New South Wales: Work Health and Safety Act 2011 (NSW)

Work Health and Safety Act 2011 No 10 An Act to secure the health, safety and welfare of persons at work; to repeal the Occupational Health and Safety Act 2000; and for other purposes. Part 1 Preliminary Division 1 Introduction 1 Name of Act This Act is the Work Health and Safety Act 2011. 2 Commencement This Act commences on 1 January 2012 or on such later day as may be appointed by proclamation before 1 January 2012. Division 2 Object 3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by— (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable. Division 3 Interpretation Subdivision 1 Definitions 4 Definitions In this Act— approved code of practice means a code of practice approved under Part 14. asbestos, in Part 10, Division 2A—see section 197A. asbestos containing material (ACM), in Part 10, Division 2A—see section 197A. authorised, in Part 4—see section 40. authorised person, in Part 13, Division 4—see section 244. authorising authority means the Industrial Relations Commission. board of directors, in Part 13, Division 4—see section 244. Category 1 offence—see section 31. Category 2 offence—see section 32. Category 3 offence—see section 33. compliance powers means the functions and powers conferred on an inspector under this Act. condition includes limitation and restriction. construct includes assemble, erect, reconstruct, reassemble and re-erect. corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law. corresponding WHS law means— (a) a law of an Australian jurisdiction that has the same name as this Act, and (b) a law of an Australian jurisdiction that is prescribed by the regulations as a corresponding WHS law. court means the court having jurisdiction in the matter concerned. dangerous incident, in Part 3—see section 37. demolition includes deconstruction. design, in relation to plant, a substance or a structure includes— (a) design of part of the plant, substance or structure, and (b) redesign or modify a design. disclose, in relation to information, includes divulge or communicate to any person or publish. discriminatory conduct, in Part 6—see section 105. document includes record. employee record, in relation to an employee, has the same meaning as it has in the Privacy Act 1988 of the Commonwealth. employer organisation means an organisation of employers. engage in conduct means doing an act or omitting to do an act. Fair Work Act means the Fair Work Act 2009 of the Commonwealth. handling includes transport. health means physical and psychological health. health and safety duty—see section 30. health and safety representative, in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member. import means to bring into the jurisdiction from outside Australia. inspector means an inspector appointed under Part 9. Note. Section 18 (8) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 deems government officials under that Act to also be inspectors. internal reviewer means— (a) the regulator, or (b) a person appointed by the regulator under section 225. local authority means a council, county council or joint organisation under the Local Government Act 1993. medical treatment means treatment by a medical practitioner within the meaning of the Health Practitioner Regulation National Law (NSW). member of staff of the regulator means— (a) in the case of SafeWork NSW—a person employed in the Department of Customer Service, or (b) in the case of the Secretary of the Department of Regional NSW—a person employed in that Department. notifiable incident—see section 35. officer means— (a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership, or (b) an officer of the Crown within the meaning of section 247, or (c) an officer of a public authority within the meaning of section 252, other than an elected member of a local authority acting in that capacity. official of a union, in Part 7—see section 116. person conducting a business or undertaking—see section 5. personal information has the same meaning as it has in the Privacy Act 1988 of the Commonwealth. plant includes— (a) any machinery, equipment, appliance, container, implement and tool, and (b) any component of any of those things, and (c) anything fitted or connected to any of those things. prohibited asbestos, in Part 10, Division 2A—see section 197A. prohibited reason, in Part 6—see section 106. public authority means— (a) a Division of the Government Service, or (b) a NSW Government agency, or (c) a local authority, or (d) any other public or local authority constituted by or under an Act. reasonably practicable, in relation to a duty to ensure health and safety—see section 18. regulator means the regulator established under clause 1 of Schedule 2. relevant person, in Part 10, Division 2A—see section 197A. relevant person conducting a business or undertaking, in Part 7—see section 116. relevant union, in Part 7—see section 116. relevant worker, in Part 7—see section 116. representative, in relation to a worker, means— (a) the health and safety representative for the worker, or (b) a union representing the worker, or (c) any other person the worker authorises to represent him or her. SafeWork NSW means SafeWork NSW as referred to in clause 1 of Schedule 2. serious injury or illness, in Part 3—see section 36. State includes Territory. State or Territory industrial law has the same meaning as it has in the Fair Work Act. structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes— (a) buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels), and (b) any component of a structure, and (c) part of a structure. substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour. supply—see section 6. this Act includes the regulations. union means— (a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth, or (b) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law. volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). WHS entry permit means a WHS entry permit issued under Part 7. WHS entry permit holder means a person who holds a WHS entry permit. WHS undertaking means an undertaking given under section 216 (1). work group means a work group determined under Part 5. worker—see section 7. workplace—see section 8. Subdivision 2 Other important terms 4A (Repealed) 5 Meaning of "person conducting a business or undertaking" (1) For the purposes of this Act, a person conducts a business or undertaking— (a) whether the person conducts the business or undertaking alone or with others, and (b) whether or not the business or undertaking is conducted for profit or gain. (2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. (3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership. (4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking. (5) An elected member of a local authority does not in that capacity conduct a business or undertaking. (6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. (7) A volunteer association does not conduct a business or undertaking for the purposes of this Act. (8) In this section, volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. Note. A person may be both a person conducting a business or undertaking, within the meaning of this section, and a worker within the meaning of section 7. 6 Meaning of "supply" (1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent. (2) A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied. (3) A supply of a thing does not include— (a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement, or (b) a prescribed supply. (4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if— (a) the financier has, in the course of the financier's business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier, and (b) the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer. (5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier's customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier's customer. 7 Meaning of "worker" (1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as— (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking, or (e) an outworker, or (f) an apprentice or trainee, or (g) a student gaining work experience, or (h) a volunteer, or (i) a person of a prescribed class. (2) For the purposes of this Act, a police officer is— (a) a worker, and (b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise. (3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking. Note. A person may be both a worker, within the meaning of this section, and a person conducting a business or undertaking within the meaning of section 5. 8 Meaning of "workplace" (1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. (2) In this section, place includes— (a) a vehicle, vessel, aircraft or other mobile structure, and (b) any waters and any installation on land, on the bed of any waters or floating on any waters. 9 Examples and notes (1) An example at the foot of a provision forms part of this Act. (2) A note at the foot of a provision forms part of this Act. Division 4 Application of Act 10 Act binds the Crown (1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities. (2) The Crown is liable for an offence against this Act. (3) Without limiting subsection (1), the Crown is liable for a contravention of a WHS civil penalty provision. 11 Extraterritorial application * * * * * Note. Not required in NSW. 12 Scope * * * * * Note. Not required in NSW. 12A Offences are offences of strict liability Strict liability applies to each physical element of each offence under this Act unless otherwise stated in the section containing the offence. Part 2 Health and safety duties Division 1 Introductory Subdivision 1 Principles that apply to duties 13 Principles that apply to duties This Subdivision sets out the principles that apply to all duties that persons have under this Act. Note. The principles will apply to duties under this Part and other Parts of this Act such as duties relating to incident notification and consultation. 14 Duties not transferrable A duty cannot be transferred to another person. 15 Person may have more than one duty A person can have more than one duty by virtue of being in more than one class of duty holder. 16 More than one person can have a duty (1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person— (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. 17 Management of risks A duty imposed on a person to ensure health and safety requires the person— (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. Subdivision 2 What is reasonably practicable 18 What is "reasonably practicable" in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including— (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about— (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Division 2 Primary duty of care 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of— (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable— (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) If— (a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and (b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. (5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. Note. A self-employed person is also a person conducting a business or undertaking for the purposes of this section. Division 3 Further duties of persons conducting businesses or undertakings 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces (1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include— (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or (b) a prescribed person. (2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces (1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include— (a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or (b) a prescribed person. (2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person. 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures (1) This section applies to a person (the designer) who conducts a business or undertaking that designs— (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons— (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed, or (b) who handle the substance at a workplace, or (c) who store the plant or substance at a workplace, or (d) who construct the structure at a workplace, or (e) who carry out any reasonably foreseeable activity at a workplace in relation to— (i) the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant, or (ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance, or (iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure, or Example. Inspection, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning— (a) each purpose for which the plant, substance or structure was designed, and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2) (a)–(e). (5) The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2) (a)–(e). 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures (1) This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures— (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons— (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured, or (b) who handle the substance at a workplace, or (c) who store the plant or substance at a workplace, or (d) who construct the structure at a workplace, or (e) who carry out any reasonably foreseeable activity at a workplace in relation to— (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or Example. Inspection, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2). (4) The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning— (a) each purpose for which the plant, substance or structure was designed or manufactured, and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2) (a)–(e). (5) The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2) (a)–(e). 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures (1) This section applies to a person (the importer) who conducts a business or undertaking that imports— (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons— (a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured, or (b) who handle the substance at a workplace, or (c) who store the plant or substance at a workplace, or (d) who construct the structure at a workplace, or (e) who carry out any reasonably foreseeable activity at a workplace in relation to— (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or Example. Inspection, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The importer must— (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2), or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning— (a) each purpose for which the plant, substance or structure was designed or manufactured, and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2) (a)–(e). (5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2) (a)–(e). 25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures (1) This section applies to a person (the supplier) who conducts a business or undertaking that supplies— (a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or (b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or (c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons— (a) who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured, or (b) who handle the substance at a workplace, or (c) who store the plant or substance at a workplace, or (d) who construct the structure at a workplace, or (e) who carry out any reasonably foreseeable activity at a workplace in relation to— (i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or (ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or (iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or Example. Inspection, storage, operation, cleaning, maintenance or repair of plant. (f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e). (3) The supplier must— (a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2), or (b) ensure that the calculations, analysis, testing or examination have been carried out. (4) The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning— (a) each purpose for which the plant, substance or structure was designed or manufactured, and (b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and (c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2) (a)–(e). (5) The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2) (a)–(e). 26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures (1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace. (2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons— (a) who install or construct the plant or structure at a workplace, or (b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned, or (c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure, or (d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c). Division 4 Duty of officers, workers and other persons 27 Duty of officers (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. (2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. (3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps— (a) to acquire and keep up-to-date knowledge of work health and safety matters, and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and Example. For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include— • reporting notifiable incidents, • consulting with workers, • ensuring compliance with notices issued under this Act, • ensuring the provision of training and instruction to workers about work health and safety, • ensuring that health and safety representatives receive their entitlements to training. (f) to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e). 28 Duties of workers While at work, a worker must— (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. 29 Duties of other persons at the workplace A person at a workplace (whether or not the person has another duty under this Part) must— (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act. Division 5 Offences and penalties Note. This Division sets out offences, and penalties for the offences, in relation to the health and safety duties imposed by Divisions 2, 3 and 4 of Part 2. In certain circumstances, the death of a person at work may also constitute manslaughter under Part 2A and be prosecuted under this Act or may constitute manslaughter under the Crimes Act 1900 and be prosecuted under that Act. See section 18 of the Crimes Act 1900, which provides for the offence of manslaughter, and section 24 of that Act, which provides that the offence of manslaughter is punishable by imprisonment for 25 years. 30 Health and safety duty In this Division, health and safety duty means a duty imposed under Division 2, 3 or 4 of this Part. 31 Gross negligence or reckless conduct—Category 1 (1) A person commits a Category 1 offence if— (a) the person has a health and safety duty, and (b) the person, without reasonable excuse, engages in conduct that— (i) exposes an individual, to whom the duty is owed, to a risk of death or serious injury or illness, or (ii) if the person is an officer of a person conducting a business or undertaking—exposes an individual, to whom the person conducting a business or undertaking owes a health and safety duty, to a risk of death or serious injury or illness, and (c) the person— (i) engages in the conduct with gross negligence, or (ii) is reckless as to the risk to an individual of death or serious injury or illness. Maximum penalty— (a) for an individual, as a person conducting a business or undertaking or an officer of a person conducting a business or undertaking—18,805 penalty units or 10 years imprisonment, or both, or (b) for an individual, otherwise—9,038 penalty units or 10 years imprisonment, or both, or (c) for a body corporate—90,424 penalty units. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. 32 Failure to comply with health and safety duty—Category 2 A person commits a Category 2 offence if— (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. Maximum penalty— (a) for an individual, as a person conducting a business or undertaking or an officer of a person conducting a business or undertaking—3,626 penalty units, or (b) for an individual, otherwise—1,813 penalty units, or (c) for a body corporate—18,128 penalty units. 33 Failure to comply with health and safety duty—Category 3 A person commits a Category 3 offence if— (a) the person has a health and safety duty, and (b) the person fails to comply with that duty. Maximum penalty— (a) for an individual, as a person conducting a business or undertaking or an officer of a person conducting a business or undertaking—1,214 penalty units, or (b) for an individual, otherwise—607 penalty units, or (c) for a body corporate—6,070 penalty units. 34 Exceptions (1) A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29. (2) An unincorporated association does not commit an offence under this Act, and is not liable for a civil penalty under this Act, for a failure to comply with a duty or obligation imposed on the unincorporated association under this Act. (3) However— (a) an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27, and (b) a member of an unincorporated association may be liable for failure to comply with a duty under section 28 or 29. 34A Exception for police responding to particular active armed offender incidents (1) A member of the NSW Police Force does not commit an offence under this Division for a failure to comply with a health and safety duty that occurs while— (a) the member is responding to a particular active armed offender incident, or (b) the member is in command of, or is otherwise authorising actions by or providing directions to, other members of the NSW Police Force who are responding to a particular active armed offender incident, or (c) the member is receiving information from, or providing information to, other members of the NSW Police Force for the purposes of assisting them in responding to a particular active armed offender incident, or (d) the member is participating with other members of the NSW Police Force in preparing or planning for responding to a particular active armed offender incident. (2) A member of the NSW Police Force is responding to a particular active armed offender incident if— (a) a person armed with an offensive weapon or instrument (the offender) is attacking or has attacked, or is attempting to attack or has attempted to attack, another person (the victim), and (b) the member reasonably believes (or one or more other members of the NSW Police Force who are commanding, authorising actions by or directing the member reasonably believe) that the offender will do any of the following unless prevented from doing so— (i) continue attacking, or attempting to attack, the victim, (ii) attack, or attempt to attack, the victim again, (iii) attack, or attempt to attack, another person apart from the victim, and (c) the member is acting (whether or not in combination with, or at the command or direction of, other members of the NSW Police Force) to prevent the offender from doing so. (3) To avoid doubt, this section does not affect the duties of the State or the Crown under this Part in connection with responding to a particular active armed offender incident. (4) In this section— offensive weapon or instrument has the same meaning as in the Crimes Act 1900. Part 2A Industrial manslaughter 34B Definitions In this part— conduct means— (a) an act, or (b) an omission to perform an act. health and safety duty has the same meaning as in Part 2, Division 5. 34C Offence of industrial manslaughter A person commits industrial manslaughter if— (a) the person has a health and safety duty, and (b) the person is— (i) a person conducting a business or undertaking, or (ii) an officer of a person conducting a business or undertaking, and (c) the person engages in conduct that— (i) for a person conducting a business or undertaking— (A) constitutes a failure to comply with the person's health and safety duty, and (B) causes the death of a worker or another individual to whom the person's health and safety duty is owed, or (ii) for an officer of a person conducting a business or undertaking— (A) constitutes a failure to comply with the officer's health and safety duty, and (B) causes the death of a worker or another individual to whom the person conducting a business or undertaking owes a health and safety duty, and (d) the person engages in the conduct with gross negligence. Maximum penalty— (a) for an individual—imprisonment for 25 years, or (b) for a body corporate—$20,000,000. 34D Exception for volunteers A volunteer does not commit an offence against section 34C. Note— A volunteer may still be liable for an offence of manslaughter under the Crimes Act 1900. 34E No limitation period for proceedings for offences against section 34C Proceedings for an offence against section 34C— (a) may be commenced at any time after the commission of the offence, and (b) are not subject to any limitation period in section 232 or another statute of limitations that would otherwise operate to prevent the commencement of proceedings for the offence. Note— See also Part 13, which provides for matters relating to legal proceedings under this Act, including that proceedings for an offence against section 34C committed by an individual must be dealt with on indictment. 34F Alternative verdict (1) If, on the trial of a person for an offence against section 34C, the court or jury is not satisfied the person is guilty but is satisfied the person is guilty of an offence against section 31— (a) the court or jury may acquit the person of the offence charged and find the person guilty of an offence against section 31, and (b) the person is liable to the punishment for the offence against section 31. (2) To avoid doubt, section 232 does not apply to proceedings to which this section applies. Part 3 Incident notification 35 What is a "notifiable incident" In this Act, notifiable incident means— (a) the death of a person, or (b) a serious injury or illness of a person, or (c) a dangerous incident. 36 What is a "serious injury or illness" In this Part, serious injury or illness of a person means an injury or illness requiring the person to have— (a) immediate treatment as an in-patient in a hospital, or (b) immediate treatment for— (i) the amputation of any part of his or her body, or (ii) a serious head injury, or (iii) a serious eye injury, or (iv) a serious burn, or (v) the separation of his or her skin from an underlying tissue (such as degloving or scalping), or (vi) a spinal injury, or (vii) the loss of a bodily function, or (viii) serious lacerations, or (c) medical treatment within 48 hours of exposure to a substance, and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind. 37 What is a "dangerous incident" In this Part, a dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person's health or safety emanating from an immediate or imminent exposure to— (a) an uncontrolled escape, spillage or leakage of a substance, or (b) an uncontrolled implosion, explosion or fire, or (c) an uncontrolled escape of gas or steam, or (d) an uncontrolled escape of a pressurised substance, or (e) electric shock, or (f) the fall or release from a height of any plant, substance or thing, or (g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations, or (h) the collapse or partial collapse of a structure, or (i) the collapse or failure of an excavation or of any shoring supporting an excavation, or (j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel, or (k) the interruption of the main system of ventilation in an underground excavation or tunnel, or (l) any other event prescribed by the regulations, but does not include an incident of a prescribed kind. 38 Duty to notify of notifiable incidents (1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. Maximum penalty— (a) for an individual—121 penalty units, or (b) for a body corporate—607 penalty units. (2) The notice must be given in accordance with this section and by the fastest possible means. (3) The notice must be given— (a) by telephone, or (b) in writing. Example. The written notice can be given by email or other electronic means. (4) A person giving notice by telephone must— (a) give the details of the incident requested by the regulator, and (b) if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made. (5) A written notice must be in a form, or contain the details, approved by the regulator. (6) If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking— (a) details of the information received, or (b) an acknowledgement of receiving the notice. (7) A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section. Maximum penalty— (a) for an individual—61 penalty units, or (b) for a body corporate—304 penalty units. (8) Despite subsection (1), a person is not required to give notice under this section of an incident that occurs at a workplace to which the Work Health and Safety (Mines and Petroleum Sites) Act 2013 applies. 39 Duty to preserve incident sites (1) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs. Maximum penalty— (a) for an individual—121 penalty units, or (b) for a body corporate—607 penalty units. (2) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident. (3) Subsection (1) does not prevent any action— (a) to assist an injured person, or (b) to remove a deceased person, or (c) that is essential to make the site safe or to minimise the risk of a further notifiable incident, or (d) that is associated with a police investigation, or (e) for which an inspector or the regulator has given permission. (4) This section does not apply to a workplace to which the Work Health and Safety (Mines and Petroleum Sites) Act 2013 applies. Part 4 Authorisations 40 Meaning of "authorised" In this Part, authorised means authorised by a licence, permit, registration or other authority (however described) as required by the regulations. 41 Requirements for authorisation of workplaces A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if— (a) the regulations require the workplace or workplaces in that class of workplace to be authorised, and (b) the workplace is not authorised in accordance with the regulations. Maximum penalty— (a) for an individual—607 penalty units, or (b) for a body corporate—3,036 penalty units. 42 Requirements for authorisation of plant or substance (1) A person must not use plant or a substance at a workplace if— (a) the regulations require the plant or substance or its design to be authorised, and (b) the plant or substance or its design is not authorised in accordance with the regulations. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. (2) A person who conducts a business or undertaking must not direct or allow a worker to use the plant or substance at a workplace if— (a) the regulations require the plant or substance or its design to be authorised, and (b) the plant or substance or its design is not authorised in accordance with the regulations. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. 43 Requirements for authorisation of work (1) A person must not carry out work at a workplace if— (a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised, and (b) the person, or the person on whose behalf the work is carried out, is not authorised in accordance with the regulations. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. (2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if— (a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised, and (b) the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with the regulations. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. 44 Requirements for prescribed qualifications or experience (1) A person must not carry out work at a workplace if— (a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience, and (b) the person does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. (2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if— (a) the regulations require the work, or class of work, to be carried out by, or under the supervision of, a person who has prescribed qualifications or experience, and (b) the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. 45 Requirement to comply with conditions of authorisation A person must comply with the conditions of any authorisation given to that person under the regulations. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. Part 5 Consultation, representation and participation Division 1 Consultation, co-operation and co-ordination between duty holders 46 Duty to consult with other duty holders If more than one person has a duty in relation to the same matter under this Act, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. Division 2 Consultation with workers 47 Duty to consult workers (1) The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. Maximum penalty— (a) for an individual—243 penalty units, or (b) for a body corporate—1,214 penalty units. (2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures. (3) The agreed procedures must not be inconsistent with section 48. 48 Nature of consultation (1) Consultation under this Division requires— (a) that relevant information about the matter is shared with workers, and (b) that workers be given a reasonable opportunity— (i) to express their views and to raise work health or safety issues in relation to the matter, and (ii) to contribute to the decision-making process relating to the matter, and (c) that the views of workers are taken into account by the person conducting the business or undertaking, and (d) that the workers consulted are advised of the outcome of the consultation in a timely manner. (2) If the workers are represented by a health and safety representative, the consultation must involve that representative. 49 When consultation is required Consultation under this Division is required in relation to the following health and safety matters— (a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking, (b) when making decisions about ways to eliminate or minimise those risks, (c) when making decisions about the adequacy of facilities for the welfare of workers, (d) when proposing changes that may affect the health or safety of workers, (e) when making decisions about the procedures for— (i) consulting with workers, or (ii) resolving work health or safety issues at the workplace, or (iii) monitoring the health of workers, or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or (v) providing information and training for workers, or (f) when carrying out any other activity prescribed by the regulations for the purposes of this section. Division 3 Health and safety representatives Subdivision 1 Request for election of health and safety representatives 50 Request for election of health and safety representative A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for one or more health and safety representatives to represent workers who carry out work for the business or undertaking. Subdivision 2 Determination of work groups 51 Determination of work groups (1) If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of one or more work groups of workers. (2) The purpose of determining a work group is to facilitate the representation of workers in the work group by one or more health and safety representatives. (3) A work group may be determined for workers at one or more workplaces. 52 Negotiations for agreement for work group (1) A work group is to be determined by negotiation and agreement between— (a) the person conducting the business or undertaking, and (b) the workers who will form the work group or their representatives. (2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within