New South Wales. OCCUPATIONAL HEALTH AND SAFETY ACT 1983 No 20. Justices Legislation Amendment (Appeals) Act 1998 No 137

Transcription

1 New South Wales OCCUPATIONAL HEALTH AND SAFETY ACT 1983 No 20 CURRENT AS AT 3 JULY 2000 COVER SHEET (ONLY) MODIFIED 24 AUGUST 2001 INCLUDES AMENDMENTS (SINCE REPRINT No 6 OF ) BY: Justices Legislation Amendment (Appeals) Act 1998 No 137 Statute Law (Miscellaneous Provisions) Act (No 2) 1999 No 85 Occupational Health and Safety Amendment (Sentencing Guidelines) Act 2000 No 9 Occupational Health and Safety Amendment (Police Officers) Act 2000 No 11 DOES NOT INCLUDE AMENDMENTS BY: WorkCover Legislation Amendment Act 1996 No 120, Sch 2.5 [1] [3] (not commenced) Occupational Health and Safety Amendment Act 1997 No 51, Sch 1 [1] [2] [4] [7] [10] and [12] [14] (not commenced) NOTE: The Act is to be repealed on by the Occupational Health and Safety Act 2000 No 40, Sch REPRINT HISTORY: Reprint No 1 22 June 1988 Reprint No 2 25 March 1991 Reprint No 3 3 March 1993 Reprint No 4 4 August 1994 Reprint No 5 14 March 1996 Reprint No 6 20 January ANSTAT PTY LTD

2 Occupational Health and Safety Act 1983 No 20 An Act to secure the health, safety and welfare of persons at work; to amend certain Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Occupational Health and Safety Act Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 (Repealed) 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: associated occupational health and safety legislation means the provisions declared by Part 4 to be associated occupational health and safety legislation. domestic premises means premises occupied as a private dwelling. employee means an individual who works under a contract of employment or apprenticeship. employer means a corporation which, or an individual who, employs persons under contracts of employment or apprenticeship. improvement notice means a notice issued under section 31R. industrial organisation of employees means an industrial organisation of employees registered, or taken to be registered, under Chapter 5 of the Industrial Relations Act inspector means an inspector appointed under Division 4 of Part 3. occupational health and safety legislation includes: (a) the provisions of this Act and the regulations, and (b) the associated occupational health and safety legislation. place of work means premises, or any other place, where persons work. plant includes any machinery, equipment and appliance. 2 ANSTAT PTY LTD

3 premises includes: (a) any land, building or part of any building, (b) any vehicle, vessel or aircraft, (c) any installation on land, on the bed of any waters or floating on any waters, and (d) any tent or movable structure. prohibition notice means a notice issued under section 31S. regulation means a regulation under this Act. self-employed person means an individual who works for gain or reward otherwise than under a contract of employment or apprenticeship, whether or not employing others. substance means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour. work means work as an employee or as a self-employed person. WorkCover Authority means the WorkCover Authority constituted under the Workplace Injury Management and Workers Compensation Act (2) For the purposes of this Act, risks arising out of the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used and any part of them. (3) For the purposes of this Act: (a) an employee is at work throughout the time when he or she is at his or her place of work, but not otherwise, and (b) a self-employed person is at work throughout such time as the person devotes to work as a self-employed person. (3A) To avoid doubt, a police officer is, for the purposes of this Act: (a) an employee of the Crown, and (b) at work throughout the time when the officer is on duty at any place, but not otherwise. (4) A reference in this Act to: (a) a function includes a reference to a power, authority and duty, and (b) the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. 5 Objects (1) The objects of this Act are: (a) to secure the health, safety and welfare of persons at work, (b) to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work, (c) to promote an occupational environment for persons at work which is adapted to their physiological and psychological needs, and (d) to provide the means whereby the associated occupational health and safety legislation may be progressively replaced by comprehensive provisions made by or under this Act. 3 ANSTAT PTY LTD

4 (2) Subsection (1) (d) does not apply to the mining legislation declared by Division 4 of Part 4 to be associated occupational health and safety legislation. (3) The provisions of any paragraph of subsection (1) shall not be construed as limiting or being limited by the operation of any other provision of this Act. 6 Act to bind Crown This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. Part (Repealed) Part 3 General provisions relating to health, safety and welfare at work Division 1 General duties 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer s employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer s employees, (d) as regards any place of work under the employer s control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer s employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure 4 ANSTAT PTY LTD

5 that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person s employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer s employment are not exposed to risks to their health or safety arising from the conduct of the employer s undertaking while they are at the employer s place of work. (2) Every self-employed person shall ensure that persons not in the person s employment are not exposed to risks to their health or safety arising from the conduct of the person s undertaking while they are at the person s place of work. (3) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 17 Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person s employees) as a place of work, or the means of access thereto or egress therefrom, or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person s employees), shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health. 5 ANSTAT PTY LTD

6 Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (2) Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to: (a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or (b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b), that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person s obligation extends. (3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not). 18 Designers, manufacturers and suppliers to ensure health and safety as regards plant and substances for use at work (1) A person who designs, manufactures or supplies any plant or substance for use by persons at work must: (a) ensure that the plant or substance is safe and without risks to health when properly used, and (b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use. (2) The obligations under this section: (a) apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and (b) apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by persons at work, and (c) extend to the design, manufacture or supply of components for, or accessories to, any plant for use by persons at work, and (d) extend to the supply of the plant or substance by way of sale, transfer, lease or hire and whether as principal or agent, and (e) extend to the supply of the plant or substance to a person for the purpose of supply to others, and (f) do not apply to a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person. (3) In this section, manufacture plant includes assemble, install or erect plant. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 6 ANSTAT PTY LTD

7 19 Employees at work to take care of others and to co-operate with employer Every employee while at work: (a) shall take reasonable care for the health and safety of persons who are at his or her place of work and who may be affected by his or her acts or omissions at work, and (b) shall, as regards any requirement imposed in the interests of health, safety and welfare on his or her employer or any other person by or under this Act or the associated occupational health and safety legislation, co-operate with the employer or that other person so far as is necessary to enable that requirement to be complied with. Maximum penalty: 30 penalty units. 20 Person not to interfere with or misuse things provided for health, safety and welfare A person shall not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety and welfare in pursuance of this Act or the associated occupational health and safety legislation. Maximum penalty: 30 penalty units. 21 Employer not to charge employees for things done or provided pursuant to statutory requirement An employer shall not levy or permit to be levied on any of the employer s employees any charge in respect of anything done or provided in pursuance of any specific requirement made by or under this Act or the associated occupational health and safety legislation. Maximum penalty: 2,500 penalty units in the case of a corporation or 250 penalty units in any other case. 21A Person not to hinder aid to injured worker etc (1) A person shall not, by intimidation or by any other act or omission, wilfully hinder or obstruct or attempt to hinder or obstruct: (a) the giving or receiving of aid in respect of the illness or injury of a person at work, or (b) the doing of any act or thing to avoid or prevent a serious risk to the health or safety of a person at work. (2) A person at a place of work shall not refuse any reasonable request: (a) for assistance in the giving or receiving of aid in respect of the illness or injury of a person at work at that place of work, or (b) for the doing of any act or thing to assist in the avoidance or prevention of a serious risk to the health or safety of a person at work at that place of work. (3) It shall be a defence to any proceedings for an offence against a provision of subsection (1) or (2) for the person who contravened the provision to prove that the person had a reasonable excuse or lawful authority for contravening the provision. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 7 ANSTAT PTY LTD

8 21B 21C Plant or premises involved in dangerous occurrence (1) The occupier (within the meaning of Division 4) of premises that are a place of work must take measures to ensure that plant on those premises is not used, moved, or interfered with after it has been involved in a dangerous occurrence. Maximum penalty: 500 penalty units in the case of a corporation and 250 penalty units in any other case. (2) The occupier must also take measures to ensure that no person disturbs an area at the premises that is within 4 metres (or, if the regulations prescribe some other distance, that other distance) from the location where the dangerous occurrence occurred. Maximum penalty: 500 penalty units in the case of a corporation or 250 penalty units in any other case. (3) If the regulations prescribe measures that satisfy the requirements of subsection (1) or (2), the occupier is taken to have satisfied the requirements of that subsection if the occupier has taken the measures so prescribed. (4) This section does not prevent use, movement, interference or disturbance: (a) to help or remove a trapped or injured person or to remove a body, or (b) to avoid injury to a person or damage to property, or (c) for the purposes of any police investigation, or (d) in accordance with a direction or permission of an inspector, or (e) in such other circumstances as may be prescribed by the regulations. (5) The requirements of this section in relation to any particular dangerous occurrence apply only for the period that ends at midnight on the first working day (that is, any day except a Saturday, Sunday or public holiday) after the day on which the occurrence was notified in accordance with section 27 or otherwise notified to the WorkCover Authority, subject to any extension of that period under subsection (6). (6) The period for which the requirements of this section apply in relation to a dangerous occurrence can be extended by an inspector by giving notice in writing to the occupier of the premises concerned, but only if notice is given before the end of the period provided by subsection (5). Any such extension is to be on the basis of the period that the inspector considers, after an inspection, to be necessary for a proper examination of the relevant plant or area. (7) In this section, dangerous occurrence means: (a) an occurrence that causes death, or (b) an occurrence that causes a serious injury that is prescribed by the regulations for the purposes of this definition, or (c) an occurrence prescribed by the regulations for the purposes of this definition. Notice to stop plant or prevent disturbance of premises to allow inspection (1) An inspector who has entered premises under Division 4 may issue a notice under this section to the occupier of the premises (within the 8 ANSTAT PTY LTD

9 meaning of Division 4) if the inspector believes on reasonable grounds that it is necessary to issue the notice in order to allow an inspection, examination, taking of measurements or conduct of tests on the premises, relating to the premises or any plant, substance or thing on the premises. (2) The notice must set out the grounds on which it is given. (3) While the notice is in force, the occupier must: (a) stop the use of any plant, substance or thing that is specified in the notice, and (b) take measures to prevent the disturbance of any plant, substance or thing that is specified in the notice. Maximum penalty: 500 penalty units in the case of a corporation or 250 penalty units in any other case. (4) A notice remains in force for the period, not exceeding 7 days, specified in the notice. A notice may be renewed more than once by an inspector by issuing a further notice in accordance with this section. (5) The occupier to whom a notice is issued under this section must, unless an inspector otherwise directs, display a copy of it while it is in force in a prominent place on the premises to which it applies. Maximum penalty: 10 penalty units. (6) An inspector who issues a direction under this section must take reasonable steps to inform the employer of the employees in the place of work on the premises to which the notice relates of the notice as soon as practicable after issuing it. 21D Review in accordance with section 31U A notice under section 21B or 21C (including any terms of the notice and its period of operation) may be reviewed and appealed against in accordance with section 31U. 22 Civil liability not affected by this Division (1) Nothing in this Division shall be construed: (a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Division, (b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings, (c) as affecting the extent (if any) to which the breach of a duty imposed by or under the associated occupational health and safety legislation is actionable, or (d) as affecting the extent (if any) to which the breach of a duty imposed by or under the regulations is actionable. (2) Despite subsection (1) (a), if the operation of a provision of this Division has been adapted by a regulation made under section 46 to meet the circumstances of any specified class of case, nothing in this Division is taken to affect the extent (if any) to which the breach of a duty imposed by the adapted provision is actionable in relation to any such case. 9 ANSTAT PTY LTD

10 Division 2 Occupational health and safety committees 23 Establishment of occupational health and safety committees in workplaces (1) An occupational health and safety committee shall be established at a place of work in accordance with this section if: (a) there are 20 or more persons employed at the place of work and a majority of the persons so employed requests the establishment of such a committee, or (b) the WorkCover Authority directs the establishment of such a committee at the place of work. (2) The composition of any such occupational health and safety committee, the election or appointment of persons to the committee and any other matter relating to the establishment or procedure of the committee shall be as prescribed. (3) The regulations made for the purposes of subsection (2) shall provide for: (a) the election of members of any such occupational health and safety committee by the persons who are employed at the place of work at which the committee is established and the appointment of other members of the committee by the employer of those persons, and (b) the election of a presiding member and convener of the committee by and from the members so elected. (4) A person shall not fail to do anything the person is required to do pursuant to this section for the purposes of establishing an occupational health and safety committee at a place of work. Maximum penalty: 150 penalty units in the case of a corporation or 100 penalty units in any other case. 24 Functions of occupational health and safety committees (1) An occupational health and safety committee established at a place of work pursuant to section 23: (a) shall keep under review the measures taken to ensure the health and safety of the persons at the place of work, (b) shall investigate any matter at the place of work: (i) which a member of the committee or a person employed thereat considers is not safe or is a risk to health, and (ii) which has been brought to the attention of the employer, (c) shall attempt to resolve any such matter but, if unable to do so, shall request an inspector to undertake an inspection of the place of work for the purpose, and (d) shall have such other functions as are prescribed. (2) An inspection by an inspector to resolve a matter pursuant to subsection (1) (c) shall be undertaken forthwith after the request made by the occupational health and safety committee. 25 Powers of members of occupational health and safety committees 10 ANSTAT PTY LTD

11 (1) A member of an occupational health and safety committee established at a place of work pursuant to section 23 shall, for the purposes of the committee, have power: (a) to carry out such inspections of the place of work, (b) to obtain such information relating to the place of work, or (c) to do such other things in relation to the place of work, as may be prescribed. (2) A member of any such occupational health and safety committee shall be provided with training to assist the member to exercise his or her functions as such a member, being training of such kind and provided by such persons as may be prescribed. (3) A person who is required by the regulations to provide any such training shall not fail or refuse to provide the training. Maximum penalty: 100 penalty units. 26 Unlawful dismissal etc of employee (1) An employer shall not dismiss an employee or injure an employee in his or her employment or alter his or her position to his or her detriment by reason of the fact that the employee: (a) makes a complaint about a matter which he or she considers is not safe or is a risk to health, (b) is a member of an occupational health and safety committee established pursuant to section 23, or (c) exercises any of his or her functions as such a member. Maximum penalty: 250 penalty units in the case of a corporation or 150 penalty units in any other case. (2) In proceedings for an offence under subsection (1), if all the facts constituting the offence other than the reason for the defendant s action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge shall lie on the defendant. (3) Where an employer is convicted by a court of an offence under subsection (1), the court may order: (a) the employer to pay the employee a specified sum by way of reimbursement for the salary or wages lost by the employee, and (b) that the employee be reinstated in his or her old or a similar position. (4) An employer shall give effect to an order of the court under subsection (3). Maximum penalty: For each day the order is not given effect to, 10 penalty units. Division 3 Notification of accidents and other matters 27 Notification of accidents and other matters (1) Where: 11 ANSTAT PTY LTD

12 (a) an accident occurs at a place of work, whether or not it causes the death of, or bodily injury to, any person, or (b) any other matter occurs at or in relation to a place of work which affects the health or safety of any person, being an accident or other matter which is required by the regulations to be notified under this section: (c) except as provided by paragraph (d), the occupier of the place of work, or (d) such other person as is prescribed, shall give notice of the accident or other matter in accordance with subsection (2). Maximum penalty: 500 penalty units in the case of a corporation or 250 penalty units in any other case. (2) A notice of an accident or other matter referred to in subsection (1) shall be given to such persons, within such time and in such manner as are prescribed. 27A Notification of certain proposed work (1) A person must not commence to carry out work of a kind prescribed by the regulations at a place of work unless the person has given notice of the proposed work in accordance with this section. Maximum penalty: 100 penalty units. (2) The regulations may prescribe the following kinds of work for the purposes of subsection (1): (a) construction work, (b) demolition work, (c) the setting up or erection of cranes, hoists, scaffolding, conveyors, escalators, lifts or moving walks, (d) any other work (whether or not of the same kind). (3) Any notice under this section: (a) is to be in the form approved by the WorkCover Authority, and (b) is to be given at least 7 days before the commencement of the proposed work, and (c) is to be given to the WorkCover Authority by leaving it at, or by sending it by post or by facsimile transmission to, an office of the WorkCover Authority. (4) The regulations may: (a) require a notice to be given in a different manner, or within a different time, from that prescribed by subsection (3), and (b) require a notice to be given by a person other than the person proposing to carry out the work. (5) (Repealed) 28 Notification under associated occupational health and safety legislation 12 ANSTAT PTY LTD

13 A provision of the associated occupational health and safety legislation which requires notice to be given of an accident or other matter shall, if the regulations so provide, not have any effect. Division 4 Appointment and powers of inspectors 29 Definitions In this Division: occupier includes a person for the time being having (or appearing to have) the charge, management or control of premises or a person who, for the time being, is in charge (or appears to be in charge) of any operation being conducted on the premises. relevant legislation means the provisions of this Act, the Construction Safety Act 1912 and the Factories, Shops and Industries Act 1962 (other than Parts 4 and 6) and regulations made under those provisions. 30 Application of Division This Division does not apply to a mine within the meaning of the Mines Inspection Act 1901 or the Coal Mines Regulation Act A (Repealed) 31 Appointment of inspectors The WorkCover Authority may appoint as inspectors for the purposes of the relevant legislation any of the following persons: (a) a statutory officer, (b) a public servant, (c) a person employed by a public or local authority, (d) a person belonging to a class of persons prescribed by the regulations. 31A 31B 31C Powers of entry for places of work For the purposes of the relevant legislation, an inspector may enter any premises the inspector has reason to believe is a place of work. Notice of entry (1) An inspector authorised to enter premises under this Division may enter the premises without notice. (2) The inspector must notify the occupier of the premises of the inspector s presence on the premises as soon as reasonably practicable after entering the premises, unless: (a) to do so would defeat the purpose for which the premises were entered or would unreasonably delay the inspector in a case of urgency, or (b) the occupier is already aware that the inspector has entered the premises or was notified in advance of when the inspector would enter the premises. Authority to enter premises 13 ANSTAT PTY LTD

14 (1) A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the occupier of the premises. (2) The authority must be a written authority that is issued by the WorkCover Authority and that: (a) states that it is issued under this Act, and (b) gives the name of the person to whom it is issued, and (c) describes the nature of the powers conferred and the source of the powers, and (d) states the date (if any) on which it expires, and (e) describes the kind of premises to which the power extends, and (f) bears the signature of the General Manager of the WorkCover Authority or an officer approved by the General Manager for the purposes of this paragraph. (3) Entry may only be made at a reasonable time in the daytime or at any hour when work is carried on or is usually carried on. (4) This section does not apply to a power conferred by a search warrant. 31D 31E 31F Use of force on entry (1) Reasonable force may be used for the purpose of gaining entry to premises (other than domestic premises) under a power conferred by this Division, but only if authorised by the WorkCover Authority in accordance with this section or in cases of emergency. (2) The authority of the WorkCover Authority: (a) must be in writing, and (b) must be given in respect of the particular entry concerned, and (c) must specify the circumstances that are required to exist before force may be used. (3) This section does not apply to a power conferred by a search warrant and does not affect section 17 of the Search Warrants Act 1985 (Use of force to enter premises etc). Notification of use of force on entry (1) An inspector authorised to enter premises under this Division who uses force for the purpose of gaining entry to the premises must promptly advise the WorkCover Authority of the use of force. (2) The WorkCover Authority must give written notice of the entry to such persons or authorities as appear to the Authority to be appropriate in the circumstances. Compensation The WorkCover Authority must pay compensation for any loss or damage caused by any inspector in the exercise of any power to enter premises under this Division, but not if that loss or damage is caused because the 14 ANSTAT PTY LTD

15 occupier obstructed, hindered or restricted the inspector in the exercise of the power of entry. 31G 31H 31I Entry to domestic premises The powers of entry conferred by this Division are not exercisable in relation to domestic premises except: (a) with the permission of the occupier of the premises, or (b) under the authority conferred by a search warrant. Search warrant (1) An inspector may apply to an authorised justice for a search warrant if the inspector has reasonable grounds for believing that a provision of the relevant legislation has been or is being or is about to be contravened in or about any premises. (2) An authorised justice to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the inspector named in the warrant to enter the premises and to search the premises for evidence of a contravention of the relevant legislation. (3) Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section. (4) In this section, authorised justice has the same meaning as it has in the Search Warrants Act Powers available on entry For the purposes of the relevant legislation, an inspector who enters premises under this Division may do any of the following: (a) make searches, inspections, examinations and tests (and take photographs and make video and audio records), (b) take for analysis a sample of any substance or thing which in the inspector s opinion may be, contain or be contaminated by, a substance (or a degradation product of a substance) prescribed by the regulations, (b1) dismantle any plant or thing on the premises for the purpose of examination, if the inspector believes on reasonable grounds that the plant or thing has been used in the commission of an offence against the relevant legislation, (b2) take any plant, substance or thing (or any sample of a substance) from the premises, if the inspector believes on reasonable grounds that the plant, substance or thing has been used in the commission of an offence against the relevant legislation, (b3) keep any plant, substance, sample or thing taken under paragraph (b2) that: (i) may reasonably be required as evidence in proceedings for an offence against the relevant legislation, or (ii) might, if not so kept, be used to continue or repeat the offence, 15 ANSTAT PTY LTD

16 (c) in the case of an inspector who is a medical practitioner, carry out medical examinations with the consent of the person proposed to be examined, (d) carry out biological tests in such manner and in such circumstances as may be prescribed by the regulations, (e) require any person in or about those premises to answer questions or otherwise furnish information, (f) require the occupier of those premises to provide the inspector with such assistance and facilities as is or are reasonably necessary to enable the inspector to exercise the inspector s functions, (g) require the production of and inspect any records in or about those premises, (h) take copies of or extracts from any such records, (i) exercise all other functions that are conferred by or are reasonably necessary for the purposes of the relevant legislation. 31J 31K 31KA Care to be taken In the exercise of a function under this Division, an inspector must do as little damage as possible. Inspector may request assistance (1) A police officer may accompany and take all reasonable steps to assist an inspector in the exercise of the inspector s functions under this Division: (a) in executing a search warrant issued under section 31H, or (b) if the inspector reasonably believes that he or she may be obstructed in the exercise of those functions. (2) Any person whom an inspector believes to be capable of providing assistance in the exercise of the inspector s functions under this Division may accompany the inspector and take all reasonable steps to assist the inspector in the exercise of the inspector s functions. (3) Nothing in subsection (1) is to be taken to limit the generality of section 18 of the Search Warrants Act Power of inspectors to obtain information, documents and evidence (1) An inspector may, by notice in writing served on a person who is, on reasonable grounds, believed by the inspector to be capable of giving information, producing documents or giving evidence in relation to a possible contravention of the relevant legislation require the person to do any one or more of the following things: (a) to give an inspector, by writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any such information of which the person has knowledge, (b) to produce to an inspector, in accordance with the notice, any such documents, 16 ANSTAT PTY LTD

17 (c) to appear before an inspector at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents. (2) A notice under this section must contain a warning that a failure to comply with the notice is an offence. (3) An inspector may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document. (4) An inspector may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an inspector to be a true copy. (5) A certified copy provided under subsection (4) is receivable in all courts as if it were the original. (6) Until a certified copy of a document is provided under subsection (4), the inspector who has possession of the document must, at such times and places as the inspector thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document. 31L 31M 31N Attendance of inspector at coronial inquest An inspector may attend and has authority to examine witnesses at any inquest into the cause of death of any employee while employed at a place of work. Protection from incrimination (1) A person is not excused from making a statement, giving or furnishing information or evidence or producing a document in accordance with a requirement under this Division on the ground that the statement, information, document or evidence may tend to incriminate the person. (2) However, any statement, information, document or evidence obtained from a person pursuant to a requirement under this Division is not admissible in evidence against the person in criminal proceedings (other than proceedings for an offence under section 31N) if: (a) the person claims before making the statement or giving, furnishing or producing the information, document or evidence that it might tend to incriminate the person, or (b) the person s entitlement to make a claim of the kind referred to in paragraph (a) was not drawn to the person s attention before the statement was made or the information, document or evidence was given, furnished or produced. (3) Subsection (2) does not prevent the admission in evidence in proceedings against a body corporate of any statement, information, document or evidence obtained pursuant to a requirement under this Division from a person as a competent officer of the body corporate. Offence: obstruction and compliance A person must not: 17 ANSTAT PTY LTD

18 (a) obstruct, hinder or impede an inspector in the exercise of the inspector s functions under this Division, or (b) prevent or attempt to prevent any other person from assisting an inspector in the exercise of the inspector s functions under this Division, or (c) directly or indirectly intimidate or threaten or attempt to intimidate an inspector or a person assisting an inspector in the exercise of the inspector s functions under this Division, or (d) without reasonable excuse, refuse or fail to comply with a requirement made or to answer a question of an inspector asked in accordance with this Division, or (e) in purported compliance with a requirement under this Division, or in answer to a question of an inspector asked in accordance with this Division, give or furnish information or evidence or produce a document knowing it to be false or misleading in a material particular. Maximum penalty: 100 penalty units. 31O 31P 31Q Offence: impersonating an inspector A person must not impersonate, or falsely represent that the person is, an inspector. Maximum penalty: 100 penalty units. Disclosure of information (1) A person who is, or was at any time, an inspector must not disclose any information relating to any manufacturing or commercial secrets or working processes that was obtained by the inspector in connection with the administration or execution of the relevant legislation. Maximum penalty: 20 penalty units. (2) Subsection (1) does not operate to prevent the disclosure of information where that disclosure is: (a) made in connection with the administration or execution of the relevant legislation, or (b) made with the prior permission of the Minister, or (c) ordered by a court, or by any other body or person authorised by law to examine witnesses, in the course of, and for the purpose of, the hearing and determination by that court, body or person of any matter or thing. (3) The Minister may grant the permission referred to in subsection (2) (b) only if the Minister is satisfied that to do so would be in the public interest. Power of employees representative to accompany inspector (1) An inspector who is proposing to undertake an inspection of a place of work with respect to a matter that may affect the health, safety or welfare of employees at the place of work: (a) must, to the extent that it is practicable, consult a representative of the employees or an industrial organisation of employees whose members are employed at the place of work, and 18 ANSTAT PTY LTD

19 (b) must, if requested to do so by the representative, take the representative on any such inspection. (2) In this section, inspector means an inspector appointed under this Division or under any associated occupational health and safety legislation. 31R 31S Inspector may issue improvement notices (1) If an inspector is of the opinion that any person: (a) is contravening any 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 be repeated, the inspector may issue to the person a notice requiring the person to remedy the contravention or the matters occasioning it within the period specified in the notice. (2) The period within which a person is required by an improvement notice to remedy a contravention or the matters occasioning the contravention must be at least 7 days after the issue of the notice. (3) However, an inspector may specify a period that is less than 7 days after the issue of the improvement notice if satisfied that it is reasonably practicable for the person to comply with the requirements imposed by the notice by the end of that period. (4) An improvement notice must: (a) state that the inspector is of the opinion referred to in subsection (1), and (b) state the reasons for that opinion, and (c) specify the provision of the Act or the regulations in respect of which that opinion is held, and (d) include information about obtaining a review of the notice under section 31U. (5) A person who, without reasonable excuse, fails to comply with a requirement imposed by an improvement notice is guilty of an offence. Maximum penalty: (a) 500 penalty units in the case of a corporation, or (b) 250 penalty units in the case of an individual who contravenes this subsection otherwise than in his or her capacity as an employee, or (c) 15 penalty units in the case of an individual who contravenes this subsection in his or her capacity as an employee. Inspector may issue prohibition notices (1) If an inspector is of the opinion that at any place of work there is occurring or about to occur any activity which involves or will involve an immediate risk to the health or safety of any person, the inspector may issue to the person who has or may be reasonably presumed to have control over the activity a notice prohibiting the carrying on of the activity until the matters which give or will give rise to the risk are remedied. 19 ANSTAT PTY LTD

20 (2) A prohibition notice must: (a) state that the inspector is of the opinion referred to in subsection (1), and (b) state the reasons for that opinion, and (c) specify the activity in respect of which that opinion is held, and (d) if in the inspector s opinion the activity involves a contravention or likely contravention of any provision of the Act or the regulations specify that provision and state the reasons for that opinion, and (e) include information about obtaining a review of the notice under section 31U. (3) A person who, without reasonable excuse, fails to comply with a requirement imposed by a prohibition notice is guilty of an offence. Maximum penalty: (a) 1,000 penalty units in the case of a corporation, or (b) 500 penalty units in the case of an individual who contravenes this subsection otherwise than in his or her capacity as an employee, or (c) 30 penalty units in the case of an individual who contravenes this subsection in his or her capacity as an employee. 31T 31U Notices may include directions (1) An inspector may include in an improvement notice or a prohibition notice directions as to the measures to be taken to remedy any contravention or matter to which the notice relates. (2) Any such direction may: (a) adopt, by reference, the requirements of any industrial or other code of practice, and (b) offer the person to whom it is issued a choice of ways in which to remedy the contravention or matter. Review of notices (1) A person who is issued with a notice under section 21B, 21C or 31Z, an improvement notice or a prohibition notice may apply in writing to the WorkCover Authority for a review of the notice. (2) The application for review must be made within 7 days after the notice is issued or, if the regulations prescribe a different period, within the period so prescribed. (3) An application for review may be made only once in respect of any particular notice. (4) The WorkCover Authority is to review a notice that is the subject of a duly made application for review. The notice is stayed (unless it is a prohibition notice) from when the application for review is received by the WorkCover Authority until the WorkCover Authority gives notice to the applicant of the result of the review. If the notice is a prohibition notice it can be stayed as provided by section 31UA. 20 ANSTAT PTY LTD

21 (5) The WorkCover Authority may, as a result of the review, confirm the notice, vary it or revoke it. The confirmation, variation or revocation has effect when notice of the result of the review is given to the applicant. (6) An applicant who is not satisfied with the result of a review may appeal against the notice concerned to a Local Court constituted by an Industrial Magistrate sitting alone. (7) An appeal to a Local Court under this section does not operate to stay the notice the subject of the appeal except as otherwise ordered by the Court. (8) Regulations may be made with respect to reviews and appeals under this section, including as to the time and manner in which an application for such a review or appeal is to be made. 31UA 31V 31W 31X Application to Industrial Magistrate for stay of prohibition notice (1) If a person duly applies under section 31U for review of a prohibition notice, the person may apply to a Local Court constituted by an Industrial Magistrate for a stay of the notice. (2) A stay may be granted for such period as the court considers appropriate but not so as to extend past the time when notice of the result of the review is given to the applicant by the WorkCover Authority. (3) A stay may be granted on such conditions as the court considers appropriate and may be revoked or amended by the court. Withdrawal of notices (1) A notice under section 21C or 31Z or an improvement notice or a prohibition notice may be withdrawn at any time by the inspector who issued the notice or by the WorkCover Authority if the inspector or the WorkCover Authority is satisfied that the notice was issued in error or is incorrect in some respect. (2) The withdrawal has effect when notice of the withdrawal is given to the person to whom the notice was issued. Revocation or withdrawal of notice does not prevent issue of another notice The revocation or withdrawal of a notice under section 21C or 31Z or an improvement notice or a prohibition notice does not prevent the issue of any other notice. Service and exhibition of notices (1) A notice under section 21B, 21C or 31Z or an improvement notice or prohibition notice, or a notice confirming, revoking or withdrawing such a notice may be issued or given to a person: (a) by delivering it personally to the person, or (b) by leaving it with some other person at, or sending it by post to, the person s place of residence or business or the place of work to which the notice relates. (2) This section does not affect the operation of any provision of a law or the rules of a court authorising a notice or other document to be served in a manner not authorised by this section. (3) An inspector may cause a notice containing a copy of or extract from a notice referred to in subsection (1), or of the matter contained in the 21 ANSTAT PTY LTD

22 notice, to be exhibited at the place of work concerned in a manner approved by the WorkCover Authority. (4) A person must not destroy, damage or remove a notice exhibited under subsection (3) except with the approval of the WorkCover Authority or an inspector. Maximum penalty: 100 penalty units in the case of a corporation or 50 penalty units in any other case. 31Y 31Z 31AA Proceedings for offences not affected by notices The issue, variation, revocation or withdrawal of a notice under section 21C or 31Z or a prohibition notice or improvement notice does not affect any proceedings for an offence against this Act, the regulations or the associated occupational health and safety legislation in connection with any matter in respect of which the notice was issued. Notice of taking or dismantling (1) Before exercising any of the powers under section 31I (b1) (b3), an inspector must give notice to the occupier of a place of work where the relevant plant, substance or thing is situated of the inspector s intention to exercise that power. (2) The notice must specify the date and time when the inspector proposes to exercise the powers as well as the plant, substance or thing in relation to which the powers are to be exercised. Powers supporting taking (1) Having taken a thing under section 31I (b2), an inspector may: (a) move the thing from the place where it was taken, or (b) leave the thing at the place but take reasonable action to restrict access to it, or (c) if the thing is plant dismantle it. (2) The following are examples of restricting access to a thing: (a) sealing a thing and marking it to show access to it is restricted, (b) sealing the entrance to a room where the thing is situated and marking it to show access to it is restricted. (3) If an inspector restricts access to a thing taken, a person must not tamper, or attempt to tamper, with the thing or something restricting access to the thing without an inspector s approval. Maximum penalty: 40 penalty units. (4) To enable a thing to be taken under section 31I (b2), an inspector may require the person in control of it: (a) to take it to a stated reasonable place by a stated reasonable time, and (b) if necessary, to remain in control of it at the stated place for a reasonable time. (5) The requirement: (a) must be made by notice in the approved form, or 22 ANSTAT PTY LTD