Does not include amendments by— (not commenced — commences on 13.1.2023) Statute Law (Miscellaneous Provisions) Act (No 2) 2022 No 59See also— [Non-government Bill— the Hon Daniel Mookhey, MLC] Work Health and Safety Amendment (Food Delivery Workers) Bill 2020 Statute Law (Miscellaneous Provisions) Bill 2021
(1) For the purposes of this Act, a person conducts a business or undertaking—
(a) whether the person conducts the business or undertaking alone or with others, and (b) whether or not the business or undertaking is conducted for profit or gain. (2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. (3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—
(a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or (e) an outworker, or (f) an apprentice or trainee, or (g) a student gaining work experience, or (h) a volunteer, or (i) a person of a prescribed class.
Note— This Division sets out offences, and penalties for the offences, in relation to the health and safety duties imposed by Divisions 2, 3 and 4 of Part 2. In certain circumstances, the death of a person at work may also constitute manslaughter under the and may be prosecuted under that Act. See section 18 of the Crimes Act 1900 , which provides for the offence of manslaughter, and section 24 of that Act, which provides that the offence of manslaughter is punishable by imprisonment for 25 years. Crimes Act 1900
(1) A member of the NSW Police Force does not commit an offence under this Division for a failure to comply with a health and safety duty that occurs while—
(a) the member is responding to a particular active armed offender incident, or (b) the member is in command of, or is otherwise authorising actions by or providing directions to, other members of the NSW Police Force who are responding to a particular active armed offender incident, or (c) the member is receiving information from, or providing information to, other members of the NSW Police Force for the purposes of assisting them in responding to a particular active armed offender incident, or (d) the member is participating with other members of the NSW Police Force in preparing or planning for responding to a particular active armed offender incident.
(1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. Maximum penalty—
(a) in the case of an individual—115 penalty units, or (b) in the case of a body corporate—575 penalty units. (2) The notice must be given in accordance with this section and by the fastest possible means. (3) The notice must be given—
(a) by telephone, or (b) in writing. Example— The written notice can be given by email or other electronic means.
(1) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs. Maximum penalty—
(a) in the case of an individual—115 penalty units, or (b) in the case of a body corporate—575 penalty units.
(1) This section applies despite section 70 (1). (2) The person conducting a business or undertaking must not allow a health and safety representative to have access to any personal or medical information concerning a worker without the worker’s consent unless the information is in a form that—
(a) does not identify the worker, and (b) could not reasonably be expected to lead to the identification of the worker. Maximum penalty—
(a) in the case of an individual—115 penalty units, or (b) in the case of a body corporate—575 penalty units.
(1) The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is—
(a) approved by the regulator, and (b) a course that the health and safety representative is entitled under the regulations to attend, and (c) chosen by the health and safety representative. (2) The person conducting the business or undertaking must, in consultation with the health and safety representative and as soon as practicable within the period of 3 months after the request is made—
(a) allow the health and safety representative time off work to attend the course of training, and (b) pay the course fees and any other reasonable costs associated with the health and safety representative’s attendance at the course of training.
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person—
(a) to exercise or not to exercise a power, or to propose to exercise or not to exercise a power, under this Act, or (b) to perform or not to perform a function, or to propose to perform or not to perform a function, under this Act, or (c) to exercise or not to exercise a power or perform a function, or to propose to exercise or not to exercise a power or perform a function, in a particular way, or (d) to refrain from seeking, or continuing to undertake, a role under this Act. Maximum penalty—
(a) in the case of an individual—1,155 penalty units, or (b) in the case of a body corporate—5,770 penalty units. Note— Civil proceedings may be brought under Division 3 of this Part in relation to a contravention of this section.
(1) An eligible person may apply to the District Court for an order under this section. (2) The District Court may make one or more of the orders set out in subsection (3) in relation to a person who has—
(a) engaged in discriminatory conduct for a prohibited reason, or (b) requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason, or (c) contravened section 108.
Note— Division 7 of Part 13 sets out the procedure in relation to the bringing of proceedings in relation to WHS civil penalty provisions.
(1) This section applies if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act. (2) The regulator may, by written notice served on the person, require the person to do one or more of the following—
(a) to give the regulator, in writing signed by the person (or in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, that information of which the person has knowledge, (b) to produce to the regulator, in accordance with the notice, those documents, (c) to appear before a person appointed by the regulator on a day, and at a time and place, specified in the notice (being a day, time and place that are reasonable in the circumstances) and give either orally or in writing that evidence and produce those documents. (3) The notice must—
(a) state that the requirement is made under this section, and (b) contain a statement to the effect that a failure to comply with a requirement is an offence, and (c) if the notice requires the person to provide information or documents or answer questions—
(i) contain a statement about the effect of sections 172 and 269, and (ii) state that the person may attend with a legal practitioner.
(1) If an inspector enters a workplace under this Division, or has within the last 30 days entered a workplace under this Division, the inspector or another inspector may—
(a) require a person to tell the inspector who has custody of, or access to, a document, or (b) require a person who has custody of, or access to, a document to produce that document to the inspector while the inspector is at that workplace or within a specified period, or (c) require a person at the workplace to attend before the inspector at a stated reasonable time and place to answer questions put by the inspector. (2) A requirement under subsection (1) (b) must be made by written notice unless the circumstances require the inspector to have immediate access to the document.
(1) An inspector may cause any questions and answers to questions given under this Part to be recorded if the inspector has informed the person who is to be questioned that the recording is to be made.
(1) The following table sets out—
(a) decisions made under this Act that are reviewable in accordance with this Part ( reviewable decisions ), and(b) who is eligible to apply for review of a reviewable decision (the eligible person ).
|
Item Provision under which reviewable decision is made Eligible person in relation to reviewable decision |
1 Section 54 (2) (decision following failure to commence negotiations)
(1) A worker whose interests are affected by the decision or his or her representative appointed for the purpose of section 52 (1) (b). (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A health and safety representative who represents a worker whose interests are affected by the decision. |
2 Section 72 (6) (decision in relation to training of health and safety representative)
(1) A person conducting a business or undertaking whose interests are affected by the decision. (2) A health and safety representative whose interests are affected by the decision. |
3 Section 76 (6) (decision relating to health and safety committee)
(1) A worker whose interests are affected by the decision. (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A health and safety representative who represents a worker whose interests are affected by the decision. |
4 Section 102 (decision on review of provisional improvement notice)
(1) The person to whom the provisional improvement notice was issued. (2) The health and safety representative who issued the provisional improvement notice. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision. (5) A person conducting a business or undertaking whose interests are affected by the decision. |
5 Section 179 (forfeiture of seized things) The person entitled to the thing. |
6 Section 180 (return of seized things) The person entitled to the thing. |
7 Section 191 (issue of improvement notice)
(1) The person to whom the notice was issued. (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision. |
8 Section 194 (extension of time for compliance with improvement notice)
(1) The person to whom the notice was issued. (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision. |
9 Section 195 (issue of prohibition notice)
(1) The person to whom the notice was issued. (2) The person with management or control of the workplace, plant or substance. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision. (6) A health and safety representative who gave a direction under section 85 to cease work, that is relevant to the prohibition notice. |
10 Section 198 (issue of non-disturbance notice)
(1) The person to whom the notice was issued. (2) The person with management or control of the workplace. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision. |
11 Section 201 (issue of subsequent notice)
(1) The person to whom the notice was issued. (2) The person with management or control of the workplace. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision. |
12 Section 207 (decision of regulator to vary or cancel notice)
(1) The person to whom the notice was issued. (2) The person with management or control of the workplace. (3) A person conducting a business or undertaking whose interests are affected by the decision. (4) A worker whose interests are affected by the decision. (5) A health and safety representative who represents a worker whose interests are affected by the decision. (6) In the case of a prohibition notice, a health and safety representative whose direction under section 85 to cease work gave rise to the notice. |
13 A prescribed provision of the regulations A person prescribed by the regulations as eligible to apply for review of the reviewable decision.
(1) Except as provided by this section, proceedings for an offence against this Act or the regulations are to be dealt with summarily—
(a) before the Local Court, or (b) before the District Court in its summary jurisdiction. (2)
(1) Subject to subsection (4), proceedings for an offence against this Act may only be brought by—
(a) the regulator, or (b) an inspector with the written authorisation of the regulator (either generally or in a particular case), or (c) the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate, but only as permitted by subsection (3) if the offence concerned is a Category 1 offence or a Category 2 offence. (1A) Proceedings for an offence against this Act may also be brought by an Australian legal practitioner authorised in writing to represent a person who is authorised under this section to bring the proceedings.
(1) If—
(a) a person reasonably considers that the occurrence of an act, matter or thing constitutes a Category 1 offence or a Category 2 offence, and (b) no prosecution has been brought in relation to the occurrence of the act, matter or thing after 6 months but not later than 18 months after that occurrence, the person may make a written request to the regulator that a prosecution be brought. (2) Within 3 months after the regulator receives a request the regulator must—
(a) advise the person (in writing)—
(i) whether the investigation is complete, and (ii) if the investigation is complete, whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought, and (b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a). (2A) If, under subsection (2)(a), the regulator advises the person the investigation is not complete, the regulator must, from the time that advice is provided and until the investigation is complete, advise the person at least every 3 months of the matters set out in that paragraph.
(1) The court may make an order (an adverse publicity order ) in relation to the offender requiring the offender—
(a) to take either or both of the following actions within the period specified in the order—
(i) to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed and any other related matter, (ii) to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter, and (b) to give the regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order.
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence. (2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(1) This section applies if a person obtains information or gains access to a document in exercising any power or function under this Act (other than under Part 7).
(1) The Secretary of the Ministry of Health is authorised to provide information to the regulator if the Secretary considers the provision of the information is necessary to enable the regulator to exercise the regulator’s functions under this Act.
(1) SafeWork NSW must ensure a register is kept of the information provided under section 271B(2), other than information prescribed by the regulations.
(1) As soon as practicable after the end of each financial year, but no later than 30 September, SafeWork NSW must ensure the Minister is given a report stating—
(a) the number of cases of occupational dust diseases notified to SafeWork NSW under section 271B during the financial year, and (b) the number of deaths resulting from occupational dust diseases notified to SafeWork NSW under section 271B during the financial year, and (c) the types of diseases or conditions recorded in the Dust Diseases Register during the financial year, and (d) the actions SafeWork NSW has taken to implement the purposes of the register, and (e) any other information about a disease or condition recorded in the register that SafeWork NSW considers appropriate.
(1) A person commits an offence against this section if—
(a) a body corporate commits an offence against section 272A, and (b) the person is an officer of the body corporate, and (c) the person—
(i) aids, abets, counsels or procures the commission of the offence, or (ii) induces, whether by threats or promises or otherwise, the commission of the offence, or (iii) conspires with others to effect the commission of the offence, or (iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the offence. Maximum penalty—1,250 penalty units.
(1) The Governor may make regulations in relation to—
(a) any matter relating to work health and safety, and (b) any matter or thing required or permitted by this Act to be prescribed or that is necessary or convenient to be prescribed to give effect to this Act.
1 This Act applies to the storage and handling of dangerous goods even if the dangerous goods are not at a workplace or for use in carrying out work. 2 For the purposes of clause 1—
(a) a reference in this Act to carrying out work includes a reference to the storage or handling of dangerous goods, and (a1) a reference in this Act to a person conducting a business or undertaking includes a reference to a person in control of premises where the dangerous goods are stored or handled, and (a2) a reference in this Act to a business or undertaking, or the conduct of a business or undertaking, includes a reference to the storage or handling of dangerous goods, and (a3) a reference in this Act to a worker includes a reference to a person at the premises at or in which the dangerous goods are stored or handled, and (b) a reference in this Act to a workplace includes a reference to the premises at or in which the dangerous goods are stored or handled, and (b1) a reference in this Act to a work environment includes a reference to the environment at the premises at or in which the dangerous goods are stored or handled, and (b2) a reference in this Act to a business address includes a reference to the address of the premises where the dangerous goods are stored or handled, and (c) a reference in this Act to work health and safety (however expressed) includes a reference to public health and safety.