Work Health and Safety Act 2011

This Act is the Work Health and Safety Act 2011.

This Act commences on 1 January 2012 or on such later day as may be appointed by proclamation before 1 January 2012.

The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—

protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and

encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and

promoting the provision of advice, information, education and training in relation to work health and safety, and

securing compliance with this Act through effective and appropriate compliance and enforcement measures, and

ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and

providing a framework for continuous improvement and progressively higher standards of work health and safety, and

maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.

In this Act—

Advisory Council means the SafeWork Advisory Council established by section 155D(1).

approved code of practice means a code of practice approved under Part 14.

asbestos, in Part 10, Division 2A—see section 197A.

asbestos containing material (ACM), in Part 10, Division 2A—see section 197A.

authorised, in Part 4—see section 40.

authorised person, in Part 13, Division 4—see section 244.

authorising authority means the Industrial Relations Commission.

board of directors, in Part 13, Division 4—see section 244.

Category 1 offence—see section 31.

Category 2 offence—see section 32.

Category 3 offence—see section 33.

compliance powers means the functions and powers conferred on an inspector under this Act.

condition includes limitation and restriction.

construct includes assemble, erect, reconstruct, reassemble and re-erect.

corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law.

corresponding WHS law means—

a law of an Australian jurisdiction that has the same name as this Act, and

a law of an Australian jurisdiction that is prescribed by the regulations as a corresponding WHS law.

court means the court having jurisdiction in the matter concerned.

dangerous incident, in Part 3—see section 37.

demolition includes deconstruction.

design, in relation to plant, a substance or a structure includes—

design of part of the plant, substance or structure, and

redesign or modify a design.

disclose, in relation to information, includes divulge or communicate to any person or publish.

discriminatory conduct, in Part 6—see section 105.

document includes record.

employee record, in relation to an employee, has the same meaning as it has in the Privacy Act 1988 of the Commonwealth.

employer organisation means an organisation of employers.

engage in conduct means doing an act or omitting to do an act.

Fair Work Act means the Fair Work Act 2009 of the Commonwealth.

handling includes transport.

health means physical and psychological health.

health and safety duty—see section 30.

health and safety representative, in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member.

import means to bring into the jurisdiction from outside Australia.

inspector means an inspector appointed under Part 9.

Note.

Section 18 (8) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 deems government officials under that Act to also be inspectors.

internal reviewer means—

the regulator, or

a person appointed by the regulator under section 225.

local authority means a council, county council or joint organisation under the Local Government Act 1993.

medical treatment means treatment by a medical practitioner within the meaning of the Health Practitioner Regulation National Law (NSW).

member of staff of the regulator means—

in the case of SafeWork NSW—a person employed in the SafeWork NSW Agency, or

in the case of the Secretary of the Department of Regional NSW—a person employed in that Department.

notifiable incident—see section 35.

officer means—

an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership, or

an officer of the Crown within the meaning of section 247, or

an officer of a public authority within the meaning of section 252,

other than an elected member of a local authority acting in that capacity.

official of a union, in Part 7—see section 116.

person conducting a business or undertaking—see section 5.

personal information has the same meaning as it has in the Privacy Act 1988 of the Commonwealth.

plant includes—

any machinery, equipment, appliance, container, implement and tool, and

any component of any of those things, and

anything fitted or connected to any of those things.

prohibited asbestos, in Part 10, Division 2A—see section 197A.

prohibited reason, in Part 6—see section 106.

public authority means—

a Division of the Government Service, or

a NSW Government agency, or

a local authority, or

any other public or local authority constituted by or under an Act.

reasonably practicable, in relation to a duty to ensure health and safety—see section 18.

registered organisation means—

an industrial organisation of employees under the Industrial Relations Act 1996, or

an association of employees registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth

regulator means the regulator established under clause 1 of Schedule 2.

relevant person, in Part 10, Division 2A—see section 197A.

relevant person conducting a business or undertaking, in Part 7—see section 116.

relevant union, in Part 7—see section 116.

relevant worker, in Part 7—see section 116.

representative, in relation to a worker, means—

the health and safety representative for the worker, or

a union representing the worker, or

any other person the worker authorises to represent him or her.

SafeWork Commissioner means the person employed in the Public Service as the SafeWork Commissioner.

SafeWork NSW means SafeWork NSW as referred to in clause 1 of Schedule 2.

serious injury or illness, in Part 3—see section 36.

State includes Territory.

State or Territory industrial law has the same meaning as it has in the Fair Work Act.

structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes—

buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels), and

any component of a structure, and

part of a structure.

substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.

supply—see section 6.

this Act includes the regulations.

union means—

an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth, or

an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under a State or Territory industrial law.

volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).

WHS entry permit means a WHS entry permit issued under Part 7.

WHS entry permit holder means a person who holds a WHS entry permit.

WHS undertaking means an undertaking given under section 216 (1).

work group means a work group determined under Part 5.

worker—see section 7.

workplace—see section 8.

For the purposes of this Act, a person conducts a business or undertaking—

whether the person conducts the business or undertaking alone or with others, and

whether or not the business or undertaking is conducted for profit or gain.

A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

An elected member of a local authority does not in that capacity conduct a business or undertaking.

The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

A volunteer association does not conduct a business or undertaking for the purposes of this Act.

In this section, volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

Note.

A person may be both a person conducting a business or undertaking, within the meaning of this section, and a worker within the meaning of section 7.

A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent.

A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied.

A supply of a thing does not include—

the return of possession of a thing to the owner of the thing at the end of a lease or other agreement, or

a prescribed supply.

A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if—

the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier, and

the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer.

If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier’s customer.

A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—

an employee, or

a contractor or subcontractor, or

an employee of a contractor or subcontractor, or

an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or

an outworker, or

an apprentice or trainee, or

a student gaining work experience, or

a volunteer, or

a person of a prescribed class.

For the purposes of this Act, a police officer is—

a worker, and

at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.

The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

Note.

A person may be both a worker, within the meaning of this section, and a person conducting a business or undertaking within the meaning of section 5.

A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

In this section, place includes—

a vehicle, vessel, aircraft or other mobile structure, and

any waters and any installation on land, on the bed of any waters or floating on any waters.

An example at the foot of a provision forms part of this Act.

A note at the foot of a provision forms part of this Act.

This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.

The Crown is liable for an offence against this Act.

Without limiting subsection (1), the Crown is liable for a contravention of a WHS civil penalty provision.

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Note.

Not required in NSW.