Occupational Health and Safety (Maritime Industry) Regulations 1995

Part 1—Preliminary

1 Name of regulations

These regulations are the Occupational Health and Safety (Maritime Industry) Regulations 1995.

2 Interpretation

(1) In these Regulations, unless the contrary intention appears:

Act means the Occupational Health and Safety (Maritime Industry) Act 1993.

serious personal injury means an injury to, or disease in, a person:

(a) that is caused by an accident at a workplace; and

(b) for which the person is:

(i) given emergency treatment on the prescribed ship or prescribed unit on which the accident occurred; or

(ii) given emergency treatment in another place by a registered medical practitioner; or

(iii) admitted to a hospital; or

(iv) treated in a hospital as a casualty, without being admitted to the hospital.

(2) A reference in these Regulations to a form by number is a reference to the form so numbered in the Schedule.

3 Forms, notices and reports

(1) A form containing a direction in, or at the foot of, the form must be completed in accordance with the direction.

(2) A form, notice or report must be completed in sufficient detail to allow proper consideration of the form, notice or report.

(3) A form, notice or report must be produced clearly and legibly in handwriting or by means of a machine in order to enable clear and legible reproduction of the contents of the form, notice or report.

4 What is a dangerous occurrence?

An occurrence is a dangerous occurrence for the purpose of the definition of dangerous occurrence in section 4 of the Act if it occurs at a workplace, and:

(a) resulted from operations that arose from an undertaking conducted by or for the operator of the workplace; and

(b) could have caused:

(i) the death of, or serious personal injury to, any person; or

(ii) the incapacity of an employee for a duration of 5 or more successive working days;

but as a result of which death, serious personal injury or incapacity did not occur.

Part 2—Elections

5 Involved union to authorise returning officer

(1) An involved union that intends to conduct an election for a health and safety representative must appoint a returning officer to conduct the election for the union.

(2) The returning officer must conduct the election in accordance with the rules of the union.

Part 3—Advice, investigations and inquiries

6 Form of provisional improvement notices

A provisional improvement notice issued by a health and safety representative to the person in command under subsection 58(1) of the Act must be in accordance with Form 1.

7 Taking samples for testing etc

(1) If a sample of a substance or thing taken at a workplace under subsection 91(1) of the Act is practicably divisible, the inspector who has taken the sample must:

(a) divide the sample into 3 parts; and

(b) put each part into a container and seal and label the container appropriately; and

(d) arrange for another part to be inspected, examined, measured or tested; and

(e) retain the remaining part for any further inspection, examination, measuring or testing that is required.

(2) If the sample of a substance or thing is not practicably divisible, the inspector must arrange for the whole sample to be inspected, examined, measured or tested.

(3) An inspector who removes plant, a substance or a thing, or a sample of a substance or thing, from a workplace under subsection 91(1) of the Act must take all reasonable steps to ensure that, while it is in his or her possession or control:

(a) the plant, substance or thing is not damaged; or

(b) the sample is not contaminated.

8 Form of certain notices

A notice issued by an investigator under a provision of the Act referred to in one of the following paragraphs must be in accordance with the form specified in the paragraph:

(a) subsection 91(2) (notice of taking possession of plant, taking samples of substances etc)—Form 2;

(b) subsection 92(1) (direction not to disturb workplace etc)—Form 3;

(d) subsection 98(1) (issue of improvement notices)—Form 5.

9 Alteration or disturbance of site of accident or dangerous occurrence

(1) A person in command of a prescribed ship or prescribed unit commits an offence if:

(a) the person in command engages in conduct, or allows another person to engage in conduct, that results in the alteration or disturbance of the site of an accident or a dangerous occurrence on the ship or unit; and

(b) at the time of the conduct:

(i) an inspector had not inspected the site; and

(ii) the inspector had not given permission in writing for the alteration or disturbance of the site.

Penalty: 10 penalty units.

(2) It is a defence to a prosecution for an offence against subregulation (1) if the person in command had a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter mentioned in subregulation (2) (see section 13.3 of the Criminal Code).

(3) It is a defence to a prosecution for an offence against subregulation (1) if, at the time of the conduct, the person in command had given a notice of the accident or dangerous occurrence, and:

(a) the Inspectorate had notified the person in command in writing that an inspection of the site of the accident or dangerous occurrence by an inspector was not required; or

(b) the ship or unit was in an Australian port when notice was given of the accident or dangerous occurrence and an inspector did not visit the site within 24 hours of notice being given;

(c) the ship or unit was at sea and proceeding to an Australian port when notice was given of the accident or dangerous occurrence, and an inspector did not visit the site within 24 hours of the arrival of the ship or unit at the port; or

(d) the ship or unit was at sea and not proceeding to an Australian port when notice of the accident or dangerous occurrence was given.

Note: A defendant bears an evidential burden in relation to the matters mentioned in subregulation (3) (see section 13.3 of the Criminal Code).

(4) Without limiting subregulation (2), a person in command had a reasonable excuse if either:

(a) the alteration or disturbance was unavoidable; or

(b) the person engaged in, or allowed another person to engage in, the conduct that resulted in the alteration or disturbance of the site of an accident or dangerous occurrence as a result of:

(i) the rescue, or attempted rescue, of an injured person; or

(ii) the retrieval, or attempted retrieval, of the body of a deceased person; or

(iii) the protection, or attempted protection, of the health or safety of a person; or

(iv) the prevention, or attempted prevention, of damage being done to a substance or thing; or

(v) the restoration, or attempted restoration, of a workplace to safe working conditions; or

(vi) the performance, or attempted performance, of a task necessary for the proper operation of the ship or unit.

Part 4—Notices and reports

10 Definition for Part 4

In this Part:

incident means:

(a) an accident of a kind described in paragraph 107(1)(a) or (b) of the Act; or

(b) a dangerous occurrence.

11 Period of incapacity requiring notice and report

For paragraph 107(1)(b) of the Act, a period of 5 successive days or more is prescribed.

12 Notifying incidents

(1) The requirements in this regulation are prescribed for paragraph 107(2)(a) of the Act.

(2) The operator must give notice of an incident to the Inspectorate within 4 hours of becoming aware of the incident.

Penalty: 10 penalty units.

(3) However, if it is not reasonably practicable for the operator to give notice to the Inspectorate within 4 hours, the operator must give notice to the Inspectorate as soon as practicable after the end of that time.

(4) The notice must:

(a) be in writing; and

(b) identify the workplace and the operator of the workplace; and

(d) identify the location of the workplace at that time; and

(e) describe the incident.

(5) The notice may set out any other matters the operator considers relevant.

(6) The notice must be given to the Inspectorate by one of the following means:

(a) sending a fax to the fax number specified for this purpose on the Authority’s website;

(b) sending an email to the email address specified for this purpose on the Authority’s website;

Note: Sending a notice by post is not a permitted means.

13 Reporting incidents

(1) The requirements in this regulation are prescribed for paragraph 107(2)(b) of the Act.

(2) The operator must give a report about an incident to the Inspectorate within 72 hours of becoming aware of the incident.

Penalty: 10 penalty units.

(3) However, if it is not reasonably practicable for the operator to give the report to the Inspectorate within 72 hours, the operator must give the report to the Inspectorate as soon as practicable after the end of that time.

(4) The report must:

(a) be in writing; and

(b) identify the workplace and the operator of the workplace; and

(d) identify the location of the workplace at that time; and

(e) specify the activities the workplace is engaged in at that time; and

(f) describe the incident; and

(g) set out a list of the consequences of the incident; and

(h) if a person was affected by the incident—set out the following details of the person and describe the effect of the incident on the person:

(i) name;

(ii) gender;

(iii) nationality;

(iv) date of birth;

(v) address; and

(i) set out the name, position and contact details of the person giving the report.

(5) The report may set out any other matters the operator considers relevant.

(6) The report must be given to the Inspectorate by one of the following means:

(a) sending a fax to the fax number specified for this purpose on the Authority’s website;

(b) sending an email to the email address specified for this purpose on the Authority’s website;

Note: Sending a report by post is not a permitted means.

15 Records of accidents and dangerous occurrences

For the purposes of section 108 of the Act, an operator must retain a record of a report about an incident for 5 years after the day on which the report was made.

16 Statistical reports

(1) An operator must report in writing to the Authority within the period of 30 days after the end of a financial year:

(a) the average number of full‑time equivalent employees of the operator in that financial year; and

(b) the total number of hours worked by employees of the operator in the financial year.

Penalty: 1 penalty unit.

(1A) An offence against subregulation (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(1B) It is a defence to a prosecution for an offence against subregulation (1) if it is not reasonably practicable for the operator to report within the period required by subregulation (1).

Note: A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code).

(2) In subregulation (1), average number of full‑time equivalent employees means the number calculated in accordance with Australian Standard AS1885.1—1990, as in force at the commencement of this regulation.

Part 5—Application and transitional provisions

17 Transitional provision for the Occupational Health and Safety (Maritime Industry) Amendment (Incident Notification and Reporting) Regulations 2017

If, in the 3 months beginning on the day this regulation commences, a person:

(a) gives a notice in accordance with subregulation 12(4) as in force immediately before the commencement of this regulation; or

(b) gives a report in accordance with subregulation 13(4) as in force immediately before the commencement of this regulation;

the notice or report is taken to have been given in accordance with these Regulations as amended by the Occupational Health and Safety (Maritime Industry) Amendment (Incident Notification and Reporting) Regulations 2017.

Schedule—Forms

(subregulation 2(2))

Form 1—Provisional improvement notice

(regulation 6)

OCCUPATIONAL HEALTH AND SAFETY (MARITIME INDUSTRY) REGULATIONS

Provisional improvement notice

To the person in command of (insert name of prescribed ship or prescribed unit)

I, (insert name of the health and safety representative issuing the notice), selected as the health and safety representative under section 41 of the Occupational Health and Safety (Maritime Industry) Act 1993 for (insert name of the prescribed ship or prescribed unit), after consultation in accordance with subsection 57(1) of the Act, believe that the following contravention of the Act or Regulations is occurring, or has occurred and is likely to occur again:

The contravention is (give a brief description)

The contravention is occurring at (specify location)

The reasons for my opinion are as follows:

(give reasons briefly)

In accordance with paragraph 58(2)(c) of the Act, action necessary to prevent the contravention, or the likely contravention, of the provision or provisions referred to above must be taken before (insert the date of a day that is:

(page 2 of Form 1)

(a) not less than 7 days after the day when the notice is issued; and

(b) reasonable in the opinion of the health and safety representative).

In the meantime, the following action should be taken in accordance with subsection 58(3) of the Act:

(give a brief description)

Dated

(signature)

Health and safety representative

Notes:

1. Under subsection 59(1) of the Act, a person to whom a provisional improvement notice is given may, within 7 days, request the Inspectorate or an inspector to conduct an investigation into the subject matter of the notice.

2. Under subsection 59(2) of the Act, the operation of a provisional improvement notice is suspended if a request is made for an investigation into the subject matter of the notice. The suspension remains in effect until an inspector makes a determination that confirms, varies or cancels the notice.

3. Subsection 60(1) of the Act requires the person in command to whom a provisional improvement notice is given:

• to notify each employee who is affected by the notice of the fact that the notice has been issued; and

• to display a copy of the notice at or near each workplace at which work that is the subject of the notice is being performed.

(page 3 of Form 1)

4. Under subsection 60(2) of the Act, a provisional improvement notice ceases to have effect if:

• it is cancelled by the health and safety representative or an inspector; or

• the person in command, or a person who is given a copy of the notice under subsection 58(5), takes the action specified in the notice or, if no action is specified, takes the action that is necessary to prevent the contravention, or likely contravention, with which the notice is concerned.

5. Section 61 of the Act requires the person in command:

• to ensure, as far as practicable, that a provisional improvement notice is complied with; and

• to inform the health and safety representative who issued the notice of the action taken to comply with the notice.

6. Under subsection 100(2) of the Act, if an inspector has confirmed, varied or cancelled a provisional improvement notice the following persons may request the Fair Work Commission in writing to review the decision of the inspector:

• the operator affected by the inspector’s decision;

• the person in command;

• the person to whom the notice was given by the person in command under subsection 58(5) of the Act;

• the health and safety representative for the designated work group that includes an employee who is affected by the decision or an involved union for the designated work group;

• if there is no designated work group of that kind—an involved union in relation to the affected employee;

• the owner of any plant, substance or thing to which the decision relates.

Form 2—Notice of removal of plant or sample

(paragraph 8(a))

OCCUPATIONAL HEALTH AND SAFETY (MARITIME INDUSTRY) REGULATIONS

Notice of removal of plant or sample

To the person in command of (insert name of prescribed ship or prescribed unit)

and (insert name of health and safety representative for the prescribed ship or prescribed unit)

I, (insert name of inspector), an inspector appointed under section 84 of the Occupational Health and Safety (Maritime Industry) Act 1993, in the course of conducting an investigation under section 87 of the Act, have taken possession of:

(insert description of item removed)

from (insert name of the prescribed ship or prescribed unit) located at (insert location of ship or unit)

The reason for this action is:

(give explanation of why removal of item was necessary)

Signed: (signature of inspector)

Dated: (insert date)

Notes:

1. Subsection 91(3) of the Act requires the person in command of the prescribed ship or prescribed unit to display this notice in a prominent place on the ship or unit from which the item was removed.

(page 2 of Form 2)

2. Under subsection 100(2) of the Act, any of the following persons may request the Fair Work Commission in writing to review the inspector’s decision:

• the operator affected by the inspector’s decision;

• the health and safety representative for a designated work group that includes an employee affected by the decision or the involved union for the designated work group;

• if there is no designated work group—an involved union in relation to the employee;

• the owner of any plant, substance or thing to which the inspector’s decision relates.

Form 3—Do not disturb notice

(paragraph 8(b))

OCCUPATIONAL HEALTH AND SAFETY (MARITIME INDUSTRY) REGULATIONS

Do not disturb notice

To the person in command of (insert name of the prescribed ship or prescribed unit)

I, (insert name of inspector), an inspector appointed under section 84 of the Occupational Health and Safety (Maritime Industry) Act 1993, direct that:

(insert name of the prescribed ship or prescribed unit, or part of the ship or unit, or of the plant, substance or thing, that is affected)

is not to be disturbed during the period from hours

to hours on (date).

The reasons for issuing this notice are:

(give reasons briefly)

Signed: (signature of inspector)

Dated: (insert date)

(see notes over)

(page 2 of Form 3)

Notes:

1. Subsection 92(4) of the Act requires the person in command of the prescribed ship or prescribed unit to display this notice in a prominent place on the ship or unit.

2. Under subsection 92(6) of the Act, if the operator of the prescribed ship or prescribed unit does not ensure that the notice is complied with, the operator may be liable for a fine not exceeding $25,000 (if the operator is an individual), or not exceeding $125,000 (if the operator is a body corporate).

3. Under subsection 100(2) of the Act, any of the following persons may request the Fair Work Commission in writing to review the inspector’s decision to issue a prohibition notice:

• the operator affected by the inspector’s decision;

• the health and safety representative for a designated work group that includes an employee affected by the decision or the involved union for the designated work group;

• if there is no designated work group—an involved union in relation to the employee;

• the owner of any plant, substance or thing to which the inspector’s decision relates.

Form 4—Prohibition notice

(paragraph 8(c))

OCCUPATIONAL HEALTH AND SAFETY (MARITIME INDUSTRY) REGULATIONS

Prohibition notice

To the person in charge of (insert name of prescribed ship or prescribed unit)

I, (insert name of inspector), an inspector appointed under section 84 of the Occupational Health and Safety (Maritime Industry) Act 1993, am of the opinion that activity being undertaken on (insert name of prescribed ship or prescribed unit) is of a kind that immediately threatens the health and safety of a person.

I therefore PROHIBIT the following activity or activities:

(specify prohibited activity or activities)

*Action that may be taken that will be adequate to remove the threat to health and safety of the person is:

(if insufficient space, use additional page or pages)

Signed: (signature of inspector)

Date: (insert date)

[* Omit if inapplicable]

(see notes over)

(page 2 of Form 4)

Notes:

1. Section 96 of the Act requires the person in command of the prescribed ship or prescribed unit to give a copy of this notice to the health and safety representative on the ship or unit and to display a copy of this notice in a prominent place on the ship or unit.

2. Under subsection 93(5) of the Act, if the operator of the prescribed ship or prescribed unit does not ensure that the notice is complied with, the operator may be liable to a fine not exceeding $25,000 (if the operator is an individual), or not exceeding $125,000 (if the operator is a body corporate).

3. This notice ceases to have effect when the inspector notifies the person in command that the inspector is satisfied that the operator has taken adequate action to remove the threat to health and safety.

4. Under subsection 100(2) of the Act, any of the following persons may request the Fair Work Commission to review the inspector’s decision to issue a prohibition notice:

• the operator affected by the inspector’s decision;

• the health and safety representative for a designated work group that includes an employee affected by the decision or the involved union for the designated work group;

• if there is no designated work group—an involved union in relation to the employee;

• the owner of any plant, substance or thing to which the inspector’s decision relates.

5. Under subsection 100(3) of the Act, any of the following persons may request Fair Work Commission to review the inspector’s decision that adequate action has been taken to remove the threat to health and safety:

• the health and safety representative for a designated workgroup that includes an employee affected by the decision or the involved union for the work group;

• if there is not a designated work group—an involved union in relation to the affected employee.

Form 5—Improvement notice

(paragraph 8(d))

OCCUPATIONAL HEALTH AND SAFETY (MARITIME INDUSTRY) REGULATIONS

Improvement notice

To the person in command of (insert name of prescribed ship or prescribed unit)

I, (insert name of inspector), an inspector appointed under section 84 of the Occupational Health and Safety (Maritime Industry) Act 1993, am satisfied that (insert name of person responsible for the contravention) is contravening, or has contravened, or is likely to contravene, section of the Act or regulation of the Occupational Health and Safety (Maritime Industry) Regulations on (insert name of prescribed ship or prescribed unit).

The reasons for my opinion are:

(give a brief description of contravention)

You are required to take action within (insert number) days of the date of this notice to prevent any further contravention or likely contravention of that section or regulation.

*The following action must be taken by the person in command within the period specified above:

(if insufficient space, use additional page or pages)

Signed: (signature of inspector)

Date: (insert date)

[* Omit if inapplicable]

(page 2 of Form 5)

Return this portion of the notice (when the required improvement has been completed) to:

Name:

Position:

Address:

Telephone:

Improvement Notice No. has been complied with.

Signed:

This notice was delivered to: (insert name)

in the office/position of: (insert office/position)

at: (insert time) hours on: (insert date)

(See notes over)

(page 3 of Form 5)

Notes:

1. Subsection 99(1) of the Act requires the person in command of the prescribed ship or prescribed unit to give a copy of this notice to the health and safety representative on the ship or unit and to display a copy of this notice in a prominent place on the ship or unit.

2. If this notice relates to any plant, substance or thing that is owned by a person other than the operator, subsection 99(2) of the Act requires the inspector to give a copy of this notice to the owner.

3. Under subsection 98(5) of the Act, if the person in command of the prescribed ship or prescribed unit does not ensure that this notice is complied with, the person in command may be liable to a fine not exceeding $10,000.

4. Under subsection 100(2) of the Act, any of the following persons may request the Fair Work Commission to review the inspector’s decision:

• the health and safety representative for a designated work group that includes an employee affected by the decision or the involved union for the designated work group;

• if there is no designated work group—an involved union in relation to the employee.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

ad = added or inserted	o = order(s)
am = amended	Ord = Ordinance
amdt = amendment	orig = original
c = clause(s)	par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x	/sub‑subparagraph(s)
Ch = Chapter(s)	pres = present
def = definition(s)	prev = previous
Dict = Dictionary	(prev…) = previously
disallowed = disallowed by Parliament	Pt = Part(s)
Div = Division(s)	r = regulation(s)/rule(s)
ed = editorial change	reloc = relocated
exp = expires/expired or ceases/ceased to have	renum = renumbered
effect	rep = repealed
F = Federal Register of Legislation	rs = repealed and substituted
gaz = gazette	s = section(s)/subsection(s)
LA = Legislation Act 2003	Sch = Schedule(s)
LIA = Legislative Instruments Act 2003	Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given	SLI = Select Legislative Instrument
effect	SR = Statutory Rules
(md not incorp) = misdescribed amendment	Sub‑Ch = Sub‑Chapter(s)
cannot be given effect	SubPt = Subpart(s)
mod = modified/modification	underlining = whole or part not
No. = Number(s)	commenced or to be commenced

Endnote 3—Legislation history

Number and year	FRLI registration or gazettal	Commencement	Application, saving and transitional provisions
17, 1995	14 Feb 1995	14 Feb 1995
101, 1999	17 June 1999 (F1999B00101)	1 July 1999 (r 2)	—
326, 2001	13 Dec 2001 (F2001B00566)	Sch 3: 15 Dec 2001 (r 2)	—
165, 2009	30 June 2009 (F2009L02568)	Sch 1 (items 24–28): 1 July 2009 (r 2)	—
as amended by
337, 2009	27 Nov 2009 (F2009L04339)	Sch 1 (item 5): 28 Nov 2009 (r 2(a))	—
321, 2012	11 Dec 2012 (F2012L02417)	Sch 4: 1 Jan 2013 (s 2)	—

Name	Registration	Commencement	Application, saving and transitional provisions
Occupational Health and Safety (Maritime Industry) Amendment (Incident Notification and Reporting) Regulations 2017	30 Aug 2017 (F2017L01104)	31 Aug 2017 (s 2(1) item 1)	—

Endnote 4—Amendment history

Provision affected	How affected
Part 1
r 1.....................	rs 1999 No 101
r 2.....................	am 1999 No 101
Part 3
r 9.....................	rs 2001 No 326
Part 4
r 10....................	rs 1999 No 101
r 11....................	rs 1999 No 101
r 12....................	rs 1999 No 101
	am F2017L01104
r 13....................	rs 1999 No 101
	am F2017L01104
r 14....................	rep 1999 No 101
r 15....................	am 1999 No 101
r 16....................	am 2001 No 326
Part 5
Part 5...................	ad F2017L01104
r 17....................	ad F2017L01104
Schedule
Form 1..................	1995 No 17
	am 2009 No 165 (as am by 2009 No 337); 2012 No 321
Form 2..................	1995 No 17
	am 2009 No 165 (as am by 2009 No 337); 2012 No 321
Form 3..................	1995 No 17
	am 2009 No 165 (as am by 2009 No 337); 2012 No 321
Form 4..................	1995 No 17
	am 2009 No 165 (as am by 2009 No 337); 2012 No 321
Form 5..................	1995 No 17
	am 2009 No 165 (as am by 2009 No 337); 2012 No 321
Form 6..................	1995 No 17
	rs 1999 No 101
	rep F2017L01104
Form 7..................	ad 1999 No 101
	rep F2017L01104