Schedule 1 Amendments

(regulation 3)

[1] Subregulation 2 (1), definition of State Manager of Comcare

omit

[2] Subparagraphs 4 (b) (i) and (ii)

substitute

(i) the Department of Agriculture, Fisheries and Forestry — the Executive Director of the Australian Quarantine and Inspection Service;

(ii) the Department of Industry, Science and Resources — the Executive Director of Geoscience Australia;

[3] Regulation 6

substitute

6 Comcare may appoint returning officer

Comcare may appoint a person in writing as a returning officer to conduct an election, being a person authorised by the Commission in writing to conduct elections.

[4] Paragraph 29 (1) (b)

substitute

(b) Comcare;

[5] Part 5, heading

substitute

Part 5 Notification and reporting of accidents and dangerous occurrences

[6] Regulations 36AA and 36

omit

[7] Subregulation 37 (1)

omit

the relevant State or Territory Occupational Health and Safety Manager.

insert

a Comcare office.

[8] Paragraph 37 (2) (a)

omit

the Secretary of the relevant Department; and

insert

the Agency Head of the relevant Entity; and

[9] Regulation 37C

substitute

37C Notice of deaths must be given by telephone

Notice of the death of a person must be given to Comcare:

(a) in business hours — by direct telephone contact with a Comcare employee in the relevant State or Territory; and

(b) outside business hours — by contacting, by telephone, the Comcare office in the relevant State or Territory and following the instructions given to callers.

Note Telephone numbers for Comcare offices in each State and Territory are listed on the Comcare website: http://www.comcare.gov.au. Comcare’s telephone service includes a call diversion and message recording facility outside business hours.

[10] After Part 7

insert

Part 8 Miscellaneous

40 Application of Part 5 of the Act to employees working at a place that is not Commonwealth premises

For section 15 of the Act, Part 5 of the Act (other than section 82) applies to an employee who ordinarily performs his or her work at a particular place that is not Commonwealth premises.

41 Witnesses allowances and expenses

For section 63 of the Act, the allowances and expenses reasonably allowed by the Commission in accordance with Schedule 3 are prescribed.

[11] Schedule 1, Form 1, notes 1 to 4

substitute

Note 1 Under subsection 29 (8) of the Act, within 7 days after this notice is issued, the responsible person, or any other person, to whom a copy of this notice has been given under subsection 29 (7) of the Act, may make a request to the Commission, or to an investigator, that an investigation of the matter the subject of this notice be conducted.

Note 2 The Commission has delegated its function under subsection 29 (8) of the Act to the Chief Executive Officer of Comcare.

Note 3 Under subsection 29 (9) of the Act, upon a request being made under subsection 29 (8) of the Act, the operation of this notice is suspended pending the determination of the matter by an investigator.

Note 4 Subsection 29 (12) of the Act provides that if this notice is issued to an employer, the employer must:

 notify each employee who is working for the employer and who is affected by this notice of the fact that this notice has been issued; and

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

Note 5 Under subsection 29 (13) of the Act, this notice ceases to have effect if:

 it is cancelled by the health and safety representative or an investigator; or

 the responsible person takes the action specified in this notice, or if no action is specified, takes the action that is necessary to prevent the further contravention, or likely contravention, with which this notice is concerned.

Note 6 Subsection 29 (14) of the Act requires the responsible person:

 to ensure that, to the extent that this notice relates to any matter over which the person has control, that this notice is complied with; and

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

Note 7 Under subsection 48 (1) of the Act, any of the following persons may, in writing, ask the Australian Industrial Relations Commission to review the investigator’s decision, under section 29 of the Act to confirm or vary this notice:

 an employer affected by the investigator’s decision;

 the person to whom this notice was issued;

 the health and safety representative or involved union for a designated work group whose employees are affected by the decision;

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

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

Note 8 Under subsection 48 (3) of the Act and subject to section 48, the making of an appeal against the investigator’s decision, under section 29 of the Act, to confirm or vary this notice does not affect the operation of the decision or prevent the taking of action to implement the decision, except to the extent that the reviewing authority makes an order to the contrary.

Note 9 Under subsection 48 (5) of the Act, where a decision appealed against is a decision of an investigator, under section 29, to confirm or vary this notice (the operation of which has been suspended pending the investigation of the matter to which this notice relates by the investigator), the operation of this notice is further suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary.

[12] Schedule 1, Form 2, notes 1 to 4

substitute

Note 1 Under subsection 44 (3) of the Act, this notice must be displayed in a prominent place at the workplace from which the item mentioned above was removed.

Note 2 Under subsection 44 (4) of the Act, the investigator must:

(a) ensure that the item is inspected, examined, measured or tested as soon as reasonably practicable after the investigator took possession of the item; and

(b) return the item to the workplace as soon as reasonably practicable after the inspection, examination, measurement or testing is completed.

Note 3 Under subsection 44 (5) of the Act, the investigator must, as soon as reasonably practicable after completion of the inspection, examination, measurement or testing, give, to each person to whom the investigator is required under subsection 44 (2) of the Act to give this notice, a written statement setting out the results of the inspection, examination, measurement or testing.

Note 4 Under subsection 48 (1) of the Act, any of the following persons may, in writing, ask the Australian Industrial Relations Commission to review the investigator’s decision, under section 44 of the Act, to take possession of the item:

 an employer affected by the investigator’s decision;

 a person to whom a notice has been issued under subsection 29 (2) or 47 (1) of the Act;

 the health and safety representative or an involved union for a designated work group in which is included an employee affected by the decision;

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

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

Note 5 Under subsection 48 (3) of the Act and subject to section 48, the making of an appeal against a decision, under section 44 of the Act, of an investigator to take possession of the item does not affect the operation of the decision or prevent the taking of action to implement the decision, except to the extent that the reviewing authority makes an order to the contrary.

Note 6 Under section 50 of the Act, this notice must not be tampered with or removed until the item has been returned to the workplace. The penalty for tampering with or removing this notice is $3 000 or imprisonment for 6 months, or both.

[13] Schedule 1, Form 3, heading

substitute

Form 3 Do not disturb direction

[14] Schedule 1, Form 3, notes 1 to 3

substitute

Note 1 Under subsection 45 (3) of the Act, this direction must be displayed in a prominent place at the workplace:

(a) that is, or the specified part of which is, under this direction, to be left undisturbed; or

(b) at which the plant, substance or thing that is, under this direction, to be left undisturbed, is located.

Note 2 Under subsection 45 (5) of the Act, an employer who has control over the workplace, plant, substance or thing to which this direction relates, and whose employees use the workplace, plant, substance or thing in the performance of work for the employer, must ensure that this direction is complied with. The penalty for non-compliance with this requirement by a Government business enterprise is $25 000.

Note 3 Under subsection 48 (1) of the Act, any of the following persons may, in writing, ask the Australian Industrial Relations Commission to review the investigator’s decision, under section 45 of the Act, to give this direction:

 an employer affected by the investigator’s decision;

 a person to whom a notice has been issued under subsection 29 (2) or 47 (1) of the Act;

 the health and safety representative or an involved union for a designated work group in which is included an employee affected by the decision;

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

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

Note 4 Under subsection 48 (3) of the Act and subject to section 48, the making of an appeal against a decision by an investigator, under section 45 of the Act, to give this direction does not affect the operation of the decision or prevent the taking of action to implement the decision, except to the extent that the reviewing authority makes an order to the contrary.

Note 5 Under section 50 of the Act, this direction must not be tampered with or removed before the notice has ceased to have effect. The penalty for tampering with or removing this direction is $3 000 or imprisonment for 6 months, or both.

[15] Schedule 1, Form 4, notes 1 to 5

substitute

Note 1 Under subsection 46 (4) of the Act, the employer to whom this notice is issued must ensure that, to the extent that this notice relates to any matter over which the employer has control, this notice is complied with. The penalty for non-compliance with this requirement by a Government business enterprise is $25 000.

Note 2 Under subsection 46 (6) of the Act, this notice ceases to have effect when an investigator notifies the employer that the investigator is satisfied that the employer has taken adequate action to remove the threat to health or safety that caused this notice to be issued.

Note 3 Under subsection 46 (8) of the Act, this notice may specify action that may be taken in order to satisfy the investigator that adequate action has been taken to remove the threat to health and safety that caused this notice to be issued.

Note 4 Under subsection 46 (9) of the Act, the employer to whom this notice is given must:

(a) give a copy of this notice to each health and safety representative (if any) for a group of the employer’s employees performing work that is affected by this notice; and

(b) ensure that a copy of this notice is displayed in a prominent place at or near each workplace at which that work is being performed.

Note 5 Under subsection 48 (1) of the Act, any of the following persons may, in writing, ask the Australian Industrial Relations Commission to review a decision by an investigator, under section 46 of the Act, to issue this notice, or that the employer to whom this notice was issued has not taken adequate action to remove the threat to health and safety that caused this notice to be issued:

 an employer affected by the investigator’s decision;

 a person to whom a notice has been issued under subsection 29 (2) or 47 (1) of the Act;

 the health and safety representative or an involved union for a designated work group in which is included an employee affected by the decision;

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

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

Note 6 Under subsection 48 (3) of the Act and subject to section 48, the making of an appeal against a decision of the investigator, under section 46 of the Act:

(a) to issue this notice; or

(b) that an employer to whom this notice was issued has not taken adequate action to remove the threat to health and safety that caused this notice to be issued;

does not affect the operation of the decision, or prevent the taking of action to implement the decision, except to the extent that the reviewing authority makes an order to the contrary.

Note 7 Under section 50 of the Act, this notice must not be tampered with or removed before the notice has ceased to have effect. The penalty for tampering with or removing this notice is $3 000 or imprisonment for 6 months, or both.

[16] Schedule 1, Form 5, notes 1 to 5

substitute

Note 1 Under subsections 47 (6) and (7) of the Act, the responsible person to whom this notice was issued must ensure that, to the extent that this notice relates to any matter over which the person has control, this notice is complied with. The penalty for non-compliance with this requirement by a government business enterprise or an employee of a Government business enterprise is $10 000.

Note 2 Under subsection 47 (8) of the Act, if this notice was issued to an employer, the employer must:

(a) give a copy of this notice to each health and safety representative for a designated workgroup of employees performing work that is affected by this notice; and

(b) display a copy of this notice in a prominent place at or near each workplace at which that work is being performed.

 an employer affected by the investigator’s decision;

 the person to whom this notice was issued;

 the health and safety representative or an involved union for a designated work group in which is included an employee affected by the decision;

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

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

Note 4 Under subsection 48 (4) of the Act, where the decision appealed against is a decision of an investigator, under section 47 of the Act, to issue this notice, the operation of the decision is suspended pending determination of the appeal, except to the extent that the reviewing authority makes an order to the contrary.

Note 5 Under section 50 of the Act, this notice must not be tampered with or removed before the notice has ceased to have effect. The penalty for tampering with or removing this notice is $3 000 or imprisonment for 6 months, or both.

[17] Schedule 3, heading

substitute

Schedule 3 Witnesses expenses and allowances

(regulation 41)

[18] Further amendments

The following forms are amended by omitting ‘Occupational Health and Safety (Commonwealth Employment) Regulations’ and inserting ‘Occupational Health and Safety (Commonwealth Employment) Regulations 1991’:

 Schedule 1, Form 1

 Schedule 1, Form 2

 Schedule 1, Form 3

 Schedule 1, Form 4

 Schedule 1, Form 5.

Notes

1. These Regulations amend Statutory Rules 1991 No. 266, as amended by 1992 No. 244; 1993 Nos. 5 and 112; 1994 No. 22; 1998 Nos. 115 and 355; 2001 Nos. 54, 90, 270 and 326.

2. Notified in the Commonwealth of Australia Gazette on 11 December 2003.