OCCUPATIONAL SAFETY AND HEALTH LEGISLATION …

WESTERN AUSTRALIA

OCCUPATIONAL SAFETY ANDHEALTH LEGISLATIONAMENDMENT ACT 1995

No. 30 of 1995

AN ACT to amend the —

• Occupational Health, Safety and WelfareAct 1984;

• Mines Safety and Inspection Act 1994; and• Industrial Relations Act 1979,

and for related purposes.

[Assented to 11 September 1995.]

The Parliament of Western Australia enacts as follows:

No. 30] Occupational Safety and Health LegislationAmendment Act 1995

PART 1— PRELIMINARY

Short title

1. This Act may be cited as the Occupational Safety and HealthLegislation Amendment Act 1995.

Commencement

2. The provisions of this Act come into operation on such day asis, or days as are respectively, fixed by proclamation.

upational Safety and Health Legislation [No. 30Amendment Act 1995

PART 2 — OCCUPATIONAL HEALTH, SAFETY ANDWELFARE ACT 1984

Principal Act

3. In this Part the Occupational Health, Safety and WelfareAct 1984* is referred to as the principal Act.

[* Reprinted as at 23 January 1989.For subsequent amendments see 1993 Index toLegislation of Western Australia, Table 1, p. 148 andAct No. 32 of 1994.]

Long title amended

4. The long title to the principal Act is amended —

(a) by deleting "health, safety and welfare" in bothplaces where it occurs and substituting in each casethe following —

" safety and health "; and

(b) by deleting "Occupational Health, Safety andWelfare" and substituting the following —

" WorkSafe Western Australia

Section 1 amended

5. Section 1 of the principal Act is amended by deleting"Health, Safety and Welfare" and substituting the following —

" Safety and Health ".


Section 3 amended

6. Section 3 of the principal Act is amended —

(a) in subsection (1) —

(i) in the definition of "appointed member" bydeleting "section 6 (2) (d)" and substituting thefollowing —

section 6 (2) (a) or (d) )7;

(ii) in the definition of "Commission" by deleting"Occupational Health, Safety and Welfare" andsubstituting the following —

WorkSafe Western Australia

(iii) in the definition of "Commissioner" by deleting"Commissioner for Occupational Health, Safetyand Welfare" and substituting the following —

WorkSafe Western AustraliaCommissioner

(iv) by deleting the definitions of "employee" and"employer" and substituting the followingdefinitions —

"

"employee" means —

(a) a person by whom work isdone under a contract ofemployment; or

(b) an apprentice or industrialtrainee;

"

"

Occupational Safety and Health Legislation [No. 30Amendment Act 1995

"employer" means —

(a) a person by whom anemployee is employedunder a contract ofemployment; and

(b) in relation to anapprentice, or industrialtrainee, the person bywhom the apprentice orindustrial trainee isemployed under anapprenticeship orindustrial trainingagreement;

(v) in the definition of "self-employed person" bydeleting "apprenticeship" and substituting thefollowing —

C'

an apprenticeship or industrialtraining agreement

(vi) in the definition of "trade union" by deleting"Conciliation and Arbitration Act 1904" andsubstituting the following —

"

Industrial Relations Act 1988 Pl;

(vii) in the definition of "workplace" by inserting after"employees" the following —

" or self-employed persons


(viii) by inserting in the appropriate alphabeticalpositions the following definitions —

"apprentice" means an apprenticeunder the Industrial TrainingAct 1975;

"chairperson" means thechairperson of the Commission;

"industrial trainee" means anindustrial trainee under theIndustrial Training Act 1975;

"safety and health committee"means a safety and healthcommittee established underPart W;

"safety and health magistrate"means a person holding office asa safety and health magistrateunder section 51B;

"safety and health representative"means a safety and healthrepresentative elected underPart IV;

and

(ix) by deleting the definitions of "health and safetycommittee", "health and safety representative","Industrial Relations Commission" and "welfare";

and


(b) by inserting after subsection (2) the followingsubsection —

(3) For the purposes of sections 19 (7),20 (5), 21 (3), 22 (5), 23 (5) and 23A (3), acontravention causes serious harm to aperson if it causes any bodily injury to theperson, or causes the person to have adisease, of such a nature as to —

(a) endanger, or be likely toendanger, the person's life; or

(b) result, or be likely to result, inpermanent injury or harm to theperson's health.

Section 3A repealed

7. Section 3A of the principal Act is repealed.

Section 6 amended


(a) by repealing subsections (1) and (2) and substitutingthe following subsections{I

(1) There shall be a WorkSafe WesternAustralia Commission.

(2) The Commission shall consist of —

(a) a person nominated by theMinister and appointed by theGovernor as chairperson;


(b) the Commissioner;

(c) 2 officers of the Public Servicenominated in writing by theMinister; and

(d) 9 persons appointed by theGovernor of whom —

(i) 3 shall be personsnominated for appointmentby the body known as theChamber of Commerce andIndustry of WesternAustralia (Inc);

(ii) 3 shall be personsnominated for appointmentby the body known as TheTrades and Labor Councilof Western Australia; and

(iii) 3 shall be persons havingknowledge of or experiencein occupational safetyand health who shallbe nominated forappointment by theMinister after consultationbetween the Minister andthe bodies referred to insubparagraphs (i) and (ii).

(b) in subsection (4) by deleting "(b) or"; and

";


(c) by inserting after subsection (4) the followingsubsections —

(5) In addition to the name mentionedin subsection (1), the Commission may use,and operate under, the name "WorkSafeW A".

(6) A person other than theCommission who uses or operates underthe name mentioned in subsection (1) or(5), or any name that is so similar that itis likely to be misunderstood as referring tothe Commission, commits an offence.

(7) Nothing in subsection (6) preventsthe department of the Public Serviceprincipally assisting the Minister in theadministration of this Act from using oroperating under the name of "WorkSafeWestern Australia" or a similar name ifthat designation is given to it under section35 of the Public Sector Management Act1994.

Section 6A inserted

9. After section 6 of the principal Act the following section isinserted —

Deputy chairperson

6A. (1) The Minister shall appoint one of themembers of the Commission to be deputy chairpersonof the Commission.


(2) During any vacancy in the office ofchairperson or while the chairperson is unable to actby reason of sickness, absence or other cause, thedeputy chairperson shall perform the functions of thechairperson.

(3) No act or omission of the deputy chairpersonacting as the chairperson shall be questioned on theground that the occasion for so acting had not arisenor had ceased.

Section 7 repealed and a section substituted

10. Section 7 of the principal Act is repealed and the followingsection is substituted —

"

Acting members

7. (1) If —

(a) an appointed member is unable to act byreason of sickness, absence or other cause;or

(b) the office of an appointed member is vacantand has not been filled in accordance withthis Act,

the Minister may appoint an eligible person to acttemporarily in the place of that appointed member,and while so acting according to the tenor of theappointment that other person has all of the functions,powers and immunities of that appointed member.

(2) Where an appointed member who is deputychairperson is performing the functions of thechairperson, the Minister may, under subsection (1),


appoint another eligible person to act in the place ofthat appointed member.

(3) No act or omission of a person acting in theplace of another under this section is to be questionedon the ground that the occasion for the appointmentor so acting had not arisen or had ceased.

(4) The appointment of a person as an actingmember may be terminated at any time by theMinister.

Section 9 amended


(a) in subsection (1) by deleting "Commissioner forOccupational Health, Safety and Welfare" andsubstituting the following —

WorkSafe Western Australia Commissioner

and


(8) In addition to the name mentionedin subsection (1), the Commissioner mayuse, and operate under, the name"WorkSafe W A Commissioner".


Section 13 amended


(a) in subsection (1) by deleting "Commissioner" in bothplaces where it occurs and substituting in each casethe following —

" chairperson

(b) in subsection (3) by deleting "Commissioner" andsubstituting the following —

chairperson

(c) by repealing subsection (4) and substituting thefollowing subsection —"

(4) If both the chairperson and thedeputy chairperson are absent from ameeting of the Commission, the memberspresent shall elect by secret ballot one oftheir number to preside at that meetingand that member shall have, in addition tothe powers of a member of the Commission,the powers of the chairperson under thissection.

and

(d) by repealing subsection (6) and substituting thefollowing subsections —"

(6) Subject to subsection (6a), at ameeting of the Commission —

(a) only members appointed undersection 6 (2) (d) are entitled tovote; and


(b) where any question requiring avote arises the question shall bedecided by a majority of thevotes of the members appointedunder section 6 (2) (d) if, andonly if, not less than 6 of thosemembers also constitute suchmajority.

(6a) If —

(a) on a vote at a meeting of theCommission, a majority of thevotes of members appointedunder section 6 (2) (d) isconstituted by 5 of thosemembers; and

(b) on a vote at a subsequentmeeting of the Commission onthe same question, a majority ofthe votes is constituted by 5 ofthose members,

the chairperson may, at that subsequentmeeting, cast a vote to be included in themajority vote.


Section 19 amended


(a) by repealing subsection (3) and substituting thefollowing subsection —

"

(3) If, at a workplace, an employeeincurs an injury, or is affected by a disease,that —

(a) results in the death of theemployee; or

(b) is of a kind prescribed in theregulations for the purposes ofthis subsection,

the employer of that employee shallforthwith notify the Commissioner in theprescribed form giving such particulars asmay be prescribed.

and

(b) by repealing subsection (6) and substituting thefollowing subsections —

(6) An employer who contravenessubsection (1) commits an offence and isliable to a fine of $100 000.

(7) An employer who contravenessubsection (1) and by that contraventioncauses the death of, or serious harm to, anemployee commits an offence and is liableto a fine of $200 000.


(8) An employer who contravenessubsection (3) commits an offence and isliable to a fine of $25 000.

(9) An employer charged with anoffence against subsection (7) may, insteadof being convicted of that offence, beconvicted of an offence against subsection(6).

"

Section 20 amended

14. Section 20 of the principal Act is amended by repealingsubsection (4) and substituting the following subsections —

"

(4) An employee who contravenes subsection (1)or (3) commits an offence and is liable to a fine of$10 000.

(5) An employee who contravenes subsection (1)or (3) and by that contravention causes the death of,or serious harm to, any person commits an offence andis liable to a fine of $20 000.

(6) An employee charged with an offence againstsubsection (5) may, instead of being convicted of thatoffence, be convicted of an offence against subsection(4).

Section 21 amended

15. Section 21 of the principal Act is amended by repealingsubsection (2) and substituting the following subsections —

"

(2) A person who contravenes subsection (1)commits an offence and is liable to a fine of $100 000.


(3) A person who contravenes subsection (1) andby that contravention causes the death of, or seriousharm to, any person commits an offence and is liableto a fine of $200 000.

(4) A person charged with an offence againstsubsection (3) may, instead of being convicted of thatoffence, be convicted of an offence against subsection(2).



"

Duties of persons who have control ofworkplaces

22. (1) A person who has, to any extent, controlof —

(a) a workplace where persons who are notemployees of that person work or are likelyto be in the course of their work; or

(b) the means of access to and egress from aworkplace,

shall take such measures as are practicable to ensurethat the workplace, or the means of access to or egressfrom the workplace, as the case may be, are such thatpersons who are at the workplace or use the means ofaccess to and egress from the workplace are notexposed to hazards.

(2) Where a person has, by virtue of a contract orlease, an obligation of any extent in relation to the


maintenance or repair of a workplace or the means ofaccess to and egress from the workplace, the personshall be treated for the purposes of subsection (1) asbeing a person who has control of that workplace orthat means of access or egress.

(3) A reference in this section to a person havingcontrol of any workplace or means of access to oregress from a workplace is a reference to a personhaving control of that workplace or that means ofaccess or egress in connection with the carrying on bythat person of a trade, business or undertaking(whether for profit or not).

(4) A person who contravenes subsection (1)commits an offence and is liable to a fine of $100 000.


(6) A person charged with an offence againstsubsection (5) may, instead of being convicted of thatoffence, be convicted of an offence against subsection(4).

(7) This section does not apply to a person whoseduties are set out in section 20.


Section 23 amended


(a) by deleting paragraph (a) of subsection (1) andsubstituting the following —

"

(a) ensure that the design andconstruction of the plant is such thatpersons who properly install,maintain or use the plant are not indoing so, exposed to hazards;

(b) in subsection (1) (c) —

(i) by deleting "and" after subparagraph(ii);

(ii) in subparagraph (iii) by deleting"hazards," and substituting thefollowing —

hazards; and

(iv) the proper maintenance ofthe plant,

(c) by inserting after subsection (3) the followingsubsection —

"

(3a) A person who designs orconstructs any building or structure,including a temporary structure, for use ata workplace shall, so far as is practicable


ensure that the design and construction ofthe building or structure is such that —

(a) persons who properly construct,maintain, repair or service thebuilding or structure; and

(b) persons who properly use thebuilding or structure,

are not, in doing so, exposed to hazards.

and

(d) by repealing subsection (4) and substituting thefollowing subsections —"

(4) A person who contravenessubsection (1), (2), (3) or (3a) commits anoffence and is liable to a fine of $100 000.

(5) A person who contravenessubsection (1), (2), (3) or (3a) and by thatcontravention causes the death of, orserious harm to, any person commits anoffence and is liable to a fine of $200 000.

(6) A person charged with an offenceagainst subsection (5) may, instead of beingconvicted of that offence, be convicted of anoffence against subsection (4).


Sections 23A and 23B inserted

18. After section 23 of the principal Act the following sectionsare inserted —"

Prohibited activities in prescribed areas

23A. (1) A person shall not

(a) engage in any activity, other than aprescribed activity; or

(b) engage in a prescribed activity, other thanin a prescribed manner,

at a workplace in an area of the State prescribed forthe purposes of this section.

(2) A person who contravenes subsection (1),commits an offence and is liable to a fine of $100 000.


(4) A person charged with an offence againstsubsection (3) may, instead of being convicted ofthat offence, be convicted of an offence againstsubsection (2).

No double jeopardy

23B. A person is not liable to be punished twiceunder this Act in respect of any act or omission.


Section 25 amended

19. Section 25 (1) of the principal Act is amended by deleting"or a health and safety representative" and substituting thefollowing —"

, a safety and health representative or, if there is nosafety and health representative, an employee

Section 26 amended


(a) by inserting after subsection (1) the followingsubsection —"

(la) In determining whether anemployee has reasonable grounds for thebelief referred to in subsection (1) it isrelevant to consider whether an inspectorhas attended the workplace upon beingnotified under section 25 (1) of the risk andwhether —

(a) the measures, if any, requiredby the inspector to be taken toremedy the matters giving riseto the risk have been taken;

(b) the requirements, if any, of theinspector to remedy the mattersgiving rise to the risk haveceased to have effect; or

(c) the inspector has determinedthat no action is required to betaken under this Act.


(b) by inserting after subsection (2) the followingsubsections —

"

(2a) An employee who refuses to workas mentioned in subsection (1) shall notleave the workplace concerned until theemployee has notified the employer undersubsection (2) and that employer hasauthorized the employee to leave thatworkplace.

(2b) Subsection (2a) does not apply ifthe employee has reasonable grounds tobelieve that to remain at the workplaceconcerned would expose the employee to arisk of imminent and serious injury orimminent and serious harm to his or herhealth.

and

(c) in subsection (3) by deleting "subsection (2)" andsubstituting the following —

subsection (2) or (2a)

Section 28 amended

21. Section 28 of the principal Act is amended

(a) by inserting after subsection (1) the followingsubsection —"

(la) Subsection (1) does not applyif —

(a) the employee leaves theworkplace without the

"


authorization of the employer asrequired under section 26 (2a);Or

(b) the employee refuses to doreasonable alternative work thatthe employee is given undersection 27.

and

(b) in subsection (2) by deleting "the Industrial RelationsCommission." and substituting the following —

"

a safety and health magistrate fordetermination.

Section 28A inserted


"

Offences — refusal to work

28A. (1) In this section "disentitled employee"means an employee who refuses to work for anyperiod —

(a) on the grounds that to do so would involvea risk of injury or harm to the health ofany person; or

(b) on the grounds that another employeerefuses to work because to do so wouldinvolve a risk of injury or harm to thehealth of any person,


but does not include a person who has refused to workas mentioned in section 26 (1) and who is entitled topay and other benefits under section 28 (1).

(2) An employee who accepts from his or heremployer, in respect of any period during which thatemployee is a disentitled employee, any pay or otherbenefits to which the employee would have beenentitled if he or she had continued to work commits anoffence.

(3) An employer who pays or provides to anemployee, in respect of any period during which theemployee is a disentitled employee, any pay or otherbenefits to which the employee would have beenentitled if the employee had continued to workcommits an offence.

(4) In subsections (2) and (3) a reference to payand other benefits does not include a reference to anypayment or benefit prescribed for the purposes of thissection.

(5) This section has effect despite any provision ofany other written law, including the IndustrialRelations Act 1979, and any order, award oragreement made or registered under that Act.

Section 30 amended


(a) by repealing subsections (1), (2) and (3) andsubstituting the following subsections —

"

(1) An employer shall, within 21 daysof being given notice under section 29


requiring the election of a safety andhealth representative, invite the employeeswho work at the workplace in respect ofwhich the notice is given to appoint adelegate or delegates in accordance withsubsection (3).

(2) An employer may, at any time theemployer requires the election of a safetyand health representative for a workplaceof the employer, invite the employees whowork at the workplace to appoint adelegate or delegates in accordance withsubsection (3).

(3) The employees who work at aworkplace may, upon being invited underthis section to do so, appoint a delegate ordelegates from amongst their number torepresent them.

(3a) An employer shall consult withthe delegate or delegates, as the caserequires, appointed under this section as tothe matters which are required to bedetermined under this section.

(b) in subsection (4) —

(i) by inserting after paragraph (a) the followingparagraph —

"

(aa) the matters or areas in respectof which each safety and healthrepresentative is to exercisefunctions in the workplace;


(ii) in paragraph (c) by deleting "where none of theemployees who work at a workplace is a memberof a trade union,";

'(c) by repealing subsections (5) and (6) and substitutingthe following subsections —"

(5) Where they wish to do so, theparties consulting under subsection (3a)may request that an election to be held forthe purpose of electing a safety and healthrepresentative be conducted by theElectoral Commissioner appointed underthe Electoral Act 1907.

(6) Any matter mentioned insubsection (4) that remains unresolvednotwithstanding attempts to resolve itunder subsection (3a) may be referred tothe Commissioner who shall, if unable toresolve the matter to the satisfaction ofeach of the parties concerned, refer thematter to a safety and health magistratefor determination.

and

(d) in subsection (7) by inserting after "subsection (1)" thefollowing —

" or (3a)

Section 31 amended


(a) by repealing subsections (2), (3), (4) and (5);


(b) in subsection (6) by inserting after "Subject to thissection," the following —

an election shall be conducted and

(c) in subsection (7) by deleting ", where any of theparties consulting under section 30 to determinematters in relation to that election so requires,";

(d) in subsection (10) by deleting "A trade union" andsubstituting the following —"

The person ";

(e) by inserting after subsection (10) the followingsubsections —"

(1 Oa) A safety and healthrepresentative shall, within 14 days ofbeing elected under this section, notify theCommissioner in the prescribed form ofthat election and give such furtherparticulars as are prescribed in that form.

(lob) A safety and healthrepresentative who contravenes subsection(10a) commits an offence.

"; and

(f) in subsection (11) —

(i) by deleting "Commissioner who may" andsubstituting the following —"

Commissioner who shall "; and

(ii) by deleting "the Industrial RelationsCommission" and substituting the following —" a safety and health magistrate ".

";


Section 33 amended


(a) in subsection (1) (a) by deleting "to inspect theworkplace" and substituting the following —

"

to inspect that workplace "; and

(b) by repealing subsection (2) and substituting thefollowing subsection —

"

(2) A safety and health representativefor a workplace has such powers as arenecessary for the carrying out of the safetyand health representative's functions underthis Part and in particular, but withoutlimiting the generality of this provisionmay, where requested to do so by aninspector, accompany an inspector whilethe inspector is carrying out, at theworkplace, any of the inspector's functionsunder this Act.

Section 34 amended


(a) in subsection (1) by deleting "the Industrial RelationsCommission" and substituting the following —

a safety and health magistrate 27;

(b) in subsection (2) (b) by deleting "any trade union amember of which" and substituting the following —

any employee who

"

"


(c) in subsection (3) —

(i) by deleting "the Industrial RelationsCommission" and substituting the following —

" a safety and health magistrate "; and

(ii) by deleting "it may" and substituting thefollowing —

"

the safety and health magistrate may

and

(d) in subsection (4) —



(ii) by deleting "it considers" and substituting thefollowing —

the safety and health magistrateconsiders


Section 35 amended

27. Section 35 (3) of the principal Act is amended by deleting"the Industrial Relations Commission upon a reference made toit" and substituting the following —

a safety and health magistrate upon a reference madeto the safety and health magistrate

Section 36 amended


(a) by repealing subsection (1) and substituting thefollowing subsection —"

(1) An employee who works at aworkplace may request the employer toestablish a safety and health committee forthe workplace under this Part.


(i) by deleting "by a health and safetyrepresentative" and substituting thefollowing —

by an employee

(ii) in paragraph (a) by deleting "the health andsafety representative" and substituting thefollowing —"

the employee and any safety andhealth representative for theworkplace

"

and


(iii) in paragraph (b) by deleting "the health andsafety representative" and substituting thefollowing —

the employee and any safety andhealth representative for theworkplace

and

(c) in subsection (3) by deleting "and the health andsafety representative" and substituting thefollowing —

" and the employee

Section 37 amended

29. Section 37 of the principal Act is amended by insertingafter subsection (3) the following subsection —

"

(4) If the employer and the safety and healthrepresentatives of the workplaces concerned sodetermine, a safety and health committee constitutedby —

(a) the person or persons nominated by thatemployer; and

(b) those safety and health representatives,

may exercise its functions in relation to each of thoseworkplaces.

"


Section 38 amended



(i) by deleting paragraph (b) and the "and" afterthat paragraph and substituting thefollowing —

"

(b) if there are no safety and healthrepresentatives, the person orpersons elected by theemployees for the purposes ofthis section; and

and

(ii) in paragraph (c) by deleting "nominated" andsubstituting the following —

appointed ";

(b) by repealing subsections (2) and (3) and substitutingthe following subsections "

(2) Subject to subsections (4) and(5)

(a) the number of persons to beelected by the employees for thepurposes of this section shall beas is substantially agreedbetween the employer andemployees concerned; and


(b) the number of persons to beappointed by the employer forthe purposes of this section shallbe —

(i) as is agreed between theemployer and the safetyand health representativeor, where there are 2 ormore of them, the safetyand health representatives,for the workplace; or

(ii) if there is no safety andhealth representative, as issubstantially agreedbetween the employer andemployees.

(3) If there is —

(a) in the opinion of theCommissioner, failure tosubstantially agree the matterunder subsection (2) (a), thenumber of persons to be electedby the employees for thepurposes of this section shall beas decided by the Commissioner;

(b) failure to agree the matterunder subsection (2) (b) (0, thenumber of persons to beappointed by the employer forthe purposes of this section shallbe as decided by theCommissioner; or


(c) in the opinion of theCommissioner, failure tosubstantially agree the matterunder subsection (2) (b) (ii), thenumber of persons to beappointed by the employer forthe purposes of this section shallbe as decided by theCommissioner.

(c) in subsection (4) by deleting "health and safetyrepresentatives or" and substituting the following —

safety and health representatives or, wherethere are no safety and healthrepresentatives,


(i) by inserting after "for a workplace unless he is"the following —

the employer or "; and

(ii) by deleting "nominated" and substituting thefollowing —

appointed "; and

(e) by inserting after subsection (5) the followingsubsections —

(6) An employer may appoint himselfor herself as a member of a safety andhealth committee.


(7) An election for the purposes of thissection shall be by secret ballot.

Section 39 amended


(a) by inserting after the section designation "39." thesubsection designation "(1)";

(b) by deleting "a health and safety representative, or atrade union any member of which works at aworkplace may refer to the Industrial RelationsCommission for review by it" and substituting thefollowing —

"

a safety and health representative, or anemployee who works at a workplace mayrefer to a safety and health magistrate forreview by that safety and healthmagistrate

and

(c) by inserting the following subsection —

"

(2) A safety and health magistratemay confirm, vary or revoke a decision ofthe Commissioner referred undersubsection (1).


Section 43 amended


(3) In carrying out the functions of an inspectorunder this Act, an inspector shall act in such amanner as to avoid unduly or unreasonablyinterfering with any work or work process.

"

Section 46 amended


(a) in subsection (1) by inserting after "to a workplace,"the following —

if practicable

(b) in subsection (2) by deleting "Where" and substitutingthe following —

Subject to subsection (3), where "; and


"

(3) Subsection (2) does not apply inrespect of the results of the analysis of apersonal biological sample provided by anemployee unless —

(a) the employee has authorized theinspector to notify the personconcerned; or

" ";


(b) the results are in a form thatcould not reasonably be expectedto lead to the identification ofany person to whom they relate.

"

Section 47 amended

34. Section 47 (1) of the principal Act is amended by insertingafter paragraph (b) the following paragraph —

(ba) uses any threat or any abusive or insultinglanguage to an inspector lawfully acting in theperformance of a function conferred on aninspector under this Act, or any interpreter orother person assisting an inspector in theperformance of that function;

,,

Section 48 amended



(i) by deleting paragraph (b) and substituting thefollowing paragraph —

(b) state reasonable grounds forforming that opinion;

and

(ii) in paragraph (e) by deleting "section 51" andsubstituting the following —

" sections 51 and 51A


(b) by inserting after subsection (3) the followingsubsections —"

(3a) A person shall not remove animprovement notice displayed undersubsection (3) before the requirements ofthat improvement notice have beensatisfied.

(3b) Subsection (3a) does not apply inrespect of an improvement notice that issuspended under section 51 or 51A or thathas ceased to have effect.

(3c) If an improvement notice is issuedto a self-employed person in respect of acontravention of section 21, that personshall comply with subsection (3) as if theperson were an employer.

(c) in subsection (4) by deleting "section 51" andsubstituting the following —

" sections 51 and 51A "; and

(d) in subsection (6) by inserting after "subsection (3)" thefollowing —

" , (3a) or (3c)


Section 49 amended



(1) Where an inspector is of theopinion that an activity is occurring or mayoccur at a workplace which activityinvolves or will involve a risk of imminentand serious injury to, or imminent andserious harm to the health of, any person,the inspector may issue to a person who isor will be carrying on the activity, or aperson who has or may be reasonablypresumed to have control over the activity,a prohibition notice prohibiting thecarrying on of the activity until aninspector is satisfied that the matterswhich give or will give rise to the risk areremedied.



(i) by deleting paragraph (b) and substituting thefollowing paragraph —

"

(b) state reasonable grounds forforming that opinion;

(ii) in paragraph (e) by deleting "section 51" andsubstituting the following —

" sections 51 and 51A

".

(c) by inserting after subsection (4) the followingsubsections —

(4a) A person shall not remove aprohibition notice displayed undersubsection (4) before the requirements ofthat prohibition notice, taking into accountany modifications made under section 51(5), have been satisfied or the prohibitionnotice has ceased to have effect.

(4b) If a prohibition notice is issued toa self-employed person in respect of acontravention of section 21, that personshall comply with subsection (4) as if theperson were an employer.

(d) in subsection (5) by deleting "section 51" andsubstituting the following —

sections 51 and 51A "; and"


(e) in subsection (6) by inserting after "subsection (4)" thefollowing —

", (4a) or (4b)

Section 51 amended


(a) by repealing subsection (1) and substituting thefollowing subsection —"

(1) An improvement notice orprohibition notice may, in accordance withthis section, be referred for review to theCommissioner by —

(a) the person to whom the notice isissued; or

(b) the employer (if any) of theperson to whom the notice isissued.

(b) by repealing subsections (3) and (4);


(i) by deleting "or, as the case may be, theIndustrial Relations Commission"; and

(ii) by deleting "and the notice shall have effect" andsubstituting the following —"

and, subject to section 51A, the noticeshall have effect


(d) by repealing subsection (6) and substituting thefollowing subsections

(6) The Commissioner shall give to theperson who referred the matter for review,and to any other person who was entitledunder subsection (1) to refer the notice forreview, a notice in writing of the decisionon the reference and of the reasons for thatdecision.

(6a) In dealing with a reference for thereview of a prohibition notice theCommissioner may refer to an expertchosen by the Commissioner such mattersas appear appropriate and may accept theadvice of that expert.

and

(e) in subsection (7) (b) by deleting "Industrial RelationsCommission" and substituting the following —

" Commissioner



Further review of notices

51A. (1) A person to whom notice of a decision isissued under section 51 (6) may, if not satisfied withthe Commissioner's decision, refer the matter inaccordance with subsection (2) to a safety and healthmagistrate for further review.


(2) A reference under subsection (1) may be madein the prescribed form within 7 days of the issue ofthe notice under section 51 (6).

(3) A review of a decision made under section 51shall be in the nature of a rehearing.

(4) A safety and health magistrate shall act asquickly as is practicable in determining a matterreferred under this section.

(5) On a reference under subsection (1) the safetyand health magistrate shall inquire into thecircumstances relating to the notice and may —

(a) affirm the decision of the Commissioner;

(b) affirm the decision of the Commissionerwith such modifications as seemappropriate; or

(c) revoke the decision of the Commissionerand make such other decision with respectto the notice as seems fit,

and the notice shall have effect or, as the case may be,cease to have effect accordingly.

(6) In dealing with a reference under this sectionthe safety and health magistrate may refer to anexpert chosen by the safety and health magistratesuch matters as appear appropriate and the report ofany such expert may be accepted as evidence.


(7) Pending the decision on a reference under thissection, irrespective of the decision of theCommissioner under section 51, the operation of thenotice in respect of which the reference is madeshall —

(a) in the case of an improvement notice, besuspended; and

(b) in the case of a prohibition notice, continue,subject to any decision to the contrarymade by the safety and health magistrate.

Part VIA inserted

39. Before section 52 of the principal Act the following Part isinserted —"

PART VIA — SAFETY AND HEALTHMAGISTRATES

Safety and health magistrates

51B. Every magistrate holds office as a safety andhealth magistrate by virtue of this section and ceasesto hold that office upon ceasing to hold office as amagistrate.

Jurisdiction of safety and health magistrate

51C. (1) A safety and health magistrate hasjurisdiction to

(a) hear and determine any matter referred toa safety and health magistrate under thisAct; and


(b) hear and determine under the JusticesAct 1902 proceedings instituted undersection 52.

(2) A decision by a safety and health magistrateon a matter referred under this Act has effectaccording to its substance.

(3) Except as otherwise prescribed by or underthis Act —

(a) the powers of a safety and healthmagistrate; and

(b) the practice and procedure to be observedby a safety and health magistrate,

when exercising jurisdiction under subsection (1) (a)are those provided for by the Local Courts Act 1904and when exercising that jurisdiction a safety andhealth magistrate is taken to be a court under thatAct.

(4) If, in relation to a matter referred to a safetyand health magistrate under this Act, no provision ofthe Local Courts Act 1904 or this Act is applicable thematter shall be dealt with in such manner as thesafety and health magistrate may direct.

(5) When exercising jurisdiction under subsection(1) (b) a safety and health magistrate constitutes acourt of summary jurisdiction.

Representation

51D. In the hearing and determination of a matterunder section 51C (1) (a) before a safety and healthmagistrate a party may appear personally or be


represented by any agent, including a legalpractitioner.

Administrative arrangements

51E. The Chief Stipendiary Magistrate shall makesuch administrative arrangements as are necessary toenable a safety and health magistrate to carry outfunctions under this Act.

Section 52 amended

40. Section 52 (2) of the principal Act is amended by deleting "acourt of summary jurisdiction composed of a" and substitutingthe following —

"

a safety and health

Section 53 amended


(a) in paragraph (c) by deleting the following —

or control

". and

(b) by deleting "shall be deemed to be proved in theabsence of proof to the contrary." and substituting thefollowing —

is, in the absence of evidence to thecontrary, taken to be proved.


Section 54 repealed and sections 54, 54A and 54Bsubstituted42. Section 54 of the principal Act is repealed and the followingsections are substituted —

General penalty

54. A person who commits an offence against thisAct is liable, if a penalty is not expressly provided forthat offence —

(a) where the offence is committed by a personas an employee, to a fine of $5 000; and

(b) in any other case, to a fine of $25 000.

Continuing offences

54A. (1) Where an offence is committed by aperson by reason of the contravention of a provision ofthis Act under which the person is required ordirected to do any act or thing, or to refrain fromdoing any act or thing, that offence is taken tocontinue so long as the act or thing so required ordirected remains undone, or continues to be done, asthe case may be.

(2) Where an offence is taken to continue, theperson who committed the offence, whether by act oromission, commits an additional offence on each dayduring which the offence is taken to continue afternotice of the offence has been given by or on behalf ofan inspector to the offender, and is liable to a fine notexceeding $200 where the offence is committed by aperson as an employee and $1000 in any other case forevery day on which the offence is so continued.


Appeals

54B. (1) Part VIII of the Justices Act 1902 appliesto an appeal from a decision of a safety and healthmagistrate under section 52.

(2) A party to proceedings before a safety andhealth magistrate, other than proceedings referred toin section 52, may, by leave of the Supreme Court,appeal to the Supreme Court on a queston of lawagainst a determination or decision of the safety andhealth magistrate.

(3) An appeal or an application for leave to appealto the Supreme Court under subsection (2) shall bebrought in the manner and in the time prescribed byrules made by the Supreme Court and shall be heardand determined by a single judge of the SupremeCourt.

(4) Without limiting the rules of the SupremeCourt, where an appeal under subsection (2) hascommenced, the court —

(a) may suspend the operation or effect of thedetermination or decision appealed againstuntil the appeal is determined or iswithdrawn; and

(b) may revoke any such suspension.


Section 56 amended



(i) by deleting "by reason only" and substituting thefollowing —

for the dominant or substantialreason

and

(ii) by inserting after paragraph (c) the following —

" or

and

(b) in subsection (2) by deleting "by reason only" andsubstituting the following —

for the dominant or substantial reason

Section 57 amended


(a) in subsection (1) by deleting ", and employees" andsubstituting the following —

, employees, and other persons on whom aduty is imposed under Part III of this Act,


(b) in subsection (4) by inserting after "under this section"the following —

and the approval or revocation comes intoforce on the day of such publication

and


(8) Where it is alleged in a proceedingunder this Act that a person hascontravened a provision of this Act or theregulations in relation to which a code ofpractice was in effect at the time of thealleged contravention —

(a) the code of practice is admissiblein evidence in that proceeding;and

(b) demonstration that the personcomplied with the provision ofthe Act or regulations whetheror not by observing thatprovision of the code of practiceis a satisfactory defence.

Section 60 amended


(6) Regulations made under this Act may providethat contravention of a regulation constitutes anoffence and provide for penalties not exceeding —

(a) $5 000 where the offence is committed by aperson as an employee; and


(b) $25 000 in any other case,

and if the offence is a continuing one a further penaltynot exceeding —

(c) $200 where the offence is committed by aperson as an employee; and

(d) $1 000 in any other case,

for each day or part of a day during which the offencecontinues after notice of the offence has been given byor on behalf of an inspector to the offender.

Schedule amended

46. The Schedule to the principal Act is amended —

(a) in item 1 —

(i) by deleting "or" at the end of paragraph (e); and

(ii) in paragraph (1) by deleting "substance." andsubstituting the following —

substance; or

(g) in the design or construction of anybuilding or structure, including atemporary structure.


(b) by inserting after item 6 the following item —

"

6A. The prohibition of the use, handling,treatment, storage, transportation or disposal ofany prescribed substance at a workplace.

(c) by inserting after item 24 the following item —

"

24A. The reporting of injuries incurred atworkplaces, or diseases affecting employees atworkplaces, other than injuries and diseasesprescribed for the purposes of section 19 (3).

and

(d) by inserting after item 26 the following items —

26A. The conduct of elections under this Actby secret ballot.

26B. The powers of safety and healthmagistrates.

26C. The remuneration of agents for servicesperformed in connection with appearancesunder section 51D.

Minor amendments

47. (1) The provisions of the principal Act referred to inColumn 1 of Schedule 1 to this Part are amended in the mannerset out opposite them in Column 2.


(2) The provisions of the principal Act listed in the Table tothis subsection are amended by deleting "health, safety andwelfare" wherever it occurs in those provisions and substitutingthe following —

safety and health

TABLE

s. 5 (a), (f) and (g)s. 14 (1) (b) (c), (e), (g),(h), (j) and (1)s. 18 (1) and (2)s. 19 (1) (c)s. 38 (5)

s. 40 (a), (b) and (c)s. 58 (1)s. 61 (1) (b)Schedule, clauses 12, 16and 25

(3) The provisions of the principal Act listed in the Table tothis subsection are amended by deleting "health, safety orwelfare" wherever it occurs in those provisions and substitutingthe following —

" safety or health

TABLE

s. 20 (2) (c) s. 40 (e)s. 24 (1) s. 56 (1) (d)s. 33 (1) (1) and (g) s. 57 (2)s. 35 (1) (b) and (c)

Schedule, clause 10

(4) The provisions of the principal Act listed in the Table tothis subsection are amended by deleting "health and safety"wherever it occurs in those provisions and substituting thefollowing —

" safety and health


TABLE

s. 5 (e)s. 14 (1) (d), (f) and (i)s. 15 (5) (a)s. 19 (1) (c)s. 20 (1) (a)s. 21 (1) (a)s. 24 (1) (a) and (b), and (3)s. 26 (2)s. 29s. 30 (4) (a)s. 31 (1), (6), (8) and (9)s. 32 (1) and (2)s. 33 (1) and (3)

s. 34 (1), (2), (3) and (4)s. 35 (1), (2) and (3)s. 36 (2)s. 37 (1) and (3)s. 38 (1), (4) and (5)s. 39s. 40s. 41 (1) and (2)s. 45 (2), (3) and (4)s. 46 (2)s. 56 (1) (a), (b), (c) and (d),and (2)

Consequential amendments

48. The Acts referred to in Schedule 2 to this Part are amendedin the manner set out in that Schedule.

Transitional: Matters referred to Industrial RelationsCommission; prosecutions

49. (1) Any matter referred to the Industrial RelationsCommission under the principal Act and not finally determinedbefore the commencement of this section may be dealt with afterthat commencement as if the principal Act had not been amendedby this Act.

(2) An appeal in respect of the decision of the IndustrialRelations Commission made before the commencement of thissection may be —

(a) determined;

(b) heard and determined; or


(c) instituted, heard and determined,

as the case requires, under the Industrial Relations Act 1979 asif the principal Act had not been amended by this Act.

(3) Proceedings instituted under section 52 of the principalAct and not finally determined before the commencement of thissection may be dealt with after that commencement as if thatsection had not been amended by this Act.

Change of title and constitution

50. (1) The amendments effected by this Act to change thetitles of the Commissioner and health and safety representativeselected under the principal Act do not affect the continuity ortenure of those offices and the amendments effected by this Actto change the title of the Commission and health and safetycommittees established under the principal Act do not affect thecontinuity of those bodies.

(2) Notwithstanding the amendments effected by section 8,persons who were appointed members of the Commissionimmediately before the commencement of that section continue tobe members of the Commission on the same terms and conditionsas those on which they were appointed.


SCHEDULE 1[Section 47]

MINOR AMENDMENTS

Column 1

Heading toPart II

s.9 (3)

Column 2

Delete "OCCUPATIONAL HEALTH, SAFETYAND WELFARE" and substitute the following

" WORKSAFE WESTERN AUSTRALIA ".

Delete "Recommendation" and substitute thefollowing —

" recommendation

s.14 (1) (h) Delete "National Commission for OccupationalHealth, Safety and Welfare" and substitute thefollowing —

National Occupational Health and SafetyCommission

s.14 (2) Delete "proposed" and substitute the following —

proposes

s. 17 Delete "officer" and substitute the following —

officers

"

Heading toPart III

s. 20 (1) (b)

s. 20 (2) (a)

s. 21 (1) (b)

"

Delete "HEALTH, SAFETY AND WELFARE" andsubstitute the following

" SAFETY AND HEALTH ".

Delete "health or safety" and substitute thefollowing —

safety or health

"

Delete "health or safety" in both places where itoccurs and substitute in each case the following

safety or health ”.

Delete "health or safety" and substitute thefollowing —" safety or health


s. 28 (2) After "benefit;" insert the following —"Or

Heading to Delete "HEALTH AND SAFETY" and substitutePart W the following —


s.30 (7) Delete "and" and substitute the following —".

an ".

Schedule In clause 1 delete "Health, safety and welfare" andsubstitute the following

" Safety and health ".

In clause 18 delete "welfare" and substitute thefollowing

" safety and health



CONSEQUENTIAL AMENDMENTS

Short title of Act Amendment

1. Factories andShops Act 1963

In section 5 (1) delete the definition of"Commission" and substitute thefollowing —

"Commission" means theWorkSafe WesternAustralia Commissionestablished under theOccupational Safetyand Health Act 1984. "

2. Parliamentary In the Schedule delete "The OccupationalCommissioner Health, Safety and Welfare CommissionAct 1971 established under the Occupational

Health, Safety and Welfare Act 1984 andany advisory committee appointed underthat Act." and insert at the end of theSchedule the following —

WorkSafe Western AustraliaCommission establishedunder the OccupationalSafety and Health Act 1984and any advisory committeeappointed under that Act

3. Public Sector In section 8 (1) (e) delete "OccupationalManagement Health, Safety and Welfare Act 1984" andAct 1994 substitute the following —

Occupational Safety andHealth Act 1984

In section 29 (1) (m) delete "OccupationalHealth, Safety and Welfare Act 1984" andsubstitute the following —


4. Workers' In section 48 (2) delete "OccupationalCompensation Health, Safety and Welfare Act 1984" andand substitute the following

—RehabilitationAct 1981 " Occupational Safety and

Health Act 1984

"

"

"


In section 48 (3) delete "OccupationalHealth, Safety and Welfare Act 1984" andsubstitute the following —


In section 95 (3) (e) delete "OccupationalHealth, Safety and Welfare Act 1984" andsubstitute the following —


"

"


PART 3 — MINES SAFETY AND INSPECTION ACT 1994

Principal Act

51. In this Part the Mines Safety and Inspection Act 1994 isreferred to as the principal Act.

Long title amended

52. The long title to the principal Act is amended by deleting"health, safety and welfare" and substituting the following —

safety and health ".

Section 4 amended



(i) by inserting after the definition of "rock" thefollowing definitions —

"

"safety and health committee"means a safety and healthcommittee established undersection 65;

"safety and health magistrate"means a person holding office asa safety and health magistrateunder section 51B of theOccupational Safety and HealthAct 1984;


"safety and health representative"means a safety and healthrepresentative elected undersection 56;

and

(ii) by deleting the definitions of "health and safetycommittee", "health and safety representative","Industrial Relations Commission" and "welfare";

and


"

(4) For the purposes of sections 9 (8),10 (5), 12 (3), 13 (3) and 14 (6) acontravention causes serious harm to aperson if it causes any bodily injury to theperson, or causes the person to have adisease, of such a nature as to —

(a) endanger, or be likely toendanger, the person's life; or

(b) result, or be likely to result, inpermanent injury or harm to theperson's health.

Section 9 amended

54. After section 9 (7) of the principal Act the followingsubsections are inserted —

"

(8) An employer who contravenes subsection(1) and by that contravention causes the death of, or


serious harm to, an employee commits an offence andis liable in the case of a corporation to a fine of$200 000 and in the case of an individual to a fine of$20 000.

(9) An employer charged with an offence againstsubsection (8) may, instead of being convicted ofthat offence, be convicted of an offence againstsubsection (7).

Section 10 amended


"

(5) An employee who contravenes subsection (1)or (3) and by that contravention causes the death of,or serious harm to, any person commits an offence andis liable to a fine of $20 000.

(6) An employee charged with an offence againstsubsection (5) may, instead of being convicted ofthat offence, be convicted of an offence againstsubsection (4).

Section 12 amended


"

(3) A person who contravenes subsection (1) andby that contravention causes the death of, or seriousharm to, any person commits an offence and is liable


in the case of a corporation to a fine of $200 000 andin the case of an individual to a fine of $20 000.


Section 13 amended

57. After section 13 (2) of the principal Act the followingsubsections are inserted

"

(3) A person who contravenes subsection (1) andby that contravention causes the death of, or seriousharm to, any person commits an offence and is liablein the case of a corporation to a fine of $200 000 andin the case of an individual to a fine of $20 000.


Section 14 amended

58. (1) Section 14 of the principal Act is amended —

(a) in subsection (1) (a) by deleting "use" and substitutingthe following —

" install, maintain or use "; and


(b) by repealing subsection (3) and substituting thefollowing subsection —

"

(3) A person who designs or constructsany building or structure, including atemporary structure, for use at a minemust, so far as is practicable, ensure thatthe design and construction of the buildingor structure is such that —

(a) persons who properly construct,maintain, repair or service thebuilding or structure; and

(b) persons who properly use thebuilding or structure,

are not, in doing so, exposed to hazards.

(2) After section 14 (5) of the principal Act the followingsubsections are inserted —

(6) A person who contravenes subsection (1), (2),(3) or (4) and by that contravention causes the deathof, or serious harm to, any person commits an offenceand is liable in the case of a corporation to a fine of$200 000 and in the case of an individual to a fine of$20 000.





No double jeopardy

15. (1) A duty imposed on a person under thisPart —

(a) does not affect the application of any othermore specific duty imposed on that personunder this Act; and

(b) applies notwithstanding any other morespecific duty imposed on that person underthis Part.

(2) A person is not liable to be punished twiceunder this Act in respect of any act or omission.

Section 30 amended

60. Section 30 (6) of the principal Act is amended by deleting"the court" in both places where it occurs and substituting ineach case the following —

" the safety and health magistrate

Section 53 amended

61. Section 53 of the principal Act is amended by repealingsubsection (2) and substituting the following subsection —

"

(2) A safety and health representative for a minehas such powers as are necessary for the carrying out


of the representative's functions under this Part andin particular, but without limiting the generality ofthe preceding statement, may, where requested to doso by an inspector, accompany an inspector while theinspector is carrying out, at the mine, any of theinspector's functions under this Act.

Section 55 amended


(a) by repealing subsections (1), (2) and (3) andsubstituting the following subsections —

"

(1) An employer must, within 21 daysof being given notice under section 54requiring the election of a safety andhealth representative, invite the employeeswho work at the mine in respect of whichthe notice is given to appoint a delegate ordelegates in accordance with subsection (3).

(2) An employer may, at any time theemployer requires the election of a safetyand health representative for a mine, invitethe employees who work at the mine toappoint a delegate or delegates inaccordance with subsection (3).

(3) The employees who work at a minemay, upon being invited under this sectionto do so, appoint a delegate or delegatesfrom amongst their number to representthem.


(3a) An employer must consult withthe delegate or delegates, as the caserequires, appointed under this section as tothe matters which are required to bedetermined under this section.

(b) in subsection (4) (c) by deleting "where none of theemployees who work at a workplace is a member of atrade union,";


" subsection (3a) "; and

(d) by repealing subsection (6) and substituting thefollowing subsections —

"

(6) Any matter mentioned insubsection (4) that remains unresolvednotwithstanding attempts to resolve itunder subsection (3a) may be referred tothe State mining engineer who must, ifunable to resolve the matter to thesatisfaction of each of the partiesconcerned, refer the matter to a safety andhealth magistrate for determination.

(7) An employer who contravenessubsection (1) or (3a) commits an offence.


Section 56 amended


(a) by repealing subsections (2), (3), (4) and (5);

(b) in subsection (6) by inserting after "Subject to thissection," the following —

an election is to be conducted and

(c) in subsection (7) by deleting ", where any of theparties consulted under section 55 to determinematters in relation to that election so requires,";

(d) in subsection (10) by deleting "A trade union" andsubstituting the following —

The person

(e) by inserting after subsection (10) the followingsubsections —"

(1 Oa) A safety and healthrepresentative shall, within 14 days ofbeing elected under this section, notify theState mining engineer the prescribed formof that election and give such furtherparticulars as are prescribed in that form.

(1 Ob) A safety and healthrepresentative who contravenes subsection(10a) commits an offence.

"; and

";


(f) in subsection (11) —

(i) by deleting "engineer who may" and substitutingthe following —

" engineer who must "; and

(ii) by deleting "the Industrial RelationsCommission" and substituting the following —

" a safety and health magistrate

Section 59 amended


(a) in subsection (1) by deleting "the Industrial RelationsCommission" and substituting the following —" a safety and health magistrate ";

(b) in subsection (2) (b) by deleting "a trade union amember of which" and substituting the following —

an employee who



a safety and health magistrate "; and

(ii) by deleting "it may" and substituting thefollowing —

" the safety and health magistrate may ".

"

"

and





(ii) by deleting "it considers" and substituting thefollowing —

"

the safety and health magistrateconsiders

"

Section 62 amended

65. Section 62 of the principal Act is amended by deleting "theIndustrial Relations Commission upon a reference made to it"and substituting the following —

"

a safety and health magistrate upon a reference madeto the safety and health magistrate

Section 64 amended



"

(1) An employee who works at a minemay request an employer at the mine toestablish a safety and health committee forthe mine.



(i) by deleting "by a health and safetyrepresentative" and substituting thefollowing —

"

by an employee

(ii) in paragraph (a) by deleting "the health andsafety representative" and substituting thefollowing —

"

the employee and any safety andhealth representative for the mine

and

(iii) in paragraph (b) by deleting "the health andsafety representative" and substituting thefollowing —

"

the employee and any safety andhealth representative for the mine

and

(c) in subsection (3) by deleting "and the health andsafety representative" and substituting thefollowing —

" and the employee


Section 66 amended

67. Section 66 of the principal Act is amended


(i) by deleting paragraph (b) and the "and" afterthat paragraph and substituting thefollowing —

"

(b) if there is no safety and healthrepresentative, the person orpersons elected by theemployees for the purposes ofthis section; and

and

(ii) in paragraph (c) by deleting "nominated" andsubstituting the following —

" appointed

(b) by repealing subsections (2) and (3) and substitutingthe following subsections —

"

(2) Subject to subsections (4) and(5) —

(a) the number of persons to beelected by the employees is to beas is substantially agreedbetween the employer oremployers and employeesconcerned; and


(b) the number of persons to beappointed by the employer oremployers is to be —

(i) as is agreed between theemployer or employers andthe safety and healthrepresentative or, wherethere are 2 or more ofthem, the safety andhealth representatives, forthe mine; or

(ii) if there is no safety andhealth representative, as issubstantially agreedbetween the employer oremployers and employees.

(3) If there is —

(a) in the opinion of the Statemining engineer, failure tosubstantially agree the matterunder subsection (2) (a), thenumber of persons to be electedby the employees for thepurposes of this section is to beas decided by the State miningengineer;

(b) failure to agree the matterunder subsection (2) (b) (i), thenumber of persons to beappointed by the employer oremployers for the purposes ofthis section is to be as decidedby the State mining engineer; or


(c) in the opinion of the Statemining engineer, failure tosubstantially agree the matterunder subsection (2) (b) (ii), thenumber of persons to beappointed by the employer oremployers for the purposes ofthis section is to be as decidedby the State mining engineer.

(c) in subsection (4) by deleting "health and safetyrepresentatives or" and substituting the following —

safety and health representatives or, wherethere are no safety and healthrepresentatives,

(d) in subsection (5) by deleting "nominated" andsubstituting the following —

" appointed "; and

(e) by inserting after subsection (5) the followingsubsections —

"

(6) An employer may appoint himselfor herself as a member of a safety andhealth committee.

(7) An election for the purposes of thissection shall be by secret ballot.


Section 67 amended


(a) by inserting after the section designation "67." thesubsection designation "(1)";

(b) by deleting "a health and safety representative, or atrade union any member of which works at the mine,may refer to the Industrial Relations Commission"and substituting the following —

"

a safety and health representative, or anemployee who works at the mine may referto a safety and health magistrate

and

(c) by inserting the following subsection —

"

(2) A safety and health magistratemay confirm, vary or revoke a decision ofthe State mining engineer referred undersubsection (1).

Section 72 amended


(a) by inserting after subsection (1) the followingsubsection

(la) In determining whether anemployee has reasonable grounds for thebelief referred to in subsection (1) it isrelevant to consider whether a district


inspector has attended the workplace uponbeing notified under section 71 (1) of therisk and whether —

(a) the measures, if any, requiredby the district inspector to betaken to remedy the mattersgiving rise to the risk have beentaken;

(b) the requirements, if any, of thedistrict inspector to remedy thematters giving rise to the riskhave ceased to have effect; or

(c) the district inspector hasdetermined that no action isrequired to be taken under thisAct.

(b) by inserting after subsection (2) the followingsubsections —

(2a) An employee who refuses to workas mentioned in subsection (1) must notleave the mine concerned until theemployee has notified the employer undersubsection (2) and that employer hasauthorized the employee to leave thatmine.

(2b) Subsection (2a) does not apply ifthe employee has reasonable grounds tobelieve that to remain at the mineconcerned would expose the employee to arisk of imminent and serious injury orimminent and serious harm to his or herhealth.

and



" subsection (2) or (2a)

Section 74 amended


(a) by inserting after subsection (1) the followingsubsection —

(la) Subsection (1) does not applyif —

(a) the employee leaves the minewithout the authorization of theemployer as required undersection 72 (2a); or

(b) the employee refuses to doreasonable alternative work thatthe employee is given undersection 73.

";

and

(b) in subsection (2) by deleting "the Industrial RelationsCommission." and substituting the following —

a safety and health magistrate fordetermination.




Offences — refusal to work

74A. (1) In this section "disentitled employee"means an employee who refuses to work for anyperiod —

(a) on the grounds that to do so would involvea risk of injury or harm to the health ofany person; or

(b) on the grounds that another employeerefuses to work because to do so wouldinvolve a risk of injury or harm to thehealth of any person,

but does not include a person who has refused to workas mentioned in section 72 (1) and who is entitled topay and other benefits under section 74 (1).

(2) An employee who accepts from his or heremployer, in respect of any period during which thatemployee is a disentitled employee, any pay or otherbenefits to which the employee would have beenentitled if the employee had continued to workcommits an offence.

(3) An employer who pays or provides to anemployee, in respect of any period during which theemployee is a disentitled employee, any pay or otherbenefits to which the employee would have beenentitled if the employee had continued to workcommits an offence.


(4) In subsections (2) and (3) a reference to payand other benefits does not include a reference to anypayment or benefit prescribed for the purposes of thissection.

(5) This section has effect despite any provision ofany other written law, including the IndustrialRelations Act 1979, and any order, award oragreement made or registered under that Act.

Section 95 amended

72. Section 95 (2) of the principal Act is amended by deleting"$500 in the case of a corporation and $100" and substituting thefollowing —

" $1 000 in the case of a corporation and $200



"

Proceedings to be determined by safety andhealth magistrate

96A. Every proceeding for an offence under this Actis to be heard and determined by a safety and healthmagistrate.



74. Section 102 of the principal Act is repealed and thefollowing section is substituted —

Jurisdiction of safety and health magistrate

102. (1) Where under this Act —

(a) a matter is capable of being referred to asafety and health magistrate, the mattermay be heard and determined as if it werea matter in which jurisdiction wereconferred on the safety and healthmagistrate by the Occupational Safety andHealth Act 1984; or

(b) a proceeding for an offence is to be heardand determined by a safety and healthmagistrate, the proceeding may be heardand determined as if it were a proceedingin which jurisdiction were conferred on thesafety and health magistrate by theOccupational Safety and Health Act 1984,

and that Act is, so far as it is capable of applying, toextend to the exercise of the jurisdiction of a safetyand health magistrate in such matters andproceedings accordingly.

(2) A decision of a safety and health magistrateon a matter referred under this Act has effectaccording to its substance.


Section 104 amended


(a) by inserting after paragraph (b) the followingparagraph —"

(ba) regulating the conduct of electionsunder this Act by secret ballot;

and

(b) in subsection (4) by deleting "$500 in the case of acorporation and $100" and substituting thefollowing —"

$1 000 in the case of a corporation and$200

Minor amendments

76. (1) The provisions of the principal Act referred to inColumn 1 of Schedule 1 to this Part are amended in the mannerset out opposite them in Column 2.

(2) The provisions of the principal Act listed in the Table tothis subsection are amended by deleting "health, safety andwelfare" wherever it occurs in those provisions and substitutingthe following —

" safety and health

TABLE

s. 3 (a) s.66 (5)s. 9 (1) (c) s. 90 (1) and (3) (a), (b), (c),s. 25 (1)

(d), (e) and (f)s. 63 (a), (b) and (c) s. 104 (0

"


(3) The provisions of the principal Act listed in the Table tothis subsection are amended by deleting "health, safety orwelfare" wherever it occurs in those provisions and substitutingthe following —

" safety or health

TABLE

s. 10 (2) (c) s. 69 (1) (d)s. 53 (1) (f) and (g) s. 70 (1)

s. 60 (3) and (4) s. 93 (2)s. 63 (e)

(4) The provisions of the principal Act listed in the Tableto this subsection are amended by deleting "health and safety"wherever it occurs in those provisions and substituting thefollowing —

" safety and health

TABLE

" .

s. 3 (d)s. 9 (1) (c)s. 10 (1) (a)s. 12 (1) (a)s. 21 (5)s. 23 (1) (b) and (3)s. 25 (1)s. 45 (1) (a)s. 53 (1) and (3)s. 54s. 55 (4) (a)s. 56 (1), (6), (8) and (9)s. 57 (1) and (2)s. 58 (1)s. 59 (1), (2), (3) and (4) (b)and (c)

s. 60 (1), (2), (3), (4), (5), (6)and (7)s. 61 (1) (a)s. 62s. 63s. 64 (2)s. 65 (1) and (3)s. 66 (1), (4) and (5)s. 67s. 68 (1) and (2)s. 69 (1) (a), (b), (c) and (d)and (2)s. 70 (1) (a) and (b) and (3)s. 71 (1)s. 72 (2) (c)s. 104 (2) (a) (v)



MINOR AMENDMENTS

Column 1 Column 2

In the definition of "Mines Occupational Healthand Safety Advisory Board" delete "Health andSafety" and substitute the following


Delete "HEALTH, SAFETY AND WELFARE"and substitute the following


Delete "health or safety" in each place where itoccurs and substitute in each case the following

" safety or health ".

Delete "health or safety" and substitute thefollowing

" safety or health ".

Delete "HEALTH AND SAFETY" and substitutethe following

" SAFETY AND HEALTH

Delete "Health and safety" and substitute thefollowing

" Safety and health

Delete "health, safety and welfare accreditedunder section 14 (1) (h) of the OccupationalHealth, Safety and Welfare Act 1984" andsubstitute the following —

safety and health accredited undersection 14 (1) (h) of the OccupationalSafety and Health Act 1984

s. 4 (1)

Heading toPart 2

s. 10 (1) (b)and (2) (a)

s. 12 (1) (b)

Heading toPart 5

Heading toDivision 1of Part 5

s. 60 (5) (b)


s. 62 (b) Delete "health, safety and welfare accreditedunder section 14 (1) (h) of the OccupationalHealth, Safety and Welfare Act 1984" andsubstitute the following —

safety and health accredited undersection 14 (1) (h) of the OccupationalSafety and Health Act 1984

Heading to Delete "HEALTH AND SAFETY' and substitutePart 7 the following


Heading to Delete "HEALTH AND SAFETY' and substitutePart 8 the following


s. 90 (1), (3) Delete "Health and Safety" and substitute theand (4) following


s. 90 (3) (g) Delete "Occupational Health, Safety and WelfareCommission established by the OccupationalHealth, Safety and Welfare Act 1984" andsubstitute the following —

WorkSafe Western AustraliaCommission established by theOccupational Safety and HealthAct 1984

s. 93 (1) Delete "Health and Safety" and substitute thefollowing —"

Safety and Health

Pl.

s. 103 Delete "Health and Safety" and substitute thefollowing


s. 110 (1) Delete "Health and Safety" and substitute the(b) following


"

"


Schedule 2 In paragraph (b) of the consequential amendmentto the Constitution Acts Amendment Act 1899,delete "Health and Safety" and substitute thefollowing

" Safety and Health

In the consequential amendment to theParliamentary Commissioner Act 1971, delete"Health and Safety" and substitute thefollowing —

" Safety and Health


PART 4 — INDUSTRIAL RELATIONS ACT 1979

Section 7 amended

77. Section 7 of the Industrial Relations Act 1979* is amendedby inserting after subsection (2) the following subsections —

"

(3) A matter that is within the jurisdiction of asafety and health magistrate under the OccupationalSafety and Health Act 1984 or the Mines Safety andInspection Act 1994 —

(a) is not an industrial matter for the purposesof either of the definitions of "industrialmatter" in subsection (1);

(b) is not capable of being determined undersection 24 (1) to be an industrial matter;and

(c) cannot be referred to the Commissionunder section 80ZE.

(4) Subsections (3) and (4) of section 34 do notapply to a determination that is made contrary tosubsection (3) (b) or to any proceeding based on thatdetermination, and in the determination of anyapplication for a prerogative writ or declaratoryjudgment no regard shall be had to the existence ofany right of appeal under this Act.

[* Reprinted as at 11 May 1994.For subsequent amendments see Act No. 32 of 1994.]

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