Work Health and Safety Act 2012

This

Act may be cited as the Work

Health and Safety Act 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, unless the contrary intention appears—

advisory committee means the SafeWork

SA Advisory Committee established under Division 5;

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

authorised, in Part 4—see section 40;

authorising authority means SAET;

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—

the

Dangerous

Substances Act 1979;

or

the

Explosives

Act 1936;

or

the

Fair

Work Act 1994;

or

the

Mines and Works Inspection Act 1920;

or

the

Offshore

Minerals Act 2000;

or

the

Petroleum (Submerged Lands) Act 1982;

or

the

Petroleum and Geothermal Energy Act 2000;

or

the

Petroleum

Products Regulation Act 1995;

or

any other Act brought within the ambit of this definition by the regulations; or

a law of another Australian jurisdiction corresponding, or substantially corresponding, to this Act; or

a law of another Australian jurisdiction brought within the ambit of this definition by the regulations;

dangerous incident, in Part 3—see section 37;

demolition includes deconstruction;

Department means the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act;

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;

emergency services worker means—

a police officer; or

a member of the South Australian Metropolitan Fire Service, the South

Australian Country Fire Service or the South Australian State

Emergency Service; or

a fire control officer appointed under the Fire and Emergency Services Act 2005;

or

the

State Co‑ordinator or an authorised officer under the

Emergency

Management Act 2004;

or

a person brought within the ambit of this definition by the regulations;

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 employer organisation that is registered, or taken to be registered, under the Fair

Work (Registered Organisations) Act 2009 of the Commonwealth; or

an association of employers that is registered or recognised as such an association (however described) under a State or Territory industrial law;

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

Executive

Director means the person for the time being holding, or acting in, the position of Executive Director under Schedule 5 clause 3;

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;

industrial manslaughter offence—see section 30A;

inspector means an inspector appointed under Part 9;

internal reviewer means—

the regulator; or

a person appointed by the regulator under section 225;

local authority means a council under the Local

Government Act 1999;

Magistrates

Court means the Magistrates Court of South Australia;

medical treatment means treatment by a medical practitioner registered under the

Health

Practitioner Regulation National Law to practise in the medical profession (other than as a student);

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;

personal information has the same meaning as it has in the Privacy

Act 1988 of the Commonwealth;

person conducting a business or undertaking—see section 5;

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 reason, in Part 6—see section 106;

public authority means—

an agency or instrumentality of the Crown; or

an administrative unit or department within the Public Service of this or any other State, or of the Commonwealth;

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

regulator means the Executive Director;

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 person conducting a business or undertaking, means—

an employer organisation representing the person conducting the business or undertaking; or

any other person that the person conducting the business or undertaking authorises to represent them; and

in relation to a worker, means—

the health and safety representative for the worker; or

a union entitled to represent the industrial interests of the worker;

or

any other person that the worker authorises to represent them;

review committee means a review committee constituted under Schedule 4;

RTWSA means the Return to Work Corporation of South Australia;

SAET means the South Australian Employment Tribunal established under the

South

Australian Employment Tribunal Act 2014;

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 Part 2, a person engages in conduct with gross negligence if the conduct involves—

such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

such a high risk of causing the death or serious injury or illness of an individual, that the conduct merits criminal punishment for the offence.

For the purposes of Part 2, a person is reckless as to the risk to an individual of death or serious injury or illness if—

the person is aware of a substantial risk that death or serious injury or illness will happen; and

having regard to the circumstances known to the person, it is unjustifiable to take the risk.

For the purposes of Part 2, the question of whether taking a risk is unjustifiable is a question of fact.

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.

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.

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.

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.

Section

7(2) of the Crown

Proceedings Act 1992 does not apply in respect of proceedings before SAET under Part 5

Division 7A.

It is the intention of the Parliament of the State that this Act should, so far as possible, operate to the full extent of the extraterritorial legislative power of the State.

Without limiting subsection (1), this Act applies in relation to work on a South Australian ship whether or not the ship is within the coastal waters of the State.

In this section—

ship includes a boat, vessel or craft;

South

Australian ship means a ship—

that is registered in the State; or

that is owned or under charter by the Crown; or

that is owned or under charter by a body corporate or other person—

whose principal office or place of business is in the State; or

whose principal office or place of business with respect to the control or management of the ship is in the State.

The provisions of this Act are in addition to and do not derogate from the provisions of any other Act.

The provisions of this Act do not limit or derogate from any civil right or remedy and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied.

The

SafeWork

SA Advisory Committee is established.

The advisory committee consists of 15 members of whom—

the following will be ex officio members:

the

Minister;

the regulator;

the person for the time being holding, or acting in, the position of

Chief Executive of the Department;

the person for the time being holding, or acting in, the position of

Chief Executive Officer of RTWSA; and

the following will be appointed by the Minister:

the presiding member;

4 members who, in the opinion of the Minister, are suitable to represent the interests of employees (following consultation with the United Trades and Labour Council of South Australia);

4 members who, in the opinion of the Minister, are suitable to represent the interests of employers (following consultation with the South Australian Employer's Chamber of Commerce and Industry and other associations representing the interests of employers);

1 member who, in the opinion of the Minister, is suitable to represent the interests of victims and their families;

1 member who, in the opinion of the Minister, is suitable to represent the interests of work health and safety professionals.

Subject to subsection (4), a member of the advisory committee may appoint a suitable person to act as an alternate member and a person so appointed may, in the member's absence, act as a member of the committee.

A member of the advisory committee (other than the Minister) may only appoint someone under subsection (3) with the approval of the Minister.