Petroleum Legislation Amendment and Repeal Act 2005

Western Australia

CONTENTS

Part 1 — Preliminary

1. Short title 2

2. Commencement 2

Part 2 — Petroleum Act 1967

3. The Act amended 3

4. Section 5 amended 3

5. Section 7AA inserted 7

7AA. Disapplication of State occupational safety and health laws 7

6. Section 83 repealed 7

7. Section 91 amended 7

8. Section 117A inserted 8

117A. Interfering with petroleum operation 8

9. Section 118 amended 8

10. Section 119 amended 8

11. Section 119A inserted 9

119A. Protection from liability for wrongdoing 9

12. Section 125 amended 9

13. Section 126A inserted 9

126A. Evidentiary matters 9

14. Part IIIA inserted 11

Part IIIA — Occupational safety and health

149A. Occupational safety and health 11

149B. Regulations relating to occupational safety and health 11

149C. Minister’s occupational safety and health functions 12

15. Section 153 amended 13

16. Various sections amended to delete “the regulations” (Interpretation Act 1984 s. 46) 13

17. Schedule replaced with Schedule 1 14

Schedule 1 — Occupational safety and health

Division 1 — Introduction

1. Objects 14

2. Simplified outline 15

3. Definitions 16

4. Operator must ensure presence of operator’s representative 19

5. Safety and health of persons using an accommodation amenity 19

6. Contractor 19

Division 2 — Occupational safety and health

Subdivision 1 — Duties relating to occupational safety and health

7. Duties of operator 20

8. Duties of persons in control of parts of petroleum operation 22

9. Duties of employers 23

10. Duties of manufacturers in relation to plant and substances 25

11. Duties of suppliers of facilities, plant and substances 26

12. Duties of persons erecting facilities or installing plant 28

13. Duties of persons in relation to occupational safety and health 29

14. Reliance on information supplied or results of research 30

Subdivision 2 — Regulations relating to occupational safety and health

15. Regulations relating to occupational safety and health 31

Division 3 — Workplace arrangements

Subdivision 1 — Introduction

16. Simplified outline 33

Subdivision 2 — Designated work groups

17. Establishment of designated work groups by request 34

18. Establishment of designated work groups at initiative of operator 35

19. Variation of designated work groups by request36

20. Variation of designated work groups at initiative of operator 37

21. Referral of disagreement to reviewing authority38

22. Manner of grouping members of the workforce39

Subdivision 3 — Safety and health representatives

23. Selection of safety and health representatives 40

24. Election of safety and health representatives 40

25. List of safety and health representatives 41

26. Members of designated work group must be notified of selection etc. of safety and health representative41

27. Term of office 42

28. Training of safety and health representatives 42

29. Resignation etc. of safety and health representatives 43

30. Disqualification of safety and health representatives 44

31. Deputy safety and health representatives 45

32. Powers of safety and health representatives 45

33. Assistance by consultant 47

34. Information 48

35. Obligations and liabilities of safety and health representatives 49

36. Provisional improvement notices 49

37. Effect of provisional improvement notice 51

38. Duties of the operator and other employers in relation to safety and health representatives53

Subdivision 4 — Safety and health committees

39. Safety and health committees 55

40. Functions of safety and health committees 56

41. Duties of the operator and other employers in relation to safety and health committees58

Subdivision 5 — Emergency procedures

42. Action by safety and health representatives 59

43. Directions to perform other work 60

Subdivision 6 — Exemptions

44. Exemptions 61

Division 4 — Inspections

Subdivision 1 — Introduction

45. Simplified outline 61

46. Powers, functions and duties of inspectors 62

Subdivision 2 — Inspections

47. Inspections 62

Subdivision 3 — Powers of inspectors in relation to the conduct of inspections

48. Powers of entry and search — places at which petroleum operations are carried on 63

49. Powers of entry and search — regulated business premises (other than places where petroleum operations carried on)64

50. Powers of entry and search — premises (other than regulated business premises) 65

51. Warrant to enter premises (other than regulated business premises) 67

52. Obstructing or hindering inspector 67

53. Power to require assistance and information 68

54. Power to require the answering of questions and the production of documents or articles69

55. Privilege against self‑incrimination 71

56. Power to take possession of plant, take samples of substances etc. 71

57. Power to direct that workplace etc. not be disturbed 73

58. Power to issue prohibition notices 74

59. Compliance with prohibition notice 75

60. Power to issue improvement notices 76

61. Compliance with improvement notice 78

62. Notices not to be tampered with or removed 78

Subdivision 4 — Reports on inspections

63. Reports on inspections 79

Subdivision 5 — Reviews of inspectors’ decisions

64. Reviews of inspectors’ decisions 80

65. Powers of reviewing authority on review 83

Division 5 — Referrals to the Tribunal

66. Decision may be referred to Tribunal 84

67. Determination by Tribunal 84

68. Effect of pending review by Tribunal 85

69. Jurisdiction of Tribunal 85

Division 6 — General

70. Notifying and reporting accidents and dangerous occurrences 86

71. Records of accidents and dangerous occurrences to be kept 87

72. Codes of practice 87

73. Use of codes of practice in proceedings 88

74. Interference etc. with equipment etc. 88

75. No charges to be levied on members of workforce 89

76. Victimisation 89

77. Institution of prosecutions 90

78. Conduct of directors, employees and agents 91

79. Act not to give rise to other liabilities etc. 92

80. Circumstances preventing compliance may be defence to prosecution 93

81. Regulations — general 93

Part 3 — Petroleum Pipelines Act 1969

18. The Act amended 95

19. Section 4 amended 95

20. Section 5AA inserted 96

5AA. Disapplication of State occupational safety and health laws 96

21. Section 36A amended 96

22. Section 55 repealed 97

23. Part IVA inserted 97

Part IVA — Occupational safety and health

56A. Occupational safety and health 97

56B. Regulations relating to occupational safety and health 97

56C. Minister’s occupational safety and health functions 98

24. Section 61 amended 98

25. Section 62 amended 99

26. Section 63 amended 99

27. Section 63A inserted 99

63A. Protection from liability for wrongdoing 99

28. Section 65 replaced 100

65. Interfering with pipeline operation 100

29. Sections 66BA and 66BB inserted and transitional provision100

66BA. Time for bringing proceedings for offences against this Act (including the regulations)100

66BB. Evidentiary matters 101

30. Section 67 amended 102

31. Various sections amended to delete “or the regulations” (Interpretation Act 1984 s. 46)103

32. Schedule 1 inserted 103

Schedule 1 — Occupational safety and health

Division 1 — Introduction

1. Objects 103

2. Simplified outline 104

3. Definitions 105

4. Licensee must ensure presence of licensee’s representative 108

5. Safety and health of persons using an accommodation amenity 109

6. Contractor 109

Division 2 — Occupational safety and health

Subdivision 1 — Duties relating to occupational safety and health

7. Duties of licensee 109

8. Duties of persons in control of parts of pipeline operation 112

9. Duties of employers 112

10. Duties of manufacturers in relation to plant and substances 114

11. Duties of suppliers of pipelines, plant and substances 116

12. Duties of persons constructing pipelines or installing plant 118

13. Duties of persons in relation to occupational safety and health 118

14. Reliance on information supplied or results of research 119

Subdivision 2 — Regulations relating to occupational safety and health

15. Regulations relating to occupational safety and health 121

Division 3 — Workplace arrangements

Subdivision 1 — Introduction

16. Simplified outline 123

Subdivision 2 — Designated work groups

17. Establishment of designated work groups by request 123

18. Establishment of designated work groups at initiative of licensee 125

19. Variation of designated work groups by request125

20. Variation of designated work groups at initiative of licensee 127

21. Referral of disagreement to reviewing authority127

22. Manner of grouping members of the workforce128

Subdivision 3 — Safety and health representatives

23. Selection of safety and health representatives129

24. Election of safety and health representatives 130

25. List of safety and health representatives 131

26. Members of designated work group must be notified of selection etc. of safety and health representative131

27. Term of office 131

28. Training of safety and health representatives 132

29. Resignation etc. of safety and health representatives 132

30. Disqualification of safety and health representatives 133

31. Deputy safety and health representatives 134

32. Powers of safety and health representatives 135

33. Assistance by consultant 137

34. Information 138

35. Obligations and liabilities of safety and health representatives 138

36. Provisional improvement notices 139

37. Effect of provisional improvement notice 141

38. Duties of the licensee and other employers in relation to safety and health representatives142

Subdivision 4 — Safety and health committees

39. Safety and health committees 144

40. Functions of safety and health committees 146

41. Duties of the licensee and other employers in relation to safety and health committees147

Subdivision 5 — Emergency procedures

42. Action by safety and health representatives 148

43. Directions to perform other work 150

Subdivision 6 — Exemptions

44. Exemptions 150

Division 4 — Inspections

Subdivision 1 — Introduction

45. Simplified outline 151

46. Powers, functions and duties of inspectors 151

Subdivision 2 — Inspections

47. Inspections 152

Subdivision 3 — Powers of inspectors in relation to the conduct of inspections

48. Powers of entry and search — places at which pipeline operations are carried on 152

49. Powers of entry and search — regulated business premises (other than places where pipeline operations carried on)154

50. Powers of entry and search — premises (other than regulated business premises) 155

51. Warrant to enter premises (other than regulated business premises) 156

52. Obstructing or hindering inspector 157

53. Power to require assistance and information 157

54. Power to require the answering of questions and the production of documents or articles158

55. Privilege against self‑incrimination 160

56. Power to take possession of plant, take samples of substances etc. 161

57. Power to direct that workplace etc. not be disturbed 162

58. Power to issue prohibition notices 164

59. Compliance with prohibition notice 165

60. Power to issue improvement notices 165

61. Compliance with improvement notice 168

62. Notices not to be tampered with or removed 168

Subdivision 4 — Reports on inspections

63. Reports on inspections 168

Subdivision 5 — Reviews of inspectors’ decisions

64. Reviews of inspectors’ decisions 170

65. Powers of reviewing authority on review 173

Division 5 — Referrals to the Tribunal

66. Decision may be referred to Tribunal 173

67. Determination by Tribunal 174

68. Effect of pending review by Tribunal 175

69. Jurisdiction of Tribunal 175

Division 6 — General

70. Notifying and reporting accidents and dangerous occurrences 176

71. Records of accidents and dangerous occurrences to be kept 177

72. Codes of practice 177

73. Use of codes of practice in proceedings 177

74. Interference etc. with equipment etc. 178

75. No charges to be levied on members of workforce 178

76. Victimisation 179

77. Institution of prosecutions 180

78. Conduct of directors, employees and agents 181

79. Act not to give rise to other liabilities etc. 182

80. Circumstances preventing compliance may be defence to prosecution 182

81. Regulations — general 182

Part 4 — Petroleum (Submerged Lands) Act 1982

33. The Act amended 184

34. Section 4 amended 184

35. Section 11 amended 185

36. Part IIA inserted 185

Part IIA — Application of laws

15A. Disapplication of State occupational safety and health laws 185

37. Section 89 repealed 186

38. Section 97 amended 186

39. Section 124B inserted 187

124B. Interfering with offshore petroleum installation or operation 187

40. Section 125 amended 188

41. Section 126 amended 188

42. Section 126A inserted 188

126A. Protection from liability for wrongdoing 188

43. Section 137A inserted 189

137A. Evidentiary matters 189

44. Part IIIA inserted 191

Part IIIA — Occupational safety and health

Division 1 — Introduction

151A. Definitions 191

151B. Occupational safety and health 191

151C. Listed OSH laws 191

151D. Regulations relating to occupational safety and health 192

Division 2 — Functions and powers of the Safety Authority

151E. Safety Authority’s functions 193

151F. Safety Authority’s ordinary powers 194

151G. Judicial notice of seal 195

Division 3 — Safety Authority Board

151H. Functions of the Board 195

151I. Powers of the Board 196

151J. Validity of decisions 196

Division 4 — Chief Executive Officer and staff of the Safety Authority

151K. CEO acts for Safety Authority 197

151L. Working with the Board 197

151M. Delegation 197

151N. Safety Authority may use State government staff198

Division 5 — Other Safety Authority provisions

151O. Minister may require the Safety Authority to prepare reports or give information 198

151P. Directions to the Safety Authority 199

151Q. Reviews of operations of Safety Authority 199

45. Section 152 amended 200

46. Various sections amended to delete “the regulations” (Interpretation Act 1984 s. 46) 201

47. Schedule 5 inserted 202

Schedule 5 — Occupational safety and health

Division 1 — Introduction

1. Objects 202

2. Simplified outline 202

3. Definitions 204

4. Facilities 207

5. Operator must ensure presence of operator’s representative 209

6. Safety and health of persons using an accommodation amenity 210

7. Contractor 210

Division 2 — Occupational safety and health

Subdivision 1 — Duties relating to occupational safety and health

8. Duties of operator 210

9. Duties of persons in control of parts of facility or particular work 213

10. Duties of employers 214

11. Duties of manufacturers in relation to plant and substances 215

12. Duties of suppliers of facilities, plant and substances 217

13. Duties of persons erecting facilities or installing plant 218

14. Duties of persons in relation to occupational safety and health 219

15. Reliance on information supplied or results of research 220

Subdivision 2 — Regulations relating to occupational safety and health

16. Regulations relating to occupational safety and health 221

Division 3 — Workplace arrangements

Subdivision 1 — Introduction

17. Simplified outline 223

Subdivision 2 — Designated work groups

18. Establishment of designated work groups by request 224

19. Establishment of designated work groups at initiative of operator 225

20. Variation of designated work groups by request225

21. Variation of designated work groups at initiative of operator 227

22. Referral of disagreement to reviewing authority228

23. Manner of grouping members of the workforce228

Subdivision 3 — Safety and health representatives

24. Selection of safety and health representatives229

25. Election of safety and health representatives 230

26. List of safety and health representatives 231

27. Members of designated work group must be notified of selection etc. of safety and health representative231

28. Term of office 231

29. Training of safety and health representatives 232

30. Resignation etc. of safety and health representatives 232

31. Disqualification of safety and health representatives 233

32. Deputy safety and health representatives 234

33. Powers of safety and health representatives 235

34. Assistance by consultant 237

35. Information 238

36. Obligations and liabilities of safety and health representatives 238

37. Provisional improvement notices 239

38. Effect of provisional improvement notice 241

39. Duties of the operator and other employers in relation to safety and health representatives243

Subdivision 4 — Safety and health committees

40. Safety and health committees 245

41. Functions of safety and health committees 246

42. Duties of the operator and other employers in relation to safety and health committees247

Subdivision 5 — Emergency procedures

43. Action by safety and health representatives 248

44. Directions to perform other work 250

Subdivision 6 — Exemptions

45. Exemptions 250

Division 4 — Inspections

Subdivision 1 — Introduction

46. Simplified outline 251

47. Powers, functions and duties of OHS inspectors251

Subdivision 2 — Inspections

48. Inspections 252

Subdivision 3 — Powers of OHS inspectors in relation to the conduct of inspections

49. Powers of entry and search — facilities 253

50. Powers of entry and search — regulated business premises (other than facilities) 254

51. Powers of entry and search — premises (other than regulated business premises) 255

52. Warrant to enter premises (other than regulated business premises) 256

53. Obstructing or hindering OHS inspector 257

54. Power to require assistance and information 257

55. Power to require the answering of questions and the production of documents or articles258

56. Privilege against self‑incrimination 260

57. Power to take possession of plant, take samples of substances etc. 261

58. Power to direct that workplace etc. not be disturbed 262

59. Power to issue prohibition notices 263

60. Compliance with prohibition notice 265

61. Power to issue improvement notices 265

62. Compliance with improvement notice 267

63. Notices not to be tampered with or removed 268

Subdivision 4 — Reports on inspections

64. Reports on inspections 268

Subdivision 5 — Reviews of OHS inspectors’ decisions

65. Reviews of decisions of OHS inspectors 270

66. Powers of reviewing authority on review 273

Division 5 — Referrals to the Tribunal

67. Decision may be referred to Tribunal 273

68. Determination by Tribunal 274

69. Effect of pending review by Tribunal 274

70. Jurisdiction of Tribunal 275

Division 6 — General

71. Notifying and reporting accidents and dangerous occurrences 276

72. Records of accidents and dangerous occurrences to be kept 277

73. Codes of practice 277

74. Use of codes of practice in proceedings 277

75. Interference etc. with equipment etc. 278

76. No charges to be levied on members of workforce 278

77. Victimisation 279

78. Institution of prosecutions 280

79. Conduct of directors, employees and agents 281

80. Act not to give rise to other liabilities etc. 282

81. Circumstances preventing compliance may be defence to prosecution 282

82. Regulations — general 282

Part 5 — Other Acts

48. Barrow Island Act 2003 amended 284

49. Industrial Relations Act 1979 amended 284

50. Occupational Safety and Health Act 1984 amended 285

51. Petroleum Safety Act 1999 repealed 286

Western Australia

Petroleum Legislation Amendment and Repeal Act 2005

No. 13 of 2005

An Act to amend the —

·Petroleum Act 1967;

·Petroleum Pipelines Act 1969;

·Petroleum (Submerged Lands) Act 1982,

to repeal the Petroleum Safety Act 1999 and to make consequential amendments to the —

·Barrow Island Act 2003;

·Industrial Relations Act 1979;

·Occupational Safety and Health Act 1984,

to make provision for safety and health matters relating to petroleum operations, petroleum pipeline operations and offshore petroleum operations.

[Assented to 1 September 2005]

The Parliament of Western Australia enacts as follows:

Part 1 — Preliminary

1. Short title

This is the Petroleum Legislation Amendment and Repeal Act 2005.

2. Commencement

(1) This Act comes into operation on a day fixed by proclamation.

(2) Different days may be fixed under subsection (1) for different provisions.

Part 2 — Petroleum Act 1967

3. The Act amended

The amendments in this Part are to the Petroleum Act 1967*.

[* Reprinted as at 14 January 2000.

For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 335.]

4. Section 5 amended

Section 5(1) is amended by inserting in the appropriate alphabetical positions the following definitions —

“

“facility” means a structure for or in connection with carrying out a petroleum operation;

“listed OSH law” means —

(a) section 117A;

(b) Schedule 1;

(d) a regulation made for the purposes of section 149B; or

(e) any other written law relating to occupational safety and health matters that is prescribed for the purposes of this paragraph;

“operator” —

(a) in relation to an operation to explore for petroleum or the carrying on of such operations or the execution of such works as are necessary for that purpose, in a permit area, means the registered holder of the permit for that area;

(b) in relation to an operation to drill for petroleum or the carrying on of such operations or the execution of such works as are necessary for that purpose, in a drilling reservation area, means the registered holder of the drilling reservation for that area;

(c) in relation to an operation to explore for petroleum or the carrying on of such operations or the execution of such works as are necessary for that purpose, in a lease area, means the registered holder of the lease for that area;

(d) in relation to —

(i) an operation to recover petroleum in a licence area or to recover petroleum from a licence area in another area;

(ii) an operation to explore for petroleum in a licence area; or

(iii) the carrying on of such operations or the execution of such works in a licence area as are necessary for those purposes,

means the registered holder of the licence for that area;

(e) in relation to an operation for the mining, obtaining or production of petroleum under the Barrow Island lease, as defined in section 128, means the lessee, as defined in that section;

(f) in relation to a petroleum exploration operation specified in a special prospecting authority, means the registered holder of the special prospecting authority;

(g) in relation to a petroleum exploration operation or an operation related to the recovery of petroleum in or from an area specified in an access authority, means the registered holder of the access authority;

(h) in relation to the injection of petroleum into a natural underground reservoir, means a person (other than the Minister) who is a party to an agreement under section 67(1), or who has the Minister’s approval under section 67(2), in respect of that injection;

(i) in relation to the injection of carbon dioxide, as defined in section 3 of the Barrow Island Act 2003, into an underground reservoir or other subsurface formation, means a person who has the BI Act Minister’s approval under section 13 of that Act, in respect of that injection;

(j) in relation to any other kind of operation that is prescribed by the regulations to be a petroleum operation for the purposes of the definition of “petroleum operation”, means the person prescribed by the regulations to be the operator of such a petroleum operation for the purposes of this definition;

“other protected person” means a person who is at or near a place where a petroleum operation is being carried on at the invitation of, or with the express or implied consent of —

(a) the operator of the petroleum operation; or

(b) a person in control of a part of the petroleum operation;

“petroleum operation” means —

(a) an operation to explore for petroleum, and the carrying on of such operations and the execution of such works as are necessary for that purpose;

(b) an operation to drill for petroleum, and the carrying on of such operations and the execution of such works as are necessary for that purpose;

(c) an operation to recover petroleum, and the carrying on of such operations and the execution of such works as are necessary for that purpose;

(d) an operation for the mining, obtaining or production of petroleum under the Barrow Island lease, as defined in section 128;

(e) the injection of petroleum into a natural underground reservoir;

(f) the injection of carbon dioxide, as defined in section 3 of the Barrow Island Act 2003, into an underground reservoir or other subsurface formation;

(g) any other kind of operation that is prescribed by the regulations to be a petroleum operation for the purposes of this definition,

but does not include an operation of a kind that is prescribed by the regulations not to be a petroleum operation for the purposes of this definition;

“structure” means any fixed, moveable or floating structure or installation and includes a pipeline, pumping station, tank station and valve station;

”.

5. Section 7AA inserted

After section 7 the following section is inserted —

“

7AA. Disapplication of State occupational safety and health laws

(1) The prescribed occupational safety and health laws do not apply in relation to —

(a) a petroleum operation; or

(b) a person engaged in a petroleum operation or any other protected person.

(2) In this section —

“prescribed occupational safety and health laws” means any laws of the State relating to occupational safety and health (whether or not they also relate to other matters) that are prescribed by the regulations for the purposes of this section.

”.

6. Section 83 repealed

Section 83 is repealed.

7. Section 91 amended

(1) Section 91(1) is amended by deleting “and shall secure the safety, health and welfare of persons engaged in those operations in or about the permit area, drilling reservation, lease area or licence area”.

(2) Section 91(3) is amended by deleting “and shall secure the safety, health and welfare of persons engaged in those operations in or about that area”.

8. Section 117A inserted

After section 117 the following section is inserted —

“

117A. Interfering with petroleum operation

A person must not intentionally or recklessly —

(a) cause damage to, or interfere with, a well or any structure or vessel in the State that is, or is to be, used in a petroleum operation; or

(b) interfere with any petroleum operation.

Penalty: imprisonment for 10 years.

”.

9. Section 118 amended

(1) Section 118(1) is amended by deleting “the purposes of this Act and the regulations.” and inserting instead —

“

such or all of the purposes of this Act as are specified in the instrument of appointment.

”.

(2) Section 118(2) is amended by deleting “he is such an inspector for the purposes of this Act and the regulations.” and inserting instead —

“

the person is an inspector for the purposes specified in the certificate.

”.

10. Section 119 amended

Section 119(1) is amended by deleting “and the regulations,” and inserting instead —

“

, but without affecting the powers of an inspector under Schedule 1,

”.

11. Section 119A inserted

After section 119 the following section is inserted —

“

119A. Protection from liability for wrongdoing

(1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.

(2) The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act had been enacted.

(3) Despite subsection (1), the State is not relieved of any liability that it might have for another person having done anything as described in that subsection.

(4) In this section a reference to the doing of anything includes a reference to the omission to do anything.

”.

12. Section 125 amended

Section 125 is amended by deleting “(being an offence arising under this Part) or the regulations”.

13. Section 126A inserted

After section 126 the following section is inserted —

“

126A. Evidentiary matters

(1) In a proceeding for an offence against this Act an averment in the complaint that at a particular time —

(a) a particular operation was a petroleum operation;

(b) a particular person was the operator of a petroleum operation;

(d) a particular person was an employer who carried on a petroleum operation;

(e) a particular person was an employer of a particular person or particular persons engaged in a petroleum operation; or

(f) a particular person was an employee or inspector,

is to be taken to have been proved in the absence of evidence to the contrary.

(2) In a proceeding for an offence against this Act, proof is not required as to any of the following matters, unless evidence is given to the contrary —

(a) a delegation under section 25 by the Minister of a power or function;

(b) the authority of any person to institute a proceeding for an offence against this Act other than an offence against a listed OSH law;

(3) In a proceeding for an offence against this Act, production of a copy of —

(a) a code of practice;

(b) an Australian Standard; or

purporting to be certified by the CEO to be a true copy as at any date or during any period is, without proof of the signature of the CEO, sufficient evidence of the contents of the code of practice or Standard as at that date or during that period.

(4) In subsection (3) —

“Australian Standard” means a document having that title published by Standards Australia;

“Australian/New Zealand Standard” means a document having that title jointly published by Standards Australia and the Standards Council of New Zealand;

“CEO” means the chief executive officer of the department of the Public Service principally assisting in the administration of this Act.

”.

14. Part IIIA inserted

After section 149 the following Part is inserted —

“

Part IIIA — Occupational safety and health

149A. Occupational safety and health

Schedule 1 has effect.

149B. Regulations relating to occupational safety and health

(1) The regulations may make provision in relation to —

(a) the occupational safety and health of a person engaged in a petroleum operation; or

(b) the safety and health of any other protected person.

(2) Without limiting subsection (1), regulations for the purpose of that subsection may —

(a) require a person who is carrying on a petroleum operation to establish and maintain a system of management to secure —

(i) the occupational safety and health of a person engaged in a petroleum operation; or

(ii) the safety and health of any other protected person;

and

(b) specify requirements with which the system must comply.

149C. Minister’s occupational safety and health functions

(1) The Minister has the following functions —

(a) to promote the occupational safety and health of persons engaged in petroleum operations;

(b) to develop and implement effective monitoring and enforcement strategies to secure compliance by persons with their occupational safety and health obligations under this Act;

(c) to investigate accidents, occurrences and circumstances that affect, or have the potential to affect, the occupational safety and health of persons engaged in petroleum operations;

(d) to advise persons, either on the Minister’s own initiative or on request, on occupational safety and health matters relating to petroleum operations.

(2) The Minister has power to do all things necessary or convenient to be done for or in connection with the performance of the Minister’s functions.

”.

15. Section 153 amended

(1) Section 153(2) is amended as follows:

(a) after paragraph (j) by deleting “and”;

(b) in paragraph (k) by deleting “State.” and inserting instead —

“

State;

(l) fees in relation to petroleum operations, safety audits or other services provided by the Minister;

(m) any transitional matter arising out of the amendments made to this Act by the Petroleum Legislation Amendment and Repeal Act 2005.

”.

(2) After section 153(2b) the following subsection is inserted —

“

(2c) Regulations under this section may adopt or apply, with or without modification, any regulation made under the Petroleum Pipelines Act 1969, the Petroleum (Submerged Lands) Act 1982 or the Commonwealth Act as defined in that Act, that is in force or existing at the time when the regulations under this section take effect or as in force or existing from time to time.

”.

16. Various sections amended to delete “the regulations” (Interpretation Act 1984 s. 46)

(1) The provisions set out in the Table to this section are amended by deleting “or the regulations” in each case.

Table

s. 8(1) (twice)	s. 121(1) and (2)
s. 25(1)(a)

(2) The provisions set out in the Table to this section are amended by deleting “and the regulations” in each case.

Table

s. 38	s. 105(4)
s. 43D	s. 106(5)
s. 48C	s. 112(6)
s. 62

17. Schedule replaced with Schedule 1

The Schedule is repealed and the following Schedule is inserted instead —

“

Schedule 1 — Occupational safety and health

[s. 149A]

Division 1 — Introduction

1. Objects

The objects of this Schedule are, in relation to petroleum operations —

(a) to secure the occupational safety and health of persons engaged in those operations;

(b) to protect persons in the vicinity of those operations at the invitation of, or with the express or implied consent of, the operators of, or persons in control of a part of, those operations from risks to safety and health arising out of those operations;

(d) to promote an occupational environment for members of the workforce engaged in those operations that is adapted to their needs relating to safety and health; and

(e) to foster a consultative relationship between all relevant persons concerning the safety and health of members of the workforce engaged in those operations.

2. Simplified outline

The following is a simplified outline of this Schedule —

·This Schedule sets up a scheme to regulate occupational safety and health matters relating to petroleum operations.

·Occupational safety and health duties are imposed on the following —

(a) the operator of a petroleum operation;

(b) a person in control of any part of a petroleum operation;

(d) a manufacturer of plant, or a substance, for use in a petroleum operation;

(e) a supplier of a facility, or of any plant or substance, for use in a petroleum operation;

(f) a person who erects or installs a facility, or any plant, for use in a petroleum operation;

(g) a person engaged in a petroleum operation.

·A group of members of the workforce engaged in a petroleum operation may be established as a designated work group.

·The members of a designated work group may select a safety and health representative for that designated work group.

·The safety and health representative may exercise certain powers for the purpose of promoting or ensuring the occupational safety and health of group members.

·An inspector may conduct an inspection —

(a) to ascertain whether a listed OSH law is being complied with;

(b) concerning a contravention or a possible contravention of a listed OSH law; or

(c) concerning an accident or dangerous occurrence that has happened at or near a place at which a petroleum operation is carried on.

·The operator of a petroleum operation must report to the Minister accidents and dangerous occurrences arising out of the petroleum operation.

3. Definitions

In this Schedule —

“accident” includes the contraction of a disease;

“contract” includes an arrangement or understanding;

“contractor” has the meaning given by clause 6;

“dangerous occurrence” means an occurrence declared by the regulations to be a dangerous occurrence for the purposes of this definition;

“designated work group” means —

(a) a group of members of the workforce engaged in a petroleum operation that is established as a designated work group under clause 17 or 18; or

(b) that group as varied in accordance with clause 19 or 20;

“employee”, in relation to an employer, means an employee of that employer;

“employer” means an employer who carries on a petroleum operation;

“group member”, in relation to a designated work group for a petroleum operation, means a person who is —

(a) a member of the workforce engaged in that operation; and

(b) included in that designated work group;

“improvement notice” means an improvement notice issued under clause 60(1);

“inspection” means an inspection conducted under Division 4 and includes an investigation or inquiry;

“member of the workforce”, in relation to a petroleum operation, means a natural person who is engaged in the operation, whether —

(a) as an employee of the operator or of another person; or

(b) as a contractor of the operator or of another person;

“operator’s representative” means a person present at a workplace in compliance with the obligations imposed on the operator by clause 4;

“own” includes own jointly and own in part;

“plant” includes any machinery, equipment or tool, or any component;

“premises” includes the following —

(a) a structure or building;

(b) a place (whether or not enclosed or built on);

“prohibition notice” means a prohibition notice issued under clause 58(1);

“registered organisation” means an organisation —

(a) within the meaning of the Workplace Relations Act 1996 of the Commonwealth; or

(b) as defined in section 7(1) of the Industrial Relations Act 1979;

“regulated business premises” means —

(a) a place where a petroleum operation is carried on; or

(b) premises that are —

(i) occupied by a person who is the operator of a petroleum operation; and

(ii) used, or proposed to be used, wholly or principally in connection with a petroleum operation;

“regulations” means regulations made for the purposes of this Schedule;

“Tribunal” has the meaning given to that term in the Occupational Safety and Health Act 1984 section 51G(2);

“work” means work that is directly or indirectly related to a petroleum operation;

“workforce representative” means —

(a) in relation to a person who is a member of the workforce engaged in a petroleum operation — a registered organisation of which that person is a member, if the person is qualified to be a member of that organisation because of the work the person performs in relation to the petroleum operation; or

(b) in relation to a designated work group or a proposed designated work group — a registered organisation of which a person who is, or who is likely to be, in the work group is a member, if the person is qualified to be a member of that organisation because of the work the person performs, or will perform, in relation to the petroleum operation as a member of the group;

“work group employer”, in relation to a designated work group in relation to a petroleum operation, means an employer of one or more group members, but does not include the operator of the petroleum operation;

“workplace”, in relation to a petroleum operation, means the whole place where the petroleum operation is carried on or any part of a place where the petroleum operation is carried on.

4. Operator must ensure presence of operator’s representative

(1) The operator of a petroleum operation must ensure that, at all times when one or more natural persons are engaged in the petroleum operation, there is present at the workplace a natural person (the “operator’s representative”) who has day to day management and control of the petroleum operation.

Penalty: $5 500.

(2) The operator of a petroleum operation must ensure that the name of the operator’s representative is displayed in a prominent place at the workplace.

Penalty: $5 500.

(3) Subclause (1) does not imply that, if the operator is a natural person, the operator’s representative may not be, from time to time, the operator.

5. Safety and health of persons using an accommodation amenity

For the avoidance of doubt, a reference in this Schedule to the occupational safety and health of a person includes a reference to the safety and health of a person using an accommodation amenity provided for the accommodation of persons engaged in a petroleum operation.

6. Contractor

For the purposes of this Schedule, a natural person is taken to be a “contractor” of another person (the “relevant person”) if the natural person is engaged in a petroleum operation under a contract for services between —

(a) the relevant person; and

(b) either —

(i) the natural person; or

(ii) the employer of the natural person.

Division 2 — Occupational safety and health

Subdivision 1 — Duties relating to occupational safety and health

7. Duties of operator

(1) The operator of a petroleum operation must take all reasonably practicable steps to ensure that the petroleum operation is carried out in a manner that is safe and without risk to the health of persons engaged in the petroleum operation or other protected persons.

Penalty: $110 000.

(2) Without limiting the generality of subclause (1), the operator of a petroleum operation must —

(a) provide and maintain a physical environment at the place where the petroleum operation is carried out that is safe and without risk to health;

(b) provide and maintain adequate amenities for the safety and health of all members of the workforce engaged in the petroleum operation;

(c) ensure that any plant, equipment, materials and substances for use in the petroleum operation are safe and without risk to health;

(d) implement and maintain systems of work in relation to the petroleum operation that are safe and without risk to health;

(e) implement and maintain appropriate procedures and equipment for the control of, and response to, emergencies arising out of the petroleum operation;

(f) provide all members of the workforce, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their activities in a manner that does not adversely affect the occupational safety and health of persons engaged in the petroleum operation;

(g) monitor the occupational safety and health of all members of the workforce and keep records of that monitoring;

(h) provide appropriate medical and first aid services at the places at which a petroleum operation is carried on; and

(i) develop, in consultation with members of the workforce and workforce representatives, a policy relating to occupational safety and health that —

(i) will enable the operator and the members of the workforce to cooperate effectively in promoting and developing measures to ensure the occupational safety and health of persons engaged in the petroleum operation;

(ii) will provide adequate mechanisms for reviewing the effectiveness of the measures; and

(iii) provides for the making of an agreement that complies with subclauses (4) and (5).

Penalty: $110 000.

(3) Subclause (2)(i) does not require the operator of a petroleum operation to engage in consultations with a workforce representative unless a member of the workforce engaged in the petroleum operation has requested the workforce representative to be involved in those consultations.

(4) The agreement referred to in subclause (2)(i)(iii) must be between —

(a) on the one hand — the operator; and

(b) on the other hand —

(i) the members of the workforce; and

(ii) if a member of the workforce engaged in the petroleum operation has requested a workforce representative in relation to the member to be a party to that agreement — that workforce representative.

(5) The agreement referred to in subclause (2)(i)(iii) must provide appropriate mechanisms for continuing consultation between —

(a) on the one hand — the operator; and

(b) on the other hand —

(i) the members of the workforce; and

(ii) if a member of the workforce engaged in the petroleum operation has requested a workforce representative in relation to the member to be involved in consultations on a particular occasion — that workforce representative.

(6) The agreement may provide for any other matters agreed between the parties to it.

8. Duties of persons in control of parts of petroleum operation

(1) A person who is in control of any part of a petroleum operation must take all reasonably practicable steps to ensure that that part of the petroleum operation is carried out in a manner that is safe and without risk to the health of persons engaged in the petroleum operation or other protected persons

Penalty: $110 000.

(2) Without limiting the generality of subclause (1), a person who is in control of any part of a petroleum operation must —

(a) ensure that the physical environment at the place where that part of the petroleum operation is carried out is safe and without risk to health;

(b) ensure that any plant, equipment, materials and substances for use in that part of the petroleum operation are safe and without risk to health;

(c) implement and maintain systems of work in relation to that part of the petroleum operation that are safe and without risk to health;

(d) ensure a means of access to, and egress from the place where that part of the petroleum operation is carried out is safe and without risk to health; and

(e) provide all members of the workforce engaged in that part of the petroleum operation in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.

Penalty: $110 000.

9. Duties of employers

(1) An employer must take all reasonably practicable steps to protect the safety and health of employees engaged in a petroleum operation.

Penalty: $110 000.

(2) Without limiting the generality of subclause (1), an employer must —

(a) provide and maintain a working environment that is safe for employees and without risk to their health;

(b) ensure that any plant, equipment, materials and substances for use in connection with the employees’ work are safe and without risk to health;

(d) provide a means of access to, and egress from, the employees’ work location that is safe and without risk to health; and

(e) provide the employees, in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.

Penalty: $110 000.

(3) A person has, in respect of a contractor of that person, the same obligations that an employer has under subclauses (1) and (2) in respect of an employee of that employer, but only in relation to —

(a) matters over which the first‑mentioned person has control; or

(b) matters over which —

(i) the first‑mentioned person would have had control apart from express provision to the contrary in a contract; and

(ii) the first‑mentioned person would, in the circumstances, usually be expected to have had control.

(4) An employer must take all reasonable steps to —

(a) monitor the safety and health of employees; and

(b) keep records of that monitoring.

Penalty: $110 000.

(5) An employer must take all reasonably practicable steps to ensure that —

(a) work that is undertaken by the employer’s employees is carried out in a manner that is safe and without risk to the health of persons engaged in the petroleum operation or other protected persons; and

(b) the employer’s system of work is operated in a manner that is safe and without risk to the health of persons engaged in the petroleum operation or other protected persons.

Penalty: $22 000.

10. Duties of manufacturers in relation to plant and substances

(1) A manufacturer of any plant that the manufacturer knows or ought reasonably to expect will be used by members of the workforce engaged in a petroleum operation must take all reasonably practicable steps —

(a) to ensure that the plant is so designed and constructed as to be, when properly used, safe and without risk to health;

(b) to carry out, or cause to be carried out, the research, testing and examination necessary in order to discover, and to eliminate or minimise, any risk to safety or health that may arise from the use of the plant; and

(c) to make available, in connection with the use of the plant in a petroleum operation, adequate written information about —

(i) the use for which it is designed and has been tested;

(ii) details of its design and construction; and

(iii) any conditions necessary to ensure that, when put to the use for which it was designed and tested, it will be safe and without risk to health.

Penalty: $22 000.

(2) A manufacturer of any substance that the manufacturer knows or ought reasonably to expect will be used by members of the workforce engaged in a petroleum operation must take all reasonably practicable steps —

(a) to ensure that the substance is so manufactured as to be, when properly used, safe and without risk to health;

(b) to carry out, or cause to be carried out, the research, testing and examination necessary to discover, and to eliminate or minimise, any risk to safety or health that may arise from the use of the substance; and

(c) to make available, in connection with the use of the substance in a petroleum operation, adequate written information concerning —

(i) the use for which it is manufactured and has been tested;

(ii) details of its composition;

(iii) any conditions necessary to ensure that, when put to the use for which it was manufactured and tested, it will be safe and without risk to health; and

(iv) the first aid and medical procedures that should be followed if the substance causes injury.

Penalty: $22 000.

(3) If —

(a) plant or a substance is imported into Australia by a person who is not its manufacturer; and

(b) at the time of the importation, the manufacturer of the plant or substance does not have a place of business in Australia,

the first‑mentioned person is taken, for the purposes of this clause, to be the manufacturer of the plant or substance.

(4) This clause does not affect the operation of any other law of this State that imposes an obligation on a manufacturer in respect of defective goods or in respect of information to be supplied in relation to goods.

11. Duties of suppliers of facilities, plant and substances

(1) A supplier of a facility, or of any plant or substance, that the supplier ought reasonably to expect will be used by members of the workforce engaged in a petroleum operation, must take all reasonably practicable steps —

(a) to ensure that, at the time of supply, the facility, or the plant or substance, is in such condition as to be, when properly used, safe and without risk to health;

(i) in the case of a facility — to the operator of the petroleum operation; and

(ii) in the case of plant or substance — to the person to whom the plant or substance is supplied,

adequate written information, in connection with the use of the facility, plant or substance (as the case requires) about —

(iii) the condition of the facility, plant or substance at the time of supply;

(iv) any risk to the safety and health of members of the workforce engaged in a petroleum operation to which the condition of the facility, plant or substance may give rise unless it is properly used;

(v) the steps that need to be taken in order to eliminate that risk; and

(vi) in the case of a substance — the first aid and medical procedures that should be followed if the condition of the substance causes injury to a member of the workforce engaged in a petroleum operation.

Penalty: $22 000.

(2) For the purposes of subclause (1), if a person (the “ostensible supplier”) supplies to a person either a facility, or any plant or substance, that is for use by members of the workforce engaged in a petroleum operation, and the ostensible supplier —

(a) carries on the business of financing the acquisition or the use of goods by other persons;

(b) has, in the course of that business, acquired an interest in the facility, or in the plant or substance, from another person (the “actual supplier”), solely for the purpose of financing its acquisition by, or its provision to, the person to whom it is finally supplied; and

(c) has not taken possession of the facility, plant or substance, or has taken possession of the facility, plant or substance solely for the purpose of passing possession of the facility, plant or substance to the person to whom it is finally supplied,

a reference in subclause (1) to a supplier is, in relation to the facility, plant or substance referred to in this subclause, to be read as a reference to the actual supplier and not as a reference to the ostensible supplier.

(3) This clause does not affect the operation of any other law of this State that imposes an obligation in respect of the sale or supply of goods or in respect of the information to be supplied in relation to goods.

12. Duties of persons erecting facilities or installing plant

(1) A person who erects or installs a facility, or erects or installs any plant, for use in a petroleum operation, must take all reasonably practicable steps to ensure that the facility or plant is not erected or installed in such a way that it is unsafe or constitutes a risk to safety or health.

Penalty: $22 000.

(2) This clause does not affect the operation of any other law of this State that imposes an obligation in respect of the erection or installation of structures or goods or the supply of services.

13. Duties of persons in relation to occupational safety and health

(1) A person engaged in a petroleum operation must, at all times, take all reasonably practicable steps —

(a) to ensure that the person does not take any action, or make any omission, that creates a risk, or increases an existing risk, to —

(i) the occupational safety and health of that person; or

(ii) the safety and health of any other protected person;

(b) in respect of any obligation imposed on the operator or on any other person under a listed OSH law — to cooperate with the operator or that other person to the extent necessary to enable the operator or that other person to fulfil that obligation; and

(i) supplied to the person by the operator, an employer of the person or any other person having control of the petroleum operation (the “equipment supplier”); and

(ii) necessary to protect the occupational safety and health of the person, or the safety and health of any other person engaged in the petroleum operation or protected person,

in accordance with any instructions given by the equipment supplier, consistent with the safe and proper use of the equipment.

Penalty: $5 500.

(2) Despite subclause (1), the choice or manner of use, or choice and manner of use, of equipment of the kind referred to in subclause (1)(c)(ii) is a matter that may be, consistently with each listed OSH law —

(a) agreed on between the equipment supplier and any relevant safety and health representative; or

(b) agreed on by a safety and health committee.

(3) If an agreement of the kind referred to in subclause (2)(a) or (b) provides a process for choosing equipment of a particular kind that is to be provided by the equipment supplier, action must not be taken against a person for failure to use equipment of that kind that is so provided unless the equipment has been chosen in accordance with that process.

(4) If an agreement of the kind referred to in subclause (2)(a) or (b) provides a process for determining the manner of use of equipment of a particular kind, action must not be taken against a person for failure to use, in the manner required by the equipment supplier, equipment of that kind that is so provided unless the manner has been determined in accordance with that process.

14. Reliance on information supplied or results of research

(1) For the purpose of the application of clause 7, 8 or 9 to the use of plant or a substance, a person on whom an obligation is imposed under any of those clauses is regarded as having taken reasonably practicable steps as required by the relevant clause, in relation to the use of the plant or substance, to the extent that —

(a) the person ensured, so far as practicable, that its use was in accordance with the information supplied by the manufacturer or the supplier of the plant or substance relating to occupational safety and health in its use; and

(b) it was reasonable for the person to rely on that information.

(2) For the purpose of the application of clause 10 or 11 to carrying out research, testing and examining a facility, or any plant or substance, a person on whom an obligation is imposed under either of those clauses is regarded as having taken reasonably practicable steps as required by the relevant clause, in relation to carrying out research, testing and examining the facility, plant or substance, to the extent that —

(a) the research, testing or examination has already been carried out by or on behalf of someone else; and

(b) it was reasonable for the person to rely on that research, testing or examination.

(3) For the purpose of the application of clause 12 to the erection of a facility or the erection or installation of plant for use in a petroleum operation, a person on whom an obligation is imposed under that clause is regarded as having taken reasonably practicable steps as required by that clause to the extent that —

(a) the person ensured, so far as is reasonably practicable, that the erection of the facility, or the erection or installation of the plant, was —

(i) in accordance with information supplied by the manufacturer or supplier of the facility or plant relating to its erection or its installation; and

(ii) consistent with the occupational safety and health of persons engaged in the petroleum operation;

and

(b) it was reasonable for the person to rely on that information.

(4) Nothing in this clause limits the generality of what constitutes reasonably practicable steps as required by clause 7, 8, 9, 10, 11 or 12.

Subdivision 2 — Regulations relating to occupational safety and health

15. Regulations relating to occupational safety and health

(1) The regulations may make provision relating to any matter affecting, or likely to affect, the occupational safety and health of persons engaged in a petroleum operation.

(2) Regulations made for the purposes of subclause (1) may make provision for any or all of the following —

(a) prohibiting or restricting the performance of all work or specified work in relation to a petroleum operation;

(b) prohibiting or restricting the use of all plant or specified plant in a petroleum operation;

(d) prohibiting or restricting the storage or use of all substances or specified substances in a petroleum operation;

(e) specifying the form in which information required to be made available under clause 10(1)(c) or 11(1)(c) is to be so made available;

(f) prohibiting, except in accordance with licences granted under the regulations, the use of specified plant or specified substances in a petroleum operation;

(g) providing for —

(i) the issue, variation, renewal, transfer, suspension and cancellation of those licences; and

(ii) the conditions to which the licences may be subject;

(h) regulating the maintenance and testing of plant for use in a petroleum operation;

(i) regulating the labelling or marking of substances for use in a petroleum operation;

(j) regulating the transport of specified plant or specified substances for use in a petroleum operation;

(k) prohibiting the performance, in relation to a petroleum operation, of specified activities or work except —

(i) by persons who satisfy requirements of the regulations as to qualifications, training or experience; or

(ii) under the supervision specified in the regulations;

(l) requiring specified action to avoid accidents or dangerous occurrences;

(m) providing for, or prohibiting, specified action in the event of accidents or dangerous occurrences;

(n) providing for the employment of persons to perform specified duties relating to the maintenance of occupational safety and health in relation to a petroleum operation;

(o) regulating the provision and use, in a petroleum operation, of protective clothing and equipment, safety equipment and rescue equipment;

(p) providing for monitoring the health of members of the workforce engaged in a petroleum operation and the conditions at a place at which a petroleum operation is carried out;

(q) requiring employers to keep records of matters related to the occupational safety and health of employees;

(r) providing for the provision of first aid equipment and amenities at a place at which a petroleum operation is carried out.

Division 3 — Workplace arrangements

Subdivision 1 — Introduction

16. Simplified outline

The following is a simplified outline of this Subdivision —

·A group of members of the workforce engaged in a petroleum operation may be established as a designated work group.

·The members of a designated work group may select a safety and health representative for that designated work group.

·The safety and health representative may exercise certain powers for the purpose of promoting or ensuring the occupational safety and health of group members.

·A safety and health committee may be established in relation to the members of the workforce engaged in a petroleum operation.

·The main function of a safety and health committee is to assist the operator in relation to occupational safety and health matters.

Subdivision 2 — Designated work groups

17. Establishment of designated work groups by request

(1) A request to the operator of a petroleum operation to enter into consultations to establish designated work groups in relation to the members of the workforce engaged in the petroleum operation may be made by —

(a) any member of the workforce; or

(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator — that workforce representative.

(2) The operator of a petroleum operation must, within 14 days after receiving a request under subclause (1), enter into consultations with —

(a) if any member of the workforce made a request to establish designated work groups —

(i) that member of the workforce;

(ii) if that member requests that the operator enter into consultations with a workforce representative in relation to the member — that workforce representative; and

(iii) each employer (if any) of members of the workforce;

and

(b) if a workforce representative made a request to establish designated work groups —

(i) if a member of the workforce requests that the operator enter into consultations with that workforce representative — that workforce representative; and

(ii) each employer of members of the workforce.

(3) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

18. Establishment of designated work groups at initiative of operator

(1) If, at any time, the operator of a petroleum operation considers that designated work groups should be established, the operator must enter into consultations with —

(a) all members of the workforce;

(b) if a member of the workforce requests that the operator enter into consultations with a workforce representative in relation to the member — that workforce representative; and

(2) Within 14 days after the completion of consultations about the establishment of the designated work groups, the operator must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

19. Variation of designated work groups by request

(1) A request to the operator of a petroleum operation to enter into consultations to vary designated work groups that have already been established in relation to the members of the workforce engaged in the petroleum operation may be made by —

(a) any member of the workforce; or

(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the operator — that workforce representative.

(2) The operator of a petroleum operation must, within 14 days after receiving a request under subclause (1), enter into consultations with —

(a) if any member of the workforce made a request to vary designated work groups —

(i) that member of the workforce;

(ii) the safety and health representative of each designated work group affected by the proposed variation; and

(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation;

and

(b) if a workforce representative made a request to vary designated work groups —

(i) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with that workforce representative in relation to the group — that workforce representative;

(ii) the safety and health representative of each designated work group affected by the proposed variation; and

(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation.

(3) If —

(a) consultations take place about the variation of designated work groups that have already been established; and

(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified,

then, within 14 days after the completion of the consultations, the operator must, by notifying the members of the workforce who are affected by the variation, vary the designated work groups in accordance with the outcome of the consultations.

20. Variation of designated work groups at initiative of operator

(1) If the operator of a petroleum operation believes the designated work groups should be varied, the operator may, at any time, enter into consultations about the variations with —

(a) the safety and health representative of each of the designated work groups affected by the proposed variation;

(b) if a member of a designated work group affected by the proposed variation requests that the operator enter into consultations with that workforce representative in relation to the group — that workforce representative; and

(2) If —

(a) consultations take place about the variation of designated work groups that have already been established; and

(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified,

21. Referral of disagreement to reviewing authority

(1) If, in the course of consultations under clause 17, 18, 19 or 20, there is a disagreement between any of the parties to the consultation about the manner of establishing or varying a designated work group, any party may, for the purpose of facilitating that consultation, refer the matter of disagreement to the reviewing authority.

(2) The party referring the matter to the reviewing authority must give notice of the referral to all the other parties to the disagreement.

(3) The reviewing authority is to —

(a) resolve the matter of the disagreement referred to the reviewing authority; and

(b) notify all parties to the disagreement of the decision.

(4) If the matter of a disagreement is referred to the reviewing authority, the parties to the disagreement must complete the consultation in accordance with the resolution of that matter by the reviewing authority.

(5) In this clause —

“reviewing authority” means a person prescribed by the regulations to be a reviewing authority for the purposes of this clause.

22. Manner of grouping members of the workforce

(1) Consultations about the establishment or variation of a designated work group must be directed principally at the determination of the manner of grouping members of the workforce —

(a) that best and most conveniently enables their interests relating to occupational safety and health to be represented and safeguarded; and

(b) that best takes account of the need for any safety and health representative selected for that designated work group to be accessible to each group member.

(2) The parties to the consultations must have regard, in particular, to —

(a) the number of members of the workforce engaged in the petroleum operation to which the consultation relates;

(b) the nature of each type of work performed by those members;

(d) the workplaces where each type of work is performed;

(e) the nature of any risks to safety and health at each of those workplaces; and

(f) any overtime or shift working arrangement in relation to the petroleum operation.

(3) The designated work groups must be established or varied in such a way that, so far as practicable, each of the members of the workforce engaged in a petroleum operation is in a designated work group.

(4) All the members of the workforce engaged in a petroleum operation may be in one designated work group.

Subdivision 3 — Safety and health representatives

23. Selection of safety and health representatives

(1) One safety and health representative may be selected for each designated work group.

(2) A person is not eligible for selection as the safety and health representative for a designated work group unless the person is a member of the workforce included in the group.

(3) A person is taken to have been selected as the safety and health representative for a designated work group if —

(a) all the members of the workforce in the group unanimously agree to the selection; or

(b) the person is elected as the safety and health representative of the group in accordance with clause 24.

24. Election of safety and health representatives

(1) If —

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

(b) within a reasonable time after the vacancy occurs, a person has not been selected under clause 23(3)(a),

the operator of the petroleum operation must invite nominations from all group members for election as the safety and health representative of the group.

(2) If the office of safety and health representative is vacant and the operator has not invited nominations within a further reasonable time that is no later than 6 months after the vacancy occurred, the Minister may direct the operator to do so.

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

(4) An election conducted or arranged to be conducted under subclause (3) must be conducted in accordance with regulations made for the purposes of this subclause if this is requested by the lesser of —

(a) 100 members of the workforce normally in the designated work group; or

(b) a majority of the members of the workforce normally in the designated work group.

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

(6) A person cannot be a candidate in the election if he or she is disqualified under clause 30.

(7) All the members of the workforce in the designated work group are entitled to vote in the election.

(8) An operator conducting or arranging for the conduct of an election under this clause must comply with any relevant directions issued by the Minister.

25. List of safety and health representatives

The operator of a petroleum operation must —

(a) prepare and keep up to date a list of all the safety and health representatives of designated work groups comprising members of the workforce engaged in the petroleum operation; and

(b) ensure that the list is available for inspection, at all reasonable times, by —

(i) the members of the workforce engaged in the petroleum operation; and

(ii) inspectors.

26. Members of designated work group must be notified of selection etc. of safety and health representative

The operator of a petroleum operation must —

(a) notify members of a designated work group in relation to the petroleum operation of a vacancy in the office of safety and health representative for the designated work group within a reasonable time after the vacancy arises; and

(b) notify those members of the name of any person selected (whether under clause 23(3)(a) or (b)) as safety and health representative for the designated work group within a reasonable time after the selection is made.

27. Term of office

(1) A safety and health representative for a designated work group holds office —

(a) if, in consultations that took place under clause 17, 18, 19 or 20, the parties to the consultations agreed to the period for which the safety and health representative for the group was to hold office — for that period; or

(b) if paragraph (a) does not apply — for 2 years.

(2) The term of office of a safety and health representative begins at the start of the day on which he or she was selected.

(3) Nothing in this clause prevents a safety and health representative from being selected for further terms of office.

28. Training of safety and health representatives

(1) A safety and health representative for a designated work group must undertake a course of training relating to occupational safety and health that is accredited by the Minister for the purposes of this clause.

(2) The operator of the petroleum operation concerned must permit the representative to take any time off work, without loss of remuneration or other entitlements, that is necessary to undertake the training.

(3) If a person other than the operator is the employer of the representative, that person must permit the representative to take any time off work, without loss of remuneration or other entitlements, that is necessary to undertake the training.

29. Resignation etc. of safety and health representatives

(1) A person ceases to be the safety and health representative for the designated work group if —

(a) the person resigns as the safety and health representative;

(b) the person ceases to be a group member of that designated work group;

(c) the person’s term of office expires without the person having been selected, under clause 23, to be the safety and health representative for the designated work group for a further term; or

(d) the person is disqualified under clause 30.

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

(3) If a person resigns as the safety and health representative for a designated work group, the person must notify the resignation to the group members.

(4) If a person has ceased to be the safety and health representative for a designated work group because of subclause (1)(b), the person must notify in writing —

(a) the group members; and

(b) the operator and each work group employer,

that the person has ceased to be the safety and health representative for that designated work group.

30. Disqualification of safety and health representatives

(1) An application for the disqualification of a safety and health representative for a designated work group may be made to the Tribunal by —

(a) the operator;

(b) a work group employer; or

(c) at the request of a group member of the designated work group — a workforce representative in relation to the designated work group.

(2) An application under subclause (1) may be made on either or both of the following grounds —

(a) that action taken by the representative in the exercise or purported exercise of a power under clause 32(1) or any other provision of this Schedule was taken —

(i) with the intention of causing harm to the operator or work group employer or to an undertaking of the operator or work group employer; or

(ii) unreasonably, capriciously or not for the purpose for which the power was conferred on the representative;

(b) that the representative has intentionally used, or disclosed to another person, for a purpose that is not connected with the exercise of a power of a safety and health representative, information acquired from the operator or work group employer.

(3) On an application under subclause (1), the Tribunal may disqualify the representative, for a specified period not exceeding 5 years, from being a safety and health representative for any designated work group, if the Tribunal is satisfied that the representative has acted in a manner referred to in subclause (2).

(4) In making a decision under subclause (3), the Tribunal must have regard to —

(a) the harm (if any) that was caused to the operator or work group employer or to an undertaking of the operator or work group employer as a result of the action of the representative;

(b) the past record of the representative in exercising the powers of a safety and health representative;

(d) any other matters the Tribunal thinks relevant.

31. Deputy safety and health representatives

(1) One deputy safety and health representative may be selected for each designated work group for which a safety and health representative has been selected.

(2) A deputy safety and health representative is to be selected in the same way as a safety and health representative under clause 23.

(3) If the safety and health representative for a designated work group —

(a) ceases to be the safety and health representative; or

(b) is unable (because of absence or for any other reason) to exercise the powers of a safety and health representative,

then —

(d) this Schedule (other than this clause) applies in relation to the deputy safety and health representative accordingly.

32. Powers of safety and health representatives

(1) A safety and health representative for a designated work group may, for the purpose of promoting or ensuring the safety and health at a workplace of the group members —

(a) do all or any of the following —

(i) inspect the whole or any part of the workplace if there has, in the immediate past, been an accident or a dangerous occurrence at the workplace, or if there is an immediate threat of such an accident or dangerous occurrence;

(ii) inspect the whole or any part of the workplace if the safety and health representative has given reasonable notice of the inspection to the operator’s representative and to any other person having immediate control of the workplace;

(iii) make a request to an inspector or to the Minister that an inspection be conducted at the workplace;

(iv) accompany an inspector during any inspection at the workplace by the inspector (whether or not the inspection is being conducted as a result of a request made by the safety and health representative);

(v) if there is no safety and health committee in respect of the members of the workforce engaged in the petroleum operation — represent group members in consultations with the operator and any work group employer about the development, implementation and review of measures to ensure the safety and health of those members at the workplace;

(vi) if a safety and health committee has been established in respect of the members of the workforce engaged in the petroleum operation — examine any of the records of that committee;

(b) investigate complaints made by any group member to the safety and health representative about the safety and health of any of the members of the workforce (whether in the group or not);

(c) with the consent of a group member, be present at any interview about safety and health at work between that member and —

(i) an inspector;

(ii) the operator or a person representing the operator; or

(iii) a work group employer or a person representing that employer;

(d) obtain access to any information under the control of the operator or any work group employer —

(i) relating to risks to the safety and health of any group member; and

(ii) relating to the safety and health of any group member;

and

(e) issue provisional improvement notices in accordance with clause 36.

(2) Subclause (1)(d)(ii) has effect subject to clause 34.

33. Assistance by consultant

(1) A safety and health representative for a designated work group is entitled, in the exercise of his or her powers, to be assisted by a consultant.

(2) A safety and health representative for a designated work group may —

(a) be assisted by a consultant at a workplace at which work is performed; or

(b) provide to a consultant information that has been provided to the safety and health representative by a group member under clause 32(1)(d),

only if the operator or the Minister has, in writing, agreed to the provision of that assistance at that workplace or the provision of that information, as the case may be.

(3) Neither the operator nor any workplace employer becomes, because of the agreement under subclause (2) to the provision of assistance by a consultant, liable for any remuneration or other expenses incurred in connection with the consultant’s activities.

(4) If a safety and health representative for a designated work group is being assisted by a consultant, the consultant is entitled to be present with the representative at any interview, about safety and health at work, between a group member and —

(a) an inspector; or

(b) the operator or any work group employer or a person representing the operator or that employer,

if, and only if, the group member consents to the presence of the consultant.

34. Information

(1) Neither —

(a) a safety and health representative; nor

(b) a consultant assisting a safety and health representative,

is entitled, under clause 32(1)(d)(ii), to have access to information in respect of which a group member is entitled to claim, and does claim, legal professional privilege.

(2) Neither —

(a) a safety and health representative; nor

(b) a consultant assisting a safety and health representative,

is entitled, under clause 32(1)(d)(ii), to have access to information of a confidential medical nature relating to a person who is or was a group member unless —

(c) the person has delivered to the operator or any work group employer a written authority permitting the safety and health representative, or the safety and health representative and the consultant, as the case requires, to have access to the information; or

(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

35. Obligations and liabilities of safety and health representatives

This Schedule does not —

(a) impose an obligation on a person to exercise any power conferred on the person because the person is a safety and health representative; or

(b) render a person liable in civil proceedings because of —

(i) a failure to exercise such a power; or

(ii) the way such a power was exercised.

36. Provisional improvement notices

(1) If —

(a) a safety and health representative for a designated work group believes, on reasonable grounds, that a person —

(i) is contravening a listed OSH law; or

(ii) has contravened a provision of a listed OSH law and is likely to contravene that provision again;

and

(b) the contravention affects or may affect one or more group members,

the representative must consult with the person supervising the relevant activity in an attempt to reach agreement on rectifying the contravention or preventing the likely contravention.

(2) If, in the safety and health representative’s opinion, agreement is not reached within a reasonable time, the safety and health representative may issue a provisional improvement notice to any or each person (a “responsible person”) responsible for the contravention.

(3) If a responsible person is the operator, the improvement notice may be issued to the operator by giving it to the operator’s representative.

(4) If it is not practicable to issue the notice to a responsible person (other than the operator or the supervisor) by giving it to that responsible person —

(a) the notice may be issued to that responsible person by giving it to the person who for the time being is, or may reasonably be presumed to be, on behalf of the responsible person, in charge of the activity to which the notice relates; and

(b) if the notice is so issued, a copy of the notice must be given to the responsible person as soon as practicable afterwards.

(5) The notice must —

(a) specify the contravention that, in the safety and health representative’s opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and

(b) specify a period that —

(i) is not less than 7 days beginning on the day after the notice is issued; and

(ii) is, in the representative’s opinion, reasonable,

within which the responsible person is to take action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be.

(6) The notice may specify action that the responsible person is to take during the period specified in the notice.

(7) If, in the safety and health representative’s opinion, it is appropriate to do so, the representative may, in writing and before the end of the period, extend the period specified in the notice.

(8) On issuing the notice, the safety and health representative must give a copy of the notice to —

(a) if the operator is not a responsible person — the operator;

(b) each work group employer other than a work group employer who is a responsible person;

(d) if the notice relates to any plant, substance or thing that is owned by a person other than a responsible person or a person to whom a copy of the notice is given under paragraph (a), (b) or (c) — that owner.

37. Effect of provisional improvement notice

(1) Within 7 days after a notice is issued under clause 36 —

(a) the responsible person; or

(b) any other person, to whom a copy of the notice has been given under clause 36(8),

may request an inspector for an inspection of the matter to be conducted.

(2) On the request being made, the operation of the notice is suspended pending the determination of the matter by an inspector.

(3) As soon as possible after a request is made, an inspection must be conducted of the work that is the subject of the disagreement, and the inspector conducting the inspection must —

(a) confirm, vary or cancel the notice and notify the responsible person and any person to whom a copy of the notice has been given under clause 36(8) accordingly; and

(b) make decisions, and exercise powers, under Division 4, as the inspector considers necessary in relation to the work.

(4) If the inspector varies a notice, the notice as so varied has effect —

(a) so far as the notice concerns obligations imposed on the responsible person that are unaffected by the variation — as if the notice as so varied resumed effect on the day of the variation; and

(b) so far as the notice concerns new obligations imposed by virtue of the variation — as if the notice as so varied were a new notice issued on the day of the variation.

(5) If the notice is issued to a responsible person, the responsible person must —

(a) notify each group member who is affected by the notice of the fact of the issue of the notice; and

(b) until the notice ceases to have effect, cause a copy of the notice to be displayed at or near each workplace at which the work that is the subject of the notice is being performed.

(6) The notice ceases to have effect if —

(a) it is cancelled by an inspector or by the safety and health representative; or

(b) the responsible person —

(i) takes the action, if any, specified in the notice; or

(ii) if no action is so specified — takes the action necessary to prevent the further contravention, or likely contravention, concerned.

(7) The responsible person —

(a) must ensure that, to the extent that the notice relates to any matter over which the person has control, the notice is complied with; and

(b) must take reasonable steps to inform the safety and health representative who issued the notice of the action taken to comply with the notice.

(8) For the purposes of clause 64, if the inspector confirms or varies the notice, the inspector is taken to have decided, under clause 60, to issue an improvement notice in those terms.

38. Duties of the operator and other employers in relation to safety and health representatives

(1) The operator of a petroleum operation, in relation to which a designated work group having a safety and health representative has been established, must —

(a) on being requested to do so by the representative, consult with the representative on the implementation of changes at any workplace at which some or all of the group members perform work, being changes that may affect their safety and health;

(b) in relation to a workplace at which some or all of the group members perform work —

(i) permit the representative to make any inspection of the workplace that the representative is entitled to make in accordance with clause 32(1)(a)(i) and to accompany an inspector during an inspection at the workplace by the inspector; and

(ii) if there is no safety and health committee in respect of the members of the workforce — on being requested to do so by the representative, consult with the representative about the development, implementation and review of measures to ensure the safety and health of group members;

(c) permit the representative to be present at any interview at which the representative is entitled to be present under clause 32(1)(c);

(d) provide to the representative access to any information to which the representative is entitled to obtain access under clause 32(1)(d)(i) or (ii) and to which access has been requested;

(e) permit the representative to take any time off work, without loss of remuneration or other entitlements, that is necessary to exercise the powers of a safety and health representative; and

(f) provide the representative with access to any amenities that are —

(i) prescribed for the purposes of this paragraph; or

(ii) necessary for the purposes of exercising the powers of a safety and health representative.

(2) Subclause (1)(d) has effect subject to subclauses (3) and (4).

(3) The operator must not permit a safety and health representative in relation to a designated work group to have access to information that —

(a) is of a confidential medical nature under the control of the operator; and

(b) relates to a person who is or was a group member,

unless —

(c) the person has delivered to the employer a written authority permitting the representative to have access to the information; or

(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

(4) The operator is not required to give a safety and health representative access to any information in respect of which the operator is entitled to claim, and does claim, legal professional privilege.

(5) The duties imposed by this clause on the operator in respect of the safety and health representative for a designated work group apply equally, to the extent that the matters to which the duties relate are within the control of a work group employer or of a supervisor of particular work, to that employer and to that supervisor.

Subdivision 4 — Safety and health committees

39. Safety and health committees

(1) A safety and health committee must be established in relation to the members of the workforce engaged in a petroleum operation if —

(a) the number of those members normally engaged in the petroleum operation is not less than 50 (whether or not those members are all at work in relation to the petroleum operation at the same time);

(b) the members of the workforce are included in one or more designated work groups; and

(c) the operator is requested to establish the committee by the safety and health representative for the designated work group or for one of the designated work groups.

(2) The safety and health committee consists of —

(a) the number of members specified in an agreement reached between the operator and the members of the workforce; or

(b) if there is no such agreement — an equal number of —

(i) members, chosen by the members of the workforce, to represent the interests of members of the workforce; and

(ii) members, chosen by the operator, to represent the interests of the operator and the employer (other than the operator) of members of the workforce.

(3) The agreement referred to in subclause (2)(a) may —

(a) specify the persons who are to be members to represent the interests of the operator and employers (other than the operator) of members of the workforce; and

(b) provide for the way in which persons who are to be members to represent the interests of members of the workforce are to be chosen.

(4) If regulations made for the purposes of this clause specify procedures for the selection of persons as members of safety and health committees to represent the interests of members of the workforce, an agreement referred to in subclause (2)(a) must not provide for members to be chosen in a way inconsistent with the regulations.

(5) A safety and health committee must hold a meeting at least once every 3 months.

(6) The procedure at meetings of a safety and health committee must, except to the extent provided for by the regulations, be the procedure agreed upon by the committee.

(7) A safety and health committee must cause minutes of its meetings to be kept, and must retain those minutes for a period of not less than 3 years.

(8) This clause does not prevent an operator from establishing, in consultation with registered unions or any other persons, committees concerned with occupational safety and health in relation to undertakings carried on by the operator.

40. Functions of safety and health committees

(1) A safety and health committee has the following functions —

(a) to assist the operator of the petroleum operation concerned —

(i) to develop and implement measures designed to protect; and

(ii) to review and update measures used to protect,

the safety and health at work of members of the workforce;

(b) to facilitate cooperation between the operator of the petroleum operation, employers (other than the operator) of members of the workforce, and members of the workforce, in relation to occupational safety and health matters;

(c) to assist the operator to disseminate among members of the workforce, in appropriate languages, information relating to safety and health at work;

(d) any prescribed functions;

(e) any other functions that are agreed between the operator and the safety and health committee.

(2) A safety and health committee has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

(3) This Schedule does not —

(a) impose an obligation on a person to do any act, because the person is a member of a safety and health committee, in connection with the performance of a function conferred on the committee; or

(b) render such a person liable in civil proceedings because of —

(i) a failure to do such an act; or

(ii) the manner in which such an act was done.

41. Duties of the operator and other employers in relation to safety and health committees

(1) If there is a safety and health committee, the operator and any employer (other than the operator) of a member of the workforce must —

(a) make available to the committee any information possessed by the operator or that employer relating to risks to safety and health to members of the workforce; and

(b) permit any member of the committee who is a member of the workforce to take time off work, without loss of remuneration or other entitlements, as is necessary for the member adequately to participate in the performance by the committee of its functions.

(2) Subclause (1)(a) has effect subject to subclauses (3) and (4).

(3) The operator or any employer (other than the operator) of a member of the workforce must not make available to a safety and health committee information of a confidential nature relating to a person who is or was a member of the workforce, unless —

(a) the person has authorised the information to be made available to the committee; or

(b) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

(4) The operator or any employer (other than the operator) of a member of the workforce is not required to make available to a safety and health committee any information in respect of which the operator or employer is entitled to claim, and does claim, legal professional privilege.

Subdivision 5 — Emergency procedures

42. Action by safety and health representatives

(1) If a safety and health representative for a designated work group has reasonable cause to believe that there is an imminent and serious danger to the safety or health of any person engaged in the petroleum operation or any other protected person unless a group member or group members cease to perform particular work, the representative must —

(a) inform a person (a “supervisor”) supervising the group member or group members in the performance of the work of the danger; or

(b) if no supervisor can be contacted immediately —

(i) direct the group member or group members to cease, in a safe manner, to perform the work; and

(ii) as soon as practicable, inform a supervisor that the direction has been given.

(2) If a supervisor is informed under subclause (1)(a) of a danger to the safety or health of a person engaged in the petroleum operation or any other protected person, the supervisor must take the action he or she thinks appropriate to remove that danger, which may include directing a group member or group members to cease, in a safe manner, to perform the work.

(3) If —

(a) a safety and health representative has informed a supervisor under subclause (1)(a) of a danger; and

(b) the representative has reasonable cause to believe that, despite any action taken by the supervisor in accordance with subclause (2), there continues to be an imminent and serious danger to the safety or health of a person engaged in the petroleum operation or any other protected person unless the group member or group members cease to perform particular work,

the representative must —

(d) as soon as practicable, inform the supervisor that the direction has been given.

(4) If —

(a) a safety and health representative gives a direction under subclause (1)(b), but is unable to agree with a supervisor whom the representative has informed under that subclause that there is a need for a direction under that subclause; or

(b) a safety and health representative gives a direction under subclause (3)(c),

the representative or the supervisor may request an inspector that an inspection be conducted of the work that is the subject of the direction.

(5) As soon as possible after a request is made, an inspection must be conducted of the work that is the subject of the direction, and the inspector conducting the inspection must make decisions, and exercise powers, under Division 4 as the inspector considers necessary in relation to the work.

(6) This clause does not limit the power of a safety and health representative under clause 32(1)(a)(iii) to request an inspector that an inspection be conducted at the workplace.

43. Directions to perform other work

If —

(a) a group member who is an employee has ceased to perform work, in accordance with the direction of a safety and health representative under clause 42(1)(b) or (3)(c); and

(b) the cessation of work does not continue after —

(i) the safety and health representative has agreed with a person supervising work at the workplace where the work was being performed that the cessation of work was not, or is no longer, necessary; or

(ii) an inspector has, under clause 42(5), made a decision to the effect that the employee should perform the work,

the employer may direct the employee to perform suitable alternative work, and the employee is to be taken, for all purposes, to be required to perform that other work under the terms and conditions of the employee’s employment.

Subdivision 6 — Exemptions

44. Exemptions

(1) The Minister may, in accordance with the regulations, make a written order exempting a specified person or class of person from any or all of the provisions of this Division (other than this clause).

(2) The Minister must not make an order under subclause (1) unless the Minister is satisfied on reasonable grounds that it is impracticable for the person to comply with the provision or provisions.

Division 4 — Inspections

Subdivision 1 — Introduction

45. Simplified outline

The following is a simplified outline of this Division —

·An inspector may conduct an inspection —

(a) to ascertain whether a listed OSH law is being complied with;

(b) concerning a contravention or a possible contravention of a listed OSH law; or

·An inspector may issue a prohibition notice to the operator of a petroleum operation in order to remove an immediate threat to the safety and health of any person.

·An inspector may issue an improvement notice specifying action that is to be taken to prevent contravention of a listed OSH law.

·An inspector must prepare a report about an inspection and give the report to the Minister.

46. Powers, functions and duties of inspectors

(1) An inspector has the powers, functions and duties conferred or imposed by each listed OSH law.

(2) The Minister may give written directions specifying the manner in which, and the conditions subject to which, powers conferred on inspectors by a listed OSH law are to be exercised. If the Minister does so, the powers of inspectors must be exercised in accordance with those directions.

(3) The Minister may, by notice in writing, impose restrictions, not inconsistent with any direction in force under subclause (2), on the powers that are conferred on a particular inspector by a listed OSH law. If the Minister does so, the powers of the inspector are taken to have been restricted accordingly.

Subdivision 2 — Inspections

47. Inspections

(1) An inspector may, at any time, conduct an inspection —

(a) to ascertain whether a requirement of, or any requirement properly made under, a listed OSH law is being complied with;

(b) concerning a contravention or a possible contravention of a listed OSH law; or

(2) The Minister may direct an inspector to conduct an inspection —

(a) to ascertain whether a requirement of, or any requirement properly made under, a listed OSH law is being complied with;

(b) concerning a contravention or a possible contravention of a listed OSH law; or

and the inspector must, unless the Minister revokes the direction, conduct an inspection accordingly.

Subdivision 3 — Powers of inspectors in relation to the conduct of inspections

48. Powers of entry and search — places at which petroleum operations are carried on

(1) An inspector may, for the purposes of an inspection, at any reasonable time during the day or night —

(a) enter the place at which a petroleum operation is carried on and to which the inspection relates and do all or any of the following —

(i) search the place;

(ii) inspect, examine, take measurements of, or conduct tests concerning, any workplace, facility, plant, substance or thing at the place;

(iii) take photographs of, make video recordings of, or make sketches of, any workplace, facility, plant, substance or thing at the place;

(iv) inspect, take extracts from, or make copies of, any documents at the place that the inspector has reasonable grounds to believe relate, or are likely to relate, to the subject matter of the inspection;

and

(b) inspect the seabed and subsoil in the vicinity of the place to which the inspection relates.

(2) Immediately on entering a place at which a petroleum operation is carried on for the purposes of an inspection, an inspector must take reasonable steps to notify the purpose of entering the place to —

(a) the operator’s representative; and

(b) if there is a safety and health representative for a designated work group having a group member likely to be affected by the matter the subject of the inspection — that representative,

and must, on being requested to do so by the person referred to in paragraph (a) or (b), produce for inspection by that person —

(d) a copy of the Minister’s written direction (if any) to conduct the inspection; and

(e) a copy of the restrictions (if any) imposed on the powers of the inspector under clause 46(3).

(3) If there is a safety and health representative for a designated work group having a group member likely to be affected by the matter the subject of the inspection, the inspector must afford the safety and health representative a reasonable opportunity to consult on the matter the subject of the inspection.

49. Powers of entry and search — regulated business premises (other than places where petroleum operations carried on)

(1) An inspector may, for the purposes of an inspection —

(a) at any reasonable time, enter any regulated business premises (other than a place at which a petroleum operation is carried on) if the inspector has reasonable grounds to believe that there are likely to be at those premises documents that relate to a petroleum operation that is a subject of the inspection; and

(b) search for, inspect, take extracts from, or make copies of, any such documents at those premises.

(2) Immediately on entering premises referred to in subclause (1), an inspector must take reasonable steps to notify the purpose of the entry to the occupier of those premises, and must, on being requested to do so by the occupier, produce for inspection by the occupier —

(a) the inspector’s certificate of appointment under section 118(2);

(b) a copy of the Minister’s written direction (if any) to conduct the inspection; and

50. Powers of entry and search — premises (other than regulated business premises)

(1) An inspector may, for the purposes of an inspection —

(a) enter any premises (other than regulated business premises) if the inspector has reasonable grounds to believe that there are likely to be at those premises documents that relate to a petroleum operation that is the subject of the inspection; and

(b) search for, inspect, take extracts from, or make copies of, any such documents at those premises.

(2) An inspector may exercise the powers referred to in subclause (1) to enter premises only —

(a) if the premises are not a residence —

(i) in accordance with a warrant under clause 51;

(ii) with the consent of the occupier of the premises;

(b) if the premises are a residence — with the consent of the occupier of the premises.

(3) Immediately on entering premises referred to in subclause (1), an inspector must —

(a) take reasonable steps to notify the purpose of the entry to the occupier of those premises;

(b) take reasonable steps to produce, for inspection by the occupier, the inspector’s certificate of appointment under section 118(2); and

(i) a copy of the Minister’s written direction (if any) to conduct the inspection; and

(ii) a copy of the restrictions (if any) imposed on the powers of the inspector under clause 46(3).

(4) If —

(a) an inspector enters premises in accordance with a warrant under clause 51; and

(b) the occupier of the premises is present at the premises,

the inspector must make a copy of the warrant available to the occupier.

(5) Before obtaining the consent of a person as mentioned in subclause (2)(a) or (b), an inspector must inform the person that —

(a) the person may refuse consent; and

(b) the consent may be withdrawn.

(6) The consent of a person is not effective for the purposes of subclause (2) unless the consent is voluntary.

51. Warrant to enter premises (other than regulated business premises)

(1) An inspector may apply to a magistrate for a warrant authorising the inspector, with any assistance as the inspector thinks necessary, to exercise the powers referred to in clause 50(1) in relation to particular premises (other than a residence).

(2) The application must be supported by evidence on oath (whether oral or by affidavit) that sets out the grounds on which the inspector is applying for the warrant.

(3) If the magistrate is satisfied that there are reasonable grounds for issuing the warrant, the magistrate may issue the warrant.

(4) A warrant issued under subclause (3) must state —

(a) the name of the inspector;

(b) whether the inspection may be carried out at any time or only during specified hours of the day;

(d) the purposes for which the warrant is issued.

(5) The day specified under subclause (4)(c) is not to be more than 7 days after the day on which the warrant is issued.

(6) The purposes specified under subclause (4)(d) must include the identification of the premises in relation to which the warrant is issued.

52. Obstructing or hindering inspector

A person must not, without reasonable excuse, obstruct or hinder an inspector in the exercise of an inspector’s powers under clause 48, 49 or 50.

Penalty: $5 500.

53. Power to require assistance and information

(1) An inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of an inspection, require —

(a) the operator of a petroleum operation;

(b) the person in charge of a petroleum operation;

(d) any person representing a person referred to in paragraph (a) or (b),

to provide the inspector with reasonable assistance and amenities —

(e) that is or are reasonably connected with the conduct of the inspection in relation to the petroleum operation; or

(f) for the effective exercise of the inspector’s powers under this Schedule in connection with the conduct of the inspection in relation to the petroleum operation.

(2) The reasonable assistance referred to in subclause (1) includes, so far as the operator of a petroleum operation is concerned —

(a) appropriate transport for the inspector to and from the place to be inspected and for any equipment required by the inspector, or any article of which the inspector has taken possession; and

(b) reasonable accommodation and means of subsistence while the inspector is at the place to be inspected.

(3) A person must not fail, without reasonable excuse, to comply with a requirement under this clause.

Penalty: $3 300 or imprisonment for 6 months or both.

54. Power to require the answering of questions and the production of documents or articles

(1) If —

(a) an inspector believes on reasonable grounds that a person is capable of answering a question that is reasonably connected with the conduct of an inspection; and

(b) the person is —

(i) the operator of a petroleum operation;

(ii) the person in charge of a petroleum operation;

(iii) a member of the workforce engaged in a petroleum operation; or

(iv) any person representing a person referred to in subparagraph (i) or (ii),

the inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of the inspection, require the person to answer the question put by the inspector.

(2) If, at the time when a requirement under subclause (1) is imposed on a person, the person is not physically present on regulated business premises, the person is not obliged to comply with the requirement unless the requirement —

(a) is in writing;

(b) specifies the day on or before which the question is to be answered (being at least 14 days after the day on which the requirement is imposed); and

(3) If —

(a) an inspector believes on reasonable grounds that a person is capable of producing a document or article that is reasonably connected with the conduct of an inspection; and

(b) the person is —

(i) the operator of a petroleum operation;

(ii) the person in charge of a petroleum operation;

(iii) a member of the workforce engaged in a petroleum operation; or

(iv) any person representing a person referred to in subparagraph (i) or (ii),

the inspector may, to the extent that it is reasonably necessary to do so in connection with the conduct of the inspection, require the person to produce the document or article.

(4) If, at the time when a requirement under subclause (3) is imposed on a person, the person is not physically present on regulated business premises, the person is not obliged to comply with the requirement unless the requirement —

(a) is in writing;

(b) specifies the day on or before which the document or article is to be produced (being at least 14 days after the day on which the requirement is imposed); and

(5) A person must not —

(a) fail, without reasonable excuse, to comply with a requirement under this clause; or

(b) in purported compliance with a requirement under this clause, give information that is false or misleading in a material particular.

Penalty: $3 300 or imprisonment for 6 months or both.

55. Privilege against self‑incrimination

(1) A person is not excused from answering a question or producing a document or article when required to do so under clause 54 on the ground that the answer to the question, or the production of the document or article, may tend to incriminate the person or make the person liable to a penalty.

(2) However —

(a) the answer given or document or article produced;

(b) answering the question or producing the document or article; or

(c) any information, document or thing obtained as a direct or indirect consequence of the answering of the question or the production of the document or article,

is not admissible in evidence against the person —

(d) in any civil proceedings; or

(e) in any criminal proceedings other than proceedings for an offence against clause 54.

56. Power to take possession of plant, take samples of substances etc.

(1) In conducting an inspection, an inspector may, to the extent that it is reasonably necessary for the purposes of inspecting, examining, taking measurements of or conducting tests concerning, any plant, substance or thing at a place at which a petroleum operation is carried out in connection with the inspection —

(a) take possession of the plant, substance or thing and remove it from the place; or

(b) take a sample of the substance or thing and remove that sample from the place.

(2) On taking possession of plant, a substance or a thing, or taking a sample of a substance or thing, the inspector must, by notice in writing, inform —

(a) the operator of the petroleum operation;

(b) if the plant, substance or thing is used for the performance of work by an employer of a member or members of the workforce engaged in the petroleum operation other than the operator of the petroleum operation — that employer;

(c) if the plant, substance or thing is owned by a person other than a person mentioned in paragraph (a) or (b) — that person; and

(d) if there is a safety and health representative for a designated work group that includes a member of the workforce who is affected by the matter to which the inspection relates — that representative,

of the taking of possession or the taking of the sample, as the case may be, and the reasons for it.

(3) If the inspector gives the notice to the operator of the petroleum operation to which the inspection relates, the operator’s representative must cause the notice to be displayed in a prominent place at the workplace from which the plant, substance or thing was removed.

(4) If the inspector takes possession of plant, a substance or a thing at a workplace for the purpose of inspecting, examining, taking measurements of or conducting tests concerning, the plant, substance or thing, the inspector must —

(a) ensure that the inspection, examination, measuring or testing is conducted as soon as practicable; and

(b) return it to the workplace as soon as practicable afterwards.

(5) As soon as practicable after completing any such inspection, examination, measurement or testing, the inspector must give a written statement setting out the results to each person whom the inspector is required to notify under subclause (2).

57. Power to direct that workplace etc. not be disturbed

(1) An inspector may give a direction under subclause (2) if, in conducting an inspection, the inspector has reasonable grounds to believe that it is reasonably necessary to do so in order to —

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

(b) allow the inspection, examination or taking of measurements of, or conducting of tests concerning, a facility, or any plant, substance or thing, for use in a petroleum operation.

(2) If subclause (1) applies, the inspector may direct, by written notice given to the operator’s representative, that the operator must ensure that —

(a) a particular workplace; or

(b) particular plant, or a particular substance or thing,

not be disturbed for a period specified in the direction.

(3) The period specified in the direction must be a period that the inspector has reasonable grounds to believe is necessary in order to remove the threat or to allow the inspection, examination, measuring or testing to take place.

(4) The direction may be renewed by another direction in the same terms.

(5) If an inspector gives a notice to the operator’s representative under subclause (2), the operator’s representative must cause the notice to be displayed in a prominent place at the workplace —

(a) that is to be left undisturbed; or

(b) where the plant, substance or thing that is to be left undisturbed is located.

(6) As soon as practicable after giving the direction, the inspector must take reasonable steps to notify —

(a) if the workplace, plant, substance or thing to which the direction relates is owned by a person other than the operator of the petroleum operation — that person; and

(b) if there is a safety and health representative for a designated work group that includes a group member performing work —

(i) at a workplace; or

(ii) involving the plant, substance or thing,

to which the direction relates — that representative,

of the direction and the reasons for giving it.

(7) The operator of a petroleum operation to which a direction concerning a workplace, plant, substance or a thing relates must ensure that the direction is complied with.

Penalty: $27 500.

(8) A direction under subclause (2) must be accompanied by a statement setting out the reasons for the direction.

58. Power to issue prohibition notices

(1) If, having conducted an inspection, an inspector is satisfied on reasonable grounds that it is reasonably necessary to issue a prohibition notice to the operator of a petroleum operation in order to remove an immediate threat to the safety or health of any person, the inspector may issue a prohibition notice, in writing, to the operator.

(2) The notice must be issued to the operator by giving it to the operator’s representative.

(3) The notice must —

(a) specify the activity in respect of which, in the inspector’s opinion, the threat to safety or health has arisen, and set out the reasons for that opinion; and

(b) either —

(i) direct the operator to ensure that the activity is not engaged in; or

(ii) direct the operator to ensure that the activity is not engaged in in a specified manner.

(4) A specified manner may relate to any one or more of the following —

(a) any workplace, or part of a workplace, at which the activity is not to be engaged in;

(b) any plant or substance that is not to be used in connection with the activity;

(5) The notice may specify action that may be taken to satisfy an inspector that adequate action has been taken to remove the threat to safety and health.

(6) The operator’s representative must —

(a) give a copy of the notice to each safety and health representative (if any) for any designated work group having group members performing work that is affected by the notice; and

(b) cause a copy of the notice to be displayed at a prominent place at or near each workplace at which that work is performed.

(7) If the notice relates to any workplace, plant, substance or thing that is owned by a person other than the operator, the inspector must, upon issuing the notice, give a copy of the notice to that person.

59. Compliance with prohibition notice

(1) An operator must ensure that a prohibition notice issued to the operator is complied with.

Penalty: $27 500.

(2) If an inspector is satisfied that action taken by the operator to remove the threat to safety and health in respect of which the notice was issued is not adequate, the inspector must inform the operator accordingly.

(3) A prohibition notice ceases to have effect when an inspector notifies the operator that the inspector is satisfied that the operator has taken adequate action to remove the threat to safety or health.

(4) In making a decision under subclause (2), an inspector may exercise any of the powers of an inspector conducting an inspection that the inspector considers necessary for the purposes of making the decision.

60. Power to issue improvement notices

(1) If, in conducting an inspection, an inspector believes on reasonable grounds that a person —

(a) is contravening a listed OSH law; or

(b) has contravened a provision of a listed OSH law and is likely to contravene that provision again,

the inspector may issue an improvement notice, in writing, to the person (the “responsible person”).

(2) If the responsible person is the operator, the improvement notice may be issued to the operator by giving it to the operator’s representative.

(3) If the responsible person is an employer (other than the operator) of members of the workforce, but it is not practicable to give the notice to that employer —

(a) the improvement notice may be issued to the employer by giving it to the operator’s representative; and

(b) if the notice is so issued — the operator must ensure that a copy of the notice is given to the employer as soon as practicable afterwards.

(4) The notice —

(a) must specify the contravention that the inspector believes is occurring or is likely to occur, and set out the reasons for that belief;

(b) must specify a reasonable period within which the responsible person is to take the action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be; and

(5) If the inspector believes on reasonable grounds that it is appropriate to do so, the inspector may, in writing and before the end of the period, extend the period specified in the notice.

(6) If an improvement notice is issued to an employer (other than the operator) of members of the workforce in circumstances other than the circumstance referred to in subclause (3), the employer must immediately ensure that a copy of the notice is given to the operator’s representative.

(7) If a notice is issued to the operator or to an employer (other than the operator) of members of the workforce, the operator’s representative must —

(a) give a copy of the notice to each safety and health representative for a designated work group having group members performing work that is affected by the notice; and

(b) cause a copy of the notice to be displayed in a prominent place at or near each workplace at which the work is being performed.

(8) On issuing a notice, the inspector must give a copy of the notice to —

(a) if the notice is —

(i) given to a member of the workforce who is an employee; and

(ii) in connection with work performed by the employee,

the employer of that employee;

(b) if the notice relates to any workplace, plant, substance or thing that is owned by a person other than —

(i) a responsible person; or

(ii) a person who is an employer referred to in paragraph (a),

that owner; and

(c) if the notice is issued to a person who owns any workplace, plant, substance or thing, because of which a contravention of a listed OSH law has occurred or is likely to occur —

(i) the operator of the petroleum operation; and

(ii) if the employer of employees who work in that workplace or who use that plant, substance or thing is a person other than the operator — that employer.

61. Compliance with improvement notice

A person to whom an improvement notice is issued must comply with it to the extent that the notice relates to any matter over which the person has control.

Penalty: $11 000.

62. Notices not to be tampered with or removed

(1) A person must not, without reasonable excuse, tamper with any notice that has been displayed under clause 56(3), 57(5), 58(6) or 60(7) while that notice is so displayed.

(2) If a notice has been displayed under clause 56(3), a person must not, without reasonable excuse, remove the notice until the plant or thing to which the notice relates is returned to the workplace from which it was removed.

(3) If a notice has been displayed under clause 57(5), 58(6) or 60(7), a person must not, without reasonable excuse, remove the notice before it has ceased to have effect.

Penalty applicable to subclauses (1), (2) and (3): $11 000.

Subdivision 4 — Reports on inspections

63. Reports on inspections

(1) If an inspector has conducted an inspection, the inspector must, as soon as practicable, prepare a written report relating to the inspection and give the report to the Minister.

(2) The report must include —

(a) the inspector’s conclusions from conducting the inspection and the reasons for those conclusions;

(b) any recommendations that the inspector wishes to make arising from the inspection; and

(3) As soon as practicable after receiving the report, the Minister must give a copy of the report, together with any written comments that the Minister wishes to make —

(a) to the operator of the petroleum operation to which the report relates;

(b) if the report relates to activities performed by an employee of another person — that other person; and

(4) The Minister may, in writing, request the operator or any other person to whom the report is given to provide to the Minister, within a reasonable period specified in the request, details of —

(a) any action proposed to be taken as a result of the conclusions or recommendations contained in the report; and

(b) if a notice has been issued under clause 58 or 60 in relation to work being performed for the operator or that other person — any action taken, or proposed to be taken, in respect of that notice,

and the operator or that other person must comply with the request.

(5) As soon as practicable after receiving a report, the operator of the petroleum operation must give a copy of the report, together with any written comment made by the Minister on the report —

(a) if there is at least one safety and health committee in respect of some or all of the members of the workforce — to each such committee; and

(b) if there is no such committee in respect of some or all of the members of the workforce, but some or all of those members (in respect of which there is no such committee) are in at least one designated work group for which there is a safety and health representative — to each such safety and health representative.

Subdivision 5 — Reviews of inspectors’ decisions

64. Reviews of inspectors’ decisions

(1) If an inspector, in conducting an inspection or having conducted an inspection —

(a) decides, under clause 37, to confirm or vary a provisional improvement notice;

(b) decides, under clause 56, to take possession of plant, a substance or a thing at a workplace;

(c) decides, under clause 57, to direct that a workplace, a part of a workplace, plant, a substance or a thing not be disturbed;

(d) decides, under clause 58, to issue a prohibition notice;

(e) decides, under clause 59, that the operator of a petroleum operation to whom a prohibition notice has been issued has not taken adequate action to remove the threat to safety and health that caused the notice to be issued; or

(f) decides, under clause 60, to issue an improvement notice,

a person referred to in subclause (2) may apply in writing to the reviewing authority for a review of the decision.

(2) The following persons may apply for a review of the decision, as is relevant to the case —

(a) the operator of the petroleum operation or any employer (other than the operator) who is affected by the decision;

(b) a person to whom a notice has been issued under clause 36(2) or 60(1);

(d) a workforce representative in relation to the designated work group that includes a group member who is affected by the decision and who has requested the workforce representative to apply for a review of the decision;

(e) if there is no such designated work group, and a member of the workforce affected by the decision has requested a workforce representative in relation to the member to apply for the review of the decision — that workforce representative;

(f) a person who owns any workplace, plant, substance or thing to which the decision referred to in subclause (1)(a), (b), (c) or (f) relates.

(3) If an inspector, having conducted an inspection —

(a) decides under clause 37 to cancel a provisional improvement notice; or

(b) decides under clause 59 that the operator of a petroleum operation to whom a prohibition notice has been issued has taken adequate action to remove the threat to safety and health that caused the notice to be issued,

the following persons may apply in writing for a review of the decision, as is relevant in the case —

(e) if there is no such designated work group, and a member of the workforce affected by the decision has requested a workforce representative in relation to the member to apply for a review of the decision — that workforce representative.

(4) An application under subclause (2) or (3) must be made —

(a) not later than 7 days after the day on which the person applying received notice of the inspector’s decision; or

(b) within such further period as the reviewing authority may allow.

(5) A person, other than the operator of the petroleum operation concerned, who applies for a review of a decision must, as soon as is practicable, give a copy of the application to the operator.

Penalty: $5 000.

(6) The reviewing authority is to give notice in writing of the decision on the reference and the reasons for the decision to —

(a) the person who referred the matter for review; and

(b) if that person is not the operator of the petroleum operation concerned, to the operator.

(7) Subject to this clause, applying for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement that decision, except to the extent that the reviewing authority makes an order to the contrary.

(8) If the decision to be reviewed is a decision under clause 60 to issue an improvement notice, the operation of the notice is suspended pending determination of the review, except to the extent that the reviewing authority makes an order to the contrary.

(9) If the decision to be reviewed is a decision of an inspector under clause 37 to confirm or vary a provisional improvement notice whose operation has been suspended pending the inspection of the matter to which the notice relates, the operation of the notice is further suspended pending determination of the review, except to the extent that the reviewing authority makes an order to the contrary.

(10) In this clause —

“reviewing authority” means a person prescribed by the regulations to be a reviewing authority for the purposes of this clause.

65. Powers of reviewing authority on review

(1) On a review of a decision under clause 64, the reviewing authority may —

(a) affirm the decision;

(b) affirm the decision with such modifications as the reviewing authority considers appropriate; or

and the decision has effect or, as the case may be, ceases to have effect accordingly.

(2) If —

(a) the decision being reviewed is a decision under clause 56 to take possession of plant, a substance or a thing at a workplace; and

(b) the decision is not affirmed,

the inspector who made the decision must ensure that, to the extent that the decision is not affirmed, the plant, substance or thing is returned to the workplace as soon as practicable.

Division 5 — Referrals to the Tribunal

66. Decision may be referred to Tribunal

(1) If a person given notice of a decision under clause 21(3)(b) or 64(6) is not satisfied with the reviewing authority’s decision under that section, the person may refer the decision to the Tribunal for further review.

(2) A reference under subclause (1) must be made —

(a) not later than 7 days after the day on which the person received notice of the decision; or

(b) within such further period as the Tribunal may allow.

(3) A person, other than the operator of the petroleum operation concerned, who refers a matter for review under this clause must, as soon as is practicable, give a copy of the duly completed prescribed form to the operator.

Penalty applicable to subclause (3): $5 000.

67. Determination by Tribunal

(1) On a reference under clause 66, the Tribunal is to inquire into the circumstances relating to the decision, and may —

(a) affirm the decision of the reviewing authority;

(b) affirm the decision of the reviewing authority with such modifications as the Tribunal considers appropriate; or

(c) revoke the decision of the reviewing authority and make such other decision with respect to the notice as the Tribunal thinks fit,

and the decision has effect or, as the case may be, ceases to have effect accordingly.

(2) A review under this clause —

(a) is to be in the nature of a rehearing; and

(b) is to be completed by the Tribunal as quickly as is practicable.

(3) The Tribunal is to give notice in writing of its decision on the reference and the reasons for the decision to —

(a) the person who referred the matter for review; and

(b) if that person is not the operator of the petroleum operation concerned, to the operator.

68. Effect of pending review by Tribunal

(1) Subject to this clause, a reference to the Tribunal for further review of a decision does not affect the operation of the decision or prevent the taking of action to implement that decision, except to the extent that the Tribunal makes an order to the contrary.

(2) If the decision to be reviewed concerns a decision under clause 60 to issue an improvement notice, the operation of the notice is suspended pending determination of the review, except to the extent that the Tribunal makes an order to the contrary.

(3) If the decision to be reviewed concerns a decision of an inspector under clause 37 to confirm or vary a provisional improvement notice whose operation has been suspended pending the inspection of the matter to which the notice relates, the operation of the notice is further suspended pending determination of the review, except to the extent that the Tribunal makes an order to the contrary.

69. Jurisdiction of Tribunal

(1) This clause applies where —

(a) under clause 66 a matter is referred to the Tribunal; or

(b) under clause 30 an application is made to the Tribunal.

(2) Where this clause applies —

(a) the matter or application may be heard and determined; and

(b) a determination made by the Tribunal on the matter or application has effect, and may be appealed against and enforced,

as if it were —

(c) a matter in respect of which jurisdiction is conferred on the Tribunal by Part VIB of the Occupational Safety and Health Act 1984; or

(d) a determination made for the purposes of that Part.

(3) The provisions of —

(a) Part VIB of the Occupational Safety and Health Act 1984; and

(b) the Industrial Relations Act 1979 applied by that Part,

have effect for the purposes of this clause with all necessary changes.

(4) In the operation of subclause (3), section 51J(1) of the Occupational Safety and Health Act 1984 has effect as if it were expressed to apply where a matter has been referred to the Tribunal under clause 66 in relation to a decision made under clause 21.

Division 6 — General

70. Notifying and reporting accidents and dangerous occurrences

(1) If, arising from a petroleum operation, there is —

(a) an accident that causes the death of, or serious personal injury to, any person;

(b) an accident that causes a member of the workforce to be incapacitated from performing work for a period prescribed for the purposes of this paragraph; or

the operator must, in accordance with the regulations, give the Minister notice of, and a report about, the accident or dangerous occurrence.

Penalty: $5 000.

(2) Regulations made for the purposes of subclause (1) (other than regulations made for the purpose of subclause (1)(b)) may prescribe —

(a) the time within which, and the manner in which, notice of an accident or dangerous occurrence is to be given, and the form of the notice; and

(b) the time within which, and the manner in which, a report of an accident or dangerous occurrence is to be given, and the form of the report.

(3) Subclause (2) does not limit regulations that may be made for the purposes of subclause (1).

71. Records of accidents and dangerous occurrences to be kept

(1) The operator of a petroleum operation must maintain, in accordance with the regulations, a record of each accident or dangerous occurrence in respect of which the operator is required by clause 67 to notify the Minister.

(2) Regulations made for the purposes of subclause (1) may prescribe —

(a) the nature of the contents of a record maintained under this clause; and

(b) the period for which the record must be retained.

(3) Subclause (2) does not limit regulations that may be made for the purposes of subclause (1).

72. Codes of practice

(1) The regulations may prescribe codes of practice for the purpose of providing practical guidance to operators of petroleum operations and employers (other than operators) of members of the workforce engaged in petroleum operations.

(2) A person is not liable in any civil or criminal proceedings for contravening a code of practice.

73. Use of codes of practice in proceedings

(1) This clause applies if, in any proceedings for an offence against a listed OSH law, it is alleged that a person contravened a provision of a listed OSH law in relation to which a code of practice was in effect at the time of the alleged contravention.

(2) The code of practice is admissible in evidence in those proceedings.

(3) If the court is satisfied, in relation to any matter which it is necessary for the prosecution to prove in order to establish the alleged contravention, that —

(a) any provision of the code of practice is relevant to that matter; and

(b) the person failed at any material time to comply with that provision of the code of practice,

that matter is treated as proved unless the court is satisfied that in respect of that matter the person complied with that provision of the listed OSH law otherwise than by complying with the code of practice.

74. Interference etc. with equipment etc.

A person must not, without reasonable excuse, do anything that results in the interference with, or the rendering ineffective of, any protective equipment or safety device provided for the occupational safety and health of members of the workforce engaged in a petroleum operation if the person knew (or ought reasonably to have known) that the equipment or device was protective equipment or a safety device.

Penalty: $3 300 or imprisonment for 6 months or both.

75. No charges to be levied on members of workforce

The operator of a petroleum operation or an employer (other than the operator) of members of the workforce engaged in a petroleum operation must not levy, or permit to be levied, on a member of the workforce any charge in respect of anything done or provided in accordance with a listed OSH law in order to ensure the occupational safety and health of persons engaged in the petroleum operation or any other protected persons.

Penalty: $27 500.

76. Victimisation

(1) An employer (whether the operator or another person) must not —

(a) dismiss an employee;

(b) perform an act that results in injury to an employee in his or her employment;

(c) perform an act that prejudicially alters the employee’s position (whether by deducting or withholding remuneration or by any other means); or

(d) threaten to do any of those things,

because the employee —

(e) has complained or proposes to complain about a matter concerning the safety or health of employees at work;

(f) has assisted or proposes to assist, by giving information or otherwise, the conduct of an inspection; or

(g) has ceased, or proposes to cease, to perform work, in accordance with a direction by a safety and health representative under clause 42(1)(b) or (3)(c), and the cessation or proposed cessation does not continue after —

(i) the safety and health representative has agreed with a person supervising the work that the cessation or proposed cessation was not, or is no longer, necessary; or

(ii) an inspector has, under clause 42(5), made a decision that has the effect that the employee should perform the work.

Penalty: $27 500.

(2) In proceedings for an offence against subclause (1), if all the relevant facts and circumstances, other than the reason for an action alleged in the charge, are proved, the defendant has the onus of establishing that the action was not taken for that reason.

77. Institution of prosecutions

(1) Proceedings for an offence against a listed OSH law may be instituted by an inspector but an inspector is not to be personally responsible for any costs incurred by or awarded against the inspector in connection with any proceeding for an offence against a listed OSH law.

(2) A safety and health representative for a designated work group may request an inspector to institute proceedings for an offence against a listed OSH law in relation to the occurrence of an act or omission if —

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

(b) the safety and health representative considers that the occurrence of the act or omission constitutes an offence against a listed OSH law; and

(3) A workforce representative in relation to a designated work group may request an inspector to institute proceedings for an offence against a listed OSH law in relation to the occurrence of an act or omission if —

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

(b) the workforce representative considers that the occurrence of the act or omission constitutes an offence against a listed OSH law;

(d) a group member included in the group requests the workforce representative to request an inspector to institute the proceedings.

(4) A request under subclause (2) or (3) must be in writing.

(5) An inspector must, within 3 months after receiving the request, advise the safety and health representative or the workforce representative, as the case may be, whether proceedings under subclause (1) have been or will be instituted, and, if not, give reasons why not.

78. Conduct of directors, employees and agents

(1) This clause has effect for the purposes of a proceeding for an offence against a listed OSH law.

(2) If it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show —

(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of actual or apparent authority; and

(b) that the director, employee or agent had the state of mind.

(3) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of actual or apparent authority is taken to have been engaged in also by the body corporate unless it establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

(4) If it is necessary to establish the state of mind of a natural person in relation to particular conduct, it is sufficient to show —

(a) that the conduct was engaged in by an employee or agent of the natural person within the scope of actual or apparent authority; and

(b) that the employee or agent had the state of mind.

(5) Any conduct engaged in on behalf of a natural person by an employee or agent of the natural person within the scope of actual or apparent authority is taken to have been engaged in also by the natural person unless the natural person establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

(6) If —

(a) a natural person is found guilty of an offence; and

(b) he or she would not have been found guilty of the offence if subclauses (4) and (5) had not been enacted,

he or she is not liable to be punished by imprisonment for that offence.

(7) A reference in subclause (2) or (4) to the state of mind of a person includes a reference to —

(a) the person’s knowledge, intention, opinion, belief or purpose; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

79. Act not to give rise to other liabilities etc.

This Schedule does not —

(a) confer a right of action in any civil proceeding in respect of any contravention of a listed OSH law; or

(b) confer a defence to an action in any civil proceeding or otherwise affect a right of action in any civil proceeding.

80. Circumstances preventing compliance may be defence to prosecution

It is a defence to a prosecution for a contravention of a listed OSH law if the defendant proves that it was not practicable to comply with it because of an emergency prevailing at the relevant time.

81. Regulations — general

(1) The regulations may prescribe any of the following —

(a) procedures for the selection of persons, under clause 39, as members of safety and health committees, to represent the interests of members of the workforce engaged in a petroleum operation;

(b) procedures to be followed at meetings of safety and health committees;

(d) the practice and procedure to be followed in relation to the review of decisions under clause 21 or 64 by reviewing authorities;

(e) forms for the purposes of this Schedule or the regulations.

(2) If the Minister is satisfied that —

(a) a power, function or duty is conferred or imposed on a person under a law of this State or the Commonwealth; and

(b) the proper exercise of the power or performance of the function or duty is or would be prevented by this Schedule or a provision of this Schedule,

regulations made for the purposes of this subclause may declare that this Schedule, or the provision, as the case may be, does not apply to that person, or does not apply to that person in the circumstances specified in the regulations.

(3) Regulations made for the purposes of subclause (2) do not remain in force for longer than 5 years after they commence, but this subclause does not prevent the making of further regulations of the same substance.

(4) In subclause (2) —

“this Schedule” includes regulations made for the purposes of this Schedule.

”.

Part 3 — Petroleum Pipelines Act 1969

18. The Act amended

The amendments in this Part are to the Petroleum Pipelines Act 1969*.

[* Reprinted as at 12 May 2000.

For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 336.]

19. Section 4 amended

Section 4(1) is amended by inserting in the appropriate alphabetical positions the following definitions —

“

“listed OSH law” means —

(a) section 65;

(b) Schedule 1;

(d) a regulation made for the purposes of section 56B; or

(e) any other written law relating to occupational safety and health matters that is prescribed for the purposes of this paragraph;

“other protected person” means a person who is at or near a place where a pipeline operation is being carried on at the invitation of, or with the express or implied consent of —

(a) the licensee for the pipeline operation; or

(b) a person in control of a part of the pipeline operation;

“pipeline operation” means an operation —

(a) in connection with the construction, operation, inspection (by a person other than an inspector), maintenance or repair of a pipeline; and

(b) carried out on land that is specified in any licence as licence area;

”.

20. Section 5AA inserted

After section 5 the following section is inserted in Part 1 —

“

5AA. Disapplication of State occupational safety and health laws

(1) The prescribed occupational safety and health laws do not apply in relation to —

(a) a pipeline operation; or

(b) a person engaged in a pipeline operation or any other protected person.

(2) In this section —

”.

21. Section 36A amended

Section 36A is amended by deleting “and shall secure the safety, health and welfare of persons engaged in operations in connection with the pipeline”.

22. Section 55 repealed

Section 55 is repealed.

23. Part IVA inserted

After section 56 the following Part is inserted —

“

Part IVA — Occupational safety and health

56A. Occupational safety and health

Schedule 1 has effect.

56B. Regulations relating to occupational safety and health

(1) The regulations may make provision in relation to —

(a) the occupational safety and health of a person engaged in a pipeline operation; or

(b) the safety and health of any other protected person.

(2) Without limiting subsection (1), regulations for the purpose of that subsection may —

(a) require a person who is carrying on a pipeline operation to establish and maintain a system of management to secure —

(i) the occupational safety and health of a person engaged in a pipeline operation; or

(ii) the safety and health of any other protected person;

and

(b) specify requirements with which the system must comply.

56C. Minister’s occupational safety and health functions

(1) The Minister has the following functions —

(a) to promote the occupational safety and health of persons engaged in pipeline operations;

(b) to develop and implement effective monitoring and enforcement strategies to secure compliance by persons with their occupational safety and health obligations under this Act;

(c) to investigate accidents, occurrences and circumstances that affect, or have the potential to affect, the occupational safety and health of persons engaged in pipeline operations;

(d) to advise persons, either on the Minister’s own initiative or on request, on occupational safety and health matters relating to pipeline operations.

(2) The Minister has power to do all things necessary or convenient to be done for or in connection with the performance of the Minister’s functions.

”.

24. Section 61 amended

(1) Section 61(1)(a) is amended by deleting “Department of Mines at Perth in the State” and inserting instead —

“

department of the Public Service principally assisting in the administration of this Act

”.

(2) Section 61(4) is repealed.

25. Section 62 amended

(1) Section 62(1) is amended by deleting “the purposes of this Act and the regulations.” and inserting instead —

“

such or all of the purposes of this Act as are specified in the instrument of appointment.

”.

(2) Section 62(2) is amended by deleting “he is an inspector for the purposes of this Act and the regulations.” and inserting instead —

“

the person is an inspector for the purposes specified in the certificate.

”.

26. Section 63 amended

Section 63(1) is amended by deleting “and the regulations,” and inserting instead —

“

, but without affecting the powers of an inspector under Schedule 1,

”.

27. Section 63A inserted

After section 63 the following section is inserted —

“

63A. Protection from liability for wrongdoing

(1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.

(2) The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act had been enacted.

(3) Despite subsection (1), the State is not relieved of any liability that it might have for another person having done anything as described in that subsection.

(4) In this section a reference to the doing of anything includes a reference to the omission to do anything.

”.

28. Section 65 replaced

Section 65 is repealed and the following section is inserted instead —

“

65. Interfering with pipeline operation

A person must not intentionally or recklessly —

(a) cause damage to, or interfere with, any pipeline; or

(b) interfere with any pipeline operation.

Penalty: imprisonment for 10 years.

”.

29. Sections 66BA and 66BB inserted and transitional provision

(1) After section 66B the following sections are inserted —

“

66BA. Time for bringing proceedings for offences against this Act (including the regulations)

A proceeding for an offence against this Act may be brought at any time.

66BB. Evidentiary matters

(1) In a proceeding for an offence against this Act an averment in the complaint that at a particular time —

(a) a particular operation was a pipeline operation;

(b) a particular person was the licensee for a pipeline operation;

(d) a particular person was an employer who carried on a pipeline operation;

(e) a particular person was an employer of a particular person or particular persons engaged in a pipeline operation;

(f) a particular person was an employee or inspector,

is to be taken to have been proved in the absence of evidence to the contrary.

(2) In a proceeding for an offence against this Act, proof is not required as to any of the following matters, unless evidence is given to the contrary —

(a) a delegation under section 61 by the Minister of a power or function;

(b) the authority of any person to institute a proceeding for an offence against this Act other than an offence against a listed OSH law;

(3) In a proceeding for an offence against this Act, production of a copy of —

(a) a code of practice;

(b) an Australian Standard; or

(4) In subsection (3) —

“Australian Standard” means a document having that title published by Standards Australia;

“Australian/New Zealand Standard” means a document having that title jointly published by Standards Australia and the Standards Council of New Zealand;

“CEO” means the chief executive officer of the department of the Public Service principally assisting in the administration of this Act.

”.

(2) Section 51 of the Justices Act 1902 as in force immediately before the commencement of subsection (1) applies to an offence against the Petroleum Pipelines Act 1969 committed before that commencement as if subsection (1) had not been enacted.

30. Section 67 amended

(1) After section 67(1)(f) the following paragraphs are inserted —

“

(fa) fees in relation to pipeline safety audits or other services provided by the Minister;

(fb) any transitional matter arising out of the amendments made to this Act by the Petroleum Legislation Amendment and Repeal Act 2005;

”.

(2) After section 67(1b) the following subsection is inserted —

“

(1c) The regulations under this section may adopt or apply, with or without modification, any regulation made under the Petroleum Act 1967, the Petroleum (Submerged Lands) Act 1982 or the Commonwealth Act as defined in that Act, that is in force or existing at the time when the regulations under this section take effect or as in force or existing from time to time.

”.

31. Various sections amended to delete “or the regulations” (Interpretation Act 1984 s. 46)

The provisions set out in the Table to this section are amended by deleting “or the regulations” in each case.

Table

s. 6(3)(b)	s. 61
s. 22(1)(f)	s. 66(1) and (2)
s. 42(1)	s. 66A

32. Schedule 1 inserted

After section 67 the following Schedule is inserted —

“

Schedule 1 — Occupational safety and health

[s. 56A]

Division 1 — Introduction

1. Objects

The objects of this Schedule are, in relation to pipeline operations —

(a) to secure the occupational safety and health of persons engaged in those operations;

(b) to protect persons in the vicinity of those operations at the invitation of, or with the express or implied consent of, the licensees for, or persons in control of a part of, those operations from risks to safety and health arising out of those operations;

(d) to promote an occupational environment for members of the workforce engaged in those operations that is adapted to their needs relating to safety and health; and

(e) to foster a consultative relationship between all relevant persons concerning the safety and health of members of the workforce engaged in those operations.

2. Simplified outline

The following is a simplified outline of this Schedule —

·This Schedule sets up a scheme to regulate occupational safety and health matters relating to pipeline operations.

·Occupational safety and health duties are imposed on the following —

(a) the licensee for a pipeline operation;

(b) a person in control of any part of a pipeline operation;

(d) a manufacturer of plant, or a substance, for use in a pipeline operation;

(e) a supplier of a pipeline, or of any plant or substance, for use in a pipeline operation;

(f) a person who constructs or installs a pipeline, or any plant, for use in a pipeline operation;

(g) a person engaged in a pipeline operation.

·A group of members of the workforce engaged in a pipeline operation may be established as a designated work group.

·The members of a designated work group may select a safety and health representative for that designated work group.

·The safety and health representative may exercise certain powers for the purpose of promoting or ensuring the occupational safety and health of group members.

·An inspector may conduct an inspection —

(a) to ascertain whether a listed OSH law is being complied with;

(b) concerning a contravention or a possible contravention of a listed OSH law; or

(c) concerning an accident or dangerous occurrence that has happened at or near a place at which a pipeline operation is carried on.

·The licensee for a pipeline operation must report to the Minister accidents and dangerous occurrences arising out of the pipeline operation.

3. Definitions

In this Schedule —

“accident” includes the contraction of a disease;

“contract” includes an arrangement or understanding;

“contractor” has the meaning given by clause 6;

“dangerous occurrence” means an occurrence declared by the regulations to be a dangerous occurrence for the purposes of this definition;

“designated work group” means —

(a) a group of members of the workforce engaged in a pipeline operation that is established as a designated work group under clause 17 or 18; or

(b) that group as varied in accordance with clause 19 or 20;

“employee”, in relation to an employer, means an employee of that employer;

“employer” means an employer who carries on a pipeline operation;

“group member”, in relation to a designated work group for a pipeline operation, means a person who is —

(a) a member of the workforce engaged in that operation; and

(b) included in that designated work group;

“improvement notice” means an improvement notice issued under clause 60(1);

“inspection” means an inspection conducted under Division 4 and includes an investigation or inquiry;

“licensee”, in relation to a pipeline operation, means the registered holder of the licence granted in respect of that operation;

“ licensee’s representative” means a person present at a workplace in compliance with the obligations imposed on the licensee by clause 4;

“member of the workforce”, in relation to a pipeline operation, means a natural person who is engaged in the operation, whether —

(a) as an employee of the licensee or of another person; or

(b) as a contractor of the licensee or of another person;

“own” includes own jointly and own in part;

“plant” includes any machinery, equipment or tool, or any component;

“premises” includes the following —

(a) a structure or building;

(b) a place (whether or not enclosed or built on);

“prohibition notice” means a prohibition notice issued under clause 58(1);

“registered organisation” means an organisation —

(a) within the meaning of the Workplace Relations Act 1996 of the Commonwealth; or

(b) as defined in section 7(1) of the Industrial Relations Act 1979;

“regulated business premises” means —

(a) a place where a pipeline operation is carried on; or

(b) premises that are —

(i) occupied by a person who is the licensee for a pipeline operation; and

(ii) used, or proposed to be used, wholly or principally in connection with a pipeline operation;

“regulations” means regulations made for the purposes of this Schedule;

“Tribunal” has the meaning given to that term in the Occupational Safety and Health Act 1984 section 51G(2);

“work” means work that is directly or indirectly related to a pipeline operation;

“workforce representative” means —

(a) in relation to a person who is a member of the workforce engaged in a pipeline operation — a registered organisation of which that person is a member, if the person is qualified to be a member of that organisation because of the work the person performs in relation to the pipeline operation; or

“work group employer”, in relation to a designated work group in relation to a pipeline operation, means an employer of one or more group members, but does not include the licensee for the pipeline operation;

“workplace”, in relation to a pipeline operation, means the whole place where the pipeline operation is carried on or any part of a place where the pipeline operation is carried on.

4. Licensee must ensure presence of licensee’s representative

(1) The licensee for a pipeline operation must ensure that, at all times when one or more natural persons are engaged in the pipeline operation, there is present at the workplace a natural person (the “licensee’s representative”) who has day to day management and control of the pipeline operation.

Penalty: $5 500.

(2) The licensee for a pipeline operation must ensure that the name of the licensee’s representative is displayed in a prominent place at the workplace.

Penalty: $5 500.

(3) Subclause (1) does not imply that, if the licensee is a natural person, the licensee’s representative may not be, from time to time, the licensee.

5. Safety and health of persons using an accommodation amenity

6. Contractor

For the purposes of this Schedule, a natural person is taken to be a “contractor” of another person (the “relevant person”) if the natural person is engaged in a pipeline operation under a contract for services between —

(a) the relevant person; and

(b) either —

(i) the natural person; or

(ii) the employer of the natural person.

Division 2 — Occupational safety and health

Subdivision 1 — Duties relating to occupational safety and health

7. Duties of licensee

(1) The licensee for a pipeline operation must take all reasonably practicable steps to ensure that the pipeline operation is carried out in a manner that is safe and without risk to the health of persons engaged in the pipeline operation or other protected persons.

Penalty: $110 000.

(2) Without limiting the generality of subclause (1), the licensee for a pipeline operation must —

(a) provide and maintain a physical environment at the place where the pipeline operation is carried out that is safe and without risk to health;

(b) provide and maintain adequate amenities for the safety and health of all members of the workforce engaged in the pipeline operation;

(c) ensure that any plant, equipment, materials and substances for use in the pipeline operation are safe and without risk to health;

(d) implement and maintain systems of work in relation to the pipeline operation that are safe and without risk to health;

(e) implement and maintain appropriate procedures and equipment for the control of, and response to, emergencies arising out of the pipeline operation;

(g) monitor the occupational safety and health of all members of the workforce and keep records of that monitoring;

(h) provide appropriate medical and first aid services at the places at which a pipeline operation is carried on; and

(i) develop, in consultation with members of the workforce and workforce representatives, a policy relating to occupational safety and health that —

(i) will enable the licensee and the members of the workforce to cooperate effectively in promoting and developing measures to ensure the occupational safety and health of persons engaged in the pipeline operation;

(ii) will provide adequate mechanisms for reviewing the effectiveness of the measures; and

(iii) provides for the making of an agreement that complies with subclauses (4) and (5).

Penalty: $110 000.

(3) Subclause (2)(i) does not require the licensee for a pipeline operation to engage in consultations with a workforce representative unless a member of the workforce engaged in the pipeline operation has requested the workforce representative to be involved in those consultations.

(4) The agreement referred to in subclause (2)(i)(iii) must be between —

(a) on the one hand — the licensee; and

(b) on the other hand —

(i) the members of the workforce; and

(ii) if a member of the workforce engaged in the pipeline operation has requested a workforce representative in relation to the member to be a party to that agreement — that workforce representative.

(5) The agreement referred to in subclause (2)(i)(iii) must provide appropriate mechanisms for continuing consultation between —

(a) on the one hand — the licensee; and

(b) on the other hand —

(i) the members of the workforce; and

(ii) if a member of the workforce engaged in the pipeline operation has requested a workforce representative in relation to the member to be involved in consultations on a particular occasion — that workforce representative.

(6) The agreement may provide for any other matters agreed between the parties to it.

8. Duties of persons in control of parts of pipeline operation

(1) A person who is in control of any part of a pipeline operation must take all reasonably practicable steps to ensure that that part of the pipeline operation is carried out in a manner that is safe and without risk to the health of persons engaged in the pipeline operation or other protected persons.

Penalty: $110 000.

(2) Without limiting the generality of subclause (1), a person who is in control of any part of a pipeline operation must —

(a) ensure that the physical environment at the place where that part of the pipeline operation is carried out is safe and without risk to health;

(b) ensure that any plant, equipment, materials and substances for use in that part of the pipeline operation are safe and without risk to health;

(c) implement and maintain systems of work in relation to that part of the pipeline operation that are safe and without risk to health;

(d) ensure a means of access to, and egress from the place where that part of the pipeline operation is carried out is safe and without risk to health; and

(e) provide all members of the workforce engaged in that part of the pipeline operation in appropriate languages, with the information, instruction, training and supervision necessary for them to carry out their work in a manner that is safe and without risk to health.

Penalty: $110 000.

9. Duties of employers

(1) An employer must take all reasonably practicable steps to protect the safety and health of employees engaged in a pipeline operation.

Penalty: $110 000.

(2) Without limiting the generality of subclause (1), an employer must —

(a) provide and maintain a working environment that is safe for employees and without risk to their health;

(b) ensure that any plant, equipment, materials and substances for use in connection with the employees’ work are safe and without risk to health;

(d) provide a means of access to, and egress from, the employees’ work location that is safe and without risk to health; and

Penalty: $110 000.

(a) matters over which the first‑mentioned person has control; or

(b) matters over which —

(i) the first‑mentioned person would have had control apart from express provision to the contrary in a contract; and

(ii) the first‑mentioned person would, in the circumstances, usually be expected to have had control.

(4) An employer must take all reasonable steps to —

(a) monitor the safety and health of employees; and

(b) keep records of that monitoring.

Penalty: $110 000.

(5) An employer must take all reasonably practicable steps to ensure that —

(a) work that is undertaken by the employer’s employees is carried out in a manner that is safe and without risk to the health of persons engaged in the pipeline operation or other protected persons; and

(b) the employer’s system of work is operated in a manner that is safe and without risk to the health of persons engaged in the pipeline operation or other protected persons.

Penalty: $22 000.

10. Duties of manufacturers in relation to plant and substances

(1) A manufacturer of any plant that the manufacturer knows or ought reasonably to expect will be used by members of the workforce engaged in a pipeline operation must take all reasonably practicable steps —

(a) to ensure that the plant is so designed and constructed as to be, when properly used, safe and without risk to health;

(c) to make available, in connection with the use of the plant in a pipeline operation, adequate written information about —

(i) the use for which it is designed and has been tested;

(ii) details of its design and construction; and

(iii) any conditions necessary to ensure that, when put to the use for which it was designed and tested, it will be safe and without risk to health.

Penalty: $22 000.

(2) A manufacturer of any substance that the manufacturer knows or ought reasonably to expect will be used by members of the workforce engaged in a pipeline operation must take all reasonably practicable steps —

(a) to ensure that the substance is so manufactured as to be, when properly used, safe and without risk to health;

(c) to make available, in connection with the use of the substance in a pipeline operation, adequate written information concerning —

(i) the use for which it is manufactured and has been tested;

(ii) details of its composition;

(iii) any conditions necessary to ensure that, when put to the use for which it was manufactured and tested, it will be safe and without risk to health; and

(iv) the first aid and medical procedures that should be followed if the substance causes injury.

Penalty: $22 000.

(3) If —

(a) plant or a substance is imported into Australia by a person who is not its manufacturer; and

(b) at the time of the importation, the manufacturer of the plant or substance does not have a place of business in Australia,

the first‑mentioned person is taken, for the purposes of this clause, to be the manufacturer of the plant or substance.

11. Duties of suppliers of pipelines, plant and substances

(1) A supplier of a pipeline, or of any plant or substance, that the supplier ought reasonably to expect will be used by members of the workforce engaged in a pipeline operation, must take all reasonably practicable steps —

(a) to ensure that, at the time of supply, the pipeline, or the plant or substance, is in such condition as to be, when properly used, safe and without risk to health;

(i) in the case of a pipeline — to the licensee for the pipeline operation; and

(ii) in the case of plant or substance — to the person to whom the plant or substance is supplied,

adequate written information, in connection with the use of the pipeline, plant or substance (as the case requires) about —

(iii) the condition of the pipeline, plant or substance at the time of supply;

(iv) any risk to the safety and health of members of the workforce engaged in a pipeline operation to which the condition of the pipeline, plant or substance may give rise unless it is properly used;

(v) the steps that need to be taken in order to eliminate that risk; and

Penalty: $22 000.

(2) For the purposes of subclause (1), if a person (the “ostensible supplier”) supplies to a person either a pipeline, or any plant or substance, that is for use by members of the workforce engaged in a pipeline operation, and the ostensible supplier —

(a) carries on the business of financing the acquisition or the use of goods by other persons;

(b) has, in the course of that business, acquired an interest in the pipeline, or in the plant or substance, from another person (the “actual supplier”), solely for the purpose of financing its acquisition by, or its provision to, the person to whom it is finally supplied; and

(c) has not taken possession of the pipeline, plant or substance, or has taken possession of the pipeline, plant or substance solely for the purpose of passing possession of the pipeline, plant or substance to the person to whom it is finally supplied,

a reference in subclause (1) to a supplier is, in relation to the pipeline, plant or substance referred to in this subclause, to be read as a reference to the actual supplier and not as a reference to the ostensible supplier.

12. Duties of persons constructing pipelines or installing plant

(1) A person who constructs or installs a pipeline, or erects or installs any plant, for use in a pipeline operation, must take all reasonably practicable steps to ensure that the pipeline or plant is not erected or installed in such a way that it is unsafe or constitutes a risk to safety or health.

Penalty: $22 000.

(2) This clause does not affect the operation of any other law of this State that imposes an obligation in respect of the erection or installation of structures or goods or the supply of services.

13. Duties of persons in relation to occupational safety and health

(1) A person engaged in a pipeline operation must, at all times, take all reasonably practicable steps —

(a) to ensure that the person does not take any action, or make any omission, that creates a risk, or increases an existing risk, to —

(i) the occupational safety and health of that person; or

(ii) the safety and health of any other protected person;

(b) in respect of any obligation imposed on the licensee or on any other person under a listed OSH law — to cooperate with the licensee or that other person to the extent necessary to enable the licensee or that other person to fulfil that obligation; and

(i) supplied to the person by the licensee, an employer of the person or any other person having control of the pipeline operation (the “equipment supplier”); and

(ii) necessary to protect the occupational safety and health of the person, or the safety and health of any other person engaged in the pipeline operation or protected person,

in accordance with any instructions given by the equipment supplier, consistent with the safe and proper use of the equipment.

Penalty: $5 500.

(a) agreed on between the equipment supplier and any relevant safety and health representative; or

(b) agreed on by a safety and health committee.

14. Reliance on information supplied or results of research

(b) it was reasonable for the person to rely on that information.

(2) For the purpose of the application of clause 10 or 11 to carrying out research, testing and examining a pipeline, or any plant or substance, a person on whom an obligation is imposed under either of those clauses is regarded as having taken reasonably practicable steps as required by the relevant clause, in relation to carrying out research, testing and examining the pipeline, plant or substance, to the extent that —

(a) the research, testing or examination has already been carried out by or on behalf of someone else; and

(b) it was reasonable for the person to rely on that research, testing or examination.

(3) For the purpose of the application of clause 12 to the construction of a pipeline or the erection or installation of plant for use in a pipeline operation, a person on whom an obligation is imposed under that clause is regarded as having taken reasonably practicable steps as required by that clause to the extent that —

(a) the person ensured, so far as is reasonably practicable, that the construction of the pipeline, or the erection or installation of the plant, was —

(i) in accordance with information supplied by the manufacturer or supplier of the pipeline or plant relating to its erection or its installation; and

(ii) consistent with the occupational safety and health of persons engaged in the pipeline operation;

and

(b) it was reasonable for the person to rely on that information.

(4) Nothing in this clause limits the generality of what constitutes reasonably practicable steps as required by clause 7, 8, 9, 10, 11 or 12.

Subdivision 2 — Regulations relating to occupational safety and health

15. Regulations relating to occupational safety and health

(1) The regulations may make provision relating to any matter affecting, or likely to affect, the occupational safety and health of persons engaged in a pipeline operation.

(2) Regulations made for the purposes of subclause (1) may make provision for any or all of the following —

(a) prohibiting or restricting the performance of all work or specified work in relation to a pipeline operation;

(b) prohibiting or restricting the use of all plant or specified plant in a pipeline operation;

(d) prohibiting or restricting the storage or use of all substances or specified substances in a pipeline operation;

(e) specifying the form in which information required to be made available under clause 10(1)(c) or 11(1)(c) is to be so made available;

(f) prohibiting, except in accordance with licences granted under the regulations, the use of specified plant or specified substances in a pipeline operation;

(g) providing for —

(i) the issue, variation, renewal, transfer, suspension and cancellation of those licences; and

(ii) the conditions to which the licences may be subject;

(h) regulating the maintenance and testing of plant for use in a pipeline operation;

(i) regulating the labelling or marking of substances for use in a pipeline operation;

(j) regulating the transport of specified plant or specified substances for use in a pipeline operation;

(k) prohibiting the performance, in relation to a pipeline operation, of specified activities or work except —

(i) by persons who satisfy requirements of the regulations as to qualifications, training or experience; or

(ii) under the supervision specified in the regulations;

(l) requiring specified action to avoid accidents or dangerous occurrences;

(m) providing for, or prohibiting, specified action in the event of accidents or dangerous occurrences;

(n) providing for the employment of persons to perform specified duties relating to the maintenance of occupational safety and health in relation to a pipeline operation;

(o) regulating the provision and use, in a pipeline operation, of protective clothing and equipment, safety equipment and rescue equipment;

(p) providing for monitoring the health of members of the workforce engaged in a pipeline operation and the conditions at a place at which a pipeline operation is carried out;

(q) requiring employers to keep records of matters related to the occupational safety and health of employees;

(r) providing for the provision of first aid equipment and amenities at a place at which a pipeline operation is carried out.

Division 3 — Workplace arrangements

Subdivision 1 — Introduction

16. Simplified outline

The following is a simplified outline of this Subdivision —

·A group of members of the workforce engaged in a pipeline operation may be established as a designated work group.

·The members of a designated work group may select a safety and health representative for that designated work group.

·The safety and health representative may exercise certain powers for the purpose of promoting or ensuring the occupational safety and health of group members.

·A safety and health committee may be established in relation to the members of the workforce engaged in a pipeline operation.

·The main function of a safety and health committee is to assist the licensee in relation to occupational safety and health matters.

Subdivision 2 — Designated work groups

17. Establishment of designated work groups by request

(1) A request to the licensee for a pipeline operation to enter into consultations to establish designated work groups in relation to the members of the workforce engaged in the pipeline operation may be made by —

(a) any member of the workforce; or

(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the licensee — that workforce representative.

(2) The licensee for a pipeline operation must, within 14 days after receiving a request under subclause (1), enter into consultations with —

(a) if any member of the workforce made a request to establish designated work groups —

(i) that member of the workforce;

(ii) if that member requests that the licensee enter into consultations with a workforce representative in relation to the member — that workforce representative; and

(iii) each employer (if any) of members of the workforce;

and

(b) if a workforce representative made a request to establish designated work groups —

(i) if a member of the workforce requests that the licensee enter into consultations with that workforce representative — that workforce representative; and

(ii) each employer of members of the workforce.

(3) Within 14 days after the completion of consultations about the establishment of the designated work groups, the licensee must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

18. Establishment of designated work groups at initiative of licensee

(1) If, at any time, the licensee for a pipeline operation considers that designated work groups should be established, the licensee must enter into consultations with —

(a) all members of the workforce;

(b) if a member of the workforce requests that the licensee enter into consultations with a workforce representative in relation to the member — that workforce representative; and

(2) Within 14 days after the completion of consultations about the establishment of the designated work groups, the licensee must, by notifying the members of the workforce, establish the designated work groups in accordance with the outcome of the consultations.

19. Variation of designated work groups by request

(1) A request to the licensee for a pipeline operation to enter into consultations to vary designated work groups that have already been established in relation to the members of the workforce engaged in the pipeline operation may be made by —

(a) any member of the workforce; or

(b) if a member of the workforce requests a workforce representative in relation to the member to make the request to the licensee — that workforce representative.

(2) The licensee for a pipeline operation must, within 14 days after receiving a request under subclause (1), enter into consultations with —

(a) if any member of the workforce made a request to vary designated work groups —

(i) that member of the workforce;

(ii) the safety and health representative of each designated work group affected by the proposed variation; and

(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation;

and

(b) if a workforce representative made a request to vary designated work groups —

(i) if a member of a designated work group affected by the proposed variation requests that the licensee enter into consultations with that workforce representative in relation to the group — that workforce representative;

(ii) the safety and health representative of each designated work group affected by the proposed variation; and

(iii) each work group employer (if any) in relation to each designated work group affected by the proposed variation.

(3) If —

(a) consultations take place about the variation of designated work groups that have already been established; and

(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified,

then, within 14 days after the completion of the consultations, the licensee must, by notifying the members of the workforce who are affected by the variation, vary the designated work groups in accordance with the outcome of the consultations.

20. Variation of designated work groups at initiative of licensee

(1) If the licensee for a pipeline operation believes the designated work groups should be varied, the licensee may, at any time, enter into consultations about the variations with —

(a) the safety and health representative of each of the designated work groups affected by the proposed variation;

(b) if a member of a designated work group affected by the proposed variation requests that the licensee enter into consultations with that workforce representative in relation to the group — that workforce representative; and

(2) If —

(a) consultations take place about the variation of designated work groups that have already been established; and

(b) as a result of the consultations, it has been determined that the variation of some or all of those designated work groups is justified,

21. Referral of disagreement to reviewing authority

(2) The party referring the matter to the reviewing authority must give notice of the referral to all the other parties to the disagreement.

(3) The reviewing authority is to —

(a) resolve the matter of the disagreement referred to the reviewing authority; and

(b) notify all parties to the disagreement of the decision.

(5) In this clause —

“reviewing authority” means a person prescribed by the regulations to be a reviewing authority for the purposes of this clause.

22. Manner of grouping members of the workforce

(1) Consultations about the establishment or variation of a designated work group must be directed principally at the determination of the manner of grouping members of the workforce —

(a) that best and most conveniently enables their interests relating to occupational safety and health to be represented and safeguarded; and

(b) that best takes account of the need for any safety and health representative selected for that designated work group to be accessible to each group member.

(2) The parties to the consultations must have regard, in particular, to —

(a) the number of members of the workforce engaged in the pipeline operation to which the consultation relates;

(b) the nature of each type of work performed by those members;

(d) the workplaces where each type of work is performed;

(e) the nature of any risks to safety and health at each of those workplaces; and

(f) any overtime or shift working arrangement in relation to the pipeline operation.

(3) The designated work groups must be established or varied in such a way that, so far as practicable, each of the members of the workforce engaged in a pipeline operation is in a designated work group.

(4) All the members of the workforce engaged in a pipeline operation may be in one designated work group.

Subdivision 3 — Safety and health representatives

23. Selection of safety and health representatives

(1) One safety and health representative may be selected for each designated work group.

(2) A person is not eligible for selection as the safety and health representative for a designated work group unless the person is a member of the workforce included in the group.

(3) A person is taken to have been selected as the safety and health representative for a designated work group if —

(a) all the members of the workforce in the group unanimously agree to the selection; or

(b) the person is elected as the safety and health representative of the group in accordance with clause 24.

24. Election of safety and health representatives

(1) If —

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

(b) within a reasonable time after the vacancy occurs, a person has not been selected under clause 23(3)(a),

the licensee for the pipeline operation must invite nominations from all group members for election as the safety and health representative of the group.

(2) If the office of safety and health representative is vacant and the licensee has not invited nominations within a further reasonable time that is no later than 6 months after the vacancy occurred, the Minister may direct the licensee to do so.

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

(a) 100 members of the workforce normally in the designated work group; or

(b) a majority of the members of the workforce normally in the designated work group.

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

(6) A person cannot be a candidate in the election if he or she is disqualified under clause 30.

(7) All the members of the workforce in the designated work group are entitled to vote in the election.

(8) A licensee conducting or arranging for the conduct of an election under this clause must comply with any relevant directions issued by the Minister.

25. List of safety and health representatives

The licensee for a pipeline operation must —

(a) prepare and keep up to date a list of all the safety and health representatives of designated work groups comprising members of the workforce engaged in the pipeline operation; and

(b) ensure that the list is available for inspection, at all reasonable times, by —

(i) the members of the workforce engaged in the pipeline operation; and

(ii) inspectors.

26. Members of designated work group must be notified of selection etc. of safety and health representative

The licensee for a pipeline operation must —

(a) notify members of a designated work group in relation to the pipeline operation of a vacancy in the office of safety and health representative for the designated work group within a reasonable time after the vacancy arises; and

27. Term of office

(1) A safety and health representative for a designated work group holds office —

(b) if paragraph (a) does not apply — for 2 years.

(2) The term of office of a safety and health representative begins at the start of the day on which he or she was selected.

(3) Nothing in this clause prevents a safety and health representative from being selected for further terms of office.

28. Training of safety and health representatives

(2) The licensee for the pipeline operation concerned must permit the representative to take any time off work, without loss of remuneration or other entitlements, that is necessary to undertake the training.

(3) If a person other than the licensee is the employer of the representative, that person must permit the representative to take any time off work, without loss of remuneration or other entitlements, that is necessary to undertake the training.

29. Resignation etc. of safety and health representatives

(1) A person ceases to be the safety and health representative for the designated work group if —

(a) the person resigns as the safety and health representative;

(b) the person ceases to be a group member of that designated work group;

(c) the person’s term of office expires without the person having been selected, under clause 23, to be the safety and health representative for the designated work group for a further term; or

(d) the person is disqualified under clause 30.

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

(3) If a person resigns as the safety and health representative for a designated work group, the person must notify the resignation to the group members.

(4) If a person has ceased to be the safety and health representative for a designated work group because of subclause (1)(b), the person must notify in writing —

(a) the group members; and

(b) the licensee and each work group employer,

that the person has ceased to be the safety and health representative for that designated work group.

30. Disqualification of safety and health representatives

(1) An application for the disqualification of a safety and health representative for a designated work group may be made to the Tribunal by —

(a) the licensee;

(b) a work group employer; or

(c) at the request of a group member of the designated work group — a workforce representative in relation to the designated work group.

(2) An application under subclause (1) may be made on either or both of the following grounds —

(a) that action taken by the representative in the exercise or purported exercise of a power under clause 32(1) or any other provision of this Schedule was taken —

(i) with the intention of causing harm to the licensee or work group employer or to an undertaking of the licensee or work group employer; or

(ii) unreasonably, capriciously or not for the purpose for which the power was conferred on the representative;

(4) In making a decision under subclause (3), the Tribunal must have regard to —

(a) the harm (if any) that was caused to the licensee or work group employer or to an undertaking of the licensee or work group employer as a result of the action of the representative;

(b) the past record of the representative in exercising the powers of a safety and health representative;

(d) any other matters the Tribunal thinks relevant.

31. Deputy safety and health representatives

(1) One deputy safety and health representative may be selected for each designated work group for which a safety and health representative has been selected.

(2) A deputy safety and health representative is to be selected in the same way as a safety and health representative under clause 23.

(3) If the safety and health representative for a designated work group —

(a) ceases to be the safety and health representative; or

(b) is unable (because of absence or for any other reason) to exercise the powers of a safety and health representative,

then —

(d) this Schedule (other than this clause) applies in relation to the deputy safety and health representative accordingly.

32. Powers of safety and health representatives

(1) A safety and health representative for a designated work group may, for the purpose of promoting or ensuring the safety and health at a workplace of the group members —

(a) do all or any of the following —

(ii) inspect the whole or any part of the workplace if the safety and health representative has given reasonable notice of the inspection to the licensee’s representative and to any other person having immediate control of the workplace;

(iii) make a request to an inspector or to the Minister that an inspection be conducted at the workplace;

(v) if there is no safety and health committee in respect of the members of the workforce engaged in the pipeline operation — represent group members in consultations with the licensee and any work group employer about the development, implementation and review of measures to ensure the safety and health of those members at the workplace;

(vi) if a safety and health committee has been established in respect of the members of the workforce engaged in the pipeline operation — examine any of the records of that committee;

(b) investigate complaints made by any group member to the safety and health representative about the safety and health of any of the members of the workforce (whether in the group or not);

(c) with the consent of a group member, be present at any interview about safety and health at work between that member and —

(i) an inspector;

(ii) the licensee or a person representing the licensee; or

(iii) a work group employer or a person representing that employer;

(d) obtain access to any information under the control of the licensee or any work group employer —

(i) relating to risks to the safety and health of any group member; and

(ii) relating to the safety and health of any group member;

and

(e) issue provisional improvement notices in accordance with clause 36.

(2) Subclause (1)(d)(ii) has effect subject to clause 34.

33. Assistance by consultant

(1) A safety and health representative for a designated work group is entitled, in the exercise of his or her powers, to be assisted by a consultant.

(2) A safety and health representative for a designated work group may —

(a) be assisted by a consultant at a workplace at which work is performed; or

(b) provide to a consultant information that has been provided to the safety and health representative by a group member under clause 32(1)(d),

only if the licensee or the Minister has, in writing, agreed to the provision of that assistance at that workplace or the provision of that information, as the case may be.

(3) Neither the licensee nor any workplace employer becomes, because of the agreement under subclause (2) to the provision of assistance by a consultant, liable for any remuneration or other expenses incurred in connection with the consultant’s activities.

(a) an inspector; or

(b) the licensee or any work group employer or a person representing the licensee or that employer,

if, and only if, the group member consents to the presence of the consultant.

34. Information

(1) Neither —

(a) a safety and health representative; nor

(b) a consultant assisting a safety and health representative,

is entitled, under clause 32(1)(d)(ii), to have access to information in respect of which a group member is entitled to claim, and does claim, legal professional privilege.

(2) Neither —

(a) a safety and health representative; nor

(b) a consultant assisting a safety and health representative,

is entitled, under clause 32(1)(d)(ii), to have access to information of a confidential medical nature relating to a person who is or was a group member unless —

(c) the person has delivered to the licensee or any work group employer a written authority permitting the safety and health representative, or the safety and health representative and the consultant, as the case requires, to have access to the information; or

(d) the information is in a form that does not identify the person or enable the identity of the person to be discovered.

35. Obligations and liabilities of safety and health representatives

This Schedule does not —

(a) impose an obligation on a person to exercise any power conferred on the person because the person is a safety and health representative; or

(b) render a person liable in civil proceedings because of —

(i) a failure to exercise such a power; or

(ii) the way such a power was exercised.

36. Provisional improvement notices

(1) If —

(a) a safety and health representative for a designated work group believes, on reasonable grounds, that a person —

(i) is contravening a listed OSH law; or

(ii) has contravened a provision of a listed OSH law and is likely to contravene that provision again;

and

(b) the contravention affects or may affect one or more group members,

the representative must consult with the person supervising the relevant activity in an attempt to reach agreement on rectifying the contravention or preventing the likely contravention.

(3) If a responsible person is the licensee, the improvement notice may be issued to the licensee by giving it to the licensee’s representative.

(4) If it is not practicable to issue the notice to a responsible person (other than the licensee or the supervisor) by giving it to that responsible person —

(b) if the notice is so issued, a copy of the notice must be given to the responsible person as soon as practicable afterwards.

(5) The notice must —

(a) specify the contravention that, in the safety and health representative’s opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and

(b) specify a period that —

(i) is not less than 7 days beginning on the day after the notice is issued; and

(ii) is, in the representative’s opinion, reasonable,

within which the responsible person is to take action necessary to prevent any further contravention or to prevent the likely contravention, as the case may be.

(6) The notice may specify action that the responsible person is to take during the period specified in the notice.

(8) On issuing the notice, the safety and health representative must give a copy of the notice to —

(a) if the licensee is not a responsible person — the licensee;