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CLAUSE NOTES
WORKPLACE HEALTH AND SAFETY
AMENDMENT BILL 2009
Part 1 Preliminary
Section 1 A formal provision specifying the title of the
proposed Act. The Act amends the Workplace
Health and Safety Act 1995, by inserting a new
Part to provide for appropriately authorised
officers of employee organisations (union
officials) to enter workplaces for occupational
health and safety (OHS) purposes. A small
number of other amendments are made for the
purposes of, or to ensure consistency with, the
new Part.
Section 2 A formal provision specifying the
commencement date of the Act. The Act will
commence on a day or days to be proclaimed.
Section 3 A formal provision, specifying the name of the
Act to be amended (the Workplace Health and
Safety Act 1995), which is referred to
throughout the Bill, and these Clause Notes, as
the "Principal Act".
Section 4 This amends section 3 (Interpretation) of the
Principal Act by adding a small number of new
definitions (to allow for concepts in the new
provisions) and changing a small number of
existing definitions for clarification (where the
need for such clarification became clear during
the drafting of the new provisions).
(a) This subsection inserts a definition of "chief
official". The definition is required to identify
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the head person who runs the operation of the
employee organisation concerned in Tasmania.
(b) This amendment makes changes to the existing
definition of "contractor" in the Principal Act ,
to clarify that it covers an individual engaged
under a labour hire arrangement.
(c) This subsection inserts a definition of
"employee organisation". The term "employee
organisation" is used, rather than union,
because the State and Commonwealth
legislation that refers to these bodies uses the
terminology "employee organisation". The
proposed definition in the Principal Act refers
to definitions under both the State Industrial
Relations Act 1984 and the Commonwealth Fair
Work Act 2009.
(d) This subsection inserts definitions of :
· "officer" necessary to refer to the
officials within an employee organisation
that may be authorised under these
provisions;
· "OHS access card" the name of the
permit that allows an authorised official
of an employee organisation to enter
workplaces(issued under section 22E);
and
· "OHS access card holder" the term
used to refer to a person who has been
granted an OHS access card (under
section 22E) and is therefore entitled to
enter workplaces (subject to the
provisions in new Part 3A).
(e) This amendment makes changes to the existing
definition of "principal" in the Principal Act , to
clarify that it covers a person who engages an
individual to perform work under a labour hire
arrangement.
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(f) This subsection inserts a definition of "relevant
duty holder", as a shorthand means of referring
to any duty holder who has duties to a worker
under section 9 of the Principal Act (an
employer, an employer who exercises, or is in
a position to exercise, management or control
over a workplace, or a principal (who is not an
employer) who has control or management
over a workplace) and section 11 (a
responsible officer).
(g) This subsection inserts a definition of a
"worker" as an individual who carries out work
at a workplace and who is an employee or a
contractor. The term "worker" is particularly
appropriate to modern workplaces where
persons may be engaged under different
arrangements to the traditional contract of
employment.
(h) This amendment makes changes to the existing
definition of "workplace" to clarify that it
includes a part of the workplace.
Section 5 After section 22 of the Act, Part 3A is inserted.
Note that section numbers in Part 3A refer to
new numbers to be inserted in the Principal
Act.
Part 3A Rights of entry for OHS access card
holders
Division 1 Issue of OHS access cards
Section 22A This section specifies the objects of this Part.
The objects focus on balancing the securing of
the health and safety of workers (by enabling
employee organisations to represent them and
to consult, make enquiries about and seek to
resolve OHS matters) with the rights of
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relevant duty holders to go about their
business without undue intervention or
hindrance.
These objects were developed to reflect the
positive intent of the new provisions in
contributing to the health and safety of
workers, while recognising the potential for the
new rights to impact on the activities of others,
hence the need for balance.
Section 22B This section provides that the operation of
certain other laws are not affected by new Part
3A.
(1) The Industrial Relations Act 1984 (the IR Act) is
cited because it includes provision for right of
entry. The right of entry provisions under the
IR Act are different to those in the Bill, and
they include right of entry to talk with or
interview employees or to investigate an
alleged breach of the IR Act. To avoid
confusion about whether or not these
provisions continue to operate, this subsection
clarifies their status.
(2) There are some circumstances where entry by
OHS access card holders would not be
appropriate. In particular, it is not intended
that entry should occur under circumstances
where law enforcement or emergency
management laws preclude entry.
This subsection therefore provides that an
OHS access card holder must not enter or
remain at a workplace if such entry or
presence is precluded by a State or
Commonwealth law that provides for the
investigation of an offence, maintenance of law
and order, or an emergency to be dealt with.
5
Section 22C This section deals with the application and
nomination process for an OHS access card.
(1) Applications for an OHS access card must be
submitted to the Director of Industry Safety, an
officer appointed under the Principal Act
(referred to as the Director) on a form
approved by the Director.
Only the chief official of the employee
organisation concerned may apply to the
Director to issue a card to a nominated
person. Given the card holder will be a
representative of the employee organisation,
this ensures that the head person, running the
employee organisation in Tasmania, has control
over who is to be nominated on behalf of the
organisation.
(2) This subsection provides that only a chief
official or an officer of the employee
organisation may be nominated. This ensures
that the nominee has an appropriate role
within, or is an employee of, the organisation.
Section 22D This section sets down criteria for the issue of
OHS access cards.
(1) The Director must be satisfied that the
nominee is:
· an officer of an employee organisation
· holds an entry permit under the
Commonwealth Fair Work Act 2009 (the
FW Act); and
· has the knowledge, qualifications,
experience or training appropriate to an
OHS access card holder.
The requirement to hold an entry permit
under the FW Act recognises the reality that,
for the majority of workplaces in Tasmania,
right of entry for OHS purposes cannot occur
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unless the person holds an entry permit under
the Commonwealth's Act. Given this
requirement, it is not necessary for the Bill to
duplicate the requirements under the FW Act
for ensuring a nominee is a fit and proper
person, for those nominees that have a
Commonwealth entry permit (for those
nominees without such a permit see under
subsections (2) to (4))
With respect to the requirements regarding
knowledge et cetera, it should be noted that
the role is different to that of an inspector,
therefore it is not expected that nominees
must have the same level of OHS expertise as
inspectors. Nevertheless, it is expected that
nominees would understand the rights and
responsibilities of OHS access card holders and
have the capacity to facilitate resolution of
OHS matters at the workplaces concerned. In
recognition that appropriate knowledge,
experience and so on may be gained in any
number of different ways, the Director of
Industry Safety will assess each case
individually. (Subsection (5) allows the
Director to publish guidelines, so that potential
nominees may know the sorts of things that
would be appropriate.)
(2),(3) & (4) In the event that an employee organisation
operates only under the State Industrial Relations
Act 1984, and therefore none of its officers has
an entry permit under the FW Act, these
subsections allow the Director to waive the
requirement to have an entry permit issued
under the FW Act, and substitutes an
assessment similar to that under the FW Act.
This ensures that all OHS access card holders
are "fit and proper" persons, taking into
account similar criteria, no matter whether the
assessment is done under Commonwealth or
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State legislation. This ensures consistency and
avoids having dual standards.
Subsection (2) allows for the Director to waive
the requirement at (1)(b) (which specifies that
the nominee must have an entry permit under
the FW Act), subject to:
· receiving a declaration under (3) from
the chief official; and
· the Director being satisfied the nominee
is a "fit and proper person to be an
OHS access card holder".
Subsection (3) spells out the requirements of
the chief officer's declaration, i.e. that the
employee organisation does not provide
services to "national system employees" and is
not an "organisation" under the FW Act.
Subsection (4) spells out the matters that must
be taken into account by the Director in
considering whether a person is a fit and
proper person to be an OHS access card
holder. For consistency, the provisions mirror
those in the Commonwealth FW Act for an
entry permit holder. The considerations focus
on previous offences or sanctions (including
disqualification) in relation to industrial
relations, health and safety, entry and certain
crimes.
These considerations do not apply to nominees
who already hold an entry permit under the
FW Act, because they have already been
assessed under the Commonwealth's
processes.
(5) & (6) For information and clarification of the
requirements that nominees must meet
regarding knowledge et cetera, subsection (5)
enables the Director to publish guidelines to
indicate the type of knowledge, qualifications,
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experience or training that would be
appropriate and/or that explains how the
assessment is to be made.
Subsection (6) provides for the above
guidelines to be general, by applying to all
industries, or to deal the requirements of a
specific industry. This provides the flexibility to
decide on an as needs basis whether certain
industries may have particular requirements.
Section 22E This section details the process for the
Director to grant and issue OHS access cards
and to notify relevant persons of decisions.
It should be noted that existing section 41 of
the Principal Act provides an appeal mechanism
against decisions of the Director.
(1) This subsection allows the Director to issue or
refuse to issue an OHS access card to a
nominee.
(2) Subsection (2) provides for notification of the
outcome to the chief official who applied on
behalf of the nominee.
This keeps the chief official "in the loop". The
nominee will know if he or she has been
granted a card by receipt of the card.
(3) This subsection indicates that further OHS
access cards may be issued in response to
applications from the same official.
This removes any confusion or suggestion that
only one access card may be issued for each
employee organisation. It is considered that
any quota on numbers would be unnecessarily
inflexible.
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(4) This provision clarifies that cards may be issued
to interstate nominees.
This approach recognises that a number of
employee organisations have, resident in other
jurisdictions, experts either in health and safety
or in the hazards and conditions in particular
industries. It is considered to be in the best
interests of OHS to not exclude a role for such
persons. They must meet the same
requirements, and applications undergo the
same processes, as for local nominees.
(5) & (6) Subsections (5) and (6) indicate the information
that must or may be on the card. One of these
requirements is that the card is to contain a
photograph of the holder. Other information
pertains to name, union, entitlement to access
subject to the Act, and any conditions. The
Director may add other information he or she
considers necessary.
(7) The OHS access card remains in force for
three years, except where the holder ceases
earlier (such as when the holder leaves the
union, no longer has an entry permit under the
FW Act or is disqualified. See section 22L for
the full list).
Three years validity for a card was chosen
because it aligns with the FW Act.
Section 22F This section deals with conditions of issue,
which the Director may apply to the granting
of a card.
(1) The Director may impose conditions on the
card, upon issue, (by an instrument in writing).
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(2) Conditions are required to be relevant to the
objects of this Part (see objects at section
22A).
(3) To ensure that the chief official knows of any
restrictions that apply to the card, subsection
(3) requires the Director to notify him or her
of such conditions.
(4) The OHS access card holder is required to
comply with the conditions, and with any
imposed by the Director at a later time (see
section 22M(4)).
The maximum penalty is a fine of 50 penalty
units. The penalty level reflects that the card
holder is an individual, and most likely an
employee, and that a breach of this provision is
moderately serious, but not as serious as a
breach of his or her general duty of care.
Division 2 Rights and responsibilities in
relation to OHS access card holders
Section 22G This section deals with the workplaces an OHS
access card holder may enter, when entry may
occur and the purpose of entry.
(1) An OHS access card holder may enter a
workplace where one or more workers are
eligible to be members of the employee
organisation (which is specified on the card),
regardless of whether or not any are actually
members.
Most jurisdictions allow authorised officers of
employee organisations to enter workplaces
where one or more workers or employees
working at the workplace are members of the
employee organisation concerned, or are
eligible to be members, (subject to any other
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conditions relating to right of entry in the
jurisdiction).
The provisions here adopt the abovementioned
approach, with a slight change to the way it is
expressed. This model has the advantage that
eligibility rules of employee organisations are
readily available (unlike membership lists) and
therefore can be easily referred to.
It is intended that OHS card holders will only
visit workplaces where, according to the
employee organisation's rules, a membership
entitlement exists.
(2) An OHS access card holder may only enter
during the hours when workers work at the
workplace.
This provision was added in response to public
comment that entry should only occur during
working hours.
(3) There are only two purposes for which an
OHS access card holder may enter a
workplace.
They are to:
(a) discuss health and safety issues, relevant to
the workplace, with workers during a meal
break or other break; or
(b) enquire into or facilitate the resolution of a
health or safety matter that has arisen at the
workplace.
(a) is focussed towards proactive visits, where
the OHS access card holder may raise OHS
awareness, discuss any concerns, and talk
about issues relevant to the workplace (but not
about issues that clearly do not apply to the
workplace concerned).
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The restriction on the times the discussions
may occur is intended to avoid disruption to
work arising from a visit that is proactive and
hence likely to be less urgent than an entry
under (b).
(b) is focussed towards reactive entry where a
concrete matter has arisen at the workplace,
and it requires resolution.
This provision enables the OHS access card
holder to enter the workplace for the purpose
of enquiring into the matter or facilitating
resolution of it. Because the matter has
already arisen, and may potentially be urgent,
there is no requirement that discussions must
occur during breaks.
Given that the focus of (b) is on enquiry and
facilitation of resolution of the matter, the
provision deliberately does not refer to
investigation of a breach of the legislation,
which implies powers of investigation and
(potentially) enforcement more akin to an
inspector's role. OHS access card holders are
not intended to be "quasi inspectors" and their
powers reflect this positive role of enquiry and
facilitation.
The above two purposes of entry are referred
to in later sections that restrict the use of
information, provide that entry must not occur
for any other purpose, and require that action
for other purposes must not occur.
(4) Entry to premises used mainly for residential
purposes is only allowed if the occupier
consents. This reflects provisions in a number
of other jurisdictions, and protects occupiers'
privacy at home.
13
It is intended that where workplaces and
residences are joined (for example where a
shop is joined to a house or flat), an OHS
access card holder may enter the part of the
premises that is a workplace, but will require
permission to enter the area used as a
residence or home, notwithstanding that, say,
accounts are processed at the residence or
phone calls are taken.
Section 22H This section deals with the OHS access card
holder's powers, once entry has occurred, and
the limitations on those powers.
(1) This subsection lists the OHS access card
holder's powers upon having entered a
workplace.
The OHS access card holder is not intended to
undertake the functions of an inspector, and
there are no enforcement powers. The
powers are targeted towards enquiring,
observing, reviewing and consulting.
The OHS access card holder may discuss with,
make enquiries of or consult with workers at
the workplace, subject to the worker's consent
and at times that are convenient to the
relevant duty holder or person in charge of the
workplace.
Note that this power is not limited to persons
eligible to be members of the employee
organisation concerned. The provision is not
limited to such workers, in order to allow the
OHS access card holder to gather as much
information as possible. This enables the OHS
access card holder to develop a fully informed
view which is in the best interest of both the
resolution process and OHS.
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Photographs may be taken, of the work,
workplace, processes, plant, equipment or use
of materials and substances at the workplace, if
relevant. The protections later in the Bill
prevent the use of these photographs for
unrelated purposes.
Documents relating to or directly relevant to
health or safety at the workplace may be
reviewed. There is no power to require copies
or to take documents away.
OHS access card holders may consult with
inspectors at the workplace.
The powers are balanced, and allow the access
card holder to enquire into or facilitate the
resolution of health and safety matters. Some
respondents to the invitation to public
comment suggested additional powers while
some suggested reducing the powers.
Subsection (1) represents the middle ground
and, importantly, is targeted to the OHS access
card holder's role.
Protections and controls are found in some
later sections and subsections.
(2) An OHS access card holder is not permitted to
exercise the power to review documents if it
would contravene a State or Commonwealth
law. In particular, this means that laws
governing privacy will override the right to
review documents.
(3) & (4) These provisions allow the OHS access card
holder to request, and the duty holder to
comply with the request, so far as reasonably
practicable, for the information that would
breach a State or Commonwealth law (such as
identifying information) to be removed or
obscured.
15
It is not intended that such amended
information be required to be provided when
the obscuring or deletions render the
information useless or the work in obscuring
or deleting information outweighs any potential
benefit of the information.
The penalty for failing to comply, where it is
reasonably practical to do so, is a maximum
fine of 20 penalty units. This is lower than
other penalties applying to relevant duty
holders under this Part, in recognition that the
offence is in relation to failing to alter
documents rather than a failure to provide
information.
Section 22I This section deals with offences by OHS access
card holders.
(1) to (6) These subsections list five things that an OHS
access card holder must not do, plus one that
he or she must do (at (3)).
Feedback from public comment indicated that,
although respondents did not necessary agree
on specific controls or sanctions, employers,
industry and employee organisations generally
supported having controls and sanctions to
prevent misuse, maintain or minimize impact
on particular rights, and provide for health and
safety (of the access card holder and potentially
others).
These subsections include some of the key
controls against misuse, and provide for a fine
not exceeding 50 penalty units for those things
that must not be done. This penalty is assigned
to all offences that have the potential to disrupt
or discredit the system of OHS access,
whether by an OHS access card holder or any
other person.
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(1) An OHS access card holder must not enter a
workplace where he or she knows (or ought
reasonably to be expected to know) that the
requirements regarding eligibility for
membership are not met, after purporting that
he or she can enter on the basis of eligibility.
(2) An OHS access card holder must not enter a
workplace, purportedly for an authorised
purpose, for any other purpose than the two
purposes allowed (listed in section 22G(3)) or,
having legitimately entered, perform an action
for another purpose.
This precludes an OHS access card holder
from using the entry for, or combining it with,
other purposes, including recruitment of
members.
(3) An OHS access card holder must show his or
her card, as soon as reasonably practicable
after entering a workplace, to the person in
charge of the workplace, or if requested to do
so by that person.
The penalty of 10 penalty units reflects the
procedural nature of the requirement.
Nevertheless, it is considered important for
ensuring that the OHS access card holder
reports as soon as possible to the person in
charge of the workplace, especially to enable
that person to know that the card holder is
present.
(4) An OHS access card holder must not, without
the consent of the occupier, purport to use the
entry provisions to gain entry to premises that
he or she knows to be used mainly for
residential purposes.
17
(5) An OHS access card holder must not exercise
a power unless he or she complies with a
reasonable request by the person in charge of
the workplace to comply with a safety and
health requirement.
(6) An OHS access card holder must not
intentionally hinder or obstruct any person.
(7) A former OHS access card holder must return
the card within 14 days after it expires, or after
he or she ceases to be an access card holder.
This requirement is more of an administrative
nature. Nevertheless, requiring cards to be
returned takes them out of circulation,
minimising the risk that they will be lost, stolen
or otherwise find their way into the hands of
someone who may use them for a fraudulent
purpose. A contravention may attract a fine,
albeit, because of the administrative nature of
the offence, a small one (a maximum of 5
penalty units).
Section 22J This section lists offences by other persons in
relation to OHS access card holders.
Penalties for contravening the requirements of
this section are, in each case, a fine not
exceeding 50 penalty units, which is the level
set for the most important provisions of this
Part.
(1) to (3) A person must not intentionally hinder or
obstruct an OHS access card holder exercising
his or her power, or refuse or delay entry.
These provisions support the rights and role of
OHS access card holders.
(4) A person must not take action to intentionally
give the impression (or being reckless to giving
18
such an impression) that something is
authorised by this Part.
This is a very broadly worded provision that
protects against a range of misrepresentations,
such as people pretending to be OHS access
card holders and OHS access card holders
misrepresenting their powers.
(5) This provision deals with confidentiality of
information. A person must not, except for
the purposes of entry, use or disclose
information obtained, except in specified
circumstances. These include where there is a
serious and imminent threat to life or health
and safety, or there is reason to suspect an
unlawful activity and the disclosure is necessary
for its investigation or reporting of the matter
to the relevant persons or authorities.
The penalty for a contravention is a maximum
fine of 50 penalty units.
This subsection reflects a similar provision in
the Commonwealth's FW Act.
This approach is intended to balance the right
of confidentiality, with the interests of safety
and law enforcement. This is an additional
protection to that under section 22H(2) which
precludes an OHS access card holder reviewing
documents where to do so would breach a
State or Commonwealth law.
Section 22K In the event that the parties cannot resolve
matters, this section covers the referral of
disputes, questions or issues regarding OHS
access to an inspector, and specifies the action
that an inspector may take. The actions taken
by an inspector relate to seeking resolution
first, and if that fails, making an order, based on
his or her opinion. Orders may be given orally
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(followed up by notice in writing) in order to
expedite resolution.
Where the matter deals with a health and
safety issue, rather than issuing an order, the
inspector must decide whether action under
the Act is required. As he or she would in
relation to any other OHS matter.
(1) An issue or dispute or question regarding:
· the right to enter;
· the exercise of the OHS access card
holder's powers after entry; or
· a health and safety issue in relation to
the workplace,
may be referred to an inspector by:
· an OHS access card holder
· a relevant duty holder in relation to a
workplace; or
· a person in charge of a workplace
(2) An inspector must attempt to resolve the
matter between the parties.
(3) to (6) If the inspector cannot resolve the issue
dispute or question, the action he or she can
take depends on what the matter was about.
If the issue, dispute or question is about the
right to enter, the inspector may:
· order that entry may occur, if he or she
is satisfied that the requirements for
entry have been satisfied; or
· if he or she is of the opinion that the
requirements for entry have not been
satisfied, order that the OHS access card
holder must not enter until the
requirements have been met;
· take any action prescribed in the
regulations or that can otherwise be
taken under the Act.
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If the card holder is ordered not to enter, the
inspector must consider whether the inspector
should take action under the Act in relation to
the issue that gave rise to the attempted entry.
If the issue dispute or question is about the
exercise of powers after entry, the inspector
may:
· order that exercise of the power must
be allowed, if he or she is satisfied that
the exercise of it is authorised under this
Part; or
· if he or she is of the opinion that the
exercise of the power is not authorised,
order that the OHS access card holder
must not exercise the power;
If the issue, dispute or question is about a
health or safety issue, the inspector must
determine whether he or she ought to take
action under the Act in relation to the issue.
(7) & (8) An inspector may issue an order orally or by
notice in writing but if it is orally, it must be
followed up within 48 hours with a notice in
writing.
(9) A person must not, without reasonable excuse,
fail to comply with an order. (Penalty not
more than 50 penalty units.)
A later amendment ensures that the
inspector's notice of the order may be
appealed by the recipient, in the same way that
other notices issued by inspectors under the
Principle Act may be appealed.
(10) An inspector is to also give notice of the
outcome to the other parties to the matter,
within 48 hours.
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Division 3 Expiry, cancellation and
disqualification from holding OHS access
cards
Section 22L This section describes the circumstances under
which a person ceases to be an OHS access
card holder. These are when he or she:
· ceases to be an officer of the employee
organisation;
· ceases to hold an entry permit under the
FW Act (unless exempted from this
requirement);
· is disqualified by the Director.
In addition the card may be cancelled following
written notice to the Director from the card
holder or the chief official of the employee
organisation.
In relation to the latter, given that the chief
official is the person who lodges the original
application nominating the person, he or she
has been given the power to seek cancellation
of the card.
Section 22M This section deals with processes for
disqualification of the OHS access card holder.
The Director has the power to disqualify an
OHS access card holder on his or her volition
or on application from:
· a worker at;
· a person in charge of; or
· a relevant duty holder in respect of
a workplace at which the card holder has
exercised a power.
Disqualification may be permanent or for a
specified period of time. Alternatively the
Director may instead decide to impose
conditions on the OHS access card.
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The Director must not disqualify a person or
impose conditions on the card without giving
the holder the opportunity to show cause why
the action should not be taken. The Director
must give at least 14 days notice in this regard.
Combined with the monetary penalties, this Bill
has strong sanctions against the misuse of the
provisions. Further, an OHS access card
holder risks loss of his or her FW Act entry
permit if convicted of a breach of the
provisions of this Part or is disqualified from
holding an OHS access card.
Section 6 This section amends section 27 of the Principal
Act. Section 27 deals with the composition of
a health and safety committee and subsection
(4) mentions "a union". Because new Part 3A
uses the term "employee organisation", this
amendment substitutes the latter term for
"union", for consistency.
As a consequence, section 27(7), which defines
"a union" is redundant and is deleted.
Section 7 This section amends section 41 of the Principal
Act regarding appeal rights.
Proposed new section 22K gives inspectors
powers to issue orders, either by notice in
writing, or orally followed by notice in writing.
This amendment extends existing appeal rights
against notices issued by inspectors to the new
instruments, i.e. notices issued under section
22K(7) or (8).
Section 8 This section amends the schedule of matters
for potential regulations to include matters to
which the provisions in new Part 3A relate.
23
It is not intended to draft regulations prior to
Part 3A coming into effect.
Section 9 This is a standard repeal provision to remove
the empty shell of the Bill after all its provisions
have come into effect.