Work Health and Safety Regulation 2011

Chapter 1 Preliminary

Part 1.1 Introductory matters

Note—

The numbering of provisions of this Regulation closely corresponds to the same numbering of regulations in model regulations prepared for and approved by the Council of Australian Governments. To maximise uniformity between this Regulation and the model regulations, the numbers of some provisions in the model regulations that are not relevant have not been used in the numbering of provisions of this Regulation, unless required for provisions particular to the State.

Adoption of the numbering of the model regulations also results in alphanumeric numbering (for example, clause 272A and Schedule 18A) being used to insert further provisions particular to the State.

1 Name of Regulation

This Regulation is the Work Health and Safety Regulation 2011.

2 Commencement

(1)  This Regulation (subject to subclause (2)) commences on 1 January 2012 and is required to be published on the NSW legislation website.

(2)  Clause 164 commences on 1 January 2013.

3 Authorising provisions

* * * * *

Note—

The Model Work Health and Safety Regulations contain a provision dealing with authorising provisions of legislation.

4 Repeal

The Regulations listed in Schedule 1 are repealed.

5 Definitions

(1)  In this Regulation:

abrasive blasting means propelling a stream of abrasive material at high speed against a surface using compressed air, liquid, steam, centrifugal wheels or paddles to clean, abrade, etch or otherwise change the original appearance or condition of the surface.

accredited assessor means:

(a)  a person who is accredited under Part 4.5 to conduct assessments, or

(b)  the regulator.

ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail, 7th edition, approved by the Australian Transport Council.

Note—

The ADG Code is accessible at www.ntc.gov.au.

administrative control means a method of work, a process or a procedure designed to minimise risk, but does not include:

(a)  an engineering control, or

(b)  the use of personal protective equipment.

airborne contaminant means a contaminant in the form of a fume, mist, gas, vapour or dust, and includes micro-organisms.

amusement device means plant operated for hire or reward that provides entertainment, sightseeing or amusement through movement of the equipment, or part of the equipment, or when passengers or other users travel or move on, around or along the equipment, but does not include:

(a)  a miniature train and railway system owned and operated by a model railway society, club or association, or

(b)  a ride or device that is used as a form of transport and that is, in relation to its use for that purpose, regulated under another Act or an Act of the Commonwealth, or

(c)  a boat or flotation device:

(i)  that is solely propelled by a person who is in or on the boat or device, and

(ii)  that is not attached to any mechanical elements or equipment outside the boat or device, and that does not rely on any artificial flow of water to move, or

(d)  any plant specifically designed for a sporting, professional stunt, theatrical or acrobatic purpose or activity, or

(e)  a coin-operated or token-operated device that:

(i)  is intended to be ridden, at the one time, by not more than 4 children who must be below the age of 10 years, and

(ii)  is usually located in a shopping centre or similar public location, and

(iii)  does not necessarily have an operator.

article means a manufactured item, other than a fluid or particle, that:

(a)  is formed into a particular shape or design during manufacture, and

(b)  has hazard properties and a function that are wholly or partly dependent on the shape or design.

asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock forming minerals including the following:

(a)  actinolite asbestos,

(b)  grunerite (or amosite) asbestos (brown),

(c)  anthophyllite asbestos,

(d)  chrysotile asbestos (white),

(e)  crocidolite asbestos (blue),

(f)  tremolite asbestos,

(g)  a mixture that contains 1 or more of the minerals referred to in paragraphs (a) to (f).

asbestos containing material (ACM) means any material or thing that, as part of its design, contains asbestos.

asbestos-contaminated dust or debris (ACD) means dust or debris that has settled within a workplace and is, or is assumed to be, contaminated with asbestos.

asbestos management plan—see clause 429 or 432.

asbestos register—see clause 425.

asbestos-related work means work involving asbestos (other than asbestos removal work to which Part 8.7 applies) that is permitted under the exceptions set out in clause 419 (3), (4) and (5).

asbestos removal licence means a Class A asbestos removal licence or a Class B asbestos removal licence.

asbestos removal work means:

(a)  work involving the removal of asbestos or ACM, or

(b)  in Part 8.10, Class A asbestos removal work or Class B asbestos removal work.

asbestos removalist means a person conducting a business or undertaking who carries out asbestos removal work.

asbestos waste means asbestos or ACM removed and disposable items used during asbestos removal work including plastic sheeting and disposable tools.

biological monitoring means:

(a)  the measurement and evaluation of a substance, or its metabolites, in the body tissue, fluids or exhaled air of a person exposed to the substance, or

(b)  blood lead level monitoring.

blood lead level means the concentration of lead in whole blood expressed in micromoles per litre (µmol/L) or micrograms per decilitre (µg/dL).

blood lead level monitoring means the testing of the venous or capillary blood of a person by a laboratory accredited by NATA, under the supervision of a registered medical practitioner, to determine the blood lead level.

boiler means:

(a)  a vessel, or an arrangement of vessels and interconnecting parts, in which steam or vapour is generated or in which water or other liquid is heated at a pressure above that of the atmosphere by the application of fire, the products of combustion, electrical power or similar high temperature means, and

(b)  the superheaters, reheaters, economisers, boiler piping, supports, mountings, valves, gauges, fittings, controls, boiler setting and other equipment directly associated with those vessels,

but does not include:

(c)  except in Schedules 3 and 4, a fully flooded or pressurised system where water or another liquid is heated to a temperature lower than the normal atmospheric boiling temperature of the liquid, or

(d)  for the purposes of Parts 5.2 and 5.3 and in Schedules 3 and 4, a boiler designed or manufactured to the following codes:

(i)  AMBSC Part 1—Australian Miniature Boiler Safety Committee Code for Copper Boilers,

(ii)  AMBSC Part 2—Australian Miniature Boiler Safety Committee Code for Steel Boilers,

(iii)  AMBSC Part 3—Australian Miniature Boiler Safety Committee Code for Sub-Miniature Boilers,

(iv)  AMBSC Part 4—Australian Miniature Boiler Safety Committee Code for Duplex Steel Boilers, or

(e)  in Schedules 3 and 4:

(i)  a direct fired process heater, or

(ii)  boilers with less than 5 square metres heating surface or 150 kilowatt output, or

(iii)  unattended boilers certified in compliance with AS 2593:2004 (Boilers—Safety management and supervision systems).

boom-type elevating work platform means a telescoping device, hinged device, or articulated device, or any combination of these, used to support a platform on which personnel, equipment and materials may be elevated.

bridge crane means a crane that:

(a)  consists of a bridge beam or beams, that are mounted to end carriages at each end, and

(b)  is capable of travelling along elevated runways, and

(c)  has 1 or more hoisting mechanisms arranged to traverse across the bridge.

building maintenance equipment means a suspended platform and associated equipment, including a building maintenance unit or a swing stage, that incorporates permanently installed overhead supports to provide access to the faces of a building for maintenance, but does not include a suspended scaffold.

building maintenance unit means a power operated suspended platform and associated equipment on a building specifically designed to provide permanent access to the faces of the building for maintenance.

bulk, in relation to a hazardous chemical, means any quantity of a hazardous chemical that is:

(a)  in a container with a capacity exceeding 500 litres or net mass of more than 500 kilograms, or

(b)  if the hazardous chemical is a solid—an undivided quantity exceeding 500 kilograms.

capacity, of a container (in Chapter 7), means the internal volume of the container at a temperature of 15°C expressed in litres.

card holder means the person to whom a general construction induction training card is issued.

certificate of medical fitness means a certificate of medical fitness that complies with clause 169.

certification, in relation to a specified VET course, means:

(a)  a statement of attainment issued by an RTO stating that the person to whom it is issued has successfully completed the specified VET course, or

(b)  in the case of high risk work—a notice of satisfactory assessment stating that the person to whom it is issued has successfully completed the specified VET course, or

(c)  an equivalent statement or notice issued by a corresponding RTO.

certified safety management system, in Chapter 8, means a safety management system that complies with AS 4801:2001 (Occupational health and safety management systems), or an equivalent system determined by the regulator.

chemical identity means a name, in accordance with the nomenclature systems of the International Union of Pure and Applied Chemistry or the Chemical Abstracts Service, or a technical name, that gives a chemical a unique identity.

class means:

(a)  in relation to high risk work, a class of work specified in Schedule 3,

(b)  in relation to asbestos removal work, Class A asbestos removal work or Class B asbestos removal work.

Class A asbestos removal licence means a licence that authorises the carrying out of Class A asbestos removal work and Class B asbestos removal work by or on behalf of the licence holder.

Class A asbestos removal work means work that is required to be licensed under clause 485.

Class B asbestos removal licence means a licence that authorises the carrying out of Class B asbestos removal work by or on behalf of the licence holder.

Class B asbestos removal work means work that is required to be licensed under clause 487, but does not include Class A asbestos removal work.

class label means a pictogram described in the ADG Code for a class, or division of a class, of dangerous goods.

clearance certificate—see clause 474.

clearance inspection—see clause 473.

combustible dust means finely divided solid particles (including dust, fibres or flyings) that are:

(a)  suspended in air or settle out of the atmosphere under their own weight, and

(b)  able to burn or glow in air, and

(c)  able to form an explosive mixture with air at atmospheric pressure and normal temperature.

combustible liquid means a liquid, other than a flammable liquid, that has a flash point, and a fire point less than its boiling point.

combustible substance means a substance that is combustible, and includes dust, fibres, fumes, mists or vapours produced by the substance.

Examples—

Wood, paper, oil, iron filings.

competency assessment, in Part 4.5, means an assessment in relation to the completion of a specified VET course to carry out a class of high risk work.

competent person means:

(a)  for electrical work on energised electrical equipment or energised electrical installations (other than testing referred to in clauses 150 and 165)—a person who is authorised under the Home Building Act 1989 to do electrical wiring work,

(b)  for general diving work—see clauses 174 and 177,

(c)  for a major inspection of a mobile crane or a tower crane under clause 235—see clause 235,

(d)  for an inspection of an amusement device or passenger ropeway under clause 241—see clause 241,

(e)  for design verification under clause 252—a person who has the skills, qualifications, competence and experience to design the plant or verify the design,

(f)  for a clearance inspection under clause 473—a person who has acquired through training or experience the knowledge and skills of relevant asbestos removal industry practice and holds:

(i)  a certification in relation to the specified VET course for asbestos assessor work, or

(ii)  a tertiary qualification in occupational health and safety, occupational hygiene, science, building, construction or environmental health,

(g)  for any other case—a person who has acquired through training, qualification or experience the knowledge and skills to carry out the task.

concrete placing boom means plant incorporating a knuckle boom, capable of power operated slewing and luffing to place concrete by way of pumping through a pipeline attached to, or forming part of, the boom of the plant.

confined space means an enclosed or partially enclosed space that:

(a)  is not designed or intended primarily to be occupied by a person, and

(b)  is, or is designed or intended to be, at normal atmospheric pressure while any person is in the space, and

(c)  is or is likely to be a risk to health and safety from:

(i)  an atmosphere that does not have a safe oxygen level, or

(ii)  contaminants, including airborne gases, vapours and dusts, that may cause injury from fire or explosion, or

(iii)  harmful concentrations of any airborne contaminants, or

(iv)  engulfment,

but does not include a mine shaft or the workings of a mine.

confined space entry permit means a confined space entry permit issued under clause 67.

construction project—see clause 292.

construction work—see clause 289.

consumer product means a thing that:

(a)  is packed or repacked primarily for use by a household consumer or for use in an office, and

(b)  if the thing is packed or repacked primarily for use by a household consumer—is packed in the way and quantity in which it is intended to be used by a household consumer, and

(c)  if the thing is packed or repacked primarily for use in an office—is packed in the way and quantity in which it is intended to be used for office work.

container, in relation to a hazardous chemical, means anything in or by which a hazardous chemical is, or has been, wholly or partly covered, enclosed or packed, including anything necessary for the container to perform its function as a container.

contaminant means any substance that may be harmful to health or safety.

control measure, in relation to a risk to health and safety, means a measure to eliminate or minimise the risk.

conveyor means equipment or apparatus operated by power other than manual power and by which loads are raised, lowered or transported or capable of being raised, lowered, transported, or continuously driven, by:

(a)  an endless belt, rope or chain or other similar means, or

(b)  buckets, trays or other containers or fittings moved by an endless belt, rope, chain or similar means, or

(c)  a rotating screw, or

(d)  a vibration or walking beam, or

(e)  a powered roller conveyor if the rollers are driven by an endless belt, rope or chain or other similar means,

and includes the superstructure, gear and auxiliary equipment used in connection with that equipment or apparatus.

correct classification means the set of hazard classes and hazard categories assigned to a hazardous chemical when it is correctly classified.

Note—

Part 1 of Schedule 9 sets out when a hazardous chemical is correctly classified.

crane means an appliance intended for raising or lowering a load and moving it horizontally including the supporting structure of the crane and its foundations, but does not include any of the following:

(a)  an industrial lift truck,

(b)  earthmoving machinery,

(c)  an amusement device,

(d)  a tractor,

(e)  an industrial robot,

(f)  a conveyor,

(g)  building maintenance equipment,

(h)  a suspended scaffold,

(i)  a lift.

current certificate of medical fitness means a certificate of medical fitness that:

(a)  was issued within the past 12 months, and

(b)  has not expired or been revoked.

demolition work means work to demolish or dismantle a structure, or part of a structure that is loadbearing or otherwise related to the physical integrity of the structure, but does not include:

(a)  the dismantling of formwork, falsework, or other structures designed or used to provide support, access or containment during construction work, or

(b)  the removal of power, light or telecommunication poles.

derrick crane means a slewing strut boom crane with its boom pivoted at the base of a mast that is:

(a)  guyed (guy derrick) or held by backstays (stiff legged derrick), and

(b)  capable of luffing under load.

designer, in relation to plant, a substance or a structure, has the same meaning as it has in section 22 of the Act.

determined major hazard facility means a facility that has been determined under clause 541 or 542 to be a major hazard facility.

direct fired process heater means an arrangement of 1 or more coils, located in the radiant zone or convection zone, or both, of a combustion chamber, the primary purpose of which is to raise the temperature of a process fluid circulated through the coils, to allow distillation, fractionalism, reaction or other petrochemical processing of the process fluid, whether that fluid is liquid or gas, or a combination of liquid and gas.

dogging work means:

(a)  the application of slinging techniques, including the selection and inspection of lifting gear, to safely sling a load, or

(b)  the directing of a plant operator in the movement of a load when the load is out of the operator’s view.

duty holder, in Part 3.1, means a person referred to in clause 32.

EANx, in Part 4.8, means a mixture of oxygen and nitrogen in which the volume of oxygen is at least 22%.

earthmoving machinery means operator controlled plant used to excavate, load, transport, compact or spread earth, overburden, rubble, spoil, aggregate or similar material, but does not include a tractor or industrial lift truck.

electrical equipment—see clause 144 (and clause 148 for Division 3 of Part 4.7).

electrical installation—see clause 145 (and clause 148 for Division 3 of Part 4.7).

electrical risk means risk to a person of death, shock or other injury caused directly or indirectly by electricity.

electrical work—see clause 146.

electricity supply authority means a person or body engaged in the distribution of electricity to the public or in the generation of electricity for supply, directly or indirectly, to the public whether by statute, franchise agreement or otherwise and includes:

(a)  an energy services corporation within the meaning of the Energy Services Corporations Act 1995, and

(a1)  a network operator within the meaning of the Electricity Supply Act 1995, and

(b)  the Country Rail Infrastructure Authority constituted by the Transport Administration Act 1988, and

(c)  Rail Corporation New South Wales, and

(d)  Transport for NSW, and

(e)  the Water Administration Ministerial Corporation constituted by the Water Management Act 2000.

emergency service organisation includes any of the following:

(a)  the Ambulance Service of NSW,

(b)  Fire and Rescue NSW,

(c)  the NSW Rural Fire Service,

(d)  the NSW Police Force,

(e)  the State Emergency Service,

(f)  the NSW Volunteer Rescue Association Inc,

(g)  the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001,

(h)  an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989.

emergency service worker includes an officer, employee or member of any of the following:

(a)  the Ambulance Service of NSW,

(b)  Fire and Rescue NSW,

(c)  the NSW Rural Fire Service,

(d)  the NSW Police Force,

(e)  the State Emergency Service,

(f)  the NSW Volunteer Rescue Association Inc,

(g)  the New South Wales Mines Rescue Brigade established under the Coal Industry Act 2001,

(h)  an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989.

engineering control means a control measure that is physical in nature, including a mechanical device or process.

entry, by a person into a confined space, means the person’s head or upper body is in the confined space or within the boundary of the confined space.

essential services means the supply of:

(a)  gas, water, sewerage, telecommunications, electricity and similar services, or

(b)  chemicals, fuel and refrigerant in pipes or lines.

excavation means a trench, tunnel or shaft, but does not include:

(a)  a mine, or

(b)  a bore to which the Water Act 1912 applies, or

(c)  a trench for use as a place of interment.

excavation work means work to:

(a)  make an excavation, or

(b)  fill or partly fill an excavation.

exposure standard, except in Part 4.1, means an exposure standard in the Workplace Exposure Standard for Airborne Contaminants.

exposure standard for noise—see clause 56.

external review means an external review under Part 11.1.

extra-low voltage means voltage that does not exceed 50 volts alternating current (50V AC) or 120 volts ripple-free direct current (120V ripple-free DC).

facility, in Chapter 9, means a workplace at which Schedule 15 chemicals are present or likely to be present.

fall arrest system means plant or material designed to arrest a fall.

Example—

An industrial safety net, a catch platform, a safety harness system (other than a system that relies entirely on a restraint technique system).

fault, in relation to plant, means a break or defect that may cause the plant to present a risk to health and safety.

female of reproductive capacity, in Part 7.2, means a female other than a female who provides information stating that she is not of reproductive capacity.

fire risk hazardous chemical means a hazardous chemical that:

(a)  is any of the following:

(i)  a flammable gas,

(ii)  a flammable liquid (hazard category 1 to 3),

(iii)  a flammable solid,

(iv)  a substance liable to spontaneous combustion,

(v)  a substance which, in contact with water, emits flammable gases,

(vi)  an oxidizing substance,

(vii)  an organic peroxide, and

(b)  burns readily or supports combustion.

fitness criteria, in relation to diving work, means the fitness criteria specified in clause M4 of Appendix M to AS/NZS 2299.1:2007 (Occupational diving operations—Standard operational practice).

flammable gas has the same meaning as it has in the GHS.

flammable liquid means a flammable liquid within the meaning of the GHS that has a flash point of less than 93°C.

forklift truck, in Schedules 3 and 4, means a powered industrial truck equipped with lifting media made up of a mast and an elevating load carriage to which is attached a pair of fork arms or other arms that can be raised 900mm or more above the ground, but does not include a pedestrian-operated truck or a pallet truck.

friable asbestos means material that:

(a)  is in a powder form or that can be crumbled, pulverised or reduced to a powder by hand pressure when dry, and

(b)  contains asbestos.

gantry crane means a crane that:

(a)  consists of a bridge beam or beams supported at one or both ends by legs mounted to end carriages, and

(b)  is capable of travelling on supporting surfaces or deck levels, whether fixed or not, and

(c)  has a crab with 1 or more hoisting units arranged to travel across the bridge.

gas cylinder means a rigid vessel:

(a)  that does not exceed 3000 litres water capacity and is without openings or integral attachments on the shell other than at the ends, and

(b)  that is designed for the storage and transport of gas under pressure, and

(c)  that is covered by AS 2030.1:2009 (Gas cylinders—General requirements).

general construction induction training means training delivered in Australia by an RTO for the specified VET course for general construction induction training.

general construction induction training card means:

(a)  in Division 2 of Part 6.5—a general construction induction training card issued under that Division,

(b)  in any other case—a general construction induction training card issued:

(i)  under Division 2 of Part 6.5 or under a corresponding WHS law, or

(ii)  by an RTO under an agreement between the regulator and an RTO or a corresponding regulator and an RTO.

general construction induction training certification means a certification for the completion of the specified VET course for general construction induction training.

general diving work means work carried out in or under water while breathing compressed gas, and includes:

(a)  incidental diving work, and

(b)  limited scientific diving work,

but does not include high risk diving work.

genuine research means systematic investigative or experimental activities that are carried out for either acquiring new knowledge (whether or not the knowledge will have a specific practical application) or creating new or improved materials, products, devices, processes or services.

GHS means the Globally Harmonised System of Classification and Labelling of Chemicals, Third revised edition, published by the United Nations as modified under Schedule 6.

Note—

The Schedule 6 tables replace some tables in the GHS.

hazard category means a division of criteria within a hazard class in the GHS.

hazard class means the nature of a physical, health or environmental hazard under the GHS.

hazard pictogram means a graphical composition, including a symbol plus other graphical elements, that is assigned in the GHS to a hazard class or hazard category.

hazard statement means a statement assigned in the GHS to a hazard class or hazard category describing the nature of the hazards of a hazardous chemical including, if appropriate, the degree of hazard.

hazardous area means an area in which:

(a)  an explosive gas is present in the atmosphere in a quantity that requires special precautions to be taken for the construction, installation and use of plant, or

(b)  a combustible dust is present, or could reasonably be expected to be present, in the atmosphere in a quantity that requires special precautions to be taken for the construction, installation and use of plant.

hazardous chemical means a substance, mixture or article that satisfies the criteria for a hazard class in the GHS (including a classification referred to in Schedule 6), but does not include a substance, mixture or article that satisfies the criteria solely for one of the following hazard classes:

(a)  acute toxicity—oral—category 5,

(b)  acute toxicity—dermal—category 5,

(c)  acute toxicity—inhalation—category 5,

(d)  skin corrosion/irritation—category 3,

(e)  serious eye damage/eye irritation—category 2B,

(f)  aspiration hazard—category 2,

(g)  flammable gas—category 2,

(h)  acute hazard to the aquatic environment—category 1, 2 or 3,

(i)  chronic hazard to the aquatic environment—category 1, 2, 3 or 4,

(j)  hazardous to the ozone layer.

Note—

The Schedule 6 tables replace some tables in the GHS.

hazardous manual task means a task that requires a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any person, animal or thing that involves 1 or more of the following:

(a)  repetitive or sustained force,

(b)  high or sudden force,

(c)  repetitive movement,

(d)  sustained or awkward posture,

(e)  exposure to vibration.

Examples—

1 A task requiring a person to restrain live animals.

2 A task requiring a person to lift or move loads that are unstable or unbalanced or are difficult to grasp or hold.

3 A task requiring a person to sort objects on a conveyor belt.

Hazchem Code means a Hazchem Code under the ADG Code, also known as an Emergency Action Code.

head or upper body means the area of a person’s body at or above the person’s shoulders.

health monitoring, of a person, means monitoring the person to identify changes in the person’s health status because of exposure to certain substances.

heritage boiler means a boiler that:

(a)  was manufactured before 1952, and

(b)  is used for a historical purpose or activity, including an activity that is ancillary to a historical activity.

Examples—

1 Historical activity : a historical display, parade, demonstration or re-enactment.

2 Activity ancillary to a historical activity : restoring, maintaining, modifying, servicing, repairing or housing a boiler used, or to be used, for a historical activity.

high risk construction work—see clause 291.

high risk diving work means work:

(a)  carried out in or under water or any other liquid while breathing compressed gas, and

(b)  involving 1 or more of the following:

(i)  construction work,

Notes—

1 Subparagraph (ii) includes some additional construction-related activities.

2 For construction work generally, see Chapter 6. For the meaning of construction work , see clause 289.

(ii)  work of the kind described in clause 289 (3) (d),

(iii)  inspection work carried out in order to determine whether or not work described in subparagraph (i) or (ii) is necessary,

(iv)  the recovery or salvage of a large structure or large item of plant for commercial purposes,

but does not include minor work carried out in the sea or the waters of a bay or inlet or a marina that involves cleaning, inspecting, maintaining or searching for a vessel or mooring.

high risk work means any work set out in Schedule 3 as being within the scope of a high risk work licence.

high risk work licence means any of the licences listed in Schedule 3.

hoist means an appliance intended for raising or lowering a load or people, and includes an elevating work platform, a mast climbing work platform, personnel and materials hoist, scaffolding hoist and serial hoist, but does not include a lift or building maintenance equipment.

ignition source means a source of energy capable of igniting flammable or combustible substances.

importer, in relation to plant, a substance or a structure, has the same meaning as it has in section 24 of the Act.

incidental diving work means general diving work that:

(a)  is incidental to the conduct of the business or undertaking in which the diving work is carried out, and

Example—

Acting underwater is incidental to the business or undertaking of filming.

(b)  involves limited diving.

(c)    (Repealed)

independent, in relation to clearance inspections and air monitoring under Chapter 8, means:

(a)  not involved in the removal of the asbestos, and

(b)  not involved in a business or undertaking involved in the removal of the asbestos,

in relation to which the inspection or monitoring is conducted.

industrial lift truck means powered mobile plant, designed to move goods, materials or equipment that is equipped with an elevating load carriage and is in the normal course of use equipped with a load-holding attachment, but does not include a mobile crane or earthmoving machinery.

industrial robot means plant that is a multifunctional manipulator and its controllers, capable of handling materials, parts or tools, or specialised devices, through variable programmed motions for the performance of a variety of tasks.

inflatable device (continuously blown) means an amusement device that is an inflatable device that relies on a continuous supply of air pressure to maintain its shape.

in situ asbestos means asbestos or ACM fixed or installed in a structure, equipment or plant, but does not include naturally occurring asbestos.

intermediate bulk container (IBC) has the same meaning as IBC has in the ADG Code.

internal review means internal review under Part 11.1.

in transit, in relation to a thing, means that the thing:

(a)  is supplied to, or stored at, a workplace in containers that are not opened at the workplace, and

(b)  is not used at the workplace, and

(c)  is kept at the workplace for not more than 5 consecutive days.

lead means lead metal, lead alloys, inorganic lead compounds and lead salts of organic acids.

lead process—see clause 392.

lead process area means a workplace or part of a workplace where a lead process is carried out.

lead risk work—see clause 394.

licence holder means:

(a)  in the case of a high risk work licence—the person who is licensed to carry out the work, or

(b)  in the case of an asbestos assessor licence—the person who is licensed:

(i)  to carry out air monitoring during Class A asbestos removal work, and

(ii)  to carry out clearance inspections of Class A asbestos removal work, and

(iii)  to issue clearance certificates in relation to Class A asbestos removal work, or

(c)  in the case of an asbestos removal licence—the person conducting the business or undertaking to whom the licence is granted, or

(d)  in the case of a major hazard facility licence—the operator of the major hazard facility to whom the licence is granted or transferred.

licensed asbestos assessor means a person who holds an asbestos assessor licence.

licensed asbestos removalist means a person conducting a business or undertaking who is licensed under this Regulation to carry out Class A asbestos removal work or Class B asbestos removal work.

licensed asbestos removal work means asbestos removal work for which a Class A asbestos removal licence or Class B asbestos removal licence is required.

licensed major hazard facility means a major hazard facility that is licensed under Part 9.7.

lift means plant that is, or is intended to be, permanently installed in or attached to a structure, in which people, goods or materials may be raised or lowered within a car or cage, or on a platform and the movement of which is restricted by a guide or guides, and includes:

(a)  a chairlift, escalator, moving walkway and stairway lift, and

(b)  any supporting structure, machinery, equipment, gear, lift well, enclosures and entrances.

limited diving means diving that does not involve any of the following:

(a)  diving to a depth below 30 metres,

(b)  the need for a decompression stop,

(c)  the use of mechanical lifting equipment or a buoyancy lifting device,

(d)  diving beneath anything that would require the diver to move sideways before being able to ascend,

(e)  the use of plant that is powered from the surface,

(f)  diving for more than 28 days during a period of 6 months.

limited scientific diving work means general diving work that:

(a)  is carried out for the purpose of professional scientific research, natural resource management or scientific research as an educational activity, and

(b)  involves only limited diving.

local authority, in relation to a facility, means the local authority for the local authority area in which the facility and the surrounding area are located.

local community, in relation to a major hazard facility, means the community in the surrounding area.

lower explosive limit (LEL), in relation to a flammable gas, vapour or mist, means the concentration of the gas, vapour or mist in air below which the propagation of a flame does not occur on contact with an ignition source.

maintain, in relation to plant or a structure in Chapter 5, includes repair or servicing of plant or a structure.

major hazard facility means a facility:

(a)  at which Schedule 15 chemicals are present or likely to be present in a quantity that exceeds their threshold quantity, or

(b)  that is determined by the regulator under Part 9.2 to be a major hazard facility.

major hazard facility licence means a licence granted under Part 9.7 in relation to a major hazard facility.

major incident—see clause 531.

major incident hazard means a hazard that could cause, or contribute to causing, a major incident.

manifest means a written summary of the hazardous chemicals used, handled or stored at a workplace.

Note—

See Schedule 12 (Manifest requirements) for what a manifest must contain.

manifest quantity, in relation to a Schedule 11 hazardous chemical, means the manifest quantity referred to in Schedule 11, table 11.1, column 5 for that hazardous chemical.

manufacturer, in relation to plant, a substance or a structure, has the same meaning as it has in section 23 of the Act.

mast climbing work platform means a hoist with a working platform used for temporary purposes to raise personnel and materials to the working position by means of a drive system mounted on an extendable mast that may be tied to a structure.

materials hoist means a hoist that:

(a)  consists of a car, bucket or platform cantilevered from, and travelling up and down outside, a face of the support of a structure, and

(b)  is used for hoisting things and substances but not persons.

membrane filter method means the membrane filter method described in the Guidance note on the Membrane Filter Method for Estimating Airborne Asbestos Fibres [NOHSC:3003 (2005)].

mixture in Part 7.1, means a combination of, or a solution composed of, 2 or more substances that do not react with each other.

mobile crane means a crane capable of travelling over a supporting surface without the need for fixed runways and relying only on gravity for stability.

modification, in relation to a facility—see clause 534.

musculoskeletal disorder means an injury to, or disease of, the musculoskeletal system, whether occurring suddenly or over time, but does not include an injury caused by crushing, entrapment or cutting resulting principally from the mechanical operation of plant.

NATA means the National Association of Testing Authorities, Australia.

NATA-accredited laboratory means a testing laboratory accredited by NATA, or recognised by NATA either solely or with someone else.

naturally occurring asbestos means the natural geological occurrence of asbestos minerals found in association with geological deposits including rock, sediment or soil.

non-friable asbestos means material containing asbestos that is not friable asbestos, including material containing asbestos fibres reinforced with a bonding compound.

Note—

Non-friable asbestos may become friable asbestos through deterioration (see definition of friable asbestos).

non-slewing mobile crane means a mobile crane incorporating a boom or jib that cannot be slewed, and includes:

(a)  an articulated mobile crane, or

(b)  a locomotive crane,

but does not include vehicle tow trucks.

notice of satisfactory assessment means a notice stating that the person to whom it is issued has successfully completed a specified VET course.

operator, in relation to a facility or a proposed facility—see clause 533.

operator protective device, includes a roll-over protective structure, falling object protective structure, operator restraining device and seat belt.

order-picking forklift truck, in Schedules 3 and 4, means a forklift truck where the operator’s controls are incorporated with the lifting media and elevate with the lifting media.

packaged hazardous chemicals means Schedule 11 hazardous chemicals in a container with:

(a)  a capacity not exceeding 500 litres, or

(b)  a net mass not exceeding 500 kilograms.

passenger ropeway means a powered ropeway used for transporting, in a horizontal or inclined plane, passengers moved by a carrier that is:

(a)  attached to or supported by a moving rope, or

(b)  attached to a moving rope but supported by a standing rope or other overhead structure,

including, in relation to the powered ropeway, the prime mover, any associated transmission machinery and any supporting structure and equipment, but does not include any of the following:

(c)  a cog railway,

(d)  a cable car running on rails,

(e)  a flying fox or similar device,

(f)  an elevating system for vehicles or boat style carriers associated with amusement devices,

Example—

An elevating system for a log ride or boat flume ride.

(g)  a winding system in a mine.

person with management or control of plant at a workplace has the same meaning as it has in section 21 of the Act.

person with management or control of a workplace has the same meaning as it has in section 20 of the Act.

personal protective equipment means anything used or worn by a person to minimise risk to the person’s health and safety, including air supplied respiratory equipment.

personnel and materials hoist means a hoist:

(a)  that is a cantilever hoist, a tower hoist or several winches configured to operate as a hoist, and

(b)  that is intended to carry goods, materials or people.

pipeline means pipe work that crosses a boundary of a workplace, beginning or ending at the nearest fluid or slurry control point (along the axis of the pipeline) to the boundary.

pipe work means a pipe or assembly of pipes, pipe fittings, valves and pipe accessories used to convey a hazardous chemical.

placard means a sign or notice:

(a)  displayed or intended for display in a prominent place, or next to a container or storage area for hazardous chemicals at a workplace, and

(b)  that contains information about the hazardous chemical stored in the container or storage area.

placard quantity, in relation to a Schedule 11 hazardous chemical, means the placard quantity referred to in Schedule 11, table 11.1 column 4 for the Schedule 11 hazardous chemical.

plant, in Parts 5.2 and 5.3, includes a structure.

platform height, in relation to an inflatable device (continuously blown), means the height of the highest part of the device designed to support persons using it (the platform), as measured from the surface supporting the device to the top surface of the platform when the device is inflated but unloaded.

portal boom crane means a boom crane or a jib crane that is mounted on a portal frame that, in turn, is supported on runways along which the crane travels.

powered mobile plant means plant that is provided with some form of self-propulsion that is ordinarily under the direct control of an operator.

precautionary statement means a phrase prescribed by the GHS that describes measures that are recommended to be taken to prevent or minimise:

(a)  the adverse effects of exposure to a hazardous chemical, or

(b)  improper handling of a hazardous chemical.

presence-sensing safeguarding system includes:

(a)  a sensing system that uses 1 or more forms of radiation either self-generated or otherwise generated by pressure, and

(b)  the interface between the final switching devices of the sensing system and the machine primary control elements, and

(c)  the machine stopping capabilities, by which the presence of a person or part of a person within the sensing field will cause the dangerous parts of a machine to be brought to a safe state.

pressure equipment means boilers, pressure vessels and pressure piping.

pressure piping:

(a)  means an assembly of pipes, pipe fittings, valves and pipe accessories subject to internal or external pressure and used to contain or convey liquid or to transmit liquid pressure, and

(b)  includes distribution headers, bolting, gaskets, pipe supports and pressure containing accessories, but

(c)  does not include:

(i)  a boiler or pressure vessel, or

(ii)  any piping that is regulated under the Gas Supply Act 1996, the Petroleum (Offshore) Act 1982 or the Pipelines Act 1967.

pressure vessel:

(a)  means a vessel subject to internal or external pressure, and

(b)  includes:

(i)  interconnected parts and components, valves, gauges and other fittings up to the first point of connection to connecting piping, and

(ii)  fired heaters, and

(iii)  gas cylinders, but

(c)  does not include a boiler or pressure piping.

primary emergency service organisation means Fire and Rescue NSW.

principal contractor, in relation to a construction project—see clause 293.

product identifier means the name or number used to identify a product on a label or in a safety data sheet.

prohibited carcinogen means a substance:

(a)  listed in Schedule 10, table 10.1, column 2, and

(b)  present in a concentration of:

(i)  for a solid or liquid—0.1% or more, determined as a weight/weight (w/w) concentration, and

(ii)  for a gas—0.1% or more, determined as a volume/volume (v/v) concentration.

proposed facility means:

(a)  an existing workplace that is to become a facility due to the introduction of Schedule 15 chemicals, or

(b)  a facility that is being designed or constructed.

proposed major hazard facility means:

(a)  an existing facility or other workplace that is to become a major hazard facility due to the introduction of Schedule 15 chemicals or the addition of further Schedule 15 chemicals, or

(b)  a major hazard facility that is being designed or constructed.

quantity, in Chapter 7, means:

(a)  for a hazardous chemical that is not a liquid or a gas or a gas under pressure and is in a container or storage or handling system—the mass in kilograms of the hazardous chemical in the container or storage or handling system, and

(b)  for a hazardous chemical that is a liquid and is not a gas under pressure and is in a container or storage or handling system—the net capacity in litres of the container or storage or handling system, and

(c)  for a hazardous chemical that is a gas or gas under pressure in a container or storage or handling system—the water capacity in litres of the container or storage or handling system, and

(d)  for a hazardous chemical that is not a liquid and is in bulk and not in a container—the undivided mass in kilograms, and

(e)  for a hazardous chemical that is a thing and is not a gas—the net capacity of the part of the thing that comprises a hazardous chemical.

reach stacker means a powered reach stacker that incorporates an attachment for lifting and lowering a shipping container.

reciprocating steam engine means equipment that is driven by steam acting on a piston causing the piston to move, and includes an expanding (steam) reciprocating engine.

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student).

registered training organisation (RTO) means a training organisation that:

(a)  is listed as a registered training organisation on the National Register established under the National Vocational Education and Training Regulator Act 2011 of the Commonwealth, and

(b)  has entered into an agreement with the regulator to deliver training and conduct assessments.

relevant fee, in relation to a matter, means the fee specified in Schedule 2 for that matter.

research chemical means a substance or mixture that:

(a)  is manufactured in a laboratory for genuine research, and

(b)  is not for use or supply for a purpose other than analysis or genuine research.

respirable asbestos fibre means an asbestos fibre that:

(a)  is less than 3 micrometres wide, and

(b)  more than 5 micrometres long, and

(c)  has a length to width ratio of more than 3:1.

restricted carcinogen means a substance:

(a)  listed in Schedule 10, table 10.2, column 2 for a use listed in column 3, and

(b)  present in a concentration of:

(i)  for a solid or liquid—0.1% or more, determined as a weight/weight (w/w) concentration, and

(ii)  for a gas—0.1% or more, determined as a volume/volume (v/v) concentration.

retailer means a person whose principal business is supplying consumer products to members of the public who are not engaged in the further supply of those products.

rigging work means:

(a)  the use of mechanical load shifting equipment and associated gear to move, place or secure a load using plant, equipment or members of a structure to ensure the stability of those members, or

(b)  the setting up or dismantling of cranes or hoists.

safe oxygen level means a minimum oxygen content of air of 19.5% by volume under normal atmospheric pressure and a maximum oxygen content of air of 23.5% by volume under normal atmospheric pressure.

Safe Work Australia means Safe Work Australia as established under section 5 of the Safe Work Australia Act 2008 of the Commonwealth.

safe work method statement means:

(a)  in relation to electrical work on energised electrical equipment—a safe work method statement prepared under clause 161,

(b)  in relation to high risk construction work—a safe work method statement referred to in clause 299 (as revised under clause 302).

safety data sheet means a safety data sheet prepared under clause 330 or 331.

scaffold means a temporary structure specifically erected to support access or working platforms.

scaffolding work means erecting, altering or dismantling a temporary structure that is or has been erected to support a platform and from which a person or object could fall more than 4 metres from the platform or the structure.

Schedule 11 hazardous chemical means a hazardous chemical or combination of hazardous chemicals specified in Schedule 11, table 11.1.

Schedule 15 chemical means a hazardous chemical that:

(a)  is specified in Schedule 15, table 15.1, or

(b)  belongs to a class, type or category of hazardous chemicals specified in Schedule 15, table 15.2.

self erecting tower crane means a crane:

(a)  that is not disassembled into a tower element and a boom or jib element in the normal course of use, and

(b)  where the erection and dismantling processes are an inherent part of the crane’s function.

shaft means a vertical or inclined way or opening, from the surface downwards or from any underground working, the dimensions of which (apart from the perimeter) are less than its depth.

signal word means the word “danger” or “warning” used on a label to indicate to a label reader the relative severity level of a hazard, and to alert the reader to a potential hazard, under the GHS.

slewing mobile crane means a mobile crane incorporating a boom or jib that can be slewed, but does not include:

(a)  a front end loader, or

(b)  a backhoe, or

(c)  an excavator, or

(d)  other earth moving equipment,

when configured for crane operation.

slinging techniques means the exercising of judgement in relation to the suitability and condition of lifting gear and the method of slinging, by consideration of the nature of the load, its mass and its centre of gravity.

specified VET course means:

(a)  in relation to general construction induction training—the VET course Work Safely in the Construction Industry or a corresponding subsequent VET accredited course, or

(b)  in relation to Class A asbestos removal work—the VET course Remove friable asbestos, or

(c)  in relation to Class B asbestos removal work—the VET course Remove non friable asbestos, or

(d)  in relation to the supervision of asbestos removal work—the VET course Supervise asbestos removal, or

(e)  in relation to asbestos assessor work—the VET course Conduct asbestos assessment associated with removal, or

(f)  in relation to high risk work—the relevant VET course specified in Schedule 4.

structure, in Chapter 6—see clause 290.

substance, in Part 7.1, means a chemical element or compound in its natural state or obtained or generated by a process:

(a)  including any additive necessary to preserve the stability of the element or compound and any impurities deriving from the process, but

(b)  excluding any solvent that may be separated without affecting the stability of the element or compound, or changing its composition.

supplier, in relation to plant, a substance or a structure, has the same meaning as it has in section 25 of the Act.

surrounding area, in relation to a facility, means the area surrounding the facility in which the health and safety of persons could potentially be adversely affected by a major incident occurring.

suspended scaffold means a scaffold incorporating a suspended platform that is capable of being raised or lowered when in use.

technical name, in the definition of chemical identity, means a name that is:

(a)  ordinarily used in commerce, regulations and codes to identify a substance or mixture, other than an International Union of Pure and Applied Chemistry or Chemical Abstracts Service name, and

(b)  recognised by the scientific community.

temporary work platform means:

(a)  a fixed, mobile or suspended scaffold, or

(b)  an elevating work platform, or

(c)  a mast climbing work platform, or

(d)  a work box supported by a crane, hoist, forklift truck or other form of mechanical plant, or

(e)  building maintenance equipment, including a building maintenance unit, or

(f)  a portable or mobile fabricated platform, or

(g)  any other temporary platform that:

(i)  provides a working area, and

(ii)  is designed to prevent a fall.

the Act means the Work Health and Safety Act 2011.

theatrical performance means acting, singing, playing a musical instrument, dancing or otherwise performing literary or artistic works or expressions of traditional custom or folklore.

threshold quantity, in relation to a Schedule 15 chemical, means:

(a)  the threshold quantity of a specific hazardous chemical as determined under clause 3 of Schedule 15, or

(b)  the aggregate threshold quantity of 2 or more hazardous chemicals as determined under clause 4 of Schedule 15.

tower crane means:

(a)  a boom crane or a jib crane mounted on a tower structure, and

(b)  in Schedule 3:

(i)  the crane, if a jib crane, may be a horizontal or luffing jib type, and

(ii)  the tower structure may be demountable or permanent,

but, in Schedule 3, does not include a self erecting tower crane.

tractor means a motor vehicle, whether wheeled or track mounted, designed to provide power and movement to any attached machine or implement by a transmission shaft, belt or linkage system but does not include earthmoving machinery.

trench means a horizontal or inclined way or opening:

(a)  the length of which is greater than its width and greater than or equal to its depth, and

(b)  that commences at and extends below the surface of the ground, and

(c)  that is open to the surface along its length.

tunnel means an underground passage or opening that:

(a)  is approximately horizontal, and

(b)  commences at the surface of the ground or at an excavation.

turbine means equipment that is driven by steam acting on a turbine or rotor to cause a rotary motion.

UN number has the same meaning as it has in Attachment 2 of the ADG Code.

vehicle hoist means a device to hoist vehicles designed to provide access for under-chassis examination or service.

vehicle loading crane means a crane mounted on a vehicle for the purpose of loading and unloading the vehicle.

VET course has the same meaning as it has in the National Vocational Education and Training Regulator Act 2011 of the Commonwealth.

WHS management plan, in relation to a construction project, means a management plan prepared or revised under Part 6.4.

work box means a personnel carrying device, designed to be suspended from a crane, to provide a working area for a person elevated by and working from the device.

work positioning system means any plant or structure, other than a temporary work platform, that enables a person to be positioned and safely supported at a location for the duration of the relevant work being carried out.

Workplace Exposure Standards for Airborne Contaminants means the Workplace Exposure Standards for Airborne Contaminants published by Safe Work Australia on its website with a date of effect of 18 April 2013 as in force or remade from time to time.

(2)  * * * * *

Note—

Not required in NSW.

cl 5: Am 2012 (544), Sch 1 [1]; 2014 (799), Sch 13 [1]; 2015 (61), Sch 1 [1]–[15]; 2015 No 5, Sch 8.33.

5A Meaning of “corresponding WHS law”

For the purposes of paragraph (b) of the definition of corresponding WHS law in section 4 of the Act, the Work Health and Safety (National Uniform Legislation) Act 2011 of the Northern Territory is prescribed as such a law.

cl 5A: Ins 2012 (544), Sch 1 [2].

6 Determination of safety management system

The regulator may make a determination for the purposes of the definition of certified safety management system.

7 Meaning of “person conducting a business or undertaking”—persons excluded

(1)  For the purposes of section 5 (6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.

(2)  Subclause (1) does not apply if the strata title body corporate engages any worker as an employee.

(3)  For the purposes of section 5 (6) of the Act, an incorporated association may be taken not to be a person conducting a business or undertaking if the incorporated association consists of a group of volunteers working together for 1 or more community purposes where:

(a)  the incorporated association, either alone or jointly with any other similar incorporated association, does not employ any person to carry out work for the incorporated association, and

(b)  none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the incorporated association.

(4)  In this clause, strata title body corporate means an owners corporation constituted under the Strata Schemes Management Act 1996.

8 Meaning of supply

For the purposes of section 6 (3) (b) of the Act, a supply of a thing does not include the supply of a thing by a person who does not control the supply and has no authority to make decisions about the supply.

Examples—

1 An auctioneer who auctions a thing without having possession of the thing.

2 A real estate agent acting in his or her capacity as a real estate agent.

9 Provisions linked to health and safety duties in Act

If a note at the foot of a provision of this Regulation states “WHS Act” followed by a reference to a section number, the clause provision sets out the way in which a person’s duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the clause provision.

Note—

A failure to comply with a duty or obligation under a section of the Act referred to in a “WHS Act” note is an offence to which a penalty applies.

Part 1.2 Application

10 Application of the Act to dangerous goods and high risk plant

(1)  The following provisions of the Act are excluded from the operation of Schedule 1 to the Act:

(a)  Divisions 2 to 8 of Part 5,

(b)  Part 6,

(c)  Part 7.

(1A)  Dangerous goods (within the meaning of the ADG Code) listed in Column 2 of the Table to clause 328 (1A) are prescribed for the purposes of Schedule 1 to the Act as dangerous goods if the quantity of the goods at a place is more than the relevant threshold for the goods referred to in Column 3 of that Table.

(1B)  The following plant is prescribed as high risk plant for the purposes of Schedule 1 to the Act:

(a)  boilers categorised as hazard level A, B or C according to criteria in section 2.1 of AS:4343:2005 (Pressure equipment—Hazard levels),

(b)  pressure vessels categorised as hazard level A, B or C according to the criteria in section 2.1 of AS:4343:2005 (Pressure equipment—Hazard levels), except:

(i)  LP Gas fuel vessels for automotive use, and

(ii)  serially produced vessels,

(c)  lifts, including escalators and moving walkways,

(d)  amusement devices covered by section 2.1 of AS:3533.1:2009 (Amusement rides and devices—Design and construction), except devices specified in subclause (1C),

(e)  gas cylinders.

(1C)  Subclause (1B) (d) does not apply to the following:

(a)  class 1 devices,

(b)  playground devices,

(c)  water slides where water facilitates patrons to slide easily, predominantly under gravity, along a static structure,

(d)  wave generators where patrons do not come into contact with the parts of machinery used for generating water waves,

(e)  inflatable devices that are sealed,

(f)  inflatable devices that do not use a non-return valve.

11 Application of this Regulation

A duty imposed on a person under a provision of this Regulation in relation to health and safety does not limit or affect any duty the person has under the Act or, unless otherwise expressly provided, any other provision of this Regulation.

12 Assessment of risk in relation to a class of hazards, tasks, circumstances or things

If this Regulation require an assessment of risks to health and safety associated with a hazard, task, thing or circumstance, an assessment of risks associated with a class of hazards, tasks, things or circumstances may be conducted if:

(a)  all hazards, tasks, things or circumstances in the class are the same, and

(b)  the assessment of risks for the class does not result in any worker or other person being exposed to a greater, additional or different risk to health and safety than if the risk assessment were carried out in relation to each individual hazard, task, thing or circumstance.

Part 1.3 Incorporated documents

13 Documents incorporated as in force when incorporated

A reference to any document applied, adopted or incorporated by, or referred to in, this Regulation is to be read as a reference to that document as in force at the time the document is applied, adopted, incorporated or referred to unless express provision is made to the contrary.

14 Inconsistencies between provisions

If a provision of any document applied, adopted or incorporated by, or referred to in, this Regulation is inconsistent with any provision in this Regulation, the provision of this Regulation prevails.

15 References to standards

(1)  In this Regulation, a reference consisting of the words “Australian Standard” or the letters “AS” followed in either case by a number or a number accompanied by a reference to a calendar year is a reference to the standard so numbered published by or on behalf of Standards Australia.

(2)  In this Regulation, a reference consisting of the expression “Australian/New Zealand Standard” or “AS/NZS” followed in either case by a number or a number accompanied by a reference to a calendar year is a reference to the standard so numbered published jointly by or on behalf of Standards Australia and the Standards Council of New Zealand.

Chapter 2 Representation and participation

Part 2.1 Representation

Division 1 Work groups

16 Negotiations for and determination of work groups

Negotiations for and determination of work groups and variations of work groups must be directed at ensuring that the workers are grouped in a way that:

(a)  most effectively and conveniently enables the interests of the workers, in relation to work health and safety, to be represented, and

(b)  has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group.

Note—

Under the Act, a work group may be determined for workers at more than 1 workplace (section 51 (3)) or for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces (Subdivision 3 of Division 3 of Part 5 of the Act).

17 Matters to be taken into account in negotiations

For the purposes of sections 52 (6) and 56 (4) of the Act, negotiations for and determination of work groups and variation of agreements concerning work groups must take into account all relevant matters, including the following:

(a)  the number of workers,

(b)  the views of workers in relation to the determination and variation of work groups,

(c)  the nature of each type of work carried out by the workers,

(d)  the number and grouping of workers who carry out the same or similar types of work,

(e)  the areas or places where each type of work is carried out,

(f)  the extent to which any worker must move from place to place while at work,

(g)  the diversity of workers and their work,

(h)  the nature of any hazards at the workplace or workplaces,

(i)  the nature of any risks to health and safety at the workplace or workplaces,

(j)  the nature of the engagement of each worker, for example as an employee or as a contractor,

(k)  the pattern of work carried out by workers, for example whether the work is full-time, part-time, casual or short-term,

(l)  the times at which work is carried out,

(m)  any arrangements at the workplace or workplaces relating to overtime or shift work.

Division 2 Health and safety representatives

18 Procedures for election of health and safety representatives

(1)  This clause sets out minimum procedural requirements for the election of a health and safety representative for a work group for the purposes of section 61 (2) of the Act.

(2)  The person conducting the election must take all reasonable steps to ensure that the following procedures are complied with:

(a)  each person conducting a business or undertaking in which a worker in the work group works is informed of the date on which the election is to be held as soon as practicable after the date is determined,

(b)  all workers in the work group are given an opportunity to:

(i)  nominate for the position of health and safety representative, and

(ii)  vote in the election,

(c)  all workers in the work group and all relevant persons conducting a business or undertaking are informed of the outcome of the election.

19 Person conducting business or undertaking must not delay election

A person conducting a business or undertaking at a workplace must not unreasonably delay the election of a health and safety representative.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

20 Removal of health and safety representatives

(1)  For the purposes of section 64 (2) (d) of the Act, the majority of the members of a work group may remove a health and safety representative for the work group if the members sign a written declaration that the health and safety representative should no longer represent the work group.

(2)  A member of the work group nominated by the members who signed the declaration must, as soon as practicable:

(a)  inform the following persons of the removal of the health and safety representative:

(i)  the health and safety representative who has been removed,

(ii)  each person conducting a business or undertaking in which a worker in the work group works, and

(b)  take all reasonable steps to inform all members of the work group of the removal.

(3)  The removal of the health and safety representative takes effect when the persons referred to in subclause (2) (a) and the majority of members of the work group have been informed of the removal.

21 Training for health and safety representatives

(1)  For the purposes of section 72 (1) of the Act, a health and safety representative is entitled to attend the following courses of training in work health and safety:

(a)  an initial course of training of 5 days,

(b)  1 day’s refresher training each year, with the entitlement to the first refresher training commencing 1 year after the initial training.

(2)  In approving a course of training in work health and safety for the purposes of section 72 (1) of the Act, the regulator may have regard to any relevant matters, including:

(a)  the content and quality of the curriculum, including its relevance to the powers and functions of a health and safety representative, and

(b)  the qualifications, knowledge and experience of the person who is to provide the course.

(3)  The regulator may revoke or vary an approval under this clause.

(4)  The regulator may impose conditions on an approval under this clause and may vary those conditions.

Note—

This clause prescribes courses of training to which a health and safety representative is entitled. In addition to these courses, the health and safety representative and the person conducting the business or undertaking may agree that the representative will attend or receive further training.

cl 21: Am 2015 (61), Sch 1 [16].

Part 2.2 Issue resolution

22 Agreed procedure—minimum requirements

(1)  This clause sets out minimum requirements for an agreed procedure for issue resolution at a workplace.

(2)  The agreed procedure for issue resolution at a workplace must include the steps set out in clause 23.

(3)  A person conducting a business or undertaking at a workplace must ensure that the agreed procedure for issue resolution at the workplace:

(a)  complies with subclause (2), and

(b)  is set out in writing, and

(c)  is communicated to all workers to whom the agreed procedure applies.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

23 Default procedure

(1)  This clause sets out the default procedure for issue resolution for the purposes of section 81 (2) of the Act.

(2)  Any party to the issue may commence the procedure by informing each other party:

(a)  that there is an issue to be resolved, and

(b)  the nature and scope of the issue.

(3)  As soon as parties are informed of the issue, all parties must meet or communicate with each other to attempt to resolve the issue.

(4)  The parties must have regard to all relevant matters, including the following:

(a)  the degree and immediacy of risk to workers or other persons affected by the issue,

(b)  the number and location of workers and other persons affected by the issue,

(c)  the measures (both temporary and permanent) that must be implemented to resolve the issue,

(d)  who will be responsible for implementing the resolution measures.

(5)  A party may, in resolving the issue, be assisted or represented by a person nominated by the party.

(6)  If the issue is resolved, details of the issue and its resolution must be set out in a written agreement if any party to the issue requests this.

Note—

Under the Act, parties to an issue include not only a person conducting a business or undertaking, a worker and a health and safety representative, but also representatives of these persons (see section 80 of the Act).

(7)  If a written agreement is prepared all parties to the issue must be satisfied that the agreement reflects the resolution of the issue.

(8)  A copy of the written agreement must be given to:

(a)  all parties to the issue, and

(b)  if requested, to the health and safety committee for the workplace.

(9)  To avoid doubt, nothing in this procedure prevents a worker from bringing a work health and safety issue to the attention of the worker’s health and safety representative.

Part 2.3 Cessation of unsafe work

24 Continuity of engagement of worker

For the purposes of section 88 of the Act, the prescribed purposes are the assessment of eligibility for, or the calculation of benefits for, any benefit or entitlement associated with the worker’s engagement, including 1 or more of the following:

(a)  remuneration and promotion, as affected by seniority,

(b)  superannuation benefits,

(c)  leave entitlements,

(d)  any entitlement to notice of termination of the engagement.

Part 2.4 Workplace entry by WHS entry permit holders

25 Training requirements for WHS entry permits

(1)  The prescribed training for the purposes of sections 131 and 133 of the Act is training, that is provided or approved by the regulator, in relation to the following:

(a)  the right of entry requirements under Part 7 of the Act,

(b)  the issue resolution requirements under the Act and this Regulation,

(c)  the duties under, and the framework of, the Act and this Regulation,

(d)  the requirements for the management of risks under section 17 of the Act,

(e)  the meaning of reasonably practicable as set out in section 18 of the Act,

(f)  the relationship between the Act and this Regulation and the Fair Work Act and the Industrial Relations Act 1996.

(2)  The training must include providing the participant with information about the availability of any guidance material published by the regulator in relation to the Act and this Regulation.

(3)  For the purpose of approving training, the regulator may have regard to any relevant matters, including:

(a)  the content and quality of the curriculum, including its relevance to the powers and functions of a WHS permit holder, and

(b)  the qualifications, knowledge and experience of the person who is to provide the training.

(4)  The regulator may revoke or vary an approval under this clause.

(5)  The regulator may impose conditions on an approval under this clause and may vary those conditions.

cl 25: Am 2015 (61), Sch 1 [17].

26 Form of WHS entry permit

A WHS entry permit must include the following:

(a)  the section of the Act under which the WHS entry permit is issued,

(b)  the full name of the WHS entry permit holder,

(c)  the name of the union that the WHS entry permit holder represents,

(d)  a statement that the WHS entry permit holder is entitled, while the WHS entry permit is in force, to exercise the rights given to the WHS entry permit holder under the Act,

(e)  the date of issue of the WHS entry permit,

(f)  the expiry date for the WHS entry permit,

(g)  the signature of the WHS entry permit holder,

(h)  any conditions on the WHS entry permit.

27 Notice of entry—general

A notice of entry under Part 7 of the Act must:

(a)  be written, and

(b)  include the following:

(i)  the full name of the WHS entry permit holder,

(ii)  the name of the union that the WHS entry permit holder represents,

(iii)  the section of the Act under which the WHS entry permit holder is entering or proposing to enter the workplace,

(iv)  the name and address of the workplace entered or proposed to be entered,

(v)  the date of entry or proposed entry,

(vi)  the additional information and other matters required under clause 28, 29 or 30 (as applicable).

28 Additional requirements—entry under section 117

A notice of entry under section 119 of the Act in relation to an entry under section 117 must also include the following:

(a)  so far as is practicable, the particulars of the suspected contravention to which the notice relates,

(b)  a declaration stating:

(i)  that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union, and

(ii)  the provision in the union’s rules that entitles the union to represent the industrial interests of that worker, and

(iii)  that the suspected contravention relates to, or affects, that worker.

Note—

Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.

29 Additional requirements—entry under section 120

A notice of entry under section 120 of the Act in relation to an entry under that section must also include the following:

(a)  so far as is practicable, the particulars of the suspected contravention to which the notice relates,

(b)  a description of the employee records and other documents, or of the classes of records and documents, directly relevant to the suspected contravention, that are proposed to be inspected,

(c)  a declaration stating:

(i)  that the union is entitled to represent the industrial interests of a worker who is a member, or eligible to be a member, of that union, and

(ii)  the provision in the union’s rules that entitles the union to represent the industrial interests of that worker, and

(iii)  that the suspected contravention relates to, or affects, that worker, and

(iv)  that the records and documents proposed to be inspected relate to that contravention.

Note—

Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.

30 Additional requirements—entry under section 121

A notice of entry under section 122 of the Act in relation to an entry under section 121 must also include a declaration stating:

(a)  that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace proposed to be entered and is a member, or eligible to be a member, of that union, and

(b)  the provision in the union’s rules that entitles the union to represent the industrial interests of that worker.

Note—

Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker.

31 Register of WHS entry permit holders

For the purposes of section 151 of the Act, the authorising authority must publish on its website:

(a)  an up-to-date register of WHS entry permit holders, and

(b)  the date on which the register was last updated.

Note—

The authorising authority in NSW is the Industrial Relations Commission—see section 4 of the Act.

Chapter 3 General risk and workplace management

Part 3.1 Managing risks to health and safety

32 Application of Part 3.1

This Part applies to a person conducting a business or undertaking who has a duty under this Regulation to manage risks to health and safety.

33 Specific requirements must be complied with

Any specific requirements under this Regulation for the management of risk must be complied with when implementing the requirements of this Part.

Examples—

1 A requirement not to exceed an exposure standard.

2 A duty to implement a specific control measure.

3 A duty to assess risk.

34 Duty to identify hazards

A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety.

35 Managing risks to health and safety

A duty holder, in managing risks to health and safety, must:

(a)  eliminate risks to health and safety so far as is reasonably practicable, and

(b)  if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable.

36 Hierarchy of control measures

(1)  This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2)  A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause.

(3)  The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:

(a)  substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b)  isolating the hazard from any person exposed to it,

(c)  implementing engineering controls.

(4)  If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5)  If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

Note—

A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.

37 Maintenance of control measures

A duty holder who implements a control measure to eliminate or minimise risks to health and safety must ensure that the control measure is, and is maintained so that it remains, effective, including by ensuring that the control measure is and remains:

(a)  fit for purpose, and

(b)  suitable for the nature and duration of the work, and

(c)  installed, set up and used correctly.

38 Review of control measures

(1)  A duty holder must review and as necessary revise control measures implemented under this Regulation so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety.

(2)  Without limiting subclause (1), the duty holder must review and as necessary revise a control measure in the following circumstances:

(a)  the control measure does not control the risk it was implemented to control so far as is reasonably practicable,

Examples—

1 The results of monitoring show that the control measure does not control the risk.

2 A notifiable incident occurs because of the risk.

(b)  before a change at the workplace that is likely to give rise to a new or different risk to health or safety that the measure may not effectively control,

(c)  a new relevant hazard or risk is identified,

(d)  the results of consultation by the duty holder under the Act or this Regulation indicate that a review is necessary,

(e)  a health and safety representative requests a review under subclause (4).

(3)  Without limiting subclause (2) (b), a change at the workplace includes:

(a)  a change to the workplace itself or any aspect of the work environment, or

(b)  a change to a system of work, a process or a procedure.

(4)  A health and safety representative for workers at a workplace may request a review of a control measure if the representative reasonably believes that:

(a)  a circumstance referred to in subclause (2) (a), (b), (c) or (d) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and

(b)  the duty holder has not adequately reviewed the control measure in response to the circumstance.

Part 3.2 General workplace management

Division 1 Information, training and instruction

39 Provision of information, training and instruction

(1)  This clause applies for the purposes of section 19 of the Act to a person conducting a business or undertaking.

(2)  The person must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to:

(a)  the nature of the work carried out by the worker, and

(b)  the nature of the risks associated with the work at the time the information, training or instruction is provided, and

(c)  the control measures implemented.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person must ensure, so far as is reasonably practicable, that the information, training and instruction provided under this clause is provided in a way that is readily understandable by any person to whom it is provided.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Division 2 General working environment

40 Duty in relation to general workplace facilities

A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, the following:

(a)  the layout of the workplace allows, and the workplace is maintained so as to allow, for persons to enter and exit and to move about without risk to health and safety, both under normal working conditions and in an emergency,

(b)  work areas have space for work to be carried out without risk to health and safety,

(c)  floors and other surfaces are designed, installed and maintained to allow work to be carried out without risk to health and safety,

(d)  lighting enables:

(i)  each worker to carry out work without risk to health and safety, and

(ii)  persons to move within the workplace without risk to health and safety, and

(iii)  safe evacuation in an emergency,

(e)  ventilation enables workers to carry out work without risk to health and safety,

(f)  workers carrying out work in extremes of heat or cold are able to carry out work without risk to health and safety,

(g)  work in relation to or near essential services does not give rise to a risk to the health and safety of persons at the workplace.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

41 Duty to provide and maintain adequate and accessible facilities

(1)  A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing facilities and eating facilities.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that the facilities provided under subclause (1) are maintained so as to be:

(a)  in good working order, and

(b)  clean, safe and accessible.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  For the purposes of this clause, a person conducting a business or undertaking must have regard to all relevant matters, including the following:

(a)  the nature of the work being carried out at the workplace,

(b)  the nature of the hazards at the workplace,

(c)  the size, location and nature of the workplace,

(d)  the number and composition of the workers at the workplace.

Division 3 First aid

42 Duty to provide first aid

(1)  A person conducting a business or undertaking at a workplace must ensure:

(a)  the provision of first aid equipment for the workplace, and

(b)  that each worker at the workplace has access to the equipment, and

(c)  access to facilities for the administration of first aid.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A person conducting a business or undertaking at a workplace must ensure that:

(a)  an adequate number of workers are trained to administer first aid at the workplace, or

(b)  workers have access to an adequate number of other persons who have been trained to administer first aid.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  For the purposes of this clause, the person conducting the business or undertaking must have regard to all relevant matters, including the following:

(a)  the nature of the work being carried out at the workplace,

(b)  the nature of the hazards at the workplace,

(c)  the size and location of the workplace,

(d)  the number and composition of the workers and other persons at the workplace.

Division 4 Emergency plans

43 Duty to prepare, maintain and implement emergency plan

(1)  A person conducting a business or undertaking at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following:

(a)  emergency procedures, including:

(i)  an effective response to an emergency, and

(ii)  evacuation procedures, and

(iii)  notifying emergency service organisations at the earliest opportunity, and

(iv)  medical treatment and assistance, and

(v)  effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace,

(b)  testing of the emergency procedures, including the frequency of testing,

(c)  information, training and instruction to relevant workers in relation to implementing the emergency procedures.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A person conducting a business or undertaking at a workplace must maintain the emergency plan for the workplace so that it remains effective.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  For the purposes of subclauses (1) and (2), the person conducting the business or undertaking must have regard to all relevant matters, including the following:

(a)  the nature of the work being carried out at the workplace,

(b)  the nature of the hazards at the workplace,

(c)  the size and location of the workplace,

(d)  the number and composition of the workers and other persons at the workplace.

(4)  A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

cl 43: Am 2015 (61), Sch 1 [18].

Division 5 Personal protective equipment

44 Provision to workers and use of personal protective equipment

(1)  This clause applies if personal protective equipment is to be used to minimise a risk to health and safety in relation to work at a workplace in accordance with clause 36.

(2)  The person conducting a business or undertaking who directs the carrying out of work must provide the personal protective equipment to workers at the workplace, unless the personal protective equipment has been provided by another person conducting a business or undertaking.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Example—

Equipment that has been provided by a labour hire company.

(3)  The person conducting the business or undertaking who directs the carrying out of work must ensure that personal protective equipment provided under subclause (2) is:

(a)  selected to minimise risk to health and safety, including by ensuring that the equipment is:

(i)  suitable having regard to the nature of the work and any hazard associated with the work, and

(ii)  a suitable size and fit and reasonably comfortable for the worker who is to use or wear it, and

(b)  maintained, repaired or replaced so that it continues to minimise risk to the worker who uses it, including by ensuring that the equipment is:

(i)  clean and hygienic, and

(ii)  in good working order, and

(c)  used or worn by the worker, so far as is reasonably practicable.

(4)  The person conducting a business or undertaking who directs the carrying out of work must provide the worker with information, training and instruction in the:

(a)  proper use and wearing of personal protective equipment, and

(b)  the storage and maintenance of personal protective equipment.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

A person conducting a business or undertaking must not charge or impose a levy on a worker for the provision of personal protective equipment (see section 273 of the Act).

45 Personal protective equipment used by other persons

The person conducting a business or undertaking who directs the carrying out of work must ensure, so far as is reasonably practicable, that:

(a)  personal protective equipment to be used or worn by any person other than a worker at the workplace is capable of minimising risk to the person’s health and safety, and

(b)  the person uses or wears the equipment.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

46 Duties of worker

(1)  This clause applies if a person conducting a business or undertaking provides a worker with personal protective equipment.

(2)  The worker must, so far as the worker is reasonably able, use or wear the equipment in accordance with any information, training or reasonable instruction by the person conducting the business or undertaking.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  The worker must not intentionally misuse or damage the equipment.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(4)  The worker must inform the person conducting the business or undertaking of any damage to, defect in or need to clean or decontaminate any of the equipment of which the worker becomes aware.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

47 Duty of person other than worker

A person other than a worker must wear personal protective equipment at a workplace in accordance with any information, training or reasonable instruction provided by the person conducting the business or undertaking at the workplace.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Division 6 Remote or isolated work

48 Remote or isolated work

(1)  A person conducting a business or undertaking must manage risks to the health and safety of a worker associated with remote or isolated work, in accordance with Part 3.1.

Note—

WHS Act—section 19 (see clause 9).

(2)  In minimising risks to the health and safety of a worker associated with remote or isolated work, a person conducting a business or undertaking must provide a system of work that includes effective communication with the worker.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  In this clause:

assistance includes rescue, medical assistance and the attendance of emergency service workers.

remote or isolated work, in relation to a worker, means work that is isolated from the assistance of other persons because of location, time or the nature of the work.

Division 7 Managing risks from airborne contaminants

49 Ensuring exposure standards for substances and mixtures not exceeded

A person conducting a business or undertaking at a workplace must ensure that no person at the workplace is exposed to a substance or mixture in an airborne concentration that exceeds the exposure standard for the substance or mixture.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

50 Monitoring airborne contaminant levels

(1)  A person conducting a business or undertaking at a workplace must ensure that air monitoring is carried out to determine the airborne concentration of a substance or mixture at the workplace to which an exposure standard applies if:

(a)  the person is not certain on reasonable grounds whether or not the airborne concentration of the substance or mixture at the workplace exceeds the relevant exposure standard, or

(b)  monitoring is necessary to determine whether there is a risk to health.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A person conducting a business or undertaking at a workplace must ensure that the results of air monitoring carried out under subclause (1) are recorded, and kept for 30 years after the date the record is made.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  A person conducting a business or undertaking at a workplace must ensure that the results of air monitoring carried out under subclause (1) are readily accessible to persons at the workplace who may be exposed to the substance or mixture.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Division 8 Hazardous atmospheres

51 Managing risks to health and safety

(1)  A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with a hazardous atmosphere at the workplace, in accordance with Part 3.1.

Note—

WHS Act—section 19 (see clause 9).

(2)  An atmosphere is a hazardous atmosphere if:

(a)  the atmosphere does not have a safe oxygen level, or

(b)  the concentration of oxygen in the atmosphere increases the fire risk, or

(c)  the concentration of flammable gas, vapour, mist or fumes exceeds 5% of the LEL for the gas, vapour, mist or fumes, or

(d)  combustible dust is present in a quantity and form that would result in a hazardous area.

52 Ignition sources

(1)  A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with an ignition source in a hazardous atmosphere at the workplace, in accordance with Part 3.1.

Note—

WHS Act—section 19 (see clause 9).

(2)  This clause does not apply if the ignition source is part of a deliberate process or activity at the workplace.

Division 9 Storage of flammable or combustible substances

53 Flammable and combustible material not to be accumulated

(1)  A person conducting a business or undertaking at a workplace must ensure that, if flammable or combustible substances are kept at the workplace, the substances are kept at the lowest practicable quantity for the workplace.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  In this clause, flammable or combustible substances include:

(a)  flammable and combustible liquids, including waste liquids, in containers, whether empty or full, and

(b)  gas cylinders, whether empty or full.

Division 10 Falling objects

54 Management of risk of falling objects

A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person.

Note—

WHS Act—section 19 (see clause 9).

55 Minimising risk associated with falling objects

(1)  This clause applies if it is not reasonably practicable to eliminate the risk referred to in clause 54.

(2)  The person conducting the business or undertaking at a workplace must minimise the risk of an object falling on a person by providing adequate protection against the risk in accordance with this clause.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including:

(a)  preventing an object from falling freely, so far as is reasonably practicable, or

(b)  if it is not reasonably practicable to prevent an object from falling freely—providing, so far as is reasonably practicable, a system to arrest the fall of a falling object.

Examples—

1 Providing a secure barrier.

2 Providing a safe means of raising and lowering objects.

3 Providing an exclusion zone persons are prohibited from entering.

Chapter 4 Hazardous work

Part 4.1 Noise

56 Meaning of “exposure standard for noise”

(1)  In this Regulation, exposure standard for noise, in relation to a person, means:

(a)  L_Aeq,8h of 85 dB(A), or

(b)  L_C,peak of 140 dB(C).

(2)  In this clause:

L_Aeq,8h means the eight-hour equivalent continuous A-weighted sound pressure level in decibels (dB(A)) referenced to 20 micropascals, determined in accordance with AS/NZS 1269.1:2005 (Occupational noise management—Measurement and assessment of noise immission and exposure).

L_C,peak means the C-weighted peak sound pressure level in decibels (dB(C)) referenced to 20 micropascals, determined in accordance with AS/NZS 1269.1:2005 (Occupational noise management—Measurement and assessment of noise immission and exposure).

57 Managing risk of hearing loss from noise

(1)  A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety relating to hearing loss associated with noise.

Note—

WHS Act—section 19 (see clause 9).

(2)  A person conducting a business or undertaking at a workplace must ensure that the noise that a worker is exposed to at the workplace does not exceed the exposure standard for noise.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

58 Audiometric testing

(1)  This clause applies in relation to a worker who is frequently required by the person conducting the business or undertaking to use personal protective equipment to protect the worker from the risk of hearing loss associated with noise that exceeds the exposure standard for noise.

(2)  The person conducting the business or undertaking who provides the personal protective equipment as a control measure must provide audiometric testing for the worker:

(a)  within 3 months of the worker commencing the work, and

(b)  in any event, at least every 2 years.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  In this clause, audiometric testing means the testing and measurement of the hearing threshold levels of each ear of a person by means of pure tone air conduction threshold tests.

59 Duties of designers, manufacturers, importers and suppliers of plant

(1)  A designer of plant must ensure that the plant is designed so that its noise emission is as low as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A designer of plant must give to each person who is provided with the design for the purpose of giving effect to it adequate information about:

(a)  the noise emission values of the plant, and

(b)  the operating conditions of the plant when noise emission is to be measured, and

(c)  the methods the designer has used to measure the noise emission of the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  A manufacturer of plant must ensure that the plant is manufactured so that its noise emission is as low as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  A manufacturer of plant must give to each person to whom the manufacturer provides the plant adequate information about:

(a)  the noise emission values of the plant, and

(b)  the operating conditions of the plant when noise emission is to be measured, and

(c)  the methods the manufacturer has used to measure the noise emission of the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  An importer of plant must take all reasonable steps to:

(a)  obtain information about:

(i)  the noise emission values of the plant, and

(ii)  the operating conditions of the plant when noise emission is to be measured, and

(iii)  the methods the designer or manufacturer has used to measure the noise emission of the plant, and

(b)  give that information to any person to whom the importer supplies the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(6)  A supplier of plant must take all reasonable steps to:

(a)  obtain the information the designer, manufacturer or importer is required to give a supplier under subclause (2), (4) or (5), and

(b)  give that information to any person to whom the supplier supplies the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Part 4.2 Hazardous manual tasks

60 Managing risks to health and safety

(1)  A person conducting a business or undertaking must manage risks to health and safety relating to a musculoskeletal disorder associated with a hazardous manual task, in accordance with Part 3.1.

Note—

WHS Act—section 19 (see clause 9).

(2)  In determining the control measures to implement under subclause (1), the person conducting the business or undertaking must have regard to all relevant matters that may contribute to a musculoskeletal disorder, including:

(a)  postures, movements, forces and vibration relating to the hazardous manual task, and

(b)  the duration and frequency of the hazardous manual task, and

(c)  workplace environmental conditions that may affect the hazardous manual task or the worker performing it, and

(d)  the design of the work area, and

(e)  the layout of the workplace, and

(f)  the systems of work used, and

(g)  the nature, size, weight or number of persons, animals or things involved in carrying out the hazardous manual task.

61 Duties of designers, manufacturers, importers and suppliers of plant or structures

(1)  A designer of plant or a structure must ensure that the plant or structure is designed so as to eliminate the need for any hazardous manual task to be carried out in connection with the plant or structure.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If it is not reasonably practicable to comply with subclause (1), the designer must ensure that the plant or structure is designed so that the need for any hazardous manual task to be carried out in connection with the plant or structure is minimised so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The designer must give to each person who is provided with the design for the purpose of giving effect to it adequate information about the features of the plant or structure that eliminate or minimise the need for any hazardous manual task to be carried out in connection with the plant or structure.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  A manufacturer of plant or a structure must ensure that the plant or structure is manufactured so as to eliminate the need for any hazardous manual task to be carried out in connection with the plant or structure.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  If it is not reasonably practicable to comply with subclause (4), the manufacturer must ensure that the plant or structure is manufactured so that the need for any hazardous manual task to be carried out in connection with the plant or structure is minimised so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(6)  The manufacturer must give to each person to whom the manufacturer provides the plant or structure adequate information about the features of the plant or structure that eliminate or minimise the need for any hazardous manual task to be carried out in connection with the plant or structure.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(7)  An importer of plant or a structure must take all reasonable steps to:

(a)  obtain the information the designer or manufacturer is required to give under subclause (3) or (6), and

(b)  give that information to any person to whom the importer supplies the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(8)  A supplier of plant or a structure must take all reasonable steps to:

(a)  obtain the information the designer, manufacturer or importer is required to give a supplier under subclause (3), (6) or (7), and

(b)  give that information to any person to whom the supplier supplies the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Part 4.3 Confined spaces

Division 1 Preliminary

62 Confined spaces to which this Part applies

(1)  This Part applies to confined spaces that:

(a)  are entered by any person, or

(b)  are intended or likely to be entered by any person, or

(c)  could be entered inadvertently by any person.

(2)  In this Part, a reference to a confined space in relation to a person conducting a business or undertaking is a reference to a confined space that is under the person’s management or control.

63 Application to emergency service workers

Clauses 67 and 68 do not apply to the entry into a confined space by an emergency service worker if, at the direction of the emergency service organisation, the worker is:

(a)  rescuing a person from the space, or

(b)  providing first aid to a person in the space.

Division 2 Duties of designer, manufacturer, importer, supplier, installer and constructor of plant or structure

64 Duty to eliminate or minimise risk

(1)  This clause applies in relation to plant or a structure that includes a space that is, or is intended to be, a confined space.

(2)  A designer, manufacturer, importer or supplier of the plant or structure, and a person who installs or constructs the plant or structure, must ensure that:

(a)  the need for any person to enter the space and the risk of a person inadvertently entering the space are eliminated, so far as is reasonably practicable, or

(b)  if it is not reasonably practicable to eliminate the need to enter the space or the risk of a person inadvertently entering the space:

(i)  the need or risk is minimised so far as is reasonably practicable, and

(ii)  the space is designed with a safe means of entry and exit, and

(iii)  the risk to the health and safety of any person who enters the space is eliminated so far as is reasonably practicable or, if it is not reasonably practicable to eliminate the risk, the risk is minimised so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Division 3 Duties of person conducting business or undertaking

65 Entry into confined space must comply with this Division

A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that a worker does not enter a confined space before this Division has been complied with in relation to that space.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

66 Managing risks to health and safety

(1)  A person conducting a business or undertaking must manage, in accordance with Part 3.1, risks to health and safety associated with a confined space at a workplace including risks associated with entering, working in, on or in the vicinity of the confined space (including a risk of a person inadvertently entering the confined space).

Note—

WHS Act—section 19 (see clause 9).

(2)  A person conducting a business or undertaking must ensure that a risk assessment is conducted by a competent person for the purposes of subclause (1).

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  The person must ensure that a risk assessment conducted under subclause (2) is recorded in writing.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  For the purposes of subclauses (1) and (2), the person conducting a business or undertaking must have regard to all relevant matters, including the following:

(a)  whether the work can be carried out without the need to enter the confined space,

(b)  the nature of the confined space,

(c)  if the hazard is associated with the concentration of oxygen or the concentration of airborne contaminants in the confined space—any change that may occur in that concentration,

(d)  the work required to be carried out in the confined space, the range of methods by which the work can be carried out and the proposed method of working,

(e)  the type of emergency procedures, including rescue procedures, required.

(5)  The person conducting a business or undertaking must ensure that a risk assessment under this clause is reviewed and as necessary revised by a competent person to reflect any review and revision of control measures under Part 3.1.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

67 Confined space entry permit

(1)  A person conducting a business or undertaking at a workplace must not direct a worker to enter a confined space to carry out work unless the person has issued a confined space entry permit for the work.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A confined space entry permit must:

(a)  be completed by a competent person, and

(b)  be in writing, and

(c)  specify the following:

(i)  the confined space to which the permit relates,

(ii)  the names of persons permitted to enter the space,

(iii)  the period of time during which the work in the space will be carried out,

(iv)  measures to control risk associated with the proposed work in the space, and

(d)  contain space for an acknowledgement that work in the confined space has been completed and that all persons have left the confined space.

(3)  The control measures specified in a confined space permit must:

(a)  be based on a risk assessment conducted under clause 66, and

(b)  include:

(i)  control measures to be implemented for safe entry, and

(ii)  details of the system of work provided under clause 69.

(4)  The person conducting a business or undertaking must ensure that, when the work for which the entry permit was issued is completed:

(a)  all workers leave the confined space, and

(b)  the acknowledgement referred to in subclause (2) (d) is completed by the competent person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

68 Signage

(1)  A person conducting a business or undertaking must ensure that signs that comply with subclause (2) are erected:

(a)  immediately before work in a confined space commences and while the work is being carried out, and

(b)  while work is being carried out in preparation for, and in the completion of, work in a confined space.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  The signs must:

(a)  identify the confined space, and

(b)  inform workers that they must not enter the space unless they have a confined space entry permit, and

(c)  be clear and prominently located next to each entry to the space.

69 Communication and safety monitoring

A person conducting a business or undertaking must ensure that a worker does not enter a confined space to carry out work unless the person provides a system of work that includes:

(a)  continuous communication with the worker from outside the space, and

(b)  monitoring of conditions within the space by a standby person who is in the vicinity of the space and, if practicable, observing the work being carried out.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

70 Specific control—connected plant and services

(1)  A person conducting a business or undertaking must, so far as is reasonably practicable, eliminate any risk associated with work in a confined space in either of the following circumstances:

(a)  the introduction of any substance or condition into the space from or by any plant or services connected to the space,

(b)  the activation or energising in any way of any plant or services connected to the space.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  If it is not reasonably practicable for the person to eliminate risk under subclause (1), the person must minimise that risk so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

71 Specific control—atmosphere

(1)  A person conducting a business or undertaking must ensure, in relation to work in a confined space, that:

(a)  purging or ventilation of any contaminant in the atmosphere of the space is carried out, so far as is reasonably practicable, and

(b)  pure oxygen or gas mixtures with oxygen in a concentration exceeding 21% by volume are not used for purging or ventilation of any airborne contaminant in the space.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The person must ensure that, while work is being carried out in a confined space:

(a)  the atmosphere of the space has a safe oxygen level, or

(b)  if it is not reasonably practicable to comply with paragraph (a) and the atmosphere in the space has an oxygen level less than 19.5% by volume—any worker carrying out work in the space is provided with air supplied respiratory equipment.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  In this clause, purging means the method used to displace any contaminant from a confined space.

Notes—

1 Clause 44 applies to the use of personal protective equipment, including the equipment provided under subclause (2).

2 Clause 50 applies to airborne contaminants.

72 Specific control—flammable gases and vapours

(1)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that while work is being carried out in a confined space, the concentration of any flammable gas, vapour or mist in the atmosphere of the space is less than 5% of its LEL.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If it is not reasonably practicable to limit the atmospheric concentration of a flammable gas, vapour or mist in a confined space to less than 5% of its LEL and the atmospheric concentration of the flammable gas, vapour or mist in the space is:

(a)  equal to or greater than 5% but less than 10% of its LEL—the person must ensure that any worker is immediately removed from the space unless a suitably calibrated, continuous-monitoring flammable gas detector is used in the space, or

(b)  equal to or greater than 10% of its LEL—the person must ensure that any worker is immediately removed from the space.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

73 Specific control—fire and explosion

A person conducting a business or undertaking must ensure that an ignition source is not introduced into a confined space (from outside or within the space) if there is a possibility of the ignition source causing a fire or explosion in the space.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

74 Emergency procedures

(1)  A person conducting a business or undertaking must:

(a)  establish first aid procedures and rescue procedures to be followed in the event of an emergency in a confined space, and

(b)  ensure that the procedures are practised as necessary to ensure that they are efficient and effective.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The person must ensure that first aid and rescue procedures are initiated from outside the confined space as soon as practicable in an emergency.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person must ensure, in relation to any confined space, that:

(a)  the entry and exit openings of the confined space are large enough to allow emergency access, and

(b)  the entry and exit openings of the space are not obstructed, and

(c)  plant, equipment and personal protective equipment provided for first aid or emergency rescue are maintained in good working order.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

See Part 3.2 for general provisions relating to first aid, personal protective equipment and emergency plans.

75 Personal protective equipment in emergencies

(1)  This clause applies in relation to a worker who is to enter a confined space in order to carry out first aid or rescue procedures in an emergency.

(2)  The person conducting the business or undertaking for which the worker is carrying out work must ensure that air supplied respiratory equipment is available for use by, and is provided to, the worker in an emergency in which:

(a)  the atmosphere in the confined space does not have a safe oxygen level, or

(b)  the atmosphere in the space has a harmful concentration of an airborne contaminant, or

(c)  there is a serious risk of the atmosphere in the space becoming affected in the way referred to in paragraph (a) or (b) while the worker is in the space.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person conducting the business or undertaking for which the worker is carrying out work must ensure that suitable personal protective equipment is available for use by, and is provided to, the worker in an emergency in which:

(a)  an engulfment has occurred inside the confined space, or

(b)  there is a serious risk of an engulfment occurring while the worker is in the space.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

Clause 44 applies to the use of personal protective equipment, including the equipment provided under this clause.

76 Information, training and instruction for workers

(1)  A person conducting a business or undertaking must ensure that relevant workers are provided with suitable and adequate information, training and instruction in relation to the following:

(a)  the nature of all hazards relating to a confined space,

(b)  the need for, and the appropriate use of, control measures to control risks to health and safety associated with those hazards,

(c)  the selection, fit, use, wearing, testing, storage and maintenance of any personal protective equipment,

(d)  the contents of any confined space entry permit that may be issued in relation to work carried out by the worker in a confined space,

(e)  emergency procedures.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The person must ensure that a record of all training provided to a worker under this clause is kept for 2 years.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  In subclause (1), relevant worker means:

(a)  a worker who, in carrying out work for the business or undertaking, could:

(i)  enter or work in a confined space, or

(ii)  carry out any function in relation to work in a confined space or the emergency procedures established under clause 74, but who is not required to enter the space, or

(b)  any person supervising a worker referred to in paragraph (a).

77 Confined space entry permit and risk assessment must be kept

(1)  This clause applies if a person conducting a business or undertaking:

(a)  prepares a risk assessment under clause 66, or

(b)  issues a confined space entry permit under clause 67.

(2)  Subject to subclause (3), the person must keep:

(a)  a copy of the risk assessment until at least 28 days after the work to which it relates is completed, and

(b)  a copy of the confined space entry permit at least until the work to which it relates is completed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  If a notifiable incident occurs in connection with the work to which the assessment or permit relates, the person must keep the copy of the assessment or permit (as applicable) for at least 2 years after the incident occurs.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The person must ensure that, for the period for which the assessment or permit must be kept under this clause, a copy is available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(5)  The person must ensure that, for the period for which the assessment or permit must be kept under this clause, a copy is available to any relevant worker on request.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Part 4.4 Falls

78 Management of risk of fall

(1)  A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person.

Note—

WHS Act—section 19 (see clause 9).

(2)  Subclause (1) includes the risk of a fall:

(a)  in or on an elevated workplace from which a person could fall, or

(b)  in the vicinity of an opening through which a person could fall, or

(c)  in the vicinity of an edge over which a person could fall, or

(d)  on a surface through which a person could fall, or

(e)  in any other place from which a person could fall.

(3)  A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves the risk of a fall to which subclause (1) applies is carried out on the ground or on a solid construction.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  A person conducting a business or undertaking must provide safe means of access to and exit from:

(a)  the workplace, and

(b)  any area within the workplace referred to in subclause (2).

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  In this clause, solid construction means an area that has:

(a)  a surface that is structurally capable of supporting all persons and things that may be located or placed on it, and

(b)  barriers around its perimeter and any openings to prevent a fall, and

(c)  an even and readily negotiable surface and gradient, and

(d)  a safe means of entry and exit.

79 Specific requirements to minimise risk of fall

(1)  This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies.

(2)  The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by:

(a)  providing a fall prevention device if it is reasonably practicable to do so, or

(b)  if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or

(c)  if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable.

Examples—

1 Providing temporary work platforms.

2 Providing training in relation to the risks involved in working at the workplace.

3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs.

Note—

A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose.

(4)  This clause does not apply in relation to the following work:

(a)  the performance of stunt work,

(b)  the performance of acrobatics,

(c)  a theatrical performance,

(d)  a sporting or athletic activity,

(e)  horse riding.

Note—

Clause 36 applies to the management of risk in relation to this work.

(5)  In this clause, fall prevention device includes:

(a)  a secure fence, and

(b)  edge protection, and

(c)  working platforms, and

(d)  covers.

Note—

See clause 5 (1) for definitions of fall arrest system and work positioning system.

80 Emergency and rescue procedures

(1)  This clause applies if a person conducting a business or undertaking provides a fall arrest system as a control measure.

(2)  Without limiting clause 79, the person must establish emergency procedures, including rescue procedures, in relation to the use of the fall arrest system.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person must ensure that the emergency procedures are tested so that they are effective.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  The person must provide relevant workers with suitable and adequate information, training and instruction in relation to the emergency procedures.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  In this clause, relevant worker means:

(a)  a worker who, in carrying out work in the business or undertaking, uses or is to use a fall arrest system, and

(b)  a worker who may be involved in initiating or implementing the emergency procedures.

Part 4.5 High risk work

Division 1 Licensing of high risk work

Subdivision 1 Requirement to be licensed

81 Licence required to carry out high risk work

A person must not carry out a class of high risk work unless the person holds a high risk work licence for that class of high risk work, except as provided in clause 82.

Notes—

1 See section 43 of the Act.

2 Schedule 3 sets out the high risk work licences and classes of high risk work that are within the scope of each licence. Schedule 4 sets out the qualifications required for a high risk work licence.

82 Exceptions

(1)  A person who carries out high risk work is not required to be licensed to carry out the work if the work is carried out:

(a)  in the course of training towards a certification in order to be licensed to carry out the high risk work, and

(b)  under the supervision of a person who is licensed to carry out the high risk work.

(1A)  A person who holds a certification in relation to a specified VET course for high risk work is not required to be licensed to carry out the work:

(a)  for 60 days after the certification is issued, and

(b)  if the person applies for the relevant high risk work licence within that 60-day period, until:

(i)  the person is granted the licence, or

(ii)  the expiry of 28 days after the person is given written notice under clause 91 (2) of a decision to refuse to grant the licence.

(1B)  A person who carries out high risk work is not required to be licensed to carry out the work if the work is carried out while an accredited assessor is conducting an assessment of the person’s competency in relation to the work.

(2)  A person who carries out high risk work involving plant is not required to be licensed if:

(a)  the work is carried out at a workplace solely for the purpose of the manufacture, testing, trialling, installation, commissioning, maintenance, servicing, repair, alteration, demolition or disposal of the plant at that workplace or moving the plant within the workplace, and

(b)  the plant is operated or used without a load except when standard weight loads with predetermined fixing points are used for calibration of the plant.

(3)  For the purposes of subclause (2) (a), moving includes operating the plant in order to load the plant onto, or unload it from, a vehicle or equipment used to move it.

(4)  A person who carries out high risk work with a crane or hoist is not required to be licensed as a crane operator if:

(a)  the work is limited to setting up or dismantling the crane or hoist, and

(b)  the person carrying out the work holds a licence in relation to rigging, which qualifies the person to carry out the work.

Note—

See Schedule 3 for the classes of crane operator licence.

(5)  A person who carries out high risk work with a heritage boiler is not required to be licensed as a boiler operator.

cl 82: Am 2015 (61), Sch 1 [19] [20].

83 Recognition of high risk work licences in other jurisdictions

(1)  In this Subdivision, a reference to a high risk work licence includes a reference to an equivalent licence:

(a)  granted under a corresponding WHS law, and

(b)  that is being used in accordance with the terms and conditions under which it was granted.

(2)  Subclause (1) does not apply to a licence that is suspended or cancelled or has expired in the corresponding jurisdiction.

84 Duty of person conducting business or undertaking to ensure direct supervision

(1)  A person conducting a business or undertaking must ensure that a person supervising the work of a person carrying out high risk work as required by clause 82 (1) provides direct supervision of the person except in the circumstances set out in subclause (2).

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  Direct supervision of a person is not required if:

(a)  the nature or circumstances of a particular task make direct supervision impracticable or unnecessary, and

(b)  the reduced level of supervision will not place the health or safety of the supervised person or any other person at risk.

(3)  In this clause, direct supervision of a person means the oversight by the supervising person of the work of that person for the purposes of:

(a)  directing, demonstrating, monitoring and checking the person’s work in a way that is appropriate to the person’s level of competency, and

(b)  ensuring a capacity to respond in an emergency situation.

cl 84: Am 2015 (61), Sch 1 [21].

85 Evidence of licence—duty of person conducting business or undertaking

(1)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work for which a high risk work licence is required unless the person sees written evidence provided by the worker that the worker has the relevant high risk work licence for that work.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work in the circumstances referred to in clause 82 (1) unless the person sees written evidence provided by the worker that the worker is undertaking the course of training referred to in clause 82 (1) (a).

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2A)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work in the circumstances referred to in clause 82 (1A) unless the person sees written evidence provided by the worker that the worker:

(a)  in the circumstances referred to in clause 82 (1A) (a)—holds a certification referred to in clause 82 (1A), and

(b)  in the circumstances referred to in clause 82 (1A) (b):

(i)  holds a certification referred to in clause 82 (1A), and

(ii)  has applied for the relevant licence within the period referred to in clause 82 (1A) (b).

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to supervise high risk work as referred to in clauses 82 (1) and 84 unless the person sees written evidence that the worker holds the relevant high risk work licence for that high risk work.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(4)  A person conducting a business or undertaking at a workplace must keep a record of the written evidence provided:

(a)  under subclause (1) or (2)—for at least 1 year after the high risk work is carried out,

(b)  under subclause (3)—for at least 1 year after the last occasion on which the worker performs the supervision work.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

cl 85: Am 2015 (61), Sch 1 [22] [23].

Subdivision 2 Licensing process

86 Who may apply for a licence

Only a person who holds a qualification set out in Schedule 4 may apply for a high risk work licence.

87 Application for high risk work licence

(1)  An application for a high risk work licence must be made in the manner and form required by the regulator.

(2)  The application must include the following information:

(a)  the applicant’s name and residential address,

(b)  a photograph of the applicant in the form required by the regulator,

(c)  evidence of the applicant’s age,

(d)  any other evidence of the applicant’s identity required by the regulator,

(e)  the class of high risk work licence to which the application relates,

(f)  a copy of a certification:

(i)  that is held by the applicant in relation to the specified VET course, or each of the specified VET courses, for the high risk work licence applied for, and

(ii)  that was issued not more than 60 days before the application is made,

(g)  a declaration that the applicant does not hold an equivalent licence under a corresponding WHS law,

(h)  a declaration as to whether or not the applicant has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law,

(i)  details of any conviction or finding of guilt declared under paragraph (h),

(j)  a declaration as to whether or not the applicant has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law,

(k)  details of any enforceable undertaking declared under paragraph (j),

(l)  if the applicant has previously been refused an equivalent licence under a corresponding WHS law, a declaration giving details of that refusal,

(m)  if the applicant has previously held an equivalent licence under a corresponding WHS law, a declaration:

(i)  describing any condition imposed on that licence, and

(ii)  stating whether or not that licence had been suspended or cancelled and, if so, whether or not the applicant had been disqualified from applying for any licence, and

(iii)  giving details of any suspension, cancellation or disqualification.

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  The application must be accompanied by the relevant fee.

cl 87: Am 2015 (61), Sch 1 [24] [25].

88 Additional information

(1)  If an application for a high risk work licence does not contain sufficient information to enable the regulator to make a decision whether or not to grant the licence, the regulator may ask the applicant to provide additional information.

(2)  A request for additional information must:

(a)  specify the date (not being less than 28 days after the request) by which the additional information is to be given, and

(b)  be confirmed in writing.

(3)  If an applicant does not provide the additional information by the date specified, the application is to be taken to have been withdrawn.

(4)  The regulator may make more than 1 request for additional information under this clause.

89 Decision on application

(1)  Subject to subclause (3), the regulator must grant a high risk work licence if satisfied about the matters referred to in subclause (2).

(2)  The regulator must be satisfied about the following:

(a)  the application has been made in accordance with this Regulation,

(b)  the applicant does not hold an equivalent licence under a corresponding WHS law unless that licence is due for renewal,

(c)  the applicant:

(i)  resides in this jurisdiction, or

(ii)  resides outside this jurisdiction and circumstances exist that justify the grant of the licence,

(d)  the applicant is at least 18 years of age,

(e)  the applicant has provided the certification required under clause 87 (2) (f),

(f)  the applicant is able to carry out the work to which the licence relates safely and competently.

(3)  The regulator must refuse to grant a high risk work licence if satisfied that:

(a)  the applicant is disqualified under a corresponding WHS law from holding an equivalent licence, or

(b)  the applicant, in making the application, has:

(i)  given information that is false or misleading in a material particular, or

(ii)  failed to give any material information that should have been given.

(4)  If the regulator decides to grant the licence, it must notify the applicant within 14 days after making the decision.

(5)  If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 88, the regulator is taken to have refused to grant the licence applied for.

Note—

A refusal to grant a high risk work licence (including under subclause (5)) is a reviewable decision (see clause 676).

90 Matters to be taken into account

For the purposes of clause 89 (2) (f), the regulator must have regard to all relevant matters, including the following:

(a)  any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty,

(b)  in relation to any equivalent licence applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law:

(i)  any refusal to grant the licence, and

(ii)  any condition imposed on the licence, if granted, and

(iii)  any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence,

(c)  any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law,

(d)  the applicant’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.

91 Refusal to grant high risk work licence—process

(1)  If the regulator proposes to refuse to grant a licence, the regulator must give a written notice to the applicant:

(a)  informing the applicant of the reasons for the proposed refusal, and

(b)  advising the applicant that the applicant may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal.

(2)  After the date specified in a notice under subclause (1), the regulator must:

(a)  if the applicant has made a submission in relation to the proposed refusal to grant the licence—consider that submission, and

(b)  whether or not the applicant has made a submission—decide whether to grant or refuse to grant the licence, and

(c)  within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision.

Note—

A decision to refuse to grant a licence is a reviewable decision (see clause 676).

91A Conditions of licence

(1)  The regulator may impose any conditions it considers appropriate on a high risk work licence.

(2)  Without limiting subclause (1), the regulator may impose conditions in relation to one or more of the following:

(a)  control measures that must be implemented in relation to the carrying out of work or activities under the licence,

(b)  the circumstances in which work or activities authorised by the licence may be carried out.

(3)  The regulator must give the licence holder written notice of any conditions imposed on the licence.

Notes—

1 A person must comply with the conditions of a licence (see section 45 of the Act).

2 A decision to impose a condition on a licence is a reviewable decision (see clause 676).

cl 91A: Ins 2015 (61), Sch 1 [26].

92 Duration of licence

Subject to this Division, a high risk work licence takes effect on the day it is granted and, unless cancelled earlier, expires 5 years after that day.

93 Licence document

(1)  If the regulator grants a high risk work licence, the regulator must issue to the applicant a licence document in the form determined by the regulator.

(2)  The licence document must include the following:

(a)  the name of the licence holder,

(b)  a photograph of the licence holder,

(c)  the date of birth of the licence holder,

(d)  a copy of the signature of the licence holder or provision for the inclusion of a copy signature,

(e)  the class of high risk work licence and a description of the work within the scope of the licence,

(f)  the date on which the licence was granted,

(g)  the expiry date of the licence.

(3)  For the purposes of subclause (2) (e), if the regulator grants more than 1 class of high risk work licence to a person, the licence document must contain a description of each class of licence and the work that is within the scope of each licence.

(4)  If a licence holder holds more than 1 high risk work licence, the regulator may issue to the licence holder one licence document in relation to some or all those licences.

(5)  Despite clause 92, if a licence document is issued under subclause (4), the licences to which that licence document related expire on the date that the first of those licences expires.

cl 93: Am 2015 (61), Sch 1 [27].

94 Licence document to be available

(1)  A licence holder must keep the licence document available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  Subclause (1) does not apply if the licence document is not in the licence holder’s possession because:

(a)  it has been returned to the regulator under clause 97, or

(b)  the licence holder has applied for, but has not received, a replacement licence document under clause 98.

95 Reassessment of competency of licence holder

The regulator may direct a licence holder to obtain a reassessment of the competency of the licence holder to carry out the high risk work covered by the licence if the regulator reasonably believes that the licence holder may not be competent to carry out that work.

Examples—

1 The training or competency assessment of the licence holder did not meet the standard required to hold the licence.

2 The regulator receives information that the licence holder has carried out high risk work incompetently.

Subdivision 3 Amendment of licence document

96 Notice of change of address

The licence holder of a high risk work licence must give written notice to the regulator of a change of residential address, within 14 days of the change occurring.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

97 Licence holder to return licence

If a high risk work licence is amended, the licence holder must return the licence document to the regulator for amendment at the written request of the regulator and within the time specified in the request.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

98 Replacement licence document

(1)  A licence holder must give written notice to the regulator as soon as practicable if the licence document is lost, stolen or destroyed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  If a licence document is lost, stolen or destroyed, the licence holder may apply to the regulator for a replacement document.

Note—

A licence holder is required to keep the licence document available for inspection (see clause 94).

(3)  An application for a replacement licence document must be made in the manner and form required by the regulator.

(4)  The application must:

(a)  include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(b)  be accompanied by the relevant fee.

(5)  The regulator must issue a replacement licence document if satisfied that the original document was lost, stolen or destroyed.

(6)  If the regulator refuses to issue a replacement licence document, it must give the licence holder written notice of this decision, including the reasons for the decision, within 14 days after making the decision.

Note—

A decision to refuse to replace a licence is a reviewable decision (see clause 676).

99 Voluntary surrender of licence

(1)  A licence holder may voluntarily surrender the licence document to the regulator.

(2)  The licence expires on the surrender of the licence document.

Subdivision 4 Renewal of high risk work licence

100 Regulator may renew licence

The regulator may renew a high risk work licence on application by the licence holder.

101 Application for renewal

(1)  An application for renewal of a high risk work licence must be made in the manner and form required by the regulator.

(2)  The application must include the following information:

(a)  the name and residential address of the applicant,

(b)  if required by the regulator, a photograph of the applicant in the form required by the regulator,

(c)  any other evidence of the applicant’s identity required by the regulator,

(d)  a declaration by the applicant that he or she has maintained his or her competency to carry out the high risk work, including by obtaining any reassessment directed under clause 95.

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  The application must be accompanied by the relevant fee.

(4)  The application must be made before the expiry of the licence.

cl 101: Am 2015 (61), Sch 1 [28].

102 Licence continues in force until application is decided

If a licence holder applies under clause 101 for the renewal of a high risk work licence, the licence is taken to continue in force from the day it would, apart from this clause, have expired until the licence holder is given notice of the decision on the application.

103 Renewal of expired licence

A person whose high risk work licence has expired may apply for a renewal of that licence:

(a)  within 12 months after the expiry of the licence, or

(b)  if the person satisfies the regulator that exceptional circumstances exist—within any longer period that the regulator allows.

Notes—

1 As the licence has expired, the applicant cannot carry out the work covered by the licence until the licence is renewed. An application made after a period referred to in paragraph (a) or (b) would be an application for a new licence under clause 87.

2 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

104 Provisions relating to renewal of licence

(1)  For the purposes of this Subdivision:

(a)  clause 88 applies as if a reference in that clause to an application for a licence were a reference to an application to renew a licence, and

(b)  clauses 89 (except subclause (5)), 90, 91A and 92 apply as if a reference in those clauses to the grant of a licence were a reference to the renewal of a licence, and

(c)  clause 91 applies as if a reference in that clause to a refusal to grant a licence were a reference to a refusal to renew a licence.

(2)  The regulator may renew a high risk work licence granted to a person under a corresponding WHS law unless that licence is renewed under that law.

Note—

A refusal to renew a licence is a reviewable decision (see clause 676).

cl 104: Am 2015 (61), Sch 1 [29] [30].

105 Status of licence during review

(1)  This clause applies if the regulator gives a licence holder written notice of its decision to refuse to renew the licence.

(2)  If the licence holder does not apply for internal review of the decision, the licence continues to have effect until the last of the following events:

(a)  the expiry of the licence,

(b)  the end of the period for applying for an internal review.

(3)  If the licence holder applies for an internal review of the decision, the licence continues to have effect until the earlier of the following events:

(a)  the licence holder withdraws the application for review,

(b)  the regulator makes a decision on the review.

(4)  If the licence holder does not apply for an external review, the licence continues to have effect until the end of the time for applying for an external review.

(5)  If the licence holder applies for an external review, the licence continues to have effect until the earlier of the following events:

(a)  the licence holder withdraws the application for review,

(b)  the Civil and Administrative Tribunal makes a decision on the review.

(6)  The licence continues to have effect under this clause even if its expiry date passes.

cl 105: Am 2013 No 95, Sch 2.155 [1].

Subdivision 5 Suspension and cancellation of high risk work licence

106 Suspension or cancellation of licence

(1)  The regulator may suspend or cancel a high risk work licence if satisfied about 1 or more of the following:

(a)  the licence holder has failed to take reasonable care to carry out the high risk work safely and competently,

(ab)  the licence holder has failed to comply with a condition of the licence,

(b)  the licence holder has failed to obtain a reassessment of competency directed under clause 95,

(c)  the licence holder, in the application for the grant or renewal of the licence or on request by the regulator for additional information:

(i)  gave information that was false or misleading in a material particular, or

(ii)  failed to give any material information that should have been given in that application or on that request,

(d)  the licence was granted or renewed on the basis of a certification that was obtained on the basis of the giving of false or misleading information by any person or body or that was obtained improperly through a breach of a condition of accreditation by the accredited assessor who conducted the competency assessment.

(2)  If the regulator suspends or cancels a licence, the regulator may disqualify the licence holder from applying for:

(a)  a further high risk work licence of the same class, or

(b)  another licence under this Regulation to carry out work which requires skills that are the same as or similar to those required for the work authorised by the licence that has been suspended or cancelled.

(3)  If the regulator suspends a licence, the regulator may vary the conditions of the licence, including by imposing different or additional conditions.

(4)  A variation of conditions under subclause (3) takes effect when the suspension of the licence ends.

Notes—

1 A decision to suspend a licence, to cancel a licence or to disqualify the licence holder from applying for a further licence is a reviewable decision (see clause 676).

2 A variation of licence conditions is a reviewable decision (see clause 676).

cl 106: Am 2015 (61), Sch 1 [31] [32].

107 Matters taken into account

(1)  In making a decision under clause 106, the regulator must have regard to:

(a)  any submissions made by the licence holder under clause 108, and

(b)  any advice received from a corresponding regulator.

(2)  For the purposes of clause 106 (1) (a), the regulator must have regard to all relevant matters, including the following:

(a)  any offence under the Act or this Regulation or under a corresponding WHS law, of which the licence holder has been convicted or found guilty,

(b)  in relation to any equivalent licence applied for or held by the licence holder under the Act or this Regulation or under a corresponding WHS law:

(i)  any refusal to grant the licence, and

(ii)  any condition imposed on the licence, if granted, and

(iii)  any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence,

(c)  any enforceable undertaking the licence holder has entered into under the Act or a corresponding WHS law,

(d)  the licence holder’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.

108 Notice to and submissions by licence holder

(1)  Before suspending or cancelling a high risk work licence, the regulator must give the licence holder a written notice of:

(a)  the proposed suspension or cancellation, and

(b)  any proposed disqualification, and

(c)  any proposed variation of licence conditions.

(2)  A notice under subclause (1) must:

(a)  outline all relevant allegations, facts and circumstances known to the regulator, and

(b)  advise the licence holder that the licence holder may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation, any proposed disqualification and any proposed variation of licence conditions.

cl 108: Subst 2015 (61), Sch 1 [33].

109 Notice of decision

(1)  The regulator must give the licence holder written notice of a decision under clause 106 to suspend or cancel a high risk work licence within 14 days after making the decision.

(2)  The notice must:

(a)  state that the licence is to be suspended or cancelled, and

(b)  if the licence is to be suspended, state:

(i)  when the suspension begins and ends, and

(ii)  the reasons for the suspension, and

(iii)  whether the licence holder is required to undergo retraining or reassessment or take any other action before the suspension ends, and

(iv)  whether or not the licence holder is disqualified from applying for a further licence during the suspension, and

(v)  if the licence conditions are to be varied—the variation, and

(vi)  if the licence conditions are to be varied—that the variation will take effect when the suspension ends, and

(c)  if the licence is to be cancelled, state:

(i)  when the cancellation takes effect, and

(ii)  the reasons for the cancellation, and

(iii)  whether or not the licence holder is disqualified from applying for a further licence, and

(d)  if the licence holder is to be disqualified from applying for a further licence, state:

(i)  when the disqualification begins and ends, and

(ii)  the reasons for the disqualification, and

(iii)  whether or not the licence holder is required to undergo retraining or reassessment or take any other action before the disqualification ends, and

(iv)  any other class of high risk work licence or other licence under this Regulation the licence holder is disqualified from applying for during the period of suspension or disqualification, and

(e)  state when the licence document must be returned to the regulator.

cl 109: Am 2015 (61), Sch 1 [34].

110 Immediate suspension

(1)  The regulator may suspend a high risk work licence on a ground referred to in clause 106 without giving notice under clause 108 if satisfied that:

(a)  work carried out under the high risk work licence should cease because the work may involve an imminent serious risk to the health or safety of any person, or

(b)  a corresponding regulator has suspended an equivalent licence held by the licence holder under this clause as applying in the corresponding jurisdiction.

(2)  If the regulator decides to suspend a licence under this clause:

(a)  the regulator must give the licence holder written notice of the suspension and the reasons for the suspension, and

(b)  the suspension of the licence takes effect on the giving of the notice.

(3)  The regulator must then:

(a)  give notice under clause 108 within 14 days after giving the notice under subclause (2), and

(b)  make its decision under clause 106.

(4)  If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period.

(5)  If the regulator gives notice under subclause (3), the licence remains suspended until the decision is made under clause 106.

111 Licence holder to return licence document

A licence holder, on receiving a notice under clause 109, must return the licence document to the regulator in accordance with the notice.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

112 Regulator to return licence document after suspension

When the period of suspension of a licence ends, the regulator must return the licence document to the licence holder within 14 days after the licence suspension ends.

Division 2 Accreditation of assessors

Subdivision 1 Requirement to be accredited

113 Accreditation required to assess competency for high risk work licence

A person who is not an accredited assessor must not:

(a)  conduct a competency assessment, or

(b)  issue a notice of satisfactory assessment, or

(c)  in any other way hold himself or herself out to be an accredited assessor.

Note—

See section 43 of the Act.

114 Accredited assessor must act in accordance with accreditation

(1)  An accredited assessor must not conduct a competency assessment unless:

(a)  the competency assessment relates to a class of high risk work for which the assessor is accredited, and

(b)  the accredited assessor conducts the competency assessment for or on behalf of an RTO.

(2)  An accredited assessor must not issue a notice of satisfactory assessment unless the competency assessment relates to a class of high risk work for which the assessor is accredited.

(3)  An accredited assessor who conducts a competency assessment must do so in accordance with the conditions of accreditation imposed under clause 121.

(4)  An accredited assessor who issues a notice of satisfactory assessment must do so in accordance with any conditions of accreditation imposed under clause 121.

(5)  Subclauses (1) to (4) do not apply if the regulator is the accredited assessor.

Note—

See section 43 of the Act.

Subdivision 2 Accreditation process

115 Regulator may accredit assessors

The regulator may, under this Division, accredit persons to conduct assessments.

116 Application for accreditation

(1)  An application for accreditation must be made in the manner and form required by the regulator.

(2)  The application must include the following information:

(a)  the name and residential address of the applicant,

(b)  any other evidence of the applicant’s identity required by the regulator,

(c)  details of the class of high risk work to which the application relates,

(d)  evidence that the applicant is qualified to conduct the type of competency assessment in relation to the class of high risk work to which the application relates,

(e)  details of any current equivalent accreditation under a corresponding WHS law,

(f)  a declaration as to whether or not the applicant has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law,

(g)  details of any conviction or finding of guilt declared under paragraph (f),

(h)  a declaration as to whether or not the applicant has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law,

(i)  details of any enforceable undertaking declared under paragraph (h),

(j)  if the applicant has previously been refused an equivalent accreditation under a corresponding WHS law, a declaration giving details of that refusal,

(k)  if the applicant has previously held an equivalent accreditation under a corresponding WHS law, a declaration:

(i)  describing any condition imposed on that accreditation, and

(ii)  stating whether or not that accreditation had been suspended or cancelled and, if so, whether or not the applicant had been disqualified from applying for any accreditation, and

(iii)  giving details of any suspension, cancellation or disqualification.

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  The application must be accompanied by the relevant fee.

117 Additional information

(1)  If an application for accreditation does not contain sufficient information to enable the regulator to make a decision whether or not to grant the accreditation, the regulator may ask the applicant to provide additional information.

(2)  A request for additional information must:

(a)  specify the date (being not less than 28 days after the request) by which the additional information is to be given, and

(b)  be confirmed in writing.

(3)  If an applicant does not provide the additional information by the date specified, the application is taken to have been withdrawn.

(4)  The regulator may make more than 1 request for additional information under this clause.

118 Decision on application

(1)  Subject to subclause (3), the regulator must grant an accreditation if satisfied about the matters referred to in subclause (2).

(2)  The regulator must be satisfied that:

(a)  the applicant:

(i)  is qualified to conduct the competency assessment to which the application relates, and

(ii)  is able to conduct the competency assessment to which the application relates competently, and

(iii)  is able to ensure compliance with any conditions that will apply to the accreditation, or

(b)  the applicant holds a current equivalent accreditation under a corresponding WHS law.

(3)  The regulator must refuse to grant an accreditation if satisfied that:

(a)  the applicant is disqualified under a corresponding WHS law from holding an equivalent accreditation, or

(b)  the applicant, in making the application, has:

(i)  given information that is false or misleading in a material particular, or

(ii)  failed to give any material information that should have been given.

(4)  If the regulator decides to grant the accreditation, it must notify the applicant within 14 days after making the decision.

(5)  If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 117, the regulator is taken to have refused to grant the accreditation applied for.

(6)  For the purposes of subclause (2) (a) (i), an applicant is qualified to provide the competency assessment if:

(a)  the applicant’s competencies, skills and knowledge are in accordance with the Standards for NVR Registered Training Organisations 2011 published by the Commonwealth, and

(b)  the applicant holds a current high risk work licence for the class of high risk work to which the competency assessment relates.

Note—

A refusal to grant accreditation (including a refusal under subclause (5)) is a reviewable decision (see clause 676).

119 Matters to be taken into account

For the purposes of clause 118 (2) (a) (ii) and (iii), the regulator must have regard to all relevant matters, including the following:

(a)  any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty,

(b)  any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law,

(c)  in relation to any equivalent accreditation applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law:

(i)  any refusal to grant the accreditation, and

(ii)  any condition imposed on the accreditation, if granted, and

(iii)  any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation,

(d)  the applicant’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.

120 Refusal to grant accreditation—process

(1)  If the regulator proposes to refuse to grant an accreditation, the regulator must give the applicant a written notice:

(a)  informing the applicant of the reasons for the proposed refusal, and

(b)  advising the applicant that the applicant may, by a specified date (being not less than 28 days after the notice is given), make a submission to the regulator in relation to the proposed refusal.

(2)  After the date specified in a notice under subclause (1), the regulator must:

(a)  if the applicant has made a submission in relation to the proposed refusal to grant the accreditation—consider that submission, and

(b)  whether or not the applicant has made a submission—decide whether to grant or refuse to grant the accreditation, and

(c)  within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision.

Note—

A refusal to grant an accreditation is a reviewable decision (see clause 676).

121 Conditions of accreditation

(1)  The regulator may impose any conditions it considers appropriate on an accreditation.

(2)  Without limiting subclause (1), the regulator may impose conditions:

(a)  relating to the competency assessments and assessment activities that may be carried out, and

(b)  relating to the circumstances in which competency assessments or assessment activities may be carried out, and

(c)  requiring the accredited assessor to keep specified information, and

(d)  requiring the accredited assessor to give specified information to the regulator.

Notes—

1 A person must comply with the conditions of accreditation (see section 45 of the Act).

2 A decision to impose a condition on an accreditation is a reviewable decision (see clause 676).

122 Duration of accreditation

An accreditation takes effect on the day it is granted and, unless cancelled earlier, expires 3 years after that day.

123 Accreditation document

(1)  If the regulator grants an accreditation, it must issue to the applicant an accreditation document in the form determined by the regulator.

(2)  An accreditation document must include the following:

(a)  the name of the accredited assessor,

(b)  the class of high risk work to which the accreditation relates,

(c)  any conditions imposed on the accreditation by the regulator,

(d)  the date on which the accreditation was granted,

(e)  the expiry date of the accreditation.

(3)  If an assessor is accredited to conduct a competency assessment in relation to more than 1 class of high risk work, the regulator may issue to the accredited assessor one accreditation document in relation to some or all of those classes of high risk work.

(4)  If 2 or more of the classes of high risk work referred to in subclause (3) represent levels of the same type of work, it is sufficient if the accreditation document contains a description of the class of work that represents the highest level.

124 Accreditation document to be available

(1)  An accredited assessor must keep the accreditation document available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  An accredited assessor must make the accreditation document available for inspection by any person in relation to whom the assessor is conducting, or is to conduct, a competency assessment.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  Subclauses (1) and (2) do not apply if the accreditation document is not in the accredited assessor’s possession because:

(a)  it has been returned to the regulator under clause 126, or

(b)  the accreditation assessor has applied for, but has not received, a replacement accreditation document under clause 127.

Subdivision 3 Amendment of accreditation document

125 Changes to information

(1)  An accredited assessor must give the regulator written notice of any change to any material particular in any information given at any time by the assessor to the regulator in relation to the accreditation within 14 days after the assessor becomes aware of the change.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  Subclause (1) applies whether the information was given in the application for grant or renewal of the accreditation or in any other circumstance.

126 Accredited assessor to return accreditation document

If an accreditation is amended, the accredited assessor must return the accreditation document to the regulator for amendment at the written request of the regulator and within the time specified in the request.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

127 Replacement accreditation document

(1)  An accredited assessor must give written notice to the regulator as soon as practicable if the accreditation document is lost, stolen or destroyed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  If an accreditation document is lost, stolen or destroyed an accredited assessor may apply to the regulator for a replacement accreditation document.

Note—

An accreditation holder is required to keep the accreditation document available for inspection (see clause 124).

(3)  An application for a replacement accreditation document must be made in the manner and form required by the regulator.

(4)  The application must:

(a)  include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(b)  be accompanied by the relevant fee.

(5)  The regulator must issue a replacement accreditation document if satisfied that the original document was lost, stolen or destroyed.

(6)  If the regulator refuses to issue a replacement accreditation document, it must give the accredited assessor written notice of this decision, including the reasons for the decision, within 14 days after making the decision.

Note—

A refusal to issue a replacement accreditation document is a reviewable decision (see clause 676).

128 Voluntary surrender of accreditation

(1)  An accredited assessor may voluntarily surrender the accreditation document to the regulator.

(2)  The accreditation expires on the surrender of the accreditation document.

Subdivision 4 Renewal of accreditation

129 Regulator may renew accreditation

The regulator may renew an accreditation on the application of the accredited assessor.

130 Application for renewal

(1)  An application for renewal of accreditation must be made in the manner and form required by the regulator.

(2)  An application must:

(a)  include the information referred to in clause 116 (2), and

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(b)  be accompanied by the relevant fee.

(3)  The application must be made before the expiry of the accreditation.

131 Accreditation continues in force until application is decided

If an accredited assessor applies under clause 130 for the renewal of accreditation, the accreditation is taken to continue in force from the day it would, apart from this clause, have expired until the accredited assessor is given notice of the decision on the application.

132 Provisions relating to application

For the purposes of this Division:

(a)  clause 117 applies as if a reference in that clause to an application for accreditation were a reference to an application to renew an accreditation, and

(b)  clauses 118 (except subclause (5)), 119, 121 and 122 apply as if a reference in those clauses to the grant of an accreditation were a reference to the renewal of an accreditation, and

(c)  clause 120 applies as if a reference in that clause to a refusal to grant an accreditation were a reference to a refusal to renew an accreditation.

Note—

A refusal to renew an accreditation is a reviewable decision (see clause 676).

Subdivision 5 Suspension and cancellation

133 Regulator may suspend or cancel accreditation

(1)  The regulator may, under this Division:

(a)  suspend or cancel an accreditation, and

(b)  if suspending an accreditation, vary the conditions of the accreditation, including by imposing different or additional conditions.

(2)  If the regulator cancels an accreditation, the regulator may disqualify the accredited assessor from applying for a further accreditation for a specified period.

Note—

A decision to suspend or cancel an accreditation, to vary the conditions of an accreditation or to disqualify an accredited assessor from applying for a further accreditation is a reviewable decision (see clause 676).

134 Suspension or cancellation of accreditation

(1)  The regulator may suspend or cancel an accreditation if satisfied about 1 or more of the following:

(a)  the accredited assessor is no longer qualified to conduct the competency assessment specified in the assessor’s accreditation document,

(b)  the accredited assessor is not able to conduct the competency assessment to which the accreditation relates competently,

(c)  the accredited assessor has failed to comply with a condition imposed on the accreditation under clause 121,

(d)  the accredited assessor, in the application for the grant or renewal of accreditation or on request by the regulator for additional information:

(i)  gave information that was false or misleading in a material particular, or

(ii)  failed to give any material information that should have been given in that application or on that request.

(2)  In subclause (1) (a), qualified has the same meaning in relation to an accredited assessor as it has in clause 118 in relation to an applicant for accreditation.

135 Matters to be taken into account

(1)  In making a decision under clause 133, the regulator must have regard to:

(a)  any submissions made by the accredited assessor under clause 136, and

(b)  any advice received from a corresponding regulator.

(2)  For the purposes of clause 134 (1) (b) and (c), the regulator must have regard to all relevant matters, including the following:

(a)  any offence under the Act or this Regulation or under a corresponding WHS law, of which the accredited assessor has been convicted or found guilty,

(b)  any enforceable undertaking the accredited assessor has entered into under the Act or a corresponding WHS law,

(c)  in relation to any equivalent accreditation applied for or held by the accredited assessor under the Act or this Regulation or under a corresponding WHS law:

(i)  any refusal to grant the accreditation, and

(ii)  any condition imposed on the accreditation, if granted, and

(iii)  any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation,

(d)  any suspension of a high risk work licence held by the accredited assessor under the Act or this Regulation or under a corresponding WHS law,

(e)  the accredited assessor’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.

136 Notice to and submissions by accredited assessor

Before suspending or cancelling an accreditation, the regulator must give the accreditation holder a written notice of the proposed suspension or cancellation and any proposed disqualification:

(a)  outlining all relevant allegations, facts and circumstances known to the regulator, and

(b)  advising the accreditation holder that the accreditation holder may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation and any proposed disqualification.

137 Notice of decision

(1)  The regulator must give the accredited assessor written notice of a decision under clause 134 to suspend or cancel the accreditation within 14 days after making the decision.

(2)  The notice must:

(a)  state that the accreditation is to be suspended or cancelled, and

(b)  if the accreditation is to be suspended, state:

(i)  when the suspension begins and ends, and

(ii)  the reasons for the suspension, and

(iii)  whether or not the accredited assessor is required to undergo retraining or reassessment or take any other action before the suspension ends, and

(iv)  whether any variation is to be made to the conditions of accreditation, and

(v)  whether or not the accredited assessor is disqualified from obtaining a further accreditation during the suspension, and

(c)  if the accreditation is to be cancelled, state:

(i)  when the cancellation takes effect, and

(ii)  the reasons for the cancellation, and

(iii)  whether or not the accredited assessor is disqualified from applying for a further accreditation, and

(d)  if the accredited assessor is to be disqualified from obtaining a further accreditation, state:

(i)  when the disqualification begins and ends, and

(ii)  the reasons for the disqualification, and

(iii)  whether or not the accredited assessor is required to undergo retraining or reassessment or take any other action before the disqualification ends, and

(e)  state when the accreditation document must be returned to the regulator.

138 Immediate suspension

(1)  The regulator may suspend an accreditation on a ground referred to in clause 134 without giving notice under clause 136 if satisfied that a person may be exposed to an imminent serious risk to his or her health or safety if the accreditation were not suspended.

(2)  If the regulator decides to suspend an accreditation under this clause:

(a)  the regulator must give the accredited assessor written notice of the suspension and the reasons for the suspension, and

(b)  the suspension takes effect on the giving of the notice.

(3)  The regulator must then:

(a)  give notice under clause 136 within 14 days after giving the notice under subclause (2), and

(b)  make its decision under clause 134.

(4)  If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period.

(5)  If the regulator gives notice under subclause (3), the accreditation remains suspended until the decision is made under clause 134.

139 Accredited assessor to return accreditation document

An accredited assessor, on receiving a notice under clause 137, must return the accreditation document to the regulator in accordance with that notice.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

140 Regulator to return accreditation document after suspension

The regulator must return the accreditation document to the accredited assessor within 14 days after the suspension ends.

Subdivision 6 Agreements with RTOs

141 Regulator may enter into agreement with RTO

The regulator may enter into an agreement with an RTO to share information to assist the regulator in relation to the accreditation of assessors.

Part 4.6 Demolition work

Division 1 Notice of demolition work

142 Notice of demolition work

(1)  Subject to subclause (4), a person conducting a business or undertaking who proposes to carry out any of the following demolition work must ensure that written notice is given to the regulator in accordance with this clause at least 5 days before the work commences:

(a)  demolition of a structure, or a part of a structure that is loadbearing or otherwise related to the physical integrity of the structure, that is at least 6 metres in height,

(b)  demolition work involving load shifting machinery on a suspended floor,

(c)  demolition work involving explosives.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(2)  The notice must be given in the manner and form required by the regulator.

(3)  Subclause (4) applies to an emergency service organisation in relation to demolition work carried out or proposed to be carried out by an emergency service worker at the direction of the emergency service organisation in responding to an emergency.

(4)  An emergency service organisation must give notice under subclause (1) as soon as practicable (whether before or after the work is carried out).

(5)  In this clause a reference to the height of a structure is a reference to the height of the structure measured from the lowest level of the ground immediately adjacent to the base of the structure at the point at which the height is to be measured to its highest point.

Division 2 Licensing of demolition work

143 Demolition work required to be licensed

* * * * *

Note—

Not adopted in NSW. See clause 64 of Schedule 18B (Savings and transitional provisions).

Part 4.7 General electrical safety in workplaces and energised electrical work

Division 1 Preliminary

144 Meaning of “electrical equipment”

(1)  In this Part, electrical equipment means any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that:

(a)  is used for controlling, generating, supplying, transforming or transmitting electricity at a voltage greater than extra-low voltage, or

(b)  is operated by electricity at a voltage greater than extra-low voltage, or

(c)  is part of an electrical installation located in an area in which the atmosphere presents a risk to health and safety from fire or explosion, or

(d)  is, or is part of, an active impressed current cathodic protection system within the meaning of AS 2832.1:2004 (Cathodic protection of metals—Pipes and cables).

(2)  In this Part, electrical equipment does not include any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire that is part of a motor vehicle if:

(a)  the equipment is part of a unit of the vehicle that provides propulsion for the vehicle, or

(b)  the electricity source for the equipment is a unit of the vehicle that provides propulsion for the vehicle.

(3)  In this clause, motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

145 Meaning of “electrical installation”

(1)  In this Part, electrical installation means a group of items of electrical equipment that:

(a)  are permanently electrically connected together, and

(b)  can be supplied with electricity from the works of an electricity supply authority or from a generating source.

(2)  An item of electrical equipment may be part of more than 1 electrical installation.

(3)  In subclause (1) (a):

(a)  an item of electrical equipment connected to electricity by a plug and socket outlet is not permanently electrically connected, and

(b)  connection achieved through using works of an electricity supply authority is not a consideration in determining whether or not electrical equipment is electrically connected.

146 Meaning of “electrical work”

(1)  In this Part, electrical work means:

(a)  connecting electricity supply wiring to electrical equipment or disconnecting electricity supply wiring from electrical equipment, or

(b)  installing, removing, adding, testing, replacing, repairing, altering or maintaining electrical equipment or an electrical installation.

(2)  In this Part, electrical work does not include the following:

(a)  work that involves connecting electrical equipment to an electricity supply by means of a flexible cord plug and socket outlet,

(b)  work on a non-electrical component of electrical equipment, if the person carrying out the work is not exposed to an electrical risk,

Example—

Painting electrical equipment covers and repairing hydraulic components of an electrical motor.

(c)  replacing electrical equipment or a component of electrical equipment if that task can be safely performed by a person who does not have expertise in carrying out electrical work,

Example—

Replacing a fuse or a light bulb.

(d)  assembling, making, modifying or repairing electrical equipment as part of a manufacturing process,

(e)  building or repairing ducts, conduits or troughs, where electrical wiring is or will be installed if:

(i)  the ducts, conduits or troughs are not intended to be earthed, and

(ii)  the wiring is not energised, and

(iii)  the work is supervised by an authorised electrician,

(f)  locating or mounting electrical equipment, or fixing electrical equipment in place, if this task is not performed in relation to the connection of electrical equipment to an electricity supply,

(g)  assisting an authorised electrician to carry out electrical work if:

(i)  the assistant is directly supervised by the authorised electrician, and

(ii)  the assistance does not involve physical contact with any energised electrical equipment,

(h)  carrying out electrical work, other than work on energised electrical equipment, in order to meet eligibility requirements in relation to becoming an authorised electrician.

(3)  In this clause, authorised electrician means a person who is authorised under the Home Building Act 1989 to do electrical wiring work.

Division 2 General risk management

147 Risk management

A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with electrical risks at the workplace, in accordance with Part 3.1.

Example—

Electrical risks associated with the design, construction, installation, protection, maintenance and testing of electrical equipment and electrical installations at a workplace.

Note—

WHS Act—section 19 (see clause 9).

Division 3 Electrical equipment and electrical installations

148 Electrical equipment and electrical installations to which this Division applies

In this Division, a reference to electrical equipment or an electrical installation in relation to a person conducting a business or undertaking is a reference to electrical equipment or an electrical installation that is under the person’s management or control.

149 Unsafe electrical equipment

(1)  A person conducting a business or undertaking at a workplace must ensure that any unsafe electrical equipment at the workplace:

(a)  is disconnected (or isolated) from its electricity supply, and

(b)  once disconnected (or isolated):

(i)  is not reconnected until it is repaired or tested and found to be safe, or

(ii)  is replaced or permanently removed from use.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  For the purposes of this clause, electrical equipment or a component of electrical equipment is unsafe if there are reasonable grounds for believing it to be unsafe.

150 Inspection and testing of electrical equipment

(1)  A person conducting a business or undertaking at a workplace must ensure that electrical equipment is regularly inspected and tested by a competent person if the electrical equipment is:

(a)  supplied with electricity through an electrical socket outlet, and

(b)  used in an environment in which the normal use of electrical equipment exposes the equipment to operating conditions that are likely to result in damage to the equipment or a reduction in its expected life span, including conditions that involve exposure to moisture, heat, vibration, mechanical damage, corrosive chemicals or dust.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  In the case of electrical equipment that is new and unused at the workplace, the person conducting the business or undertaking:

(a)  is not required to comply with subclause (1), and

(b)  must ensure that the equipment is inspected for obvious damage before being used.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Note—

However, electrical equipment that is unsafe must not be used (see clause 149).

(3)  The person must ensure that a record of any testing carried out under subclause (1) is kept until the electrical equipment is:

(a)  next tested, or

(b)  permanently removed from the workplace or disposed of.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The record of testing:

(a)  must specify the following:

(i)  the name of the person who carried out the testing,

(ii)  the date of the testing,

(iii)  the outcome of the testing,

(iv)  the date on which the next testing must be carried out, and

(b)  may be in the form of a tag attached to the electrical equipment tested.

151 Untested electrical equipment not to be used

A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that electrical equipment is not used if the equipment:

(a)  is required to be tested under clause 150, and

(b)  has not been tested.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Division 4 Electrical work on energised electrical equipment

152 Application of Division 4

This Division does not apply to work carried out:

(a)  by or on behalf of an electricity supply authority on the electrical equipment, including electric line-associated equipment, controlled or operated by the authority to generate, transform, transmit or supply electricity, or

(b)  by a person accredited to provide contestable services within the meaning of Part 3 of the Electricity Supply (Safety and Network Management) Regulation 2014, but only while the accredited person is providing the contestable services or carrying out other work authorised by an electricity supply authority.

cl 152: Subst 2015 (61), Sch 1 [35].

153 Persons conducting a business or undertaking to which this Division applies

In this Division (except clauses 156, 159 and 160), a reference to a person conducting a business or undertaking in relation to electrical work is a reference to the person conducting the business or undertaking who is carrying out the electrical work.

154 Electrical work on energised electrical equipment—prohibited

Subject to this Division, a person conducting a business or undertaking must ensure that electrical work is not carried out on electrical equipment while the equipment is energised.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

155 Duty to determine whether equipment is energised

(1)  A person conducting a business or undertaking must ensure that, before electrical work is carried out on electrical equipment, the equipment is tested by a competent person to determine whether or not it is energised.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

Clause 157 allows electrical testing to be carried out on electrical equipment for the purposes of this clause. Clause 161 sets out how the testing is to be carried out.

(2)  The person conducting a business or undertaking must ensure that:

(a)  each exposed part is treated as energised until it is isolated and determined not to be energised, and

(b)  each high-voltage exposed part is earthed after being de-energised.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

156 De-energised equipment must not be inadvertently re-energised

A person conducting a business or undertaking must ensure that electrical equipment that has been de-energised to allow electrical work to be carried out on it is not inadvertently re-energised while the work is being carried out.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

157 Electrical work on energised electrical equipment—when permitted

(1)  A person conducting a business or undertaking must ensure that electrical work on energised electrical equipment is not carried out unless:

(a)  it is necessary in the interests of health and safety that the electrical work is carried out on the equipment while the equipment is energised, or

Example—

It may be necessary that life-saving equipment remain energised and operating while electrical work is carried out on the equipment.

(b)  it is necessary that the electrical equipment to be worked on is energised in order for the work to be carried out properly, or

(c)  it is necessary for the purposes of testing required under clause 155, or

(d)  there is no reasonable alternative means of carrying out the work.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The electrical work that may be carried out under subclause (1) (a), (b) and (d) may include testing of the energised electrical equipment.

158 Preliminary steps

(1)  A person conducting a business or undertaking must ensure the following before electrical work on energised electrical equipment commences:

(a)  a risk assessment is conducted in relation to the proposed electrical work,

(b)  the area where the electrical work is to be carried out is clear of obstructions so as to allow for easy access and exit,

(c)  the point at which the electrical equipment can be disconnected or isolated from its electricity supply is:

(i)  clearly marked or labelled, and

(ii)  clear of obstructions so as to allow for easy access and exit by the worker who is to carry out the electrical work or any other competent person, and

(iii)  capable of being operated quickly,

(d)  the person authorises the electrical work after consulting with the person with management or control of the workplace.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  For the purposes of subclause (1) (a), the risk assessment must be:

(a)  conducted by a competent person, and

(b)  recorded.

Note—

Clause 12 permits risk assessments to be conducted, in certain circumstances, in relation to a class of hazards, tasks, things or circumstances.

(3)  Subclause (1) (c) does not apply to electrical work on electrical equipment if:

(a)  the work is to be carried out on the supply side of the main switch on the main switchboard for the equipment, and

(b)  the point at which the equipment can be disconnected from its electricity supply is not reasonably accessible from the work location.

cl 158: Am 2015 (61), Sch 1 [36].

159 Unauthorised access to equipment being worked on

A person conducting a business or undertaking must ensure that only persons authorised by the person conducting the business or undertaking enter the immediate area in which electrical work on energised electrical equipment is being carried out.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

160 Contact with equipment being worked on

A person conducting a business or undertaking must ensure that, while electrical work is being carried out on energised electrical equipment, all persons are prevented from creating an electrical risk by inadvertently making contact with an exposed energised component of the equipment.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

161 How the work is to be carried out

(1)  A person conducting a business or undertaking must ensure that electrical work on energised electrical equipment is carried out:

(a)  by a competent person who has tools, testing equipment and personal protective equipment that:

(i)  are suitable for the work, and

(ii)  have been properly tested, and

(iii)  are maintained in good working order, and

(b)  in accordance with a safe work method statement prepared for the work, and

(c)  subject to subclause (5), with a safety observer present who has the competence and qualifications specified in subclause (4).

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the person who carries out the electrical work uses the tools, testing equipment and personal protective equipment properly.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  For the purposes of subclause (1) (b), the safe work method statement must:

(a)  identify the electrical work, and

(b)  specify hazards associated with that electrical work and risks associated with those hazards, and

(c)  describe the measures to be implemented to control the risks, and

(d)  describe how the risk control measures are to be implemented, monitored and reviewed.

(4)  For the purposes of subclause (1) (c):

(a)  the safety observer must be competent:

(i)  to implement control measures in an emergency, and

(ii)  to rescue and resuscitate the worker who is carrying out the work, if necessary, and

(b)  the safety observer must have been assessed in the previous 12 months as competent to rescue and resuscitate a person.

(5)  A safety observer is not required if:

(a)  the work consists only of testing, and

(b)  the person conducting the business or undertaking has conducted a risk assessment under clause 158 (1) (a) that shows that there is no serious risk associated with the proposed work.

cl 161: Am 2015 (61), Sch 1 [37].

162 Record keeping

(1)  This clause applies if a person conducting a business or undertaking prepares:

(a)  a risk assessment under clause 158, or

(b)  a safe work method statement under clause 161.

(2)  Subject to subclause (3), the person must keep:

(a)  a copy of the risk assessment until at least 28 days after the work to which it relates is completed, and

(b)  a copy of the safe work method statement until the work to which it relates is completed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  If a notifiable incident occurs in connection with the work to which the assessment or statement relates, the person must keep the assessment or statement (as applicable) for at least 2 years after the incident occurs.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The person must ensure that, for the period for which the assessment or statement must be kept under this clause, a copy is readily accessible to any worker engaged by the person to carry out electrical work to which the assessment or statement relates.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(5)  The person must ensure that, for the period for which the assessment or statement must be kept under this clause, a copy is available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Division 5 Electrical equipment and installations and construction work—additional duties

163 Duty of person conducting business or undertaking

(1)  A person conducting a business or undertaking that includes the carrying out of construction work must comply with AS/NZS 3012:2010 (Electrical installations—Construction and demolition sites).

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  For the purposes of subclause (1), AS/NZS 3012:2010 (Electrical installations—Construction and demolition sites) applies as if any term that is defined in that Standard and that is also defined in the Act or this Regulation has the same meaning as it has in the Act or this Regulation.

(3)  If any requirement in AS/NZS 3012:2010 (Electrical installations—Construction and demolition sites) deals with the same matter as a requirement under this Part, it is sufficient that the person conducting the business or undertaking complies with the requirement in AS/NZS 3012:2010 as modified by subclause (2).

Division 6 Residual current devices

164 Use of socket outlets in hostile operating environment

(1)  This clause applies in the following circumstances:

(a)  electrical equipment is used in an environment in which the normal use of electrical equipment exposes the equipment to operating conditions that are likely to result in damage to the equipment or a reduction in its expected life span, including conditions that involve exposure to moisture, heat, vibration, mechanical damage, corrosive chemicals or dust,

(b)  electrical equipment is moved between different locations in circumstances where damage to the equipment or to a flexible electricity supply cord is reasonably likely,

(c)  electrical equipment is frequently moved during its normal use,

(d)  electrical equipment forms part of, or is used in connection with, an amusement device.

(2)  In a circumstance set out in subclause (1), a person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that any electrical risk associated with the supply of electricity to the electrical equipment through a socket outlet is minimised by the use of an appropriate residual current device.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  Without limiting subclause (2), the residual current device must have a tripping current that does not exceed 30 milliamps if electricity is supplied to the equipment through a socket outlet not exceeding 20 amps.

(4)  Subclause (2) does not apply if the supply of electricity to the electrical equipment:

(a)  does not exceed 50 volts alternating current, or

(b)  is direct current, or

(c)  is provided through an isolating transformer that provides at least an equivalent level of protection, or

(d)  is provided from a non-earthed socket outlet supplied by an isolated winding portable generator that provides at least an equivalent level of protection.

Notes—

1 This clause commences on 1 January 2013 (see clause 2 (2)).

2 Residual current devices are also regulated under the Electricity (Consumer Safety) Act 2004 .

165 Testing of residual current devices

(1)  A person with management or control of a workplace must take all reasonable steps to ensure that residual current devices used at the workplace are tested regularly by a competent person to ensure that the devices are operating effectively.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  The person must keep a record of all testing of a residual current device (other than any testing conducted daily) until the earlier of the following occurs:

(a)  the device is next tested,

(b)  the device is permanently removed from use.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Division 7 Overhead and underground electric lines

166 Duty of person conducting a business or undertaking

(1)  A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that no person, plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If it is not reasonably practicable to ensure the safe distance of a person, plant or thing from an overhead or underground electric line, the person conducting the business or undertaking at the workplace must ensure that:

(a)  a risk assessment is conducted in relation to the proposed work, and

(b)  control measures implemented are consistent with:

(i)  the risk assessment, and

(ii)  if an electricity supply authority is responsible for the electric line, any requirements of the authority.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

The Electricity (Consumer Safety) Act 2004 and the Electricity Supply (Safety and Network Management) Regulation 2008 also apply to the person conducting the business or undertaking.

Part 4.8 Diving work

Division 1 Preliminary

167 Purpose of Part 4.8

The purpose of this Part is to impose duties on a person conducting a business or undertaking at a workplace to ensure:

(a)  the fitness and competence of persons who carry out general diving work and high risk diving work, and

(b)  the health and safety of persons who carry out general diving work and high risk diving work, and

(c)  the health and safety of other persons at workplaces where general diving work or high risk diving work is carried out.

cl 167: Am 2015 (61), Sch 1 [38].

Division 2 General diving work—fitness and competence of worker

168 Person conducting business or undertaking must ensure fitness of workers

(1)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out general diving work or undergo training for general diving work unless the worker holds a current certificate of medical fitness.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The person must not direct or allow a worker to carry out general diving work or undergo training for diving work unless the work or training complies with any conditions on the current certificate of medical fitness of the worker.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

169 Certificate of medical fitness

A certificate of medical fitness must:

(a)  be issued by a registered medical practitioner with training in underwater medicine, and

(b)  state the following:

(i)  the name of the person to whom it is issued,

(ii)  its date of issue and its expiry date,

(iii)  whether or not the person to whom it is issued is, in accordance with the fitness criteria, medically fit to carry out diving work,

(iv)  any conditions in relation to the type of diving work the person to whom it is issued is fit to carry out, or the circumstances in which the person is fit to carry out general diving work, including, in the case of a person who is under 18 years of age, any particular conditions applicable to the age of the person.

cl 169: Am 2015 (61), Sch 1 [39].

170 Duty to keep certificate of medical fitness

A person conducting a business or undertaking at a workplace must keep the certificate of medical fitness of a worker who carries out general diving work for 1 year after the work is carried out.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

171 Competence of worker—general diving work—general qualifications

(1)  A person must not carry out any type of general diving work unless the person holds a certificate for general diving work, issued by a training organisation, that demonstrates that the person has acquired the relevant competencies for that type of general diving work.

(2)  This clause does not apply in relation to incidental diving work or limited diving work.

(3)  In subclause (1), relevant competencies means the competencies specified in AS 4005.2:2000 (Training and certification of recreational divers) or AS/NZS 2815 (Training and certification of occupational divers) that are relevant to the type of general diving work to which subclause (1) applies.

Note—

See section 44 of the Act.

cl 171: Subst 2015 (61), Sch 1 [40].

171A Competence of worker—general diving work—additional knowledge and skill

(1)  In addition to clause 171, a person must not carry out general diving work unless the person has, through training, qualification or experience, acquired sound knowledge and skill in relation to the following:

(a)  the application of diving physics,

(b)  the use, inspection and maintenance of diving equipment (including emergency equipment) and air supply of the type to be used in the proposed general diving work,

(c)  the use of decompression tables or dive computers,

(d)  dive planning,

(e)  ways of communicating with another diver and with persons at the surface during general diving work,

(f)  how to safely carry out general diving work of the type proposed to be carried out,

(g)  diving physiology, emergency procedures and first aid.

Note—

See section 44 of the Act.

(2)  This clause does not apply in relation to incidental diving work or limited scientific diving work.

cl 171A: Ins 2015 (61), Sch 1 [40].

172 Competence of worker—incidental diving work

(1)  A person must not carry out incidental diving work unless the person:

(a)  has the knowledge and skill referred to in clause 171A, and

(b)  has relevant diving experience, and

(c)  is accompanied and supervised in the water by a person who has the competencies referred to in clause 171.

Note—

See section 44 of the Act.

(2)  In this clause, a person has relevant diving experience if the person has logged at least 15 hours of diving, of which at least 8 hours and 20 minutes were spent diving between 10 metres above and any depth below the maximum depth at which the diving work is to be carried out.

cl 172: Subst 2015 (61), Sch 1 [40].

173 Competence of worker—limited scientific diving work

(1)  A person who is not permanently resident in Australia must not carry out limited scientific diving work unless the person has:

(a)  the training, qualification or experience referred to in clause 171A, and

(b)  relevant diving experience, including relevant diving experience obtained outside Australia.

Note—

See section 44 of the Act.

(2)  In this clause, a person has relevant diving experience if the person has logged at least 60 hours diving of which at least 8 hours and 20 minutes were spent diving between 10 metres above and any depth below the maximum depth at which the limited scientific diving work is to be carried out.

cl 173: Am 2015 (61), Sch 1 [41].

174 Competence of competent person supervising general diving work

A person appointed under clause 177 must not perform any function associated with that appointment unless the person has:

(a)  the qualification specified in clause 171, and

(b)  experience in the type of diving work to be supervised.

Note—

See section 44 of the Act.

cl 174: Am 2015 (61), Sch 1 [42].

175 Evidence of competence—duty of person conducting business or undertaking

(1)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out general diving work unless the person sees written evidence provided by the worker that the worker has the relevant competence required under this Division.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  A person conducting a business or undertaking at a workplace must not direct or allow a person appointed under clause 177 to perform any of the functions associated with that appointment unless the person conducting the business or undertaking sees written evidence provided by the person appointed that the person appointed has the competence required under clause 174.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  A person conducting a business or undertaking must keep the written evidence given to the person:

(a)  under subclause (1)—for at least 1 year after the diving work is carried out,

(b)  under subclause (2)—for at least 1 year after the last occasion on which the person performs a function associated with the appointment.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

cl 175: Am 2015 (61), Sch 1 [43].

Division 3 Managing risks—general diving work

176 Management of risks to health and safety

(1)  A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with general diving work, in accordance with Part 3.1.

Note—

WHS Act—section 19 (see clause 9).

(2)  A person conducting a business or undertaking must ensure that a risk assessment is conducted by a competent person for the purposes of subclause (1).

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  The person must ensure that a risk assessment conducted under subclause (2) is recorded in writing.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

177 Appointment of competent person to supervise diving work

A person conducting a business or undertaking at a workplace must appoint 1 or more competent persons to:

(a)  supervise general diving work carried out in the business or undertaking, and

(b)  perform other functions under this Division.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

See clause 174 for the qualifications of the competent person.

178 Additional control—dive plan

(1)  A person conducting a business or undertaking at a workplace must not direct or allow general diving work to be carried out unless a dive plan for the dive:

(a)  is prepared by a competent person appointed under clause 177, or

(b)  has been prepared by a competent person appointed under clause 177 on an earlier occasion for a similar dive.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A dive plan must state the following:

(a)  the method of carrying out the diving work to which it relates,

(b)  the tasks and duties of each person involved in the dive,

(c)  the diving equipment, breathing gases and procedures to be used in the dive,

(d)  as applicable, dive times, bottom times and decompression profiles,

(e)  hazards relating to the dive and measures to be implemented in the control of risks associated with those hazards,

(f)  emergency procedures.

179 Dive plan must be complied with

(1)  A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that general diving work is carried out in accordance with the dive plan prepared for it.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A person conducting a business or undertaking must ensure that a competent person appointed by the person under clause 177 gives workers instruction in relation to the dive plan before commencing the diving work to which the plan relates.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

180 Additional control—dive safety log to be kept

A person conducting a business or undertaking at a workplace where general diving work is carried out must keep a dive safety log that contains the following information about each dive carried out by a worker:

(a)  the name of the worker who carries out the dive,

(b)  the name of any other person with whom the dive is carried out,

(c)  the name of the competent person appointed under clause 177 to supervise the diving work,

(d)  the date and location of the dive,

(e)  the time each diver enters and leaves the water,

(f)  the maximum depth of the dive,

(g)  any incident, difficulty, discomfort or injury that occurs or is experienced during the dive,

(h)  if the dive was carried out using a dive computer—the dive time,

(i)  if the dive was carried out using dive tables—the repetitive dive group, if available, and either the bottom time or the dive time,

(j)  if the repetitive group and surface interval result in a repetitive factor—the surface interval and the repetitive factor,

(k)  if the dive is carried out using EANx:

(i)  the oxygen content of the EANx, and

(ii)  the maximum operating depth of the EANx,

(l)  if the dive is carried out using mixed gas:

(i)  the oxygen content and the nitrogen content (if any) of the gas, and

(ii)  the maximum operating depth of the mixed gas, and

(iii)  the minimum operating depth of the bottom mix.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

181 Use of dive safety log

(1)  This clause applies to a person conducting a business or undertaking at a workplace where general diving work is carried out.

(2)  The person conducting the business or undertaking must ensure that, after each dive carried out in connection with the general diving work is completed, the return of each diver is verified in the dive safety log, as soon as practicable after the return, by:

(a)  the diver, and

(b)  a competent person appointed under clause 177 to supervise the diving work.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  If workers are carrying out general diving work from a vessel, the person conducting the business or undertaking must ensure that a competent person appointed under clause 177 to supervise the diving work makes and verifies entries in the dive safety log of the number of workers and other persons on board the vessel:

(a)  before the diving work commences, and

(b)  before the vessel leaves the location after the diving work is completed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The person conducting the business or undertaking must ensure that the dive safety log is kept for at least 1 year after the last entry is made.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(5)  In this clause, an event is verified in the dive safety log:

(a)  by signing, or

(b)  if the log is electronic, by entering the verifier’s unique identifier.

182 Record keeping

(1)  This clause applies if a person conducting a business or undertaking prepares:

(a)  a risk assessment under clause 176, or

(b)  a dive plan under clause 178.

(2)  Subject to subclause (3), the person must keep:

(a)  a copy of the risk assessment until at least 28 days after the work to which it relates is completed, and

(b)  a copy of the dive plan until the work to which it relates is completed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  If a notifiable incident occurs in connection with the work to which the assessment or dive plan relates, the person must keep the assessment or dive plan (as applicable) for at least 2 years after the incident occurs.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The person must ensure that, for the period for which the assessment or dive plan must be kept under this clause, a copy is readily accessible to any worker engaged by the person to carry out the work to which the assessment or dive plan relates.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(5)  The person must ensure that, for the period for which the assessment or dive plan must be kept under this clause, a copy is available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Division 4 High risk diving work

183 Duties of person conducting business or undertaking

A person conducting a business or undertaking at a workplace where high risk diving work is carried out must ensure that the following are in accordance with AS/NZS 2299.1:2007 (Occupational diving operations—Standard operational practice):

(a)  the fitness of persons carrying out the work,

(b)  the competence of persons carrying out the work,

Note—

See section 44 of the Act.

(c)  the carrying out of the work.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

184 Duty of worker—competence

A person must not carry out high risk diving work unless the person has the qualifications, knowledge, skills and experience required by AS/NZS 2299.1:2007 (Occupational diving operations—Standard operational practice) for work of the kind to be carried out by the person.

Note—

See section 44 of the Act.

Chapter 5 Plant and structures

Part 5.1 General duties for plant and structures

Note—

If a jurisdiction enacts Schedule 1 of the Act, this Part will extend to plant outside the workplace as provided for in that Schedule.

Division 1 Preliminary

185 Application of Part 5.1 to plant

(1)  Subject to this clause, this Part applies to all plant.

(2)  Subject to subclause (3), this Part does not apply to plant that:

(a)  relies exclusively on manual power for its operation, and

(b)  is designed to be primarily supported by hand.

(3)  This Part applies to explosive power tools that are designed to be supported by hand.

186 Application of Part 5.1 to structures

This Part applies to structures as provided in this Part.

Division 2 Duties of persons conducting businesses or undertakings that design plant

187 Provision of information to manufacturer

A designer of plant must ensure, when the design of the plant is made available to the manufacturer of the plant, that the manufacturer is provided with:

(a)  information to enable the plant to be manufactured in accordance with the design specifications, and

(b)  if applicable, information about:

(i)  the installation, commissioning, decommissioning, use, handling, storage and, if the plant is capable of being dismantled, dismantling of the plant, and

(ii)  the hazards and risks associated with the use of the plant that the designer has identified, and

(iii)  testing or inspections to be carried out on the plant, and

(iv)  the systems of work and competency of operators that are necessary for the safe use of the plant, and

(v)  the emergency procedures (if any) that are required to be implemented if there is a malfunction of the plant.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Note—

A designer also has duties under section 22 of the Act.

188 Hazard identified in design during manufacture

If a manufacturer of plant informs the designer of the plant that there is a hazard in the design of plant for which the designer has not provided a control measure, the designer must:

(a)  revise the information originally supplied to the manufacturer to ensure that:

(i)  the risk is eliminated so far as is reasonably practicable, or

(ii)  if it is not reasonably practicable to eliminate the risk, the risk is minimised so far as is reasonably practicable, or

(b)  notify the manufacturer, in writing, that the designer is of the opinion that it is not necessary to revise the information originally supplied to the manufacturer to ensure compliance with this Part.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Note—

A designer also has duties under section 22 of the Act.

189 Guarding

(1)  This clause applies if a designer of plant uses guarding as a control measure.

(2)  The designer must ensure, so far as is reasonably practicable, that the guarding designed for that purpose will prevent access to the danger point or danger area of the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The designer must ensure that:

(a)  if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant—the guarding is a permanently fixed physical barrier, or

(b)  if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant—the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or

(c)  if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b)—the guarding used is a physical barrier that can only be altered or removed by the use of tools, or

(d)  if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c)—the design includes a presence-sensing safeguarding system that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  The designer must ensure that the guarding is designed:

(a)  to be of solid construction and securely mounted so as to resist impact or shock, and

(b)  to make bypassing or disabling of the guarding, whether deliberately or by accident, as difficult as is reasonably practicable, and

(c)  so as not to cause a risk in itself.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  If the plant to be guarded contains moving parts and those parts may break or cause workpieces to be ejected from the plant, the designer must ensure, so far as is reasonably practicable, that the guarding will control any risk from those broken or ejected parts and workpieces.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(6)  Despite anything to the contrary in this clause, the designer must ensure:

(a)  that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and

(b)  if the guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

190 Operational controls

(1)  A designer of plant must ensure that the design provides for any operator’s controls for the plant to be:

(a)  identified on the plant so as to indicate their nature and function and direction of operation, and

(b)  located so as to be readily and conveniently operated by each person using the plant, and

(c)  located or guarded to prevent unintentional activation, and

(d)  able to be locked into the “off” position to enable the disconnection of all motive power.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If the need for plant to be operated during maintenance or cleaning cannot be eliminated, the designer of the plant must ensure that the design provides for operator’s controls that:

(a)  permit operation of the plant while a person is undertaking the maintenance or cleaning of the plant, and

(b)  while the plant is being maintained or cleaned, cannot be operated by any person other than the person who is carrying out the maintenance or cleaning of the plant, and

(c)  will allow operation of the plant in such a way that any risk associated with the activities in relation to any person who is carrying out the maintenance or cleaning:

(i)  is eliminated so far as is reasonably practicable, or

(ii)  if it is not reasonably practicable to eliminate the risk, is minimised so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

191 Emergency stop controls

(1)  If plant is designed to be operated or attended by more than 1 person and more than 1 emergency stop control is fitted, the designer of the plant must ensure that the design provides for the multiple emergency stop controls to be of the “stop and lock-off” type so that the plant cannot be restarted after an emergency stop control has been used unless that emergency stop control is reset.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If the design of the plant includes an emergency stop control for the plant, the designer of the plant must ensure that the design provides:

(a)  for the stop control to be prominent, clearly and durably marked and immediately accessible to each operator of the plant, and

(b)  for any handle, bar or push button associated with the stop control to be coloured red, and

(c)  that the stop control cannot be adversely affected by electrical or electronic circuit malfunction.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

192 Warning devices

(1)  This clause applies if the design of plant includes an emergency warning device or it is necessary to include an emergency warning device to minimise risk.

(2)  The designer of the plant must ensure that the design provides for the device to be positioned on the plant to ensure the device will work to best effect.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Division 3 Duties of persons conducting businesses or undertakings that manufacture plant

193 Control of risk

(1)  A manufacturer of plant must ensure the following:

(a)  that the plant is manufactured and inspected having regard to the information provided to the manufacturer by the designer of the plant under the Act and this Regulation,

(b)  if the information provided to the manufacturer by the designer of the plant under the Act and this Regulation requires the plant to be tested—that the plant is tested in accordance with that information,

(c)  if, during the manufacturing process, any hazard is identified in the design of the plant for which the designer has not provided a control measure:

(i)  that the hazard is not incorporated into the manufacture of the plant, and

(ii)  that the designer of the plant is given written notice of the hazard as soon as practicable, and

(iii)  that all reasonable steps are taken to consult with the designer of the plant in relation to the alteration of the design to rectify the hazard.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A manufacturer of plant must ensure that, if it is not possible to inform the designer about the hazard in accordance with subclause (1):

(a)  the risk is eliminated, so far as is reasonably practicable, or

(b)  if it is not reasonably practicable to eliminate the risk, the risk is minimised so far as is reasonably practicable.

Note—

WHS Act—section 23 (see clause 9).

(3)  A manufacturer to whom subclause (1) (c) applies must not manufacture the plant until:

(a)  the designer gives the manufacturer the revised information or written instruction under clause 188, or

(b)  the manufacturer eliminates or minimises the risk under subclause (2).

Note—

WHS Act—section 23 (see clause 9).

(4)  If the designer notifies a manufacturer of plant under clause 188, the manufacturer may proceed in accordance with the designer’s original information.

194 Guarding

(1)  A manufacturer of plant must ensure that guarding used as a control measure is of solid construction and securely mounted so as to resist impact or shock.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A manufacturer of plant must ensure:

(a)  that any guarding used as a control measure in relation to plant is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and

(b)  if the guarding is removed—that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

195 Information must be obtained and provided

A manufacturer of plant must:

(a)  take all reasonable steps to obtain the information required to be provided to the manufacturer by the designer of the plant under section 22 (4) (a) and (c) of the Act and clauses 187 and 188, and

(b)  ensure that a person to whom the manufacturer supplies the plant is, at the time of supply, provided with the information provided to the manufacturer by the designer under section 22 (4) (a) and (c) of the Act and clause 187, and

(c)  if the manufacturer acts in accordance with clause 193 (1) (c), ensure that a person to whom the manufacturer supplies the plant is provided with the information, applicable to the plant, that is required to be provided by the designer under sections 22 (4) (a) and (c) of the Act and clause 188.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Division 4 Duties of persons conducting businesses or undertakings that import plant

196 Information to be obtained and provided by importer

An importer of plant must:

(a)  take all reasonable steps to obtain:

(i)  the information that would be required to be provided by a manufacturer under section 23 (4) (a) and (c) of the Act, and

(ii)  the information that would be required to be provided by the designer of the plant to the manufacturer under clauses 187 and 188, and

(b)  give that information to any person to whom the importer supplies the plant.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

197 Control of risk

An importer of plant must:

(a)  ensure that the plant is inspected having regard to the information provided by the manufacturer, and

(b)  if the information provided by the manufacturer requires the plant to be tested—ensure that the plant is tested in accordance with that information, and

(c)  if any hazards are identified:

(i)  ensure that the plant is not supplied until the risks have been eliminated so far as is reasonably practicable, and

(ii)  if it is not reasonably practicable to eliminate the risks, inform the person to whom the plant is supplied about the risks, and

(d)  take all reasonable steps to ensure that the designer and manufacturer of the plant are consulted in relation to any alteration made to the plant to control the risk.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Division 5 Duties of persons conducting businesses or undertakings that supply plant

198 Information to be obtained and provided by supplier

A supplier of plant must:

(a)  take all reasonable steps to obtain the information required to be provided by the manufacturer under section 23 (4) (a) and (c) of the Act and this Regulation, and

(b)  ensure that, when the plant is supplied, the person to whom the plant is supplied is given the information obtained by the supplier under paragraph (a).

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

199 Supply of second-hand plant—duties of supplier

(1)  A supplier of second-hand plant must ensure, so far as is reasonably practicable, that any faults in the plant are identified.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A supplier of second-hand plant must ensure that the person to whom the plant is supplied is, before the plant is supplied, given written notice:

(a)  of the condition of the plant, and

(b)  of any faults identified under subclause (1), and

(c)  if appropriate, that the plant should not be used until the faults are rectified.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  This clause does not apply to plant to be used for scrap or spare parts.

200 Second-hand plant to be used for scrap or spare parts

A supplier of plant to be used for scrap or spare parts must, before the plant is supplied, inform the person to whom the plant is supplied, either in writing or by marking the plant, that the plant is being supplied for scrap or spare parts and that the plant in its current form is not to be used as plant.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Division 6 Duties of persons conducting businesses or undertakings that install, construct or commission plant or structures

201 Duties of persons conducting businesses or undertakings that install, construct or commission plant

(1)  This clause applies to a person who conducts a business or undertaking that installs, constructs or commissions plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2)  The person must ensure that the plant is installed, constructed or commissioned having regard to:

(a)  the information provided by the designer, manufacturer, importer or supplier of the plant under the Act and this Regulation, or

(b)  the instructions provided by a competent person to the extent that those instructions relate to health and safety.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

202 Duties of persons conducting businesses or undertakings that install, construct or commission structures

(1)  This clause applies to a person who conducts a business or undertaking that installs, constructs or commissions a structure that is to be used, or could reasonably be expected to be used, as or at, a workplace.

(2)  The person must ensure that the structure is installed, constructed or commissioned having regard to:

(a)  the information provided by the designer, manufacturer, importer or supplier of the structure under the Act and this Regulation, or

(b)  the instructions provided by a competent person to the extent that those instructions relate to health and safety.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Division 7 General duties of a person conducting a business or undertaking involving the management or control of plant

Note—

A person with management or control of plant at a workplace is the person conducting a business or undertaking at the workplace to the extent that the business or undertaking involves the management or control of plant in whole or in part at the workplace. See the definition of person with management or control of plant at a workplace in clause 5 (1) and section 21 of the Act.

Subdivision 1 Management of risks

203 Management of risks to health and safety

A person with management or control of plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1.

Note—

WHS Act—section 21 (see clause 9).

Subdivision 2 Additional control measures for general plant

204 Control of risks arising from installation or commissioning

(1)  A person with management or control of plant at a workplace must not commission the plant unless the person has established that the plant is, so far as is reasonably practicable, without risks to the health and safety of any person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A person with management or control of plant at a workplace must not decommission or dismantle the plant unless the decommissioning or dismantling can be carried out, so far as is reasonably practicable, without risks to the health and safety of any person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  A person with management or control of plant at a workplace must ensure that a person who installs, assembles, constructs, commissions or decommissions or dismantles the plant is a competent person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  A person with management or control of plant at a workplace must ensure that a person who installs, assembles, constructs, commissions or decommissions or dismantles the plant is provided with the available information for eliminating or minimising risks to health or safety.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  A person with management or control of plant at a workplace must ensure that the processes for the installation, construction, commissioning, decommissioning and dismantling of plant include inspections that ensure, so far as is reasonably practicable, that risks associated with these activities are monitored.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

205 Preventing unauthorised alterations to or interference with plant

The person with management or control of plant at a workplace must, so far as is reasonably practicable, prevent alterations to or interference with the plant that are not authorised by the person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

206 Proper use of plant and controls

(1)  The person with management or control of plant at a workplace must take all reasonable steps to ensure that plant is used only for the purpose for which it was designed, unless the person has determined that the proposed use does not increase the risk to health or safety.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  In determining whether or not a proposed use of plant increases the risk to health or safety, the person with management or control of the plant must ensure that the risk associated with the proposed use is assessed by a competent person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person with management or control of plant at a workplace must take all reasonable steps to ensure that all health and safety features and warning devices (including guarding, operational controls, emergency stops and warning devices) are used in accordance with the instructions and information provided by that person under clause 39.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

207 Plant not in use

The person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that plant that is not in use is left in a state that does not create a risk to the health or safety of any person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

208 Guarding

(1)  This clause applies if guarding is used as a control measure in relation to plant at a workplace.

(2)  The person with management or control of the plant must ensure that:

(a)  if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier, or

(b)  if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or

(c)  if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools, or

(d)  if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c), the guarding includes a presence-sensing safeguarding system that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person with management or control of the plant must ensure that the guarding:

(a)  is of solid construction and securely mounted so as to resist impact or shock, and

(b)  makes bypassing or disabling of the guarding, whether deliberately or by accident, as difficult as is reasonably practicable, and

(c)  does not create a risk in itself, and

(d)  is properly maintained.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  If the plant to be guarded contains moving parts that may break or cause workpieces to be ejected from the plant, the person with management or control of the plant must ensure, so far as is reasonably practicable, that the guarding will control any risk from those broken or ejected parts and workpieces.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  Despite anything to the contrary in this clause, the person with management or control of the plant must ensure:

(a)  that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and

(b)  if guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

209 Guarding and insulation from heat and cold

The person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that any pipe or other part of the plant associated with heat or cold is guarded or insulated so that the plant is without risks to the health and safety of any person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

210 Operational controls

(1)  The person with management or control of plant at a workplace must ensure that any operator’s controls are:

(a)  identified on the plant so as to indicate their nature and function and direction of operation, and

(b)  located so as to be readily and conveniently operated by each person using the plant, and

(c)  located or guarded to prevent unintentional activation, and

(d)  able to be locked into the “off” position to enable the disconnection of all motive power.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If the need for plant to be operated during maintenance or cleaning cannot be eliminated, the person with management or control of the plant at a workplace must ensure that the operator’s controls:

(a)  permit operation of the plant while a person is undertaking the maintenance or cleaning of the plant, and

(b)  while the plant is being maintained or cleaned, either:

(i)  cannot be operated by any person other than the person who is carrying out the maintenance or cleaning of the plant, or

(ii)  if subparagraph (i) cannot be complied with because the plant must be operated by a person other than the person who is carrying out the maintenance or cleaning of the plant, cannot be operated except by a person authorised by the person with management or control of the plant for that purpose, and

(c)  will allow operation of the plant in such a way that any risk associated with the activities in relation to any person who is carrying out the maintenance or cleaning:

(i)  is eliminated so far as is reasonably practicable, or

(ii)  if it is not reasonably practicable to eliminate the risk, is minimised so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

211 Emergency stops

(1)  If plant at a workplace is designed to be operated or attended by more than 1 person and more than 1 emergency stop control is fitted, the person with management or control of plant at the workplace must ensure that the multiple emergency stop controls are of the “stop and lock off” type so that the plant cannot be restarted after an emergency stop control has been used unless that emergency stop control is reset.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If the design of plant at a workplace includes an emergency stop control, the person with management or control of the plant at the workplace must ensure that:

(a)  the stop control is prominent, clearly and durably marked and immediately accessible to each operator of the plant, and

(b)  any handle, bar or push button associated with the stop control is coloured red, and

(c)  the stop control cannot be adversely affected by electrical or electronic circuit malfunction.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

212 Warning devices

(1)  This clause applies if the design of plant includes an emergency warning device or it is necessary to include an emergency warning device to minimise risk.

(2)  The person with management or control of the plant must ensure that the device is positioned on the plant to ensure that the device will work to best effect.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

213 Maintenance and inspection of plant

(1)  The person with management or control of plant at a workplace must ensure that the maintenance, inspection and, if necessary, testing of the plant is carried out by a competent person.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  The maintenance, inspection and testing must be carried out:

(a)  in accordance with the manufacturer’s recommendations, if any, or

(b)  if there are no manufacturer’s recommendations, in accordance with the recommendations of a competent person, or

(c)  in relation to inspection, if it is not reasonably practicable to comply with paragraph (a) or (b), annually.

Subdivision 3 Additional control measures for certain plant

Note—

The person with management or control of plant at a workplace is the person conducting a business or undertaking at a workplace to the extent that the business or undertaking involves the management or control of plant in whole or in part at the workplace. See the definition of person with management or control of plant at a workplace in clause 5 (1) and section 21 of the Act.

214 Powered mobile plant—general control of risk

The person with management or control of powered mobile plant at a workplace must in accordance with Part 3.1, manage risks to health and safety associated with the following:

(a)  the plant overturning,

(b)  things falling on the operator of the plant,

(c)  the operator being ejected from the plant,

(d)  the plant colliding with any person or thing,

(e)  mechanical failure of pressurised elements of plant that may release fluids that pose a risk to health and safety.

Note—

WHS Act—section 21 (see clause 9).

215 Powered mobile plant—specific control measures

(1)  This clause applies to a person with management or control of powered mobile plant at a workplace.

(2)  The person must ensure, so far as is reasonably practicable, that a suitable combination of operator protective devices for the plant is provided, maintained and used.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person must ensure, so far as is reasonably practicable, that no person other than the operator rides on the plant unless the person is provided with a level of protection that is equivalent to that provided to the operator.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  The person must ensure that the plant does not collide with pedestrians or other powered mobile plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  Without limiting subclause (4), if there is a possibility of the plant colliding with pedestrians or other powered mobile plant, the person must ensure that the plant has a warning device that will warn persons who may be at risk from the movement of the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

cl 215: Am 2015 (61), Sch 1 [44].

216 Roll-over protection on tractors

(1)  The person with management or control of a tractor at a workplace must ensure that the tractor is not used unless it is securely fitted with a roll-over protective structure.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If a tractor is used in a place that is too low for the tractor to work while it is fitted with a roll-over protective structure, the structure may be lowered or removed for the period during which the tractor is used in such a situation (but only if other measures to minimise the risk of roll-over are in place).

(3)  This clause does not apply if the tractor is:

(a)  installed in a fixed position, and in a manner which would no longer permit it to be used as powered mobile plant, or

(b)  a tractor with a mass of less than 560 kilograms or a mass of 15,000 kilograms or more, or

(c)  being used for a historical purpose or activity.

(4)  In this clause:

historical purpose or activity, in relation to the use of a tractor, includes an activity ancillary to a historical activity.

Examples—

1 Historical activity : a historical display, parade, demonstration or re-enactment.

2 Activity ancillary to a historical activity : restoring, maintaining, modifying or housing a tractor used, or to be used, for a historical activity.

roll-over protective structure means a structure designed to protect a tractor operator from injury if the tractor rolls over in any direction.

Note—

Clauses 214 and 215 also apply to a tractor.

217 (Repealed)

cl 217: Am 2015 (61), Sch 1 [45].

218 Industrial lift trucks

(1)  The person with management or control of an industrial lift truck at a workplace must ensure that the truck is:

(a)  equipped with lifting attachments that are suitable for the load to be lifted or moved by the truck, and

(b)  operated in a manner that ensures that the risks to the operator of the truck and other persons at or near the workplace that arise from systems of work and the environment in which the truck is used:

(i)  are eliminated so far as is reasonably practicable, or

(ii)  if it is not reasonably practicable to eliminate the risks, are minimised so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The person with management or control of an industrial lift truck at a workplace must ensure that the truck is not used to carry a passenger unless:

(a)  the truck is designed to carry a seated passenger, and

(b)  the passenger seat is:

(i)  fitted with suitable seat restraints, and

(ii)  located within the zone of protection that is provided by the operator protective device required to be fitted to the industrial lift truck.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person with management or control of an industrial lift truck at a workplace must take all reasonable steps to ensure that a passenger in an industrial lift truck is seated in a seat that complies with subclause (2) (b).

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

Clauses 214 and 215 also apply to an industrial lift truck.

219 Plant that lifts or suspends loads

(1)  This clause applies in relation to plant that is used to lift or suspend persons or things.

(2)  The person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that the plant used is specifically designed to lift or suspend the load.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  If it is not reasonably practicable to use plant that is specifically designed to lift or suspend the load, the person must ensure that:

(a)  the plant does not cause a greater risk to health and safety than if specifically designed plant were used, and

(b)  if the plant is lifting or suspending persons, the use of the plant complies with clause 220.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  The person must ensure that the lifting and suspending is carried out:

(a)  with lifting attachments that are suitable for the load being lifted or suspended, and

(b)  within the safe working limits of the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  The person must ensure, so far as is reasonably practicable, that no loads are suspended or travel over a person unless the plant is specifically designed for that purpose.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(6)  The person must ensure, so far as is reasonably practicable, that loads are lifted or suspended in a way that ensures that the load remains under control during the activity.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(7)  The person must ensure, so far as is reasonably practicable, that no load is lifted simultaneously by more than 1 item of plant unless the method of lifting ensures that the load placed on each item of plant does not exceed the design capacity of the plant.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

220 Exception—plant not specifically designed to lift or suspend a person

(1)  For the purposes of clause 219 (3) (b), the person with management or control of the plant at a workplace must ensure that:

(a)  the persons are lifted or suspended in a work box that is securely attached to the plant, and

(b)  the persons in the work box remain substantially within the work box while they are being lifted or suspended, and

(c)  if there is a risk of a person falling from a height, a safety harness is provided and worn by the person in order to prevent, so far as is reasonably practicable, injury to the person as a result of the fall, and

(d)  means are provided by which the persons being lifted or suspended can safely exit from the plant in the event of a failure in its normal operation.

(2)  This clause does not apply to plant used in connection with:

(a)  the performance of stunt work, or

(b)  the performance of acrobatics, or

(c)  theatrical performances.

Note—

Part 4.4 (except clause 79) applies to the matters in subclause (2).

221 Plant used in connection with tree lopping

(1)  Clause 220 (1) (a) and (b) do not apply in connection with tree lopping if:

(a)  a risk assessment shows that lifting or suspending a person in a harness with a crane to place the person in a tree to carry out tree lopping does not create a greater risk to health or safety than using plant specifically designed to lift a person or climbing a tree, and

(b)  the tree lopping is carried out by a person who is a competent person in the use of the harness referred to in paragraph (a), and

(c)  a crane is used to put the competent person in the tree to lop it, and

(d)  the crane has safety mechanisms that would prevent the competent person from inadvertently falling, and

(e)  while attached to the crane, the competent person is in visual, audio or radio communication with the crane operator.

(2)  In this clause, harness means a work positioning harness that is designed and certified, in accordance with AS/NZS 1891.1:2007 (Industrial fall-arrest systems—Harnesses and ancillary equipment), for the purpose of lifting and suspending a person.

222 Industrial robots

(1)  This clause applies to a person with management or control of an industrial robot or other remotely or automatically energised plant at a workplace.

(2)  The person must not direct or allow a worker to work in the immediate vicinity of the plant if it could start without warning and cause a hazard, unless suitable control measures are in place to control the risks to health and safety.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  If the remote or automatic energising of the plant could lead to risks to health and safety, the person must ensure that access to the area in the immediate vicinity of the plant is controlled at all times:

(a)  by isolating the area, or

(b)  by:

(i)  providing interlocked guards, or

(ii)  if a risk remains, providing presence-sensing devices, or

(iii)  if a risk then remains, providing permit to work systems.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

223 Lasers

(1)  This clause applies to the person with management or control, at a workplace, of laser equipment that may create a risk to health and safety.

(2)  The person must ensure that laser equipment intended for use on plant is designed, constructed and installed so as to prevent accidental irradiation of any person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person must ensure that laser equipment on plant is protected so that any operator of the plant or other person is not exposed to direct radiation, radiation produced by reflection or diffusion or secondary radiation.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  The person must ensure that the visual equipment used for the observation or adjustment of laser equipment on plant does not create a risk to health or safety from laser rays.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  The person must ensure that the workers operating the laser equipment are trained in the proper operation of the equipment.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(6)  The person must ensure that Class 3B and Class 4 lasers (within the meaning of AS 2397:1993—Safe use of lasers in the building and construction industry) are not used in construction work.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

224 Pressure equipment

(1)  The person with management or control of pressure equipment at a workplace must ensure that:

(a)  the equipment is inspected on a regular basis by a competent person, and

(b)  any gas cylinder that is inspected is marked with a current inspection mark showing the date of the most recent inspection.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  The person with management or control of gas cylinders at a workplace that is a gas cylinder filling station must ensure that:

(a)  a gas cylinder is not filled with gas unless it bears a current inspection mark, and

(b)  a gas cylinder is only filled with gas for which that cylinder is designed.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

225 Scaffolds

(1)  This clause applies in relation to:

(a)  a suspended scaffold, and

(b)  a cantilevered scaffold, and

(c)  a spur scaffold, and

(d)  a hung scaffold, and

(e)  any other scaffold from which a person or thing could fall more than 4 metres.

(2)  The person with management or control of a scaffold at a workplace must ensure that the scaffold is not used unless the person receives written confirmation from a competent person, who has inspected the scaffold, that construction of the scaffold has been completed.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  The person with management or control of a scaffold at a workplace must ensure that the scaffold and its supporting structure are inspected by a competent person:

(a)  before use of the scaffold is resumed after an incident occurs that may reasonably be expected to affect the stability of the scaffold, and

(b)  before use of the scaffold is resumed after repairs, and

(c)  at least every 30 days.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  If an inspection indicates that a scaffold at a workplace or its supporting structure creates a risk to health or safety, the person with management or control of the scaffold must ensure that:

(a)  any necessary repairs, alterations and additions are made or carried out, and

(b)  the scaffold and its supporting structure are inspected again by a competent person before use of the scaffold is resumed.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  The person with management or control of a scaffold at a workplace must ensure that unauthorised access to the scaffold is prevented while the scaffold is incomplete or unattended.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Example—

Danger tags and other warning signs.

226 Plant with presence-sensing safeguarding system—records

(1)  The person with management or control of plant with a presence-sensing safeguarding system at a workplace must keep a record of safety integrity tests, inspections, maintenance, commissioning, decommissioning, dismantling and alterations of the plant for the period set out in subclause (2).

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  The record must be kept for:

(a)  5 years unless paragraph (b) applies, or

(b)  the life of the plant or until the person relinquishes control of the plant if the plant is registered plant or has been altered.

(3)  The person must keep the record available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The person must make the record available to any person to whom the person relinquishes control of the plant.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Part 5.2 Additional duties relating to registered plant and plant designs

Notes—

1 The person with management or control of plant at a workplace is the person conducting a business or undertaking at a workplace to the extent that the business or undertaking involves the management or control of plant in whole or in part at the workplace. See the definition of person with management or control of plant at a workplace in clause 5 (1) and section 21 of the Act.

2 This Part applies in addition to Part 5.1.

3 In this Part, plant includes a structure (see definition of plant in clause 5 (1)).

Division 1 Application of Part 5.2

227 Application of Part 5.2

This Part applies to:

(a)  plant that is required to be registered under Part 5.3, or

(b)  plant the design of which is required to be registered under Part 5.3.

Division 2 Duty of person conducting a business or undertaking who designs plant to record plant design

228 Records and information

If the design of plant is required to be registered under Part 5.3, the designer of that plant must make a record that contains:

(a)  the method used to determine the control measures for the plant and the control measures that result from that determination, and

(b)  a copy of the information provided to a manufacturer under section 22 of the Act in relation to that plant, and

(c)  a copy of the information provided to a manufacturer under clause 187 in relation to that plant, and

(d)  if applicable, a copy of the information provided to a manufacturer under clause 188 in relation to that plant.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

229 Record of standards or engineering principles used

(1)  If the design of plant is required to be registered under Part 5.3, the designer of the plant must record any published technical standard, including any part of a published technical standard, that was used to design the plant.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  If the designer of the plant has not used published technical standards to design the plant, the designer must record any engineering principles used to design the plant.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

230 Records to be available for inspection

(1)  A designer of plant must ensure that the records made under clauses 228 and 229 are kept available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  A designer of plant must ensure that the records made under clauses 228 and 229 are made available for inspection by the design verifier of the plant design.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  A designer of plant must keep the records made under clauses 228 and 229 for the design life of the plant.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Division 3 Duties of a person conducting a business or undertaking

231 Duty of persons conducting businesses or undertakings that manufacture plant

A manufacturer must not supply plant specified in Part 1 of Schedule 5 unless the design of that plant is registered under Part 5.3.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

232 Duty of persons conducting businesses or undertakings that import plant

An importer must not supply plant specified in Part 1 of Schedule 5 unless the design of that plant is registered under Part 5.3.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

233 Duty of persons conducting businesses or undertakings that supply plant

A supplier must not supply plant specified in Part 1 of Schedule 5 unless the design of that plant is registered under Part 5.3.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

234 Duty of persons conducting businesses or undertakings that commission plant

(1)  This clause applies to a person who conducts a business or undertaking that commissions plant.

(2)  The person must not commission an item of plant that is specified in Part 2 of Schedule 5 for use in a workplace unless that item of plant is registered under Part 5.3.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  Nothing in subclause (2) prevents a person from performing any necessary adjustments, tests or inspections as part of the commissioning process before the plant is commissioned at a workplace.

Division 4 Duties of a person conducting a business or undertaking involving the management or control of plant

Subdivision 1 Control measures for registered plant

235 Major inspection of registered mobile cranes and tower cranes

(1)  This clause applies to the person with management or control of a registered mobile crane or tower crane at a workplace.

(2)  The person must ensure that a major inspection of the crane is carried out by, or under the supervision of, a competent person:

(a)  at the end of the design life recommended by the manufacturer for the crane, or

(b)  if there are no manufacturer’s recommendations—in accordance with the recommendations of a competent person, or

(c)  if it is not reasonably practicable to comply with paragraph (a) or (b)—every 10 years from the date that the crane was first commissioned or first registered, whichever occurred first.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  A major inspection carried out under and in accordance with an equivalent provision of a corresponding WHS law is taken to be a major inspection for the purposes of this clause.

(4)  In this clause, a competent person is a person who:

(a)  complies with both of the following:

(i)  has acquired through training, qualification or experience the knowledge and skills to carry out a major inspection of the plant, and

(ii)  is:

(A)  registered under a law that provides for the registration of professional engineers, or

(B)  a member (or is qualified to be a member) of Engineers Australia with the status of Chartered Professional Engineer, or

(C)  entered on the National Professional Engineers Register administered by the Institution of Engineers Australia.

(b)  is determined by the regulator to be a competent person.

(5)  The regulator may, on the application of a person, make a determination in relation to the person for the purposes of subclause (4) (b) if the regulator considers that exceptional circumstances exist.

(6)  In this clause, major inspection means:

(a)  an examination of all critical components of the crane, if necessary by stripping down the crane and removing paint, grease and corrosion to allow a thorough examination of each critical component, and

(b)  a check of the effective and safe operation of the crane.

cl 235: Am 2015 (61), Sch 1 [46]–[48].

236 Lifts

(1)  The person with management or control of a lift at a workplace (including a person with management or control of maintenance of a lift) must ensure that:

(a)  if there is a risk of a person falling down a lift well:

(i)  secure barriers are provided to prevent access to openings into the lift well by someone other than a person who is performing work in the lift well, and

(ii)  secure working platforms or equivalent arrangements are provided for a person who is working in the lift well to prevent a fall from height, and

(b)  if there is a risk to a person working in a lift well from objects falling onto that person—a secure barrier is provided to prevent, so far as is reasonably practicable, falling objects from striking the person or otherwise causing a risk.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  The person must ensure that there is a safe means of entry to and exit from the base of the lift well.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  The person must ensure that there is fixed, in a prominent place in the lift, a sign that states the safe working load specified in the design of the lift.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

237 Records of plant

(1)  This clause applies in relation to plant that is required to be registered under Part 5.3.

(2)  The person with management or control of the plant at a workplace must keep a record of all tests, inspections, maintenance, commissioning, decommissioning, dismantling and alterations of the plant for the period set out in subclause (3).

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  The record must be kept for the period that the plant is used or until the person relinquishes control of the plant.

(4)  The person must keep the record available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(5)  The person must make the record available to any person to whom the person relinquishes control of the plant.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Subdivision 2 Control measures for amusement devices and passenger ropeways

ch 5, pt 5.2, div 4, sdiv 2 (cll 238–242): Subst 2015 (61), Sch 1 [49].

238 Operation of amusement devices and passenger ropeways

(1)  The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that the device or ropeway is operated only by a person who has been provided with instruction and training in its proper operation.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that:

(a)  the amusement device or passenger ropeway is checked before it is operated on each day on which it is to be operated, and

(b)  the amusement device or passenger ropeway is operated without passengers before it is operated with passengers on each day on which it is to be operated, and

(c)  the daily checks and operation of the amusement device or passenger ropeway without passengers are properly and accurately recorded in a log book for the device or ropeway.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

ch 5, pt 5.2, div 4, sdiv 2 (cll 238–242): Subst 2015 (61), Sch 1 [49].

239 Storage of amusement devices and passenger ropeways

(1)  The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that the device or ropeway is stored so as to be without risk to health and safety.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that a person who stores the device or ropeway is a competent person or is under the supervision of a competent person.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

ch 5, pt 5.2, div 4, sdiv 2 (cll 238–242): Subst 2015 (61), Sch 1 [49].

240 Maintenance, inspection and testing of amusement devices and passenger ropeways

(1)  The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that the maintenance, inspection and, if necessary, testing of the device or ropeway is carried out:

(a)  by a competent person, and

(b)  in accordance with:

(i)  the recommendations of the designer or manufacturer or designer and manufacturer, or

(ii)  if a maintenance manual for the device or ropeway has been prepared by a competent person, the requirements of the maintenance manual.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A person is not a competent person to carry out a detailed inspection of an amusement device or passenger ropeway that includes an electrical installation unless the person is qualified, or is assisted by a person who is qualified, to inspect electrical installations.

ch 5, pt 5.2, div 4, sdiv 2 (cll 238–242): Subst 2015 (61), Sch 1 [49].

241 Annual inspection of amusement devices and passenger ropeways

(1)  The person with management or control of an amusement device or passenger ropeway at a workplace must ensure that a detailed inspection of the device or ropeway is carried out at least once every 12 months by a competent person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  An annual inspection must include the following:

(a)  a check of information about the operational history of the amusement device or passenger ropeway since the last detailed inspection,

(b)  a check of the log book for the amusement device or passenger ropeway,

(c)  a check that maintenance and inspections of the amusement device or passenger ropeway have been undertaken under clause 240,

(d)  a check that any required tests have been carried out, and that appropriate records have been maintained,

(e)  a detailed inspection of the amusement device or passenger ropeway to ensure compliance with the Act and this Regulation (including a specific inspection of the critical components of the amusement device or passenger ropeway).

(3)  The regulator may extend the date for an inspection by up to 35 days if an inspection is scheduled to coincide with the same event each year.

(4)  If the date is extended under subclause (3), the new date is the date from which future annual inspections of the amusement device or passenger ropeway are determined.

(5)  In this clause, a competent person is a person who:

(a)  in the case of an inflatable device (continuously blown) with a platform height less than 9 metres—has acquired through training, qualification or experience the knowledge and skills to inspect the device, or

(b)  in the case of any other amusement device or a passenger ropeway:

(i)  has acquired through training, qualification or experience the knowledge and skills to inspect the plant, and

(ii)  is:

(A)  registered under a law that provides for the registration of professional engineers, or

(B)  a member (or is qualified to be a member) of Engineers Australia with the status of Chartered Professional Engineer, or

(C)  entered on the National Professional Engineers Register administered by the Institution of Engineers Australia, or

(c)  in the case of any amusement device or passenger ropeway—is determined by the regulator to be a competent person.

(6)  The regulator may, on the application of a person, make a determination in relation to the person for the purposes of subclause (5) (c) if the regulator considers that exceptional circumstances exist.

(7)  An annual inspection carried out under and in accordance with an equivalent provision of a corresponding WHS law is taken to be an annual inspection for the purposes of this clause.

ch 5, pt 5.2, div 4, sdiv 2 (cll 238–242): Subst 2015 (61), Sch 1 [49].

242 Log book and manuals for amusement devices

(1)  The person with management or control of an amusement device at a workplace, in addition to complying with the record-keeping requirements of clause 237, must ensure that:

(a)  details of the erection or storage of the amusement device (including the date of erection) are recorded in the log book for the amusement device on each occasion on which it is erected or stored, and

(b)  the log book and operating and maintenance manuals for the amusement device are kept with the amusement device.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  The person with management or control of an amusement device at a workplace must ensure that persons involved in the commissioning, installation, use, storage and testing, and the decommissioning, dismantling and disposal, of an amusement device are given:

(a)  the log book for the amusement device in which details concerning erection, storage, operation and maintenance of the amusement device are recorded, and

(b)  the operating and maintenance manuals for the amusement device.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Note—

Clause 237 (5) requires the person with management or control of the amusement device to give the log book and maintenance records to the person being supplied with the plant.

ch 5, pt 5.2, div 4, sdiv 2 (cll 238–242): Subst 2015 (61), Sch 1 [49].

Part 5.3 Registration of plant designs and items of plant

Note—

In this Part, plant includes a structure (see definition of plant in clause 5 (1)).

Division 1 Plant designs to be registered

243 Plant design to be registered

The design of an item of plant specified in Part 1 of Schedule 5 must be registered under this Part.

Note—

See section 42 of the Act.

244 Altered plant designs to be registered

(1)  If the design of an item of plant specified in Part 1 of Schedule 5 that is registered under this Part is altered, the altered design must be registered under this Part.

Note—

See section 42 of the Act.

(2)  In this clause a reference to the alteration of a design is a reference to an alteration that may affect health or safety.

(3)  This clause does not apply in relation to a tower crane or a gantry crane if:

(a)  the crane is relocated for use in a different workplace, and

(b)  the design of the supporting structure or foundations of the crane is altered in accordance with a site-specific design prepared for the purpose of the safe operation of the crane at the new location, and

(c)  the design of the crane is not altered in any other way.

cl 244: Am 2015 (61), Sch 1 [50].

245 Recognition of designs registered by corresponding regulator

(1)  A design of an item of plant is not required to be registered under this Part if the design is registered under a corresponding WHS law.

(2)  A design referred to in subclause (1) that is altered is not required to be registered under this Part if the altered design is registered by the corresponding regulator that registered the original design.

Division 2 Items of plant to be registered

246 Items of plant to be registered

(1)  An item of plant specified in Part 2 of Schedule 5 must be registered under this Part.

Note—

See section 42 of the Act.

(2)  The purpose of registering an item of plant is to ensure that it is inspected by a competent person and is safe to operate.

247 Recognition of plant registered by corresponding regulator

An item of plant is not required to be registered under this Part if the plant is registered under a corresponding WHS law.

Division 3 Registration process for plant designs

248 Application of Division 3

This Division applies to the registration of a design of an item of plant specified in Part 1 of Schedule 5.

249 Who can apply to register a plant design

(1)  A person conducting a business or undertaking that designs an item of plant may apply to the regulator for the registration of the design of that item of plant.

(2)  A person with management or control of an item of plant may apply to the regulator for the registration of the design of that item of plant.

250 Application for registration

(1)  An application for registration of the design of an item of plant must be made in the manner and form required by the regulator.

(2)  The application must include the following information:

(a)  the applicant’s name,

(b)  whether or not the applicant is a body corporate,

(c)  if the applicant conducts the business or undertaking under a business name—that business name and a certificate or other written evidence of the registration of the business name,

(d)  any other evidence of the applicant’s identity required by the regulator,

(e)  a statement signed by the designer of the item of plant:

(i)  stating that the designer has complied with the designer’s obligations under section 22 of the Act in relation to the design, and

(ii)  specifying the published technical standards and engineering principles used in the design, and

(f)  a design verification statement that accords with clause 251,

(g)  representational drawings of the design,

(h)  a declaration that the applicant does not hold an equivalent registration under a corresponding WHS law.

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  Any drawings or other documents provided with the application must be capable of being kept in an electronic form.

(4)  The application must be accompanied by the relevant fee.

251 Design verification statement

The design verification statement must:

(a)  be written and signed by a person who is eligible to be a design verifier for the design, and

(b)  state that the design was produced in accordance with published technical standards or engineering principles specified in the statement, and

(c)  include:

(i)  the name, business address and qualifications (if applicable) of the design verifier, and

(ii)  if applicable, the name and business address of the organisation for which the design verifier works.

252 Who can be the design verifier

(1)  A person is eligible to be a design verifier for the design of an item of plant if the person is a competent person.

(2)  Despite subclause (1), a person is not eligible to be a design verifier for the design of an item of plant if the person was involved in the production of the design.

(3)    (Repealed)

cl 252: Am 2015 (61), Sch 1 [51].

253 Duty of design verifier

A design verifier of the design of an item of plant specified in Part 1 of Schedule 5 must document the design verification process carried out by that person and the results of that process.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

254 Design verification statements not to be made in certain circumstances

A person must not make a design verification statement for the design of an item of plant specified in Part 1 of Schedule 5 if the person:

(a)  is not eligible to be a design verifier for that design, or

(b)  has not carried out a verification of the design.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

255 Additional information

(1)  If an application for registration of a design of an item of plant does not contain enough information to enable the regulator to make a decision whether or not to grant the registration, the regulator may ask the applicant to provide additional information.

(2)  A request for additional information must:

(a)  specify the date (not being less than 28 days after the request) by which the additional information is to be given, and

(b)  be confirmed in writing.

(3)  If an applicant does not provide the additional information by the date specified, the application is taken to have been withdrawn.

(4)  The regulator may make more than 1 request for additional information under this clause.

256 Decision on application

(1)  Subject to subclause (3), the regulator must grant the registration if satisfied about the matters referred to in subclause (2).

(2)  The regulator must be satisfied about the following:

(a)  the application has been made in accordance with this Division,

(b)  the design is not registered under a corresponding WHS law,

(c)  if the applicant is an individual, the applicant:

(i)  resides in this jurisdiction, or

(ii)  resides outside this jurisdiction and circumstances exist that justify the grant of the registration,

(d)  if the applicant is a body corporate, the applicant’s registered office:

(i)  is located in this jurisdiction, or

(ii)  is located outside this jurisdiction and circumstances exist that justify the grant of the registration,

(e)  the applicant is able to ensure compliance with any conditions that will apply to the registration.

(3)  The regulator must refuse to grant a registration if satisfied that, in making the application, the applicant has:

(a)  given information that is false or misleading in a material particular, or

(b)  failed to give any material information that should have been given.

(4)  If the regulator decides to grant the registration, it must notify the applicant within 14 days after making the decision.

(5)  If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 255, the regulator is taken to have refused to grant the registration applied for.

Note—

A refusal to grant a registration (including under subclause (5)) is a reviewable decision (see clause 676).

257 Refusal of registration—process

(1)  If the regulator proposes to refuse to grant a registration, the regulator must give the applicant a written notice:

(a)  informing the applicant of the reasons for the proposed refusal, and

(b)  advising the applicant that the applicant may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal.

(2)  After the date specified in a notice under subclause (1), the regulator must:

(a)  if the applicant has made a submission in relation to the proposed refusal to grant the registration—consider that submission, and

(b)  whether or not the applicant has made a submission—decide whether to grant or refuse to grant the registration, and

(c)  within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision.

Note—

A refusal to grant a registration is a reviewable decision (see clause 676).

258 Conditions of registration

(1)  The regulator may impose any conditions it considers appropriate on the registration of a plant design.

(2)  Without limiting subclause (1), the regulator may impose conditions in relation to 1 or more of the following:

(a)  the use and maintenance of plant manufactured to the design,

(b)  the recording or keeping of information,

(c)  the provision of information to the regulator.

Notes—

1 A person must comply with the conditions of registration (see section 45 of the Act).

2 A decision to impose a condition on a registration is a reviewable decision (see clause 676).

259 Duration of registration of plant design

A registration of a plant design takes effect on the day it is granted and is granted for an unlimited duration.

260 Plant design registration number

(1)  This clause applies if the regulator registers a design of an item of plant.

(2)  The regulator must issue a plant design registration number for the design to the applicant.

(3)  The person to whom the plant design registration number is issued must give the registration number to the manufacturer, importer or supplier of plant manufactured to that design.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The manufacturer, supplier or importer of plant to whom a plant design registration number is given under this clause must give that number to the person with management or control of the plant:

(a)  manufactured to that design, or

(b)  supplied to that person by the manufacturer, supplier or importer.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(5)  The person with management or control of plant at a workplace for which a plant design is registered must ensure that the design registration number is kept readily accessible in the vicinity of the plant at all times.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

261 Registration document

(1)  If the regulator registers a design of an item of plant, the regulator must issue to the applicant a registration document in the form determined by the regulator.

(2)  The registration document must include the following:

(a)  the name of the registration holder,

(b)  if the registration holder conducts the business or undertaking under a business name, that business name,

(c)  the registration number of the plant design,

(d)  any conditions imposed on the registration by the regulator,

(e)  the date on which the registration was granted.

262 Registration document to be available

(1)  A registration holder must keep the registration document available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  Subclause (1) does not apply if the registration document is not in the registration holder’s possession because:

(a)  it has been returned to the regulator under clause 287, or

(b)  the registration holder has applied for, but has not received, a replacement registration document under clause 288.

263 Disclosure of design information

(1)  Subject to this clause, the regulator must not disclose to any person any confidential information provided by an applicant for registration of a design of an item of plant.

(2)  The regulator may disclose information about a plant design in either of the following circumstances:

(a)  to a corresponding regulator or an authorised officer of a corresponding regulator, at the request of the corresponding regulator,

(b)  to any person authorised by the applicant for the registration of the design.

(3)  The regulator may give a copy of the design verification statement to:

(a)  workers engaged by the person with management or control at a workplace of plant manufactured to the design, or

(b)  a health and safety representative of those workers.

(4)  The regulator may provide the person with management or control of plant with the minimum information about the plant design that is necessary for the safe operation of the plant if the registration holder for the design of the plant cannot be located or no longer exists.

Division 4 Registration process for an item of plant

264 Application of Division 4

This Division applies in relation to the registration of an item of plant specified in Part 2 of Schedule 5 as requiring registration.

265 Who can apply to register an item of plant

A person with management or control of an item of plant may apply to the regulator for the registration of that item of plant.

266 Application for registration

(1)  An application for registration of an item of plant must be made in the manner and form required by the regulator.

(2)  The application must include the following information:

(a)  the applicant’s name,

(b)  whether or not the applicant is a body corporate,

(c)  if the applicant conducts the business or undertaking under a business name—that business name and a certificate or other written evidence of the registration of the business name,

(d)  any other evidence of the applicant’s identity required by the regulator,

(e)  sufficient information to clearly identify the item of plant,

(f)    (Repealed)

(g)  if the design of the item of plant was also required to be registered under this Part, details of:

(i)  the plant design registration number, and

(ii)  the regulator or corresponding regulator that registered the design,

(h)  a statement that the item of plant has been inspected by a competent person and assessed by that person as being safe to operate,

(i)  the date that the item of plant was first commissioned or was first registered, if known, whichever occurred first,

(j)  a declaration that the applicant does not hold an equivalent registration under a corresponding WHS law.

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  The application must be accompanied by the relevant fee.

cl 266: Am 2015 (61), Sch 1 [52] [53].

267 When is a person competent to inspect plant

A person is a competent person to inspect an item of plant for registration if the person has:

(a)  educational or vocational qualifications in an engineering discipline relevant to the plant to be inspected, or

(b)  knowledge of the technical standards relevant to the plant to be inspected.

268 Additional information

(1)  If an application for registration of an item of plant does not contain enough information to enable the regulator to make a decision whether or not to grant the registration, the regulator may ask the applicant to provide additional information.

(2)  A request for additional information must:

(a)  specify the date (not being less than 28 days after the request) by which the additional information is to be given, and

(b)  be confirmed in writing.

(3)  If an applicant does not provide the additional information by the date specified, the application is taken to have been withdrawn.

(4)  The regulator may make more than 1 request for additional information under this clause.

269 Decision on application

(1)  Subject to subclause (3), the regulator must grant the registration if satisfied about the matters referred to in subclause (2).

(2)  The regulator must be satisfied about the following:

(a)  the application has been made in accordance with this Division,

(b)  the item of plant is not registered under a corresponding WHS law,

(c)  the item of plant is:

(i)  located in this jurisdiction, or

(ii)  located outside this jurisdiction and circumstances exist that justify the grant of the registration,

(d)  if the applicant is an individual, the applicant:

(i)  resides in this jurisdiction, or

(ii)  resides outside this jurisdiction and circumstances exist that justify the grant of the registration,

(e)  if the applicant is a body corporate, the applicant’s registered office:

(i)  is located in this jurisdiction, or

(ii)  is located outside this jurisdiction and circumstances exist that justify the grant of the registration,

(f)  the applicant is able to ensure compliance with any conditions that will apply to the registration.

(3)  The regulator must refuse to grant a registration if satisfied that, in making the application, the applicant has:

(a)  given information that is false or misleading in a material particular, or

(b)  failed to give any material information that should have been given.

(4)  If the regulator decides to grant the registration, it must notify the applicant within 14 days after making the decision.

(5)  If the regulator does not make a decision within 120 days after receiving the application or additional information requested under clause 268, the regulator is taken to have refused to grant the registration applied for.

Note—

A refusal to grant a registration (including under subclause (5)) is a reviewable decision (see clause 676).

cl 269: Am 2015 (61), Sch 1 [54].

270 Refusal of registration—process

(1)  If the regulator proposes to refuse to grant a registration, the regulator must give the applicant a written notice:

(a)  informing the applicant of the reasons for the proposed refusal, and

(b)  advising the applicant that the applicant may, by a specified date, (being not less than 28 days after giving the notice) make a submission to the regulator in relation to the proposed refusal.

(2)  After the date specified in a notice under subclause (1), the regulator must:

(a)  if the applicant has made a submission in relation to the proposed refusal to grant the registration—consider that submission, and

(b)  whether or not the applicant has made a submission—decide whether to grant or refuse to grant the registration, and

(c)  within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision.

Note—

A refusal to grant a registration is a reviewable decision (see clause 676).

271 Conditions of registration

(1)  The regulator may impose any conditions it considers appropriate on the registration of an item of plant.

(2)  Without limiting subclause (1), the regulator may impose conditions in relation to 1 of more of the following:

(a)  the use and maintenance of the item of plant,

(b)  the recording or keeping of information,

(c)  the provision of information to the regulator.

Note—

1 A person must comply with the conditions of registration (see section 45 of the Act).

2 A decision to impose a condition on a registration is a reviewable decision (see clause 676).

272 Duration of registration

A registration of an item of plant takes effect on the day it is granted and expires 5 years after that day.

273 Plant registration number

(1)  This clause applies if the regulator registers an item of plant.

(2)  The regulator must issue a plant registration number for the plant to the registration holder within 14 days after that registration.

(3)  The registration holder must give the plant registration number to the person with management or control of the plant at a workplace as soon as practicable after being issued with the number under subclause (2).

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The person with management or control of the plant at a workplace must ensure that the plant registration number is marked on the item of plant.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

274 Registration document

(1)  If the regulator registers an item of plant, the regulator must issue to the applicant within 14 days a registration document in the form determined by the regulator.

(2)  The registration document must include the following:

(a)  the name of the registration holder,

(b)  if the registration holder conducts the business or undertaking under a business name, that business name,

(c)  the registration number for the item of plant,

(d)  any conditions imposed on the registration by the regulator,

(e)  the date on which the plant was first commissioned or first registered, whichever occurred first,

(f)  the date on which the registration was granted,

(g)  the expiry date of the registration.

275 Registration document to be available

(1)  The holder of the registration of an item of plant must keep the registration document available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  Subclause (1) does not apply if the registration document is not in the registration holder’s possession because:

(a)  it has been returned to the regulator under clause 287, or

(b)  the registration holder has applied for, but has not received, a replacement registration document under clause 288.

276 Regulator may renew registration

The regulator may, on application, renew the registration of an item of plant.

277 Application for renewal

(1)  An application for renewal of a registration of an item of plant must be made in the manner and form required by the regulator.

(2)  The application must include the following information:

(a)  the applicant’s name,

(b)  any evidence of identity required by the regulator,

(c)  if the applicant conducts the business or undertaking under a business name, that business name and a certificate or other written evidence of the registration of the business name,

(d)  the registration number of the item of plant,

(e)  a declaration that the item of plant has been maintained, inspected and tested in accordance with clause 213.

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(3)  The application must be accompanied by the relevant fee.

(4)  The application must be made before the expiry of the registration.

278 Registration continues in force until application is decided

If a registration holder applies under clause 277 for the renewal of a registration, the registration is taken to continue in force from the day it would, apart from this clause, have ended until the registration holder is given notice of the decision on the application.

279 Decision on application

(1)  The regulator must renew the registration of an item of plant if the regulator is satisfied that:

(a)  the application for renewal has been made in accordance with this Division, and

(b)  the plant has been maintained, inspected and tested in accordance with clause 213.

(2)  For the purposes of this Division:

(a)  clause 268 applies as if a reference in that clause to an application for registration were a reference to an application to renew registration, and

(b)  clauses 269 (except subclause (5)), 271 and 272 apply as if a reference in those clauses to the grant of a registration were a reference to the renewal of a registration, and

(c)  clause 270 applies as if a reference in that clause to a refusal to grant a registration were a reference to a refusal to renew a registration.

Note—

A refusal to renew a registration is a reviewable decision (see clause 676).

280 Status of registration during review

(1)  If the regulator gives the registration holder written notice of a decision to refuse to renew the registration, the registration continues to have effect in accordance with this clause.

(2)  If the registration holder does not apply for internal review, the registration continues to have effect until the last of the following events:

(a)  the expiry of the registration,

(b)  the end of the period for applying for an internal review.

(3)  If the registration holder applies for an internal review, the registration continues to have effect until the earlier of the following events:

(a)  the registration holder withdraws the application for review,

(b)  the regulator makes a decision on the review.

(4)  If the registration holder does not apply for an external review, the registration continues to have effect until the end of the time for applying for an external review.

(5)  If the registration holder applies for an external review, the registration continues to have effect until the earlier of the following events:

(a)  the registration holder withdraws the application for review,

(b)  the Civil and Administrative Tribunal makes a decision on the review.

(6)  The registration continues to have effect under this clause even if its expiry date passes.

cl 280: Am 2013 No 95, Sch 2.155 [2].

Division 5 Changes to registration and registration documents

281 Application of Division

This Division applies to:

(a)  the registration of a design of an item of plant, and

(b)  the registration of an item of plant.

282 Changes to information

(1)  A registration holder must give the regulator written notice of any change to:

(a)  the registration holder’s name, or

(b)  any of the information referred to in clauses 250, 255 (1), 266 or 268 (1) within 14 days after the registration holder becomes aware of the change.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  Subclause (1) applies whether the information was given in the application for grant of the registration or in any other circumstance.

(3)  Without limiting subclause (1), a registration holder for an item of plant must give written notice to the regulator if:

(a)  the item of plant is altered to an extent or in a way that requires the plant to be subject to new control measures, or

(b)  the item of plant is usually fixed and is relocated, or

(c)  the registration holder no longer has management or control of the item of plant.

283 Amendment of registration imposed by regulator

(1)  The regulator may, on its own initiative, amend a registration, including by amending the registration to:

(a)  vary or delete a condition of the registration, or

(b)  impose a new condition on the registration.

(2)  Before amending a registration, the regulator must give the registration holder written notice:

(a)  setting out the proposed amendment and the reasons for it, and

(b)  advising the registration holder that the registration holder may make a submission to the regulator in relation to the proposed amendment within a specified period (being not less than 28 days from the date of the notice).

(3)  After the date specified in a notice under subclause (2), the regulator must:

(a)  if the registration holder has made a submission in relation to the proposed amendment—consider that submission, and

(b)  whether or not the registration holder has made a submission—decide:

(i)  to make the proposed amendment, or

(ii)  not to make any amendment, or

(iii)  to make a different amendment that results from consideration of any submission made by the registration holder, and

(c)  within 14 days after making that decision, give the registration holder written notice that:

(i)  sets out the amendment, if any, or states that no amendment is to be made, and

(ii)  if a submission was made in relation to the proposed amendment—sets out the regulator’s reasons for making the amendment, and

(iii)  specifies the date (being not less than the 28 days after the registration holder is given the notice) on which the amendment, if any, takes effect.

Note—

A decision to amend a registration is a reviewable decision (see clause 676).

284 Amendment on application by registration holder

(1)  The regulator, on application by the registration holder, may amend a registration, including by amending the registration to vary or delete a condition of the registration.

(2)  If the regulator proposes to refuse to amend the registration, the regulator must give the registration holder a written notice:

(a)  informing the registration holder of the proposed refusal to amend the registration and the reasons for the proposed refusal, and

(b)  advising the registration holder that the registration holder may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal.

(3)  After the date specified in a notice under subclause (2), the regulator must:

(a)  if the registration holder has made a submission in relation to the proposed refusal—consider that submission, and

(b)  whether or not the registration holder has made a submission—decide:

(i)  to make the amendment applied for, or

(ii)  not to make any amendment, or

(iii)  to make a different amendment that results from consideration of any submission made by the registration holder, and

(c)  within 14 days after making that decision, give the registration holder written notice of the decision in accordance with this clause.

(4)  If the regulator makes the amendment applied for, the notice under subclause (3) (c) must specify the date (being not less than 28 days after the registration holder is given the notice) on which the amendment takes effect.

(5)  If the regulator refuses to make the amendment or makes a different amendment, the notice under subclause (3) (c) must:

(a)  if a submission was made in relation to the proposed refusal of the amendment applied for—set out the reasons for the regulator’s decision, and

(b)  if the regulator makes a different amendment:

(i)  set out the amendment, and

(ii)  specify the date (being not less than 28 days after the licence holder is given the notice) on which the amendment takes effect.

Note—

A refusal to make the amendment applied for, or a decision to make a different amendment, is a reviewable decision (see clause 676).

285 Minor corrections to registration

The regulator may make minor amendments to a registration, including an amendment:

(a)  to correct an obvious error, or

(b)  to change an address, or

(c)  that does not impose a significant burden on the registration holder.

286 Regulator to give amended registration document

If the regulator amends a registration and considers that the registration document requires amendment, the regulator must give the registration holder an amended registration document within 14 days after making the decision to amend the registration.

287 Registration holder to return registration document

A registration holder must return the registration document to the regulator for amendment at the written request of the regulator within the time specified in the request.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

288 Replacement registration document

(1)  A registration holder must give written notice to the regulator as soon as practicable if the registration document is lost, stolen or destroyed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  If a registration document is lost, stolen or destroyed, the registration holder may apply to the regulator for a replacement document.

Note—

A registration holder is required to keep a registration document available for inspection (see clause 275).

(3)  An application for a replacement registration document must be made in the manner and form required by the regulator.

(4)  The application must:

(a)  include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(b)  be accompanied by the relevant fee.

(5)  The regulator must issue a replacement registration document if satisfied that the original document was lost, stolen or destroyed.

(6)  If the regulator refuses to issue a replacement registration document, it must give the registration holder written notice of this decision, including the reasons for the decision within 14 days of making the decision.

Note—

A refusal to issue a replacement registration document is a reviewable decision (see clause 676).

Division 6 Cancellation of registration

ch 5, pt 5.3, div 6 (cll 288A–288D): Ins 2015 (61), Sch 1 [55].

288A Application of Division

This Division applies to:

(a)  the registration of a design of an item of plant, and

(b)  the registration of an item of plant.

ch 5, pt 5.3, div 6 (cll 288A–288D): Ins 2015 (61), Sch 1 [55].

288B Regulator may cancel registration

The regulator may cancel a registration if satisfied that:

(a)  the registration holder, in applying for the registration:

(i)  gave information that was false or misleading in a material particular, or

(ii)  failed to give any material information that should have been given, or

(b)  the design of the item of plant, or the item of plant (as applicable), is unsafe.

Note—

A decision to cancel a registration is a reviewable decision (see clause 676).

ch 5, pt 5.3, div 6 (cll 288A–288D): Ins 2015 (61), Sch 1 [55].

288C Cancellation process

(1)  Before cancelling a registration, the regulator must give the registration holder written notice:

(a)  setting out the proposal to cancel the registration and the reasons for it, and

(b)  advising the registration holder that the registration holder may make a submission to the regulator in relation to the proposed cancellation within a specified period (being not less than 28 days from the date of the notice).

(2)  After the date specified in a notice under subclause (1), the regulator must:

(a)  if the registration holder has made a submission in relation to the proposed cancellation—consider that submission, and

(b)  whether or not the registration holder has made a submission, decide:

(i)  to cancel the registration, or

(ii)  not to cancel the registration, and

(c)  within 14 days after making that decision, give the registration holder written notice that:

(i)  states whether or not the registration is cancelled, and

(ii)  if a submission was made in relation to the proposed cancellation—sets out the regulator’s reasons for cancelling the registration, and

(iii)  specifies the date on which the cancellation, if any, takes effect.

Note—

A decision to cancel a registration is a reviewable decision (see clause 676).

ch 5, pt 5.3, div 6 (cll 288A–288D): Ins 2015 (61), Sch 1 [55].

288D Registration holder to return registration document

A registration holder who receives a cancellation notice under clause 288C must return the registration document to the regulator at the written request of the regulator within the time specified in the request.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

ch 5, pt 5.3, div 6 (cll 288A–288D): Ins 2015 (61), Sch 1 [55].

Chapter 6 Construction work

Part 6.1 Preliminary

289 Meaning of “construction work”

(1)  In this Chapter, construction work means any work carried out in connection with the construction, alteration, conversion, fitting-out, commissioning, renovation, repair, maintenance, refurbishment, demolition, decommissioning or dismantling of a structure.

(2)  Without limiting subclause (1), construction work includes the following:

(a)  any installation or testing carried out in connection with an activity referred to in subclause (1),

(b)  the removal from the workplace of any product or waste resulting from demolition,

(c)  the prefabrication or testing of elements, at a place specifically established for the construction work, for use in construction work,

(d)  the assembly of prefabricated elements to form a structure, or the disassembly of prefabricated elements forming part of a structure,

(e)  the installation, testing or maintenance of an essential service in relation to a structure,

(f)  any work connected with an excavation,

(g)  any work connected with any preparatory work or site preparation (including landscaping as part of site preparation) carried out in connection with an activity referred to in subclause (1),

(h)  an activity referred to in subclause (1), that is carried out on, under or near water, including work on buoys and obstructions to navigation.

(3)  In this Chapter, construction work does not include any of the following:

(a)  the manufacture of plant,

(b)  the prefabrication of elements, other than at a place specifically established for the construction work, for use in construction work,

(c)  the construction or assembly of a structure that once constructed or assembled is intended to be transported to another place,

(d)  testing, maintenance or repair work of a minor nature carried out in connection with a structure,

(e)  mining activities or petroleum activities.

cl 289: Am 2016 (49), Sch 2 [1].

290 Meaning of “structure”

(1)  In this Chapter, structure has the same meaning as it has in the Act.

Examples—

1 A roadway or pathway.

2 A ship or submarine.

3 Foundations, earth retention works and other earthworks, including river works and sea defence works.

4 Formwork, falsework or any other structure designed or used to provide support, access or containment during construction work.

5 An airfield.

6 A dock, harbour, channel, bridge, viaduct, lagoon or dam.

7 A sewer or sewerage or drainage works.

(2)  This Chapter does not apply to plant unless:

(a)  the plant is:

(i)  a ship or submarine, or

(ii)  a pipe or pipeline, or

(iii)  an underground tank, or

(iv)  designed or used to provide support, access or containment during work in connection with construction work, or

(b)  work on the plant relates to work that is carried out in connection with construction work, or

(c)  the plant is fixed plant on which outage work or overhaul work that involves or may involve work being carried out by 5 or more persons conducting businesses or undertakings at any point in time.

Note—

This Chapter does not apply to the manufacture of plant (see clause 289 (3) (a)).

291 Meaning of “high risk construction work”

In this Chapter, high risk construction work means construction work that:

(a)  involves a risk of a person falling more than 2 metres, or

(b)  is carried out on a telecommunication tower, or

(c)  involves demolition of an element of a structure that is load-bearing or otherwise related to the physical integrity of the structure, or

(d)  involves, or is likely to involve, the disturbance of asbestos, or

(e)  involves structural alterations or repairs that require temporary support to prevent collapse, or

(f)  is carried out in or near a confined space, or

(g)  is carried out in or near:

(i)  a shaft or trench with an excavated depth greater than 1.5 metres, or

(ii)  a tunnel, or

(h)  involves the use of explosives, or

(i)  is carried out on or near pressurised gas distribution mains or piping, or

(j)  is carried out on or near chemical, fuel or refrigerant lines, or

(k)  is carried out on or near energised electrical installations or services, or

(l)  is carried out in an area that may have a contaminated or flammable atmosphere, or

(m)  involves tilt-up or precast concrete, or

(n)  is carried out on, in or adjacent to a road, railway, shipping lane or other traffic corridor that is in use by traffic other than pedestrians, or

(o)  is carried out in an area at a workplace in which there is any movement of powered mobile plant, or

(p)  is carried out in an area in which there are artificial extremes of temperature, or

(q)  is carried out in or near water or other liquid that involves a risk of drowning, or

(r)  involves diving work.

292 Meaning of “construction project”

In this Chapter, a construction project is a project that involves construction work where the cost of the construction work is $250,000 or more.

293 Meaning of “principal contractor”

(1)  In this Chapter, a person conducting a business or undertaking that commissions a construction project is, subject to this clause, the principal contractor for the project.

(2)  If the person referred to in subclause (1) engages another person conducting a business or undertaking as principal contractor for the construction project and authorises the person to have management or control of the workplace and to discharge the duties of a principal contractor under this Chapter, the person so engaged is the principal contractor for the project.

(3)  If the owner of residential premises is an individual who directly or indirectly engages a person conducting a business or undertaking to undertake a construction project in relation to the premises, the person so engaged is the principal contractor for the project if the person has management or control of the workplace.

(4)  A construction project has only one principal contractor at any specific time.

Note—

A person with management or control of a workplace must comply with section 20 of the Act.

Part 6.2 Duties of designer of structure and person who commissions construction work

294 Person who commissions work must consult with designer

(1)  A person conducting a business or undertaking that commissions construction work in relation to a structure must, so far as is reasonably practicable, consult with the designer of the whole or any part of the structure about how to ensure that risks to health and safety arising from the design during the construction work are:

(a)  eliminated, so far as is reasonably practicable, or

(b)  if it is not reasonably practicable to eliminate the risks, minimised so far as is reasonably practicable.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  Consultation must include giving the designer any information that the person who commissions the construction work has in relation to the hazards and risks at the workplace where the construction work is to be carried out.

295 Designer must give safety report to person who commissions design

(1)  The designer of a structure or any part of a structure that is to be constructed must give the person conducting a business or undertaking who commissioned the design a written report that specifies the hazards relating to the design of the structure that, so far as the designer is reasonably aware:

(a)  create a risk to the health or safety of persons who are to carry out any construction work on the structure or part, and

(b)  are associated only with the particular design and not with other designs of the same type of structure.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  If the person conducting a business or undertaking who commissions a construction project did not commission the design of the construction project, the person must take all reasonable steps to obtain a copy of the written report referred to in subclause (1) in relation to that design.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

296 Person who commissions project must give information to principal contractor

If a person conducting a business or undertaking that commissions a construction project engages a principal contractor for the project, the person must give the principal contractor any information the person has in relation to hazards and risks at or in the vicinity of the workplace where the construction work is to be carried out.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Part 6.3 Duties of person conducting business or undertaking

Note—

As a principal contractor is a person conducting a business or undertaking, this Part also applies to a principal contractor.

Division 1 General

297 Management of risks to health and safety

A person conducting a business or undertaking must manage risks associated with the carrying out of construction work in accordance with Part 3.1.

Note—

WHS Act—section 19 (see clause 9).

298 Security of workplace

(1)  A person with management or control of a workplace at which construction work is carried out must ensure, so far as is reasonably practicable, that the workplace is secured from unauthorised access.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  In complying with subclause (1), the person must have regard to all relevant matters, including:

(a)  risks to health and safety arising from unauthorised access to the workplace, and

(b)  the likelihood of unauthorised access occurring, and

Example—

The proximity of the workplace to places frequented by children, including schools, parks and shopping precincts.

(c)  to the extent that unauthorised access to the workplace cannot be prevented—how to isolate hazards within the workplace.

Division 2 High risk construction work—safe work method statements

299 Safe work method statement required for high risk construction work

(1)  A person conducting a business or undertaking that includes the carrying out of high risk construction work must, before high risk construction work commences, ensure that a safe work method statement for the proposed work:

(a)  is prepared, or

(b)  has already been prepared by another person.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A safe work method statement must:

(a)  identify the work that is high risk construction work, and

(b)  specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards, and

(c)  describe the measures to be implemented to control the risks, and

(d)  describe how the control measures are to be implemented, monitored and reviewed.

(3)  A safe work method statement must:

(a)  be prepared taking into account all relevant matters, including:

(i)  circumstances at the workplace that may affect the way in which the high risk construction work is carried out, and

(ii)  if the high risk construction work is carried out in connection with a construction project—the WHS management plan that has been prepared for the workplace, and

(b)  be set out and expressed in a way that is readily accessible and understandable to persons who use it.

300 Compliance with safe work method statement

(1)  A person conducting a business or undertaking that includes the carrying out of high risk construction work must put in place arrangements for ensuring that high risk construction work is carried out in accordance with the safe work method statement for the work.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  If high risk construction work is not carried out in accordance with the safe work method statement for the work, the person must ensure that the work:

(a)  is stopped immediately or as soon as it is safe to do so, and

(b)  resumed only in accordance with the statement.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

301 Safe work method statement—copy to be given to principal contractor

A person conducting a business or undertaking that includes carrying out high risk construction work in connection with a construction project must, before the high risk construction work commences, ensure that a copy of the safe work method statement for the work is given to the principal contractor.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

302 Review of safe work method statement

A person conducting a business or undertaking must ensure that a safe work method statement is reviewed and as necessary revised if relevant control measures are revised under clause 38.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

303 Safe work method statement must be kept

(1)  Subject to subclause (2), a person conducting a business or undertaking must keep a copy of the safe work method statement until the high risk construction work to which it relates is completed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  If a notifiable incident occurs in connection with the high risk construction work to which the statement relates, the person must keep the statement for at least 2 years after the incident occurs.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  The person must ensure that for the period for which the statement must be kept under this clause, a copy is readily accessible to any worker engaged by the person to carry out the high risk construction work.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(4)  The person must ensure that for the period for which the statement must be kept under this clause, a copy is available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Division 3 Excavation work

304 Excavation work—underground essential services information

(1)  This clause applies in relation to a part of a workplace where excavation work is being carried out and any adjacent areas.

(2)  A person with management or control of the workplace must take all reasonable steps to obtain current underground essential services information about the areas referred to in subclause (1) before directing or allowing the excavation work to commence.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(3)  The person with management or control of the workplace must provide the information obtained under subclause (2) to any person engaged by the person to carry out the excavation work.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(4)  The person with management or control of the workplace and any person conducting a business or undertaking who is given information under subclause (3) must have regard to the information referred to in subclause (2) in carrying out or directing or allowing the carrying out of the excavation work.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Note—

Legislation relating to the essential services may also impose duties on the person conducting the business or undertaking and the persons carrying out the work.

(5)  The person with control or management of the workplace must ensure that the information referred to in subclause (2) is available for inspection under the Act for the period specified in subclause (6).

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(6)  The information must be available:

(a)  if a notifiable incident occurs in connection with the excavation work to which the information relates—for at least 2 years after the incident occurs, and

(b)  in every other case—until the excavation work is completed.

(7)  In this clause:

underground essential services means essential services that use pipes, cables or other associated plant located underground.

underground essential services information, in relation to proposed excavation work, means the following information about underground essential services that may be affected by the excavation:

(a)  the essential services that may be affected,

(b)  the location, including the depth, of any pipes, cables or other plant associated with the affected essential services,

(c)  any conditions on the proposed excavation work.

305 Management of risks to health and safety associated with excavation work

(1)  A person conducting a business or undertaking must manage risks to health and safety associated with excavation work, in accordance with Part 3.1.

Note—

WHS Act—section 19 (see clause 9).

(2)  The risks this clause applies to include the following:

(a)  a person falling into an excavation,

(b)  a person being trapped by the collapse of an excavation,

(c)  a person working in an excavation being struck by a falling thing,

(d)  a person working in an excavation being exposed to an airborne contaminant.

(3)  In complying with subclause (1), the person must have regard to all relevant matters, including the following:

(a)  the nature of the excavation,

(b)  the nature of the excavation work, including the range of possible methods of carrying out the work,

(c)  the means of entry into and exit from the excavation, if applicable.

306 Additional controls—trenches

(1)  A person conducting a business or undertaking, who proposes to excavate a trench at least 1.5 metres deep must ensure, so far as is reasonably practicable, that the work area is secured from unauthorised access (including inadvertent entry).

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  In complying with subclause (1), the person must have regard to all relevant matters, including:

(a)  risks to health and safety arising from unauthorised access to the work area, and

(b)  the likelihood of unauthorised access occurring.

(3)  In addition, the person must minimise the risk to any person arising from the collapse of the trench by ensuring that all sides of the trench are adequately supported by doing 1 or more of the following:

(a)  shoring by shielding or other comparable means,

(b)  benching,

(c)  battering.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  Subclause (3) does not apply if the person receives written advice from a geotechnical engineer that all sides of the trench are safe from collapse.

(5)  An advice under subclause (4):

(a)  may be subject to a condition that specified natural occurrences may create a risk of collapse, and

(b)  must state the period of time to which the advice applies.

Part 6.4 Additional duties of principal contractor

307 Application of Part 6.4

This Part:

(a)  applies in relation to a construction project, and

(b)  imposes duties on the principal contractor for the project that are additional to the duties imposed under Part 6.3.

Note—

As a principal contractor has management or control of a workplace, the principal contractor is also subject to duties imposed by the Act and this Regulation on a person with management or control of a workplace.

308 Specific control measure—signage identifying principal contractor

The principal contractor for a construction project must ensure that signs are installed, that:

(a)  show the principal contractor’s name and telephone contact numbers (including an after hours telephone number), and

(b)  show the location of the site office for the project, if any, and

(c)  are clearly visible from outside the workplace, or the work area of the workplace, where the construction project is being undertaken.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

309 WHS management plan—preparation

(1)  The principal contractor for a construction project must prepare a written WHS management plan for the workplace before work on the project commences.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A WHS management plan must include the following:

(a)  the names, positions and health and safety responsibilities of all persons at the workplace whose positions or roles involve specific health and safety responsibilities in connection with the project,

(b)  the arrangements in place, between any persons conducting a business or undertaking at the workplace where the construction project is being undertaken, for consultation, co operation and the co-ordination of activities in relation to compliance with their duties under the Act and this Regulation,

(c)  the arrangements in place for managing any work health and safety incidents that occur,

(d)  any site-specific health and safety rules, and the arrangements for ensuring that all persons at the workplace are informed of these rules,

(e)  the arrangements for the collection and any assessment, monitoring and review of safe work method statements at the workplace.

310 WHS management plan—duty to inform

The principal contractor for a construction project must ensure, so far as is reasonably practicable, that each person who is to carry out construction work in connection with the project is, before commencing work, made aware of:

(a)  the content of the WHS management plan for the workplace, and

(b)  the person’s right to inspect the WHS management plan under clause 313.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

311 WHS management plan—review

(1)  The principal contractor for a construction project must review and as necessary revise the WHS management plan to ensure that it remains up to date.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  The principal contractor for a construction project must ensure, so far as is reasonably practicable, that each person carrying out construction work in connection with the project is made aware of any revision to the WHS management plan.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

312 High risk construction work—safe work method statements

The principal contractor for a construction project must take all reasonable steps to obtain a copy of the safe work method statement relating to high risk construction work before the high risk construction work commences.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Note—

The WHS management plan contains arrangements for co operation between persons conducting a business or undertaking at the construction project workplace, including in relation to the preparation of safe work method statements (see clause 309 (2) (b) and (e)).

313 Copy of WHS management plan must be kept

(1)  Subject to subclause (2), the principal contractor for a construction project must ensure that a copy of the WHS management plan for the project is kept until the project to which it relates is completed.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  If a notifiable incident occurs in connection with the construction project to which the statement relates, the person must keep the WHS management plan for at least 2 years after the incident occurs.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  The person must ensure that, for the period for which the WHS management plan must be kept under this clause, a copy is readily accessible to any person who is to carry out construction work in connection with the construction project.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(4)  The person must ensure that for the period for which the WHS management plan must be kept under this clause, a copy is available for inspection under the Act.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(5)  In this clause, WHS management plan means the initial plan and all revised versions of the plan.

314 Further health and safety duties—specific clauses

The principal contractor for a construction project must put in place arrangements for ensuring compliance at the workplace with the following:

(a)  Division 2 of Part 3.2,

(b)  Division 3 of Part 3.2,

(c)  Division 4 of Part 3.2,

(d)  Division 5 of Part 3.2,

(e)  Division 7 of Part 3.2,

(f)  Division 8 of Part 3.2,

(g)  Division 9 of Part 3.2,

(h)  Division 10 of Part 3.2,

(i)  Part 4.4.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

All persons conducting a business or undertaking at the construction project workplace have these same duties (see Part 3.2 of this Regulation and section 19 of the Act). Section 16 of the Act provides for situations in which more than 1 person has the same duty.

315 Further health and safety duties—specific risks

The principal contractor for a construction project must in accordance with Part 3.1 manage risks to health and safety associated with the following:

(a)  the storage, movement and disposal of construction materials and waste at the workplace,

(b)  the storage at the workplace of plant that is not in use,

(c)  traffic in the vicinity of the workplace that may be affected by construction work carried out in connection with the construction project,

(d)  essential services at the workplace.

Note—

WHS Act—section 20 (see clause 9).

Part 6.5 General construction induction training

Division 1 General construction induction training requirements

316 Duty to provide general construction induction training

A person conducting a business or undertaking must ensure that general construction induction training is provided to a worker engaged by the person who is to carry out construction work, if the worker:

(a)  has not successfully completed general construction induction training, or

(b)  successfully completed general construction induction training more than 2 years previously and has not carried out construction work in the preceding 2 years.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

317 Duty to ensure worker has been trained

(1)  A person conducting a business or undertaking must not direct or allow a worker to carry out construction work unless:

(a)  the worker has successfully completed general construction induction training, and

(b)  if the worker completed the training more than 2 years previously—the worker has carried out construction work in the preceding 2 years.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  The person conducting the business or undertaking must ensure that:

(a)  the worker holds a general construction induction training card, or

(b)  if the worker has applied for but not yet been issued with a general construction induction training card, the worker holds a general construction induction training certification, issued within the preceding 60 days.

318 Recognition of general construction induction training cards issued in other jurisdictions

(1)  In this Part (other than Division 2), a reference to a general construction induction training card includes a reference to a similar card issued under a corresponding WHS law.

(2)  Subclause (1) does not apply to a card that is cancelled in the corresponding jurisdiction.

cl 318: Subst 2015 (61), Sch 1 [56].

Division 2 General construction induction training cards

319 Issue of card

(1)  A person who has successfully completed general construction induction training in this jurisdiction may apply to the regulator for a general construction induction training card.

(2)  The application must be made in the manner and form required by the regulator.

(3)  The application must include the following information:

(a)  the applicant’s name and any other evidence of the applicant’s identity required by the regulator,

(b)  either:

(i)  a general construction induction training certification issued to the applicant, or

(ii)  a written declaration by the person who provided the general construction induction training on behalf of the relevant RTO that the applicant has successfully completed general construction induction training.

(4)  The application must be accompanied by the relevant fee.

(5)  The application must be made:

(a)  within 60 days after the issue of the general construction induction training certification, or

(b)  if the application is accompanied by a declaration referred to in subclause (3) (b) (ii), at any time after completion of the general construction induction training.

(6)  The regulator must issue a general construction induction training card to the applicant if:

(a)  the application has been made in accordance with this clause, and

(b)  the regulator is satisfied that the applicant has successfully completed general construction induction training.

(7)  The regulator must make a decision on the application as soon as practicable.

(8)  If the regulator has not decided on the application within 60 days, the applicant is taken to hold a general construction induction training card until a decision is made.

cl 319: Am 2015 (61), Sch 1 [57].

320 Content of card

A general construction induction training card must:

(a)  state the following:

(i)  that the card holder has completed general construction induction training,

(ii)  the name of the card holder,

(iii)  the date on which the card was issued,

(iv)  a unique identifying number,

(v)  the State in which the card was issued, and

(b)  contain the card holder’s signature.

321 Replacement card

(1)  If a general construction induction training card issued by the regulator is lost, stolen or destroyed, the card holder may apply to the regulator for a replacement card.

Note—

A card holder is required to keep the card available for inspection under clause 326.

(2)  An application for a replacement general construction induction training card must be made in the manner and form required by the regulator.

(3)  The application must:

(a)  include a declaration about the circumstances in which the card was lost, stolen or destroyed, and

Note—

See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.

(b)  be accompanied by the relevant fee.

(4)  The regulator may issue a replacement card if satisfied that the original general construction induction training card has been lost, stolen or destroyed.

322 Refusal to issue or replace card

The regulator may refuse to issue a general construction induction training card or a replacement general construction induction training card if satisfied that the applicant:

(a)  gave information that was false or misleading in a material particular, or

(b)  failed to give information that should have been given, or

(c)  produced a general construction induction training certification that had been obtained on the basis of the giving of false or misleading information by any person or body.

Note—

A decision to refuse to issue or replace a general construction induction training card is a reviewable decision (see clause 676).

323 Cancellation of card—grounds

The regulator may cancel a general construction induction training card issued by the regulator if satisfied that the card holder, when applying for the card:

(a)  gave information that was false or misleading in a material particular, or

(b)  failed to give information that should have been given, or

(c)  produced a general construction induction training certification that had been obtained on the basis of the giving of false or misleading information by any person or body.

Note—

A decision to cancel a general construction induction training card is a reviewable decision (see clause 676).

324 Cancellation of card—process

(1)  The regulator must, before cancelling a general construction induction training card, give the card holder:

(a)  written notice of the proposed cancellation that outlines all relevant allegations, facts and circumstances known to the regulator, and

(b)  a reasonable opportunity to make submissions to the regulator in relation to the proposed cancellation.

(2)  On cancelling a general induction card, the regulator must give the card holder a written notice of its decision, stating:

(a)  when the cancellation takes effect, and

(b)  the reasons for the cancellation, and

(c)  when the card must be returned to the regulator.

325 RTO may enter agreement to issue cards

* * * * *

Note—

The Model Work Health and Safety Regulations contain a provision enabling the regulator to enter agreements with a RTO regarding the issue of general induction construction training cards.

Division 3 Duties of workers

326 Duties of workers

(1)  A worker carrying out construction work must keep available for inspection under the Act:

(a)  his or her general construction induction training card, or

(b)  in the circumstances set out in clause 319 (5), a general induction training certification held by the worker, until a decision is made on the application for the general construction induction training card.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(2)  A card holder, on receiving a cancellation notice under clause 324 (2), must return the card in accordance with the notice.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(3)  Subclause (1) (a) does not apply if the card is not in the possession of the worker (card holder) because:

(a)  it has been lost, stolen or destroyed, and

(b)  the card holder has applied for, but has not received, a replacement card under clause 321.

327 Alteration of general construction induction training card

A person who holds a general construction induction training card must not intentionally or recklessly alter the card.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Chapter 7 Hazardous chemicals

Part 7.1 Hazardous chemicals

Note—

Most of the obligations in this Part apply to persons conducting businesses or undertakings at a workplace. However, some obligations apply to persons in different capacities, for example importers and suppliers of hazardous chemicals.

Division 1 Application of Part 7.1

328 Application of Part 7.1

(1)  This Part applies to:

(a)  the use, handling and storage of hazardous chemicals at a workplace and the generation of hazardous substances at a workplace, and

(b)  a pipeline used to convey a hazardous chemical.

(1A)  This Part applies to the handling or storage of dangerous goods listed in Column 2 of the Table to this subclause, other than at a workplace, if the quantity of the dangerous goods is more than the relevant threshold referred to in Column 3 of that Table.

Table

Column 1	Column 2	Column 3
Item	Dangerous goods	Threshold quantities
1	Liquefied Petroleum Gas (LP gas) (dangerous goods Class 2.1)	If the LP gas is stored in packages outside a building, and connected by piping to appliances within the building that contain the gas—500 L (water capacity)
2	Compressed gas of Class 2.1 (excluding LP gas), Class 2.2 or compressed oxygen if:	(a)  each is in one or more containers in an aggregate capacity not exceeding 50 L, and (b)  the dangerous goods as a whole form part of a welding set or are used or intended to be used with a portable flame torch. Compressed oxygen or air that is used or intended to be used for medical
3	Dangerous goods Class 3	250 L
4	Pool Chlorine and spa sanitising agents	100 kg or L
5	Sodium Hypochlorite designated by UN Number 1791	100 L
6	Dangerous goods Class 9	100 kg or L
7	Dangerous goods Packing Group 1	5 kg or L
8	C1 combustible liquids	1000 L
9	Dangerous goods Class 2.3	Nil kg or L
10	Any dangerous goods other than those stated above	100 kg or L

(2)  This Part does not apply to a pipeline that is regulated under the Gas Supply Act 1996, the Petroleum (Offshore) Act 1982 or the Pipelines Act 1967.

(3)  This Part does not apply to hazardous chemicals and explosives being transported by road, rail, sea or air if the transport is regulated under any of the following:

(a)  the Dangerous Goods (Road and Rail Transport) Act 2008 and the regulations under that Act,

(b)  the document entitled “International Maritime Dangerous Goods Code” published by the International Maritime Organization, copies of which are available for inspection at the offices of the regulator,

(c)  the document entitled “Technical Instructions for the Safe Transport of Dangerous Goods by Air” published by the International Civil Aviation Organization, copies of which are available for inspection at the offices of the regulator,

(d)  the document entitled “Dangerous Goods Regulations” published by the International Air Transport Association, copies of which are available for inspection at the offices of the regulator.

(4)  This Part does not apply to the following hazardous chemicals in the circumstances described:

(a)  hazardous chemicals in batteries when incorporated in plant,

(b)  fuel, oils or coolants in a container fitted to a vehicle, vessel, aircraft, mobile plant, appliance or other device, if the fuel, oil or coolant is intended for use in the operation of the device,

(c)  fuel in the fuel container of a domestic or portable fuel burning appliance, if the quantity of fuel does not exceed 25 kilograms or 25 litres,

(d)  hazardous chemicals in portable firefighting or medical equipment for use in a workplace,

(e)  hazardous chemicals that form part of the integrated refrigeration system of refrigerated freight containers,

(f)  potable liquids that are consumer products at retail premises.

(5)  This Part, other than the following clauses and Schedule 7, does not apply to substances, mixtures or articles categorised only as explosives under the GHS:

(a)  clause 329,

(b)  clause 330,

(c)  clause 339,

(d)  clause 344,

(e)  clause 345.

(6)  This Part does not apply to the following:

(a)  food and beverages within the meaning of the Food Standards Australia New Zealand Food Standards Code that are in a package and form intended for human consumption,

(b)  tobacco or products made of tobacco,

(c)  therapeutic goods within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth at the point of intentional intake by or administration to humans,

(d)  veterinary chemical products within the meaning of the Agvet Code at the point of intentional administration to animals.

(7)  In subclause (6) (d), Agvet Code means the Agricultural and Veterinary Chemicals Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth.

Division 2 Obligations relating to safety data sheets and other matters

Subdivision 1 Obligations of manufacturers and importers

Notes—

1 A manufacturer or importer of hazardous chemicals may also be a person conducting a business or undertaking at a workplace.

2 A manufacturer or importer is defined in section 23 or 24 of the Act as a person conducting a business or undertaking of manufacturing or importing.

329 Classification of hazardous chemicals

The manufacturer or importer of a substance, mixture or article must, before first supplying it to a workplace:

(a)  determine whether the substance, mixture or article is a hazardous chemical, and

(b)  if the substance, mixture or article is a hazardous chemical—ensure that the hazardous chemical is correctly classified in accordance with Part 1 of Schedule 9.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

330 Manufacturer or importer to prepare and provide safety data sheets

(1)  A manufacturer or importer of a hazardous chemical must prepare a safety data sheet for the hazardous chemical:

(a)  before first manufacturing or importing the hazardous chemical, or

(b)  if that is not practicable—as soon as practicable after first manufacturing or importing the hazardous chemical and before first supplying it to a workplace.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The safety data sheet must comply with clause 1 of Schedule 7 unless clause 331 applies.

(3)  The manufacturer or importer of the hazardous chemical must:

(a)  review the safety data sheet at least once every 5 years, and

(b)  amend the safety data sheet whenever necessary to ensure that it contains correct, current information.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  The manufacturer or importer of the hazardous chemical must provide the current safety data sheet for the hazardous chemical to any person, if the person:

(a)  is likely to be affected by the hazardous chemical, and

(b)  asks for the safety data sheet.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  Subclauses (3) and (4) do not apply to a manufacturer or importer of a hazardous chemical who has not manufactured or imported the hazardous chemical in the past 5 years.

331 Safety data sheets—research chemical, waste product or sample for analysis

(1)  This clause applies if:

(a)  a hazardous chemical is a research chemical, waste product or sample for analysis, and

(b)  it is not reasonably practicable for a manufacturer or importer of the hazardous chemical to comply with clause 1 of Schedule 7.

(2)  The manufacturer or importer must prepare a safety data sheet for the hazardous chemical that complies with clause 2 of Schedule 7.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

332 Emergency disclosure of chemical identities to registered medical practitioner

(1)  This clause applies if a registered medical practitioner:

(a)  reasonably believes that knowing the chemical identity of an ingredient of a hazardous chemical may help to treat a patient, and

(b)  requests the manufacturer or importer of the hazardous chemical to give the registered medical practitioner the chemical identity of the ingredient, and

(c)  gives an undertaking to the manufacturer or importer that the chemical identity of the ingredient will be used only to help treat the patient, and

(d)  gives an undertaking to the manufacturer or importer to give the manufacturer or importer as soon as practicable a written statement about the need to obtain the chemical identity of the ingredient.

(2)  The manufacturer or importer of a hazardous chemical must give the registered medical practitioner the chemical identity of an ingredient of the hazardous chemical as soon as practicable.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

333 Emergency disclosure of chemical identities to emergency service worker

The manufacturer or importer of a hazardous chemical must give an emergency service worker the chemical identity of an ingredient of the hazardous chemical as soon as practicable after the worker requests it.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

334 Packing hazardous chemicals

The manufacturer or importer of a hazardous chemical must ensure that the hazardous chemical is correctly packed, in accordance with Part 2 of Schedule 9, as soon as practicable after manufacturing or importing the hazardous chemical.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

335 Labelling hazardous chemicals

(1)  The manufacturer or importer of a hazardous chemical must ensure that the hazardous chemical is correctly labelled as soon as practicable after manufacturing or importing the hazardous chemical.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A hazardous chemical is correctly labelled if the selection and use of label elements is in accordance with the GHS and it complies with Part 3 of Schedule 9.

(3)  This clause does not apply to a hazardous chemical if:

(a)  the hazardous chemical is a consumer product that is labelled in accordance with the Standard for the Uniform Scheduling of Medicines and Poisons 2011 published by the Commonwealth, as in force or remade from time to time, and

(b)  the container for the hazardous chemical has its original label, and

(c)  it is reasonably foreseeable that the hazardous chemical will be used in a workplace only in:

(i)  a quantity that is consistent with household use, and

(ii)  a way that is consistent with household use, and

(iii)  a way that is incidental to the nature of the work carried out by a worker using the hazardous chemical.

(4)  This clause does not apply to hazardous chemicals in transit.

(5)  This clause does not apply to a hazardous chemical that:

(a)  is therapeutic goods within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth, and

(b)  is in a form intended for human consumption, for administration to or by a person or use by a person for therapeutic purposes, and

(c)  is labelled in accordance with that Act or an order made under that Act.

(6)  This clause does not apply to cosmetics and toiletries.

Subdivision 2 Obligations of suppliers

Notes—

1 A supplier of hazardous chemicals may also be a person conducting a business or undertaking at a workplace.

2 A supplier is defined in section 25 of the Act as a person who conducts a business or undertaking of supplying.

3 An operator of a major hazard facility is required to notify certain quantities of hazardous chemicals under Part 9.2.

336 Restriction on age of person who can supply hazardous chemicals

A person conducting a business or undertaking must not direct or allow a worker to supply a hazardous chemical that is a flammable gas or flammable liquid to another person into any container or vehicle provided by that other person unless the worker is at least 16 years of age.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

Examples—

1 Decanting fuel into a fuel container.

2 Refuelling a car.

337 Retailer or supplier packing hazardous chemicals

(1)  The supplier of a hazardous chemical must not supply the hazardous chemical for use at another workplace if the supplier knows or ought reasonably to know that the hazardous chemical is not correctly packed.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(2)  A retailer who supplies a hazardous chemical in a container provided by the person supplied with the chemical must ensure that the hazardous chemical is correctly packed.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

338 Supplier labelling hazardous chemicals

The supplier of a hazardous chemical must not supply the hazardous chemical to another workplace if the supplier knows or ought reasonably to know that the hazardous chemical is not correctly labelled in accordance with clause 335.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

339 Supplier to provide safety data sheets

(1)  The supplier of a hazardous chemical to a workplace must ensure that the current safety data sheet for the hazardous chemical is provided with the hazardous chemical:

(a)  when the hazardous chemical is first supplied to the workplace, and

(b)  if the safety data sheet for the hazardous chemical is amended—when the hazardous chemical is first supplied to the workplace after the safety data sheet is amended.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A hazardous chemical is taken to be first supplied to a workplace if the supply is the first supply of the hazardous chemical to the workplace for 5 years.

(3)  The supplier of a hazardous chemical to a workplace must ensure that the current safety data sheet for the hazardous chemical is provided to a person at the workplace if the person asks for the safety data sheet.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  This clause does not apply to a supplier of a hazardous chemical if:

(a)  the hazardous chemical is a consumer product, or

(b)  the supplier is a retailer.

Note—

A manufacturer or importer is required to prepare a safety data sheet under clause 330.

340 Supply of prohibited and restricted carcinogens

(1)  The supplier of a prohibited carcinogen referred to in an item in Schedule 10, table 10.1 must not supply the substance unless the person to be supplied with the substance gives the supplier evidence that:

(a)  the substance is to be used, handled or stored for genuine research or analysis, and

(b)  either:

(i)  the regulator has authorised the person to use, handle or store the substance under clause 384, or

(ii)  the regulator has granted an exemption under Part 11.2 to the person to use, handle or store the substance.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The supplier of a restricted carcinogen referred to in an item in Schedule 10, table 10.2, column 2 must not supply the substance for a use referred to in column 3 for the item unless the person to be supplied with the substance gives the supplier evidence that:

(a)  the regulator has authorised the person to use, handle or store the substance under clause 384, or

(b)  the regulator has granted an exemption to the person under Part 11.2 to use, handle or store the substance.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  A supplier under subclause (1) or (2) must keep a record of:

(a)  the name of the person supplied, and

(b)  the name and quantity of the substance supplied.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

(4)  The supplier must keep the record for 5 years after the substance was last supplied to the person.

Maximum penalty:

(a)  in the case of an individual—$1,250, or

(b)  in the case of a body corporate—$6,000.

Subdivision 3 Obligations of persons conducting businesses or undertakings

341 Labelling hazardous chemicals—general requirement

A person conducting a business or undertaking at a workplace must ensure that a hazardous chemical used, handled or stored at the workplace is correctly labelled in accordance with clause 335.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

342 Labelling hazardous chemicals—containers

(1)  A person conducting a business or undertaking at a workplace must ensure that a hazardous chemical is correctly labelled in accordance with clause 335 if the hazardous chemical is:

(a)  manufactured at the workplace, or

(b)  transferred or decanted from its original container at the workplace.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that a container that stores a hazardous chemical is correctly labelled in accordance with clause 335 while the container contains the hazardous chemical.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(3)  A person conducting a business or undertaking at a workplace must ensure that a container labelled for a hazardous chemical is used only for the use, handling or storage of the hazardous chemical.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(4)  This clause does not apply to a container if:

(a)  the hazardous chemical in the container is used immediately after it is put in the container, and

(b)  the container is thoroughly cleaned immediately after the hazardous chemical is used, handled or stored so that the container is in the condition it would be in if it had never contained the hazardous chemical.

cl 342: Am 2015 (61), Sch 1 [58].

343 Labelling hazardous chemicals—pipe work

A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that a hazardous chemical in pipe work is identified by a label, sign or another way on or near the pipe work.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

344 Person conducting business or undertaking to obtain and give access to safety data sheets

(1)  A person conducting a business or undertaking at a workplace must obtain the current safety data sheet for a hazardous chemical prepared in accordance with this Regulation from the manufacturer, importer or supplier of the hazardous chemical in the following circumstances:

(a)  either:

(i)  not later than when the hazardous chemical is first supplied for use at the workplace, or

(ii)  if the person is not able to obtain the safety data sheet under subparagraph (i)—as soon as practicable after the hazardous chemical is first supplied to the workplace but before the hazardous chemical is used at the workplace,

(b)  if the safety data sheet for the hazardous chemical is amended either:

(i)  not later than when the hazardous chemical is first supplied to the workplace after the safety data sheet is amended, or

(ii)  if the person is not able to obtain the amended safety data sheet under subparagraph (i)—as soon as practicable after the hazardous chemical is first supplied to the workplace after the safety data sheet is amended and before the hazardous chemical supplied is used at the workplace.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The hazardous chemical is taken to be first supplied to a workplace if the supply is the first supply of the hazardous chemical to the workplace for 5 years.

(3)  The person must ensure that the current safety data sheet for the hazardous chemical is readily accessible to:

(a)  a worker who is involved in using, handling or storing the hazardous chemical at the workplace, and

(b)  an emergency service worker, or anyone else, who is likely to be exposed to the hazardous chemical at the workplace.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(4)  Subclauses (1) and (3) do not apply to a hazardous chemical that:

(a)  is in transit, or

(b)  if the person conducting the business or undertaking at the workplace is a retailer—is:

(i)  a consumer product, and

(ii)  intended for supply to other premises, or

(c)  is a consumer product and it is reasonably foreseeable that the hazardous chemical will be used at the workplace only in:

(i)  quantities that are consistent with household use, and

(ii)  a way that is consistent with household use, and

(iii)  a way that is incidental to the nature of the work carried out by a worker using the hazardous chemical.

(5)  In the circumstances referred to in subclause (4), the person must ensure that sufficient information about the safe use, handling and storage of the hazardous chemical is readily accessible to:

(a)  a worker at the workplace, and

(b)  an emergency service worker, or anyone else, who is likely to be exposed to the hazardous chemical at the workplace.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(6)  The person must ensure that the current safety data sheet for the hazardous chemical is readily accessible to a person at the workplace if the person:

(a)  is likely to be affected by the hazardous chemical, and

(b)  asks for the safety data sheet.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

345 Changes to safety data sheets

A person conducting a business or undertaking at a workplace may change a safety data sheet for a hazardous chemical only if:

(a)  the person:

(i)  is an importer or manufacturer of the hazardous chemical, and

(ii)  changes the safety data sheet in a way that is consistent with the duties of the importer or manufacturer under clause 330, or

(b)  the change is only the attachment of a translation of the safety data sheet, and clearly states that the translation is not part of the original safety data sheet.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

Note—

The manufacturer or importer of a hazardous chemical must amend a safety data sheet as necessary to ensure the information is correct and current (see clause 330 (3) (b)).

Division 3 Register and manifest of hazardous chemicals

Subdivision 1 Hazardous chemicals register

346 Hazardous chemicals register

(1)  A person conducting a business or undertaking at a workplace must ensure that:

(a)  a register of hazardous chemicals used, handled or stored at the workplace is prepared and kept at the workplace, and

(b)  the register is maintained to ensure the information in the register is up to date.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The register must include:

(a)  a list of hazardous chemicals used, handled or stored, and

(b)  the current safety data sheet for each hazardous chemical listed.

(3)  The person must ensure that the register is readily accessible to:

(a)  a worker involved in using, handling or storing a hazardous chemical, and

(b)  anyone else who is likely to be affected by a hazardous chemical at the workplace.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

(4)  This clause does not apply to a hazardous chemical if:

(a)  the hazardous chemical is in transit, unless there is a significant or frequent presence of the hazardous chemical in transit at the workplace, or

(b)  the hazardous chemical is a consumer product and the person is not required to obtain a safety data sheet for the hazardous chemical under clause 344.

Note—

See clause 344 (4).

cl 346: Am 2015 (61), Sch 1 [59].

Subdivision 2 Manifest of Schedule 11 hazardous chemicals

Note—

Clause 361 requires an emergency plan to be prepared if the quantity of hazardous chemicals used, handled or stored at a workplace exceeds the manifest quantity for that hazardous chemical.

347 Manifest of hazardous chemicals

(1)  A person conducting a business or undertaking at a workplace must, if the quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals used, handled or stored at the workplace exceeds the manifest quantity for the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals:

(a)  prepare a manifest of Schedule 11 hazardous chemicals, and

(b)  amend the manifest as soon as practicable if:

(i)  the type or quantity of Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals that must be listed in the manifest changes, or

(ii)  there is a significant change in the information required to be recorded in the manifest.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A manifest of Schedule 11 hazardous chemicals must comply with Schedule 12.

(3)  The person must keep the manifest:

(a)  in a place determined in agreement with the primary emergency service organisation, and

(b)  available for inspection under the Act, and

(c)  readily accessible to the emergency service organisation.

Maximum penalty:

(a)  in the case of an individual—$3,600, or

(b)  in the case of a body corporate—$18,000.

348 Regulator must be notified if manifest quantities to be exceeded

(1)  A person conducting a business or undertaking at a workplace must ensure that the regulator is given written notice if a quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals that exceeds the manifest quantity is used, handled or stored, or is to be used, handled or stored, at the workplace.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  The notice under subclause (1) must be given:

(a)  immediately after the person knows that the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals is to be first used, handled or stored at the workplace or at least 14 days before that first use handling or storage (whichever is earlier), and

(b)  immediately after the person knows that there will be a significant change in the risk of using, handling or storing the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals at the workplace or at least 14 days before that change (whichever is earlier).

(c)    (Repealed)

(3)  The notice under subclause (1) must include the following:

(a)  the name and ABN of the person conducting the business or undertaking,

(b)  the type of business or undertaking conducted,

(c)  if the workplace was previously occupied by someone else—the name of the most recent previous occupier, if known,

(d)  the activities of the business or undertaking that involve using, handling or storing Schedule 11 hazardous chemicals,

(e)  the manifest prepared by the person conducting the business or undertaking under clause 347,

(f)  in the case of a notice under subclause (2) (b)—details of the changes to the manifest.

(4)  A person conducting a business or undertaking at a workplace must ensure that the regulator is given written notice as soon as practicable after the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals ceases to be used, handled or stored at the workplace if it is not likely to be used, handled or stored at the workplace in the future.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(5)  The notice under subclause (4) must include the information referred to in subclause (3) (a), (b) and (d).

(6)  If the regulator asks for any further information about the manifest quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals, the person must ensure that the information is given to the regulator.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

cl 348: Am 2015 (61), Sch 1 [60] [61].

Division 4 Placards

349 Outer warning placards—requirement to display

(1)  A person conducting a business or undertaking at a workplace must ensure that an outer warning placard is prominently displayed at the workplace if the total quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals used, handled or stored at the workplace exceeds the placard quantity for the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  An outer warning placard must comply with Schedule 13.

(3)  This clause does not apply to a workplace if:

(a)  the workplace is a retail outlet, and

(b)  the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals is used to refuel a vehicle, and is either:

(i)  a flammable gas, or

(ii)  a flammable liquid.

350 Placard—requirement to display

(1)  A person conducting a business or undertaking at a workplace must ensure that a placard is prominently displayed at the workplace if the total quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals stored at the workplace exceeds the placard quantity for the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals.

Maximum penalty:

(a)  in the case of an individual—$6,000, or

(b)  in the case of a body corporate—$30,000.

(2)  A placard must comply with Schedule 13.

(3)  This clause does not apply to a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals if:

(a)  the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals is in bulk in a container, including an IBC, that is intended for transport and a placard is displayed on the container in accordance with the ADG Code, or

(b)  the Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals is a flammable liquid stored in an underground tank at a retail outlet and used to refuel a vehicle.

Division 5 Control of risk—obligations of persons conducting businesses or undertakings

Subdivision 1 General obligations relating to management of risk

351 Management of risks to health or safety

(1)  A person conducting a business or undertaking must manage, in accordance with Part 3.1, risks to health and safety associated with using, handling, generating or storing a hazardous chemical at a workplace.

Note—

WHS Act—section 19 (see clause 9).

(2)  In managing risks the person must have regard to the following:

(a)  the hazardous properties of the hazardous chemical,

(b)  any potentially hazardous chemical or physical reaction between the hazardous chemical and another substance or mixture, including a substance that may be generated by the reaction,

(c)  the nature of the work to be carried out with the hazardous chemical,

(d)  any structure, plant or system of work:

(i)  that is used in the use, handling, generation or storage of the hazardous chemical, or

(ii)  that could interact with the hazardous chemical at the workplace.

352 Review of control measures

In addition to the circumstances in clause 38, a person conducting a business or undertaking at a workplace must ensure that any measures implemented to control risks in relation to a hazardous chemical at the workplace are reviewed and as necessary revised in any of the following circumstances:

(a)  following any change to the safety data sheet for the hazardous chemical or the register of hazardous chemicals,

(b)  if the person obtains a health monitoring report for a worker under Division 6 that contains:

(i)  test results that indicate that the worker has been exposed to the hazardous chemical and has an elevated level of metabolites in his or her body for that hazardous chemical, or

(ii)  any advice that test results indicate that the worker may have contracted a disease, injury or illness as a result of carrying out the work using, handling, generating or storing the hazardous chemical that triggered the requirement for health monitoring, or

(iii)  any recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the work using, handling, generating or storing the hazardous chemical that triggered the requirement for health monitoring,

(c)  if monitoring carried out under clause 50 determines that the airborne concentration of the hazardous chemical at the workplace exceeds the relevant exposure standard,