Essay preview
Western Australia
Occupational Safety and Health
Act 1984
As at 06 Sep 2014
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Western Australia
Occupational Safety and Health Act 1984
Contents
Part I — Preliminary
1.
2.
3.
3A.
3B.
4.
4A.
5.
Short title
Commencement
Terms used
Penalty levels defined
Offences, first and subsequent
Application of this Act
Act does not operate to affect adversely certain
police operations
Objects
2
2
2
6
8
8
10
11
Part II — Commission for
Occupational Safety and Health
6.
6A.
7.
8.
9.
10.
11.
12.
13.
14.
14A.
15.
16.
17.
18.
Commission, creation, membership of etc.
Deputy chairperson
Acting members
Terms and conditions of appointed members
WorkSafe Western Australia Commissioner
Vacation of office
Leave of absence
Casual vacancies
Meetings of Commission
Functions of Commission
Mining Industry Advisory Committee
Other advisory committees, appointment of etc.
Annual report
Staff to assist Commission
Commissioner and department
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15
15
16
16
17
18
18
18
20
22
23
24
24
25
page i
Occupational Safety and Health Act 1984
Contents
Part III — General provisions
relating to occupational safety
and health
18A.
19.
19A.
20.
20A.
21.
21A.
21B.
21C.
22.
22A.
23.
23AA.
23A.
23B.
23C.
23D.
23E.
23F.
23G.
23H.
23I.
23J.
23K.
page ii
Division 1 — Preliminary
Meaning of gross negligence in relation to certain
breaches of this Part
Division 2 — General workplace duties
Duties of employers
Breaches of s. 19(1)
Duties of employees
Breaches of s. 20(1) or (3)
Duties of employers and self-employed persons
Breaches of s. 21
Duty of body corporate to which s. 23D, 23E
or 23F applies
Breaches of s. 21B
Duties of persons who have control of workplaces
Breaches of s. 22(1)
Duties of manufacturers etc.
Breaches of s. 23
Prohibited activities in prescribed areas
Breaches of s. 23A
Division 3 — Certain workplace situations to be
treated as employment
Terms used
Contract work arrangements
Labour arrangements in general
Labour hire arrangements
Division 4 — Duty relating to certain
employment accommodation
Duty of employer to maintain safe premises
Breaches of s. 23G
Division 5 — Other duties
Notification of deaths, injuries and diseases
Breaches of s. 23I
Duty to inform employee who reports hazard or
injury
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35
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39
41
42
44
45
46
48
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Occupational Safety and Health Act 1984
Contents
23L.
24.
25.
26.
27.
28.
28A.
Notification of hazard to person having control
of workplace
Division 6 — Resolution of workplace issues,
and refusal to work on grounds of risk
Resolution of issues at workplace
Inspector may be notified where issues unresolved
Refusal by employees to work in certain cases
Assignment of other work
Entitlements to continue
Offences — refusal to work
48
49
50
51
52
52
52
Part IV — Safety and health
representatives and committees
29.
30.
30A.
30B.
30C.
31.
32.
33.
34.
35.
35A.
35B.
35C.
35D.
36.
37.
38.
Division 1 — Safety and health representatives
Notices requiring election of safety and health
representatives
Consultation on matters relevant to elections
Election scheme may be established
What may be included in a scheme
Appointment of further delegates may be required
Election of safety and health representatives
Terms of office of representatives
Functions of safety and health representatives
Disqualification of safety and health
representatives
Duties of employers in relation to safety and health
representatives
Discrimination against safety and health
representative in relation to employment
Discrimination against safety and health
representative in relation to contract for services
Claims under s. 35A or 35B may be referred to
Tribunal
Remedies that Tribunal may grant
Division 2 — Safety and health committees
Terms used
Employees to appoint representatives
When employer must establish safety and health
committee
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54
56
57
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60
60
62
64
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67
68
69
70
71
71
page iii
Occupational Safety and Health Act 1984
Contents
39.
39A.
39B.
39C.
39D.
39E.
39F.
39G.
40.
41.
Request for establishment of safety and health
committee
Commissioner may decide if s. 39 request should
be obeyed
Employer may establish safety and health
committee
Safety and health committee, agreement as to
members etc.
Commissioner may determine matters for s. 39C
agreement
Functions of committee may cover more than one
workplace
Amendment of s. 39C agreement; abolition of
committee
Review of Commissioner’s decisions made under
s. 39A, 39D or 39F
Functions of safety and health committees
Procedures
71
72
73
73
74
75
76
77
78
79
Part V — Inspectors
41A.
42.
42A.
42B.
42C.
43.
44.
45.
46.
47.
Terms used
Appointment of inspectors
Appointment of restricted inspectors
Functions of restricted inspector
Certificate of appointment
Powers of inspectors
Interpreters
Notification by inspector
Samples
Offences
80
80
80
81
81
82
84
85
86
87
Part VI — Improvement and
prohibition notices
47A.
48.
49.
50.
50A.
51.
page iv
Division 1 — Issue of notices by inspector
Terms used
Improvement notices, issue and effect of
Prohibition notices, issue and effect of
Notices may include directions
Notices may be issued to Crown
Review of notices by Commissioner
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Occupational Safety and Health Act 1984
Contents
51AA.
51A.
51AB.
51AC.
51AD.
51AE.
51AF.
51AG.
51AH.
Commissioner may cancel notice on own initiative
Review of notices by Tribunal
Division 2 — Issue of provisional improvement
notices by safety and health
representative
Term used: qualified representative
Provisional improvement notices, issue of
Consultation required before notice issued
Contents of notice
Notices may include directions
Failure to comply with notice
Review of notice by inspector
96
97
98
98
99
100
101
101
101
Part VIA — Safety and health
magistrates
51B.
51C.
51E.
Safety and health magistrates
Jurisdiction of safety and health magistrate
Administrative arrangements
103
103
104
Part VIB — Occupational Safety and
Health Tribunal
51F.
51G.
51H.
51I.
51J.
51K.
Terms used
Industrial Relations Commission to be called
Occupational Safety and Health Tribunal when
exercising jurisdiction under this Act
Jurisdiction to be exercised by commissioner with
requisite qualifications
Practice, procedure and appeals
Conciliation
Certain matters to be heard together
105
105
105
106
107
109
Part VII — Legal proceedings
52.
53.
54.
54A.
54B.
55.
55A.
Division 1 — General provisions
Prosecutions
Evidentiary provisions
General penalty
Continuing offences
Appeals
Offences by bodies corporate
No double jeopardy
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110
111
112
112
113
114
page v
Occupational Safety and Health Act 1984
Contents
55B.
55C.
55D.
55E.
55F.
55G.
55H.
55I.
55J.
55K.
55L.
55M.
55N.
55O.
55P.
55Q.
55R.
Division 2 — Criminal proceedings against the
Crown
Crown may be prosecuted
Prosecution against body corporate
Prosecution in other cases
Provisions applicable to responsible agency
Proceedings where agency has ceased to exist
Penalties in proceedings against Crown
Division 3 — Undertaking by offender in lieu of
payment of fine
Terms used
Court may order offender to elect to pay fine or
enter into undertaking
Making of election
Failure to enter into undertaking
Time for payment of fines
Nature and terms of undertaking
What may be included in undertaking
Effect of undertaking
Failure to comply with undertaking
Amendment of undertaking
Undertaking may be published
114
114
115
115
116
117
118
118
119
120
120
121
121
122
123
123
123
Part VIII — Miscellaneous
56.
57.
57A.
58.
59.
60.
61A.
61.
page vi
Discrimination
Codes of practice
Visitors to workplaces to comply with directions
Governor may transfer administration of certain
laws to Minister
Protection of Commissioner etc. from personal
liability
Regulations
Review of Commissioner’s decisions under
regulations
Review of Act
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127
128
129
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Occupational Safety and Health Act 1984
Contents
Schedule 1 — Subject matter for
regulations
Notes
Compilation table
137
Defined terms
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page vii
Western Australia
Occupational Safety and Health Act 1984
An Act to promote and improve standards for occupational safety and health, to establish the Commission for Occupational Safety and Health, to provide for a tribunal for the determination of certain matters and claims, to facilitate the coordination of the
administration of the laws relating to occupational safety and health and for incidental and other purposes.
[Long title amended by No. 30 of 1995 s. 4; No. 74 of 2003
s. 87(2); No. 51 of 2004 s. 62.]
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page 1
Occupational Safety and Health Act 1984
Part I
Preliminary
s. 1
Part I — Preliminary
[Heading inserted by No. 43 of 1987 s. 4.]
1.
Short title
This Act may be cited as the Occupational Safety and Health
Act 1984 1.
[Section 1 amended by No. 30 of 1995 s. 5.]
2.
Commencement
The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation 1.
3.
Terms used
(1)
page 2
In this Act unless the contrary intention appears —
appointed member means a member of the Commission
referred to in section 6(2)(a) or (d);
apprentice means a person who is an apprentice under a training contract registered under the Vocational Education and
Training Act 1996 Part 7 Division 2;
Australian Standard means a document having that title
published by Standards Australia International Limited
(ACN 087 326 690);
Australian/New Zealand Standard means a document having
that title published jointly by —
(a) Standards Australia International Limited
(ACN 087 326 690); and
(b) the Standards Council of New Zealand;
chairperson means the chairperson of the Commission;
code of practice means a code of practice approved by the
Minister under Part VIII;
Commission means the Commission for Occupational Safety
and Health established under this Act;
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Occupational Safety and Health Act 1984
Part I
Preliminary
s. 3
Commissioner means the person holding office as WorkSafe
Western Australia Commissioner under section 9;
Commissioner of Police means the person holding the office of Commissioner of Police under the Police Act 1892;
department means the department of the Public Service of the State principally assisting the Minister in the administration of this Act;
employee means —
(a) a person by whom work is done under a contract of
employment; or
(b) an apprentice;
employer means —
(a) a person that employs an employee under a contract of
employment; and
(b) in relation to an apprentice, a person who employs the
apprentice under a training contract registered under the
Vocational Education and Training Act 1996 Part 7
Division 2;
hazard, in relation to a person, means anything that may result in —
(a) injury to the person; or
(b) harm to the health of the person;
import means to bring into the State, whether from outside
Australia or otherwise;
improvement notice means an improvement notice issued under
Part VI;
inspector means an inspector appointed under section 42, and subject to section 42B(3), includes a restricted inspector
appointed under section 42A;
plant includes any machinery, equipment, appliance,
implement, or tool and any component or fitting thereof or
accessory thereto;
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Occupational Safety and Health Act 1984
Part I
Preliminary
s. 3
practicable means reasonably practicable having regard, where the context permits, to —
(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;
and
(b) the state of knowledge about —
(i) the injury or harm to health referred to in
paragraph (a); and
(ii) the risk of that injury or harm to health
occurring; and
(iii) means of removing or mitigating the risk or
mitigating the potential injury or harm to health;
and
(c) the availability, suitability, and cost of the means
referred to in paragraph (b)(iii);
prescribed law means a law prescribed for the purposes of
section 14(1)(b);
prohibition notice means a prohibition notice issued under
Part VI;
provisional improvement notice means a provisional
improvement notice issued under Part VI Division 2;
risk, in relation to any injury or harm, means the probability of that injury or harm occurring;
safety and health committee means a safety and health
committee established under Part IV Division 2;
safety and health magistrate means a person holding office as a safety and health magistrate under section 51B;
safety and health representative means a safety and health
representative elected under Part IV Division 1;
self-employed person means an individual who works for gain
or reward otherwise than —
(a) under a contract of employment; or
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Occupational Safety and Health Act 1984
Part I
Preliminary
s. 3
(b) as an apprentice,
whether or not the individual is an employer;
supply, in relation to any plant or substance, includes supply and re-supply by way of —
(a) sale (including by auction), exchange, lease, hire, or
hire-purchase, whether as principal or agent; and
(b) the disposal in a manner referred to in paragraph (a) of assets of a business that include any plant or substance;
and
(c) the disposal of all of the shares in a company that owns any plant or substance;
trade union means —
(a) an organisation registered under section 53 of the
Industrial Relations Act 1979; or
(b) an organisation registered under the Industrial Relations Act 1988 2 of the Parliament of the Commonwealth and
having employees as its members, or a branch of any
such organisation;
transferred law means a law or a provision of a law transferred to the administration of the Minister pursuant to an order under this Act;
Tribunal has the meaning given to that term in section 51G(2); WA Police means the Police Force of Western Australia
provided for by the Police Act 1892;
workplace means a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or
self-employed persons work or are likely to be in the course of their work.
(2)
Anything that, under this Act, is required to be served on, or otherwise done in relation to, an employer in relation to a
workplace or a matter related to a workplace, is deemed to have been so served or done if it is served on, or done in relation to, a
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page 5
Occupational Safety and Health Act 1984
Part I
Preliminary
s. 3A
person at the workplace who has or reasonably appears to have responsibility for the management or control of the workplace. (3)
For the purposes of sections 18A, 19A(2), 20A(2), 21A(2),
21C(2), 22A(2), 23AA(2), 23B(2) and 23H(2), a contravention
causes serious harm to a person if it causes any bodily injury to the person, or causes the person to have a disease, of such a nature as to —
(a) endanger, or be likely to endanger, the person’s life; or (b) result, or be likely to result, in permanent injury or harm to the person’s health.
(4)
For the purposes of this Act, a police officer is to be treated as an employee of the Crown and the Crown is to be treated as the employer of a police officer.
(5)
Without limiting any other provision of this Act, a police officer is at work during any period of time when the officer is
performing a function of a police officer, whether or not the officer is rostered on duty and, in relation to a police officer, the expressions “work” and “at work” are to be construed accordingly.
[Section 3 amended by No. 43 of 1987 s. 5; No. 30 of 1995 s. 6; No. 79 of 1995 s. 67(5); No. 54 of 2002 s. 4; No. 74 of 2003 s. 87(3); No. 51 of 2004 s. 14, 38, 63, 73 and 104; No. 8 of 2008 s. 15 and 23(5); No. 44 of 2008 s. 57; No. 36 of 2009 s. 4.]
3A.
(1)
page 6
Penalty levels defined
Where a person is liable to a level one penalty for an offence against this Act the person is liable —
(a) if the offence was committed by the person as an
employee —
(i) for a first offence, to a fine of $5 000; and
(ii) for a subsequent offence, to a fine of $6 250;
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Occupational Safety and Health Act 1984
Part I
Preliminary
s. 3A
(b)
if paragraph (a) does not apply —
(i) in the case of an individual —
(I) for a first offence, to a fine of $25 000;
and
(II) for a subsequent offence, to a fine of
$31 250;
or
(ii) in the case of a body corporate —
(I) for a first offence, to a fine of $50 000;
and
(II) for a subsequent offence, to a fine of
$62 500.
(2)
Where a person is liable to a level 2 penalty for an offence against this Act the person is liable —
(a) in the case of an individual —
(i) for a first offence, to a fine of $100 000; and
(ii) for a subsequent offence, to a fine of $125 000;
or
(b) in the case of a body corporate —
(i) for a first offence, to a fine of $200 000; and
(ii) for a subsequent offence, to a fine of $250 000.
(3)
Where a person is liable to a level 3 penalty for an offence against this Act the person is liable —
(a) in the case of an individual —
(i) for a first offence, to a fine of $200 000; and
(ii) for a subsequent offence, to a fine of $250 000;
or
(b) in the case of a body corporate —
(i) for a first offence, to a fine of $400 000; and
(ii) for a subsequent offence, to a fine of $500 000.
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page 7
Occupational Safety and Health Act 1984
Part I
Preliminary
s. 3B
(4)
Where a person is liable to a level 4 penalty for an offence against this Act the person is liable —
(a) in the case of an individual —
(i) for a first offence, to a fine of $250 000 and
imprisonment for 2 years; and
(ii) for a subsequent offence, to a fine of $312 500
and imprisonment for 2 years;
or
(b) in the case of a body corporate —
(i) for a first offence, to a fine of $500 000; and
(ii) for a subsequent offence, to a fine of $625 000.
[Section 3A inserted by No. 51 of 2004 s. 15.]
3B.
Offences, first and subsequent
(1)
In this section —
relevant day means the day on which section 15 of the
Occupational Safety and Health Legislation Amendment and
Repeal Act 2004 1 comes into operation.
(2)
For the purposes of this Act —
(a) an offence is a first offence committed by a person if, at the time when the offence is committed, the person has
not previously been convicted of any offence against this
Act committed on or after the relevant day; and
(b) an offence is a subsequent offence committed by a person if, at the time when the offence is committed, the person
has previously been convicted of one or more offences
against this Act committed on or after the relevant day.
[Section 3B inserted by No. 51 of 2004 s. 15.]
4.
Application of this Act
(1)
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This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities. Version 07-h0-03
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Occupational Safety and Health Act 1984
Part I
Preliminary
s. 4
(1a)
The functions that the Crown has under this Act because a police officer is to be treated as an employee of the Crown are, so far as they concern a police officer, to be performed by the
Commissioner of Police.
(1b)
This Act has effect subject to any instrument for the time being in force under section 6A of the Mines Safety and Inspection Act 1994.
(2)
Subject to this section and except as may be otherwise expressly provided by Parliament, this Act does not apply to or in relation to a workplace —
(a) that is, or at which work is carried out on, a mine to
which the Mining Act 1978, or the Mines Safety and
Inspection Act 1994, applies; or
(b) at which a petroleum operation or geothermal energy
operation, as defined in section 5(1) of the Petroleum
and Geothermal Energy Resources Act 1967, is carried
on; or
(c) at which a pipeline operation, as defined in section 4(1) of the Petroleum Pipelines Act 1969, is carried on; or
(d) at which an offshore petroleum operation, as defined in
section 4 of the Petroleum (Submerged Lands) Act 1982,
is carried on.
(2a)
(3)
Subsection (2) does not prevent a provision of Part II from
applying in relation to a workplace that is, or at which work is carried out on, a mine to which the Mining Act 1978, or the
Mines Safety and Inspection Act 1994, applies.
The Minister and the Minister for the time being administering the Act referred to in subsection (2) that is concerned may, by instrument in writing, jointly declare that this Act, or such provision of or under this Act as is specified in the instrument shall, for such period as is described in the instrument, apply to or in relation to a workplace referred to in subsection (2), or any part of such workplace that is specified in the instrument.
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Occupational Safety and Health Act 1984
Part I
Preliminary
s. 4A
(4)
On the service of a copy of the instrument mentioned in
subsection (3) on an employer that would be subject to a duty under this Act if this Act applied in accordance with the
instrument, this Act shall so apply in relation to the workplace or part of a workplace concerned to the exclusion of any
inconsistent provision of or under the Act referred to in
subsection (2) that is concerned.
(5)
A copy of each instrument under subsection (3) shall be
published in the Gazette as soon as practicable after the
instrument is made and before it is so published a person, other than the employer served with the instrument under
subsection (4), that is subject to a provision of or under this Act by reason of that subsection is not guilty of an offence against a provision of or under this Act if the person proves that the person did not know, and could not reasonably be expected to have known, that the provision so applied.
[Section 4 inserted by No. 43 of 1987 s. 7; amended by No. 84 of 1990 s. 2; No. 62 of 1994 s. 109; No. 54 of 2002 s. 5; No. 51 of 2004 s. 74; No. 68 of 2004 s. 94; No. 13 of 2005 s. 50; No. 35 of 2007 s. 101.]
4A.
Act does not operate to affect adversely certain police
operations
(1)
In this section —
covert operation means the performance of a function of a
police officer in circumstances where —
(a) a covert operation is undertaken by WA Police for the
purpose of obtaining information about criminal activity;
and
(b) performance of the function is not practicable without
exposing a police officer to a risk of imminent and
serious injury or imminent and serious harm to the
police officer’s health; and
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Occupational Safety and Health Act 1984
Part I
Preliminary
s. 5
(c)
unless the performance of the function is secret or
confidential, it would be likely that —
(i) the effectiveness of the performance of the
function is reduced; or
(ii) a person is exposed to the danger of physical
harm arising from the actions of another person;
dangerous operation means the performance of a function of a police officer in circumstances where performance of that
function —
(a) is reasonably necessary; and
(b) is not practicable without exposing a police officer to a risk of imminent and serious injury or imminent and
serious harm to the police officer’s health.
(2)
A police officer cannot refuse to work as mentioned in
section 26(1) if the refusal to work would adversely affect, or could reasonably be expected to affect adversely, a covert
operation or a dangerous operation.
(3)
An inspector cannot issue a prohibition notice under
section 49(1) to prohibit an activity if prohibiting the carrying on of the activity would adversely affect, or could reasonably be expected to affect adversely, a covert operation or a dangerous operation.
[Section 4A inserted by No. 54 of 2002 s. 6.]
5.
Objects
The objects of this Act are —
(a) to promote and secure the safety and health of persons at work;
(b) to protect persons at work against hazards;
(c) to assist in securing safe and hygienic work
environments;
(d) to reduce, eliminate and control the hazards to which
persons are exposed at work;
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Occupational Safety and Health Act 1984
Part I
Preliminary
s. 5
(e)
(f)
(g)
to foster cooperation and consultation between and to
provide for the participation of employers and
employees and associations representing employers and
employees in the formulation and implementation of
safety and health standards to current levels of technical
knowledge and development;
to provide for formulation of policies and for the
coordination of the administration of laws relating to
occupational safety and health;
to promote education and community awareness on
matters relating to occupational safety and health.
[Section 5 amended by No. 43 of 1987 s. 8; No. 30 of 1995
s. 47.]
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Occupational Safety and Health Act 1984
Part II
Commission for Occupational Safety and Health
s. 6
Part II — Commission for Occupational Safety
and Health
[Heading inserted by No. 74 of 2003 s. 87(4).]
6.
Commission, creation, membership of etc.
(1)
There shall be a Commission for Occupational Safety and
Health.
(2)
The Commission shall consist of —
(a) a person nominated by the Minister and appointed by the
Governor as chairperson; and
(b) the Commissioner; and
(c) 2 persons employed in the Public Service under Part 3 of the Public Sector Management Act 1994, of whom —
(i) one shall be nominated by the Minister; and
(ii) the other shall be an officer of the department, as
defined in section 4(1) of the Mines Safety and
Inspection Act 1994, nominated by the Minister
to whom the administration of that Act is
committed;
and
(d) 9 persons appointed by the Governor of whom —
(i) 2 shall be persons nominated for appointment by
the body known as the Chamber of Commerce
and Industry of Western Australia (Inc); and
(ii) 3 shall be persons, of whom one shall be a person
who has knowledge of and experience in the
mining industry in the State, nominated for
appointment by UnionsWA; and
(iii) 3 shall be persons having knowledge of or
experience in occupational safety and health who
shall be nominated for appointment by the
Minister after consultation between the Minister
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Commission for Occupational Safety and Health
s. 6A
(iv)
and the bodies referred to in subparagraphs (i)
and (ii); and
one shall be a person nominated by the Chamber
of Minerals and Energy of Western Australia Inc.
(3)
Where any of the bodies referred to in subsection (2)(d)(i), (ii) or (iv) fails to make a nomination within 60 days after being requested in writing by the Minister to do so the Governor may appoint any person who is suitably qualified, and any person so appointed shall be deemed to have been nominated pursuant to subsection (2)(d)(i), (ii) or (iv), as the case may be.
(4)
A nomination for the purposes of subsection (2)(c) may be made from time to time, may be made by reference to the holder of a specified office and may be expressed to operate for a period or in such circumstances as are specified in the instrument of
nomination.
(5)
In addition to the name mentioned in subsection (1), the
Commission may use, and operate under, the name
“WorkSafe W A”.
(6)
A person other than the Commission that uses or operates under the name mentioned in subsection (1) or (5), or any name that is so similar that it is likely to be misunderstood as referring to the Commission, commits an offence.
(7)
Nothing in subsection (6) prevents the department of the Public Service principally assisting the Minister in the administration of this Act from using or operating under the name of
“WorkSafe Western Australia” or a similar name if that
designation is given to it under section 35 of the Public Sector Management Act 1994.
[Section 6 amended by No. 30 of 1995 s. 8; No. 74 of 2003
s. 87(5); No. 51 of 2004 s. 103 and 105; No. 53 of 2011 s. 61.]
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Occupational Safety and Health Act 1984
Part II
Commission for Occupational Safety and Health
s. 6A
6A.
Deputy chairperson
(1)
The Minister shall appoint one of the members of the
Commission to be deputy chairperson of the Commission.
(2)
During any vacancy in the office of chairperson or while the chairperson is unable to act by reason of sickness, absence or other cause, the deputy chairperson shall perform the functions of the chairperson.
(3)
No act or omission of the deputy chairperson acting as the
chairperson shall be questioned on the ground that the occasion for so acting had not arisen or had ceased.
[Section 6A inserted by No. 30 of 1995 s. 9.]
7.
Acting members
(1)
If —
(a)
(b)
an appointed member is unable to act by reason of
sickness, absence or other cause; or
the office of an appointed member is vacant and has not
been filled in accordance with this Act,
the Minister may appoint an eligible person to act temporarily in the place of that appointed member, and while so acting
according to the tenor of the appointment that other person has all of the functions, powers and immunities of that appointed member.
(2)
Where an appointed member who is deputy chairperson is
performing the functions of the chairperson, the Minister may, under subsection (1), appoint another eligible person to act in the place of that appointed member.
(3)
No act or omission of a person acting in the place of another under this section is to be questioned on the ground that the occasion for the appointment or so acting had not arisen or had ceased.
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Commission for Occupational Safety and Health
s. 8
(4)
The appointment of a person as an acting member may be
terminated at any time by the Minister.
[Section 7 inserted by No. 30 of 1995 s. 10.]
8.
Terms and conditions of appointed members
(1)
An appointed member shall hold office for such term not
exceeding 3 years as is specified in the instrument of
appointment and is eligible for re-appointment.
(2)
An appointed member other than a person who is an officer of the Public Service of the State is entitled to such remuneration and allowances as are determined by the Minister on the
recommendation of the Public Sector Commissioner.
[Section 8 amended by No. 51 of 2004 s. 75; No. 39 of 2010
s. 89.]
9.
WorkSafe Western Australia Commissioner
(1)
The Governor shall appoint a person to be WorkSafe Western
Australia Commissioner.
(2)
The Commissioner shall be appointed for such term not
exceeding 5 years as is specified in the instrument of
appointment and on the expiration of the term is eligible for re-appointment.
(3)
Subject to the Salaries and Allowances Act 1975, the
Commissioner is entitled to such conditions of service as are determined by the Minister from time to time on the
recommendation of the Public Sector Commissioner.
(4)
If a person appointed to be Commissioner was immediately before that appointment an officer of the Public Service of the State the person shall despite that appointment retain all existing and accruing rights on appointment as Commissioner.
(5)
If a person appointed to be Commissioner was immediately before that appointment a public service officer within the meaning of the Public Sector Management Act 1994, the person is entitled upon
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Occupational Safety and Health Act 1984
Part II
Commission for Occupational Safety and Health
s. 10
resigning his or her office as Commissioner or upon ceasing to be Commissioner to be appointed to an office in the Public Service of the State not lower in status than the office the person so
occupied immediately before appointment as Commissioner.
(6)
[(7)
(8)
The Commissioner shall not engage in paid employment outside his or her duties and functions under this Act without first obtaining the approval in writing of the Minister.
deleted]
In addition to the name mentioned in subsection (1), the
Commissioner may use, and operate under, the name
“WorkSafe W A Commissioner”.
[Section 9 amended by No. 43 of 1987 s. 10; No. 55 of 1987
s. 4; No. 32 of 1994 s. 19; No. 30 of 1995 s. 11 and 47; No. 51 of 2004 s. 76 and 102(2); No. 39 of 2010 s. 89.]
10.
Vacation of office
A person’s office as Commissioner or as an appointed member becomes vacant if —
(a) the person’s term of office expires; or
(b) the person —
(i) dies; or
(ii) becomes permanently incapable of performing
the duties of the office; or
(iii) resigns from office by written notice addressed to
the Minister; or
(iv) is, according to the Interpretation Act 1984
section 13D, a bankrupt or a person whose affairs
are under insolvency laws; or
(v) is removed from office by the Governor on the
grounds of neglect of duty, incompetence or the
person’s behaviour; or
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Commission for Occupational Safety and Health
s. 11
(vi)
(c)
is absent without leave of the Minister from
3 consecutive meetings of the Commission;
or
being a member appointed under section 6(2)(d)(i), (ii)
or (iv), the person’s nomination is revoked.
[Section 10 inserted by No. 51 of 2004 s. 77; amended by
No. 18 of 2009 s. 60.]
11.
Leave of absence
The Minister may grant leave of absence to an appointed member on such terms and conditions as the Minister determines.
12.
Casual vacancies
Where an office of appointed member becomes vacant
otherwise than by effluxion of time a person appointed to the vacancy shall hold office only for the balance of the term of the person whose vacancy he or she fills.
[Section 12 amended by No. 51 of 2004 s. 102(1).]
13.
Meetings of Commission
(1)
The chairperson may at any time and shall when so requested by the Minister or by not less than 5 members of the Commission convene a meeting of the Commission to be held at a time and place to be determined by the chairperson.
(2)
The Commission shall meet at least 6 times a year at intervals of not more than 3 months.
(3)
The chairperson shall preside at any meeting of the Commission at which he or she is present.
(4)
If both the chairperson and the deputy chairperson are absent from a meeting of the Commission, the members present shall
elect by secret ballot one of their number to preside at that meeting and that member shall have, in addition to the powers of a member of the Commission, the powers of the chairperson under this section.
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Occupational Safety and Health Act 1984
Part II
Commission for Occupational Safety and Health
s. 13
(5)
At a meeting of the Commission 7 members constitute a
quorum.
(6)
Subject to subsection (6a), at a meeting of the Commission — (a) only members appointed under section 6(2)(d) are
entitled to vote; and
(b) where any question requiring a vote arises the question
shall be decided by a majority of the votes of the
members appointed under section 6(2)(d) if, and only if,
not less than 6 of those members also constitute such
majority.
(6a)
If —
(a)
(b)
on a vote at a meeting of the Commission, a majority of
the votes of members appointed under section 6(2)(d) is
constituted by 5 of those members; and
on a vote at a subsequent meeting of the Commission on
the same question, a majority of the votes is constituted
by 5 of those members,
the chairperson may, at that subsequent meeting, cast a vote to be included in the majority vote.
(7)
Subject to the presence of a quorum the Commission may act
notwithstanding any vacancy in its membership.
(8)
A member of the Commission who has a pecuniary interest
whether direct or indirect in any matter to be considered by the Commission shall declare the nature of that interest at every meeting at which the matter is considered.
(9)
Subject to this Act, the Commission may determine its own
procedures.
(10)
It is the duty of the Commission to work for the attainment of the objects of this Act by achieving a consensus, as far as this is practicable, among its members.
[Section 13 amended by No. 30 of 1995 s. 12; No. 51 of 2004
s. 102(1).]
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Occupational Safety and Health Act 1984
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Commission for Occupational Safety and Health
s. 14
14.
Functions of Commission
(1)
The functions of the Commission are —
(a) to inquire into and report to the Minister upon any
matters referred to it by the Minister; and
(b) to make recommendations to the Minister with respect
to —
(i) this Act; and
(ii) any law or provision of a law, relating to
occupational safety and health that is
administered by the Minister and any law or
provision of a law relating to occupational safety
and health that is prescribed for the purposes of
this paragraph; and
(iii) subsidiary legislation, guidelines and codes of
practice proposed to be made under or for the
purposes of any prescribed law;
and
(c) to examine, review and make recommendations to the
Minister in relation to existing and proposed registration
or licensing schemes relating to occupational safety and
health; and
(d) to provide advice to and cooperate with Government
departments, public authorities, trade unions, employer
organisations and other interested persons in relation to
occupational safety and health; and
(e) to formulate or recommend standards, specifications or
other forms of guidance for the purpose of assisting
employers, self employed persons and employees to
maintain appropriate standards of occupational safety
and health; and
(f) to promote education and training in occupational safety and health as widely as possible; and
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Occupational Safety and Health Act 1984
Part II
Commission for Occupational Safety and Health
s. 14A
(g)
(h)
(i)
(j)
(k)
(l)
in cooperation with educational authorities or bodies to
devise and approve courses in relation to occupational
safety and health; and
having regard to the criteria laid down by the National
Occupational Health and Safety Commission, to advise
persons on training in occupational safety and health and
to formulate and accredit training courses in
occupational safety and health; and
to recommend to the Minister the establishment of
public inquiries into any matter relating to occupational
safety and health; and
to collect, publish and disseminate information on
occupational safety and health; and
to formulate reporting procedures and monitoring
arrangements for identification of workplace hazards,
and incidents in which injury or death is likely to occur
in an occupational situation; and
to commission and sponsor research into occupational
safety and health.
(2)
The Commission may issue for public review and comment any
regulations, codes of practice or guidelines with respect to which it proposes under subsection (1)(b) to make any
recommendations to the Minister.
(3)
The Commission shall ensure, as far as is practicable, that any information it provides is in such language and form as are
appropriate for the persons to whom the information is directed.
(4)
The Minister shall within 60 days after receiving from the
Commission a recommendation under subsection (1) make reply
in writing to the Commission in relation to that recommendation. [Section 14 amended by No. 43 of 1987 s. 11; No. 30 of 1995
s. 47.]
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Occupational Safety and Health Act 1984
Part II
Commission for Occupational Safety and Health
s. 14A
14A.
Mining Industry Advisory Committee
(1)
In this section —
committee means the committee referred to in subsection (2); mining industry means the mining industry in the State;
Ministers means —
(a) the Minister to whom the administration of this Act is
committed; and
(b) the Minister to whom the administration of the Mines
Safety and Inspection Act 1994 is committed (the
Minister for Mines),
acting jointly.
(2)
There is to be an advisory committee called the Mining Industry Advisory Committee.
(3)
The functions of the committee are —
(a) to advise and make recommendations to the Ministers
and the Commission on occupational safety and health
matters concerning the mining industry; and
(b) to liaise with the Commission to coordinate activities on related functions and to maintain parallel standards,
and in particular, but without limiting the generality of
paragraphs (a) and (b) —
(c) to inquire into and report to the Ministers regarding any matter referred to it by the Ministers relating to
occupational safety and health in the mining industry;
and
(d) to make recommendations to the Minister for Mines
regarding the formulation, amendment, or repeal of laws
relating to occupational safety and health for which that
Minister is responsible; and
(e) to prepare or recommend the adoption of codes of
practice, guidelines, standards, specifications or other
forms of guidance for the purpose of assisting
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Occupational Safety and Health Act 1984
Part II
Commission for Occupational Safety and Health
s. 15
(f)
employers, self-employed persons, employees,
manufacturers or other persons to maintain appropriate
standards of occupational safety and health in the mining
industry; and
to provide advice on —
(i) education and publications; and
(ii) training and training courses,
with respect to occupational safety and health in the
mining industry.
(4)
The chairperson of the committee is to be the member of the
Commission nominated under section 6(2)(c)(ii).
(5)
Subject to subsection (4), the Ministers —
(a) are to appoint the members of; and
(b) may alter or reconstitute,
the committee.
(6)
The members of the committee are entitled to be paid such
remuneration and travelling and other allowances as may be
determined by the Ministers on the recommendation of the
Public Sector Commissioner.
(7)
Subject to any direction given to it by the Commission, the
committee is to determine its own procedures.
[Section 14A inserted by No. 51 of 2004 s. 106; amended by
No. 39 of 2010 s. 89.]
15.
Other advisory committees, appointment of etc.
(1)
The Commission may at any time and when so requested by the
Minister shall appoint advisory committees to assist it in the performance of its functions and duties.
(2)
Subject to this section, an advisory committee shall consist of such number of persons as are appointed by the Commission.
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Occupational Safety and Health Act 1984
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Commission for Occupational Safety and Health
s. 16
(3)
Subject to the direction of the Commission an advisory
committee may determine its own procedures.
(4)
The members of advisory committees are entitled to be paid
such remuneration and travelling and other allowances as may be determined by the Minister on the recommendation of the
Public Sector Commissioner.
(5)
In appointing persons to be members of advisory committees
under this section the Commission —
(a) shall, as far as is practicable, appoint persons who
represent employers, employees and persons having
knowledge of or experience in occupational safety and
health; and
(b) shall have regard to the desirability of having a
reasonable number of men and women, including
persons of differing ethnic backgrounds and other
groups with special needs.
[Section 15 amended by No. 30 of 1995 s. 47; No. 39 of 2010
s. 89.]
16.
Annual report
(1)
The Commission shall on or before 31 October in each year
prepare and submit to the Minister a report of its operations and the operation of this Act and any prescribed law during the year ending on the preceding 30 June.
(2)
The Minister shall cause a report submitted under this section to be laid before each House of Parliament within 12 sitting days of such House of its receipt by him or her.
[Section 16 amended by No. 51 of 2004 s. 102(3).]
17.
Staff to assist Commission
There shall be appointed under and subject to Part 3 of the
Public Sector Management Act 1994 such officers and
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Occupational Safety and Health Act 1984
Part II
Commission for Occupational Safety and Health
s. 18
employees as are necessary to assist the Commission in the
performance of its functions and duties.
[Section 17 amended by No. 32 of 1994 s. 19; No. 30 of 1995
s. 47.]
18.
Commissioner and department
(1)
The Commissioner is subject to the control and direction of the Minister, and is responsible to the Minister for the
administration of this Act and any other law relating to
occupational safety and health administered by the Minister.
(2)
There shall be appointed under and subject to Part 3 of the
Public Sector Management Act 1994 such officers as are
necessary for the administration of this Act and any law relating to occupational safety and health administered by the Minister.
(3)
The offices of Commissioner and chief executive officer of the department may be held by the same person.
(4)
The Commissioner may, either generally or as provided by the instrument of delegation, by writing signed by him or her,
delegate to any officer of the department any of his or her
functions under this Act other than this power of delegation, and a function performed in accordance with a delegation under this subsection is deemed to be performed by the Commissioner.
[Section 18 amended by No. 43 of 1987 s. 12; No. 55 of 1987
s. 5; No. 32 of 1994 s. 19; No. 30 of 1995 s. 47; No. 51 of 2004 s. 102(2) and (3).]
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Occupational Safety and Health Act 1984
Part III
General provisions relating to occupational safety and health Division 1
Preliminary
s. 18A
Part III — General provisions relating to occupational
safety and health
[Heading inserted by No. 43 of 1987 s. 13; amended by
No. 30 of 1995 s. 47.]
Division 1 — Preliminary
[Heading inserted by No. 51 of 2004 s. 16.]
18A.
Meaning of gross negligence in relation to certain breaches
of this Part
(1)
This section applies to a contravention of section 19(1), 20(1) or (3), 21(1) or (2), 21B(2), 22(1), 23(1), (2), (3) or (3a), 23A or 23G(2).
(2)
A contravention of a provision mentioned in subsection (1) is committed in circumstances of gross negligence if —
(a) the offender —
(i) knew that the contravention would be likely to
cause the death of, or serious harm to, a person to
whom a duty is owed under that provision; but
(ii) acted or failed to act in disregard of that
...