Mock-up of the Work Health and Safety (Resources) Bill 2015

Transcription

1 Mock-up of the Work Health and Safety (Resources) Bill 2015 This mock-up has been prepared for public comment purposes only. It is indicative only and does not necessarily represent the Government s settled position. The content and structure of this document is subject to changes resulting from: the public consultation process; the Parliamentary drafting process; and any amendments to the model WHS Act. The Work Health And Safety (Resources) Bill 2015 is based on the national model Work Health and Safety Act, which has already undergone extensive public consultation. It also draws on the current legislation for regulating safety in the Petroleum sector. Some of the definitions from the Offshore Petroleum and Greenhouse Gas Storage Act 2006 have been simplified, but the same outcome is intended. Some provisions from the national model Work Health and Safety Act were not adopted by Western Australia. These have been marked in red text in the attached pages.

2 Western Australia MOCK-UP Work Health and Safety (Resources) Bill 2015 CONTENTS Part 1 Preliminary Division 1 Introduction 1. Short title 3 2. Commencement 3 Division 2 Object 3. Object 3 Division 3 Interpretation Subdivision 1 Definitions 4. Definitions 4 Subdivision 2 Other important terms 5. Meaning of person conducting a business or undertaking 18 5A. Meaning of major hazard facility or proposed facility operator 19 5B. Meaning of mine operator 19 5C. Meaning of geothermal energy operator 19 5D. Meaning of greenhouse gas storage operator 20 5E. Meaning of petroleum operator 20 5F. Meaning of diving contractor 20 5G. Meaning of resources facility operator Meaning of supply Meaning of worker Meaning of workplace Examples and notes 22 Division 4 Application of Act 10. Act binds the Crown Extraterritorial application Scope 23 ii

3 Part 2 Health and safety duties Division 1 Introductory Subdivision 1 Principles that apply to duties 13. Principles that apply to duties Duties not transferrable Person may have more than 1 duty More than 1 person can have a duty Management of risks 25 Subdivision 2 What is reasonably practicable 18. What is reasonably practicable in ensuring health and safety 25 Division 2 Primary duty of care 19. Primary duty of care 25 Division 3 Further duties of persons conducting businesses or undertakings 20. Duty of persons conducting businesses or undertakings involving management or control of workplaces Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces Duties of persons conducting businesses or undertakings that design plant, substances or structures Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures Duties of persons conducting businesses or undertakings that import plant, substances or structures Duties of persons conducting businesses or undertakings that supply plant, substances or structures Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures 35 26A. Duty of persons conducting businesses or undertakings from remote operations 35 Division 4 Duty of officers, workers and other persons 27. Duty of officers Duties of workers Duties of other persons at the workplace 38 iii

4 Division 5 Offences and penalties 30. Health and safety duty Reckless conduct Category Failure to comply with health and safety duty Category Failure to comply with health and safety duty Category Exceptions 40 Part 3 Incident notification 35. What is a notifiable incident What is a serious injury or illness What is a dangerous incident Duty to notify of notifiable incidents Duty to preserve incident sites 43 39A. Incident investigation 44 Part 4 Authorisations Division 1 Authorisations 40. Meaning of authorised Requirements for authorisation of workplaces Requirements for authorisation of plant or substance Requirements for authorisation of work Requirements for prescribed qualifications or experience Requirement to comply with conditions of authorisation 47 Part 5 Consultation, representation and participation Division 1 Consultation, co-operation and co-ordination between duty holders 46. Duty to consult with other duty holders 48 Division 2 Consultation with workers 47. Duty to consult workers Nature of consultation When consultation is required 49 Division 3 Health and safety representatives Subdivision 1 Request for election of health and safety representatives 50. Request for election of health and safety representative 50 Subdivision 2 Determination of work groups 51. Determination of work groups Negotiations for agreement for work group Notice to workers 51 iv

5 54. Failure of negotiations 52 Subdivision 3 Multiple-business work groups 55. Determination of work groups of multiple businesses Negotiation of agreement for work groups of multiple businesses Notice to workers Withdrawal from negotiations or agreement involving multiple businesses Effect of Subdivision on other arrangements 55 Subdivision 4 Election of health and safety representatives 60. Eligibility to be elected Procedure for election of health and safety representatives Eligibility to vote When election not required Term of office of health and safety representative Disqualification of health and safety representatives Immunity of health and safety representatives Deputy HSR deleted 58 Subdivision 5 Powers and functions of health and safety representatives 68. Powers and functions of health and safety representatives Powers and functions generally limited to the particular work group 60 Subdivision 6 Obligations of person conducting business or undertaking to health and safety representatives 70. General obligations of person conducting business or undertaking Exceptions from obligations under section 70(1) Obligation to train health and safety representatives Obligation to share costs if multiple businesses or undertakings List of health and safety representatives 65 Division 4 Health and safety committees 75. Health and safety committees Constitution of committee Functions of committee Meetings of committee Duties of person conducting business or undertaking 68 Division 5 Issue resolution 80. Parties to an issue Resolution of health and safety issues Referral of issue to regulator for resolution by inspector 70 v

6 Division 6 Right to cease unsafe work 83. Definition of cease work under this Division Right of worker to cease unsafe work Health and safety representative may direct that unsafe work cease Worker to notify if ceases work Alternative work Continuity of engagement of worker Request to regulator to appoint inspector to assist 72 Division 7 Provisional improvement notices 90. Provisional improvement notices Provisional improvement notice to be in writing of provisional improvement notice Provisional improvement notice may give directions (deleted) Minor changes to provisional improvement notice Issue of provisional improvement notice Health and safety representative may cancel notice Display of provisional improvement notice Formal irregularities or defects in notice Offence to contravene a provisional improvement notice Request for review of provisional improvement notice Regulator to appoint inspector to review notice Decision of inspector on review of provisional improvement notice 76 Division 8 Part not to apply to prisoners (deleted) 76 Part 6 Discriminatory, coercive and misleading conduct Division 1 Prohibition of discriminatory, coercive or misleading conduct 104. Prohibition of discriminatory conduct What is discriminatory conduct What is a prohibited reason Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct 78 Division 2 Criminal proceedings in relation to discriminatory conduct 108. Prohibition of coercion or inducement Misrepresentation Proof of discriminatory conduct [Not WA] Order for compensation or reinstatement 80 vi

7 Division 3 Civil proceedings in relation to discriminatory or coercive conduct 112. Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct Procedure for civil actions for discriminatory conduct 81 Division 4 General 114. General provisions relating to orders Prohibition of multiple actions 82 Part 7 Workplace entry by WHS entry permit holders ( ) [Not WA] 83 Part 8 The regulator Division 1 Functions of regulator 151 Resources Safety Commissioner Functions of regulator Powers of regulator Delegation by regulator 85 Division 2 Powers of regulator to obtain information 155. Powers of regulator to obtain information A. Additional powers of regulator 87 Part 9 Securing compliance Division 1 Appointment of inspectors 156. Appointment of inspectors Identity cards Accountability of inspectors Suspension and ending of appointment of inspectors 89 Division 2 Functions and powers of inspectors 160. Functions and powers of inspectors Conditions on inspectors compliance powers Inspectors subject to regulator s directions 90 Division 3 Powers relating to entry Subdivision 1 General powers of entry 163. Powers of entry Notification of entry General powers on entry A Powers on entering regulator business premises Persons assisting inspectors 92 vii

8 166A Assistance to inspectors in remote sites 93 Subdivision 2 Search warrant Search warrants Announcement before entry on warrant Copy of warrant to be given to person with management or control of place 96 Subdivision 3 Limitation on entry powers 170. Places used for residential purposes (deleted) 96 Subdivision 3A Investigation powers 171. Power to require production of documents and answers to questions Abrogation of privilege against self-incrimination Warning to be given 98 Subdivision 4 Specific powers on entry 174. Powers to copy and retain documents Power to seize evidence etc Inspector s power to seize dangerous workplaces and things Powers supporting seizure Receipt for seized things Forfeiture of seized things Return of seized things Access to seized things 103 Division 4 Damage and compensation Sections deleted Division 5 Other matters 185. Power to require name and address Inspector may take affidavits Attendance of inspector at coronial inquests [Not WA] 104 Division 6 Offences in relation to inspectors 188. Offence to hinder or obstruct inspector Offence to impersonate inspector Offence to assault, threaten or intimidate inspector 105 Part 10 Enforcement measures Division 1 Improvement notices 191. Issue of improvement notices of improvement notices Compliance with improvement notice Extension of time for compliance with improvement notices 107 viii

9 Division 2 Prohibition notices 195. Power to issue prohibition notice of prohibition notice Compliance with prohibition notice 109 Division 3 Non-disturbance notices 198. Issue of non-disturbance notice of non-disturbance notice Compliance with non-disturbance notice Issue of subsequent notices 110 Division 4 General requirements applying to notices 202. Application of Division Notice to be in writing Directions in notices Recommendations in notice (deleted) Changes to notice by inspector A Copy of notice Regulator may vary or cancel notice Formal irregularities or defects in notice Issue and giving of notice Display of notice 112 Division 5 Remedial action Sections deleted Division 6 Injunctions 214. Application of Division Injunctions for noncompliance with notices 113 Part 11 Enforceable undertakings Sections deleted 113 Part 12 Review of decisions Division 1 Reviewable decisions 223. Which decisions are reviewable 114 Division 2 Internal review 224. Application for internal review Internal reviewer Decision of internal reviewer Decision on internal review Stays of reviewable decisions on internal review 119 ix

10 Division 3 External review 229. Application for external review 120 Part 13 Legal proceedings Division 1 General matters 229A. Evidentiary provisions Prosecutions Procedure if prosecution is not brought (deleted) Limitation period for prosecutions Multiple contraventions of health and safety duty provision 123 Division 2 Sentencing for offences 234. Application of this Division Orders generally Adverse publicity orders Orders for restoration Work health and safety project orders Release on the giving of a court-ordered WHS undertaking Injunctions Training orders Offence to fail to comply with order 126 Division 3 Infringement notices 243. Infringement notices (deleted - not required in WA) 127 Division 4 Offences by bodies corporate 244. Imputing conduct to bodies corporate 127 Division 5 The Crown 245. Offences and the Crown WHS civil penalty provisions and the Crown (Not required in WA) Officers Responsible agency for the Crown 128 Division 6 Public authorities 249. Application to public authorities that are bodies corporate Proceedings against public authorities Imputing conduct to public authorities Officer of public authority Proceedings against successors to public authorities 130 Division 7 WHS civil penalty provisions [Not WA] 131 Division 8 Civil liability not affected by this Act Civil liability not affected by this Act 131 x

11 Part 14 General Division 1 General provisions 268. Offence to give false or misleading information Act does not affect legal professional privilege Immunity from liability Confidentiality of information A. Sharing of information with corresponding regulator B. Publication of information by regulator No contracting out Person not to levy workers 136 Division 2 Codes of practice 274. Approved codes of practice Use of codes of practice in proceedings 137 Division 3 Regulation-making powers 276. Regulation-making powers 138 Division 4 Boards of Inquiry 277. Boards of Inquiry 139 Division 5 Resources Industry Advisory Committees 278. Mining Industry Advisory Committee Petroleum and Major Hazard Facilities Advisory Committee 140 Division 6 - Review of the Act 280. Review of the Act 141 Schedule 1 Application of Act to dangerous goods and high risk plant (Not required) -Act does not apply to dangerous goods sites 142 Schedule 2 The WorkSafe Western Australia Commissioner and Commission for Occupational Health and Safety (Not required) Covered by Schedule 2 in WorkSafe s WHS Green Bill 142 Schedule 3 Regulation making powers 1. Duties Incidents Plant, substances or structures 143 xi

12 4. Protection of health and safety of workers Hazards and risks Records and notices Authorisations Work groups Health and safety committees and health and safety representatives Issue resolution WHS entry permits (Not required in WA) Identity cards Forfeiture Review of decisions Boards and Committees 146 Schedule 4 Work Health and Safety Tribunal Note: Parliamentary Counsel s Office to determine content of this section. 147 Schedule 5 Health and Safety Magistrates Note: Parliamentary Counsel s Office to determine content of this section. 147 Schedule 6 Transfer of administration of laws Note: Parliamentary Counsel s Office to determine content of this section. 147 Schedule 7 Repeals, consequential amendments to other Acts Note: Parliamentary Counsel s Office to determine content of this section. 147 Schedule 8 Transitional provisions Note: Parliamentary Counsel s Office to determine content of this section. 147 xii

13 NFIDEN Western Australia MOCK-UP FOR PUBLIC COMMENT PURPOSES ONLY (subject to change) Work Health and Safety (Resources) Bill 2015 A Bill for An Act to provide for the health and safety of persons at work or are affected by work at resources facilities. repeal the Mines Safety and Inspection Act 1994 and the Mines Safety and Inspection Regulations 1995; and repeal of Schedule 1 of the Petroleum Pipelines Act 1969 and the Petroleum Pipelines (Management of Safety of Pipeline Operations) Regulations 2010; and the Petroleum Pipelines (Occupational Safety and Health) Regulations 2010; and repeal of Schedule 1 of the Petroleum and Geothermal Energy Resources Act 1967; and the Petroleum and Geothermal Energy Resources (Management of Safety) Regulations 2010; and the Petroleum and Geothermal Energy Resources (Occupational Safety and Health) Regulations 2010; and repeal of Schedule 5 of the Petroleum (Submerged Lands) Act 1982; and the Petroleum (Submerged Lands)(Management of Safety on Offshore Facilities) Regulations 2007; and the Petroleum (Submerged Lands)(Occupational Safety and Health) Regulations 2007; and the Petroleum (Submerged Lands)(Diving Safety) Regulations 2007; and the Petroleum (Submerged Lands)(Pipelines) Regulations 2007; repeal the Dangerous Goods Safety (Major Hazard Facilities) Regulations 2007; and make consequential amendments to certain Acts, and for related matters. 1

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15 Part 1 Preliminary Division 1 Introduction 1. Short title This is the Work Health and Safety (Resources) Act Commencement This Act comes into operation on a day or days fixed by proclamation. 3. Object Division 2 Object The objects of this Act are as follows: to protect workers and other persons at resources facilities operations against harm to their health and safety through the elimination or minimisation of risks arising from work or from specific types of substances or plant, and (aa) to eliminate or minimise the risk arising from work or from specific types of substances or plant at a resources facility that may harm other persons; and (ab) to ensure that resources facility operators develop, implement and maintain effective safety cases or safety management systems; and providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety, and to encourage unions and employers 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 3

16 (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 high standards of work health and safety; and (h) to facilitate interstate regulatory co-operation. 4. Definitions In this Act: Division 3 Interpretation Subdivision 1 Definitions accommodation means any accommodation that is owned by or under the management or control of the resources facility operator; and the occupancy is necessary for the purposes of the worker s engagement because other accommodation is not reasonably available, and facility is not within (i) a townsite within the meaning in section 26(1) of the Land Administration Act 1997; and (ii) the metropolitan region as defined in the Planning and Development Act 2005; adjacent area means: (1) so much of the scheduled area as consists of the territorial sea; and any area that is (i) on the landward side of the territorial sea; and (ii) not within the limits of Western Australia. (2) For the purposes of subsection (1), assume that the breadth of the territorial sea had never been determined or declared to be greater than 3 nautical miles, but had continued to be 3 nautical miles. approved code of practice means a code of practice approved under Part 14. 4

17 associated offshore place, in relation to an offshore petroleum facility, means any offshore place near the facility where activities relating to the construction, installation, operation, maintenance, repair, decommissioning or removal of the facility take place, but does not include another offshore petroleum facility; or a vessel or structure that is declared by the regulations not to be an associated offshore place. authorised, in Part 4 see section 40. Note: a definition of authorising authority is not required in WA. Barrow Island lease means the petroleum lease dated 27 February 1967 granted under the former provisions and registered as Number 1H and named Barrow Island pursuant to those provisions. care and maintenance means where production operation at a resources facility has been stopped and only activities for the care and maintenance of the resources facility are carried out. Category 1 offence see section 31. Category 2 offence see section 32. Category 3 offence see section 33. compliance powers means the functions and powers conferred on an inspector under this Act. condition includes limitation and restriction. construct includes assemble, erect, reconstruct, reassemble and re-erect. Corresponding regulator: in relation to the Work Health and Safety Act 2015 means the person appointed under Schedule 2 Division 2 as the WorkSafe Western Australia Commissioner; and in relation to the Dangerous Goods Safety Act 2004 means the Chief Officer as defined in section 3(1) of that Act; and in relation to any other law of this State that is prescribed as a corresponding WHS law, means the person prescribed as the corresponding regulator for the purposes of that law; and 5

18 (d) otherwise means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law. corresponding WHS law: in this section in the definition of corresponding regulator and in sections 113(3) and 271(3)(v) means any of the following (i) (ii) the Work Health and Safety Act of another State; the Work Health Safety Act 2015 (WA) (iii) the Work Health and Safety (Mines) Act 2013 (New South Wales); (iv) the Mining and Quarrying Safety and Health Act 1999 (Queensland) or the Act that replaces that Act; (v) the Dangerous Goods Safety Act 2004; (vi) any other law prescribed as a corresponding WHS law for the purposes of this paragraph; in sections 90(4), 156(d) and 271(3)(iv) and in Schedule 3 item 7.2 means any of the following (i) (ii) the Work Health and Safety Act of another State; the Work Health Safety Act 2015 (WA); (iii) the Work Health and Safety (Mines) Act 2013 (New South Wales) (iv) the Mining and Quarrying Safety and Health Act 1999 (Queensland) or the Act that replaces that Act; (v) any other law prescribed as a corresponding WHS law for the purposes of this paragraph. court means a court constituted by a health and safety magistrate, except in references to a court of competent jurisdiction and in section 271(3)(d). dangerous incident, in Part 3 demolition includes deconstruction. design, in relation to plant, a substance or a structure includes: design of part of the plant, substance or structure; and 6

19 redesign or modify a design. disclose, in relation to information, includes divulge or communicate to any person or publish. discriminatory conduct, in Part 6 see section 105. diving (1) means a person - is in a chamber inside which the ambient pressure is equal to or higher than the hydrostatic pressure at a depth of 1 metre in seawater (whether or not the chamber is submerged in water or another liquid); or is submerged in water or another liquid and the person s lungs are subjected to a pressure greater than atmospheric pressure (whether or not the person is wearing a wetsuit or other protective clothing); or is in a manned submersible craft that is submerged in water or another liquid. (2) includes diving using a snorkel and diving without the use of any breathing apparatus but does not include - diving using a snorkel for the purpose of conducting an environmental survey; or diving without the use of any breathing apparatus for that purpose. diving contractor - see 5F. diving operation means any operation that (1) relates to the exploration for petroleum; or the recovery, processing, production, refrigeration, storage, offloading or piped conveyance of petroleum, or for any combination of those activities; or the injection of petroleum into a natural underground reservoir; or (d) the construction, installation, preparation for operation, operation, maintenance, repair, decommissioning or removal of a petroleum facility; or (e) any other purpose related to or in connection with a petroleum facility; and (2) comprises of one or more dives in the adjacent area 7

20 (3) An operation is taken not to be a diving operation if the operation is declared by the Regulator not to be a diving operation. document includes record. Note: a definition of employee record is not required in WA. employer organisation means an organisation of employers. engage in conduct means doing an act or omitting to do an act. exploration operations means any exploration, survey, drilling or prospecting activities for minerals, petroleum, potential greenhouse gas storage formations, or geothermal energy resources but does not include any work involving underground operations; or the excavation of any trial pits beyond the extent permitted under the prospecting and exploration licence conditions; or remote sensing activity carried out using airborne or satellite mounted equipment (except for ground based activity in support of such remote sensing activity). Fair Work Act means the Fair Work Act 2009 of the Commonwealth. geothermal energy means thermal energy that results from natural geological processes and is contained in geothermal energy resources. geothermal energy facility means the structure, plant, accommodation and associated equipment used for or in connection with, carrying out geothermal energy operations, but does not include any facility for the subsequent use of geothermal energy. geothermal energy operation means any operation that (1) relates to the exploration for geothermal energy resources; or the recovery of geothermal energy; or the construction, operation, maintenance, repair, decommissioning or removal of a geothermal energy facility; and (2) takes place under a geothermal energy title; and 8

21 (3) despite subclause (1), an operation is taken not to be a geothermal energy operation if the operation is for the purposes of a small scale ground source heat pump used at or near the source of the geothermal energy; or involves small scale recovery of geothermal energy not for a commercial purpose; or is of the of a kind prescribed by the regulations, or (d) is declared by the Regulator not to be a geothermal energy operation. geothermal energy operator see section 5C. geothermal energy resources means subsurface rock or other subterranean substances that contain geothermal energy and, where the context so requires, includes the geothermal energy contained in those resources. geothermal energy title includes a permit, reservation, licence, lease or authorisation of any type issued under the PAGERA. greenhouse gas facility means a structure, plant, pipeline or accommodation and associated equipment used for or in connection with, carrying out a greenhouse gas storage operation. greenhouse gas storage operation means any operation that (1) relates to the exploration for potential greenhouse gas storage formations or potential greenhouse gas injection sites; or the compression, processing, pre-injection storage, offloading or piped conveyance of a greenhouse gas substance; or the injection or storage of a greenhouse gas substance into a geological storage formation; or (d) the monitoring of a greenhouse gas substance stored in a geological storage formation; or (e) the drilling or servicing a well for a greenhouse gas substance or doing work associated with the drilling or servicing process; or (f) the construction, operation, maintenance, repair, decommissioning or removal of a greenhouse gas facility; or (g) the provision of accommodation; and (2) takes place; under a greenhouse gas title; or under the Barrow Island lease as renewed, substituted or varied. 9

22 (3) An operation is taken not to be a greenhouse gas storage operation if the operation is declared by the Regulator not to be a greenhouse gas storage operation. greenhouse gas storage operator see section 5D. greenhouse gas substance means: carbon dioxide, whether in a gaseous or liquid state; or a prescribed greenhouse gas, whether in a gaseous or liquid state; or a mixture of any or all of the following substances: (i) carbon dioxide, whether in a gaseous or liquid state; (ii) one or more prescribed greenhouse gases, whether in a gaseous or liquid state; (iii) one or more incidental greenhouse gas-related substances, whether in a gaseous or liquid state, that relate to either or both of the substances mentioned in subparagraphs (i) and (ii); (iv) a detection agent, whether in a gaseous or liquid state; If - (v) the mixture consists overwhelmingly of either or both of the substances mentioned in subparagraphs (i) and (ii); and (vi) if the mixture includes a detection agent the concentration of the detection agent in the mixture is not more than the concentration prescribed in relation to that detection agent. greenhouse gas title includes a permit, reservation, licence, lease or authorisation of any type issued under the PAGERA, the Barrow Island Act or the PPA. handling includes transport. hazard means a situation or thing that has the potential to harm a person. health means physical and psychological health. health and safety duty see section 30. health and safety magistrate means a person holding office as a health and safety magistrate under Schedule 5 clause 1. health and safety representative, in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member. 10

23 import means to bring into the State from outside Australia. inspector means an inspector appointed under Part 9. internal reviewer means: the regulator; or a person appointed by the regulator under section 225. land includes water; and also includes the foreshore as defined in section 25(1) of the Mining Act 1978; and the sea bed and subsoil between the mean low water springs level and the inner limits of the coastal waters of the State as defined in section 16(1) and (2) of the Offshore Minerals Act legal practitioner means an Australian legal practitioner within the meaning of that term in the Legal Profession Act 2008 section 3. major hazard facility means a facility at which chemicals, prescribed in the regulations, above the critical level, are present or likely to be present, and determined by the regulator to be a major hazard facility. major hazard facility operator see section 5A. medical treatment means treatment by a medical practitioner registered under the Health Practitioner Regulation National Law (WA) Act mine, as a noun, means a place consisting of a mine site or more than one mine site used for mining operations and those places are to be taken to constitute one mine unless the Regulator notifies the mine operator otherwise in writing. mine, as a verb, includes any manner or method of mining operations. mine operator see section 5B. mine site means a place with a defined boundary in, on or under which mining operations are carried out. (Note: a mine may consist of one or more than one mine sites) mineral means naturally occurring substances obtained or obtainable from any land by mining operations carried out on or under the surface of the land but does not include: 11

24 water; petroleum a meteorite as defined in the Museum Act mining operations means all activities associated with the extraction of minerals, rocks, soil, stone, fluid or earth; (1) And includes: (d) (e) (f) (g) exploration and mining; treatment including minerals processing, leaching, roasting, floating, distillation, evaporation, smelting, refining, sintering, electro-winning, direct reduction and blast furnaces and pelletizing; overburden, tailings, spoil heaps, waste dumps; decommissioning, rehabilitation, and closure of mine; site preparation; support operations and facilities when closely associated with the mine site; removal, handling, transport and storage of minerals, rocks, and associated substances, contaminants and wastes; (h) planning, design, construction, commissioning, operation, maintenance, decommissioning, and removal of machinery, plant, structure and building at a mine site; (i) (j) (k) (l) care and maintenance; mine tourism, mine education and mine research activities conducted at a mine site; stacking, handling and loading of minerals at rail, road terminal or port, except when minerals are shipped in a container at a port; accommodation as defined. (2) A mine ceases to be a mining operation when closed by the mine operator and accepted as such by the regulator. (3) Mining operations do not include: an activity carried out in relation to the extraction of minerals on private land for the private and non-commercial use of the owner of the land, 12

25 any activity authorized and carried out as per Miner s Rights granted under the Mining Act 1978, fossicking, (d) any activity where the extraction of minerals is incidental to the activity, Example: Civil works such as tunneling to create a road. (e) any activity with respect to the construction of railways; and rail activities covered by the Rail Safety Act 2010 (WA), (f) use of roads as the term is defined in the Road Traffic Act 1974, (g) air travel to and from a mining operation, (h) steel making plants, rolling mills, (i) facilities for the manufacture of goods from mining products, and (j) any petroleum, pipeline covered under a safety case. Minister the minister and the minister for the time being administering the Work Health and Safety (Resources) Act notifiable incident see section 35. officer means: an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership; or an officer of the Crown within the meaning of section 247; or an officer of a public authority within the meaning of section 252, other than an elected member of local authority acting in that capacity. Note: a definition of official of a union is not required in WA. offshore petroleum facility means 1. A vessel, plant, structure or pipeline and associated equipment used for, or in connection with, carrying out a petroleum operation while located at a site in the adjacent area. 2. A vessel or structure is taken to be located at a site, despite the fact that the vessel or structure moves for the purpose of surveying or laying pipes. 3. A vessel, plant, structure or pipeline is taken not to be an offshore petroleum facility if it is: declared by the regulations not to be an offshore petroleum facility; or 13

26 being transported to or from the site; or declared by the Regulator not to be an offshore petroleum facility. 4. An offshore petroleum facility includes an associated offshore place in relation to the offshore petroleum facility. oil shale includes naturally occurring hydrocarbons that are or may be contained in rocks from which they cannot be recovered otherwise than by mining those rocks as oil shale. onshore petroleum facility, means a structure, plant, pipeline or accommodation facility and associated equipment used for, or in connection with, carrying out a petroleum operation. person conducting a business or undertaking see section 5. petroleum means: any naturally occurring hydrocarbon, whether in a gaseous, liquid or solid state; or any naturally occurring mixture of hydrocarbons, whether in a gaseous, liquid or solid state; or any naturally occurring mixture of: (i) one or more hydrocarbons, whether in a gaseous, liquid or solid state; and (ii) one or more of the following, that is to say, hydrogen sulphide, nitrogen, helium and carbon dioxide; and: (d) includes any petroleum as defined by paragraph, or that has been returned to a natural reservoir, but excludes oil shale; and (e) includes any petroleum as defined by paragraph,, or (d), where: (i) one or more things have been added; or (ii) one or more things have been wholly or partly removed; or both; and (f) includes any mixture that: (i) has been recovered from a well; and (ii) includes petroleum as defined by paragraph,, or (d); whether or not: (iii) one or more things have been added; or (iv) one or more things have been wholly or partly removed; or both. 14

27 petroleum operation means any operation that (1) relates to the exploration for petroleum; or the recovery, processing, production, refrigeration, storage, offloading or piped conveyance of petroleum, or for any combination of those activities; or the injection of petroleum into a natural underground reservoir; or (d) the drilling or servicing a well for petroleum or doing work associated with the drilling or servicing process; or (e) the construction, installation, preparation for operation, operation, maintenance, repair, decommissioning or removal of an offshore or onshore petroleum facility; or (f) any other purpose related to or in connection with an offshore or onshore petroleum facility; or (g) the provision of accommodation; and (2) takes place: at or near an offshore petroleum facility; or under a petroleum title; or under the Barrow Island lease as renewed, substituted or varied. (3) An operation is taken not to be a petroleum operation if the operation is declared by the Regulator not to be a petroleum operation. petroleum operator see section 5E. petroleum title includes a permit, reservation, licence, lease or authorisation of any type issued under the PAGERA or the PPA. plant includes: any machinery, equipment, appliance, container, implement and tool; and any component of any of those things; and anything fitted or connected to any of those things. public authority: in section 156 means: 15

28 (i) a body, whether incorporated or not, or the holder of an office, that is established or continued for a public purpose under a written law and that, under the authority of a written law, performs a statutory function on behalf of the State; or (ii) a local government in Part 13 Division 6 means a body corporate: (i) listed in the Financial Management Act 2006 Schedule 1; or (ii) listed in the Public Sector Management Act 1994 Schedule 1 column 2 or Schedule 2 column 2; or (iii) established or continued for a public purpose under a written law; or (iv) established by the Governor or a Minister; or (v) over which control can be exercised by a Minister. reasonably practicable, in relation to a duty to ensure health and safety see section 18. regulated business premises means a resources facility; or premises that are (i) occupied by a person who is the operator or titleholder of a resources facility; and (ii) used, or proposed to be used, wholly or principally in connection with a resources operation. regulator means a person appointed under Part 8 Division 1. representative as defined in the Fair Work Act and the Industrial Relations Act

29 resources facility includes an onshore petroleum facility, geothermal energy facility, greenhouse gas facility, offshore petroleum facility, major hazard facility or a site where mining operations are carried out. resources facility operations includes mining operation, petroleum operation, geothermal energy operation, greenhouse gas storage operation, diving operations and major hazard facility operation. resources facility operator see section 5G. Resources safety commissioner see Part 8 risk means the probability of an adverse effect arising from a hazard, either alone or in combination with other hazards, and the potential magnitude of that effect. scheduled area means the scheduled area for Western Australia as defined in the Petroleum (Submerged Lands) Act serious injury or illness, in Part 3 see section 36. site senior executive means the most senior natural person representing the resources facility operator at the site. State includes Territory. State or Territory industrial law has the same meaning as it has in the Fair Work Act. structure means anything that is constructed, whether fixed, moveable or floating, temporary or permanent, and includes: buildings, masts, towers, framework, pipelines, transport infrastructure, and any component of a structure; and part of a structure. substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour. supply see section 6. territorial sea means the territorial sea of Australia and includes the territorial sea adjacent to any island forming part of Western Australia. tribunal has the meaning given to that term in Schedule 4 clause 2(2). 17

30 union means: an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law. vessel means a vessel used in navigation, other than air navigation, and includes a barge, lighter or other floating vessel. work group means a work group determined under Part 5. worker see section 7. workplace see section 8. Subdivision 2 Other important terms 5. Meaning of person conducting a business or undertaking (1) For the purposes of this Act, a person conducts a business or undertaking: whether the person conducts the business or undertaking alone or with others; and 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. 18

31 (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. 5A. Meaning of operator of major hazard facility or proposed facility (1) Operator of a major hazard facility is the person conducting the business or undertaking of operating the facility who has management and control of the facility; and the power to direct that the whole facility be shut down. (2) Operator of a proposed major hazard facility means: The operator of a proposed facility that is an existing workplace; or The person who is to be the operator of a proposed facility that is being designed or constructed; and has been declared to be a major hazard facility by the Regulator. 5B. Meaning of mine operator mine operator means the person conducting a business or undertaking who: (d) (e) is the holder of a mining tenement granted under Mining Act 1978, or has right to mine under the Agreement Act, or has an extractive industry licence/permission issued by the local government, or otherwise is the owner, lessee, or occupier of the land with right to mine and has overall control of the mine and mining operations at the mine. 5C. Meaning of geothermal energy operator The geothermal energy operator, means the person conducting a business or undertaking who, under the regulations, is registered by the regulator as the operator of that geothermal energy operation. 19

32 5D. Meaning of greenhouse gas storage operator The greenhouse gas storage operator, means the person conducting a business or undertaking who, under the regulations, is registered by the regulator as the operator of that greenhouse gas storage operation. 5E. Meaning of petroleum operator The petroleum operator, means the person conducting a business or undertaking who, under the regulations, is registered by the regulator as the operator of that petroleum operation. 5F. Meaning of diving contractor The diving contractor, means the person conducting a business or undertaking who enters into a contract to conduct a diving operation. 5G. Meaning of resources facility operator (1) Resources facility operator includes mine operator, petroleum operator, major hazard facility or proposed major facility operator, geothermal energy operator, greenhouse gas storage operator and has overall control of the operations. The overall control means control of resources, management, planning, and operations for the purpose of discharging the obligations of the resources facility operator under this Act. (2) If more than one person is an operator within the meaning of subsection (1); one of those persons must be selected as the operator; and (3) If a selection is not made, each of the following persons is taken to be the operator: Each operator within the meaning of subsection (1) who is an individual; For each operator within the meaning subsection (1) who is a body corporate each officer of the body corporate. 6. Meaning of supply (1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent. (2) A supply of a thing occurs on the passing of possession of the thing to the 20

33 person or an agent of the person to be supplied. (3) A supply of a thing does not include: the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or a prescribed supply. (4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if: the financier has, in the course of the financier s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier; and the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer. (5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier s customer. 7. Meaning of worker (1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (d) (f) (g) (i) an employee; or a contractor or subcontractor; or an employee of a contractor or subcontractor; or an employee of a labour hire company who has been assigned to work in the person s business or undertaking; or an apprentice or trainee; or a student gaining work experience; or a person of a prescribed class. 21

34 (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. Note: 1(e) (outworker) & (h) (volunteer) deleted not required. (2) related to police not required 8. Meaning of workplace (1) A workplace is a place where resources operations are carried out for a business or undertaking. This includes mining operations, petroleum operations, diving operations, geothermal energy operations, greenhouse gas operations and major hazard facilities or potential major hazard facilities. (2) In this section place includes: a vehicle, vessel, or other mobile structure any waters and any installation on land, on the bed of any waters or floating on any waters. 9. Examples and notes (1) An example at the foot of a provision forms part of this Act. (2) Despite the Interpretation Act 1984 section 32(2), a note at the foot of a provision forms part of this Act. 10. Act binds the Crown Division 4 Application of Act (1) This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities. (2) The Crown is liable for an offence against this Act. Note: (3) is not required in WA. 11. Extraterritorial application Note: Subsection 11 does not apply to WA 22

35 12. Scope (1) The Minister in consultation with the Minister administering the Work Health and Safety Act 2015 may make a determination as to whether a particular place is or is not a place to which this Act applies. The determination may be of general application or be limited as to time or circumstances. (2) The Minister s determination is conclusive for the purposes of deciding a jurisdictional question (including a jurisdictional question arising in court proceedings). (3) A jurisdictional question is a question as to whether functions of an inspector under this Act or of an inspector under the WHS Act were or can be validly exercised or a question as to whether proceedings for an offence under this Act or the WHS Act were or can be validly instituted. (4) A determination under this section applies in respect of functions exercised or purportedly exercised before or after the determination was made but not so as to affect court proceedings commenced before the determination was made. (5) A determination under this section does not operate to result in a person committing an offence that the person would not have committed had the determination not been made. (6) A certificate of the Minister certifying as to a determination made by the Minister under this section is evidence of the Minister s determination and the date of the determination. (7) The Minister is to notify the Minister administering the WHS Act of any determination made by the Minister under this section (but a failure to notify the other Minister does not affect the validity of the determination). (8) As soon as practicable after making a determination, the Minister is to take reasonable steps to ensure that a copy of the determination: is served on each person conducting a business or undertaking at the place to which the determination relates, or is posted in a prominent position at the place, or is published in the Gazette. 23