Queensland: Work Health and Safety Act 2011 (Qld)

Work Health and Safety Act 2011 An Act to provide comprehensively for work health and safety, to provide for a new definition of asbestos in particular legislation and for a work health and safety levy, to amend other legislation as a consequence, and to amend the Workers' Compensation and Rehabilitation Act 2003 for particular purposes Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Work Health and Safety Act 2011. 2 Commencement (1) The following provisions commence on 1 January 2014— (a) part 18, division 2; (b) sections 391 and 401; (c) schedule 4, part 1. (2) Sections 395, 396, 397(2) and 398 to 400 commence immediately after the commencement of sections 391 and 401. (3) The remaining provisions commence on a day to be fixed by proclamation. 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 particular types of substances or plant; and (b) providing for fair and effective workplace representation, consultation, cooperation 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 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 Queensland. (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 particular types of substances or plant as is reasonably practicable. Note— The numbering of this Act closely corresponds to the same numbering in a model Bill prepared for and approved by the Council of Australian Governments. To maximise uniformity between this Act and the model Bill, the numbers of some sections in the model Bill that are not relevant have not been used in the numbering of this Act, unless required for provisions particular to the State. Adoption of the numbering of the model Bill also results in alphanumeric numbering being used to insert further provisions particular to the State. Division 3 Interpretation Subdivision 1 Definitions 4 Definitions The dictionary in schedule 5 defines particular words used in this Act. Subdivision 2 Other important terms 5 Meaning of person conducting a business or undertaking (1) For 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 government does not in that capacity conduct a business or undertaking. (6) A regulation 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 1 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. 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 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. 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 Section number not used See note to section 3. Division 4 Application of Act 10 Act binds all persons (1) This Act binds all persons including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States. (2) The State, the Commonwealth and the other States are liable for an offence against this Act. (3) Without limiting subsection (1), the State, the Commonwealth and the other States are liable for a contravention of a WHS civil penalty provision. 11 Section number not used See note to section 3. 12 Scope: application of Act to particular matters Schedule 1 provides for the application of this Act to— (a) dangerous goods and high risk plant; and (b) matters dealt with under other legislation. 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 including, for example, duties relating to incident notification and consultation. 14 Duties not transferable A duty can not be transferred to another person. 15 Person may have more than 1 duty A person can have more than 1 duty by virtue of being in more than 1 class of duty holder. 16 More than 1 person can have a duty (1) More than 1 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 1 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 mentioned 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 mentioned 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 mentioned in subsection (2)(a) to (e). (5) The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (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 mentioned 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 mentioned 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 mentioned in subsection (2)(a) to (e). (5) The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (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 mentioned 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 mentioned 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 mentioned in subsection (2)(a) to (e). (5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (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 mentioned 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 mentioned 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 mentioned in subsection (2)(a) to (e). (5) The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (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 mentioned in paragraph (a), (b) or (c). 26A Duty of persons conducting business or undertaking—codes of practice A person conducting a business or undertaking must, if the Minister approves a code of practice for the purposes of this Act— (a) comply with the code; or (b) manage hazards and risks arising from the work carried out as part of the conduct of the business or undertaking in a way that is different to the code but provides a standard of health and safety that is equivalent to or higher than the standard required under the code. 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 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 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 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 mentioned in paragraphs (c) to (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 30 Health and safety duty Health and safety duty means a duty imposed under division 2, 3 or 4. 31 Negligent 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 exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and (c) the person— (i) engages in the conduct with negligence; or (ii) is reckless as to the risk to the individual of death or serious injury or illness. Maximum penalty— (a) for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3,000 penalty units or 5 years imprisonment; or (b) for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—6,000 penalty units or 5 years imprisonment; or (c) for an offence committed by a body corporate—30,000 penalty units. Note— In this division, the penalty applicable to a body corporate is separately expressed. Otherwise the Penalties and Sentences Act 1992, section 181B applies for this Act. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. (3) A category 1 offence is a crime. 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 offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,500 penalty units; or (b) for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3,000 penalty units; or (c) for an offence committed by a body corporate—15,000 penalty units. Note— See also the note to section 31(1). 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 offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—500 penalty units; or (b) for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,000 penalty units; or (c) for an offence committed by a body corporate—5,000 penalty units. Note— See also the note to section 31(1). 33A Duty prevails over particular excuses For an offence against section 32 or 33, the Criminal Code sections 23(1) and 24 are subject to divisions 1 to 4. 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. Part 2A Industrial manslaughter 34A Definitions for part (1) In this part— conduct means an act or omission to perform an act. executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation's management, whether or not the person is a director or the person's position is given the name of executive officer. senior officer, of a person conducting a business or undertaking, means— (a) if the person is a corporation—an executive officer of the corporation; or (b) otherwise—the holder of an executive position (however described) in relation to the person who makes, or takes part in making, decisions affecting all, or a substantial part, of the person's functions. (2) For this part, a person's conduct causes death if it substantially contributes to the death. Note— In relation to the numbering of this part, see the note to section 3. 34B Exceptions (1) A volunteer does not commit an offence under this part. (2) Despite section 34(2), a senior officer of an unincorporated association (other than a volunteer) may commit an offence under this part. (3) The Criminal Code, section 23 does not apply to an offence under this part. 34C Industrial manslaughter—person conducting business or undertaking (1) A person conducting a business or undertaking commits an offence if— (a) an individual to whom the person has a health and safety duty— (i) dies; or (ii) is injured and later dies; and (b) the person's conduct causes the death of the individual; and (c) the person is negligent about causing the death of the individual by the conduct. Maximum penalty— (a) for an individual—20 years imprisonment; or (b) for a body corporate—100,000 penalty units. (2) An offence against subsection (1) is a crime. 34D Industrial manslaughter—senior officer (1) A senior officer of a person conducting a business or undertaking commits an offence if— (a) an individual to whom the person has a health and safety duty— (i) dies; or (ii) is injured and later dies; and (b) the senior officer's conduct causes the death of the individual; and (c) the senior officer is negligent about causing the death of the individual by the conduct. Maximum penalty—20 years imprisonment. (2) An offence against subsection (1) is a crime. 34E Alternative offences to industrial manslaughter (1) On an indictment charging a person with an offence against this part, the person may alternatively be convicted of a category 1 offence or a category 2 offence (in either case an alternative offence) if the alternative offence is established by the evidence. (2) A person may be convicted under subsection (1) of an alternative offence even if the applicable limitation period under section 232(1) for the alternative offence ended before the proceedings for the offence against this part were taken. 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 (for example, 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 under a regulation 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 under a regulation; 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 under a regulation; 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—100 penalty units. (2) The notice must be given as required under 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 facsimile, 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—50 penalty units. 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—100 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. 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 under a regulation. 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) a regulation requires the workplace or workplaces in that class of workplace to be authorised; and (b) the workplace is not authorised under the regulation. Maximum penalty—500 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) a regulation requires the plant or substance or its design to be authorised; and (b) the plant or substance or its design is not authorised under the regulation. Maximum penalty—200 penalty units. (2) A person who conducts a business or undertaking must not direct or allow a worker to use plant or a substance at a workplace if— (a) a regulation requires the plant or substance or its design to be authorised; and (b) the plant or substance or its design is not authorised in under a regulation. Maximum penalty—200 penalty units. 43 Requirements for authorisation of work (1) A person must not carry out work at a workplace if— (a) a regulation requires 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 under a regulation. Maximum penalty—200 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) a regulation requires 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 under a regulation. Maximum penalty—200 penalty units. 44 Requirements for prescribed qualifications or experience (1) A person must not carry out work at a workplace if— (a) a regulation requires 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—200 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) a regulation requires 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—200 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 a regulation. Maximum penalty—200 penalty units. Part 5 Consultation, representation and participation Division 1AA Preliminary 45A Definitions for part In this part— excluded entity, for representing or assisting a worker or the health and safety representative for a worker, see section 45B. relevant union, for a worker, whether the worker is a health and safety representative or another worker, means a union— (a) of which the worker is a member or is eligible to be a member; and (b) whose rules entitle the union to represent the worker's industrial interests. representative, in relation to a worker, means— (a) the health and safety representative for the worker; or (b) a suitable entity for representing the worker that is authorised by the worker to represent the worker. suitable entity, for representing or assisting a worker or the health and safety representative for a worker, means— (a) a relevant union for the worker; or (b) another entity that— (i) is authorised by the worker or representative to represent or assist the worker or representative; but (ii) is not an excluded entity for representing or assisting the worker or representative. 45B Meaning of excluded entity (1) Each of the following entities is an excluded entity for representing or assisting a worker or the health and safety representative for a worker— (a) the following entities (each an excluded body)— (i) an entity, other than a union, that is an association of employees or independent contractors, or both; (ii) an entity, other than a union or an association mentioned in subparagraph (i), that represents, or purports to represent, the industrial interests of the worker or representative; (iii) an entity that demands or receives a fee from another excluded body, for representing, or purporting to represent, the industrial interests of the worker or representative; (iv) a union that is not a relevant union for the worker; (b) an individual who— (i) is an officer or employee of an excluded body; or (ii) is acting as an agent of an excluded body; or (iii) is otherwise representing or purporting to represent an excluded body. (2) An association of a type mentioned in subsection (1)(a)(i) is an excluded entity whether or not the association is registered or recognised as an association of that type (however described) under a State or Territory industrial law. (3) Despite subsection (1)(b), an individual is not an excluded entity under subsection (1)(b)(iii) only because the individual is a member of an excluded body. Division 1 Consultation, cooperation and coordination between duty holders 46 Duty to consult with other duty holders If more than 1 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, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter. Maximum penalty—200 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, as required under this division and any regulation, 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—200 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 way. (2) If the workers are represented by a health and safety representative, the consultation must involve that representative. (3) Also, if 1 or more of the workers ask the person conducting the business or undertaking to consult with their representative, the consultation must involve that representative. (4) Subsection (5) applies if— (a) the consultation involves a representative under subsection (3); and (b) the parties to the consultation agree that the consultation is to be carried out at a workplace where 1 or more of the workers work. (5) The person conducting the business or undertaking must carry out the consultation only at the time and place agreed to by the parties. (6) Subsection (1)(a) does not require the person conducting the business or undertaking to allow a representative to have access to— (a) personal or medical information concerning a worker without the worker's consent, unless the information is in a form that— (i) does not identify the worker; and (ii) could not reasonably be expected to lead to the identification of the worker; or (b) information that is confidential commercial information. 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 under a regulation for 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 1 or more health and safety representatives to represent workers who carry out work for the business or undertaking. 50A Prohibition of hindering etc. request for election of health and safety representative A person conducting a business or undertaking must not intentionally hinder, prevent or discourage a worker from making a request under section 50 to facilitate the conduct of an election for 1 or more health and safety representatives. Maximum penalty—200 penalty units. 50B Invitation to request election of health and safety representatives (1) This section applies to a person conducting a business or undertaking if— (a) a health and safety representative has not been elected to represent workers who carry out work for the business or undertaking; or (b) the term of office of a health and safety representative for a work group ends under section 64(1); or (c) a health and safety representative for a work group ceases to hold office under section 64(2). (2) The person conducting the business or undertaking must, at the time or within the period required under subsection (3)— (a) notify the workers who work for the business or undertaking in writing about the following matters— (i) that a worker may request an election for 1 or more health and safety representatives under section 50; (ii) the process for the determination of work groups; (iii) who may represent the workers in negotiations under section 52; (iv) the process for the election of health and safety representatives; (v) the powers and functions of health and safety representatives; and (b) invite the workers to ask the person to facilitate an election for 1 or more health and safety representatives under section 50. (3) The person conducting the business or undertaking must take the action mentioned in subsection (2)(a) and (b)— (a) if subsection (1)(a) applies— (i) as soon as possible after the business or undertaking is first conducted; or (ii) as soon as possible after the commencement; or (iii) if a notification and invitation mentioned in subsection (2) have been given to the workers—within 1 year after the notification and invitation were last given; or (b) if subsection (1)(b) applies—as soon as reasonably practicable after the day the term of office of the health and safety representative ends; or (c) if subsection (1)(c) applies—as soon as reasonably practicable after the day the health and safety representative ceased to hold office. 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 1 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 1 or more health and safety representatives. (3) A work group may be determined for workers at 1 or more workplaces. 52 Negotiations for agreement for work group (1) A work group must be determined by negotiation and agreement among the following parties— (a) the person conducting the business or undertaking; (b) the workers who are proposed to form the work group or their representatives; (c) a relevant union for a worker who is proposed to form part of the work group if the union notifies the person conducting the business or undertaking, in writing, that the union wants to be a party to the negotiation and agreement. (2) The person conducting the business or undertaking must take all reasonable steps to complete the negotiations within 14 days after a request is made under section 50. (3) The purpose of the negotiations is to determine— (a) the number and composition of work groups to be represented by health and safety representatives; and (b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and (c) the workplace or workplaces to which the work groups will apply; and (d) the businesses or undertakings to which the work groups will apply. (4) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement. (4A) Subsection (4B) applies if— (a) negotiations for a variation of an agreement concerning the determination of a work group or groups are started by the parties to the agreement; and (b) a relevant union is not a party to the agreement. (4B) The relevant union may become a party to the negotiations by notifying the person conducting the business or undertaking, in writing, that the union wants to be a party to the negotiations. (5) For negotiations under subsection (1) or (4), the person conducting the business or undertaking must negotiate with and must not exclude from the negotiations— (a) if a worker has asked the person to negotiate with a representative of the worker—the worker's representative; or (b) if a relevant union has become a party to the negotiations under subsection (1)(c) or (4B)—the relevant union. Maximum penalty—100 penalty units. (5A) Subsection (5B) applies if— (a) a representative for a worker or a relevant union is a party to the negotiations under subsection (1) or (4); and (b) the parties to the negotiations agree that the negotiations are to be carried out at a workplace where 1 or more of the workers work. (5B) The parties must— (a) agree on when and where in the workplace the negotiations are to be carried out; and (b) carry out the negotiations only at the agreed time and place. (5C) The parties to the negotiations under subsection (1) or (4) may agree to extend the period for the negotiations. (6) A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups. 53 Notice to workers (1) The person conducting a business or undertaking involved in nego