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Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2000
Schedule 1 Amendment of the Occupational Health and Safety (Commonwealth Employment) Act 1991

Part 1 Amendments

1  At the end of section 3

Add:

              ; and (f)  to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and

                     (g)  to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.

2  Subsection 5(1) (definition of annual report of the Commission )

Omit “ Commonwealth Employees’ Rehabilitation and Compensation Act 1988 ”, substitute “ Safety, Rehabilitation and Compensation Act 1988 ”.

3  Subsection 5(1) (definition of Comcare )

Omit “ Commonwealth Employees’ Rehabilitation and Compensation Act 1988 ”, substitute “ Safety, Rehabilitation and Compensation Act 1988 ”.

4  Subsection 5(1) (definition of Commission )

Omit “Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees”, substitute “Safety, Rehabilitation and Compensation Commission”.

5  Subsection 5(1) (definition of Commission )

Omit “ Commonwealth Employees’ Rehabilitation and Compensation Act 1988 ”, substitute “ Safety, Rehabilitation and Compensation Act 1988 ”.

6  Subsection 5(1) (definition of contractor )

Repeal the definition, substitute:

contractor means:

                     (a)  a natural person, other than a person who is employed by the Commonwealth or by a Commonwealth authority, who performs work on Commonwealth premises in connection with a contract between:

                              (i)  the Commonwealth or a Commonwealth authority; and

                             (ii)  that person or another person (whether a natural person or not);

                            which is in connection with an undertaking being carried on by the Commonwealth or the authority which is a party to the contract; and

                     (b)  in section 14—a natural person as described in paragraph (a) and also includes a body corporate, other than a Commonwealth authority, that performs work on Commonwealth premises in connection with a contract between:

                              (i)  the Commonwealth or a Commonwealth authority; and

                             (ii)  that body corporate or another person (whether a natural person or not);

                            which is in connection with an undertaking being carried on by the Commonwealth or the authority which is a party to the contract.

7  Subsection 5(1) (subparagraph (a)(i) of the definition of Government business enterprise )

Omit “the Schedule”, substitute “Schedule 1”.

8  Subsection 5(1)

Insert:

involved : a person is involved in a breach of a provision if, and only if, the person has:

                     (a)  aided, abetted, counselled or procured the breach; or

                     (b)  has induced, whether by threats or promises or otherwise, the breach; or

                     (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the breach; or

                     (d)  has conspired with others to effect the breach.

9  Subsection 5(1) (definition of involved union )

Repeal the definition.

10  Subsection 5(1) (definition of registered union )

Repeal the definition.

11  Subsection 5(1)

Insert:

representative association has the meaning given in subsections (2A) and (2B).

12  Subsection 5(1)

Insert:

safety management arrangements means the safety management arrangements referred to in paragraph 16(2)(d).

13  Subsection 5(1)

Insert:

workplace association representative means an employee at a workplace who is authorised by a representative association to represent the association in that workplace.

14  After subsection 5(2)

Insert:

          (2A)  An association is a representative association in relation to an employee performing work for his or her employer at a particular workplace if:

                     (a)  the association is an association of employees with a principal purpose of protecting and promoting the industrial interests of its members; and

                     (b)  the employee is a member of the association and is qualified for membership because of the work the employee usually performs as an employee of the employer.

          (2B)  An association is a representative association in relation to a designated work group at a particular workplace if:

                     (a)  the association is an association of employees with a principal purpose of protecting and promoting the industrial interests of its members; and

                     (b)  an employee included in the group is a member of the association and is qualified for membership because of the work the employee usually performs as an employee included in the group.

15  Subsection 5(3A)

Omit “ Commonwealth Employees’ Rehabilitation and Compensation Act 1988 ”, substitute “ Safety, Rehabilitation and Compensation Act 1988 ”.

16  Subsection 5(6)

Repeal the subsection, substitute:

             (6)  A reference in this Act to a breach of this Act or to a breach of the regulations includes, where the breach is an offence, a reference to an offence against:

                     (a)  section 6, 7 or 7A of the Crimes Act 1914 ; or

                     (b)  subsection 86(1) of that Act by virtue of paragraph (a) of that subsection;

being an offence that relates to the breach.

17  Subsections 11(2) and (3)

Repeal the subsections, substitute:

             (2)  Nothing in this Act has the effect of making the Commonwealth or a Commonwealth authority (other than a Government business enterprise):

                     (a)  subject to proceedings for a contravention of subclause 2(1) of Schedule 2; or

                     (b)  liable to be prosecuted for an offence; or

                     (c)  liable to pay any fine or penalty under the Act or the regulations.

Note:          A court may instead enforce undertakings under clause 14 of Schedule 2, grant an injunction under section 77A or make remedial orders under section 77B.

             (3)  Subsection (2) does not prevent the following:

                     (a)  a person who is employed by the Commonwealth;

                     (b)  a person who is employed by a Commonwealth authority (including a Government business enterprise);

                     (c)  a Government business enterprise;

from being:

                     (d)  subject to proceedings for a contravention of subclause 2(1) of Schedule 2; or

                     (e)  liable to be prosecuted for an offence; or

                      (f)  liable to pay any fine or penalty under the Act or the regulations.

18  Subsection 12(1)

Omit “ Commonwealth Employees’ Rehabilitation and Compensation Act 1988 ”, substitute “ Safety, Rehabilitation and Compensation Act 1988 ”.

19  Paragraph 12(1)(b)

Omit “, either on its own initiative or on request,”.

20  At the end of paragraph 12(1)(b)

Add “(including the matters that should be covered by safety management arrangements)”.

21  At the end of subsection 12(1)

Add:

                   ; (h)  to issue any directions that the Commission considers, on reasonable grounds, to be appropriate to employers on the conduct of elections under section 25A for health and safety representatives.

22  At the end of subsection 14(1)

Add:

Note:          For the meaning of contractor , see subsection 5(1).

23  At the end of Part 1

Add:

15A   Application of Criminal Code

                   The Criminal Code applies to all offences against this Act.

24  Subsection 16(1) (penalty)

Repeal the penalty.

25  At the end of subsection 16(1)

Add:

Note:          An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).

26  Subsection 16(2)

Omit “contravenes”, substitute “breaches”.

27  Paragraph 16(2)(d)

Repeal the paragraph, substitute:

                     (d)  to develop, in consultation with the employees of the employer, safety management arrangements that will:

                              (i)  enable effective co-operation between the employer and the employees in promoting and developing measures to ensure the employees’ health, safety and welfare at work; and

                             (ii)  provide adequate mechanisms for informing the employees about the arrangements; and

                            (iii)  provide adequate mechanisms for reviewing the effectiveness of the arrangements; and

                            (iv)  provide adequate mechanisms for the variation of the arrangements in consultation with the employees; and

                             (v)  provide for a dispute resolution mechanism to deal with disputes arising in the course of consultations held under this Act (other than section 24) between the employer and the employees; and

                            (vi)  in the case of an employer who is required under section 34 to establish a health and safety committee—provide for the manner in which the health and safety committee is to be established and is to operate; and

28  Subsection 16(3)

Repeal the subsection.

29  Subsection 16(5)

Omit “contravenes”, substitute “breaches”.

30  After section 16

Insert:

16A   Development of safety management arrangements

             (1)  In developing or varying safety management arrangements, an employer must have regard to any advice of the Commission on the matter (whether the advice has been given to that employer, or to employers generally).

             (2)  An employee of an employer who is holding consultations to develop or vary safety management arrangements may choose to be represented in the consultations by another employee of the employer.

             (3)  Alternatively, the employee may request representation in the consultations by:

                     (a)  an officer or employee of the employee’s representative association; or

                     (b)  a person authorised under the rules of such an association;

if there is no workplace association representative at the employee’s workplace.

             (4)  To avoid doubt, if a representative association is involved in consultations, this does not prevent employees who choose to be involved, or representative employees as mentioned in subsection (2), from being involved in the consultations.

16B   Certificate for representative association involved in consultations

             (1)  If the Chief Executive Officer of Comcare considers, on application by a representative association, that an employee has requested the representative association to be involved in consultations held by an employer in the course of developing or varying safety management arrangements, the Chief Executive Officer may issue a certificate to that effect.

             (2)  The application must be in the prescribed form.

             (3)  The certificate must not identify any of the employees concerned. However, it must identify the association, the employer and the proposed consultations.

             (4)  The certificate ceases to have effect at the earlier of:

                     (a)  the time when the Chief Executive Officer of Comcare considers that each of the employees who requested to be represented by the association in consultations identified by the certificate has requested that the certificate cease to have effect; and

                     (b)  the end of the 12 month period that started when the certificate was issued.

             (5)  If a certificate ceases to have effect under paragraph (4)(a), the Chief Executive Officer of Comcare must notify the association, and the employer, in writing.

             (6)  A certificate is, for all purposes of this Act, prima facie evidence of the matters stated in it.

31  Section 17 (penalty)

Repeal the penalty.

32  At the end of section 17

Add:

Note:          An employer who breaches section 17 may be subject to civil action or a criminal prosecution (see Schedule 2).

33  Subsection 18(1) (penalty)

Repeal the penalty.

34  At the end of subsection 18(1)

Add:

Note:          A manufacturer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).

35  Subsection 18(2) (penalty)

Repeal the penalty.

36  At the end of subsection 18(2)

Add:

Note:          A manufacturer who breaches subsection (2) may be subject to civil action or a criminal prosecution (see Schedule 2).

37  Subsection 19(1) (penalty)

Repeal the penalty.

38  At the end of subsection 19(1)

Add:

Note:          A supplier who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).

39  Subsection 20(1)

Repeal the subsection (including the penalty), substitute:

             (1)  A person who erects or installs any plant in a workplace for the use of employees at work must take all reasonably practicable steps to ensure that the plant is not erected or installed in such a manner that:

                     (a)  the plant is unsafe for, or constitutes a risk to the health of, employees at the workplace where the plant is erected or installed; or

                     (b)  the process of erection or installation is unsafe for, or constitutes a risk to the health of, employees at the workplace where the plant is erected or installed.

Note:          A person who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).

40  Subsection 21(1) (penalty)

Repeal the penalty.

41  At the end of subsection 21(1)

Add:

Note:          An employee who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).

42  Paragraph 21(2)(a)

Repeal the paragraph, substitute:

                     (a)  agreed on between the employer and employees (or their representatives under subsection 16A(2), (3) or (4)) of the employer; or

43  Subsections 24(1) to (3)

Repeal the subsections, substitute:

             (1)  An employee may request his or her employer to:

                     (a)  establish designated work groups in respect of employees of the employer; or

                     (b)  vary designated work groups that have already been established.

             (2)  The employer must, within 14 days after receiving such a request, enter into consultations with the employer’s employees to establish or vary (as the case requires) designated work groups.

             (3)  If an employer believes that designated work groups should be varied, the employer may at any time enter into consultations about the variation with:

                     (a)  the health and safety representative of each designated work group proposed to be varied; and

                     (b)  if an employee in a designated work group proposed to be varied so requests—a representative association in relation to the employee.

44  After section 24

Insert:

24A   Consultations on designated work groups are safety management arrangement consultations

                   For the purposes of this Act, consultations under section 24 are taken to be consultations to develop safety management arrangements. However, for the purposes of developing safety management arrangements as described in paragraph 16(2)(d), it is not sufficient for an employer merely to hold consultations under section 24.

24B   List of designated work groups

             (1)  An employer must:

                     (a)  prepare and keep up to date a list of all designated work groups comprising employees performing work for the employer; and

                     (b)  ensure that the list is available for inspection by investigators and the employees at all reasonable times.

             (2)  The list must describe the categories of employees included in each designated work group.

45  Subsections 25(4) to (10)

Repeal the subsections, substitute:

             (4)  If a person is selected as the health and safety representative for a designated work group under paragraph (3)(a), the person must inform the employer of the employees in the group of this fact as soon as practicable after the selection is made.

Note:       The heading to section 25 is replaced by the heading “ Selection of health and safety representatives ”.

46  After section 25

Insert:

25A   Election of health and safety representatives

             (1)  If:

                     (a)  there is a vacancy in the office of health and safety representative for a designated work group; and

                     (b)  within a reasonable time after the vacancy occurs, a person has not been selected under paragraph 25(3)(a);

the employer of the employees in the designated work group must invite nominations for election as the health and safety representative of the group.

             (2)  If the office of health and safety representative is vacant and the employer has not invited nominations within a reasonable time, the Commission may direct the employer to do so.

             (3)  If there is more than one candidate for election at the close of the nomination period, the employer must conduct, or arrange for the conduct of, an election at the employer’s expense.

             (4)  If there is only one candidate for election at the close of the nomination period, that person is taken to have been elected.

             (5)  A person cannot be a candidate in the election if he or she is disqualified under section 32.

             (6)  All the employees in the designated work group are entitled to vote in the election.

             (7)  An employer conducting or arranging for the conduct of an election under this section must comply with any relevant directions issued by the Commission.

25B   List of health and safety representatives

                   An employer must:

                     (a)  prepare and keep up to date a list of all the health and safety representatives of designated work groups comprising employees performing work for the employer; and

                     (b)  ensure that the list is available for inspection by investigators and the employees at all reasonable times.

25C   Employees must be notified of selection etc. of health and safety representative

                   The employer of employees in a designated work group must:

                     (a)  notify those employees of a vacancy in the office of health and safety representative for the designated work group within a reasonable time after the vacancy arises; and

                     (b)  notify those employees of the name of any person selected (whether under paragraph 25(3)(a) or 25(3)(b)) as health and safety representative for the designated work group within a reasonable time after the selection is made.

47  Section 26

Repeal the section, substitute:

26   Term of office

             (1)  A health and safety representative for a designated work group holds office for the period specified in the safety management arrangements applying to the employees in the designated work group, but is eligible to be selected for further terms of office.

             (2)  If a period is not specified in safety management arrangements applying to the designated work group, the term of office is 2 years.

             (3)  This section is subject to sections 26A and 31.

26A   Casual vacancy

                   If a person (the retiring representative ) ceases to hold office as a health and safety representative before the end of the person’s term of office, the person selected to fill the vacancy holds office:

                     (a)  if the vacancy occurred more than 6 months before the retiring representative’s term of office ended—for the remainder of the retiring representative’s term; and

                     (b)  if the vacancy occurred within the period of 6 months before the retiring representative’s term of office ended—for the remainder of the retiring representative’s term and for the next term of office.

48  Subparagraph 28(1)(a)(ii)

Omit “or to”, substitute “, to Comcare or to”.

49  Section 29

Omit “contravening” (wherever occurring), substitute “breaching”.

50  Paragraph 29(1)(b)

Omit “contravened”, substitute “breached”.

51  Section 29

Omit “contravene” (wherever occurring), substitute “breach”.

52  Section 29

Omit “contravention” (wherever occurring), substitute “breach”.

53  After subsection 29(3)

Insert:

          (3A)  The notice has effect as soon as it is given to a person in accordance with subsection (2) or (3).

54  Subsection 29(8)

Omit “the Commission”, substitute “Comcare”.

55  Subsection 29(9)

Omit “Upon the request being made”, substitute “When a request is made under subsection (8)”.

56  After subsection 29(9)

Insert:

          (9A)  The health and safety representative may request Comcare or an investigator to investigate a matter that is the subject of a notice if:

                     (a)  the responsible person has not complied with the notice within the period specified in the notice (including any extensions); and

                     (b)  an investigation has not been requested under subsection (8).

57  Subsection 29(10)

After “a request” insert “(under subsection (8) or (9A))”.

58  After paragraph 31(1)(b)

Insert:

                    (ba)  the designated work group is varied under subsection 24(6) and the variation results in a change to the membership of the group; or

59  Subsections 31(2) to (4)

Repeal the subsections, substitute:

             (2)  A person may resign as the health and safety representative for a designated work group by notice in writing delivered to the employer of the employees in the group.

             (3)  If a person resigns as the health and safety representative for a designated work group, the person must notify the employees included in the group of the resignation.

60  Subsection 32(1)

Omit “or by an involved union”, substitute “or, at the request of an employee in the designated work group, by a representative association”.

61  After subsection 33(2)

Insert:

          (2A)  If an election for a deputy health and safety representative is to be held, the employer of the employees in the designated work group must invite nominations for election.

          (2B)  Subsections 25A(3), (4), (6) and (7) apply to the election.

Note 1:       Subsections 25A(1) and (2) do not apply in relation to deputy health and safety representatives because the selection of a deputy is optional, not required, for each designated work group.

Note 2:       Subsection 25A(5) does not apply in relation to deputy health and safety representatives because only health and safety representatives can be disqualified under section 32.

62  Section 34

Repeal the section, substitute:

34   Health and safety committees

             (1)  An employer must establish a health and safety committee in respect of the employer’s employees if the number of the employer’s employees is normally not less than 50.

             (2)  An employer must also establish a health and safety committee in respect of the employer’s employees in a particular State or Territory if:

                     (a)  the number of the employer’s employees in the State or Territory is normally not less than 50; and

                     (b)  a health and safety representative of a designated work group comprising employees performing work for the employer in the State or Territory gives a written request to the employer asking the employer to establish such a committee; and

                     (c)  the request is reasonable.

             (3)  A health and safety committee established under subsection (1) or (2) is to operate in accordance with the safety management arrangements applying to the employer’s employees.

             (4)  Nothing in this section prevents an employer from establishing, in consultation with its employees or any other persons:

                     (a)  subcommittees of a health and safety committee; or

                     (b)  committees concerned with occupational health and safety in relation to undertakings carried on by the employer; or

                     (c)  other committees concerned, in whole or in part, with occupational health and safety.

63  Subsection 37(3)

Omit “the Commission”, substitute “Comcare”.

64  Section 39

Repeal the section, substitute:

38A   Comcare may advise employers etc.

                   Comcare may advise employers, employees or contractors, either on its own initiative or on request, on occupational health and safety matters affecting those employers, employees or contractors.

39   Referral of persons seeking advice to experts

                   If:

                     (a)  Comcare has been requested to advise an employer, employee or contractor about an occupational health and safety matter; and

                     (b)  Comcare considers that a person other than a member of the staff of, or a consultant to, Comcare has special knowledge or experience relevant to the request;

Comcare may refer the employer, employee or contractor to the person.

65  Paragraph 41(1)(b)

Omit “contravention” (wherever occurring), substitute “breach”.

66  Subsection 41(2)

Omit “The Commission”, substitute “Comcare or the Commission”.

67  Paragraph 41(2)(b)

Omit “contravention” (wherever occurring), substitute “breach”.

68  Subsection 41(2)

Omit all the words from and including “must”, substitute:

must conduct an investigation accordingly, unless:

                     (d)  in the case of a direction given by Comcare—Comcare or the Commission revokes the direction; or

                     (e)  in the case of a direction given by the Commission—the Commission revokes the direction.

69  Subsection 41(3)

Omit “The Commission”, substitute “Comcare or the Commission”.

70  Subsection 41(3)

Omit all the words from and including “must”, substitute:

must conduct an investigation accordingly, unless:

                     (a)  in the case of a direction given by Comcare—Comcare or the Commission revokes the direction; or

                     (b)  in the case of a direction given by the Commission—the Commission revokes the direction.

71  Subsection 41(4)

Omit “Before giving a direction under subsection (3), the Commission”, substitute “Before Comcare or the Commission gives a direction under subsection (3), the body about to give the direction”.

72  Subsection 41(5)

Omit “An involved union may”, substitute “A representative association may, if requested by an employee,”.

73  Subsection 41(5)

Omit “an investigator or to the Commission”, substitute “Comcare or to the Commission”.

74  Subsection 41(5)

Omit “member of the union”, substitute “member of the association”.

75  Subsection 43(1)

Omit “produce any documents requested by the investigator”, substitute “give to the investigator any documents requested by the investigator or copies of such documents”.

76  Subsection 43(2)

Repeal the subsection (including the penalty), substitute:

             (2)  A person must comply with a requirement made of the person under subsection (1).

Note:          A person who breaches subsection (2) may be subject to civil action or a criminal prosecution (see Schedule 2).

77  Subsection 43(3)

Repeal the subsection (including the penalty), substitute:

             (3)  A person who gives information that is false or misleading in a material particular fails to comply with a requirement made of the person under subsection (1).

Note:       If item 300 of Schedule 2 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 has commenced before the day on which this Act commences under subsection 2(1), this item does not come into operation (see subsection 2(2)).

78  At the end of section 43

Add:

             (4)  If a person gives an investigator documents or copies of documents under subsection (1), the investigator must return them to the person as soon as practicable after:

                     (a)  they are no longer needed in connection with the conduct of the investigation; and

                     (b)  either:

                              (i)  a decision is made by the investigator not to use the documents or copies in evidence for proceedings for an offence against this Act or the regulations; or

                             (ii)  the documents or copies have been used in such proceedings.

79  Subsection 45(1)

After “person who is”, insert “, or who may reasonably be presumed to be,”.

80  At the end of subsection 45(3)

Add:

; until the direction has expired, been revoked or been varied.

81  Subsection 45(5) (penalty)

Repeal the penalty.

82  At the end of subsection 45(5)

Add:

Note:          An employer who breaches subsection (5) may be subject to civil action or a criminal prosecution (see Schedule 2).

83  At the end of section 45

Add:

             (7)  An investigator may revoke or vary a direction given under this section by giving a written notice to that effect to the person who is, or who may reasonably be presumed to be, for the time being in charge of operations at the workplace.

             (8)  If a direction is varied:

                     (a)  a copy of the text of the original direction and any variations to it must be included in the notice; and

                     (b)  the person to whom the written notice is given must cause that notice to be displayed in a prominent place at the workplace:

                              (i)  that is, or a specified part of which is, under the notice, to be left undisturbed; or

                             (ii)  at which the plant, substance or thing that is, under the notice, to be left undisturbed, is located;

                            until the direction has expired, been revoked or been varied; and

                     (c)  the investigator must take all reasonable steps to notify people who were notified of the giving of the direction under subsection (1) of the variation of the direction and the terms of the varied direction.

84  After section 45

Insert:

45A   Power to direct orally that workplace etc. not be disturbed

             (1)  An investigator may orally direct the person who is, or who may reasonably be presumed to be, for the time being in charge of operations at the workplace to ensure that a workplace, a part of a workplace, plant, a substance or a thing not be disturbed for a specified period if the investigator:

                     (a)  considers on reasonable grounds that it is necessary to give the oral direction in order to:

                              (i)  remove an immediate threat to the health or safety of any person; or

                             (ii)  allow the inspection, examination or taking of measurements of, or conducting of tests concerning, a workplace or any plant, substance or thing at a workplace; and

                     (b)  considers on reasonable grounds that there is not adequate time available to make a direction by written notice under section 45.

             (2)  The specified period:

                     (a)  must be no longer than the period that the investigator considers on reasonable grounds is necessary in order to remove the threat or to allow the inspection, examination, measuring or testing to take place; and

                     (b)  must end no later than 48 hours after the direction is given.

             (3)  An employer who has control over the workplace, plant, substance or thing to which the direction relates, and whose employees use the workplace, plant, substance or thing in the performance of work for the employer, must ensure the direction is complied with.

Note:          If an employer breaches subsection (3), the employer may be subject to civil action or a criminal prosecution (see Schedule 2).

             (4)  The oral direction ceases to have effect at the earliest of the following times:

                     (a)  the time when the specified period under subsection (2) ends;

                     (b)  the time when the oral direction is revoked under subsection (5);

                     (c)  the time when a direction under section 45 is given if that direction is made for the purposes of the same investigation and in respect of:

                              (i)  the same workplace, part of a workplace, plant, substance or thing; and

                             (ii)  the same threat, inspection, examination, measuring or testing;

                            as the oral direction.

             (5)  The direction may be revoked by informing the person who is for the time being in charge of operations at the workplace that the direction is revoked.

             (6)  The direction cannot be renewed or varied and no other direction under this section may be made for the purposes of the same investigation and in respect of:

                     (a)  the same workplace, part of a workplace, plant, substance or thing; and

                     (b)  the same threat, inspection, examination, measuring or testing;

as the first mentioned direction.

Note:       The heading to section 45 is altered by inserting “ in writing ” after “ direct ”.

85  At the end of subsection 46(3)

Add:

             ; and (c)  specify a period for compliance with the notice that the investigator considers on reasonable grounds is sufficient to enable compliance.

86  Subsection 46(4) (penalty)

Repeal the penalty.

87  At the end of subsection 46(4)

Add:

Note:          An employer who breaches subsection (4) may be subject to civil action or a criminal prosecution (see Schedule 2).

88  Subsection 46(6)

Repeal the subsection, substitute:

             (6)  The notice ceases to have effect when:

                     (a)  an investigator notifies the employer that the investigator considers that the employer has taken adequate action to remove the threat to health or safety that caused the notice to be issued; or

                     (b)  the notice is revoked under subsection (11).

89  Paragraph 46(9)(b)

After “displayed”, insert “, until the notice has expired, been revoked or been varied,”.

90  At the end of section 46

Add:

           (11)  An investigator may revoke or vary a notice (the original notice ) given under this section by giving a written notice (the new notice ) to that effect to the person who is, or who may be presumed on reasonable grounds to be, for the time being in charge of the activity in respect of which the original notice was issued.

           (12)  If the original notice is varied:

                     (a)  the new notice must set out the text of the original notice and the variations to it; and

                     (b)  the text of the new notice must specify a period for compliance with the new notice that the investigator considers on reasonable grounds is sufficient to enable compliance; and

                     (c)  the employer must cause a copy of the new notice to be displayed, until the new notice has expired, been revoked or been varied, in a prominent place at or near each workplace at which work affected by the notice is being performed; and

                     (d)  the investigator and employer must take all reasonable steps to give a copy of the new notice to each person to whom they gave copies of the original notice.

91  Section 47

Omit “contravening” (wherever occurring), substitute “breaching”.

92  Paragraph 47(1)(b)

Omit “contravened”, substitute “breached”.

93  Section 47

Omit “contravene” (wherever occurring), substitute “breach”.

94  After subsection 47(2)

Insert:

          (2A)  The notice has effect as soon as it is given to a person under subsection (1) or (2).

95  Section 47

Omit “contravention” (wherever occurring), substitute “breach”.

96  Subsection 47(6) (penalty)

Repeal the penalty.

97  At the end of subsection 47(6)

Add:

Note:          A responsible person who breaches subsection (6) may be subject to civil action or a criminal prosecution (see Schedule 2).

98  Paragraph 47(8)(b)

After “displayed”, insert “, until the notice has expired, been revoked or been varied,”.

99  At the end of section 47

Add:

           (10)  An investigator may revoke or vary a notice (the original notice ) given under this section by giving a written notice (the new notice ) to that effect to the person who is, or who may reasonably be presumed to be, for the time being in charge of the activity in respect of which the original notice was issued.

           (11)  If the original notice is varied:

                     (a)  the new notice must set out the text of the original notice and the variations to it; and

                     (b)  the text of the new notice must specify a period that the investigator considers is reasonable, within which the employer must comply with the new notice; and

                     (c)  the employer must cause a copy of the new notice to be displayed, until the new notice has expired, been revoked or been varied, in a prominent place at or near each workplace at which work affected by the new notice is being performed; and

                     (d)  the investigator and employer must take all reasonable steps to give a copy of the new notice to each person to whom they gave copies of the original notice.

100  After paragraph 48(1)(c)

Insert:

                    (ca)  decides, under section 45, to revoke or vary a direction that a workplace, a part of a workplace, plant, a substance or a thing not be disturbed; or

101  Before paragraph 48(1)(d)

Insert:

                    (cb)  decides, under section 45A, to direct that a workplace, a part of a workplace, plant, a substance or a thing not be disturbed; or

102  After paragraph 48(1)(d)

Insert:

                    (da)  decides, under section 46, to revoke or vary a prohibition notice; or

103  After paragraph 48(1)(f)

Insert:

                or (fa)  decides, under section 47, to revoke or vary an improvement notice;

104  Paragraph 48(1)(k)

Repeal the paragraph.

105  Before paragraph 48(1)(m)

Insert:

                      (l)  a representative association in relation to the designated work group that includes an employee affected by the decision who has requested the representative association to make the appeal; or

106  Paragraph 48(1)(m)

Repeal the paragraph, substitute:

                    (m)  if there is no such designated work group and an employee affected by the decision has requested the employee’s representative association to make the appeal—the representative association; or

107  Paragraphs 48(2)(d) and (e)

Repeal the paragraphs, substitute:

                     (d)  if an employee affected by the decision has requested the employee’s representative association in relation to the designated work group to make the appeal—the representative association; or

                     (e)  if there is no such designated work group and an employee affected by the decision has requested the employee’s representative association to make the appeal—the representative association.

108  Section 50

Repeal the section, substitute:

50   Notices not to be tampered with or removed

                   A person must not:

                     (a)  tamper with any notice, or copy of a notice, that has been displayed under subsection 44(3), 45(3), 45(8), 46(9), 46(12), 47(8) or 47(11) while that notice is so displayed; or

                     (b)  remove any notice, or copy of a notice, that has been so displayed:

                              (i)  in the case of a notice displayed under subsection 44(3)—until the plant or thing to which the notice relates is returned to the workplace from which it was removed; or

                             (ii)  in the case of a notice displayed under subsection 45(3), 45(8), 46(9), 46(12), 47(8) or 47(11)—before the notice, or direction to which the notice relates, as the case requires, has expired or been revoked or a new notice issued following the variation of the notice or direction.

Note:          A person who breaches section 50 may be subject to a criminal prosecution (see Schedule 2).

109  Section 52

After “Division”, insert “(other than section 53)”.

110  Subsection 54(2)

Repeal the subsection (including the penalty), substitute:

             (2)  A person must comply with a requirement under subsection (1).

Note:          A person who breaches subsection (1) may be subject to a criminal prosecution (see Schedule 2).

111  Section 57

Omit “, without reasonable excuse”.

112  Section 57 (penalty)

Repeal the penalty.

113  At the end of section 57

Add:

Note:          A person who breaches section 57 may be subject to a criminal prosecution (see Schedule 2).

114  Section 59

Omit “, without reasonable excuse”.

115  Section 59

Omit “refuse or” (wherever occurring).

Note:       The heading to section 59 is altered by omitting “ Refusal ” and substituting “ Failure ”.

116  Section 59 (penalty)

Repeal the penalty.

117  At the end of section 59

Add:

Note:          A person who breaches section 59 may be subject to a criminal prosecution (see Schedule 2).

118  Section 61 (penalty)

Repeal the penalty.

119  At the end of section 61

Add:

Note:          A person who breaches section 61 may be subject to a criminal prosecution (see Schedule 2).

120  Section 64 (penalty)

Repeal the penalty.

121  At the end of section 64

Add:

Note:          A person who breaches section 64 may be subject to a civil action (see Schedule 2).

122  Paragraph 66(1)(a)

After “section 45”, insert “or 45A”.

123  Section 67

Omit “ Commonwealth Employees’ Rehabilitation and Compensation Act 1988 ”, substitute “ Safety, Rehabilitation and Compensation Act 1988 ”.

124  Subsection 68(1)

Omit “, and such a report concerning,”.

Note:       The heading to section 68 is altered by omitting “ and reporting ”.

125  Subsection 68(2)

Repeal the subsection, substitute:

             (2)  Without limiting the provision that may be made by regulations made for the purposes of this section, the regulations (not being regulations made for the purpose of paragraph (1)(b)) may include provisions relating to:

                     (a)  the time within which notice of an accident or dangerous occurrence must be given; and

                     (b)  the manner in which the notice must be given; and

                     (c)  the form of the notice.

126  Subsection 70(7)

Omit “the offices of the Commission”, substitute “each of the offices of Comcare”.

127  Section 71

Omit “contravened”, substitute “breached”.

128  Section 71

Omit “contravention” (wherever occurring), substitute “breach”.

129  Section 72

Omit “, without reasonable cause, wilfully or recklessly”.

130  Section 72

Omit “which the person knew or ought reasonably to have known was protective equipment or a safety device”.

131  Section 72 (penalty)

Repeal the penalty.

132  At the end of section 72

Add:

Note:          A person who breaches section 72 may be subject to a criminal prosecution (see Schedule 2).

133  Section 73 (penalty)

Repeal the penalty.

134  At the end of section 73

Add:

Note:          An employer who breaches section 73 may be subject to civil action (see Schedule 2).

135  Paragraph 74(1)(c)

Repeal the paragraph, substitute:

                     (c)  the safety management arrangements of the Department or authority;

136  Paragraph 74(1)(d)

Omit “measures”, substitute “initiatives”.

137  After paragraph 74(1)(d)

Insert:

                    (da)  health and safety outcomes (including the impact on injury rates of employees and contractors of the Department or authority) achieved as a result of initiatives mentioned under paragraph (d) or previous initiatives;

138  Paragraph 74(1)(f)

Repeal the paragraph, substitute:

                      (f)  any investigations conducted during the year that relate to undertakings carried on by the employer, including details of all notices given to the employer under section 29, 46 or 47 during the year;

139  Paragraph 74(1)(g)

Repeal the paragraph, substitute:

                     (g)  such other matters as are required by guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.

140  Subparagraph 75(c)(iii)

Omit “section 45”, substitute “sections 45 and 45A”.

141  Subsection 76(1) (penalty)

Repeal the penalty.

142  At the end of subsection 76(1)

Add:

Note:          An employer who breaches this section may be subject to civil action (see Schedule 2).

143  Subsection 76(2)

Repeal the subsection.

144  Subsections 77(1) and (2)

Repeal the subsections, substitute:

             (1)  Proceedings for a breach of this Act or the regulations may be instituted by Comcare or by an investigator.

             (2)  A health and safety representative for a designated work group may request Comcare to institute proceedings for a breach of this Act or the regulations in relation to the occurrence of an act or omission if:

                     (a)  a period of 6 months has elapsed since the act or omission occurred; and

                     (b)  the health and safety representative considers that the occurrence of the act or omission constitutes a breach of this Act or the regulations; and

                     (c)  proceedings in respect of the breach have not been instituted.

          (2A)  A representative association in relation to a designated work group may request Comcare to institute proceedings for a breach of this Act or the regulations in relation to the occurrence of an act or omission if:

                     (a)  a period of 6 months has elapsed since the act or omission occurred; and

                     (b)  the association considers that the occurrence of the act or omission constitutes a breach of this Act or the regulations; and

                     (c)  proceedings in respect of the breach have not been instituted; and

                     (d)  an employee included in the group requests the association to request Comcare to institute the proceedings.

          (2B)  A request under subsection (2) or (2A) must be in writing.

Note:       The heading to section 77 is altered by omitting “ prosecutions ” and substituting “ proceedings ”.

145  Subsection 77(3)

After “subsection (2)”, insert “or (2A)”.

146  Subsection 77(3)

Omit “involved union”, substitute “representative association”.

147  After section 77

Insert:

77A   Injunctions

Applications for injunctions

             (1)  Comcare or an investigator (the applicant ) may apply to a court for an injunction if another person (the relevant person ) has breached, is breaching, or proposes to breach this Act or the regulations.

Prohibitory injunctions

             (2)  The court may grant an injunction restraining the relevant person from breaching this Act or the regulations:

                     (a)  whether or not it appears to the court that the relevant person intends to breach the Act or the regulations again, or to continue to breach the Act or the regulations; and

                     (b)  whether or not the body has previously breached the Act or regulations;

if the body has breached, is breaching, or proposes to breach this Act or the regulations.

Additional orders with prohibitory injunctions

             (3)  The court may make an order requiring the relevant person to do something if:

                     (a)  the court grants an injunction restraining the relevant person from engaging in actionable conduct; and

                     (b)  in the court’s opinion it is desirable to make the order.

Mandatory injunctions

             (4)  The court may grant an injunction requiring the relevant person to do an act:

                     (a)  whether or not it appears to the court that the relevant person intends to refuse or fail again, or to continue to refuse or fail, to do the act or thing; and

                     (b)  whether or not the relevant person has previously refused or failed to do the act or thing;

if the relevant person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure did, does or would constitute a breach of the Act or the regulations.

Interim injunctions

             (5)  The court may grant an interim injunction:

                     (a)  restraining the relevant person from engaging in conduct; or

                     (b)  requiring the relevant person to do an act;

before deciding an application for an injunction under this section.

Discharge of injunctions

             (6)  The court may discharge, or vary, an injunction if an application for it to do so is made.

No undertakings as to damages

             (7)  The court must not require the applicant to give an undertaking as to damages as a condition of granting an interim injunction.

Powers conferred in addition to other powers of the court

             (8)  The powers conferred on the court by this section are in addition to (and do not limit) any other powers of the court.

77B   Remedial orders

             (1)  If:

                     (a)  a court makes a declaration under clause 2 of Schedule 2 or convicts a person of an offence against this Act or the regulations; and

                     (b)  it appears to the court that the person could fully or partly remedy a state of affairs that arose as a direct or indirect result of the conduct that was the subject of the declaration or offence; and

                     (c)  the court has been requested to make an order under this subsection; and

                     (d)  the court has considered any relevant material given to it by Comcare;

then the court may order the person to take any steps that it considers are necessary and appropriate to rectify the state of affairs and that are within the person’s power to take.

             (2)  If:

                     (a)  an employer has breached section 64 or 76 in respect of an employee; and

                     (b)  a court has made a declaration under clause 2 of Schedule 2 relating to that breach; and

                     (c)  the court has been requested to make an order under this subsection; and

                     (d)  the court has considered any relevant material given to it by Comcare;

then, if the court considers it appropriate, the court may make any of the following orders:

                     (e)  an order requiring the employer to reinstate the employee or former employee;

                      (f)  an order requiring the employer to pay the employee or former employee compensation of such amount as the court considers appropriate;

                     (g)  an order requiring the employer not to carry out a threat made by the employer, or not to make any further threat;

                     (h)  injunctions (including interim injunctions), and any other orders, that the court considers necessary to stop the conduct or remedy its effects.

Consequential orders

             (3)  If a court makes an order under this section, it may also make any other consequential orders (including orders as to costs) that it considers appropriate.

148  Subsection 78(1)

Omit “an offence against”, substitute “a breach of”.

149  Subsection 78(2)

Omit “a prosecution for an offence against”, substitute “proceedings for a breach of”.

150  Subsection 78(3)

Omit “an offence against”, substitute “a breach of”.

151  Subsection 78(4)

Omit “a prosecution for an offence against”, substitute “proceedings for a breach of”.

152  Section 79

After “civil proceedings” (wherever occurring), substitute “(other than proceedings under Part 1 of Schedule 2)”.

153  Paragraph 79(a)

Omit “contravention”, substitute “breach”.

154  Section 80

Omit “contravention” (wherever occurring), substitute “breach”.

Note:       The heading to section 80 is altered by omitting “ contravention ” and substituting “ breach ”.

155  Subsection 80(2)

Omit “contravenes”, substitute “breaches”.

156  Paragraphs 82(1)(c), (d) and (e)

Repeal the paragraphs.

157  Paragraph 82(1)(h)

Repeal the paragraph, substitute:

                     (h)  civil or criminal penalties, for a breach of the regulations, not exceeding:

                              (i)  50 penalty units for an individual; or

                             (ii)  250 penalty units for a body corporate.

158  Schedule (heading)

Repeal the heading (including the note), substitute:

Schedule 1 Government business enterprises

Note:       See section 5 (definition of Government business enterprise ).

159  Schedule 1

Insert the following entries in their appropriate alphabetical positions, determined on a letter-by-letter basis:

Australian Government Solicitor

Defence Housing Authority

160  Schedule 1

Omit the following entries:

ANL Limited

Health Insurance Commission

Housing Loans Insurance Corporation

Pipeline Authority

Telstra Corporation Limited

161  At the end of the Act

Add:

Schedule 2 Civil proceedings and criminal prosecutions in respect of breaches of the Act

Part 1 Civil proceedings

   

1   Courts that may exercise jurisdiction under this Part

                   The only courts that may exercise jurisdiction under this Part are the Federal Court of Australia and the Supreme Court of each State or Territory.

2   Declarations of contravention

             (1)  If a court considers that a person has breached one of the following provisions, or was involved in such a breach, it must make a declaration that the person has contravened this subclause:

                     (a)  subsection 16(1) (duties of employers in relation to their employees etc.);

                     (b)  section 17 (duty of employers in relation to third parties);

                     (c)  subsection 18(1) or 18(2) (duties of manufacturers in relation to plant and substances);

                     (d)  subsection 19(1) (duties of suppliers in relation to plant and substances);

                     (e)  subsection 20(1) (duties of person erecting or installing plant in a workplace);

                      (f)  subsection 21(1) (duties of employees in relation to occupational health and safety);

                     (g)  subsection 43(2) (requirement to provide assistance and information);

                     (h)  subsection 45(5) (requirement to ensure compliance with direction that workplace etc. not be disturbed);

                      (i)  subsection 45A(3) (requirement to ensure compliance with oral direction that workplace etc. not be disturbed);

                      (j)  subsection 46(4) (requirement to ensure that prohibition notice complied with);

                     (k)  subsection 47(6) (requirement to comply with improvement notice);

                      (l)  section 64 (requirement not to prejudice witnesses in employment);

                    (m)  section 73 (requirement not to levy employees etc.);

                     (n)  section 76 (requirement not to dismiss etc. employees on certain grounds).

Note:          Once a declaration has been made, the court can make a pecuniary penalty order (see clause 3).

             (2)  In proceedings for a declaration of contravention under subclause (1) in relation to a breach of section 76, if all the relevant facts and circumstances, other than the reason for an action, are proved, it lies on the person who allegedly breached that section to establish that the action was not taken for that reason.

             (3)  A declaration of contravention made under subclause (1) must specify the following:

                     (a)  the court that made the declaration;

                     (b)  that the subclause was contravened;

                     (c)  any provision listed in that subclause that the person who contravened it breached or was involved in breaching;

                     (d)  the person who contravened that subclause;

                     (e)  the conduct that constituted the contravention;

                      (f)  the Commonwealth Department or Commonwealth authority to which the conduct related.

3   Declaration of contravention is conclusive evidence

                   A declaration of contravention is conclusive evidence of the matters referred to in subclause 2(3).

4   Pecuniary penalty orders

             (1)  If a court has declared, under subclause 2(1), a contravention of that subclause by a person because the person breached, or was involved in the breach of, a provision listed in that subclause, the court may order the person to pay the Commonwealth a pecuniary penalty.

             (2)  The pecuniary penalty must not exceed the amount stated in the table to be the maximum penalty in relation to the provision concerned.

 

Maximum penalty for breach of provisions listed in subclause 2(1)

Item

Provision the person breached, or was involved in the breach of:

Maximum penalty:

1

subsection 16(1) (duties of employers in relation to their employees etc.)

2,200 penalty units

2

section 17 (duty of employers in relation to third parties)

2,200 penalty units

3

subsection 18(1) (duties of manufacturers in relation to plant and substances)

440 penalty units for a natural person

2,200 penalty units for a body corporate

4

subsection 18(2) (duties of manufacturers in relation to plant and substances)

440 penalty units for a natural person

2,200 penalty units for a body corporate

5

subsection 19(1) (duties of suppliers in relation to plant and substances)

440 penalty units for a natural person

2,200 penalty units for a body corporate

6

subsection 20(1) (duties of person erecting or installing plant in a workplace)

440 penalty units for a natural person

2,200 penalty units for a body corporate

7

subsection 21(1) (duties of employees in relation to occupational health and safety)

90 penalty units

8

subsection 43(2) (requirement to provide assistance and information)

30 penalty units

9

subsection 45(5) (requirement to ensure compliance with direction that workplace etc. not be disturbed)

250 penalty units

10

subsection 45A(3) (requirement to ensure compliance with oral direction that workplace etc. not be disturbed)

250 penalty units

11

subsection 46(4) (requirement to ensure that prohibition notice complied with)

250 penalty units

12

subsection 47(6) (requirement to comply with improvement notice)

10 penalty units for each day on which a person breaches subsection 47(6)

13

section 64 (requirement not to prejudice witnesses in employment)

30 penalty units

14

section 73 (requirement not to levy employees etc.)

250 penalty units

15

section 76 (requirement not to dismiss etc. employees on certain grounds)

250 penalty units

             (3)  The penalty is a civil debt payable to the Commonwealth. Comcare may enforce the order as if it were an order made in civil proceedings against the person to recover a debt owed by the person. The debt arising from the order is taken to be a judgment debt.

             (4)  In spite of the provisions of any other law, if a fine is imposed under this clause, a court must not direct that a person serve a sentence of imprisonment in default of the payment of the fine.

5   Who may apply for a declaration or order?

Application by Comcare or investigator

             (1)  Comcare or an investigator may apply for a declaration of contravention or a pecuniary penalty order.

No-one else may apply

             (2)  No person may apply for a declaration of contravention or a pecuniary penalty order unless permitted by this clause.

             (3)  Subclause (2) does not exclude the operation of the Director of Public Prosecutions Act 1983 .

6   Time limit for application for a declaration or order

                   Proceedings for a declaration of contravention or a pecuniary penalty order cannot be started more than 6 years after the alleged breach on which the proceedings are based.

7   Conduct constituting a breach of 2 or more provisions listed in subclause 2(1)

                   Proceedings may be instituted under this Act against a person in relation to one or more contraventions of subclause 2(1). However, the person is not liable to more than one pecuniary penalty under this clause in respect of the same conduct.

8   Civil evidence and procedure rules for declarations of contravention etc.

                   The court must apply the rules of evidence and procedure for civil matters in proceedings for:

                     (a)  a declaration of contravention; or

                     (b)  a pecuniary penalty order.

9   Civil proceedings after criminal proceedings

                   A court must not make a declaration of contravention or a pecuniary penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

10   Criminal proceedings during civil proceedings

             (1)  Proceedings for a declaration of contravention or a pecuniary penalty order against a person are stayed if:

                     (a)  criminal proceedings are started or have already been started against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the declaration or order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the declaration or order are dismissed.

11   Criminal proceedings after civil proceedings

                   Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of subclause 2(1), regardless of whether:

                     (a)  a declaration of contravention has been made against the person; or

                     (b)  a pecuniary penalty order has been made against the person.

12   Evidence given in proceedings for penalty not admissible in criminal proceedings

                   Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a breach of a provision listed in subclause 2(1) (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

13   Relief from liability for contravention of subclause 2(1)

             (1)  In this clause:

civil penalty proceedings :

                     (a)  means proceedings for a contravention of subclause 2(1); and

                     (b)  does not include proceedings for an offence.

             (2)  If:

                     (a)  civil penalty proceedings are brought against a person; and

                     (b)  in the proceedings, it appears to the court that the person has, or may have, contravened subclause 2(1) but that:

                              (i)  the person has acted honestly; and

                             (ii)  having regard to all the circumstances of the case, the person ought fairly to be excused for the contravention;

the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention.

             (3)  If a person considers that civil penalty proceedings will or may be begun against them, they may apply to the court for relief.

             (4)  On an application under subclause (3), the court may grant relief under subclause (2) as if the civil penalty proceedings had been begun in the court.

             (5)  For the purposes of applying subclause (2) to a case tried by a judge with a jury:

                     (a)  a reference in that subclause to the court is a reference to the judge; and

                     (b)  the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge considers appropriate.

14   Undertakings

             (1)  Comcare may accept a written undertaking relating to the fulfilment of an obligation under this Act, if the undertaking is given in writing to Comcare by a person who is required to fulfil the obligation.

             (2)  The person must not withdraw or vary the undertaking without the written consent of Comcare.

             (3)  If proceedings relating to whether a declaration should be made against a person under clause 2 have commenced, the court may adjourn the proceedings if Comcare requests the court to do so on the grounds that Comcare considers that an appropriate written undertaking by the person under subclause (1) is in force.

             (4)  If the court considers that a person has breached a term of an undertaking, or that the person has withdrawn or varied the undertaking without the written consent of Comcare, the court may, if it thinks fit:

                     (a)  revive any proceedings adjourned under subclause (3); or

                     (b)  make an order directing the person to comply with the term (regardless of whether the person has withdrawn or varied the undertaking) and any consequential orders it considers appropriate.

Part 2 Criminal prosecutions

   

15   Criminal jurisdiction not conferred on Federal Court

                   This Part does not confer any criminal jurisdiction on the Federal Court of Australia.

16   Offences resulting in death or serious bodily harm

             (1)  A person commits an offence if:

                     (a)  the person breaches one of the following provisions:

                              (i)  subsection 16(1) (duties of employers in relation to their employees etc.);

                             (ii)  section 17 (duty of employers in relation to third parties);

                            (iii)  subsection 18(1) or 18(2) (duties of manufacturers in relation to plant and substances);

                            (iv)  subsection 19(1) (duties of suppliers in relation to plant and substances);

                             (v)  subsection 20(1) (duties of person erecting or installing plant in a workplace);

                            (vi)  subsection 21(1) (duties of employees in relation to occupational health and safety);

                           (vii)  subsection 43(2) (requirement to provide assistance and information);

                           (viii)  subsection 45(5) (requirement to ensure compliance with direction that workplace etc. not be disturbed);

                            (ix)  subsection 45A(3) (requirement to ensure compliance with oral direction that workplace etc. not be disturbed);

                             (x)  subsection 46(4) (requirement to ensure that prohibition notice complied with);

                            (xi)  subsection 47(6) (requirement to comply with improvement notice);

                           (xii)  section 50 (requirement not to tamper with notices);

                           (xiii)  section 72 (interference etc. with equipment etc.); and

                     (b)  the breach causes death or serious bodily harm; and

                     (c)  the person either:

                              (i)  was negligent as to whether that breach would cause death or serious bodily harm; or

                             (ii)  was reckless as to whether that breach would cause death or serious bodily harm.

Note 1:       If a person commits an offence under this subclause, the maximum penalty in relation to the offence is set out in clause 18.

Note 2:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Paragraph (1)(a) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subclause (2) (see subsection 13.3(3) of the Criminal Code ).

17   Other offences

             (1)  A person commits an offence if the person intentionally breaches one of the following provisions:

                     (a)  subsection 54(1) (requirement to give information or produce documents);

                     (b)  section 57 (failure of witness to attend);

                     (c)  section 59 (refusal to be sworn or to answer questions);

                     (d)  section 61 (contempt of Commission).

Note 1:       If a person commits an offence under this subclause, the maximum penalty in relation to the offence is set out in clause 18.

Note 2:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Subclause (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subclause (2) (see subsection 13.3(3) of the Criminal Code ).

18   Maximum penalties

             (1)  An offence against clause 16 or 17 relating to the breach of a provision is punishable on conviction by a penalty not exceeding the maximum penalty stated in the table in relation to the provision breached.

 

Maximum penalty for offences resulting from breach of provisions listed in clause 16 or 17

Item

Provision that was breached:

Maximum penalty:

1

subsection 16(1) (duties of employers in relation to their employees etc.)

4,500 penalty units

2

section 17 (duty of employers in relation to third parties)

4,500 penalty units

3

subsection 18(1) (duties of manufacturers in relation to plant and substances)

900 penalty units for a natural person

4,500 penalty units for a body corporate

4

subsection 18(2) (duties of manufacturers in relation to plant and substances)

900 penalty units for a natural person

4,500 penalty units for a body corporate

5

subsection 19(1) (duties of suppliers in relation to plant and substances)

900 penalty units for a natural person

4,500 penalty units for a body corporate

6

subsection 20(1) (duties of person erecting or installing plant in a workplace)

900 penalty units for a natural person

4,5 00 penalty units for a body corporate

7

subsection 21(1) (duties of employees in relation to occupational health and safety)

180 penalty units

8

subsection 43(2) (requirement to provide assistance and information)

30 penalty units, 6 months imprisonment, or both

9

subsection 45(5) (requirement to ensure compliance with direction that workplace etc. not be disturbed)

500 penalty units

10

Subsection 45A(3) (requirement to ensure compliance with oral direction that workplace etc. not be disturbed)

500 penalty units

11

subsection 46(4) (requirement to ensure that prohibition notice complied with)

500 penalty units

12

subsection 47(6) (requirement to comply with improvement notice)

900 penalty units (and see subclause (2))

13

section 50 (requirement not to tamper with notices)

30 penalty units, 6 months imprisonment, or both

14

subsection 54(1) (requirement to give information or produce documents)

30 penalty units, 6 months imprisonment, or both

15

section 57 (failure of witness to attend)

30 penalty units, 6 months imprisonment, or both

16

section 59 (refusal to be sworn or to answer questions)

30 penalty units, 6 months imprisonment, or both

17

section 61 (contempt of Commission)

30 penalty units, 6 months imprisonment, or both

18

section 72 (interference etc. with equipment etc.)

30 penalty units, 6 months imprisonment, or both

             (2)  Section 4K of the Crimes Act 1914 does not apply to a contravention of clause 16 in respect of a breach of subsection 47(6).

             (3)  In spite of the provisions of any other law, if a fine is imposed under this clause, a court must not direct that a person serve a sentence of imprisonment in default of the payment of the fine.



 

Part 2 Transitional, application and saving provisions

Division 1—Provisions relating to employers’ duties

162  Definitions

In this Division:

commencement means the time at which item 27 of this Schedule commences.

OHS(CE) Act means the Occupational Health and Safety (Commonwealth Employment) Act 1991 .

163  Safety management arrangements

(1)        This item applies for the period of 18 months after commencement.

(2)        An employer is not to be taken to breach subsection 16(1) of the OHS(CE) Act as in force after commencement by reason only of the employer having failed to develop safety management arrangements under paragraph 16(2)(d) of that Act.

164  Occupational health and safety policies

(1)        The amendment made by item 27 is not to be taken to affect the operation, after commencement, of an occupational health and safety policy that:

                     (a)  was developed under paragraph 16(2)(d) of the OHS(CE) Act as in force before commencement; and

                     (b)  applied to employees of an employer immediately before commencement.

(2)        However, the policy ceases to apply to the employees once safety management arrangements have been developed by the employer under paragraph 16(2)(d) of the OHS(CE) Act as in force after commencement, unless those arrangements provide for the policy to continue to apply.

165  Agreements between employers and involved unions

(1)        The amendment made by item 28 is not to be taken to affect the operation, after commencement, of an agreement of the kind referred to in subsection 16(3) of the OHS(CE) Act as in force immediately before commencement.

(2)        However, the agreement ceases to have effect if the occupational health and safety policy under which it is made ceases to apply.

(3)        The amendment made by item 42 is not to be taken to affect the operation, after commencement, of an agreement of the kind referred to in paragraph 21(2)(a) of the OHS(CE) Act as in force immediately before commencement.

Division 2—Provisions relating to workplace arrangements

166  Definitions

In this Division:

commencement means the time at which item 43 of this Schedule commences.

OHS(CE) Act means the Occupational Health and Safety (Commonwealth Employment) Act 1991 .

167  Designated work groups

A designated work group in existence immediately before commencement continues in existence after commencement as if it had been established under section 24 of the OHS(CE) Act as in force after commencement.

168  Consultations

(1)        This item applies for the period of 3 months after commencement.

(2)        If consultations under section 25 of the OHS(CE) Act had begun but had not been completed before commencement, the consultations are to be completed as if the amendments made by item 62 had not been made.

169  Health and safety representative

A person who was the health and safety representative for a designated work group immediately before commencement continues to hold office after commencement subject to the OHS(CE) Act as in force after commencement.

170  Elections

(1)        This item applies for the period of 3 months after commencement.

(2)        If, immediately before commencement, an election for a health and safety representative was being conducted but had not been completed, the election is to be completed as if the amendments made by this Schedule had not been made.

171  Applications under section 32

If an application under section 32 of the OHS(CE) Act had been made but not determined before commencement, the application is to be determined as though the amendment made by item 60 had not been made.

172  Health and safety committees

(1)        If a health and safety committee was in existence immediately before commencement, it continues in existence after commencement as if the amendments made by items 62 and 156 had not been made.

(2)        If:

                     (a)  a health and safety committee was required to be established under section 34 of the OHS(CE) Act before the commencement of item 62 in respect of an employer’s employees at a particular workplace; and

                     (b)  immediately before the commencement of item 62 the committee was not in existence;

the employer must:

                     (c)  as soon as practicable after the commencement of item 62, write to the Commission seeking directions relating to the establishment of a health and safety committee; and

                     (d)  as soon as practicable after receiving directions from the Commission, establish a committee in accordance with the directions.

(3)        A committee continued in existence under subitem (1), or established under subitem (2), continues in existence until safety management arrangements have been developed by the employer under paragraph 16(2)(d) of the OHS(CE) Act as in force after commencement.

(4)        An employer is not to be taken to breach section 34 of the OHS(CE) Act as amended by item 62 in respect of the employer’s employees if:

                     (a)  a committee continues in existence under this section in respect of those employees; or

                     (b)  the employer is acting in accordance with subitem (2) in respect of those employees.

Division 3—Miscellaneous provisions

173  Time of effect of notices

The amendments made by items 53 and 94 apply in relation to notices issued on or after the commencement of those items.

174  Reports of investigation

The amendment made by item 109 applies in relation to an investigation begun on or after the commencement of that item.

175  Notification of accidents and dangerous occurrences

The amendments made by items 124 and 125 apply in relation to accidents and dangerous occurrences occurring on or after the commencement of those items.

176  Annual reports

(1)        This item applies to an annual report under section 74 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 for the financial year in which this item commenced.

(2)        That annual report is not required to include matters mentioned in paragraph 74(1)(g) as amended by item 139 of this Act.

177  Regulations prescribing penalties

Regulations that were:

                     (a)  made under paragraph 82(1)(h) of the Occupational Health and Safety (Commonwealth Employment) Act 1991 ; and

                     (b)  in force immediately before the substitution of that paragraph by item 156;

continue in force as if they had been made under that paragraph as substituted by that item.