2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Industrial Relations)

Part 2.1 Children and Young People Act 2008 23

Part 2.2 Corrections Management Act 2007 23

Part 2.3 Crimes Act 1900 24

Part 2.4 Crimes (Sentence Administration) Act 2005 24

Part 2.5 Dangerous Substances Act 2004 25

Part 2.6 Dangerous Substances (Explosives) Regulation 2004 26

Part 2.7 Dangerous Substances (General) Regulation 2004 26

Part 2.8 Legislation Act 2001 27

Part 2.9 Public Sector Management Act 1994 28

Part 2.10 Radiation Protection Act 2006 28

Part 2.11 Scaffolding and Lifts Regulation 1950 29

Part 2.12 Utilities Act 2000 29

Part 2.13 Victims of Crime Regulation 2000 29

Part 2.14 Workers Compensation Act 1951 30

Part 2.15 Workers Compensation Regulation 2002 31

2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Industrial Relations)

An Act to amend legislation because of the enactment of the Work Safety Act 2008, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Work Safety Legislation Amendment Act 2009.

This Act commences on the later of—

(a) the day after this Act’s notification day; and

(b) the commencement of the Work Safety Act 2008.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the legislation mentioned in schedules 1 and 2.

(1) This Act repeals the following legislation:

• Occupational Health and Safety Act 1989 (A1989-18)

• Occupational Health and Safety (Certification of Plant Users and Operators) Regulation 2000 (SL2000-48)

• Occupational Health and Safety (General) Regulation 2007 (SL2007-36)

• Occupational Health and Safety (Manual Handling) Regulation 1997 (SL1997-32).

(2) All other legislative instruments, other than the following instruments, under the Occupational Health and Safety Act 1989 are repealed:

(a) an appointment mentioned in the Work Safety Act 2008, sections 505 to 507;

(b) a code of practice mentioned in the Work Safety Act 2008, section 508.

Note The transitional provisions inserted into the Work Safety Act 2008 by this Act provide that certain legislative instruments made under the Occupational Health and Safety Act 1989 are taken to be made under the Work Safety Act 2008 and continue in force.

In deciding whether a person has complied with a duty under this Act, a decision-maker may consider whether a person has complied with—

(a) any approved code of practice in relation to the duty; and

(b) any incorporated document in relation to the duty.

(3) Without limiting subsection (2), the person’s duty includes—

(a) providing and maintaining a safe workplace and safe systems of work; and

(b) providing and maintaining plant that is safe and without risk to the work safety of workers and other people at the business or undertaking; and

(c) ensuring that plant is operated only by workers and other people at the business or undertaking who are qualified to operate the plant; and

(d) ensuring the safe use, handling, storage and transport of substances; and

(e) providing adequate facilities for the work safety of workers and other people at the business or undertaking; and

(f) monitoring the work safety of workers at the business or undertaking, and the conditions at the workplace, to ensure that work-related illness and injury are prevented; and

(g) keeping the information and records relating to work safety required under this Act, including incident reports and training records, in relation to the business or undertaking; and

(h) providing appropriate information, instruction, training or supervision to workers and other people at the business or undertaking to allow work to be carried out safely; and

(i) consulting workers at the business or undertaking on matters that directly affect their work safety; and

(j) any other duty prescribed by regulation.

In this Act:

dangerous occurrence means 1 or more of the following:

(a) an occurrence involving imminent risk of the death of, or serious injury to, anyone;

(b) any of the following occurrences that endangers or is likely to endanger the work safety of people at a workplace:

(i) damage to a boiler, pressure vessel, plant, equipment or other thing;

(ii) damage to, or failure of, a load-bearing member or control device of a crane, hoist, conveyor, lift, escalator, moving walkway, plant, scaffolding, gear, amusement device or public stand;

(iii) an uncontrolled fire, uncontrolled explosion or uncontrolled escape of gas, a dangerous substance or steam;

(c) anything else prescribed by regulation.

1 uncontrolled escape of flammable gas in a workshop where welding occurs creating a imminent risk of death or serious injury due to the likelihood of an explosion

2 collapse of an excavation trapping worker underground causing imminent risk of death or serious injury due to suffocation

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Note Employer—see s 10.

if

as far as

(c) if a worker in the unit, a work safety representative or a work safety committee asks for a review.

(3) However, if more than half the workers in the worker consultation unit ask that a work safety representative, or a work safety committee, be elected, the employer must arrange for the representative or the committee to be elected by the workers in the unit.

(4) The employer and the employer’s workers may, either separately or together, ask someone else to assist in deciding on the method for worker consultation.

(1) The chief executive may direct all employers in an industry to arrange for a health and safety committee to be elected by the workers in a worker consultation unit if satisfied on reasonable grounds that—

(a) the work done by the workers in the industry is hazardous; and

(b) the establishment of the committee will improve work safety.

(2) If the chief executive gives a direction under subsection (1), each employer conducting a business or undertaking in the industry must arrange for a work safety committee to be elected.

(3) A direction under this section is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(4) An employer commits an offence if—

(a) the chief executive gives a direction under subsection (1); and

(b) the employer conducts a business or undertaking in the industry mentioned in the direction; and

(c) the employer fails to comply with the direction.

Maximum penalty: 100 penalty units.

(5) An offence against this section is a strict liability offence.

(d) if the workers are not represented by a work safety representative or work safety committee—consulting the workers directly.

(3) An employer commits an offence if—

(a) a worker consultation unit of the employer’s workers elect a work safety representative or work safety committee; and

(b) the employer fails to consult the work safety representative or work safety committee about a matter directly affecting the work safety of the employer’s workers.

Maximum penalty: 50 penalty units.

(a) to represent the worker consultation unit—

(i) in relation to work safety; and

(ii) in consultations with the workers’ employer about the development, implementation and review of ways to safeguard work safety at each workplace where a represented worker works; and

(1) An employer commits an offence if—

(a) the employer knows that a person is a work safety representative; and

(b) the employer obstructs, hinders, intimidates or resists the person in the exercise of the person’s functions as a work safety representative.

Maximum penalty: 50 penalty units.

(2) Strict liability applies to the circumstances that the work safety representative was exercising the representative’s functions as a work safety representative.

(1) An employer commits an offence if the employer directly or indirectly discloses personal health information about a worker to a work safety representative.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(2) Subsection (1) does not apply if—

(a) the worker consents in writing to the work safety representative having access to the information; or

(b) the information does not identify the worker or allow the worker to be identified.

A member of a work safety committee does not incur civil liability for an act or omission done honestly and without recklessness in the exercise of a function for this Act.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations and the corrections rules (see Legislation Act, s 104).

an improvement

a prohibition

(4) If the chief executive is asked to arrange a reinspection under subsection (2) the chief executive must—

(a) arrange for the reinspection; or

(b) decide not to arrange for a reinspection and give the relevant responsible person the reasons for the decision.

(1) This section applies to a member of the council other than the commissioner.

(2) The Minister must end the appointment of a member of the council if—

(a) the Minister becomes aware that the member has become bankrupt, executed a personal insolvency agreement or otherwise applied to take the benefit of a law for the relief of bankrupt or insolvent debtors; or

(b) the member was appointed under section 186 (a) and the Minister is satisfied that the member no longer represents the interests of employees; or

(c) the member was appointed under section 186 (b) and the Minister is satisfied that the member no longer represents the interests of employers; or

(d) the Minister becomes aware that the member has failed to comply with section 190 (Disclosure of interest) without reasonable excuse; or

(e) the Minister becomes aware that the member has at any time been convicted, in Australia, of an offence punishable by imprisonment for 1 year or longer; or

(f) the Minister becomes aware that the member has at any time been convicted, outside Australia, of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for 1 year or longer.

(3) The Minister may end the appointment of a member of the council—

(a) if the member is absent from 3 consecutive meetings of the council, otherwise than on leave approved under section 189; or

(b) if the member contravenes a territory law; or

(c) for misbehaviour; or

(d) for physical or mental incapacity, if the incapacity substantially affects the exercise of the member’s functions.

Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

(4) However, before ending the appointment of the member under subsection (2) (e) or (f) or (3) (b) the Minister must be satisfied that the conviction or contravention affects the person’s suitability as a member of the council.

occupational

(1) This section applies if—

(a) a person is exercising, or purporting to exercise, any function under this Act; and

(b) the person obtains protected information about another person.

(2) A person to whom this section applies commits an offence if the person—

(a) makes a record of the protected information; or

(b) directly or indirectly divulges the protected information to a person.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) Subsection (2) does not apply if the record is made, or the protected information is divulged—

(a) under this or another territory law; or

(b) in relation to the exercise of a function of the person to whom this section applies under this or another territory law; or

(c) to a relevant authority, by the person to whom this section applies, if the person reasonably believes that recording or divulging the information is in the interests of work safety; or

(d) to a person administering or enforcing a corresponding law; or

(e) to a law enforcement authority; or

(f) to a court under a summons or subpoena.

(4) Subsection (2) does not prevent a person from making a record of, or divulging protected information about another person with the other person’s consent.

(5) In this section:

corresponding law means—

(a) a law of a State corresponding, or substantially corresponding, to this Act; or

(b) a law of the Commonwealth or a State, that is declared by regulation to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act.

Note State includes a territory (see Legislation Act, dict, pt 1).

court includes any tribunal or other entity having power to require the production of documents or the answering of questions.

protected information means—

(a) information relating to the personal affairs of a person; or

(b) information the disclosure of which would, or could reasonably be expected to—

(i) disclose a trade secret; or

(ii) adversely affect a person in relation to the lawful business affairs of that person.

relevant authority means a government agency administering a law of the Territory, the Commonwealth, or a State.

(2) A regulation may make provision on any subject matter affecting, or likely to affect, work safety.

20 penalty units

30 penalty units

(c) a document as an incorporated document.

Note The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).

In this part:

commencement day means the day the Work Safety Act 2008 commences.

repealed Act means the Occupational Health and Safety Act 1989.

(1) The selection of a person as a health and safety representative for a designated work group under the repealed Act, section 56, that is in force immediately before the commencement day, is taken to be an election of the person as a work safety representative for the worker consultation unit that corresponds to the designated work group under this Act, section 58.

(2) The election mentioned in subsection (1) continues in force until the end of the health and safety representative’s term of office.

A health and safety committee, operational immediately before the commencement day and carrying out the functions mentioned in the repealed Act, section 86, is taken to be a work safety committee that corresponds to the work safety committee under this Act, section 60.

(1) A work group designated by an employer under the repealed Act, section 53, that is in force immediately before the commencement day, that corresponds to a worker consultation unit under this Act is taken to be a worker consultation unit under this Act.

(2) The worker consultation unit mentioned in subsection (1) continues in force until the unit is reviewed under this Act, section 52.

(1) The authorisation by a registered organisation of a person as an authorised representative under the repealed Act, section 75, that is in force immediately before the commencement day, is taken to be an authorisation by the registered organisation of the person as an authorised representative under this Act, section 62.

(2) The authorisation mentioned in subsection (1) continues in force until the earlier of the following:

(a) the end of the period the authorised representative is authorised for under the repealed Act;

(b) the end of the authorisation under this Act, section 62 (3);

(c) 1 year after the commencement day.

The appointment of a person as a member of the Occupational Health and Safety Council under the repealed Act, section 14, that is in force immediately before the commencement day, is taken to be an appointment of the person as a member of the Work Safety Council under this Act, section 186 and continues in force until the end of the term of the appointment under the repealed Act unless ended earlier.

Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

The appointment of a person as the Occupational Health and Safety Commissioner under the repealed Act, section 26, that is in force immediately before the commencement day, is taken to be an appointment of the person as the Work Safety Commissioner under this Act, section 200 and continues in force until the end of the term of the appointment under the repealed Act unless ended earlier.

Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

The appointment of a person to be an inspector under the repealed Act, section 201, that is in force immediately before the commencement day, is taken to be an appointment of the person as an inspector under this Act, section 180.

(1) The following codes of practice approved under the repealed Act, section 206, that are in force immediately before the commencement day, are taken to be codes of practice under this Act, section 18:

• Occupational Health and Safety (National Standard for Synthetic Mineral Fibres) Approval 1992 (DI1992-192);

• Occupational Health and Safety (Control and Safe Use of Inorganic Lead at Work) Approval 1995 (DI1995-23);

• Occupational Health and Safety (National Standard for Plant) Approval 1995 (DI1995-24);

• Occupational Health and Safety (Safe Working in a Confined Space) Approval 1995 (DI1995-30);

• Occupational Health and Safety (National Standard for Limiting Occupational Exposure to Ionising Radiation) Approval 1996 (DI1996-2).

(2) The following codes of practice approved under the repealed Act, section 206, that are in force immediately before the commencement day, are taken to be codes of practice under this Act, section 18 for 1 year after the commencement day:

• Occupational Health and Safety (Code of Practice for Smoke Free Workplaces) Approval 1994 (DI1994-25);

• Occupational Health and Safety (Human Immunodeficiency Virus and Hepatitis B in the Workplace National Code of Practice) Determination 1994 (DI1994-111);

• Occupational Health and Safety (National Code of Practice for the Prevention of Occupational Overuse Syndrome) Determination 1994 (DI1994-115);

• Occupational Health and Safety (Exposure Standards for Atmospheric Contaminants in the Occupational Environment) Code of Practice Approval 1996 (DI1996-255);

• Occupational Health and Safety (Steel Construction) Code of Practice Approval 1997 (DI1997-57);

• Occupational Health and Safety (Safe Working on Roofs pt 1) Code of Practice Approval 1997 (DI1997-269);

• Occupational Health and Safety (ACT Construction Industry Amenities) Code of Practice 1998 (DI1998-222);

• Occupational Health and Safety (Manual Handling) Code of Practice 1999 (DI1999-9);

• Occupational Health and Safety (Safe Working on Roofs Pt 2) Code of Practice Approval 1999 (DI1999-185);

• Occupational Health and Safety (Safe Demolition Work) Code of Practice Approval 2000 (DI2000-343);

• Occupational Health and Safety (Code of Practice for the Transport and Delivery of Cash) 2003 (DI2003-260);

• Occupational Health and Safety (Codes of Practice for Noise) Approval 2004 (DI2004-178);

• Occupational Health and Safety (Sexual Services Industry) Code of Practice 2005 (No 1) (DI2005-68);

• Occupational Health and Safety (ACT First Aid in the Workplace) Code of Practice 2006 (DI2006-94);

• Occupational Health and Safety (National Standard for Construction Work) Code of Practice 2008 (DI2008-30);

• Occupational Health and Safety (National Standard for Manual Tasks) Code of Practice 2008 (DI2008-31);

• Occupational Health and Safety (National Code of Practice for the Prevention of Musculoskeletal Disorders from the Performing of Manual Tasks at Work) Code of Practice 2008 (DI2008-32).

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of this Act.

(2) A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

(3) A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

(1) This part expires 5 years after the day it commences.

(2) This part is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

• AAT

incorporated document—see the Work Safety (General) Regulation 2009, dictionary.

work safety committee, for a worker consultation unit, means the work safety committee elected for the unit under division 4.1.

work safety representative, for a worker consultation unit, means a person elected as a work safety representative for the unit under division 4.1.

health

work safety

• section 25 (3) (a)

• section 26 (3) (a)

health and safety committee

work safety committee

• section 50 (a) (i)

• section 54 (2) (b)

• section 55

• section 56 (2) (b)

• section 57 (1) (d)

• division 4.3 heading

• section 60

health and safety representative

work safety representative

• section 50 (a) (ii)

• section 54 (2) (a)

• section 56 (2) (a)

• section 57 (1) (c)

• division 4.2 heading

• section 58

• section 59

Note Work safety matters are dealt with in the Work Safety Act 2008.

Note 1 Work safety matters are dealt with in the Work Safety Act 2008.

Note 2 School-leaving age is 15 years old (see dict).

Occupational Health and Safety Act 1989 in relation to work by employees.

Work Safety Act 2008 in relation to work by workers.

Occupational Health and Safety Act 1989

Occupational Health and Safety Act 1989 in relation to the doing of the work by employees.

Work Safety Act 2008 in relation to work by workers.

Occupational Health and Safety Act 1989

• Occupational Health and Safety Act 1989

• Work Safety Act 2008

health and safety representative under the Occupational Health and Safety Act 1989

work safety representative under the Work Safety Act 2008

work safety representative—see the Work Safety Act 2008, dictionary.

work safety representative, for chapter 2 (Certain dangerous substances)—see section 203.

health and safety representative

work safety representative

• section 219 (7) (b)

• section 226

• sections 275 to 279

health and safety representatives

work safety representatives

• section 245 (3), notes

OH&S

Work Safety

work safety commissioner means the Work Safety Commissioner under the Work Safety Act 2008.

(f) to the chief executive of the administrative unit responsible for the Work Safety Act 2008; or

• OH&S commissioner

(m) the Work Safety Act 2008.

(1) The Minister must ask for, and take into consideration, the advice of the work safety council in relation to the development of regulations for this Act.

(2) To remove any doubt—

(a) it is a function of the work safety council to advise the Minister on matters relating to workers compensation; and

Note This function is given to the work safety council under the Work Safety Act 2008, s 185 (1) (a).

(b) the work safety council may set up an advisory committee, made up of people with suitable expertise, to help it in the exercise of this function.

legal or medical expertise

Note 1 The power to set up an advisory committee if necessary to assist in the exercise of a function is given to the work safety council under the Work Safety Act 2008, s 199.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) In this section:

work safety council means the work safety council established under the Work Safety Act 2008, part 9.

OH&S

occupational health and safety

(iii) be able to comply with the employer’s duties under the Work Safety Act 2008, part 3 (Work safety duties); and

work safety council means the work safety council established under the Work Safety Act 2008, part 9.

OH&S Council

work safety council

• section 5 (2)

• section 13

• section 36 (3)

Presentation speech made in the Legislative Assembly on 2009.

Notified under the Legislation Act on 2009.

For the latest republication of amended laws, see www.legislation.act.gov.au.