a previous offender—45 penalty units, or(b) in any other case—30 penalty units.

(2) WorkCover may, by notice in writing to a person, withdraw theauthority conferred on the person by section 103F to issue safetyrecommendation notices if it is satisfied the person has misusedthe powers conferred by this Part. WorkCover may, by a similarnotice, restore that authority.

(3) For the purposes of this section, a person misuses the powersconferred by this Part if the person’s use of those powers is not agenuine use of those powers for the protection of the health andsafety of the employees concerned or if the person’s use of those

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powers is excessive or otherwise unreasonable in thecircumstances.

103K Provisions relating to safety recommendation notices(1) A safety recommendation notice may be withdrawn at any time

by the employee safety representative who issued it. Thewithdrawal has effect when notification of the withdrawal isgiven in writing to the employer concerned.

(2) A safety recommendation notice (including notification of thewithdrawal of such a notice) may be issued or given to anemployer by delivering it personally to the employer or to arepresentative of the employer at the place of work concerned.

(3) The issue or withdrawal of a safety recommendation notice doesnot affect any proceedings for an offence against this Act or theregulations in connection with any matter in respect of which thenotice was issued.

103L RegulationsThe regulations may make further provision with respect tosafety recommendation notices under this Part and, in particular,for or with respect to:(a) the training of employee safety representatives, and(b) the exhibition or service of a safety recommendation

notice.

[45] Section 106 Authority to prosecuteOmit section 106 (c). Insert instead:

(c) by WorkCover, or

[46] Section 133 Application of Act to mines: references to WorkCoverOmit “Part 4 (Industry codes of practice), and section 114 (Orders regardingcosts and expenses of investigation).” from the note.Insert instead “Part 4 (Industry codes of practice, guidelines and complianceadvice), Division 5 (Undertakings) of Part 6, section 106 (c) (Authority toprosecute), section 114 (Orders regarding costs and expenses of investigation)and section 136B (Disclosure of information by WorkCover).”

[47] Section 135 Plant affecting public safety—extension of ActOmit “Part 4 (Industry codes of practice)” from section 135 (2) (b).Insert instead “Part 4 (Industry codes of practice, guidelines and complianceadvice)”.

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[48] Section 135A Dangerous goods - extension of ActOmit “Part 4 (Industry codes of practice)” from section 135A (3) (b).Insert instead “Part 4 (Industry codes of practice, guidelines and complianceadvice)”.

[49] Section 136 Offence of obstructing or intimidating inspectors and others exercising functions under ActInsert “, without reasonable excuse,” after “must not” in section 136 (1).

[50] Sections 136A–136BInsert after section 136:

136A Fraud and false claims relating to occupational health and safety(1) A person who, by deception, obtains, or attempts to obtain, for

himself or herself (or for another person) any financial advantagein connection with any authority conferred by or under this Acton the person (or other person) is guilty of an offence if theperson knows or has reason to believe that the person (or otherperson) did not have that authority.Maximum penalty: 500 penalty units or imprisonment for 2years, or both.

(2) A person who holds himself or herself out as having anaccreditation, licence or other authorisation conferred by or underthis Act is guilty of an offence if the person does not have, and isaware that he or she does not have, that authorisation.Maximum penalty: 70 penalty units.

(3) In this section:deception means any deception, by words or conduct, as to factor law, including the making of a statement or the production ofa document that is false or misleading.

136B Disclosure of information by WorkCover(1) WorkCover may communicate any matter which comes to its

knowledge in the exercise of its functions under this Act:(a) to an officer or authority engaged in administering or

executing a law of New South Wales, of theCommonwealth or of another State or a Territory relatingto occupational health and safety, and

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(b) to any other public officer or authority (of this or any otherjurisdiction) prescribed by the regulations.

(2) In this section:this Act includes the Occupational Health and Safety Act 1983.

[51] Schedule 3 Savings, transitional and other provisionsInsert at the end of clause 1 (1):

Occupational Health and Safety Amendment Act 2007

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(Section 4)

[1] Section 22 General functions of the AuthorityInsert after section 22 (1) (d1):

(d2) to provide advice and information to employers, workersand others about the occupational health and safetylegislation and the workers compensation legislation,

[2] Section 23 Specific functionsInsert after section 23 (1) (n):

(n1) to ensure that as part of its advisory services, theAuthority:(i) disseminates information about the duties,

obligations and rights of persons under theoccupational health and safety legislation andprovides guidance for the purpose of assistingpersons to comply with their duties and obligations,and

(ii) initiates or promotes events such as conferences andforums, and the publication of information, relatingto occupational health, safety and welfare, and

(iii) engages in, promotes and co-ordinates the sharingof information to achieve the objects of theoccupational health and safety legislation, and

(iv) promotes public awareness and discussion ofoccupational health, safety and welfare issues andan understanding and acceptance of the principles ofhealth and safety protection, and

(v) develops and implements programs to provideincentives for employers to implement measures toeliminate or reduce risks to health or safety; and tootherwise improve occupational health, safety andwelfare.

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Amendment of Industrial Relations Act 1996 Schedule 3

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Schedule 3 Amendment of Industrial Relations Act 1996

(Section 5)

[1] Section 196 Appeals from and references by members of Commission in criminal proceedingsInsert after section 196 (2):

(2A) In addition, section 5F of the Criminal Appeal Act 1912 appliesto any such appeal against an interlocutory judgment or order inthe same way as it applies to an appeal to the Court of CriminalAppeal in respect of proceedings for the prosecution of offenderson indictment in the Supreme Court.

[2] Section 196 (3)Insert “or (2A)” after “subsection (2)”.

[3] Section 197A Appeals against acquittals in proceedings for offences against occupational health and safety legislationOmit the section.

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(Section 6)

Section 27 Application of DivisionInsert “, or against Part 2A,” after “Part 2” in section 27 (2A) (a).

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Amendment of Fines Act 1996 Schedule 5

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Schedule 5 Amendment of Fines Act 1996(Section 7)

[1] Section 117A Disclosure of information by State Debt Recovery OfficeInsert at the end of section 117A (1) (c):

, or(d) to WorkCover for the purposes of subsection (3A).

[2] Section 117A (3A)Insert after section 117A (3):

(3A) If a fine has been imposed for an offence under the OccupationalHealth and Safety Act 2000 and a person died as a result of thecommission of the offence: (a) information may be disclosed to WorkCover about

whether the fine has been paid or is outstanding (in wholeor in part), and

(b) WorkCover may disclose that information, on request, tothe next of kin of the deceased.

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Schedule 6 Amendment of mine safety legislation(Section 8)

6.1 Coal Mine Health and Safety Act 2002 No 129[1] Section 3 Definitions

Omit “Mineral Resources” from the definition of Department.Insert instead “Primary Industries”.

[2] Section 150 Bringing concerns regarding health, safety or welfare to the attention of operatorsOmit the section.

6.2 Mine Health and Safety Act 2004 No 74[1] Section 3 Definitions

Omit “Mineral Resources” from the definition of Department in section 3 (1).Insert instead “Primary Industries”.

[2] Section 131 Bringing concerns regarding health, safety or welfare to the attention of operatorsOmit the section.

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Amendment of Occupational Health and Safety Regulation 2001 Schedule 7

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(Section 9)

[1] Clause 6 Application of provisions providing for alternative duties if primary duty not reasonably practicableOmit the note to the clause. Insert instead:

Note. Clause 6A provides that the alternative duty applies only so far asis reasonably practicable.

[2] Clause 6AInsert after clause 6:

6A Duties to apply so far as is reasonably practicable(1) If a provision of this Regulation imposes a duty to take or refrain

from taking any action for the protection of health or safety, theduty applies only so far as is reasonably practicable to take orrefrain from taking that action.

(2) Subclause (1) extends to provisions of this Regulation madeunder section 135 or 135A for the protection of public health orsafety.

[3] Clauses 357 and 358 and clauses 10 and 12 of Schedule 4Omit “Department of Mineral Resources” wherever occurring.Insert instead “Department of Primary Industries”.

[4] Clause 358 Application of Act to mines: references to WorkCoverOmit clause 358 (1) (a1)–(b). Insert instead:

(a) section 17A (Determination by inspector of unresolvedmatters concerning consultation arrangements),

(b) section 32B (3) (Reasons for non-prosecution of offence),(c) Part 4 (Industry codes of practice, guidelines and

compliance advice),(d) section 106 (c) (Authority to prosecute),(e) Division 5 (Undertakings) of Part 6,(f) Part 6A (Safety recommendation notices),

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(g) section 114 (Orders regarding costs and expenses ofinvestigation),

(h) section 136B (Disclosure of information by WorkCover),(i) section 77 (2).

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occupational health and safety amendment bill 2007explanatory note page 2 occupational health and...

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