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This is a Bill, not an Act. For current law, see the Acts databases.


OCCUPATIONAL SAFETY AND HEALTH LEGISLATION AMENDMENT AND REPEAL BILL 2004

                       Western Australia


 Occupational Safety and Health Legislation
     Amendment and Repeal Bill 2004

                          CONTENTS


      Part 1 -- Preliminary
1.    Short title                                      2
2.    Commencement                                     2
3.    The Act amended                                  2
      Part 2 -- Amendments relating to
           general workplace duties
4.    Part III Division 2 heading inserted             3
5.    Section 19 amended                               3
6.    Section 21 amended                               3
7.    Sections 21B and 21C inserted                    4
8.    Part III Divisions 3, 4 and 5 and heading for
      Division 6 inserted                              6
9.    Section 41A inserted                            17
10.   Section 43 amended                              18
11.   Section 47A inserted                            18
12.   Section 49 amended                              18
13.   Schedule amended                                19
      Part 3 -- Amendments relating to
           offences and penalties
14.   Section 3 amended                               20
15.   Sections 3A and 3B inserted                     20
16.   Part III Division 1 inserted                    23
17.   Section 19 amended                              23
18.   Section 19A inserted                            24
19.   Section 20 amended                              25
20.   Section 20A inserted                            25

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Contents


   21.     Section 21 amended                                        26
   22.     Section 21A inserted                                      26
   23.     Section 22 amended                                        27
   24.     Section 22A inserted                                      27
   25.     Section 23 amended                                        28
   26.     Section 23AA inserted                                     29
   27.     Section 23A amended                                       30
   28.     Section 23B inserted                                      30
   29.     Section 23B repealed                                      31
   30.     Part VII Division 1 heading inserted                      31
   31.     Section 54 replaced                                       31
   32.     Section 54AA repealed                                     31
   33.     Section 54A amended                                       32
   34.     Section 55 amended                                        32
   35.     Section 55A inserted                                      33
   36.     Part VII Divisions 2 and 3 inserted                       34
   37.     Section 60 amended                                        44
           Part 4 -- Amendments relating to
                safety and health representatives
                and committees
   38.     Section 3 amended                                         46
   39.     Part IV Division 1 heading inserted                       46
   40.     Section 29 amended                                        46
   41.     Section 30 amended                                        47
   42.     Sections 30A, 30B and 30C inserted                        48
   43.     Section 31 amended                                        51
   44.     Saving provision for existing safety and health
           representatives                                           52
   45.     Section 32 amended                                        53
   46.     Section 33 amended                                        53
   47.     Section 34 amended                                        54
   48.     Section 35 amended                                        54
   49.     Sections 35A, 35B, 35C and 35D inserted                   56
   50.     Sections 36, 37, 38 and 39 repealed and replaced by a
           Division heading and sections 36 to 39G                   60
   51.     Savings and transitional provisions for existing safety
           and health committees                                     70
   52.     Section 40 amended                                        71
   53.     Section 41 amended                                        71


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                                                             Contents


54.   Part VI Division 1 heading inserted                      71
55.   Part VI Division 2 inserted                              72
56.   Section 56 amended                                       77
57.   Schedule amended                                         77
      Part 5 -- Amendments relating to
           inspectors
58.   Section 42 replaced by sections 42, 42A, 42B and 42C     78
59.   Section 43 amended                                       80
60.   Section 45 amended                                       81
61.   Section 47 amended                                       83
      Part 6 -- Amendments relating to the
           establishment of a tribunal
      Division 1 -- Amendments to the Occupational
            Safety and Health Act 1984
62.   Long title amended                                       85
63.   Section 3 amended                                        85
64.   Section 51A amended                                      85
65.   Section 51C amended                                      85
66.   Section 51D repealed                                     85
67.   Part VIB inserted                                        86
68.   Section 54B amended                                      91
69.   Various references to a safety and health magistrate
      amended                                                  91
      Division 2 -- Amendments to the Industrial
            Relations Act 1979
70.   The Industrial Relations Act 1979 amended                92
      Division 3 -- Transitional provisions
71.   Existing referrals to safety and health magistrate       93
72.   Appeal proceedings in progress                           94
      Part 7 -- Amendments to make
           expressions in the Act gender
           neutral
73.   Section 3 amended                                        95
74.   Section 4 amended                                        95
75.   Section 8 amended                                        96
76.   Section 9 amended                                        96

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   77.     Section 10 replaced                                97
   78.     Section 19 amended                                 98
   79.     Section 20 amended                                 98
   80.     Section 22 amended                                 99
   81.     Section 23 amended                                 99
   82.     Section 24 amended                                 99
   83.     Section 27 amended                                 99
   84.     Section 28 amended                                100
   85.     Section 30 amended                                100
   86.     Section 32 amended                                100
   87.     Section 33 amended                                100
   88.     Section 34 amended                                101
   89.     Section 35 amended                                101
   90.     Section 40 amended                                102
   91.     Section 43 amended                                102
   92.     Section 45 amended                                102
   93.     Section 47 amended                                102
   94.     Section 48 amended                                102
   95.     Section 49 amended                                103
   96.     Section 50 amended                                104
   97.     Section 51 amended                                104
   98.     Section 51A amended                               104
   99.     Section 56 amended                                104
   100.    Section 57 amended                                105
   101.    Schedule amended                                  105
   102.    Feminine pronoun inserted in various provisions   105
   103.    Relative pronoun replaced                         106
           Part 8 -- Miscellaneous amendments
   104.    Section 3 amended                                 108
   105.    Section 6 amended                                 110
   106.    Section 14A inserted                              112
   107.    Section 48 amended                                114
   108.    Section 49 amended                                114
   109.    Section 50A inserted                              115
   110.    Section 51AA inserted                             116
   111.    Section 53 amended                                117
   112.    Section 56 amended                                118
   113.    Section 57A inserted                              119
   114.    Schedule amended                                  120


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                                                           Contents


115.   Mines Safety and Inspection Act 1994 amended and
       saving provision                                      121

       Part 9 -- Repeal of Shearers'
            Accommodation Act 1912
116.   Shearers' Accommodation Act 1912 repealed             122




                                                             page v
                           Western Australia


                     LEGISLATIVE ASSEMBLY

 (As amended during consideration in detail and upon reconsideration)


   Occupational Safety and Health Legislation
       Amendment and Repeal Bill 2004


                               A Bill for


An Act to amend --
•  the Occupational Safety and Health Act 1984;
•  the Industrial Relations Act 1979; and
•  the Mines Safety and Inspection Act 1994,
and to repeal the Shearers' Accommodation Act 1912.



The Parliament of Western Australia enacts as follows:




                                                                page 1
     Occupational Safety and Health Legislation Amendment and
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     Part 1           Preliminary

     s. 1


                              Part 1 -- Preliminary
     1.         Short title
                This Act may be cited as the Occupational Safety and Health
                Legislation Amendment and Repeal Act 2004.

5    2.         Commencement
          (1)   This Act comes into operation on a day fixed by proclamation.
          (2)   Different days may be fixed under subsection (1) for different
                provisions.

     3.         The Act amended
10              The amendments in Parts 2 to 8, except those in sections 70
                and 115, are to the Occupational Safety and Health Act 1984*.
                [* Reprinted as at 22 March 1999.
                   For subsequent amendments see Western Australian
                   Legislation Information Tables for 2003, Table 1, p. 267.]




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                     Occupational Safety and Health Legislation Amendment and
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                    Amendments relating to general workplace duties          Part 2

                                                                               s. 4


              Part 2 -- Amendments relating to general
                         workplace duties
     4.       Part III Division 2 heading inserted
              After section 18A the following heading is inserted --
5    "
                       Division 2 -- General workplace duties
                                                                                   ".

     5.       Section 19 amended
              Section 19(3), (4) and (5) are repealed.

10   6.       Section 21 amended
              Section 21(1) is repealed and the following subsections are
              inserted instead --
          "
              (1)     A self-employed person shall take reasonable care to
15                    ensure his or her own safety and health at work.
              (2)     An employer or self-employed person shall, so far as is
                      practicable, ensure that the safety or health of a person,
                      not being (in the case of an employer) an employee of
                      the employer, is not adversely affected wholly or in
20                    part as a result of --
                        (a) work that has been or is being undertaken by --
                                 (i) the employer or any employee of the
                                       employer; or
                                (ii) the self-employed person;
25                            or
                        (b) any hazard that arises from or is increased
                              by --
                                 (i) the work referred to in paragraph (a); or



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     Part 2           Amendments relating to general workplace duties

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                              (ii)   the system of work that has been or is
                                     being operated by the employer or the
                                     self-employed person.
                                                                                   ".

5    7.       Sections 21B and 21C inserted
              After section 21A the following sections are inserted --
     "
            21B.    Duty placed on body corporate to which section
                    23D, 23E or 23F applies
10            (1)    If section 23D, 23E or 23F makes any other provision
                    of this Act apply to a body corporate as if it were the
                    employer of a particular person, this section and
                    section 21C apply to the body corporate at such times
                    as the other provision is made to apply.
15            (2)   A body corporate to which this section applies shall, so
                    far as is practicable, ensure that the safety or health of a
                    person is not adversely affected wholly or in part as a
                    result of --
                      (a) work that has been or is being undertaken by --
20                              (i) the body corporate; or
                               (ii) a person carrying out work under the
                                     direction of the body corporate;
                             or
                      (b) any hazard that arises from or is increased
25                           by --
                                (i) the work referred to in paragraph (a); or
                               (ii) the system of work that has been or is
                                     being operated by the body corporate.




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     21C.      Breaches of section 21B
       (1)     If a body corporate contravenes section 21B(2) in
               circumstances of gross negligence, the body corporate
               commits an offence and is liable to a level 4 penalty.
5      (2)     If --
                 (a)   a body corporate --
                         (i) contravenes section 21B(2); and
                        (ii) by the contravention causes the death
                              of, or serious harm to, a person;
10                     and
                 (b)   subsection (1) does not apply,
               the body corporate commits an offence and is liable to
               a level 3 penalty.
       (3)     If --
15               (a)   a body corporate contravenes section 21B(2);
                       and
                 (b)   neither subsection (1) nor subsection (2)
                       applies,
               the body corporate commits an offence and is liable to
20             a level 2 penalty.
       (4)     A body corporate charged with an offence under --
                (a) subsection (1) may, instead of being convicted
                     of that offence, be convicted of an offence
                     under subsection (2) or (3); or
25              (b) subsection (2) may, instead of being convicted
                     of that offence, be convicted of an offence
                     under subsection (3).
                                                                         ".




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     Part 2           Amendments relating to general workplace duties

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     8.       Part III Divisions 3, 4 and 5 and heading for Division 6
              inserted
              After section 23B the following Divisions and Division heading
              are inserted --
5    "
            Division 3 -- Certain workplace situations to be treated
                               as employment
            23C.    Terms used in this Division
                    In this Division --
10                  "business" includes the operations of a public
                         authority;
                    "public authority" means --
                         (a) a Minister of the Crown acting in the
                               Minister's official capacity;
15                       (b) a State Government department, State
                               trading concern, State instrumentality or
                               State agency; or
                         (c) any other body or person, whether corporate
                               or not and including a local government, that
20                             under a written law administers or carries on
                               a social service or public utility for the
                               benefit of the State or a part of the State.

            23D.    Contract work arrangements
              (1)   This section applies where a person (the "principal")
25                  in the course of trade or business engages a contractor
                    (the "contractor") to carry out work for the principal.
              (2)   Where this section applies, section 19 has effect --
                     (a) as if the principal were the employer of --
                             (i) the contractor; and



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                      (ii)    any person employed or engaged by the
                              contractor to carry out or assist in
                              carrying out the work concerned,
                     in relation to matters over which the principal
5                    has the capacity to exercise control; and
               (b)   as if --
                        (i) the contractor; and
                       (ii) any person referred to in
                              paragraph (a)(ii),
10                   were employees of the principal in relation to
                     matters over which the principal has the
                     capacity to exercise control.
     (3)     Where this section applies, the further duties referred to
             in subsection (4) apply --
15             (a) as if the principal were the employer of --
                       (i) the contractor; and
                      (ii) any person employed or engaged by the
                            contractor to carry out or assist in
                            carrying out the work concerned;
20                   and
               (b) as if --
                       (i) the contractor; and
                      (ii) any person referred to in
                            paragraph (a)(ii),
25                   were employees of the principal.
     (4)     The further duties mentioned in subsection (3) are --
              (a) the duties of an employee under section 20; and
              (b) the duties of an employer under
                    sections 23G(2) and 23I(3).




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              (5)   An agreement or arrangement is void for the purposes
                    of this section if it purports to give control to --
                      (a) a contractor; or
                      (b) a person referred to in subsection (2)(a)(ii),
5                   of any matter that --
                      (c) comes within section 19 or 23G(2); and
                      (d) is a matter over which the principal has the
                           capacity to exercise control,
                    but this subsection does not prevent the making of a
10                  written agreement as mentioned in section 23G(3).
              (6)   A purported waiver by a contractor of a right that arises
                    directly or indirectly under this section is void.
              (7)   Nothing in this section derogates from --
                      (a)   the duties of the principal to the contractor; or
15                    (b)   the duties of the contractor to any person
                            employed or engaged by the contractor.

            23E.    Labour arrangements in general
              (1)   This section applies where --
                      (a)   a person (the "worker") for remuneration
20                          carries out work for another person (the
                            "person mentioned in subsection (1)(a)") in
                            the course of trade or business;
                      (b)   that person has the power of direction and
                            control in respect of the work in a similar
25                          manner to the power of an employer under a
                            contract of employment;
                      (c)   there is no contract of employment between the
                            worker and that person; and
                      (d)   neither section 23D nor section 23F applies.



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     (2)     Where this section applies, section 19 has effect as
             if --
                (a) the person mentioned in subsection (1)(a) were
                    the employer of the worker; and
5               (b) the worker were the employee of that person,
             in relation to any matter that --
               (c) comes within section 19; and
               (d) is a matter over which that person has the
                      capacity to exercise control.
10   (3)     Where this section applies, the further duties referred to
             in subsection (4) apply as if --
               (a) the person mentioned in subsection (1)(a) were
                     the employer of the worker; and
               (b) the worker were the employee of that person.
15   (4)     The further duties mentioned in subsection (3) are --
               (a)   the duties of an employee under section 20; and
               (b)   the duties of an employer under section 23I(3).
     (5)     An agreement or arrangement is void for the purposes
             of this section to the extent that it purports to give
20           control to the worker of any matter that --
               (a) comes within section 19; and
               (b) is a matter over which the person mentioned in
                      subsection (1)(a) has the capacity to exercise
                      control.
25   (6)     This section applies despite anything to the contrary in,
             or any inconsistent provision of, an agreement, whether
             made orally or in writing.
     (7)     A purported waiver by a worker of a right that arises
             directly or indirectly under this section is void.



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            23F.      Labour hire arrangements
               (1)    In this section --
                      "agent" --
                          (a) means a person that carries on a business of
5                              providing workers to carry out work for
                               clients of the person; and
                          (b) includes a group training organisation as
                               defined in section 7(1) of the Industrial
                               Relations Act 1979;
10                   "worker" includes an employee or a contractor.
               (2)    This section applies where, under a labour hire
                      arrangement, work is carried out for remuneration by a
                      worker for a client of an agent (the "client") in the
                      course of the client's trade or business.
15             (3)    A labour hire arrangement exists where --
                       (a) an agent has for remuneration agreed with the
                             client to provide a worker to carry out work for
                             the client;
                       (b) there is no contract of employment between the
20                           worker and the client in relation to the work;
                       (c) there is an agreement (which may be a contract
                             of employment) between the worker and the
                             agent as to the carrying out of work including
                             in respect of remuneration and other
25                           entitlements; and
                       (d) that agreement applies to the carrying out of the
                             work by the worker for the client.
               (4)    Where this section applies, section 19 has effect as
                      if --
30                       (a) each of the agent and the client were the
                             employer of the worker; and



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           Amendments relating to general workplace duties          Part 2

                                                                      s. 8


               (b)   the worker were an employee of each of the
                     agent and the client,
             in relation to any matter that --
               (c) comes within section 19; and
5              (d) as regards --
                        (i) the agent, is a matter over which the
                             agent has the capacity to exercise
                             control; or
                       (ii) the client, is a matter over which the
10                           client has the capacity to exercise
                             control.
     (5)     Where this section applies, the further duties referred to
             in subsection (6) apply as if --
               (a) each of the agent and the client were the
15                   employer of the worker; and
               (b) the worker were an employee of each of the
                     agent and the client.
     (6)     The further duties mentioned in subsection (5) are --
              (a) the duties of an employee under section 20; and
20            (b) the duties of an employer under section 23I(3).
     (7)     This section applies despite anything to the contrary in,
             or any inconsistent provision of, an agreement, whether
             made orally or in writing.
     (8)     A purported waiver by a worker of a right that arises
25           directly or indirectly under this section is void.




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                      Division 4 -- Duty relating to certain
                          employment accommodation
            23G.     Duty of employer to maintain safe premises
               (1)   In this section --
5                    "residential premises" --
                         (a) means residential premises that are situated
                               outside --
                                 (i) a townsite within the meaning in
                                      section 26(1) of the Land
10                                    Administration Act 1997; and
                                (ii) the metropolitan region as defined in
                                      section 6 of the Metropolitan Region
                                      Town Planning Scheme Act 1959;
                               and
15                       (b) includes land and outbuildings that are
                               intended to be used in connection with the
                               occupation of the premises.
               (2)   Where --
                      (a) an employee occupies residential premises that
20                         are owned by or under the control of the
                           employee's employer; and
                      (b) the occupancy is necessary for the purposes of
                           the employment because other accommodation
                           is not reasonably available in the area
25                         concerned,
                     the employer must, so far as is practicable, maintain the
                     premises so that the employee occupying the premises
                     is not exposed to hazards at the premises.
               (3)   Subsection (2) does not apply if the occupancy is
30                   pursuant to a written agreement containing terms that
                     might reasonably be expected to apply to a letting of
                     the residential premises to a tenant.

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       (4)     This section does not apply to the occupation of
               residential premises by an employee who is employed
               at a workplace referred to in section 4(2).

     23H.      Breaches of section 23G
5      (1)     If an employer contravenes section 23G(2) in
               circumstances of gross negligence, the employer
               commits an offence and is liable to a level 4 penalty.
       (2)     If --
                 (a)   an employer --
10                       (i) contravenes section 23G(2); and
                        (ii) by the contravention causes the death
                              of, or serious harm to, an employee
                              occupying premises as mentioned in
                              that section;
15                     and
                 (b)   subsection (1) does not apply,
               the employer commits an offence and is liable to a
               level 3 penalty.
       (3)     If --
20               (a)   an employer contravenes section 23G(2); and
                 (b)   neither subsection (1) nor subsection (2)
                       applies,
               the employer commits an offence and is liable to a
               level 2 penalty.
25     (4)     In proceedings against a person for an offence under
               subsection (1) or (2) it is a defence if the person proves
               that the death or serious harm, as the case may be,
               would not have occurred if the employee had taken
               reasonable care to ensure the employee's own safety
30             and health at the premises concerned.


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               (5)   An employer charged with an offence under --
                      (a) subsection (1) may, instead of being convicted
                           of that offence, be convicted of an offence
                           under subsection (2) or (3); or
5                     (b) subsection (2) may, instead of being convicted
                           of that offence, be convicted of an offence
                           under subsection (3).

                             Division 5 -- Other duties
            23I.     Notification of deaths, injuries and diseases
10             (1)   In this section --
                     "business of an employer" means --
                         (a) the conduct of the undertaking or operations
                              of an employer; and
                        (b) work undertaken by an employer or any
15                            employee of an employer;
                     "business of a self-employed person" means --
                         (a) the conduct of the undertaking or operations
                              of a self-employed person; and
                        (b) work undertaken by that person.
20             (2)   This section applies where --
                      (a) at a workplace, or at residential premises to
                             which section 23G(2) applies, an employee
                             incurs an injury, or is affected by a disease,
                             that --
25                              (i) results in the death of the employee; or
                               (ii) is of a kind that is prescribed;
                             or




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                                                                        s. 8


                 (b)   at a workplace, a person who is not an
                       employee incurs an injury in prescribed
                       circumstances that --
                          (i) results in the death of the person; or
5                        (ii) is of a kind that is prescribed,
                       in connection with --
                        (iii) the business of an employer; or
                        (iv) the business of a self-employed person.
       (3)     The relevant person must --
10              (a) forthwith; or
                (b) as otherwise provided by the regulations,
               notify the Commissioner in the prescribed form of the
               injury or disease giving such particulars as may be
               prescribed.
15     (4)     The relevant person is the employer concerned
               where --
                (a) subsection (2)(a) applies; or
                (b) the person incurs the injury in connection with
                       the business of an employer.
20     (5)     The relevant person is the self-employed person
               concerned where the person incurs the injury in
               connection with the business of a self-employed
               person.

     23J.      Breaches of section 23I
25     (1)     If an employer or self-employed person contravenes
               section 23I(3), the employer or self-employed person
               commits an offence.
       (2)     In proceedings for an offence under subsection (1)
               against a person who is taken by section 23D(2) to be
30             an employer it is a defence if the person proves that
               subsection (4) applies.

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               (3)   In proceedings against a person for an offence under
                     subsection (1) that relates to an injury mentioned in
                     section 23I(2)(b) it is a defence if the person proves
                     that subsection (4) applies.
5              (4)   This subsection applies if the person did not know, and
                     could not reasonably be expected to have known, of the
                     injury or disease concerned.

            23K.     Duty to inform employee who reports a hazard or
                     injury
10             (1)   This section applies where an employer receives from
                     an employee a report of a kind described in
                     section 20(2)(d).
               (2)   The employer must, within a reasonable time after
                     receiving the report --
15                     (a) investigate the matter that has been reported
                             and determine the action, if any, that the
                             employer intends to take in respect of the
                             matter; and
                       (b) notify the employee of the determination so
20                           made.
               (3)   If an employer contravenes subsection (2), the
                     employer commits an offence.

            23L.     Notification of hazard to person having control
                     of workplace
25             (1)   In this section --
                     "workplace" includes the means of access to and
                          egress from the workplace.
               (2)   If --
                       (a)   the employer of any employee; or
30                     (b)   a self-employed person carrying out work,


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                   Occupational Safety and Health Legislation Amendment and
                                                                 Repeal Bill 2004
                  Amendments relating to general workplace duties          Part 2

                                                                              s. 9


                    at a workplace becomes of the opinion that --
                      (c) a situation exists at the workplace that could
                            constitute a hazard to any person;
                      (d) the hazard is one that a person having control of
5                           the relevant part of the workplace (the
                            "responsible person") has a duty to remedy
                            under section 22; and
                      (e) the situation has not come to the attention of
                            that person,
10                  the employer or self-employed person must, so far as it
                    is reasonably practicable to do so, give notice of the
                    situation to the responsible person.
            (3)     A notice under subsection (2) must be given as soon as
                    is reasonably practicable after the employer or
15                  self-employed person becomes of the opinion
                    mentioned in that subsection.
            (4)     An employer or self-employed person that fails to
                    comply with subsection (2) commits an offence.

             Division 6 -- Resolution of workplace issues, and
20                  refusal to work on grounds of risk
                                                                               ".

     9.     Section 41A inserted
            After the heading to Part V the following section is inserted --
     "
25        41A.      Extended meaning of "employer" and "employee"
                    In this Part --
                    "employer" and "employee" include a person taken to
                         be an employer and an employee respectively by
                         operation of section 23D, 23E or 23F.
30                                                                             ".


                                                                         page 17
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 2           Amendments relating to general workplace duties

     s. 10


     10.              Section 43 amended
                      After section 43(1) the following subsection is inserted --
                 "
                     (1a)   In subsection (1) --
5                           "workplace" includes residential premises that an
                                 employer is or was under a duty to maintain by
                                 virtue of section 23G(2).
                                                                                     ".

     11.              Section 47A inserted
10                    After the heading to Part VI the following section is inserted --
     "
             47A.           Extended meaning of "employer" and "employee"
                            In this Part --
                            "employer" and "employee" include a person taken to
15                               be an employer and an employee respectively by
                                 operation of section 23D, 23E or 23F.
                                                                                     ".

     12.              Section 49 amended
           (1)        Section 49(2) is amended by inserting after "prohibition
20                    notice" --
                      "
                            , other than in respect of an activity as defined in
                            subsection (7),
                                                                                     ".




     page 18
                            Occupational Safety and Health Legislation Amendment and
                                                                          Repeal Bill 2004
                           Amendments relating to general workplace duties          Part 2

                                                                                     s. 13


           (2)       After section 49(6) the following subsection is inserted --
                 "
                     (7)     The application of this section extends to residential
                             premises that are being or may be occupied by an
5                            employee as mentioned in section 23G(2), and for that
                             purpose --
                               (a) in this section --
                                       (i) "workplace" includes such premises;
                                            and
10                                    (ii) references to imminent and serious
                                            injury to, or imminent and serious harm
                                            to the health of, a person are to be read
                                            as applying only to an employee;
                                    and
15                             (b) in this section and section 50 "activity"
                                    includes the occupation of such premises.
                                                                                        ".

     13.             Schedule amended
                     The Schedule is amended in item 24A by deleting "19(3)" and
20                   inserting instead --
                     "     23I   ".




                                                                                  page 19
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 3           Amendments relating to offences and penalties

     s. 14


                 Part 3 -- Amendments relating to offences
                             and penalties
     14.         Section 3 amended
                 Section 3(3) is amended by deleting "19(7), 20(5), 21(3), 22(5),
5                23(5) and 23A(3)" and inserting instead --
             "
                   18A, 19A(2), 20A(2), 21A(2), 21C(2), 22A(2), 23AA(2),
                   23B(2) and 23H(2)
                                                                                  ".

10   15.         Sections 3A and 3B inserted
                 After section 3 the following sections are inserted --
     "
             3A.       Penalty levels defined
                 (1)   Where a person is liable to a level one penalty for an
15                     offence against this Act the person is liable --
                         (a) if the offence was committed by the person as
                              an employee --
                                 (i) for a first offence, to a fine of $5 000;
                                      and
20                              (ii) for a subsequent offence, to a fine of
                                      $6 250;
                         (b) if paragraph (a) does not apply --
                                 (i) in the case of an individual --
                                          (I) for a first offence, to a fine of
25                                             $25 000; and
                                         (II) for a subsequent offence, to a
                                               fine of $31 250;
                                      or




     page 20
           Occupational Safety and Health Legislation Amendment and
                                                        Repeal Bill 2004
           Amendments relating to offences and penalties          Part 3

                                                                        s. 15


                     (ii)   in the case of a body corporate --
                                (I) for a first offence, to a fine of
                                     $50 000; and
                               (II) for a subsequent offence, to a
5                                    fine of $62 500.
     (2)   Where a person is liable to a level 2 penalty for an
           offence against this Act the person is liable --
             (a) in the case of an individual --
                     (i) for a first offence, to a fine of $100 000;
10                        and
                    (ii) for a subsequent offence, to a fine of
                          $125 000;
                  or
             (b) in the case of a body corporate --
15                   (i) for a first offence, to a fine of $200 000;
                          and
                    (ii) for a subsequent offence, to a fine of
                          $250 000.
     (3)   Where a person is liable to a level 3 penalty for an
20         offence against this Act the person is liable --
             (a) in the case of an individual --
                     (i) for a first offence, to a fine of $200 000;
                          and
                    (ii) for a subsequent offence, to a fine of
25                        $250 000;
                  or
             (b) in the case of a body corporate --
                     (i) for a first offence, to a fine of $400 000;
                          and
30                  (ii) for a subsequent offence, to a fine of
                          $500 000.


                                                                  page 21
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 3           Amendments relating to offences and penalties

     s. 15


               (4)   Where a person is liable to a level 4 penalty for an
                     offence against this Act the person is liable --
                       (a) in the case of an individual --
                               (i) for a first offence, to a fine of $250 000
5                                   and imprisonment for 2 years; and
                              (ii) for a subsequent offence, to a fine of
                                    $312 500 and imprisonment for 2 years;
                            or
                       (b) in the case of a body corporate --
10                             (i) for a first offence, to a fine of $500 000;
                                    and
                              (ii) for a subsequent offence, to a fine of
                                    $625 000.

             3B.     Meaning of "first offence" and "subsequent
15                   offence"
               (1)   In this section --
                     "relevant day" means the day on which section 15 of
                          the Occupational Safety and Health Legislation
                          Amendment and Repeal Act 2004 comes into
20                        operation.
               (2)   For the purposes of this Act --
                      (a) an offence is a first offence committed by a
                             person if, at the time when the offence is
                             committed, the person has not previously been
25                           convicted of any offence against this Act
                             committed on or after the relevant day; and
                      (b) an offence is a subsequent offence committed by
                             a person if, at the time when the offence is
                             committed, the person has previously been
30                           convicted of one or more offences against this
                             Act committed on or after the relevant day.
                                                                                 ".


     page 22
                   Occupational Safety and Health Legislation Amendment and
                                                                Repeal Bill 2004
                   Amendments relating to offences and penalties          Part 3

                                                                           s. 16


     16.     Part III Division 1 inserted
             After the heading to Part III the following Division is
             inserted --
     "
5                           Division 1 -- Preliminary
           18A.    Meaning of gross negligence in relation to certain
                   breaches of this Part
             (1)   This section applies to a contravention of section 19(1),
                   20(1) or (3), 21(1) or (2), 21B(2), 22(1), 23(1), (2), (3)
10                 or (3a), 23A or 23G(2).
             (2)   A contravention of a provision mentioned in
                   subsection (1) is committed in circumstances of
                   gross negligence if --
                     (a) the offender --
15                           (i) knew that the contravention would be
                                   likely to cause the death of, or serious
                                   harm to, a person to whom a duty is
                                   owed under that provision; but
                            (ii) acted or failed to act in disregard of that
20                                 likelihood;
                           and
                     (b) the contravention did in fact cause the death of,
                           or serious harm to, such a person.
                                                                                ".

25   17.     Section 19 amended
             Section 19(6), (7), (8) and (9) are repealed.




                                                                        page 23
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 3           Amendments relating to offences and penalties

     s. 18


     18.       Section 19A inserted
               After section 19 the following section is inserted --
     "
             19A.    Breaches of section 19(1)
5              (1)   If an employer contravenes section 19(1) in
                     circumstances of gross negligence, the employer
                     commits an offence and is liable to a level 4 penalty.
               (2)   If --
                       (a)   an employer --
10                             (i) contravenes section 19(1); and
                              (ii) by the contravention causes the death
                                    of, or serious harm to, an employee;
                             and
                      (b)    subsection (1) does not apply,
15                   the employer commits an offence and is liable to a
                     level 3 penalty.
               (3)   If --
                      (a)    an employer contravenes section 19(1); and
                      (b)    neither subsection (1) nor subsection (2)
20                           applies,
                     the employer commits an offence and is liable to a
                     level 2 penalty.
               (4)   An employer charged with an offence under --
                       (a)   subsection (1) may, instead of being convicted
25                           of that offence, be convicted of an offence
                             under subsection (2) or (3); or
                      (b)    subsection (2) may, instead of being convicted
                             of that offence, be convicted of an offence
                             under subsection (3).
30                                                                            ".

     page 24
                   Occupational Safety and Health Legislation Amendment and
                                                                Repeal Bill 2004
                   Amendments relating to offences and penalties          Part 3

                                                                           s. 19


     19.     Section 20 amended
             Section 20(4), (5) and (6) are repealed.

     20.     Section 20A inserted
             After section 20 the following section is inserted --
5    "
           20A.    Breaches of section 20(1) or (3)
             (1)   If an employee contravenes section 20(1) or (3) in
                   circumstances of gross negligence, the employee
                   commits an offence and is liable --
10                   (a) for a first offence, to a fine of $25 000; and
                     (b) for a subsequent offence, to a fine of $31 250.
             (2)   If --
                     (a)   an employee --
                             (i) contravenes section 20(1) or (3); and
15                          (ii) by the contravention causes the death
                                  of, or serious harm to, a person;
                           and
                     (b)   subsection (1) does not apply,
                   the employee commits an offence and is liable --
20                   (c) for a first offence, to a fine of $20 000; and
                     (d) for a subsequent offence, to a fine of $25 000.
             (3)   If --
                     (a)   an employee contravenes section 20(1) or (3);
                           and
25                   (b)   neither subsection (1) nor subsection (2)
                           applies,
                   the employee commits an offence and is liable --
                     (c) for a first offence, to a fine of $10 000; and
                     (d) for a subsequent offence, to a fine of $12 500.

                                                                        page 25
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 3           Amendments relating to offences and penalties

     s. 21


               (4)   An employee charged with an offence under --
                      (a) subsection (1) may, instead of being convicted
                           of that offence, be convicted of an offence
                           under subsection (2) or (3); or
5                     (b) subsection (2) may, instead of being convicted
                           of that offence, be convicted of an offence
                           under subsection (3).
                                                                              ".

     21.       Section 21 amended
10             Section 21(2), (3) and (4) are repealed.

     22.       Section 21A inserted
               After section 21 the following section is inserted --
     "
             21A.    Breaches of section 21
15             (1)   If an employer or a self-employed person contravenes
                     section 21(1) or (2) in circumstances of gross
                     negligence, the employer or a self-employed person
                     commits an offence and is liable to a level 4 penalty.
               (2)   If --
20                     (a)   an employer or self-employed person --
                               (i) contravenes section 21(1) or (2); and
                              (ii) by the contravention causes the death
                                    of, or serious harm to, a person;
                             and
25                    (b)    subsection (1) does not apply,
                     the employer or self-employed person commits an
                     offence and is liable to a level 3 penalty.




     page 26
                   Occupational Safety and Health Legislation Amendment and
                                                                Repeal Bill 2004
                   Amendments relating to offences and penalties          Part 3

                                                                           s. 23


             (3)   If --
                     (a)   an employer or self-employed person
                           contravenes section 21(1) or (2); and
                     (b)   neither subsection (1) nor subsection (2)
5                          applies,
                   the employer or self-employed person commits an
                   offence and is liable to a level 2 penalty.
             (4)   An employer or self-employed person charged with an
                   offence under --
10                   (a) subsection (1) may, instead of being convicted
                          of that offence, be convicted of an offence
                          under subsection (2) or (3); or
                     (b) subsection (2) may, instead of being convicted
                          of that offence, be convicted of an offence
15                        under subsection (3).
                                                                             ".

     23.     Section 22 amended
             Section 22(4), (5) and (6) are repealed.

     24.     Section 22A inserted
20           After section 22 the following section is inserted --
     "
           22A.    Breaches of section 22(1)
             (1)   If a person contravenes section 22(1) in circumstances
                   of gross negligence, the person commits an offence and
25                 is liable to a level 4 penalty.
             (2)   If --
                     (a)   a person --
                             (i) contravenes section 22(1); and




                                                                        page 27
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 3           Amendments relating to offences and penalties

     s. 25


                              (ii)   by the contravention causes the death
                                     of, or serious harm to, a person --
                                         (I) who is at; or
                                        (II) who is using the means of
5                                              access to or egress from,
                                     the workplace;
                             and
                      (b)    subsection (1) does not apply,
                     the person commits an offence and is liable to a level 3
10                   penalty.
               (3)   If --
                      (a)    a person contravenes section 22(1); and
                      (b)    neither subsection (1) nor subsection (2)
                             applies,
15                   the person commits an offence and is liable to a level 2
                     penalty.
               (4)   A person charged with an offence under --
                       (a)   subsection (1) may, instead of being convicted
                             of that offence, be convicted of an offence
20                           under subsection (2) or (3); or
                      (b)    subsection (2) may, instead of being convicted
                             of that offence, be convicted of an offence
                             under subsection (3).
                                                                                ".

25   25.       Section 23 amended
               Section 23(4), (5) and (6) are repealed.




     page 28
                   Occupational Safety and Health Legislation Amendment and
                                                                Repeal Bill 2004
                   Amendments relating to offences and penalties          Part 3

                                                                            s. 26


     26.     Section 23AA inserted
             After section 23 the following section is inserted --
     "
           23AA. Breaches of section 23
5            (1)   If a person contravenes section 23(1), (2), (3) or (3a) in
                   circumstances of gross negligence, the person commits
                   an offence and is liable to a level 4 penalty.
             (2)   If --
                     (a)   a person --
10                           (i) contravenes section 23(1), (2), (3)
                                  or (3a); and
                            (ii) by the contravention causes the death
                                  of, or serious harm to, a person to whom
                                  a duty is owed under that subsection;
15                         and
                     (b)   subsection (1) does not apply,
                   the person commits an offence and is liable to a level 3
                   penalty.
             (3)   If --
20                   (a)   a person contravenes section 23(1), (2), (3)
                           or (3a); and
                     (b)   neither subsection (1) nor subsection (2)
                           applies,
                   the person commits an offence and is liable to a level 2
25                 penalty.
             (4)   A person charged with an offence under --
                    (a) subsection (1) may, instead of being convicted
                          of that offence, be convicted of an offence
                          under subsection (2) or (3); or



                                                                          page 29
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 3           Amendments relating to offences and penalties

     s. 27


                      (b)    subsection (2) may, instead of being convicted
                             of that offence, be convicted of an offence
                             under subsection (3).
                                                                                ".

5    27.       Section 23A amended
               Section 23A(2), (3) and (4) are repealed.

     28.       Section 23B inserted
               After section 23A the following section is inserted --
     "
10           23B.    Breaches of section 23A
               (1)   If a person contravenes section 23A in circumstances
                     of gross negligence, the person commits an offence and
                     is liable to a level 4 penalty.
               (2)   If --
15                     (a)   a person --
                               (i) contravenes section 23A; and
                              (ii) by the contravention causes the death
                                    of, or serious harm to, a person;
                             and
20                    (b)    subsection (1) does not apply,
                     the person commits an offence and is liable to a level 3
                     penalty.
               (3)   If --
                      (a)    a person contravenes section 23A; and
25                    (b)    neither subsection (1) nor subsection (2)
                             applies,
                     the person commits an offence and is liable to a level 2
                     penalty.



     page 30
                       Occupational Safety and Health Legislation Amendment and
                                                                    Repeal Bill 2004
                       Amendments relating to offences and penalties          Part 3

                                                                                s. 29


                 (4)   A person charged with an offence under --
                        (a) subsection (1) may, instead of being convicted
                              of that offence, be convicted of an offence
                              under subsection (2) or (3); or
5                       (b) subsection (2) may, instead of being convicted
                              of that offence, be convicted of an offence
                              under subsection (3).
                                                                                  ".

     29.         Section 23B repealed
10               Section 23B is repealed.

     30.         Part VII Division 1 heading inserted
                 After the heading to Part VII the following heading is
                 inserted --
     "
15                          Division 1 -- General provisions
                                                                                  ".

     31.         Section 54 replaced
                 Section 54 is repealed and the following section is inserted
                 instead --
20   "
           54.         General penalty
                       If a person commits an offence against this Act for
                       which a penalty is not otherwise provided, the person is
                       liable to a level one penalty.
25                                                                                ".

     32.         Section 54AA repealed
                 Section 54AA is repealed.




                                                                            page 31
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 3           Amendments relating to offences and penalties

     s. 33


     33.              Section 54A amended
                      Section 54A(2) is amended by deleting "and is liable to a fine
                      not exceeding $200 where the offence is committed by a person
                      as an employee and $1 000 in any other case for every day on
5                     which the offence is so continued" and inserting instead --
                      "
                            and is liable to a fine not exceeding --
                              (a) $200, where the offence is committed by a
                                     person as an employee;
10                            (b) $1 000, where the offence is committed by an
                                     individual and paragraph (a) does not apply;
                                     and
                              (c) $2 000, where the offence is committed by a
                                     body corporate,
15                          for every day on which the offence is so continued
                                                                                       ".

     34.              Section 55 amended
           (1)        After section 55(1) the following subsections are inserted --
                 "
20                   (1a)   Despite subsection (1), if a body corporate is guilty of
                            an offence under section 19A(1), 21A(1), 21C(1),
                            22A(1), 23AA(1), 23B(1) or 23H(1) the following
                            provisions apply --
                              (a) a person referred to in subsection (1) is guilty
25                                  of that offence if it is proved that --
                                      (i) the offence was attributable to any
                                            neglect on the part of the person; or
                                     (ii) the person consented to or connived in
                                            the acts or omissions to which
30                                          section 18A(2)(a)(ii) applied that were
                                            proved against the body corporate,


     page 32
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                                                                      Repeal Bill 2004
                         Amendments relating to offences and penalties          Part 3

                                                                                   s. 35


                                  in circumstances where the person --
                                   (iii) knew that the contravention would be
                                          likely to cause the death of, or serious
                                          harm to, a person to whom a duty was
5                                         owed; but
                                   (iv) acted or failed to act as mentioned in
                                          subparagraph (i) or (ii) in disregard of
                                          that likelihood;
                            (b)   if paragraph (a) does not apply, a person
10                                referred to in subsection (1) is guilty of an
                                  offence under section 19A(2), 21A(2), 21C(2),
                                  22A(2), 23AA(2), 23B(2) or 23H(2), as the
                                  case may require, if it is proved that the offence
                                  of the body corporate --
15                                   (i) occurred with the consent or connivance
                                          of the person; or
                                    (ii) was attributable to any neglect on the
                                          part of the person.
                 (1b)     A person convicted of an offence by virtue of
20                        subsection (1) or (1a) is liable to the penalty to which
                          an individual who is convicted of that offence is liable.
                                                                                       ".
           (2)    Section 55(2) is amended by deleting "subsection (1)" and
                  inserting instead --
25                "     subsections (1) and (1a)   ".

     35.          Section 55A inserted
                  After section 55 the following section is inserted --
     "
             55A.         No double jeopardy
30                        A person is not liable to be punished twice under this
                          Act in respect of any act or omission.
                                                                                       ".

                                                                               page 33
     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 3           Amendments relating to offences and penalties

     s. 36


     36.       Part VII Divisions 2 and 3 inserted
               After section 55A the following Divisions are inserted --
     "
              Division 2 -- Criminal proceedings against the Crown
5            55B.    Crown may be prosecuted
                     The Crown in any capacity may, in accordance with
                     this Division, be prosecuted for an offence against this
                     Act.

             55C.    Prosecution against body corporate
10             (1)   Where the act or omission constituting the offence is
                     alleged against a body corporate that is an agent of the
                     Crown, the prosecution proceedings are to be taken
                     against the body corporate.
               (2)   Subsection (1) includes a case where --
15                    (a) a body corporate is the successor in law, as
                            defined in section 55F(1), of an agency or
                            department; or
                      (b) a body corporate is determined under
                            section 55F(3).

20           55D.    Prosecution in other cases
               (1)   Where --
                      (a) the act or omission constituting the offence is
                           alleged against an agency or department that is
                           an agent of the Crown (the "responsible
25                         agency"); and
                      (b) section 55C does not apply,
                     the prosecution proceedings are to be taken against the
                     Crown.



     page 34
             Occupational Safety and Health Legislation Amendment and
                                                          Repeal Bill 2004
             Amendments relating to offences and penalties          Part 3

                                                                     s. 36


       (2)   For the purposes of subsection (1) the WA Police is to
             be treated as an agency of the Crown.
       (3)   Proceedings referred to in subsection (1) may be
             brought against the Crown under the title "State of
5            Western Australia".

     55E.    Provisions applicable to responsible agency
       (1)   In this section --
             "chief executive" means the person who is for the time
                  being responsible for the day to day administration
10                of a responsible agency;
             "prosecution proceedings" means proceedings
                  referred to in section 55D(1).
       (2)   For the purposes of prosecution proceedings --
              (a) the responsible agency --
15                      (i) is to be specified in the charge for the
                            offence;
                       (ii) is entitled to act for the Crown in the
                            proceedings; and
                      (iii) subject to any rules of court, has the
20                          procedural rights and obligations of the
                            Crown as the defendant in the
                            proceedings;
                     and
              (b) the complainant may during the proceedings,
25                   with the leave of the court, substitute another
                     responsible agency for the agency in the
                     proceedings.
       (3)   In prosecution proceedings a person authorised by the
             chief executive of the responsible agency concerned
30           may act on behalf of the agency, and it is not necessary
             for proof to be given of the authority of the person to
             do so.

                                                                   page 35
     Occupational Safety and Health Legislation Amendment and
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     Part 3           Amendments relating to offences and penalties

     s. 36


               (4)   It is sufficient service of a document required to be
                     served on a responsible agency for the purposes of
                     prosecution proceedings if the document --
                        (a) is delivered to a person who is or appears to be
5                             the chief executive of the responsible agency,
                              or a person acting as such, at a place of
                              business of the responsible agency; or
                       (b) is sent by pre-paid letter addressed and posted
                              to the responsible agency at its principal place
10                            of business in the State.

             55F.    Proceedings where agency has ceased to exist
               (1)   In this section --
                     "successor in law", in relation to an agency or
                         department, means --
15                       (a) the sole successor; or
                         (b) if there is more than one successor, the one
                              that has the relevant functions formerly
                              vested in the agency or department.
               (2)   If an agency or department referred to in
20                   section 55D(1)(a) --
                       (a) has ceased to exist; but
                       (b) has a successor in law to which section 55C(2)
                             does not apply,
                     the successor in law is the responsible agency for the
25                   purposes of section 55D(1).
               (3)   If an agency or department referred to in
                     section 55D(1)(a) --
                       (a) has ceased to exist; and
                       (b) either --
30                             (i) it has no apparent successor in law; or



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                       (ii)   there is doubt as to which agency or
                              department has the relevant functions,
             the responsible agency for the purposes of that section
             is such agency of the Crown as the Minister
5            determines.

     55G.    Penalties in proceedings against the Crown
       (1)   In subsection (3)(b) --
             "successor in law", in relation to an agency or
                  department, means --
10                (a) the successor in law as defined in
                       section 55F(1); or
                  (b) the agency of the Crown determined under
                       section 55F(3).
       (2)   The penalty that may be imposed on the Crown if it is
15           convicted of an offence against this Act in proceedings
             referred to in section 55D(1) is the penalty applicable
             to a body corporate.
       (3)   In proceedings referred to in section 55D(1), a higher
             penalty may be imposed for an offence involving a
20           responsible agency on the ground that it is a subsequent
             offence, only if the acts or omissions constituting the
             previous offence or offences were those of --
               (a) the same responsible agency; or
               (b) a responsible agency of which it is the
25                   successor in law.
       (4)   A penalty imposed in proceedings referred to in
             section 55D(1) cannot be enforced under the Fines,
             Penalties and Infringement Notices Enforcement
             Act 1994.




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                    Division 3 -- Undertaking by offender in lieu of
                                   payment of fine
             55H.      Terms used in this Division
                       In this Division --
5                      "convicted" means found guilty of an offence, whether
                            after a plea of guilty or otherwise;
                       "court" means a safety and health magistrate
                            exercising jurisdiction under section 51C(1)(b);
                       "relevant offence" means an offence against --
10                          (a) section 24(4), 30(7), 35(4), 38(2), 39(3),
                                  45(5), 47(1), 48(4), (5) or (6) or 49(5) or (6);
                                  or
                            (b) the regulations.

             55I.      Court may allow offender to make election
15              (1)    Where --
                        (a) a person (the "offender") is convicted of one
                             or more relevant offences; and
                        (b) the court has fined the offender,
                       the court may, subject to subsection (2), make an order
20                     allowing the offender to elect either --
                         (c) to pay the fine or fines; or
                         (d) as an alternative, to enter into an undertaking
                               with the Commissioner under section 55M not
                               later than a day specified by the court.
25              (2)    A court is not to make an order under this section
                       unless the court is satisfied that --
                         (a) the breach of the relevant offence did not result
                               in physical harm to any person;
                        (b) the offender wishes an order to be made and the
30                             complainant does not oppose that being done;

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               (c)   the offender and the Commissioner are likely to
                     reach agreement on the provisions of the
                     proposed undertaking within the time that the
                     court proposes to specify under
5                    subsection (1)(d); and
               (d)   the cost to the offender of complying with the
                     proposed undertaking will be substantially
                     equivalent to the amount of the fine or fines
                     imposed.
10     (3)   After the court has fined the offender, the court may
             adjourn the proceedings to allow --
               (a) the offender time to consider whether the
                     offender wishes an order to be made; and
               (b) the complainant time to consider whether to
15                   oppose that being done,
             as mentioned in subsection (2)(b).
       (4)   Nothing in this Division limits the powers of a court
             under the Sentencing Act 1995.

     55J.    Making of election
20     (1)   An election is made, pursuant to an order under
             section 55I(1), by the offender --
               (a) lodging an election in writing with the clerk of
                     the court in which the order was made; and
               (b) serving a copy of the election on the
25                   Commissioner,
             not later than 28 days after the day on which the order
             was made.
       (2)   If --
               (a)   an order is made under section 55I(1); but




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                      (b)    the offender fails to make an election in
                             accordance with subsection (1),
                     the offender is taken, at the expiry of the period
                     mentioned in subsection (1), to have elected to pay the
5                    fine or fines.

             55K.    Failure to enter into undertaking
                     An election under section 55J to enter into an
                     undertaking lapses if the undertaking is for any reason
                     not entered into before the time allowed under
10                   section 55I(1)(d).

             55L.    Time for payment of fines
               (1)   The liability of the offender to pay the fine or fines in
                     connection with which an order is made under
                     section 55I(1) is suspended by the making of the order.
15             (2)   If the offender elects to pay the fine or fines, for the
                     purposes of section 32 of the Fines, Penalties and
                     Infringement Notices Enforcement Act 1994 the fine
                     or fines are taken to have been imposed on the day on
                     which the election is made.
20             (3)   If the offender is taken by section 55J(2) to have
                     elected to pay the fine or fines, for the purposes of the
                     section referred to in subsection (2) the fine or fines are
                     taken to have been imposed at the time mentioned in
                     section 55J(2).
25             (4)   If --
                       (a)   the offender elects to enter into an undertaking;
                             but
                      (b)    the election lapses under section 55K,
                     for the purposes of the section referred to in
30                   subsection (2) the fine or fines are taken to have been
                     imposed on the day specified under section 55I(1)(d).

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     55M.    Nature and terms of undertaking
       (1)   An undertaking for the purposes of this Division is a
             document by which the offender gives undertakings to
             the Commissioner that the offender will --
5              (a) take the action specified in the undertaking;
               (b) bear the costs and expenses of doing so; and
               (c) complete all of the required action not later
                    than a day specified in the document.
       (2)   The action required to be taken by the offender is to
10           come within the provisions described in section 55N(2)
             or (3).
       (3)   The provisions of the undertaking are to be such as are
             agreed between the Commissioner and the offender.
       (4)   The Commissioner is to furnish a copy of an
15           undertaking, and of any amendment made under
             section 55Q, to the court concerned.

     55N.    What may be included in undertaking
       (1)   In this section --
             "specified" means specified in the undertaking.
20     (2)   An undertaking is to provide for the offender to do one
             or more of the following --
               (a) to take specified steps for the improvement of
                    occupational safety and health --
                      (i) at a specified workplace; or
25                   (ii) in connection with the business or
                            operations of the offender;
               (b) to take specified steps to publicise details of --
                      (i) any specified offence;
                     (ii) its consequences;


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                             (iii)  the amount of the fine or fines imposed
                                    and the fact that the undertaking has
                                    been entered into under this Division; or
                             (iv) any other related matter;
5                     (c)   to remedy any consequence of a specified
                            offence, so far as it is practicable to do so, but
                            not in a way that is excluded by subsection (4);
                      (d)   to carry out a specified project or activity for
                            the improvement of occupational safety and
10                          health --
                               (i) in the community;
                              (ii) in a particular section of the community;
                                    or
                             (iii) in connection with a particular kind of
15                                  activity in the State.
               (3)   The Commissioner may require that an undertaking
                     contain any incidental or supplementary provision that
                     the Commissioner considers necessary or expedient to
                     achieve its purpose, including provision for --
20                     (a) the reporting of matters; and
                       (b) providing proof of compliance,
                     to the Commissioner.
               (4)   An undertaking cannot provide for the offender to take
                     any action --
25                     (a) that the offender has a duty to take in order to
                             comply with any provision of this Act; or
                       (b) for the taking of which an improvement notice
                             or a prohibition notice could be issued.




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     55O.    Effect of undertaking
             The liability of the offender to pay the fine or fines in
             connection with which the undertaking is given --
               (a) is suspended by the giving of the undertaking;
5                    and
               (b) is cancelled by the full discharge of the
                     offender's obligations under the undertaking.

     55P.    Failure to comply with undertaking
       (1)   An offender commits an offence if the offender fails to
10           fully discharge the obligations under an undertaking
             before the day specified in the undertaking in
             accordance with section 55M(1)(c).
       (2)   A court that convicts an offender of an offence against
             subsection (1) must order that the fine or fines to which
15           the undertaking relates be paid in addition to any
             penalty imposed for the offence against subsection (1).
       (3)   For the purposes of section 32 of the Fines, Penalties
             and Infringement Notices Enforcement Act 1994, the
             fine or fines to which an order under subsection (2)
20           applies are taken to be imposed on the day on which
             that order is made.

     55Q.    Amendment of undertaking
             An undertaking may be amended by an instrument in
             writing signed by the offender and the Commissioner.

25   55R.    Undertaking may be published
             The Commissioner may cause an undertaking to be
             published in any manner the Commissioner thinks fit
             including --
               (a) by publication in a newspaper; or



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                        (b)   by posting a copy of the undertaking on an
                              internet website maintained by the
                              Commissioner.
                                                                                   ".

5    37.         Section 60 amended
                 Section 60(6) is repealed and the following subsection is
                 inserted instead --
             "
                 (6)   Regulations made under this Act may provide that
10                     contravention of a regulation constitutes an offence and
                       provide for penalties not exceeding --
                         (a) in the case of an offence committed by a person
                              as an employee --
                                 (i) for a first offence, a fine of $5 000; and
15                              (ii) for a subsequent offence, a fine of
                                      $6 250;
                         (b) in the case of an offence committed by an
                              individual where paragraph (a) does not
                              apply --
20                               (i) for a first offence, a fine of $25 000; and
                                (ii) for a subsequent offence, a fine of
                                      $31 250;
                              or
                         (c) in the case of an offence committed by a body
25                            corporate --
                                 (i) for a first offence, a fine of $50 000; and
                                (ii) for a subsequent offence, a fine of
                                      $62 500,
                       and if the offence is a continuing one a further penalty
30                     not exceeding --
                         (d) $200, in the case of an offence committed by a
                                person as an employee;

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      (e)    $1 000, in the case of an offence committed by
             an individual where paragraph (d) does not
             apply; and
       (f)   $2 000, in the case of an offence committed by
5            a body corporate,
    for each day or part of a day during which the offence
    continues after notice of the offence has been given by
    or on behalf of an inspector to the offender.
                                                              ".




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         Part 4 -- Amendments relating to safety and health
                  representatives and committees
     38.         Section 3 amended
                 Section 3(1) is amended as follows:
5                  (a) by inserting after the definition of "prohibition
                        notice" --
                 "
                       "provisional improvement notice" means a
                           provisional improvement notice issued under
10                         Part VI Division 2;
                                                                                ";
                  (b)   in the definition of "safety and health committee" by
                        inserting after "Part IV" --
                        " Division 2 ";
15                (c)   in the definition of "safety and health representative" by
                        inserting after "Part IV" --
                        " Division 1 ".

     39.         Part IV Division 1 heading inserted
                 After the heading to Part IV the following heading is inserted --
20   "

                   Division 1 -- Safety and health representatives
                                                                                ".

     40.         Section 29 amended
           (1)   Section 29 is amended by inserting before "An employee" the
25               subsection designation "(1)".




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           (2)        At the end of section 29 the following subsection is inserted --
                 "
                      (2)   The fact that a notice under subsection (1) requires an
                            election for the workplace at which the employee
5                           works does not prevent --
                              (a) the establishment of a scheme under
                                    section 30A that extends beyond that
                                    workplace; or
                              (b) the making of a determination under
10                                  section 30(4a) for that purpose.
                                                                                            ".

     41.              Section 30 amended
           (1)        Section 30(4) is amended by deleting paragraphs (aa) and (b)
                      and "and" after them and inserting instead --
15                          "
                                 (b)   the matters, areas or kinds of work in respect of
                                       which each safety and health representative is
                                       to exercise functions, so far as those things are
                                       not to be dealt with by provision of a kind
20                                     mentioned in section 30B(2) or (3);
                                (ba)   how a vacancy in an office of safety and health
                                       representative that occurs in the circumstances
                                       mentioned in section 32(2)(b), (ba), (c) or (d) is
                                       to be dealt with; and
25                                                                                          ".
           (2)        After section 30(4) the following subsection is inserted --
                 "
                     (4a)   The employer and the delegate or delegates consulting
                            under subsection (3a) may determine that provision of
30                          a kind mentioned in section 30B(2) or (3) should be
                            made.
                                                                                            ".


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           (3)       Section 30(5) is repealed and the following subsection is
                     inserted instead --
                 "
                     (5)   For the purposes of subsection (4)(c), but without
5                          limiting the generality of that provision, the employer
                           and the delegate or delegates consulting under
                           subsection (3a) may determine that --
                             (a) the Electoral Commissioner appointed under
                                   the Electoral Act 1907; or
10                           (b) an organisation registered under Part II
                                   Division 4 of the Industrial Relations Act 1979,
                           is to be requested to conduct an election.
                                                                                        ".

     42.             Sections 30A, 30B and 30C inserted
15                   After section 30 the following sections are inserted --
     "
             30A.          Election scheme may be established
                     (1)   In this section --
                           "consulting parties" means the employer and the
20                              delegate or delegates consulting under
                                section 30(3a) on matters relating to the election of
                                a safety and health representative for a workplace,
                                and includes any delegates or delegates appointed
                                under section 30C.
25                   (2)   If the consulting parties in respect of a workplace have
                           made a determination referred to in section 30(4a), a
                           written agreement may be made between the consulting
                           parties establishing a scheme under this section.
                     (3)   If the consulting parties cannot reach agreement on any
30                         matter for the purposes of subsection (2) they may refer
                           the matter to the Commissioner, who is to attempt to
                           resolve it to the satisfaction of the consulting parties.

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             (4)    If the Commissioner is unable to resolve the matter, the
                    Commissioner is to refer it to the Tribunal for
                    determination.
             (5)    If subsection (4) applies, references in this Division to
5                   a scheme under this section are references to a scheme
                    consisting of the provisions of --
                      (a) an agreement under subsection (2); and
                      (b) the determination of the Tribunal under
                            subsection (4).

10        30B.      What may be included in a scheme
             (1)    In this section --
                    "contractor" and "principal" have the meanings
                         given to those terms in section 23D(1).
             (2)    A scheme under section 30A (a "scheme") may
15                  include provision for the election of one or more safety
                    and health representatives for --
                      (a) one or more workplaces in addition to the
                            workplace referred to in section 30A(2); or
                      (b) any group of employees of the employer
20                          concerned that constitutes a distinct unit of the
                            employer's workforce,
                    or may make provision for both of those matters, as the
                    case may require.
             (3)    A scheme may despite any provision of this Part --
25                   (a) provide for --
                             (i) a contractor; and
                            (ii) any person employed by a contractor,
                          to be treated, for the purposes of this Part, as
                          employees of the principal that engages the
30                        contractor; and


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                      (b)   provide for the principal that engages a
                            contractor to be treated, for the purposes of this
                            Part, as the employer of --
                              (i) the contractor; and
5                            (ii) any person employed by the contractor.
               (4)   A scheme may make provision for --
                      (a) the scheme to apply to any subsequent election
                           of a safety and health representative; and
                      (b) the manner in which an amendment may be
10                         made to the scheme after it has been
                           determined.

             30C.    Appointment of further delegates may be required
               (1)   In this section --
                     "additional employees" means employees who have
15                        not been invited to appoint a delegate or delegates
                          under section 30(1) or (2) because that subsection
                          has not become applicable to the workplace at
                          which they work.
               (2)   A scheme under section 30A cannot make provision of
20                   the kind mentioned in section 30B(2) that will affect
                     additional employees unless subsection (3) of this
                     section is complied with.
               (3)   If it is proposed that such provision be made the
                     employer must invite any additional employees at a
25                   workplace to appoint a delegate or delegates in
                     accordance with subsection (4).
               (4)   Additional employees who work at a workplace may,
                     upon being invited under subsection (3) to do so,
                     appoint a delegate or delegates from amongst their
30                   number to represent them for the purposes of making
                     an agreement under section 30A(2).
                                                                                 ".

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     43.             Section 31 amended
           (1)       Section 31(1) is repealed and the following subsection is
                     inserted instead --
                 "
5                    (1)   In this section --
                           "election" means an election required for the purpose
                                of electing a safety and health representative
                                following --
                                (a) the giving of a notice under section 29 in
10                                    relation to a workplace; or
                                (b) a decision of an employer under
                                      section 30(2);
                           "relevant employee", in relation to an election,
                                means --
15                              (a) an employee who works at the workplace to
                                      which the election relates; or
                                (b) if a scheme has been established under
                                      section 30A for the election, an employee
                                      who --
20                                       (i) works at a workplace; or
                                        (ii) is a member of a group of employees,
                                      to which the scheme applies.
                                                                                       ".
           (2)       Section 31(6) is repealed and the following subsections are
25                   inserted instead --
                 "
                     (6)   Subject to this section, an election shall be conducted
                           and safety and health representatives shall be elected in
                           accordance with --
30                           (a) any determination under section 30; and
                             (b) if applicable, a scheme established under
                                   section 30A.

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                     (6a)     If there is any inconsistency between a determination
                              under section 30 and a scheme established under
                              section 30A, the latter prevails.
                                                                                        ".
5          (3)        Section 31(7) and (8) are repealed and the following subsections
                      are inserted instead --
                 "
                      (7)     An election shall be by secret ballot.
                      (8)     Every relevant employee is entitled to vote at an
10                            election.
                     (8a)     Only a relevant employee is eligible to be elected as a
                              safety and health representative at an election.
                                                                                        ".
           (4)        Section 31(9) is amended by inserting after "If " --
15           "
                          , after the relevant steps provided for by or under this
                          Division have been taken,
                                                                                        ".
           (5)        Section 31(10) is amended by inserting after "notify the" --
20                    "     Commissioner and the     ".
           (6)        Section 31(10a) and (10b) are repealed.

     44.              Saving provision for existing safety and health
                      representatives
                      The amendments made by section 43 do not affect the
25                    continuation in office of any safety and health representative
                      who held office under Part IV of the Occupational Safety and
                      Health Act 1984 immediately before the commencement of that
                      section.




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     45.       Section 32 amended
               Section 32(2)(b) is deleted and the following paragraphs are
               inserted instead --
                    "
5                      (b) the person ceases to be an employee who works
                             at a workplace for which the person was
                             elected;
                      (ba) if the person was elected for a group of
                             employees pursuant to a scheme under
10                           section 30A, the person ceases to be an
                             employee who belongs to that group of
                             employees;
                                                                               ".

     46.       Section 33 amended
15             After section 33(3) the following subsection is inserted --
           "
               (4)   If a scheme has been established under section 30A,
                     the references in this section to "the workplace",
                     "that workplace" and "a workplace" include --
20                     (a) if the scheme applies to more than one
                             workplace, each workplace to which the
                             scheme applies; and
                       (b) if under the scheme a safety and health
                             representative is elected for a group of
25                           employees, each workplace or part of a
                             workplace at which any member of the group
                             works.
                                                                               ".




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     47.             Section 34 amended
           (1)       Section 34(2) is amended by deleting paragraph (b) and "or"
                     after it and inserting instead --
                           "
5                              (b)     a relevant employee; or
                                                                                        ".
           (2)       After section 34(4) the following subsection is inserted --
                 "
                     (5)   In subsection (2)(b) --
10                         "relevant employee" means --
                                (a) an employee who works at the workplace
                                     concerned;
                                 (b)     if the safety and health representative was
                                         elected for more than one workplace
15                                       pursuant to a scheme established under
                                         section 30A, an employee who works at any
                                         such workplace; or
                                 (c)     if under a scheme referred to in
                                         paragraph (b) the safety and health
20                                       representative was elected for a group of
                                         employees, an employee who is a member of
                                         the group.
                                                                                        ".

     48.             Section 35 amended
25         (1)       Section 35(1)(d) and (e) are deleted and the following paragraph
                     is inserted instead --
                           "
                               (d)     ensure that a safety and health representative
                                       receives any entitlement that becomes due to
30                                     him or her under subsection (1b) or (3);
                                                                                        ".


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       (2)        Section 35(1)(f) is amended by deleting "part of the".
       (3)        After section 35(1) the following subsections are inserted --
             "
                 (1a)   If, pursuant to a scheme under section 30A, a safety
5                       and health representative has been elected for a group
                        of employees, the references in subsection (1) to "a
                        workplace" and "the workplace" include any
                        workplace at which any member of the group works.
                 (1b)   Where a safety and health representative attends a
10                      course of training --
                          (a) for which, under subsection (3), the
                               representative is entitled to take time off work;
                               and
                          (b) that is prescribed for the purposes of this
15                             paragraph,
                        the employer is liable to pay, to the extent that is
                        prescribed --
                          (c) the tuition fee for the course; and
                          (d) other costs incurred by the representative in
20                              connection with attendance at the course.
                                                                                   ".
       (4)        Section 35(3) is amended as follows:
                   (a) by deleting "time that a safety and health representative
                         is to be permitted to take off work, with pay," and
25                       inserting instead --
                   "
                         entitlements of a safety and health representative
                                                                                   ";




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                       (b)    by deleting "time a safety and health representative is to
                              be permitted to take off work, with pay," and inserting
                              instead --
                              " entitlements ".
5          (5)        After section 35(3) the following subsection is inserted --
                 "
                     (3a)    In subsection (3) --
                             "entitlements" means --
                                  (a) the time that a safety and health
10                                     representative is to be permitted to take off
                                       work with pay; and
                                  (b) payments to which a safety and health
                                       representative is entitled for attendance at a
                                       course of training in his or her own time.
15                                                                                      ".

     49.              Sections 35A, 35B, 35C and 35D inserted
                      After section 35 the following sections are inserted --
     "
             35A.            Discrimination against safety and health
20                           representative in relation to employment
                      (1)    An employer or a prospective employer must not cause
                             disadvantage to a person for the dominant or
                             substantial reason that the person --
                               (a) is or was a safety and health representative; or
25                             (b) is performing or has performed any function as
                                    a safety and health representative.
                      (2)    For the purposes of subsection (1) an employer causes
                             disadvantage to a person if the employer --
                               (a) dismisses the person from employment;



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                     (b)    demotes the person or fails to give the person a
                            promotion that the person could reasonably
                            have expected;
                      (c)   detrimentally alters the person's employment
5                           position; or
                     (d)    detrimentally alters the person's pay or other
                            terms and conditions of employment.
             (3)    For the purposes of subsection (1) a prospective
                    employer causes disadvantage to a person if the
10                  prospective employer refuses to employ the person.
             (4)    An employer or prospective employer that contravenes
                    subsection (1) commits an offence.

          35B.      Discrimination against safety and health
                    representative in relation to contract for services
15           (1)    In this section --
                    "contractor" and "principal" have the meanings
                         given to those terms in section 23D(1).
             (2)    Where a scheme under section 30A makes provision of
                    the kind described in section 30B(3), a principal must
20                  not --
                      (a) terminate the engagement of a contractor; or
                      (b) subject a contractor to any other detriment,
                    for the dominant or substantial reason that the
                    contractor or a person employed by the contractor --
25                    (c) is or was a safety and health representative; or
                      (d) is performing or has performed any function as
                            a safety and health representative.
             (3)    A principal that contravenes subsection (2) commits an
                    offence.



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             35C.    Claim may be referred to the Tribunal
               (1)   A person may --
                      (a) refer to the Tribunal --
                              (i) a claim that the person's employer or a
5                                  prospective employer has caused
                                   disadvantage to the person in
                                   contravention of section 35A; or
                             (ii) in the case of a contractor referred to in
                                   section 35B, a claim that the principal
10                                 has contravened that section;
                            and
                      (b) request the Tribunal to make one or more of the
                            orders provided for by section 35D.
               (2)   Subsection (1) applies whether or not --
15                    (a) the employer or prospective employer has been
                            convicted of an offence under section 35A(4);
                            or
                      (b) the principal has been convicted of an offence
                            under section 35B(3).
20             (3)   A referral under subsection (1) may also be made on a
                     person's behalf by an agent or legal practitioner
                     referred to in section 31 of the Industrial Relations
                     Act 1979.
               (4)   Section 80E(1) of the Industrial Relations Act 1979
25                   does not apply to a claim under subsection (1) by a
                     Government officer within the meaning of that section.




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          35D.      Remedies that may be granted
             (1)    If, on the hearing of a claim under section 35C(1)(a)(i),
                    the Tribunal is satisfied that an employer or a
                    prospective employer has contravened section 35A, the
5                   Tribunal may --
                       (a) in the case of an employer, order the
                             employer --
                                (i) to reinstate the claimant if the claimant
                                     was dismissed from employment;
10                             (ii) to pay to the claimant such sum of
                                     money as the Tribunal considers
                                     adequate as compensation for loss of
                                     employment or loss of earnings; or
                              (iii) both to reinstate the claimant and to pay
15                                   the claimant the sum of money referred
                                     to in subparagraph (ii),
                             as the Tribunal thinks fit; or
                      (b) in the case of a prospective employer, order that
                             person to pay the claimant such sum of money
20                           as the Tribunal thinks fit.
             (2)    If, on the hearing of a claim under
                    section 35C(1)(a)(ii), the Tribunal is satisfied that a
                    principal has contravened section 35B, the Tribunal
                    may order the principal to pay the claimant such sum
25                  of money as the Tribunal thinks fit.
             (3)    In determining a claim under section 35C(1)(a)(i) the
                    Tribunal may make any order of the kind mentioned in
                    section 23A(3), (4) and (5)(a) of the Industrial
                    Relations Act 1979 as if the claim were a claim to
30                  which section 23A of that Act applies.




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                   (4)    In the determination of the amount of compensation for
                          any loss of employment, loss of earnings or
                          detriment --
                            (a) the Tribunal is to have regard to any redress the
5                                 claimant has obtained under another enactment;
                                  and
                            (b) the claimant is not entitled to compensation
                                  both under this section and otherwise for the
                                  same loss of employment, loss of earnings or
10                                detriment.
                                                                                     ".

     50.           Sections 36, 37, 38 and 39 repealed and replaced by a
                   Division heading and sections 36 to 39G
                   Sections 36, 37, 38 and 39 are repealed and the following
15                 heading and sections are inserted instead --
     "
                         Division 2 -- Safety and health committees
             36.          Interpretation
                   (1)    In this Division --
20                        "allowed period" means --
                               (a) 3 months; or
                               (b) such longer period as the Commissioner may
                                     allow on application by a consultation party;
                          "consultation party" means a person that comes
25                             within section 39C(2)(a), (b) or (c);
                          "prescribed requirements" means --
                               (a) the provisions of --
                                       (i) an agreement under section 39C(2);
                                            and
30                                    (ii) section 39C(3);


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                          (b)   the terms of a determination of --
                                  (i) the Commissioner, under
                                       section 39D; or
                                 (ii) the Tribunal, under section 39G,
5                               in respect of the workplace concerned or, if
                                any agreement under section 39E applies,
                                any workplace concerned; and
                          (c)   any requirement of the regulations.
                (2)   In this Division references to a "safety and health
10                    representative for the workplace" or a "safety and
                      health representative for a workplace" include a
                      safety and health representative elected for a group of
                      employees pursuant to a scheme under section 30A if
                      any member of the group works at the workplace
15                    concerned.

          37.         Employees to appoint representatives
                      Whenever required for the purpose of making an
                      agreement under section 39C(2) or 39E(1) in respect of
                      a workplace, the employees who work at the workplace
20                    are to appoint, from amongst their number, one or more
                      employees --
                        (a) to represent them for that purpose; or
                        (b) as may be required, to replace any employee
                              previously appointed under this section.

25        38.         Obligation of employer to establish a safety and
                      health committee
                (1)   An employer must, in accordance with the prescribed
                      requirements, establish a safety and health committee
                      for a workplace within the allowed period after --
30                      (a) the coming into operation of a regulation
                             requiring the employer to do so;


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                          (b)   service on the employer of a notice by the
                                Commissioner requiring the employer to do so;
                                or
                          (c)   being requested under section 39(1) to do so,
5                        unless, in the case mentioned in paragraph (c), the
                         Commissioner has decided under section 39A that a
                         safety and health committee is not required to be
                         established for the workplace concerned.
                   (2)   If an employer contravenes subsection (1), the employer
10                       commits an offence.

             39.         Request for establishment of safety and health
                         committee
                   (1)   An employee who works at a workplace may request
                         the employer to establish a safety and health committee
15                       for the workplace.
                   (2)   If a request is made under subsection (1), the employer
                         must within 21 days after the request is received
                         either --
                           (a) notify --
20                                  (i) the employee who made the request;
                                         and
                                   (ii) any safety and health representative for
                                         the workplace,
                                 that the employer agrees to the request; or
25                         (b) under section 39A, refer to the Commissioner
                                 the question whether a safety and health
                                 committee should be established for the
                                 workplace.
                   (3)   If an employer contravenes subsection (2), the employer
30                       commits an offence.



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          39A.      Referral of question to Commissioner
             (1)    If --
                      (a)   a request has been made to an employer under
                            section 39(1) in respect of a workplace; and
5                    (b)    the employer considers that the circumstances
                            of the case are such that the employer should
                            not be required to establish a safety and health
                            committee for the workplace,
                    the employer may refer to the Commissioner the
10                  question of whether a safety and health committee
                    should be so established.
             (2)    The employer must give notice of a referral under this
                    section to --
                      (a) the employee concerned; and
15                    (b) any safety and health representative for the
                            workplace.
             (3)    The Commissioner is to --
                      (a)   decide a question referred to the Commissioner
                            under subsection (1); and
20                   (b)    notify the employer and the employee
                            concerned of the decision.

          39B.      Employer may establish a safety and health
                    committee
                    An employer may, on the employer's own initiative
25                  and in accordance with the prescribed requirements,
                    establish a safety and health committee for a workplace
                    if --
                       (a) a regulation referred to in section 38(1)(a) has
                            not come into operation;
30                     (b) a notice referred to in section 38(1)(b) has not
                            been served on the employer; or

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                      (c)   a request has not been made under
                            section 39(1),
                     in respect of the workplace.

             39C.    How safety and health committee to be constituted
5              (1)   In this section --
                     "workplace", where an agreement under section 39E
                          applies, includes 2 or more workplaces.
               (2)   Subject to subsection (3), the composition, and the
                     manner in which persons become members, of a safety
10                   and health committee for a workplace are to be
                     determined by agreement in writing between --
                       (a) the employer;
                       (b) any safety and health representative for the
                            workplace; and
15                     (c) the employees appointed under section 37 in
                            respect of the workplace.
               (3)   At least one half of the members of a safety and health
                     committee for a workplace must be persons each of
                     whom is --
20                     (a) a safety and health representative for the
                             workplace; or
                       (b) an employee who works at the workplace and
                             holds office as a member representing other
                             employees.




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          39D.      Commissioner may make determination in certain
                    cases
             (1)    This section applies if --
                     (a) a consultation party considers that discussions
5                           for the purpose of making an agreement under
                            section 39C --
                               (i) cannot commence or continue because
                                    there are no employees appointed under
                                    section 37 in respect of the workplace
10                                  concerned;
                              (ii) have not been commenced or continued
                                    in good faith by any party;
                             (iii) are being unreasonably delayed; or
                             (iv) have broken down;
15                          or
                     (b)    the employer concerned considers that for some
                            other reason it is unlikely that the employer will
                            be able to comply with section 38(1) within the
                            allowed period under that section.
20           (2)    The employer or other consultation party may refer to
                    the Commissioner for determination --
                      (a) the matters that are required to be settled by
                           agreement under section 39C; or
                      (b) any particular matter mentioned in
25                         paragraph (a) on which the parties cannot
                           agree.
             (3)    On such a referral, the Commissioner is to --
                     (a) make any necessary determination; and
                     (b) notify the employer or other party concerned of
30                         the determination.



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             39E.    Functions of committee may cover more than one
                     workplace
               (1)   If --
                       (a)   an employer --
5                               (i) is under an obligation by operation of
                                     section 38(1); or
                               (ii) wishes to take action for the purposes of
                                     section 39B,
                             in respect of more than one workplace of the
10                           employer; and
                      (b)    a safety and health committee has not been
                             established for one or more of those
                             workplaces,
                     the parties concerned may agree in writing that one
15                   safety and health committee is to be established to
                     exercise functions in relation to each of the workplaces
                     to which paragraph (b) applies.
               (2)   For the purposes of subsection (1) the parties
                     concerned are --
20                     (a) the employer;
                       (b) any safety and health representative for a
                             workplace to which subsection (1)(b) applies;
                             and
                       (c) the employees appointed under section 37 in
25                           respect of that workplace.
               (3)   An agreement under subsection (1) may provide --
                       (a)   for the establishment of a safety and health
                             committee to exercise functions in relation to
                             more than one workplace; and




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                     (b)    for that committee to have subcommittees for
                            each workplace --
                               (i) to advise the committee on the exercise
                                    of its functions in relation to that
5                                   workplace; and
                              (ii) to exercise some or all of those
                                    functions as the delegate of the
                                    committee in accordance with the terms
                                    of a delegation to it.
10           (4)    The composition of any subcommittee referred to in
                    subsection (3) is to be determined by the parties
                    referred to in subsection (2).

          39F.      Amendment of agreement and abolition of
                    committee
15           (1)    In this section --
                    "relevant parties", in respect of a workplace,
                         means --
                         (a) the employer; and
                         (b) each member for the time being of the safety
20                             and health committee for the workplace.
             (2)    Where --
                      (a)   an agreement has been made under section
                            39C(2); or
                     (b)    the matters referred to in section 39C(2) are
25                          governed by provisions consisting --
                              (i) wholly of a determination made under
                                   section 39D, whether or not it has been
                                   varied or confirmed under section 39G;
                                   or




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                              (ii)   partly of an agreement under section
                                     39C(2) and partly of a determination
                                     made under section 39D, whether or not
                                     it has been varied or confirmed under
5                                    section 39G,
                     the relevant parties may by agreement in writing made
                     between them --
                       (c) vary --
                               (i) the agreement or provisions; or
10                            (ii) if applicable, the agreement or
                                     provisions as previously varied under
                                     this subsection; and
                       (d) make any transitional provision that is
                             necessary or expedient in respect of the
15                           variation.
               (3)   Where a safety and health committee has been
                     established for a workplace, the relevant parties may by
                     agreement in writing --
                       (a) abolish the committee; and
20                     (b) make any transitional provision that is
                             necessary or expedient in respect of the
                             abolition.
               (4)   If the relevant parties cannot agree on the exercise of a
                     power referred to in subsection (2) or (3), any such
25                   party may refer to the Commissioner for determination
                     any question --
                       (a) whether the agreement or provisions concerned
                              should be varied;
                       (b) as to the manner in which the agreement or
30                            provisions should be varied; or




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                      (c)   whether a safety and health committee should
                            be abolished,
                    or as to transitional provisions that should be made in
                    respect of such a matter.
5            (5)    On such a referral, the Commissioner is to --
                     (a) make any necessary determination; and
                     (b) notify the relevant parties of the determination.

          39G.      Review of Commissioner's decision
             (1)    Where the Commissioner has made a decision under
10                  section 39A(3) in respect of a workplace --
                      (a) the employer;
                      (b) a safety and health representative for the
                            workplace; or
                      (c) an employee who works at the workplace,
15                  may refer the decision to the Tribunal for review.
             (2)    Where the Commissioner has made a determination
                    under section 39D(3) in respect of one or more
                    workplaces --
                      (a) the employer;
20                    (b) any safety and health representative for a
                           workplace concerned; or
                      (c) an employee appointed under section 37 in
                           respect of a workplace concerned,
                    may refer the determination to the Tribunal for review.
25           (3)    Where the Commissioner has made a determination
                    under section 39F(5) in respect of --
                      (a) an agreement; or




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                          (b)   a safety and health committee,
                         a relevant party, within the meaning in that section, in
                         relation to the workplace concerned may refer the
                         determination to the Tribunal for review.
5                (4)     The Tribunal may confirm, vary or revoke a decision
                         or determination of the Commissioner referred to it
                         under this section.
                                                                                    ".

     51.         Savings and transitional provisions for existing safety and
10               health committees
           (1)   The repeal of section 37 of the Occupational Safety and Health
                 Act 1984 (the "OSH Act") by section 50 does not affect the
                 status of a safety and health committee that is in existence under
                 the OSH Act immediately before that repeal.
15         (2)   Any such committee is to be taken, after the commencement of
                 section 50, to have been established under section 38 or 39B of
                 the OSH Act inserted by section 50, as the case may be.
           (3)   If before the commencement of section 50 --
                   (a)    a request was made in respect of a workplace under
20                        section 36(1) of the OSH Act repealed by section 50; but
                  (b)     a safety and health committee had not been established
                          for the workplace under section 37 of the OSH Act so
                          repealed,
                 the duty of the employer under section 37 of the OSH Act to
25               establish a safety and health committee for the workplace lapses
                 on that commencement.




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     52.             Section 40 amended
           (1)       At the beginning of section 40 the following subsection is
                     inserted --
                 "
5                    (1)   In this section --
                           "workplace", where an agreement under section 39E
                                applies to the establishment of a safety and health
                                committee, means any workplace in relation to
                                which the committee may exercise functions.
10                                                                                      ".
           (2)       Section 40 is amended by inserting before "The functions" the
                     subsection designation "(2)".

     53.             Section 41 amended
           (1)       Section 41(1) is amended by deleting "subsection (2) and to".
15         (2)       Section 41(2) is repealed.

     54.             Part VI Division 1 heading inserted
                     After the heading to Part VI the following heading is inserted --
     "
                           Division 1 -- Issue of notices by inspector
20                                                                                      ".




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     55.       Part VI Division 2 inserted
               After section 51A the following Division is inserted --
     "
             Division 2 -- Issue of provisional improvement notices
5                      by safety and health representative
             51AB.   Definition
                     In this Division --
                     "qualified representative" means a safety and health
                        representative who has completed a course of
10                      training prescribed for the purposes of this
                        definition.

             51AC. Issue of provisional improvement notices
               (1)   Subsection (2) applies where a qualified
                     representative --
15                     (a) is of the opinion that a person --
                               (i) is contravening a provision of this Act;
                                    or
                              (ii) has contravened a provision of this Act
                                    in circumstances that make it likely that
20                                  the contravention will continue or be
                                    repeated;
                            and
                       (b) has undertaken the consultations required by
                            section 51AD.
25             (2)   The qualified representative may issue to the person a
                     provisional improvement notice requiring the person to
                     remedy --
                       (a) the contravention or likely contravention; or
                       (b) the matters or activities occasioning the
30                           contravention or likely contravention.

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             (3)    A qualified representative may exercise the power
                    conferred by subsection (2) only --
                      (a) in respect of a workplace for which the
                           qualified representative was elected; or
5                     (b) if, pursuant to a scheme under section 30A, the
                           qualified representative was elected for a group
                           of employees, in respect of any workplace at
                           which any member of the group works.
             (4)    If a provisional improvement notice is issued to an
10                  employee, the employee must, as soon as is practicable,
                    give a copy of the notice to the employee's employer.

          51AD. Consultation required before issue
             (1)    In this section --
                    "consult" means consult about the matters or activities
15                       to which an intended notice will relate.
             (2)    Before issuing a provisional improvement notice a
                    qualified representative must --
                      (a) consult with the person that is to be issued with
                            the notice; and
20                   (b) if there is any other safety and health
                            representative for the workplace concerned,
                            consult with another representative for that
                            workplace so far as it is reasonably practicable
                            to do so.
25           (3)    The reference in subsection (2) to a safety and health
                    representative includes a safety and health
                    representative elected for a group of employees
                    pursuant to a scheme under section 30A if any member
                    of the group works at the workplace concerned.




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               (4)   The regulations may make provision requiring a
                     qualified representative, in specified circumstances, to
                     consult with a person who holds a prescribed office in
                     the department before issuing a provisional
5                    improvement notice.

             51AE.   Contents of notice
               (1)   A provisional improvement notice must --
                      (a) state that the qualified representative is of the
                            opinion that the person --
10                             (i) is contravening a provision of this Act;
                                    or
                              (ii) has contravened a provision of this Act
                                    in circumstances that make it likely that
                                    the contravention will continue or be
15                                  repeated;
                      (b) state reasonable grounds for the representative
                            being of that opinion;
                      (c) specify the provision of this Act in respect of
                            which the opinion is held;
20                    (d) specify the day before which the person is
                            required to remedy --
                               (i) the contravention or likely
                                    contravention; or
                              (ii) the matters or activities occasioning the
25                                  contravention or likely contravention;
                            and
                      (e) contain a brief summary of the right to have the
                            notice reviewed by an inspector under
                            section 51AH.
30             (2)   The day specified for the purposes of subsection (1)(d)
                     must be more than 7 days after the day on which the
                     notice is issued.

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          51AF.     Provisional notices may include directions
             (1)    A qualified representative may include in a provisional
                    improvement notice directions as to the measures to be
                    taken to remedy --
5                     (a) any contravention or likely contravention; or
                      (b) matters or activities,
                    to which the notice relates.
             (2)    Any direction under subsection (1) may --
                     (a) refer to any code of practice; and
10                   (b) offer the person issued with the notice a choice
                           of ways in which to effect the remedy.

          51AG. Failure to comply with notice
             (1)    A person commits an offence if the person fails to
                    comply with a provisional improvement notice issued
15                  to the person.
             (2)    Subsection (1) does not apply if the right conferred by
                    section 51AH(2) is exercised.

          51AH. Review of notice by an inspector
             (1)    In this section --
20                  "affected person" means --
                         (a) the person issued with a provisional
                               improvement notice; or
                         (b) in the case of a notice issued to an
                               employee --
25                                (i) the employee; and
                                 (ii) the employer of the employee.




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               (2)   An affected person may, in writing delivered or sent to
                     the department (a "review notice"), require that an
                     inspector review a provisional improvement notice.
               (3)   A review notice --
5                     (a) may be sent --
                               (i) by letter addressed to, and posted to a
                                    place of business of, the department;
                              (ii) by transmission to a facsimile number
                                    used by the department; or
10                           (iii) by electronic data transmission to an
                                    email address used by the department;
                            and
                      (b) must be received by the department not later
                            than the day specified in the provisional
15                          improvement notice for the purposes of
                            section 51AE(1)(d).
               (4)   The operation of the provisional improvement notice is
                     suspended by the receipt by the department of a review
                     notice in accordance with this section.
20             (5)   Where a review notice is received by the department in
                     accordance with this section, an inspector must as soon
                     as is practicable --
                       (a) attend at the workplace; and
                       (b) inquire into the circumstances relating to the
25                            notice,
                     and having done so may --
                       (c) affirm the notice;
                       (d) affirm the notice with modifications; or
                       (e) cancel the notice.




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                                                                              s. 56

             (6)    If an inspector affirms a provisional improvement
                    notice, with or without modifications, the notice as so
                    affirmed has effect as if it had been issued by the
                    inspector under section 48.
5                                                                                ".

     56.     Section 56 amended
             Section 56(1)(a) and (b) are each amended by deleting "a safety
             and health representative or".

     57.     Schedule amended
10           The Schedule is amended by inserting after item 26C the
             following item --
             "
                 26D.     The establishment of safety and health committees by
                          employers.
15                                                                               ".




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              Part 5 -- Amendments relating to inspectors
     58.           Section 42 replaced by sections 42, 42A, 42B and 42C
                   Section 42 is repealed and the following sections are inserted
                   instead --
5    "
             42.         Appointment of inspectors
                         The Commissioner, by instrument in writing, is to
                         appoint such officers of the department as the
                         Commissioner considers necessary to be inspectors for
10                       the purposes of this Act.

             42A.        Appointment of restricted inspectors
                   (1)   The Commissioner may, by instrument in writing,
                         appoint any person employed in the Public Service
                         under Part 3 of the Public Sector Management
15                       Act 1994 to be a restricted inspector for --
                           (a) the State; or
                           (b) any specified area of the State,
                         during the period specified in the instrument.
                   (2)   A person ceases to be a restricted inspector --
20                         (a)   when the period of the person's appointment
                                 expires; or
                          (b)    if the person's appointment is revoked by the
                                 Commissioner.
                   (3)   A person who ceases to be a restricted inspector must,
25                       as soon as practicable, return the certificate provided to
                         the person under section 42C to the Commissioner or
                         to any other person authorised by the Commissioner to
                         receive it.




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     42B.    Powers of restricted inspector
       (1)   A restricted inspector has, in respect of --
               (a)   the State; or
               (b)   the area of the State for which the restricted
5                    inspector is appointed,
             such of the functions of an inspector under this Act as
             are specified in the instrument of appointment.
       (2)   The performance of a function by a restricted inspector
             may be made subject to any condition or limitation.
10     (3)   To the extent provided by the instrument of
             appointment, and subject to that instrument, a restricted
             inspector is taken to be an inspector appointed under
             section 42.

     42C.    Certificate of appointment
15     (1)   Every inspector and restricted inspector is to be
             provided with a certificate of appointment signed by
             the Commissioner or an officer of the department
             authorised in that behalf by the Commissioner.
       (2)   An inspector or a restricted inspector must produce the
20           certificate to a person if --
               (a) the inspector has performed, or is about to
                      perform, any functions under this Act in
                      relation to a person; and
               (b) the person requests that the certificate be
25                    produced.
       (3)   A certificate purporting to have been provided under
             subsection (1) is, without proof of the signature of the
             person purporting to have signed it or of the person's
             authority to have signed it, evidence in a court --
30             (a) of the appointment to which the certificate
                     purports to relate; and

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                          (b)   of any other matter specified in the certificate.
                                                                                    ".

     59.         Section 43 amended
           (1)   After section 43(1)(e) the following paragraph is inserted --
5                    "
                         (ea)   provide information to any person for the
                                purpose of facilitating compliance with this
                                Act;
                                                                                    ".
10         (2)   Section 43(1)(k) is deleted and the following paragraph is
                 inserted instead --
                     "
                         (k)    in accordance with subsections (1b) and (1c),
                                interview any person who the inspector has
15                              reasonable grounds to believe --
                                   (i) is, or was at any time during the
                                        preceding 3 years --
                                            (I) an employee working at a
                                                  workplace; or
20                                         (II) an employee occupying
                                                  residential premises mentioned
                                                  in section 39G(2),
                                        in relation to which the inspector is
                                        inquiring;
25                                (ii) was at such a workplace or such
                                        residential premises at a time that is
                                        relevant to a matter about which the
                                        inspector is inquiring; or
                                 (iii) may otherwise be able to provide
30                                      information relevant to a matter about
                                        which the inspector is inquiring;
                                                                                    ".


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           (3)        After subsection (1a) the following subsections are inserted --
                 "
                     (1b)   An interview referred to in subsection (1)(k) is to be
                            conducted in private if --
5                             (a) the inspector considers that to be appropriate;
                                   or
                              (b) the person to be interviewed so requests,
                            but this subsection does not limit the operation of
                            subsection (2) or section 44.
10                   (1c)   Subsection (1b) may be invoked during an interview
                            by --
                              (a) the inspector; or
                             (b) the person being interviewed,
                            in which case that subsection applies to the remainder
15                          of the interview.
                                                                                          ".

     60.              Section 45 amended
           (1)        Section 45(1) and (2) are repealed and the following subsections
                      are inserted instead --
20               "
                      (1)   In this section --
                            "relevant" --
                                 (a) in relation to an employer, means an
                                       employer whose employees --
25                                        (i) carry out, in a workplace, work of a
                                                kind; or
                                         (ii) carry out work, or are likely to be, in
                                                an area of a workplace,
                                       that is relevant to any purpose for which an
30                                     inspector has entered the workplace; and


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                             (b)   in relation to --
                                     (i) a safety and health representative; or
                                    (ii) a safety and health committee,
                                   means a representative or committee that has
5                                  functions that are relevant to any purpose
                                   referred to in paragraph (a).
                  (2)    On entering a workplace an inspector shall, as soon as
                         is practicable, take all reasonable steps to notify any
                         relevant employer of the inspector's presence.
10               (2a)    An employer, upon being notified of the presence of an
                         inspector at a workplace shall, as soon as is practicable,
                         notify any relevant safety and health representative of
                         the presence.
                                                                                      ".
15      (2)       Section 45(3) is amended by deleting "the employer, and any
                  safety and health representative or safety and health committee
                  concerned," and inserting instead --
             "
                      any relevant employer and any relevant safety and health
20                    representative or safety and health committee
                                                                                      ".
        (3)       Section 45(4) is amended by deleting "the employer and any
                  safety and health representative concerned" and inserting
                  instead --
25                "
                      any relevant employer and any relevant safety and health
                      representative
                                                                                      ".




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                                                                             s. 61


     61.       Section 47 amended
               Section 47(2) is repealed and the following subsections are
               inserted instead --
           "
5              (2)   A person is not excused from complying with a
                     requirement under this Act to --
                       (a) answer a question;
                       (b) provide information; or
                       (c) produce a document,
10                   on the ground that to do so might tend to incriminate
                     the person or make the person liable to a penalty.
               (3)   However --
                      (a) an answer given or information provided by a
                          person when so required; or
15                    (b) the fact that a document produced by the person
                          to comply with the requirement was produced,
                     is not admissible in evidence against the person in any
                     civil or criminal proceedings other than proceedings for
                     perjury or for an offence under this Act arising out of
20                   the false or misleading nature of the answer,
                     information or document.
               (4)   Subsection (3) does not apply --
                      (a) to --
                               (i) information in a document produced in
25                                  compliance with a requirement under
                                    section 43(1)(i); or
                              (ii) the fact that such a document was
                                    produced;
                            or




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                   (b)   to --
                            (i) an answer given or information
                                provided; or
                           (ii) the fact that a document was produced,
5                        by or on behalf of a body corporate.
                                                                         ".




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              Amendments relating to the establishment of a tribunal           Part 6
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                                                                                 s. 62


     Part 6 -- Amendments relating to the establishment of
                       a tribunal
           Division 1 -- Amendments to the Occupational Safety and
                             Health Act 1984
5    62.         Long title amended
                 The long title is amended by inserting after "Safety and
                 Health," --
     "
             to provide for a tribunal for the determination of certain
10           matters and claims,
                                                                                   ".

     63.         Section 3 amended
                 Section 3(1) is amended by inserting after the definition of
                 "transferred law" the following definition --
15               "
                       "Tribunal" has the meaning given to that term in
                           section 51G(2);
                                                                                   ".

     64.         Section 51A amended
20               Section 51A(6) is repealed.

     65.         Section 51C amended
           (1)   Section 51C(1) is amended by deleting paragraph (a) and "and"
                 after that paragraph.
           (2)   Section 51C(2), (3) and (4) are repealed.

25   66.         Section 51D repealed
                 Section 51D is repealed.



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     s. 67


     67.       Part VIB inserted
               After section 51E the following Part is inserted --
     "
                     Part VIB -- Occupational Safety and
5                             Health Tribunal
           51F.       Interpretation
                      In this Part --
                      "Commission" and "Chief Commissioner" have the
                           meanings given to those terms in section 7(1) of
10                         the Industrial Relations Act 1979;
                      "matter" includes a claim under section 35C.

           51G.       Industrial Relations Commission sitting as the
                      Occupational Safety and Health Tribunal
               (1)    By this subsection the Commission has jurisdiction to
15                    hear and determine matters that may be referred for
                      determination under sections 28(2), 30(6), 30A(4),
                      31(11), 34(1), 35(3), 35C, 39G(1), (2) and (3) and
                      51A(1).
               (2)    When sitting in exercise of the jurisdiction conferred
20                    by subsection (1) the Commission is to be known as
                      the Occupational Safety and Health Tribunal (the
                      "Tribunal").
               (3)    A determination of the Tribunal on a matter mentioned
                      in subsection (1) has effect according to its substance
25                    and an order containing the determination is an
                      instrument to which section 83 of the Industrial
                      Relations Act 1979 applies.




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                                                                             s. 67


         51H.      Jurisdiction to be exercised by Commissioner with
                   requisite qualifications
             (1)   The jurisdiction conferred by section 51G in respect of
                   any matter is to be exercised --
5                    (a) by the Commissioner appointed for the
                           purposes of section 8(2a) of the Industrial
                           Relations Act 1979; or
                     (b) if that Commissioner is unable to act by reason
                           of sickness, absence or other cause --
10                            (i) by another Commissioner; or
                             (ii) an Acting Commissioner appointed
                                   under section 17 of the Industrial
                                   Relations Act 1979,
                           to whom the Chief Commissioner may allocate
15                         the matter under section 16 of that Act.
             (2)   In allocating a matter for the purposes of
                   subsection (1)(b) the Chief Commissioner is to have
                   regard to the desirability of the Commissioner
                   concerned having relevant knowledge in the field of
20                 occupational safety and health.
             (3)   A Commissioner to whom a matter has been allocated
                   under subsection (1)(b) may continue and complete the
                   hearing and determination of part-heard proceedings
                   after the Commissioner referred to in subsection (1)(a)
25                 has resumed his or her duties.

         51I.      Practice, procedure and appeals
             (1)   The provisions of sections 22B, 26(1), (2) and (3), 27,
                   28, 31(1), (2), (3), (5) and (6), 33, 34(1), (3) and (4), 36
                   and 49 of the Industrial Relations Act 1979 that apply
30                 to and in relation to the exercise of the jurisdiction of
                   the Commission constituted by a Commissioner apply



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     s. 67


                     to the exercise of the jurisdiction conferred by
                     section 51G --
                       (a) with such modifications as are prescribed under
                             section 113 of that Act; and
5                      (b) with such other modifications as may be
                             necessary or appropriate.
               (2)   For the purposes of subsection (1), section 31(1) of the
                     Industrial Relations Act 1979 applies as if
                     paragraph (c) were deleted and the following paragraph
10                   were inserted instead --
                     " (c) by a legal practitioner. ".

          51J.       Conciliation
               (1)   This section applies where a matter has been referred to
                     the Tribunal for determination under section 28(2),
15                   30(6), 30A(4), 31(11), 35(3) or 39G.
               (2)   If the Tribunal considers that the issues involved may
                     be resolved by conciliation --
                       (a) the Tribunal may endeavour to assist the parties
                             to reach an agreement on those issues; and
20                     (b) for that purpose the Tribunal may --
                                (i) arrange conferences of the parties or
                                     their representatives presided over by
                                     the Tribunal;
                               (ii) arrange for the parties or their
25                                   representatives to confer among
                                     themselves at a conference at which the
                                     Tribunal is not present; and
                              (iii) otherwise encourage the parties to
                                     exchange or divulge attitudes or
30                                   information that in the opinion of the
                                     Tribunal would assist in the resolution
                                     of the issues.


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                                                                             s. 67


             (3)   The Tribunal may give any direction or make any order
                   or declaration that the Tribunal thinks expedient for the
                   purposes of this section, and any such direction, order
                   or declaration is enforceable as if it were given or made
5                  under section 32 of the Industrial Relations Act 1979.
             (4)   If the Tribunal gives or makes a direction, order or
                   declaration under subsection (3) the Tribunal must --
                     (a) if it is given or made orally, reduce the
                           direction, order or declaration to writing as
10                         soon as is practicable; and
                     (b) make the text of the direction, order or
                           declaration available to the parties as soon as is
                           practicable after it is given or made.
             (5)   If the Tribunal --
15                   (a) takes action under subsection (2)(a); and
                     (b) is satisfied that the parties have reached
                           agreement on all of the issues involved,
                   the Tribunal may, with the consent of the parties, make
                   a determination for the purposes of section 51G in
20                 terms of that agreement.
             (6)   If the Tribunal --
                     (a)   takes action under subsection (2)(a); and
                     (b)   subsection (5)(b) does not apply,
                   the Tribunal is to determine the matter for the purposes
25                 of section 51G.
             (7)   In making a determination mentioned in subsection (6)
                   the Tribunal is to endeavour to ensure that the matter is
                   resolved --
                     (a) taking into account any agreement reached by
30                         the parties on any particular issue; and



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     s. 67


                      (b)    subject to paragraph (a), on terms that could
                             reasonably have been agreed between the
                             parties in the first instance or by conciliation.

          51K.       Certain matters to be heard together
5              (1)   The section applies if --
                      (a) under the Industrial Relations Act 1979, an
                            employee has referred to the Commission a
                            claim that the employee has been harshly,
                            oppressively or unfairly dismissed from
10                          employment; and
                      (b) a matter --
                               (i) involving the same employer and
                                    employee; and
                              (ii) arising out of the same circumstances,
15                          has been referred for determination under the
                            jurisdiction conferred by section 51G.
               (2)   An employee referred to in subsection (1) may in
                     writing request that a matter referred to in
                     subsection (1)(a) be heard and determined by the
20                   Commissioner who is hearing and determining the
                     matter referred to in subsection (1)(b).
               (3)   If such a request is made, the Chief Commissioner, in
                     exercising the powers conferred by section 16 of the
                     Industrial Relations Act 1979, is to allocate the hearing
25                   and determination of the matter accordingly.
               (4)   If --
                       (a)   an employee has referred to the Commission
                             a claim of the kind described in
                             section 29(1)(b)(ii) of the Industrial Relations
30                           Act 1979; and
                      (b)    the claim involves the same employer and
                             arises out of the same circumstances as a matter

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                                                                              s. 68


                               that has been referred for determination under
                               the jurisdiction conferred by section 51G,
                       nothing in this section prevents the Chief
                       Commissioner exercising the powers conferred by
5                      section 16 of that Act so that the claim is heard and
                       determined by the Commissioner who is hearing and
                       determining the matter referred to in paragraph (b).
                                                                                ".

     68.         Section 54B amended
10               Section 54B(2), (3) and (4) are repealed.

     69.         Various references to a safety and health magistrate
                 amended
           (1)   Each provision specified in the Table to this subsection is
                 amended by deleting "a safety and health magistrate" and
15               inserting instead --
                 " the Tribunal ".
                                              Table
                           s. 28(2)                   s. 34(3)
                           s. 30(6)                   s. 34(4)
                           s. 31(11)                  s. 35(3)
                           s. 34(1)                   s. 51A(1)
           (2)   Each provision specified in the Table to this subsection is
                 amended by deleting "the safety and health magistrate" and
20               inserting instead --
                 " the Tribunal ".
                                              Table
                           s. 34(3) and (4)           s. 51A(5)
                           s. 35(3)                   s. 51A(7)



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     s. 70


           (3)        Section 51A(4) is amended by deleting "A safety and health
                      magistrate" and inserting instead --
                      "     The Tribunal ".
           (4)        The Schedule is amended by deleting item 26B.

5     Division 2 -- Amendments to the Industrial Relations Act 1979
     70.              The Industrial Relations Act 1979 amended
           (1)        The amendments in this section are to the Industrial Relations
                      Act 1979*.
                      [* Reprinted as at 8 November 2002.
10                       For subsequent amendments see Western Australian
                         Legislation Information Tables for 2003, Table 1, p. 187.]
           (2)        Section 7(3) is repealed and the following subsection is inserted
                      instead --
                 "
15                    (3)    A matter that has been referred under a provision of the
                             Occupational Safety and Health Act 1984 to the
                             Tribunal provided for by section 51G of that Act is not
                             an industrial matter.
                                                                                        ".
20         (3)        After section 8(2) the following subsection is inserted --
                 "
                     (2a)    For the purposes of section 51H of the Occupational
                             Safety and Health Act 1984, one Commissioner
                             appointed under subsection (2)(d) is to be a person
25                           who, in addition to the other attributes required for
                             appointment, has --
                               (a) knowledge of or experience in the field of
                                     occupational safety and health; and
                               (b) knowledge of that Act,



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                                                Transitional provisions      Division 3
                                                                                    s. 71


                         but the function given by section 51H(1) of that Act to
                         the Commissioner so appointed does not preclude that
                         Commissioner from otherwise performing the
                         functions of a Commissioner under this Act.
5                                                                                     ".
           (4)    Section 113(1)(d) is deleted and the following paragraph is
                  inserted instead --
                       "
                            (d)   without limiting paragraph (c), regulating the
10                                practice and procedure to be followed in
                                  relation to --
                                    (i) appeals under section 33P of the Police
                                          Act 1892; and
                                   (ii) the referral, hearing and determination
15                                        of matters under the Occupational
                                          Safety and Health Act 1984;
                                                                                      ".

                           Division 3 -- Transitional provisions
     71.          Existing referrals to safety and health magistrate
20         (1)    A matter referred to a safety and health magistrate under the
                  Occupational Safety and Health Act 1984 and not finally
                  determined before the commencement of section 65 --
                    (a) may continue to be dealt with; and
                    (b) any order made in such a proceeding may be appealed
25                       against or enforced,
                  as if that section and section 68 had not been enacted.




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     s. 72


           (2)   A determination or decision of a safety and health magistrate
                 made before the commencement of section 65 may be the
                 subject of --
                   (a) an application for leave to appeal under section 54B(2)
5                        of the Occupational Safety and Health Act 1984
                         repealed by section 68; and
                   (b) an appeal for which leave is granted under
                         section 54B(2),
                 as if section 68 had not been enacted.

10   72.         Appeal proceedings in progress
           (1)   An application for leave to appeal made under section 54B(2) of
                 the Occupational Safety and Health Act 1984 but not finally
                 determined before the commencement of section 68, and an
                 appeal for which leave is granted on such an application, may
15               be dealt with and determined as if that section had not been
                 enacted.
           (2)   An appeal brought under section 54B(2) of the Occupational
                 Safety and Health Act 1984 but not finally determined before
                 the commencement of section 68, may be dealt with and
20               determined as if that section had not been enacted.




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                                                                                  s. 73


     Part 7 -- Amendments to make expressions in the Act
                     gender neutral
     73.         Section 3 amended
                 Section 3 is amended in the definition of "employer" as follows:
5                  (a) in paragraph (a), by deleting "by whom an employee is
                        employed" and inserting instead --
                        " that employs an employee ";
                  (b) in paragraph (b), by deleting "by whom the apprentice
                        or industrial trainee is employed" and inserting
10                      instead --
                        " that employs the apprentice or trainee ".

     74.         Section 4 amended
           (1)   Section 4(4) is amended by deleting "on whom a duty under this
                 Act would devolve" and inserting instead --
15               " that would be subject to a duty under this Act        ".
           (2)   Section 4(5) is amended as follows:
                     (a)    by deleting "on whom a copy of the relevant instrument
                            was served under subsection (4), in relation to whom a
                            provision of or under this Act applies by reason of
20                          subsection (4)" and inserting instead --
                 "
                           served with the instrument under subsection (4), that is
                           subject to a provision of or under this Act by reason of
                           that subsection
25                                                                                 ";
                     (b)    by deleting "he proves that he" and inserting instead --
                           " the person proves that the person ";




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                     (c)   by deleting "of the application in relation to him of the
                           provision" and inserting instead --
                           " that the provision so applied ".

     75.         Section 8 amended
5                Section 8(1) is amended by deleting "his".

     76.         Section 9 amended
           (1)   Section 9(2) is amended by deleting "his appointment and on
                 the expiration of his" and inserting instead --
                 "    appointment and on the expiration of the     ".
10         (2)   Section 9(4) is amended by deleting "he shall notwithstanding
                 that appointment retain his existing and accruing rights on his"
                 and inserting instead --
             "
                     the person shall despite that appointment retain all existing
15                   and accruing rights on
                                                                                       ".
           (3)   Section 9(5) is amended as follows:
                     (a)   by deleting "he is entitled upon resigning his" and
                           inserting instead --
20                         " the person is entitled upon resigning his or her ";
                     (b)   by deleting "he so occupied immediately before his" and
                           inserting instead --
                           " the person so occupied immediately before ".




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                                                                                 s. 77


     77.          Section 10 replaced
                  Section 10 is repealed and the following section is inserted
                  instead --
     "
5           10.         Vacation of office
                        A person's office as Commissioner or as an appointed
                        member becomes vacant if --
                         (a) the person's term of office expires; or
                         (b) the person --
10                                (i) dies;
                                 (ii) becomes permanently incapable of
                                       performing the duties of the office;
                                (iii) resigns from office by written notice
                                       addressed to the Minister;
15                              (iv) is an undischarged bankrupt or a person
                                       whose property is subject to an order or
                                       arrangement under the laws relating to
                                       bankruptcy;
                                 (v) is removed from office by the Governor
20                                     on the grounds of neglect of duty,
                                       incompetence or the person's behaviour;
                                       or
                                (vi) is absent without leave of the Minister
                                       from 3 consecutive meetings of the
25                                     Commission;
                               or
                         (c) being a member appointed under
                               section 6(2)(d)(i), (ii) or (iv), the person's
                               nomination is revoked.
30                                                                                 ".




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     s. 78


     78.         Section 19 amended
                 Section 19(1) is amended as follows:
                  (a)       by deleting "his employees" in the first place where it
                            occurs and inserting instead --
5                           " the employees of the employer (the "employees") ";
                  (b)       by deleting "his" in each place where it occurs and
                            inserting instead --
                            " the ".

     79.         Section 20 amended
10         (1)   Section 20(2) is amended as follows:
                  (a) by deleting "if he" and inserting instead --
                        " if the employee ";
                  (b) by deleting paragraph (a) and inserting instead --
                        "
15                          (a)       fails to comply, so far as the employee is
                                      reasonably able, with instructions given by the
                                      employee's employer for the safety or health of
                                      the employee or for the safety or health of other
                                      persons;
20                                                                                        ";
                  (c)       in paragraph (d), by deleting "his employer" and
                            inserting instead --
                            " the employee's employer ";
                  (d)       by deleting subparagraph (d)(i) and "or" after it and
25                          inserting instead --
                                  "
                                        (i)   any situation at the workplace that the
                                              employee has reason to believe could
                                              constitute a hazard to any person that
30                                            the employee cannot correct; or
                                                                                          ".


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                                                                                    s. 80


           (2)       Section 20(3) is repealed and the following subsection is
                     inserted instead --
                 "
                     (3)     An employee shall cooperate with the employee's
5                            employer in the carrying out by the employer of the
                             obligations imposed on the employer under this Act.
                                                                                       ".

     80.             Section 22 amended
                     Section 22(1) is amended by deleting "who" in the first place
10                   where it occurs and inserting instead --
                     " that      ".

     81.             Section 23 amended
                     Section 23(1), (2) and (3a) are each amended by deleting "who"
                     in the first place where it occurs and inserting instead --
15                   " that      ".

     82.             Section 24 amended
                     Section 24(4) is repealed and the following subsection is
                     inserted instead --
                 "
20                   (4)     If a person contravenes subsection (1) or (3), the
                             person commits an offence.
                                                                                       ".

     83.             Section 27 amended
                     Section 27 is amended by deleting "until he" and inserting
25                   instead --
                     "     until the employee   ".




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     s. 84


     84.         Section 28 amended
                 Section 28(1) is amended by deleting "if he" and inserting
                 instead --
                 "     if the employee       ".

5    85.         Section 30 amended
                 Section 30(7) is repealed and the following subsection is
                 inserted instead --
             "
                 (7)       If an employer contravenes subsection (1) or (3a), the
10                         employer commits an offence.
                                                                                      ".

     86.         Section 32 amended
                 Section 32(2) is amended as follows:
                     (a)       by deleting paragraph (a) and inserting instead --
15                         "
                               (a)   the person's term of office expires and the
                                     person is not re-elected;
                                                                                      ";
                     (b)       by deleting paragraph (c) and inserting instead --
20                         "
                               (c)   the person resigns from office by notice given
                                     to the employer;
                                                                                      ".

     87.         Section 33 amended
25               Section 33(1)(c) is amended by inserting after "himself " --
                 " or herself          ".




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                                                                               s. 88


     88.         Section 34 amended
           (1)   Section 34(1)(a) is amended by deleting "his employer or a
                 commercial or business undertaking of his employer" and
                 inserting instead --
5                        "
                               the representative's employer or a commercial
                               or business undertaking of the employer
                                                                                 ".
           (2)   Section 34(1)(b) is amended as follows:
10                (a) by deleting "his employer" in the first place where it
                        occurs and inserting instead --
                        " the representative's employer ";
                  (b) by deleting "his employer" in the second and third
                        places where it occurs and inserting instead --
15                      " the employer ".

     89.         Section 35 amended
                 Section 35 is amended as follows:
                   (a) in subsection (1)(b) by deleting "his" and inserting
                        instead --
20                      " the employer's ";
                  (b) in subsection (2)(a)(i) by deleting "him" and inserting
                        instead --
                        " the employer ";
                   (c) by repealing subsection (4) and inserting instead --
25                   "
                         (4)   If an employer contravenes subsection (1) or
                               (2), the employer commits an offence.
                                                                                 ".




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     s. 90


     90.             Section 40 amended
                     Section 40(a) is amended by deleting "his employees" and
                     inserting instead --
                     " the employees of the employer       ".

5    91.             Section 43 amended
                     Section 43(1)(l) is amended by deleting "he interviews" and
                     inserting instead --
                     " the inspector interviews ".

     92.             Section 45 amended
10                   Section 45(5) is repealed and the following subsection is
                     inserted instead --
                 "
                     (5)     If an employer contravenes subsection (2a), the
                             employer commits an offence.
15                                                                                 ".

     93.             Section 47 amended
                     Section 47(1) is amended as follows:
                       (a) by deleting "A person who" and inserting instead --
                            " If a person ";
20                    (b) by inserting immediately before "commits an
                            offence" --
                            " the person ".

     94.             Section 48 amended
           (1)       Section 48(3) is amended by deleting "to whom an
25                   improvement notice is issued" and inserting instead --
                     "     issued with an improvement notice    ".




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                                                                                     s. 95


           (2)       Section 48(4) is repealed and the following subsection is
                     inserted instead --
                 "
                     (4)     Subject to sections 51 and 51A, if a person --
5                             (a) is issued with an improvement notice; and
                              (b) does not comply with the notice within the time
                                    specified in it,
                             the person commits an offence.
                                                                                       ".
10         (3)       Section 48(5) is amended by deleting "to whom an
                     improvement notice is issued" and inserting instead --
                     "     issued with an improvement notice     ".
           (4)       Section 48(6) is repealed and the following subsection is
                     inserted instead --
15               "
                     (6)     If a person contravenes subsection (3), (3a), (3c) or
                             (3d), the person commits an offence.
                                                                                       ".

     95.             Section 49 amended
20         (1)       Section 49(1) is amended by deleting "who" in both places
                     where it appears and inserting instead --
                     " that      ".
           (2)       Section 49(5) and (6) are repealed and the following subsections
                     are inserted instead --
25               "
                     (5)     Subject to sections 51 and 51A, if a person issued with
                             a prohibition notice does not comply with the notice,
                             the person commits an offence.
                     (6)     If a person contravenes subsection (4), (4a), (4b) or
30                           (4c), the person commits an offence.
                                                                                       ".

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     s. 96


     96.        Section 50 amended
                Section 50(2)(b) is amended by deleting "to whom it is issued"
                and inserting instead --
                "    issued with the notice       ".

5    97.        Section 51 amended
                Section 51(1)(a) and (b) are deleted and the following
                paragraphs are inserted instead --
                          "
                              (a)   the person issued with the notice; or
10                            (b)   the employer (if any) of the person issued with
                                    the notice.
                                                                                      ".

     98.        Section 51A amended
                Section 51A(1) is amended by deleting "to whom notice of a
15              decision is issued" and inserting instead --
                "    issued with notice of a decision ".

     99.        Section 56 amended
                Section 56(1) is amended as follows:
                  (a) by deleting "An employer or prospective employer who
20                     in any way treats an employee or prospective employee
                       less favourably than he otherwise would" and inserting
                       instead --
                "
                          If an employer or prospective employer in any way
25                        treats an employee or prospective employee less
                          favourably than would otherwise be the case
                                                                                      ";
                    (b)       by inserting immediately before "commits" --
                              " the employer or prospective employer ".


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                                                                              s. 100


     100.    Section 57 amended
       (1)   Section 57(1) is amended by deleting "on whom a duty is
             imposed" and inserting instead --
             " that are subject to a duty    ".
5      (2)   Section 57(7) is amended by deleting "he" and inserting
             instead --
             " the person ".

     101.    Schedule amended
             The Schedule is amended as follows:
10            (a) in item 9(a) by deleting "his employees" and inserting
                    instead --
                    " the employees of the employer, ";
              (b) in item 9(b) by deleting "his" and inserting instead --
                    " the employer, ";
15            (c) in items 16 and 25 by deleting "his employees" and
                    inserting instead --
                    " the employees of the employer ".

     102.    Feminine pronoun inserted in various provisions
       (1)   Each provision specified in the Table to this subsection is
20           amended by inserting after "he" --
             " or she      ".
                                         Table
               s. 12                             s. 33(1)(e)
               s. 13(3)                          s. 34(1)(a), (b) and (c)
               s. 20(2)(b) and (d)(ii)           s. 43(1)(c) and (d)
               s. 25(2)(a)                       s. 44
               s. 26(1)                          s. 45(3) (2 places)
               s. 28(1)                          s. 45(4) and (4)(a)


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     s. 103


                  s. 31(11)                      s. 46(1) (2 places)
                  s. 32(2)(d)                    s. 55(1) and (2)
                  s. 33(1)                       s. 56(2)
                  s. 33(1)(a)(ii)
        (2)     Each provision specified in the Table to this subsection is
                amended by inserting after "his" --
                " or her          ".
                                         Table
                  s. 9(6)                        s. 34(2)(a)
                  s. 18(4)                       s. 34(4)(b)
                  s. 20(1), (2)(b) and (d)(ii)   s. 35(3)(a) and (b)
                  s. 26(1) and (2)               s. 43(1)(b), (m), (n) and (o)
                  s. 27                          s. 43(2) (2 places)
                  s. 28(1)                       s. 44
                  s. 33(1)(c), (d) and (f)       s. 47(1)(b) (2 places)
                  s. 33(3) (2 places)            s. 55(2)
                                 nd      rd
                  s. 34(1)(b) (2 and 3 places)   s. 61(2)
                     and (c)
5       (3)     Each provision specified in the Table to this subsection is
                amended by inserting after "him" --
                " or her          ".
                                         Table
                  s. 16(2)                       s. 34(3)
                  s. 18(4)                       s. 43(1)(c), (l) and (o)
                  s. 26(1)                       s. 61(1)(e)

     103.       Relative pronoun replaced
10              Each provision specified in the Table to this section is amended
                by deleting "who" and inserting instead --
                " that       ".


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Amendments to make expressions in the Act gender neutral           Part 7

                                                                   s. 103


                               Table
        s. 6(6)                        s. 28A(3)
        s. 22(2)                       s. 51(6) (2 places)
        s. 23(3)                       s. 54A(2)




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     Part 8           Miscellaneous amendments

     s. 104


                   Part 8 -- Miscellaneous amendments
     104.       Section 3 amended
        (1)     Section 3(1) is amended by inserting in the appropriate
                alphabetical positions --
5               "
                      "Australian Standard" means a document having that
                          title published by Standards Australia International
                          Limited (ACN 087 326 690);
                      "Australian/New Zealand Standard" means a
10                        document having that title published jointly by --
                          (a) Standards Australia International Limited
                                 (ACN 087 326 690); and
                          (b) the Standards Council of New Zealand;
                      "import" means to bring into the State, whether from
15                        outside Australia or otherwise;
                      "trainee" means a person belonging to a class of
                          persons defined by the regulations as trainees for
                          the purposes of this Act;
                                                                                 ".
20      (2)     Section 3(1) is amended by deleting the definition of
                "apprentice" and inserting instead --
                "
                      "apprentice" --
                          (a) means an apprentice under the Industrial
25                               Training Act 1975; or
                          (b) if Part 7 of the Vocational Education and
                                 Training Act 1996 comes into operation,
                                 means a person who, as an employee, has
                                 entered into an apprenticeship within the
30                               meaning of that term in section 58 of that
                                 Act;
                                                                                 ".


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                                                                         s. 104


     (3)   Section 3(1) is amended in the definition of "employee", in
           paragraph (b), by deleting "industrial".
     (4)   Section 3(1) is amended in the definition of "employer", in
           paragraph (b) as follows:
5            (a) by deleting ", or industrial trainee" and inserting
                  instead --
                  " or trainee ";
             (b) by deleting "industrial training agreement" and inserting
                  instead --
10                     "
                             traineeship scheme under the Industrial
                             Training Act 1975
                                                                             ".
     (5)   Section 3(1) is amended by deleting the definition of "industrial
15         trainee".
     (6)   Section 3(1) is amended in the definition of "inspector" by
           deleting "Part V" and inserting instead --
               "
                       section 42, and subject to section 42B(3), includes
20                     a restricted inspector appointed under section 42A
                                                                             ".
     (7)   Section 3(1) is amended by deleting the definition of
           "self-employed person" and inserting instead --
           "
25                 "self-employed person" means an individual who
                        works for gain or reward otherwise than --
                        (a) under a contract of employment; or
                        (b) as an apprentice or trainee,
                        whether or not the individual is an employer;
30                                                                           ".



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     s. 105


        (8)     Section 3(1) is amended by deleting the definition of "supply"
                and inserting instead --
                "
                     "supply", in relation to any plant or substance,
5                        includes supply and re-supply by way of --
                         (a) sale (including by auction), exchange, lease,
                               hire, or hire-purchase, whether as principal
                               or agent;
                         (b) the disposal in a manner referred to in
10                             paragraph (a) of assets of a business that
                               include any plant or substance; and
                         (c) the disposal of all of the shares in a company
                               that owns any plant or substance;
                                                                                  ".

15   105.       Section 6 amended
        (1)     Section 6 is amended by deleting subsection (2)(c) and "and"
                after it and inserting instead --
                    "
                        (c)   2 persons employed in the Public Service under
20                            Part 3 of the Public Sector Management
                              Act 1994, of whom --
                                (i) one shall be nominated by the Minister;
                                      and
                               (ii) the other shall be an officer of the
25                                    department, as defined in section 4(1) of
                                      the Mines Safety and Inspection
                                      Act 1994, nominated by the Minister to
                                      whom the administration of that Act is
                                      committed;
30                            and
                                                                                  ".




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                                                                             s. 105


     (2)   Section 6(2)(d) is amended as follows:
            (a) in subparagraph (i) by deleting "3" and inserting
                  instead --
                  " 2 ";
5           (b) in subparagraph (ii) by inserting after "persons" --
                               "
                                      , of whom one shall be a person who has
                                      knowledge of and experience in the
                                      mining industry in the State,
10                                                                              ";
            (c)        by deleting "and" after subparagraph (ii);
            (d)        in subparagraph (iii) by deleting the full stop and
                       inserting instead --
                       " ; and ";
15          (e)        by inserting after subparagraph (iii) the following
                       subparagraph --
                           "
                               (iv)   one shall be a person nominated by the
                                      Chamber of Minerals and Energy of
20                                    Western Australia Inc.
                                                                                ".
     (3)   Section 6(3) is amended as follows:
            (a) by deleting "or (ii)" in both places where it occurs and
                  inserting instead --
25                " , (ii) or (iv) ";
            (b) by deleting "considered suitable" and inserting
                  instead --
                   "     who is suitably qualified,   ".




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     Occupational Safety and Health Legislation Amendment and
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     s. 106


     106.       Section 14A inserted
                After section 14 the following section is inserted --
     "
              14A.    Mining Industry Advisory Committee
5               (1)   In this section --
                      "committee" means the committee referred to in
                           subsection (2);
                      "mining industry" means the mining industry in the
                           State;
10                    "Ministers" means --
                           (a) the Minister to whom the administration of
                                  this Act is committed; and
                           (b) the Minister to whom the administration of
                                  the Mines Safety and Inspection Act 1994 is
15                                committed (the "Minister for Mines"),
                           acting jointly.
                (2)   There is to be an advisory committee called the Mining
                      Industry Advisory Committee.
                (3)   The functions of the committee are --
20                     (a) to advise and make recommendations to the
                             Ministers and the Commission on occupational
                             safety and health matters concerning the mining
                             industry; and
                       (b) to liaise with the Commission to coordinate
25                           activities on related functions and to maintain
                             parallel standards,
                      and in particular, but without limiting the generality of
                      paragraphs (a) and (b) --
                        (c) to inquire into and report to the Ministers
30                            regarding any matter referred to it by the
                              Ministers relating to occupational safety and
                              health in the mining industry;

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                                                                   s. 106


             (d)    to make recommendations to the Minister for
                    Mines regarding the formulation, amendment,
                    or repeal of laws relating to occupational safety
                    and health for which that Minister is
5                   responsible;
             (e)    to prepare or recommend the adoption of codes
                    of practice, guidelines, standards, specifications
                    or other forms of guidance for the purpose of
                    assisting employers, self-employed persons,
10                  employees, manufacturers or other persons to
                    maintain appropriate standards of occupational
                    safety and health in the mining industry; and
              (f)   to provide advice on --
                       (i) education and publications; and
15                    (ii) training and training courses,
                    with respect to occupational safety and health
                    in the mining industry.
     (4)   The chairperson of the committee is to be the member
           of the Commission nominated under section 6(2)(c)(ii).
20   (5)   Subject to subsection (4), the Ministers --
            (a) are to appoint the members of; and
            (b) may alter or reconstitute,
           the committee.
     (6)   The members of the committee are entitled to be paid
25         such remuneration and travelling and other allowances
           as may be determined by the Ministers on the
           recommendation of the Minister for Public Sector
           Management.
     (7)   Subject to any direction given to it by the Commission,
30         the committee is to determine its own procedures.
                                                                         ".



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     s. 107


     107.          Section 48 amended
        (1)        Section 48(3c) is repealed and the following subsection is
                   inserted instead --
              "
5                 (3c)   If an improvement notice is issued --
                           (a) to a self-employed person in respect of a
                                 contravention of section 21; or
                           (b) to a body corporate to which section 21B
                                 applies in respect of a contravention of that
10                               section,
                         the person or body shall comply with subsection (3)
                         and (3d) as if the person or body were an employer.
                                                                                  ".
        (2)        After section 48(3c) the following subsection is inserted --
15            "
                  (3d)   If an improvement notice is modified by the
                         Commissioner under section 51(5)(b), the employer
                         shall cause a copy of the Commissioner's decision to
                         be displayed with the improvement notice, or a copy of
20                       it, as required by subsection (3).
                                                                                  ".

     108.          Section 49 amended
        (1)        Section 49(4b) is repealed and the following subsection is
                   inserted instead --
25            "
                  (4b)   If a prohibition notice is issued --
                           (a) to a self-employed person in respect of a
                                 contravention of section 21; or
                           (b) to a body corporate to which section 21B
30                               applies in respect of a contravention of that
                                 section,


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                                                                                 s. 109


                          the person or body shall comply with subsection (4)
                          and (4c) as if the person or body were an employer.
                                                                                       ".
         (2)        After section 49(4b) the following subsection is inserted --
5              "
                   (4c)   If a prohibition notice is modified by the
                          Commissioner under section 51(5)(b), the employer
                          shall cause a copy of the Commissioner's decision to
                          be displayed with the prohibition notice, or a copy of it,
10                        as required by subsection (4).
                                                                                       ".

     109.           Section 50A inserted
                    After section 50 the following section is inserted --
     "
15          50A.          Notices may be issued to the Crown
                    (1)   An improvement notice and a provisional improvement
                          notice may be issued in respect of a contravention of
                          this Act by the Crown in any of its capacities.
                    (2)   A prohibition notice may be issued in respect of an
20                        activity of or controlled by the Crown in any of its
                          capacities.
                    (3)   If the contravention or activity relates to a body
                          corporate that is an agent of the Crown, the notice is to
                          be issued to the body corporate.
25                  (4)   In the case of any other contravention or activity that
                          relates to the Crown, the notice --
                            (a) is to be issued to the Crown under the title
                                   "State of Western Australia"; and
                            (b) is to show the name of the responsible agency
30                                 under Part VII Division 2 that would be
                                   specified in a charge for an offence in respect
                                   of that contravention or activity.

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     s. 110


                (5)   It is sufficient for the purposes of subsection (3) or (4)
                      if the notice --
                         (a) is delivered to a person at the workplace
                               concerned who has, or reasonably appears to
5                              have, responsibility for the management or
                               control of the workplace; or
                         (b) is sent by pre-paid letter addressed and posted
                               to the body corporate or responsible agency
                               concerned at its principal place of business in
10                             the State.
                (6)   If a notice is delivered to a person as mentioned in
                      subsection (5)(a) the person must, as soon as is
                      practicable, give a copy of the notice to the executive
                      who is responsible for the day to day administration of
15                    the body corporate or responsible agency concerned.
                                                                                   ".

     110.       Section 51AA inserted
                After section 51 the following section is inserted --
     "
20            51AA. Further power of Commissioner to cancel notice
                (1)   The Commissioner, on his or her own initiative, may
                      cancel an improvement notice or a prohibition notice
                      by giving notice in writing of the cancellation, and the
                      reasons for it --
25                      (a) to the person issued with the notice; and
                        (b) if that person is an employee, to the employee's
                              employer.
                (2)   The power conferred by subsection (1) is not to be
                      exercised in respect of a notice --
30                      (a) during a period when a referral of the notice
                              under section 51 is awaiting a determination of
                              the Commissioner under that section; or


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                                                                                  s. 111


                             (b)   after a decision in respect of the notice has been
                                   referred to the Tribunal under section 51A,
                         but may be exercised at any other time and whether or
                         not the notice has been affirmed under section 51(5)(a)
5                        or (b).
                                                                                        ".

     111.        Section 53 amended
       (1)       Section 53 is amended by inserting before "In proceedings" the
                 subsection designation "(1)".
10     (2)       Section 53(b) is amended by deleting "of persons at a particular
                 workplace".
       (3)       After section 53(b) the following paragraphs are inserted --
                        "
                            (ba)   a particular person was an employer of
15                                 particular persons;
                            (bb)   a particular person was an employer at a
                                   particular workplace;
                                                                                        ".
       (4)       Section 53(f) is amended by deleting "inspector," and inserting
20               instead --
                 "     inspector or a restricted inspector under section 42A,     ".
       (5)       At the end of section 53 the following subsections are
                 inserted --
             "
25               (2)     The person commencing a prosecution for an offence
                         against this Act is taken to be authorised under
                         section 52(1) to commence the prosecution, in the
                         absence of evidence to the contrary.




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     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 8           Miscellaneous amendments

     s. 112


                (3)   In proceedings for an offence against this Act,
                      production of a copy of --
                        (a) a code of practice;
                        (b) an Australian Standard; or
5                       (c) an Australian/New Zealand Standard,
                      purporting to be certified by the Commissioner to be a
                      true copy as at any date or during any period is,
                      without proof of the signature of the Commissioner,
                      sufficient evidence of the contents of the code of
10                    practice or Standard as at that date or during that
                      period.
                                                                               ".

     112.       Section 56 amended
                Section 56(1)(d) is deleted and the following paragraph is
15              inserted instead --
                      "
                          (d)   makes or has made a complaint in relation to
                                safety or health to --
                                   (i) the Commissioner;
20                                (ii) an inspector;
                                 (iii) a person who is or was his or her
                                        employer or fellow employee;
                                 (iv) a safety and health representative; or
                                  (v) a member of a safety and health
25                                      committee,
                                                                               ".




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                    Occupational Safety and Health Legislation Amendment and
                                                               Repeal Bill 2004
                                     Miscellaneous amendments            Part 8

                                                                           s. 113


     113.     Section 57A inserted
                    After section 57 the following section is inserted --
     "
            57A.    Visitors to comply with directions
5             (1)   In this section --
                    "authorised person", in relation to a workplace,
                         means --
                         (a) an employer of any employee at the
                               workplace, including a person that is an
10                             employer by operation of section 23D, 23E
                               or 23F;
                         (b) any self-employed person carrying out work
                               at the workplace; and
                         (c) a person at the workplace who has the
15                             management and control of --
                                  (i) the workplace; or
                                 (ii) the work being carried out at the
                                       workplace;
                    "conduct" includes a failure to do a particular act or
20                       thing;
                    "employee" includes a person who is an employee by
                         operation of section 23D, 23E or 23F.
              (2)   Subsection (3) applies if --
                     (a) a person (a "visitor") is at a workplace
25                         otherwise than in the capacity of --
                              (i) an employer;
                             (ii) an employee;
                            (iii) a self-employed person; or
                            (iv) a person having control, to any extent,
30                                 of the workplace;
                           and

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     Occupational Safety and Health Legislation Amendment and
     Repeal Bill 2004
     Part 8           Miscellaneous amendments

     s. 114


                         (b)    an authorised person believes on reasonable
                                grounds that --
                                  (i) any conduct of the visitor at the
                                        workplace; or
5                                (ii) the presence of the visitor in the
                                        workplace or in a particular part of the
                                        workplace,
                                constitutes a hazard to any person.
                  (3)   The authorised person may direct the visitor --
10                       (a) to immediately cease engaging in the conduct
                               concerned; or
                         (b) to immediately leave the workplace and not to
                               return as a visitor to the workplace until
                               permitted by the authorised person to do so.
15                (4)   A person who, without reasonable excuse, fails to
                        comply with a direction given to the person under
                        subsection (3) commits an offence.
                                                                                       ".

     114.         Schedule amended
20                The Schedule is amended as follows:
                   (a) by inserting after item 1 the following item --
              "
                  1A.   The imposition of duties on persons in relation to --
                          (a)   the identification of hazards at workplaces;
25                        (b)   the assessment of risks resulting from such hazards;
                                and
                          (c)   the taking of remedial or other action.
                                                                                       ";




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                           Occupational Safety and Health Legislation Amendment and
                                                                      Repeal Bill 2004
                                            Miscellaneous amendments            Part 8

                                                                                s. 115


                     (b)     by inserting after item 4 the following item --
             "
                 4A.       Duties to be observed by --
                            (a) the owner; or
5                           (b) a person having the control,
                           of plant used at a workplace.
                                                                                    ".

     115.        Mines Safety and Inspection Act 1994 amended and saving
                 provision
10     (1)       The amendments in this section are to the Mines Safety and
                   Inspection Act 1994*.
                 [* Reprinted as at 17 March 2000.
                    For subsequent amendments see Western Australian
                    Legislation Information Tables for 2003, Table 1, p. 250.]
15     (2)       Section 4(1) is amended by deleting the definition of "Mines
                 Occupational Safety and Health Advisory Board".
       (3)       Section 90 is repealed.
       (4)       Section 93(1) is amended by deleting "Mines Occupational
                 Safety and Health Advisory Board" and inserting instead --
20               "     Mining Industry Advisory Committee        ".
       (5)       Section 103 is amended by deleting "Mines Occupational Safety
                 and Health Advisory Board," and inserting instead --
                 "     Mining Industry Advisory Committee        ".
       (6)       Section 110(1)(b) is amended by deleting "the Mines
25               Occupational Safety and Health Advisory Board,".
       (7)       The amendment made by subsection (5) does not affect the
                 operation of section 103 of the Mines Safety and Inspection
                 Act 1994, before the commencement of that subsection, in
                 relation to members of the Mines Occupational Safety and
30               Health Advisory Board established under the section repealed
                 by subsection (3).

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Occupational Safety and Health Legislation Amendment and
Repeal Bill 2004
Part 9           Repeal of Shearers' Accommodation Act 1912

s. 116


Part 9 -- Repeal of Shearers' Accommodation Act 1912
116.       Shearers' Accommodation Act 1912 repealed
           The Shearers' Accommodation Act 1912 is repealed.




 


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