Health and Safety at Work Act 2015

1: Title
This Act is the Health and Safety at Work Act 2015.
2: Commencement
1: Subpart 4 of Part 5
2: The rest of this Act comes into force on 4 April 2016
1: Health and safety at work
1: Preliminary provisions
3: Purpose
1: The main purpose of this Act is to provide for a balanced framework to secure the health and safety of workers and workplaces by—
a: protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant; and
b: providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues in relation to work health and safety; and
c: encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting PCBUs and workers to achieve a healthier and safer working environment; and
d: promoting the provision of advice, information, education, and training in relation to work health and safety; and
e: securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
f: ensuring appropriate scrutiny and review of actions taken by persons performing functions or exercising powers under this Act; and
g: providing a framework for continuous improvement and progressively higher standards of work health and safety.
2: 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 plant as is reasonably practicable. Model Work Health and Safety Act (Aust) s 3
4: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
2: Application of Act
5: Application of Act to the Crown
1: This Act binds the Crown.
2: An instrument of the Crown that is a Crown organisation (whether or not a body corporate)—
a: must be treated as if it were a separate legal personality for the purpose of complying with this Act; and
b: may be a PCBU in its own right.
3: An instrument of the Crown that is not a Crown organisation or a body corporate—
a: does not have separate legal personality; and
b: may not be a PCBU in its own right.
4: This section is subject to section 6 1992 No 96 s 3
6: Enforcement of Act against the Crown
1: This Act may be enforced against the Crown only in the manner provided in this section. Prosecution of offences
2: An instrument of the Crown may be prosecuted for an offence against this Act, but only if—
a: it is a Crown organisation; and
b: the proceedings are commenced—
i: against the Crown organisation in its own name and the proceedings do not cite the Crown as a defendant; and
ii: in accordance with the Crown Organisations (Criminal Liability) Act 2002 Issue of infringement notices
3: An infringement notice may be served on an instrument of the Crown, in accordance with this Act, but only if—
a: it is a Crown organisation; and
b: it is liable to be proceeded against for the alleged offence under subsection (2); and
c: the notice is served on the Crown organisation in its own name. Injunctions
4: Despite section 17(1)﻿(a)
a: it is a Crown organisation; and
b: the order or injunction is made against the Crown organisation in its own name. Notices issued under this Act
5: A notice issued under this Act may be issued against an instrument of the Crown, in accordance with this Act, but only if—
a: it is a Crown organisation; and
b: it is issued against the Crown organisation in its own name. 1992 No 96 s 3(2), (3)
7: Application of Act to Armed Forces
1: Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to the defence of New Zealand.
2: Subject to this section, section 13 section 213
3: This Act does not apply to—
a: a worker who—
i: is a member of the Armed Forces while the worker is carrying out any operational activity; or
ii: is carrying out work for the Armed Forces at a place outside New Zealand at which the Armed Forces are carrying out any operational activity:
b: any military aircraft or naval ship operating in an area in which the deployment of the aircraft or ship is an operational activity.
4: In this section, operational activity
a: means—
i: any service in time of war or other like emergency or in the event of any actual or imminent emergency involving the deployment of the Armed Forces overseas:
ii: any other service carried out by the Armed Forces overseas that is authorised by the Government of New Zealand and that involves peacekeeping, the maintenance or restoration of law and order or the functioning of government institutions, or any other activity in respect of which the Government of New Zealand wishes to provide assistance (whether or not in conjunction with personnel from 1 or more other countries):
iii: any service or activity or class of service or activity (whether carried out in New Zealand or overseas) that is declared under subsection (5) to be an operational activity for the purposes of this section; and
b: includes any training carried out (whether in New Zealand or overseas) directly in preparation for any specific operational activity within the meaning of paragraph (a)﻿(i) to (iii).
5: The Chief of Defence Force may
6: As soon as practicable after making a declaration under subsection (5), the Chief of Defence Force must—
a: give written notice of the declaration to the Minister of Defence; and
b: provide a copy of the declaration
7: A declaration under this section is secondary legislation ( see Part 3
8:
9: In commanding the New Zealand Defence Force, the Chief of Defence Force must take into account the need to promote the purpose of this Act to the greatest extent consistent with maintaining the defence of New Zealand. Work Health and Safety Act 2011 (Aust) s 12D The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	publish it on a website maintained by, or on behalf of, the New Zealand Defence Force •	comply with subsection (6) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 7(5) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 7(6)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 7(7) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 7(8) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
8: Application of Act to intelligence and security agencies
1: Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to the security or defence of New Zealand or the international relations of the Government of New Zealand.
2: Without limiting subsection (1),—
a: the Director-General
b: the Director-General
3: Without limiting subsection (2), a declaration may apply to—
a: a specified worker or class of workers:
b: a specified workplace or class of workplaces:
c: a specified type of work.
4: A declaration under subsection (2) may only be made with the approval of the Minister.
5: A declaration under this section is secondary legislation ( see Part 3
6: In administering the Security Intelligence Service or the Bureau and in exercising the power under subsection (2), the Director-General of Security or the Director-General of the Government Communications Security Bureau
7: A worker who is an employee of the Security Intelligence Service or the Government Communications Security Bureau may ask the Inspector-General to review a declaration made under subsection (2) to determine whether, in making the declaration, the Director-General of Security or the Director-General of the Government Communications Security Bureau (as the case requires) met the criteria in subsection (6).
8: A request by a worker under subsection (7) for a review of a declaration must be made within 14 days of the date on which the worker becomes aware, or reasonably ought to have been aware, of the declaration.
9: In this section,— Government Communications Security Bureau Bureau section 8 Inspector-General
a: means the Inspector-General of Intelligence and Security holding office under section 157
b: includes the Deputy Inspector-General of Intelligence and Security holding office under section 157 Minister
a: in relation to the New Zealand Security Intelligence Service, means the Minister responsible for the New Zealand Security Intelligence Service:
b: in relation to the Government Communications Security Bureau, means the Minister responsible for the Government Communications Security Bureau Security Intelligence Service section 7 Work Health and Safety Act 2011 (Aust) s 12C The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication It is not required to be published LA19 s 73(2) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 8(2)﻿(a) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 8(2)﻿(a) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 8(2)﻿(b) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 8(2)﻿(b) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 8(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 8(6) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 8(7) replaced 28 September 2017 section 335 Intelligence and Security Act 2017 Section 8(9) Government Communications Security Bureau Bureau replaced 28 September 2017 section 335 Intelligence and Security Act 2017 Section 8(9) Inspector-General amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 8(9) Inspector-General amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 8(9) Minister replaced 28 September 2017 section 335 Intelligence and Security Act 2017 Section 8(9) Security Intelligence Service replaced 28 September 2017 section 335 Intelligence and Security Act 2017
9: Application of Act to aircraft in operation
1: This Act applies to an aircraft in operation, wherever it may be, while the aircraft—
a: is operating on a flight beginning at a place in New Zealand and ending at that same place or at another place in New Zealand; or
b: is operating outside New Zealand, if any workers employed or engaged to work on board the aircraft are employed or engaged under an employment agreement or contract for services governed by New Zealand law.
2: For the purposes of subsection (1)﻿(b), an aircraft operating in New Zealand as part of a flight beginning or ending outside New Zealand must be treated as operating outside New Zealand.
3: To avoid doubt, where this Act applies outside New Zealand, the provisions relating to offences apply even if an act or omission that constitutes an offence occurs in respect of an aircraft outside New Zealand.
4: In this section, in operation 1992 No 96 s 3A(2), (3), (5)
10: Application of Act to ships
1: This Act applies to a New Zealand ship wherever it may be.
2: This Act applies to a foreign ship on demise charter to a New Zealand-based operator when it is operating in New Zealand.
3: To avoid doubt, where this Act applies outside New Zealand, the provisions relating to offences apply even if an act or omission that constitutes an offence occurs in respect of a ship outside New Zealand.
4: This section does not limit or affect—
a: section 7
b: section 11 1992 No 96 s 3B(1), (4)
11: Application of Act in exclusive economic zone and in or on continental shelf
1: This Act applies to—
a: a workplace in the exclusive economic zone or in or on the continental shelf if an activity that is regulated under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 Crown Minerals Act 1991
b: any aircraft or ship (including a foreign ship) operating between New Zealand and the workplace in connection with an activity to which paragraph (a) applies.
2: In this section,— continental shelf section 2(1) exclusive economic zone section 9
12: Application of Act to prescribed high-risk plant
1: This Act applies to—
a: the operation or use of prescribed high-risk plant even if the plant is not situated, operated, or used at a workplace or used in carrying out work:
b: every operator of high-risk plant even if the operator would not otherwise be a PCBU as defined in section 17
2: For the purposes of subsection (1), a reference in this Act—
a: to carrying out work includes a reference to the operation and use of prescribed high-risk plant; and
b: to a workplace includes a reference to any prescribed high-risk plant and the place at or in which the plant is situated, operated, or used; and
c: to work health and safety (however expressed) includes a reference to public health and safety.
3: This section applies subject to any prescribed exclusions or modifications. Model Work Health and Safety Act (Aust) Schedule 1 Disapplication of Part 3
13: Certain provisions of Part 3 do not apply to members of Armed Forces
1: The following provisions of Part 3
a: section 62(1)
b: section 66(1)﻿(b)
2: Sections 83 84
14: Part 3 does not apply to volunteer workers
Nothing in Part 3
15: Part 3 does not apply to prisoners
1: Nothing in Part 3
2: In this section, prison prisoner section 3(1) Model Work Health and Safety Act (Aust) s 103
3: Interpretation
General
16: Interpretation
In this Act, unless the context otherwise requires,— ACC section 259 adverse conduct section 88 aircraft section 2(1) approved code of practice section 222 Armed Forces section 2(1) associate coroner Coroners Act 2006 authorised section 203 CAA section 72A cease work section 82 Chief of Defence Force section 8 compliance power constable section 4 construct coroner Coroners Act 2006 Crown organisation section 4 defence area section 2(1) demise charter section 2(1) demolition design
a: the design of part of the plant, substance, or structure; and
b: the redesign or modification of a design designated agency section 191 employee section 6 employment agreement section 5 enforceable undertaking section 123 engage in conduct EPA section 7 EPA control section 2(1) foreign ship section 2(1) handle hazard hazardous substance section 2(1) health health and safety medical practitioner section 181 health and safety representative subpart 2 of Part 3 home
a: means a place occupied as a dwelling house; and
b: includes any garden, yard, garage, outhouse, or other appurtenance of a home homeworker section 5 importation section 5(1) import improvement notice section 101 inspector section 163 issuing officer section 3(1) local authority section 5(1) Maritime New Zealand section 429 medical officer of health
a: has the same meaning as in section 2(1)
b: includes the officers referred to in section 22 medical practitioner
a: is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)﻿(a)
b: holds a current practising certificate military aircraft Minister naval ship section 2(1) New Zealand
a: means the land and the waters enclosed by the outer limits of the territorial sea of New Zealand (as described in section 3
b: includes—
i: all airspace within the territorial limits of New Zealand:
ii: the Ross Dependency New Zealand ship section 2(1) New Zealand Transport Agency section 93 non-disturbance notice section 108 notifiable event section 25 notifiable incident section 24 notifiable injury or illness section 23 officer section 18 person person conducting a business or undertaking PCBU section 17 personal information section 7(1) personal protective equipment
a: means anything used or worn by a person (including clothing) to minimise risks to the person’s health and safety; and
b: includes air-supplied respiratory equipment plant
a: any machinery, vehicle, vessel, aircraft, equipment (including personal protective equipment), appliance, container, implement, or tool; and
b: any component of any of those things; and
c: anything fitted or connected to any of those things prescribed high-risk plant prohibited health and safety reason section 89 prohibition notice section 105 reasonably practicable subpart 2 of Part 2 section 22 regulations regulator
a: WorkSafe; or
b: the relevant designated agency regulatory agency
a: a regulator under this Act:
b: the CAA:
c: the New Zealand Police:
d: the New Zealand Transport Agency:
e: Maritime New Zealand:
f: the EPA:
g: a local authority:
h: Fire and Emergency New Zealand
i: a medical officer of health:
j: the Ministry of Health:
k: ACC:
l: the Ministry of Business, Innovation, and Employment, including any statutory officer who carries out work for that business or undertaking:
m: a prescribed agency relevant health and safety legislation
a: this Act and regulations made under this Act:
b: any provisions of the following Acts (or any regulations made under those Acts) under which the regulator has functions:
i: Electricity Act 1992
ii: Gas Act 1992
iii: Hazardous Substances and New Organisms Act 1996
iiia: Outer Space and High-altitude Activities Act 2017
iv: WorkSafe New Zealand Act 2013 representative
a: the health and safety representative for the worker; or
b: a union representing the worker; or
c: any other person the worker authorises to represent the worker residential work
a: domestic work done or to be done in the home:
b: work done or to be done in respect of the home ship section 2(1) statutory officer
a: holding or performing duties of an office established by an enactment; or
b: performing duties expressly conferred on the person by virtue of his or her office by an enactment; or
c: holding office as the chief executive of a Crown organisation structure
a: means anything that is constructed, whether fixed, moveable, temporary, or permanent; and
b: includes—
i: buildings, masts, towers, frameworks, pipelines, quarries, bridges, and underground works (including shafts or tunnels); and
ii: any component of a structure; and
iii: part of a structure substance
a: means any natural or artificial substance in any form (for example, a solid, liquid, gas, or vapour); and
b: includes a hazardous substance supply section 21 suspension notice section 185 union section 5 volunteer volunteer worker section 19(3) work group section 64 worker section 19 workplace section 20 WorkSafe section 5 1992 No 96 s 2(1) Section 16 associate coroner inserted 5 April 2023 section 36 Coroners Amendment Act 2023 Section 16 coroner inserted 5 April 2023 section 36 Coroners Amendment Act 2023 Section 16 importation amended 1 October 2018 section 443(3) Customs and Excise Act 2018 Section 16 New Zealand Fire Service repealed 1 July 2017 section 197 Fire and Emergency New Zealand Act 2017 Section 16 personal information amended 1 December 2020 section 217 Privacy Act 2020 Section 16 regulatory agency amended 1 July 2017 section 197 Fire and Emergency New Zealand Act 2017 Section 16 relevant health and safety legislation inserted 21 December 2017 section 92(2) Outer Space and High-altitude Activities Act 2017 Key terms
17: Meaning of PCBU
1: In this Act, unless the context otherwise requires, a person conducting a business or undertaking PCBU
a: means a person conducting a business or undertaking—
i: whether the person conducts a business or undertaking alone or with others; and
ii: whether or not the business or undertaking is conducted for profit or gain; but
b: does not include—
i: a person to the extent that the person is employed or engaged solely as a worker in, or as an officer of, the business or undertaking:
ii: a volunteer association:
iii: an occupier of a home to the extent that the occupier employs or engages another person solely to do residential work:
iv: a statutory officer to the extent that the officer is a worker in, or an officer of, the business or undertaking:
v: a person, or class of persons, that is declared by regulations not to be a PCBU for the purposes of this Act or any provision of this Act.
2: In this section, volunteer association Model Work Health and Safety Act (Aust) s 5
18: Meaning of officer
In this Act, unless the context otherwise requires, officer
a: means, if the PCBU is—
i: a company, any person occupying the position of a director of the company by whatever name called:
ii: a partnership (other than a limited partnership), any partner:
iii: a limited partnership, any general partner:
iv: a body corporate or an unincorporated body, other than a company, partnership, or limited partnership, any person occupying a position in the body that is comparable with that of a director of a company; and
b: includes any other person occupying a position in relation to the business or undertaking that allows the person to exercise significant influence over the management of the business or undertaking (for example, a chief executive); but
c: does not include a Minister of the Crown acting in that capacity; and
d: to avoid doubt, does not include a person who merely advises or makes recommendations to a person referred to in paragraph (a) or (b). Model Work Health and Safety Act (Aust) s 4
19: Meaning of worker
1: In this Act, unless the context otherwise requires, a worker
a: an employee; or
b: a contractor or subcontractor; or
c: an employee of a contractor or subcontractor; or
d: an employee of a labour hire company who has been assigned to work in the business or undertaking; or
e: an outworker (including a homeworker); or
f: an apprentice or a trainee; or
g: a person gaining work experience or undertaking a work trial; or
h: a volunteer worker; or
i: a person of a prescribed class.
2: For the purposes of subsection (1),—
a: a constable is—
i: a worker; and
ii: at work throughout the time when the constable is on duty or is lawfully performing the functions of a constable, but not otherwise:
b: a member of the Armed Forces is—
i: a worker; and
ii: at work throughout the time when the member is on duty or is lawfully performing the functions of a member of the Armed Forces, but not otherwise:
c: a PCBU is also a worker if the PCBU is an individual who carries out work in that business or undertaking.
3: In this Act, a volunteer worker
a: means a volunteer who carries out work in any capacity for a PCBU—
i: with the knowledge or consent of the PCBU; and
ii: on an ongoing and regular basis; and
iii: that is an integral part of the business or undertaking; but
b: does not include a volunteer undertaking any of the following voluntary work activities:
i: participating in a fund-raising activity:
ii: assisting with sports or recreation for an educational institute, sports club, or recreation club:
iii: assisting with activities for an educational institute outside the premises of the educational institution:
iv: providing care for another person in the volunteer’s home. 1992 No 96 s 3C(1), (3)
20: Meaning of workplace
1: In this Act, unless the context otherwise requires, a workplace
a: means a place where work is being carried out, or is customarily carried out, for a business or undertaking; and
b: includes any place where a worker goes, or is likely to be, while at work.
2: In this section, place
a: a vehicle, vessel, aircraft, ship, or other mobile structure; and
b: any waters and any installation on land, on the bed of any waters, or floating on any waters. Model Work Health and Safety Act (Aust) s 8
21: Meaning of supply
1: In this Act, unless the context otherwise requires, supply
a: includes the supply (or resupply) of the thing by way of sale, exchange, lease, hire, or hire purchase, whether as a principal or an agent; but
b: does not include—
i: the return of possession of a thing to the owner of the thing at the end of a lease or other agreement; or
ii: the supply of a thing by a person who does not control the supply or has no authority to make decisions about the supply (for example, a registered auctioneer who auctions a thing without having possession of the thing or a real estate agent acting in his or her capacity as a real estate agent); or
iii: a prescribed supply.
2: The 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.
3: A financier is taken not to supply any plant, substance, or structure for the purposes of this Act if—
a: 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
b: 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.
4: If subsection (3) 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.
5: In this section,— financier Financial Service Providers (Registration and Dispute Resolution) Act 2008 section 5(e) real estate agent section 4(1) registered auctioneer section 4(1) Model Work Health and Safety Act (Aust) s 6
22: Meaning of reasonably practicable
In this Act, unless the context otherwise requires, reasonably practicable subpart 2 of Part 2
a: the likelihood of the hazard or the risk concerned occurring; and
b: the degree of harm that might result from the hazard or risk; and
c: what the person concerned knows, or ought reasonably to know, about—
i: the hazard or risk; and
ii: ways of eliminating or minimising the risk; and
d: the availability and suitability of ways to eliminate or minimise the risk; and
e: after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Model Work Health and Safety Act (Aust) s 18
23: Meaning of notifiable injury or illness
1: In this Act, unless the context otherwise requires, a notifiable injury or illness
a: any of the following injuries or illnesses that require the person to have immediate treatment (other than first aid):
i: the amputation of any part of his or her body:
ii: a serious head injury:
iii: a serious eye injury:
iv: a serious burn:
v: the separation of his or her skin from an underlying tissue (such as degloving or scalping):
vi: a spinal injury:
vii: the loss of a bodily function:
viii: serious lacerations:
b: an injury or illness that requires, or would usually require, the person to be admitted to a hospital for immediate treatment:
c: an injury or illness that requires, or would usually require, the person to have medical treatment within 48 hours of exposure to a substance:
d: any serious infection (including occupational zoonoses) to which the carrying out of work is a significant contributing factor, including any infection that is attributable to carrying out work—
i: with micro-organisms; or
ii: that involves providing treatment or care to a person; or
iii: that involves contact with human blood or bodily substances; or
iv: that involves handling or contact with animals, animal hides, animal skins, animal wool or hair, animal carcasses, or animal waste products; or
v: that involves handling or contact with fish or marine mammals:
e: any other injury or illness declared by regulations to be a notifiable injury or illness for the purposes of this section.
2: Despite subsection (1), notifiable injury or illness
3: In this section,— animal section 2(1) fish section 2(1) marine mammal section 2(1) Model Work Health and Safety Act (Aust) s 36
24: Meaning of notifiable incident
1: In this Act, unless the context otherwise requires, a notifiable incident
a: an escape, a spillage, or a leakage of a substance; or
b: an implosion, explosion, or fire; or
c: an escape of gas or steam; or
d: an escape of a pressurised substance; or
e: an electric shock; or
f: the fall or release from a height of any plant, substance, or thing; or
g: the collapse, overturning, failure, or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with regulations; or
h: the collapse or partial collapse of a structure; or
i: the collapse or failure of an excavation or any shoring supporting an excavation; or
j: the inrush of water, mud, or gas in workings in an underground excavation or tunnel; or
k: the interruption of the main system of ventilation in an underground excavation or tunnel; or
l: a collision between 2 vessels, a vessel capsize, or the inrush of water into a vessel; or
m: any other incident declared by regulations to be a notifiable incident for the purposes of this section.
2: Despite subsection (1), notifiable incident Model Work Health and Safety Act (Aust) s 37
25: Meaning of notifiable event
In this Act, unless the context otherwise requires, a notifiable event
a: the death of a person; or
b: a notifiable injury or illness; or
c: a notifiable incident. Model Work Health and Safety Act (Aust) s 35 Examples
26: Status of examples
1: In this Act, an example is only illustrative of the provisions to which it relates. It does not limit those provisions.
2: If an example and a provision to which it relates are inconsistent, the provision prevails.
4: General provisions
27: PCBU must not levy workers
1: A PCBU must not impose a levy or charge on a worker (or permit a levy or charge to be imposed on a worker) for anything done, or provided, in relation to health and safety.
2: For the purposes of subsection (1), a PCBU will be treated as having levied or charged a worker who is an employee of the PCBU if the PCBU requires the employee to provide his or her own personal protective equipment—
a: as a pre-condition of employment; or
b: as a term or condition in an employment agreement.
3: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $5,000:
b: for any other person, to a fine not exceeding $25,000. Model Work Health and Safety Act (Aust) s 273
28: No contracting out
A term of any agreement or contract that purports to exclude, limit, or modify the operation of this Act, or any duty owed under this Act, or to transfer to another person any duty owed under this Act—
a: has no effect to the extent that it does so; but
b: is not an illegal contract under subpart 5 Model Work Health and Safety Act (Aust) s 272 Section 28(b) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017
29: Insurance against fines unlawful
1: To the extent that an insurance policy or a contract of insurance indemnifies or purports to indemnify a person for the person's liability to pay a fine or infringement fee under this Act,—
a: the policy or contract is of no effect; and
b: no court or tribunal has jurisdiction to grant relief in respect of the policy or contract, whether under sections 75 to 82
2: A person must not—
a: enter into, or offer to enter into, a policy or contract described in subsection (1); or
b: indemnify, or offer to indemnify, another person for the other person's liability to pay a fine or an infringement fee under this Act; or
c: be indemnified, or agree to be indemnified, by another person for that person's liability to pay a fine or an infringement fee under this Act; or
d: pay to another person, or receive from another person, an indemnity for a fine or an infringement fee under this Act.
3: A person who contravenes subsection (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $50,000:
b: for any other person, to a fine not exceeding $250,000. 1992 No 96 s 56I Section 29(1)﻿(b) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017
2: Health and safety duties
1: Key principles relating to duties
30: Management of risks
1: A duty imposed on a person by or under this Act requires the person—
a: to eliminate risks to health and safety, so far as is reasonably practicable; and
b: if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
2: A person must comply with subsection (1) to the extent to which the person has, or would reasonably be expected to have, the ability to influence and control the matter to which the risks relate. Model Work Health and Safety Act (Aust) s 17
31: Duties not transferable
A duty imposed on a person by or under this Act may not be transferred to another person. Model Work Health and Safety Act (Aust) s 14
32: Person may have more than 1 duty
A person may have more than 1 duty imposed on the person by or under this Act if the person belongs to more than 1 class of duty holder. 1992 No 96 s 2(2); Model Work Health and Safety Act (Aust) s 15
33: More than 1 person may have same duty
1: More than 1 person may have the same duty imposed by or under this Act at the same time.
2: Each duty holder must comply with that duty to the standard required by or under this Act even if another duty holder has the same duty.
3: If more than 1 person has a duty for the same matter, each person—
a: retains responsibility for that person's duty in relation to the matter; and
b: must discharge that person's duty to the extent to which the person has the ability to influence and control the matter or would have had that ability but for an agreement or arrangement purporting to limit or remove that ability. 1992 No 96 s 2(2)
34: PCBU must consult other PCBUs with same duty
1: If more than 1 PCBU has a duty in relation to the same matter imposed by or under this Act, each PCBU with the duty must, so far as is reasonably practicable, consult, co-operate with, and co-ordinate activities with all other PCBUs who have a duty in relation to the same matter.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $20,000:
b: for any other person, to a fine not exceeding $100,000. Model Work Health and Safety Act (Aust) s 46
35: Compliance with other enactments
In determining whether a duty imposed on a person by or under this Act is being or has been complied with, a person or a court may have regard to the requirements imposed under any other enactment (whether or not those requirements have a purpose of ensuring health and safety) that apply in the circumstances and that affect, or may affect, the health and safety of any person.
2: Duties of PCBUs
36: Primary duty of care
1: A PCBU must ensure, so far as is reasonably practicable, the health and safety of—
a: workers who work for the PCBU, while the workers are at work in the business or undertaking; and
b: workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.
2: A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
3: Without limiting subsection (1) or (2), a PCBU must ensure, so far as is reasonably practicable,—
a: the provision and maintenance of a work environment that is without risks to health and safety; and
b: the provision and maintenance of safe plant and structures; and
c: the provision and maintenance of safe systems of work; and
d: the safe use, handling, and storage of plant, substances, and structures; and
e: the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
f: the provision of any information, training, instruction, or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
g: that the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.
4: Subsection (5) applies if—
a: a worker occupies accommodation that is owned by, or under the management or control of, a PCBU; and
b: the occupancy is necessary for the purposes of the worker's employment or engagement by the PCBU because other accommodation is not reasonably available.
5: The PCBU must, so far as is reasonably practicable, maintain the accommodation so that the worker is not exposed to risks to his or her health and safety arising from the accommodation.
6: A PCBU who is a self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. Model Work Health and Safety Act (Aust) s 19
37: Duty of PCBU who manages or controls workplace
1: A PCBU who manages or controls a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person.
2: Despite subsection (1), a PCBU who manages or controls a workplace does not owe a duty under that subsection to any person who is at the workplace for an unlawful purpose.
3: For the purposes of subsection (1), if the PCBU is conducting a farming business or undertaking, the duty owed by the PCBU under that subsection—
a: applies only in relation to the farm buildings and any structure or part of the farm immediately surrounding the farm buildings that are necessary for the operation of the business or undertaking:
b: does not apply in relation to—
i: the main dwelling house on the farm (if any); or
ii: any other part of the farm, unless work is being carried out in that part at the time.
4: In this section, a PCBU who manages or controls a workplace
a: means a PCBU to the extent that the business or undertaking involves the management or control (in whole or in part) of the workplace; but
b: does not include—
i: the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or
ii: a prescribed person. Model Work Health and Safety Act (Aust) s 20
38: Duty of PCBU who manages or controls fixtures, fittings, or plant at workplaces
1: A PCBU who manages or controls fixtures, fittings, or plant at a workplace must, so far as is reasonably practicable, ensure that the fixtures, fittings, or plant are without risks to the health and safety of any person.
2: Despite subsection (1), a PCBU who manages or controls fixtures, fittings, or plant at a workplace does not owe a duty under that subsection to any person who is at the workplace for an unlawful purpose.
3: In this section, a PCBU who manages or controls fixtures, fittings, or plant at a workplace
a: means a PCBU to the extent that the business or undertaking involves the management or control of fixtures, fittings, or plant (in whole or in part) at a workplace; but
b: does not include—
i: the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking; or
ii: a prescribed person. Model Work Health and Safety Act (Aust) s 21
39: Duty of PCBU who designs plant, substances, or structures
1: This section applies to a PCBU (a designer
a: plant that is to be used, or could reasonably be expected to be used, as or at a workplace; or
b: a substance that is to be used, or could reasonably be expected to be used, at a workplace; or
c: a structure that is to be used, or could reasonably be expected to be used, as or at a workplace.
2: The designer must, so far as is reasonably practicable, ensure that the plant, substance, or structure is designed to be without risks to the health and safety of persons—
a: who, at a workplace, use the plant, substance, or structure for a purpose for which it was designed; or
b: who handle the substance at a workplace; or
c: who store the plant or substance at a workplace; or
d: who construct the structure at a workplace; or
e: who carry out any reasonably foreseeable activity (such as inspection, cleaning, maintenance, or repair) at a workplace in relation to—
i: the manufacture, assembly, or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling, or disposal of the plant; or
ii: the manufacture or use of the substance for a purpose for which it was designed, or the proper handling, storage, or disposal of the substance; or
iii: the manufacture, assembly, or use of the structure for a purpose for which it was designed, or the proper demolition or disposal of the structure; or
f: who are at or in the vicinity of a workplace and who are exposed to the plant, substance, or structure at the workplace or whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (e).
3: The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing, or examination that may be necessary for the performance of the duty imposed by subsection (2).
4: The designer must give to each person who is provided with the design for the purpose of giving effect to it adequate information concerning—
a: each purpose for which the plant, substance, or structure was designed; and
b: the results of any calculations, analysis, testing, or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and
c: any conditions necessary to ensure that the plant, substance, or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2)﻿(a) to (e).
5: The designer must, on request, make reasonable efforts to give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)﻿(a) to (e). Model Work Health and Safety Act (Aust) s 22
40: Duty of PCBU who manufactures plant, substances, or structures
1: This section applies to a PCBU (a manufacturer
a: plant that is to be used, or that could reasonably be expected to be used, as or at a workplace; or
b: a substance that is to be used, or that could reasonably be expected to be used, at a workplace; or
c: a structure that is to be used, or that could reasonably be expected to be used, as or at a workplace.
2: The manufacturer must, so far as is reasonably practicable, ensure that the plant, substance, or structure is manufactured to be without risks to the health and safety of persons—
a: who, at a workplace, use the plant, substance, or structure for a purpose for which it was designed or manufactured; or
b: who handle the substance at a workplace; or
c: who store the plant or substance at a workplace; or
d: who construct the structure at a workplace; or
e: who carry out any reasonably foreseeable activity (such as inspection, cleaning, maintenance, or repair) at a workplace in relation to—
i: the assembly or use of the plant for a purpose for which it was designed or manufactured, or the proper storage, decommissioning, dismantling, or disposal of the plant; or
ii: the use of the substance for a purpose for which it was designed or manufactured, or the proper handling, storage, or disposal of the substance; or
iii: the assembly or use of the structure for a purpose for which it was designed or manufactured, or the proper demolition or disposal of the structure; or
f: who are at or in the vicinity of a workplace and who are exposed to the plant, substance, or structure at the workplace or whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (e).
3: The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing, or examination that may be necessary for the performance of the duty imposed by subsection (2).
4: The manufacturer must give to each person to whom the manufacturer provides the plant, substance, or structure adequate information concerning—
a: each purpose for which the plant, substance, or structure was designed or manufactured; and
b: the results of any calculations, analysis, testing, or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and
c: any conditions necessary to ensure that the plant, substance, or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)﻿(a) to (e).
5: The manufacturer must, on request, make reasonable efforts to give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)﻿(a) to (e). Model Work Health and Safety Act (Aust) s 23
41: Duty of PCBU who imports plant, substances, or structures
1: This section applies to a PCBU (an importer
a: plant that is to be used, or that could reasonably be expected to be used, as or at a workplace; or
b: a substance that is to be used, or that could reasonably be expected to be used, at a workplace; or
c: a structure that is to be used, or that could reasonably be expected to be used, as or at a workplace.
2: The importer must, so far as is reasonably practicable, ensure that the plant, substance, or structure is without risks to the health and safety of persons—
a: who, at a workplace, use the plant, substance, or structure for a purpose for which it was designed or manufactured; or
b: who handle the substance at a workplace; or
c: who store the plant or substance at a workplace; or
d: who construct the structure at a workplace; or
e: who carry out any reasonably foreseeable activity (such as inspection, cleaning, maintenance, or repair) at a workplace in relation to—
i: the assembly or use of the plant for a purpose for which it was designed or manufactured, or the proper storage, decommissioning, dismantling, or disposal of the plant; or
ii: the use of the substance for a purpose for which it was designed or manufactured, or the proper handling, storage, or disposal of the substance; or
iii: the assembly or use of the structure for a purpose for which it was designed or manufactured, or the proper demolition or disposal of the structure; or
f: who are at or in the vicinity of a workplace and who are exposed to the plant, substance, or structure at the workplace or whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (e).
3: The importer must—
a: carry out, or arrange the carrying out of, any calculation, analysis, testing, or examination that may be necessary for the performance of the duty imposed by subsection (2); or
b: ensure that the calculation, analysis, testing, or examination has been carried out.
4: The importer must give to each person to whom the importer provides the plant, substance, or structure adequate information concerning—
a: each purpose for which the plant, substance, or structure was designed or manufactured; and
b: the results of any calculation, analysis, testing, or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and
c: any conditions necessary to ensure that the plant, substance, or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)﻿(a) to (e).
5: The importer must, on request, make reasonable efforts to give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)﻿(a) to (e). Model Work Health and Safety Act (Aust) s 24
42: Duty of PCBU who supplies plant, substances, or structures
1: This section applies to a PCBU (a supplier
a: plant that is to be used, or could reasonably be expected to be used, as or at a workplace; or
b: a substance that is to be used, or could reasonably be expected to be used, at a workplace; or
c: a structure that is to be used, or could reasonably be expected to be used, as or at a workplace.
2: The supplier must, so far as is reasonably practicable, ensure that the plant, substance, or structure is without risks to the health and safety of persons—
a: who, at a workplace, use the plant, substance, or structure for a purpose for which it was designed or manufactured; or
b: who handle the substance at a workplace; or
c: who store the plant or substance at a workplace; or
d: who construct the structure at a workplace; or
e: who carry out any reasonably foreseeable activity (such as inspection, cleaning, maintenance, or repair) at a workplace in relation to—
i: the assembly or use of the plant for a purpose for which it was designed or manufactured, or the proper storage, decommissioning, dismantling, or disposal of the plant; or
ii: the use of the substance for a purpose for which it was designed or manufactured, or the proper handling, storage, or disposal of the substance; or
iii: the assembly or use of the structure for a purpose for which it was designed or manufactured, or the proper demolition or disposal of the structure; or
f: who are at or in the vicinity of a workplace and who are exposed to the plant, substance, or structure at the workplace or whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (e).
3: The supplier must—
a: carry out, or arrange the carrying out of, any calculation, analysis, testing, or examination that may be necessary for the performance of the duty imposed by subsection (2); or
b: ensure that the calculation, analysis, testing, or examination has been carried out.
4: The supplier must give to each person to whom the supplier supplies the plant, substance, or structure adequate information concerning—
a: each purpose for which the plant, substance, or structure was designed or manufactured; and
b: the results of any calculations, analysis, testing, or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and
c: any conditions necessary to ensure that the plant, substance, or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2)﻿(a) to (e).
5: The supplier must, on request, make reasonable efforts to give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2)﻿(a) to (e).
6: This section does not apply to the sale of plant, whether or not in trade, if the plant—
a: is secondhand; and
b: is sold as is.
7: In subsection (6)﻿(b), as is 1992 No 96 s 18A(4), (5)
43: Duty of PCBU who installs, constructs, or commissions plant or structures
1: This section applies to a PCBU who installs, constructs, or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as or at a workplace.
2: The PCBU must, so far as is reasonably practicable, ensure that the way in which the plant or structure is installed, constructed, or commissioned ensures that the plant or structure is without risks to the health and safety of persons—
a: who install or construct the plant or structure at a workplace; or
b: who use the plant or structure at a workplace for a purpose for which it was installed, constructed, or commissioned; or
c: who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning, or dismantling of the plant or demolition, or disposal of the structure; or
d: who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or an activity referred to in any of paragraphs (a) to (c). Model Work Health and Safety Act (Aust) s 26
3: Duties of officers, workers, and other persons
44: Duty of officers
1: If a PCBU has a duty or an obligation under this Act, an officer of the PCBU must exercise due diligence to ensure that the PCBU complies with that duty or obligation.
2: For the purposes of subsection (1), an officer of a PCBU must exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances, taking into account (without limitation)—
a: the nature of the business or undertaking; and
b: the position of the officer and the nature of the responsibilities undertaken by the officer.
3: Despite subsection (1), a member of the governing body of a territorial authority or regional council elected in accordance with the Local Electoral Act 2001 section 6
4: In this section, due diligence
a: to acquire, and keep up to date, knowledge of work health and safety matters; and
b: to gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations; and
c: to ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and
d: to ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks and for responding in a timely way to that information; and
e: to ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under this Act; and
f: to verify the provision and use of the resources and processes referred to in paragraphs (c) to (e). Model Work Health and Safety Act (Aust) s 27(1), (5)
45: Duties of workers
While at work, a worker must—
a: take reasonable care for his or her own health and safety; and
b: take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
c: comply, as far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with this Act or regulations; and
d: co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers. Model Work Health and Safety Act (Aust) s 28
46: Duties of other persons at workplace
A person at a workplace (whether or not the person has another duty under this Part) must—
a: take reasonable care for his or her own health and safety; and
b: take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
c: comply, as far as he or she is reasonably able, with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with this Act or regulations. Model Work Health and Safety Act (Aust) s 29
4: Offences relating to duties
47: Offence of reckless conduct in respect of duty
1: A person commits an offence against this section if the person—
a: has a duty under subpart 2 3
b: without reasonable excuse, engages in conduct that exposes any individual to whom that duty is owed to a risk of death or serious injury or serious illness; and
c: is reckless as to the risk to an individual of death or serious injury or serious illness.
2: For the purposes of subsection (1), if the person is an officer of a PCBU, the individual to whom the duty is owed is an individual to whom the PCBU owes the duty.
3: A person who commits an offence against subsection (1) is liable on conviction,—
a: for an individual who is not a PCBU or an officer of a PCBU, to a term of imprisonment not exceeding 5 years or a fine not exceeding $300,000, or both:
b: for an individual who is a PCBU or an officer of a PCBU, to a term of imprisonment not exceeding 5 years or a fine not exceeding $600,000, or both:
c: for any other person, to a fine not exceeding $3 million. Model Work Health and Safety Act (Aust) s 31
48: Offence of failing to comply with duty that exposes individual to risk of death or serious injury or serious illness
1: A person commits an offence against this section if—
a: the person has a duty under subpart 2 3
b: the person fails to comply with that duty; and
c: that failure exposes any individual to a risk of death or serious injury or serious illness.
2: A person who commits an offence against subsection (1) is liable on conviction,—
a: for an individual who is not a PCBU or an officer of a PCBU, to a fine not exceeding $150,000:
b: for an individual who is a PCBU or an officer of a PCBU, to a fine not exceeding $300,000:
c: for any other person, to a fine not exceeding $1.5 million. Model Work Health and Safety Act (Aust) s 32
49: Offence of failing to comply with duty
1: A person commits an offence against this section if the person—
a: has a duty under subpart 2 3
b: fails to comply with that duty.
2: A person who commits an offence against subsection (1) is liable on conviction,—
a: for an individual who is not a PCBU or an officer of a PCBU, to a fine not exceeding $50,000:
b: for an individual who is a PCBU or an officer of a PCBU, to a fine not exceeding $100,000:
c: for any other person, to a fine not exceeding $500,000.
3: Despite subsection (2), if the duty or obligation of a PCBU is imposed under a provision other than a provision of subpart 2 3 Model Work Health and Safety Act (Aust) ss 27(3), 33 Specific provisions relating to liability of certain persons
50: Liability of officers
An officer of a PCBU may be convicted or found guilty of an offence against section 44 Model Work Health and Safety Act (Aust) s 27(4)
51: Liability of volunteers
A volunteer does not commit an offence under section 47 48 49 subpart 2 3
a: section 45
b: section 46 Model Work Health and Safety Act (Aust) s 34(1)
52: Liability of certain office holders
1: An office holder listed in subsection (2), when acting in that capacity, does not commit an offence under section 47 48 49 section 44
2: The office holders are—
a: a member of the governing body of a territorial authority or regional council elected in accordance with the Local Electoral Act 2001
b: a member of a local board elected or appointed under the Local Electoral Act 2001
c: a member of a community board elected or appointed in accordance with the Local Electoral Act 2001
d: a member of a school board appointed or elected under the Education and Training Act 2020
3: In this section,— board section 10(1) community board section 49(1) local authority local board section 5(1) Section 52(2)﻿(d) replaced 1 August 2020 section 668 Education and Training Act 2020 Section 52(3) board inserted 1 August 2020 section 668 Education and Training Act 2020 Section 52(3) board trustee repealed 1 August 2020 section 668 Education and Training Act 2020 Other matters relating to offences
53: Actions taken to prevent harm
Where a person ( person A person B
a: person A does not commit an offence under this Act; and
b: if person A is a worker, the PCBU for whom person A carries out work does not commit an offence under this Act. 1992 No 96 s 51
54: Proof of intention not required for certain offences
In a matter involving a prosecution for an offence against section 48 49
a: intended to take the action alleged to constitute the offence; or
b: intended not to take an action, where the failure to take that action is alleged to constitute the offence. 1992 No 96 s 53
5: Duties to preserve sites and notify notifiable events
55: Duty to preserve sites
1: A PCBU who manages or controls a workplace at which a notifiable event has occurred must take all reasonable steps to ensure that the site where the event occurred is not disturbed until authorised by an inspector.
2: Subsection (1) does not prevent any action—
a: to assist an injured person; or
b: to remove a deceased person; or
c: that is essential to make the site safe or to minimise the risk of a further notifiable event; or
d: that is done by, or under the direction of, a constable acting in execution of his or her duties; or
e: for which an inspector or the regulator has given permission.
3: Subsection (1) does not apply if the notifiable event is being investigated under the Armed Forces Discipline Act 1971 Transport Accident Investigation Commission Act 1990
4: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $10,000:
b: for any other person, to a fine not exceeding $50,000.
5: For the purposes of this section, a site
a: includes any plant, substance, structure, or thing associated with the notifiable event; but
b: does not include any particular site in prescribed circumstances. Model Work Health and Safety Act (Aust) s 39
56: Duty to notify notifiable event
1: A PCBU must, as soon as possible after becoming aware that a notifiable event arising out of the conduct of the business or undertaking has occurred, ensure that the regulator is notified of the event.
2: A notification under subsection (1)—
a: may be given by telephone or in writing (including by email, or other electronic means); and
b: must be given by the fastest possible means in the circumstances.
3: For the purposes of subsection (2), a person giving notice by telephone must—
a: give the details of the incident requested by the regulator; and
b: if required by the regulator, give a written notice of the incident within 48 hours of being informed of the requirement.
4: Notice given in writing under subsection (2) or (3) must be in a form, or contain the details, approved by the regulator.
5: If the regulator receives notice by telephone and a written notice is not required, the regulator must give the PCBU—
a: details of the information received; or
b: an acknowledgement of having received notice.
6: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $10,000:
b: for any other person, to a fine not exceeding $50,000. Model Work Health and Safety Act (Aust) s 38(1)–(6)
57: Requirement to keep records
1: A PCBU must keep a record of each notifiable event for at least 5 years from the date on which notice of the event is given to the regulator under section 56
2: A record kept under subsection (1) must contain the particulars prescribed by regulations (if any).
3: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $5,000:
b: for any other person, to a fine not exceeding $25,000. Model Work Health and Safety Act (Aust) s 38(7)
3: Worker engagement, participation, and representation
1: Engagement with workers and worker participation practices
Engagement with workers
58: Duty to engage with workers
1: A PCBU must, so far as is reasonably practicable, engage with workers—
a: who carry out work for the business or undertaking; and
b: who are, or are likely to be, directly affected by a matter relating to work health or safety.
2: If the PCBU and the workers have agreed to procedures for engagement, the engagement must be in accordance with those procedures.
3: The agreed procedures must not be inconsistent with section 59
4: A person who contravenes this section commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $20,000:
b: for any other person, to a fine not exceeding $100,000. Model Work Health and Safety Act (Aust) s 47
59: Nature of engagement
1: Engagement with workers under this subpart requires—
a: that relevant information about the matter be shared with workers in a timely manner; and
b: that workers be given a reasonable opportunity—
i: to express their views and to raise work health or safety issues in relation to the matter; and
ii: to contribute to the decision-making process relating to the matter; and
c: that the views of workers be taken into account by the PCBU; and
d: that the workers be advised of the outcome of the engagement in a timely manner.
2: If the workers are represented by a health and safety representative, the engagement must involve that representative. Model Work Health and Safety Act (Aust) s 48
60: When engagement is required
Engagement with workers under this subpart is required in relation to work health and safety matters in the following circumstances:
a: when identifying hazards and assessing risks to work health and safety arising from the work carried out or to be carried out as part of the conduct of the business or undertaking:
b: when making decisions about ways to eliminate or minimise those risks:
c: when making decisions about the adequacy of facilities for the welfare of workers:
d: when proposing changes that may affect the health or safety of workers:
e: when making decisions about the procedures for the following:
i: engaging with workers:
ii: monitoring the health of workers:
iii: monitoring the conditions at any workplace under the management or control of the PCBU:
iv: providing information and training for workers:
f: when making decisions about the procedures (if any) for resolving work health or safety issues at the workplace:
g: when developing worker participation practices, including when determining work groups:
h: when carrying out any other activity prescribed by regulations for the purposes of this section. Model Work Health and Safety Act (Aust) s 49 Worker participation practices
61: Duty to have worker participation practices
1: A PCBU must have practices that provide reasonable opportunities for workers who carry out work for the business or undertaking to participate effectively in improving work health and safety in the business or undertaking on an ongoing basis.
2: In complying with subsection (1), the PCBU must—
a: comply with prescribed requirements relating to worker participation, including requirements relating to a particular industry, sector, or kind of workplace:
b: take into account any relevant approved code of practice.
3: In this section, reasonable opportunities
a: the number of workers working in the business or undertaking; and
b: the number of different workplaces of the business or undertaking, and the distance between them; and
c: the likely risks to work health and safety in the business or undertaking and the level of those risks; and
d: the nature of the work that is performed and the way that it is arranged or managed; and
e: the nature of the employment arrangements or contracting arrangements, including the extent and regularity of employment or engagement of temporary workers; and
f: the willingness of workers and their representatives to develop worker participation practices; and
g: in relation to employers and employees, the duty to act in good faith as required by section 4
4: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $20,000:
b: for any other person, to a fine not exceeding $100,000. 1992 No 96 s 19B
2: Health and safety representatives and health and safety committees
Election of health and safety representatives
62: Election of health and safety representatives
1: A worker who carries out work for a business or undertaking may request the PCBU to initiate the election of 1 or more health and safety representatives to represent workers who carry out work for that business or undertaking.
2: If a PCBU receives a request under subsection (1), the PCBU must, within the time prescribed by regulations, initiate the election of 1 or more health and safety representatives to represent workers who carry out work for that business or undertaking.
3: The PCBU’s obligation to initiate an election in response to a worker’s request applies only in relation to an election for the work group to which the worker belongs.
4: A PCBU may, on the PCBU’s own initiative, initiate the election of 1 or more health and safety representatives to represent workers who carry out work for that business or undertaking.
5: A person who contravenes subsection (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $5,000:
b: for any other person, to a fine not exceeding $25,000. Section 62 replaced 13 June 2023 section 4 Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Act 2023
63: Requirements for conducting elections
An election for 1 or more health and safety representatives (whether following the request of a worker or on the initiative of the PCBU under section 62 1992 No 96 s 19V Determination of work groups
64: Determination of work groups
1: If a worker makes a request or the PCBU initiates the election of a health and safety representative under section 62
2: Unless a PCBU determines otherwise in accordance with subsection (3), a work group comprises all the workers in the business or undertaking.
3: A PCBU may determine 1 or more work groups if the PCBU considers that the work group described in subsection (2) would be inappropriate having regard to the structure of the business or undertaking.
4: If subsection (3) applies, the PCBU must—
a: ensure that the workers are grouped in a way that—
i: most effectively enables the health and safety interests of the workers to be represented; and
ii: takes account of the need for a health and safety representative to be accessible to the workers that he or she represents; and
b: have regard to any prescribed requirements.
5: Two or more PCBUs may, by agreement, determine 1 or more work groups that comprise workers who carry out work for any PCBU who is party to the agreement (a multiple PCBU work group arrangement
a: in accordance with subsection (3); and
b: subject to any prescribed requirements. Model Work Health and Safety Act (Aust) s 51(1), (2), (3)
65: Determination of numbers of health and safety representatives for work groups
1: If section 64(2)
2: If section 64(3) Health and safety committees
66: Health and safety committees
1: The following persons may request the PCBU at a workplace to establish a health and safety committee for the business or undertaking or part of the business or undertaking:
a: a health and safety representative for a work group of workers carrying out work at that workplace; or
b: 5 or more workers at that workplace.
2: The PCBU must, as soon as practicable after receiving a request under subsection (1), establish a health and safety committee for the business or undertaking or part of the business or undertaking.
3: A PCBU at a workplace may establish a health and safety committee for the workplace or part of the workplace on the PCBU’s own initiative.
4: A person who contravenes subsection (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $5,000:
b: for any other person, to a fine not exceeding $25,000. Section 66 replaced 13 June 2023 section 5 Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Act 2023 Further provisions relating to health and safety representatives, health and safety committees, and health and safety in mining sector
67: Further provisions relating to health and safety representatives and health and safety committees
1: Part 1
2: Part 2
68: Further provisions relating to mining sector
Schedule 3
3: Provisional improvement notices
69: Provisional improvement notices
1: This section applies if a health and safety representative reasonably believes that a person is contravening, or is likely to contravene, a provision of this Act or regulations.
2: The health and safety representative may issue a provisional improvement notice requiring the person to—
a: remedy the contravention; or
b: prevent a likely contravention from occurring; or
c: remedy the things or activities causing the contravention or likely to cause a contravention.
3: However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.
4: A health and safety representative must not issue a provisional improvement notice in relation to a matter if an inspector has already issued an improvement notice or a prohibition notice in relation to the same matter.
5: If a health and safety representative issues a provisional improvement notice, he or she must provide a copy of that notice to the PCBU of the work group that the health and safety representative represents, as soon as practicable. Model Work Health and Safety Act (Aust) s 90
70: Training requirements relating to issue of provisional improvement notice
A health and safety representative must not issue a provisional improvement notice unless the representative has—
a: completed training prescribed by or under regulations; or
b: previously completed that training when acting as a health and safety representative for another work group. Model Work Health and Safety Act (Aust) s 90(4)
71: Requirements relating to provisional improvement notices
1: A provisional improvement notice must be in writing.
2: A provisional improvement notice must state—
a: that the health and safety representative believes the person is contravening, or is likely to contravene, a provision of this Act or regulations (as the case may be); and
b: the provision the representative believes is being, or is likely to be, contravened; and
c: briefly, how the provision is being, or is likely to be, contravened; and
d: the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention. Model Work Health and Safety Act (Aust) ss 91, 92
72: Provisional improvement notice may include recommendations to remedy contravention
1: A provisional improvement notice may include recommendations relating to—
a: the measures to be taken to remedy the contravention or prevent the likely contravention; or
b: the things or activities causing the contravention, or likely to cause a contravention, to which the notice relates.
2: A recommendation included in a provisional improvement notice may—
a: refer to an approved code of practice:
b: offer the person to whom it is issued a choice of ways in which to remedy the contravention or prevent the likely contravention.
3: Subsection (2) does not limit subsection (1). Model Work Health and Safety Act (Aust) s 93
73: Minor changes to provisional improvement notice
A health and safety representative may make minor changes to a provisional improvement notice—
a: for clarification; or
b: to correct errors or references; or
c: to reflect changes of address or other circumstances. Model Work Health and Safety Act (Aust) s 94
74: Issue of provisional improvement notice
A provisional improvement notice must be issued to a person in accordance with section 116 Model Work Health and Safety Act (Aust) s 95
75: Cancellation of provisional improvement notice
1: The health and safety representative may, at any time, cancel a provisional improvement notice issued to a person by written notice given to that person.
2: A cancellation must be notified in the same way that the notice was issued. Model Work Health and Safety Act (Aust) s 96
76: Display of provisional improvement notice
1: A person to whom a provisional improvement notice is issued must, as soon as practicable, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.
2: A person must not intentionally remove, destroy, damage, or deface a notice displayed under subsection (1) during the period that the notice is in force.
3: A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $5,000:
b: for any other person, to a fine not exceeding $25,000. Model Work Health and Safety Act (Aust) s 97
77: Irregularities or defects in notice
A provisional improvement notice is not invalid merely because of—
a: any defect, irregularity, omission, or want of form unless the defect, irregularity, omission, or want of form causes or is likely to cause substantial injustice; or
b: a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person. Model Work Health and Safety Act (Aust) s 98
78: Offence relating to breach of provisional improvement notice
1: This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 79
2: The person must comply with the provisional improvement notice within the time specified in the notice by remedying the contravention or avoiding any likely contravention (as the case may be).
3: For the purposes of subsection (2), the person may comply with the notice in a different way from that directed by the health and safety representative as long as the person substantially complies with the requirement to remedy the contravention or avoid any likely contravention.
4: A person who contravenes subsection (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $50,000:
b: for any other person, to a fine not exceeding $250,000. Model Work Health and Safety Act (Aust) s 99
79: Review of provisional improvement notice
1: A person specified in subsection (2) may, within 7 days after a provisional improvement notice is issued to the person, ask the regulator to appoint an inspector to review the notice.
2: The persons are—
a: the person to whom the notice was issued; and
b: if the person is a worker, the PCBU at the workplace at which the worker carries out work.
3: If a request is made under subsection (1), the provisional improvement notice is stayed until the inspector makes a decision on the review. Model Work Health and Safety Act (Aust) s 100
80: Regulator must ensure inspector reviews notice
1: The regulator must ensure that, as soon as practicable after a request is made under section 79
a: reviews the provisional improvement notice; and
b: inquires into the circumstances that are the subject of the provisional improvement notice.
2: An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired. Model Work Health and Safety Act (Aust) s 101
81: Decision of inspector on review of provisional improvement notice
1: After reviewing the provisional improvement notice, the inspector must—
a: confirm the provisional improvement notice; or
b: confirm the provisional improvement notice with changes; or
c: cancel the provisional improvement notice.
2: The inspector must give a copy of his or her decision in accordance with section 116
a: the applicant for the review of the provisional improvement notice; and
b: the health and safety representative who issued the notice.
3: A provisional improvement notice that is confirmed (with or without changes) by an inspector must be treated as an improvement notice issued by the inspector under this Act. Model Work Health and Safety Act (Aust) s 102
4: Right to cease or direct cessation of unsafe work
82: Meaning of cease work
In this subpart, unless the context otherwise requires, cease work
a: to cease or refuse to carry out work under section 83
b: to cease work on a direction under section 84 Model Work Health and Safety Act (Aust) s 83
83: Right of worker to cease or refuse to carry out unsafe work
1: A worker may cease, or refuse to carry out, work if the worker believes that carrying out the work would expose the worker, or any other person, to a serious risk to the worker's or other person's health or safety arising from an immediate or imminent exposure to a hazard.
2: A worker may continue to refuse to carry out the work if—
a: the worker attempts to resolve the matter with the PCBU as soon as practicable after first refusing to do the work; and
b: the matter is not resolved; and
c: the worker believes on reasonable grounds that carrying out the work would expose the worker or any other person to a serious risk to the worker's or other person's health or safety arising from an immediate or imminent exposure to a hazard.
3: Without limiting subsection (2)﻿(c), reasonable grounds
4: A worker who ceases work under subsection (1) must, as soon as practicable, notify the PCBU that the worker has ceased work.
5: Subsection (1) does not authorise a worker to refuse to do work that, because of its nature, inherently or usually carries an understood risk to the worker’s health and safety, unless that risk has materially increased beyond the understood risk.
6: To avoid doubt, nothing in this section limits or affects an employee’s right to refuse to do work under any other enactment or the general law. 1992 No 96 s 28A
84: Health and safety representative may direct unsafe work to cease
1: A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative reasonably believes that carrying out the work would expose the worker, or any other person, to a serious risk to the worker's or other person's health or safety, arising from an immediate or imminent exposure to a hazard.
2: The health and safety representative must not give a direction under subsection (1) unless the matter is not resolved within a reasonable time after consultation about the matter with the PCBU for whom the workers are carrying out work.
3: Despite subsection (2), the health and safety representative may direct the worker to cease work without carrying out that consultation if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.
4: The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).
5: The health and safety representative must immediately inform the PCBU of any direction given by the health and safety representative to a worker under subsection (1).
6: Subsection (1) does not authorise a health and safety representative to give a direction to a worker to cease work that, because of its nature, inherently or usually carries an understood risk to health and safety unless the risk has materially increased beyond the understood risk. 1992 No 96 s 28A
85: Training requirements relating to giving direction to cease work
A health and safety representative must not give a direction under section 84
a: completed training prescribed by or under regulations; or
b: previously completed that training when acting as a health and safety representative for another work group. Model Work Health and Safety Act (Aust) s 85(6)
86: Alternative work
1: If a worker ceases work, the PCBU may direct the worker to carry out alternative work at the same or another workplace if that work is safe and appropriate for the worker to carry out until the worker can resume normal duties.
2: A worker who ceases work must remain available to carry out alternative work as directed by the PCBU under subsection (1).
3: For the purposes of this section, alternative work
a: for a worker who is an employee, work within the scope of the person's employment agreement:
b: for a worker who is not an employee, work within the scope of the worker's contract.
4: In addition, a worker may agree (but cannot be directed) to do other work that is safe and appropriate for the worker. 1992 No 96 s 28A(6)
87: Regulator may assist to resolve issues relating to cessation of work
1: The health and safety representative, the PCBU, or the worker may ask the regulator to assist in resolving the issue relating to the cessation of work.
2: If the regulator agrees to assist in resolving an issue relating to the cessation of work, the regulator must provide the assistance as soon as practicable after agreeing to assist. Model Work Health and Safety Act (Aust) s 89
5: Prohibition of adverse, coercive, or misleading conduct
88: Meaning of adverse conduct
1: For the purposes of this subpart, a person engages in adverse conduct
a: the person—
i: dismisses a worker who is an employee; or
ii: terminates a contract for services with a worker; or
iii: refuses or omits to employ or engage any person on work of any description that is available and for which that person is qualified; or
iv: refuses or omits to offer or afford to the worker the same terms of employment or engagement, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other workers of the same or substantially similar qualifications, experience, or skills who are employed or engaged in the same or substantially similar circumstances; or
v: subjects the worker to any detriment, in circumstances in which other workers employed or engaged by the person on work of that description are not or would not be subjected to such detriment; or
vi: retires the worker, or requires or causes the worker to retire or resign or terminate a contract for services; or
b: the person terminates a commercial arrangement with another person; or
c: the person refuses or fails to enter into a commercial arrangement with another person.
2: For the purposes of this subpart, a person also engages in adverse conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action.
3: For the purposes of subsection (1)﻿(a)﻿(v), detriment Model Work Health and Safety Act (Aust) s 105
89: Meaning of prohibited health and safety reason
For the purposes of this subpart, adverse conduct is engaged in for a prohibited health and safety reason section 88(1)﻿(b) or (c)
a: is, has been, or proposes to be a health and safety representative or a member of a health and safety committee; or
b: undertakes, has undertaken, or proposes to undertake another role under this Act; or
c: performs, has performed, or proposes to perform a function—
i: as a health and safety representative or as a member of a health and safety committee; or
ii: under this Act; or
iii: under this Act in a particular way; or
d: refrains from, has refrained from, or proposes to refrain from performing a function under this Act or under this Act in a particular way; or
e: exercises, has exercised, or proposes to exercise a power—
i: as a health and safety representative; or
ii: under this Act; or
iii: under this Act in a particular way; or
f: refrains from, has refrained from, or proposes to refrain from exercising a power under this Act or under this Act in a particular way; or
g: assists, has assisted, or proposes to assist, or gives, has given, or proposes to give, any information to any person performing a function or exercising a power under this Act; or
h: raises, has raised, or proposes to raise an issue or concern about health and safety with—
i: the PCBU; or
ii: the regulator or an inspector; or
iii: a worker's representative; or
iv: another worker; or
v: a health and safety representative; or
vi: a member of a health and safety committee; or
vii: any other person who has a duty under this Act in relation to the matter; or
viii: any other person performing a function or exercising a power under this Act; or
i: is involved in, has been involved in, or proposes to be involved in resolving a health and safety issue under this Act; or
j: is taking action, has taken action, or proposes to take action to seek compliance by any person with any duty or obligation under this Act; or
k: has ceased work under section 83 84 Model Work Health and Safety Act (Aust) s 106
90: Prohibition on adverse conduct
1: A person must not engage in adverse conduct for a prohibited health and safety reason.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $100,000:
b: for any other person, to a fine not exceeding $500,000.
3: However, a person commits an offence under subsection (1) only if the prohibited health and safety reason was the dominant reason for the adverse conduct. Model Work Health and Safety Act (Aust) s 104
91: Prohibition on requesting, instructing, inducing, encouraging, authorising, or assisting adverse conduct
1: A person must not request, instruct, induce, encourage, authorise, or assist another person to engage in adverse conduct in contravention of section 90
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $100,000:
b: for any other person, to a fine not exceeding $500,000. Model Work Health and Safety Act (Aust) s 107
92: Prohibition on coercion or inducement
1: A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce or induce the other person, or a third person,—
a: to perform or not to perform, or to propose to perform or not to perform, a function under this Act or a function under this Act in a particular way; or
b: to exercise or not to exercise, or propose to exercise or not to exercise, a power under this Act or a power under this Act in a particular way; or
c: to refrain from seeking, or continuing to undertake, a role under this Act.
2: For the purposes of subsection (1), the following are not to be treated as an action with intent to coerce or induce a person:
a: a reasonable direction given by a constable:
b: a reasonable direction given by an emergency services worker in an emergency.
3: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $100,000:
b: for any other person, to a fine not exceeding $500,000.
4: In this section,— emergency services worker
a: ambulance services, first aid, or medical or paramedical care:
b: designated services (as defined in section 6 organise or take, or threaten to organise or take, any action Model Work Health and Safety Act (Aust) s 108 Section 92(4) emergency services worker replaced 1 July 2017 section 197 Fire and Emergency New Zealand Act 2017
93: Misrepresentation
1: A person must not knowingly or recklessly make a false or misleading representation to another person about that other person's—
a: rights or obligations under this Act; or
b: ability to initiate, or participate in, a process or proceedings under this Act; or
c: ability to make a complaint or an inquiry to a person or body empowered under this Act to seek compliance with this Act.
2: Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
3: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $100,000:
b: for any other person, to a fine not exceeding $500,000. Model Work Health and Safety Act (Aust) s 109
94: Proof of adverse conduct
1: This section applies if, in proceedings for an offence of contravening section 90 91
a: proves that adverse conduct was engaged in; and
b: proves that a prohibited health and safety reason existed at the time the adverse conduct was engaged in; and
c: adduces evidence that the adverse conduct was engaged in for a prohibited health and safety reason.
2: The prohibited health and safety reason alleged for the adverse conduct is presumed to be the dominant reason for that conduct unless the defendant proves that the reason was not the dominant reason for the conduct. Model Work Health and Safety Act (Aust) s 110(1), (2) Civil proceedings in relation to adverse or coercive conduct
95: Civil proceedings in relation to engaging in or inducing adverse or coercive conduct
1: An eligible person may apply to the District Court
a: engaged in adverse conduct for a prohibited health and safety reason; or
b: requested, instructed, induced, encouraged, authorised, or assisted another person to engage in adverse conduct for a prohibited health and safety reason; or
c: breached section 92
2: The orders are—
a: an injunction restraining the person from engaging in conduct described in subsection (1):
b: for conduct referred to in subsection (1)﻿(a) or (b), an order that the person pay compensation that the court considers appropriate to the person who was the subject of the adverse conduct:
c: any other order that the court considers appropriate.
3: The court may grant an interim injunction restraining a person from engaging in conduct described in subsection (1) if, in its opinion, it is desirable to do so.
4: For the purposes of this section, a person may be found to have engaged in adverse conduct for a prohibited health and safety reason only if a prohibited health and safety reason was a substantial reason for the conduct.
5: For the purposes of this section, eligible person
a: a person affected by conduct described in subsection (1), or the person's representative; but
b: does not include an employee (or that employee's representative) in relation to conduct of that employee's employer or former employer. Model Work Health and Safety Act (Aust) s 112 Section 95(1) amended 1 March 2017 section 261 District Court Act 2016
96: Procedure for civil proceedings for adverse conduct
1: A proceeding brought under section 95
2: In a proceeding under section 95 section 95(1)﻿(a) or (b)
3: It is a defence to a proceeding under section 95 section 95(1)﻿(a) or (b)
a: the conduct was reasonable in the circumstances; and
b: a substantial reason for the conduct was to comply with relevant health and safety legislation. Model Work Health and Safety Act (Aust) s 113 General provisions
97: General provisions
1: Subject to subsections (2) and (3), the bringing of a prosecution under section 90 91 92
a: the bringing of a civil proceeding under section 95
b: the raising of a personal grievance under the Employment Relations Act 2000
2: If the District Court Sentencing Act 2002 section 90 91 92
a: the court may not order compensation to be payable in respect of the same losses in a civil proceeding under section 95
b: the Employment Relations Authority or Employment Court may not order compensation to be payable in respect of the same losses in relation to a personal grievance under the Employment Relations Act 2000
3: If, in respect of an action referred to in subsection (1)﻿(a) or (b), the court or the Employment Relations Authority or Employment Court orders compensation to be payable for the conduct, the same losses cannot be the subject of an order of reparation under the Sentencing Act 2002 Model Work Health and Safety Act (Aust) s 114 Section 97(2) amended 1 March 2017 section 261 District Court Act 2016
6: Issue resolution
98: Resolution of work health and safety issues
If an issue about work health and safety arises at a workplace, the parties to the issue (including any representative of the parties) must make reasonable efforts to achieve a timely, final, and effective resolution of the issue. Model Work Health and Safety Act (Aust) s 81
99: Regulator may appoint inspector to assist parties in resolving issue
1: This section applies if a work health and safety issue has not been resolved after reasonable efforts have been made under section 98
2: A party to the issue may ask the regulator to appoint an inspector to assist the parties in resolving the issue.
3: If the regulator agrees to appoint an inspector, the inspector may, after providing assistance to the parties in accordance with subsection (2), decide the issue if it is of a type specified in regulations. Model Work Health and Safety Act (Aust) s 82(1), (2)
4: Enforcement and other matters
100: Meaning of notice
In this Part, notice
a: means any of the following notices issued under this Act:
i: an improvement notice:
ii: a prohibition notice:
iii: a non-disturbance notice:
iv: a suspension notice:
b: includes a subsequent notice.
1: Enforcement measures
Improvement notices
101: Power to issue improvement notices
1: This section applies if an inspector reasonably believes that a person—
a: is contravening a provision of this Act or regulations; or
b: is likely to contravene this Act or regulations.
2: The inspector may issue an improvement notice requiring the person to—
a: remedy the contravention; or
b: prevent a likely contravention from occurring; or
c: remedy the things or activities causing the contravention or likely to cause a contravention. 1992 No 96 s 39(1), (2)
102: Content of improvement notices
1: An improvement notice must state—
a: that the inspector believes the person—
i: is contravening a provision of this Act or regulations; or
ii: is likely to contravene this Act or regulations; and
b: the provision the inspector believes is being, or is likely to be, contravened; and
c: briefly, how the provision is being, or is likely to be, contravened; and
d: a reasonable period within which the person is required to remedy—
i: the contravention or likely contravention; or
ii: the things or activities causing the contravention or likely to cause a contravention.
2: An improvement notice may include recommendations concerning—
a: the measures that could be taken to remedy the contravention, or prevent the likely contravention, to which the notice relates:
b: the things or activities causing the contravention, or likely to cause a contravention, to which the notice relates. 1992 No 96 s 39(3), (4)
103: Compliance with improvement notice
1: A person who has been issued with an improvement notice must comply with the notice within the period specified in the notice.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $50,000:
b: for any other person, to a fine not exceeding $250,000.
3: It is not an offence to fail to comply with recommendations in an improvement notice. 1992 No 96 s 39(5)
104: Extension of time for compliance with improvement notices
1: This section applies if a person has been issued with an improvement notice.
2: An inspector may, by written notice given to the person, extend the compliance period for the improvement notice.
3: However, the inspector may extend the compliance period only if the period has not ended.
4: In this section, compliance period
a: means the period stated in the improvement notice under section 103(1)
b: includes any extension of that period under this section. Model Work Health and Safety Act (Aust) s 194 Prohibition notices
105: Power to issue prohibition notice
1: This section applies if,—
a: an inspector reasonably believes that—
i: an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard; or
ii: an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard; or
b: in respect of any workplace, plant, or substance, or work that is required to be authorised under subpart 2 clause 2
i: believes that there is a serious risk to the health and safety of any person because of a failure to comply with this Act or regulations; or
ii: believes on reasonable grounds that it is likely that a person will fail to comply with this Act or regulations, and that failure would be likely to cause a serious risk to the health and safety of any person.
2: The inspector may give a person who has control over the matter or activity a direction prohibiting the carrying on of the matter or activity, or the carrying on of the matter or activity in a specified way, until an inspector is satisfied that the matter or activity that gives or will give rise to the risk has been remedied.
3: The direction may be given orally, but must be confirmed by written notice (a prohibition notice 1992 No 96 s 41(1)
106: Content of prohibition notice
1: A prohibition notice must—
a: state that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief; and
b: describe briefly the matter or activity that the inspector believes gives rise or will give rise to the risk; and
c: in respect of a notice to which section 105(1)﻿(b)
2: A prohibition notice may include recommendations on the measures that could be taken to remedy the risk, activities, or matters to which the notice relates, or the contravention or likely contravention referred to in subsection (1)﻿(c).
3: Without limiting section 105
a: a workplace, or part of a workplace, at which the activity is not to be carried out:
b: anything that is not to be used in connection with the activity:
c: any procedure that is not to be followed in connection with the activity. 1992 No 96 s 41(2), (4)
107: Compliance with prohibition notice
1: A person to whom a direction is given under section 105(2)
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $100,000:
b: for any other person, to a fine not exceeding $500,000.
3: It is not an offence to fail to comply with recommendations in a prohibition notice. 1992 No 96 s 43 Non-disturbance notices
108: Power to issue non-disturbance notice
An inspector may issue a non-disturbance notice to a PCBU who manages or controls a workplace if the inspector reasonably believes that it is necessary to do so to facilitate the exercise of his or her compliance powers. Model Work Health and Safety Act (Aust) s 198
109: Content of non-disturbance notice
1: A non-disturbance notice may require a person to—
a: preserve the site at which a notifiable event has occurred for a specified period; or
b: prevent the disturbance of a particular site (including the operation of plant) in other circumstances for a specified period that is reasonable in the circumstances.
2: A non-disturbance notice must specify the period (not exceeding 7 days) for which it applies and set out—
a: the obligations of the person to whom the notice is issued; and
b: the measures to be taken to preserve a site or prevent the disturbance of a site; and
c: the penalty for contravening the notice.
3: In this section, a reference to a site
4: A non-disturbance notice does not prevent any action—
a: to assist an injured person; or
b: to remove a deceased person; or
c: that is essential to make the site safe or to prevent a further notifiable event; or
d: done by, or under direction of, a constable acting in the execution of his or her duties; or
e: for which an inspector or the regulator has given permission. Model Work Health and Safety Act (Aust) s 199
110: Compliance with non-disturbance notice
1: A person must not, without reasonable excuse, refuse or fail to comply with a non-disturbance notice issued to the person.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $50,000:
b: for any other person, to a fine not exceeding $250,000. Model Work Health and Safety Act (Aust) s 200
111: Issue of subsequent non-disturbance notices
1: If an inspector considers it necessary to do so, he or she may issue 1 or more subsequent non-disturbance notices to a person, whether before or after the expiry of the previous notice.
2: A subsequent non-disturbance notice issued under subsection (1) must comply with section 109 Model Work Health and Safety Act (Aust) s 201 General provisions
112: General provisions relating to notices
1: A notice must be in writing.
2: A notice may be addressed to any person under the person's legal name or usual business name or style. 1992 No 96 s 44
113: Changes to notice by inspector
An inspector or a health and safety medical practitioner (as the case may be) may make minor changes to a notice—
a: for clarification; or
b: to correct errors or references; or
c: to reflect changes of address or other circumstances. Model Work Health and Safety Act (Aust) s 206
114: Regulator may vary or cancel notice
Except as provided in section 113 Model Work Health and Safety Act (Aust) s 207
115: Formal irregularities or defects in notice
A notice is not invalid merely because of—
a: any defect, irregularity, omission, or want of form in the notice unless the defect, irregularity, omission, or want of form causes or is likely to cause a miscarriage of justice; or
b: a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued to the person in accordance with section 116 Model Work Health and Safety Act (Aust) s 208
116: Issue of notice
1: A notice may be issued to a person—
a: by delivering it personally to the person; or
b: by sending it to the person—
i: by post to the person’s usual or last known place of residence or business; or
ii: by electronic transmission; or
c: by leaving it for the person at the person's usual or last known place of residence or business with a person who appears to be 16 years or over and who appears to reside or work there; or
d: by leaving it for the person at the workplace to which the notice relates with a person who is or appears to be in charge of the workplace; or
e: in a prescribed manner.
2: Regulations may prescribe the steps a person to whom a notice is issued must take to bring it to the attention of other persons.
3: A notice posted under subsection (1)﻿(b)﻿(i) is to be treated as having been received on the seventh day after the date on which it was posted. 1992 No 96 ss 40 42
117: Display of notice at workplace by person issued with notice
1: A person to whom a notice (other than a suspension notice) is issued must, as soon as practicable, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.
2: A person must not intentionally remove, destroy, damage, or deface a notice displayed under subsection (1) while the notice is in force.
3: A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $5,000:
b: for any other person, to a fine not exceeding $25,000. Model Work Health and Safety Act (Aust) s 210
118: Inspector may display notice
1: An inspector who issues a notice under section 116
2: A person must not intentionally remove, destroy, damage, or deface a notice displayed under subsection (1) while the notice is in force.
3: A person who contravenes subsection (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $5,000:
b: for any other person, to a fine not exceeding $25,000. 1992 No 96 s 42(1)
2: Remedial action
119: When regulator may carry out remedial action
1: This section applies if a person to whom a prohibition notice is issued fails to take reasonable steps to comply with the notice.
2: The regulator may take any remedial action it believes reasonable to make the workplace or situation safe after giving written notice to the person to whom the prohibition notice was issued of—
a: the regulator's intention to take that action; and
b: the person's liability for the costs of that action. Model Work Health and Safety Act (Aust) s 211
120: Power of regulator to take other remedial action
1: This section applies if the regulator reasonably believes that—
a: circumstances exist in which a prohibition notice can be issued; and
b: a prohibition notice cannot be issued at a workplace because, after taking reasonable steps, the person to whom the notice could be issued cannot be found.
2: The regulator may take any remedial action necessary to make the workplace safe. Model Work Health and Safety Act (Aust) s 212
121: Costs of remedial or other action
The regulator may recover as a debt due to the regulator the reasonable costs of any remedial action taken under—
a: section 119
b: section 120 Model Work Health and Safety Act (Aust) s 213
3: Civil proceedings for non-compliance with notices
122: Civil proceedings relating to non-compliance with notice
1: On an application by the regulator, the District Court
a: compelling a person to comply with a notice; or
b: restraining a person from contravening a notice.
2: The court may make an order—
a: under subsection (1)﻿(a) if it is satisfied that the person has refused or failed to comply with a notice:
b: under subsection (1)﻿(b) if it is satisfied that the person has contravened, is contravening, or is likely to contravene a notice.
3: The court may make an order under subsection (1)—
a: whether or not proceedings have been brought for an offence against this Act or regulations in connection with any matter in relation to which the notice was issued; and
b: whether or not the compliance period for the notice has expired. Model Work Health and Safety Act (Aust) s 215 Section 122(1) amended 1 March 2017 section 261 District Court Act 2016
4: Enforceable undertakings
123: Regulator may accept enforceable undertakings
1: The regulator may accept an enforceable undertaking given by a person in writing in connection with a matter relating to a contravention or an alleged contravention by the person of this Act or regulations.
2: The regulator must not accept an enforceable undertaking under subsection (1) if the regulator believes that the contravention or alleged contravention would amount to an offence against section 47
3: The giving of an enforceable undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates. Model Work Health and Safety Act (Aust) s 216
124: Notice of decision and reasons for decision
1: The regulator must give the person seeking to make an enforceable undertaking written notice of—
a: its decision to accept or reject the undertaking; and
b: the reasons for the decision.
2: The regulator must publish, on an Internet site maintained by or on behalf of the regulator, notice of a decision to accept an enforceable undertaking and the reasons for that decision. Model Work Health and Safety Act (Aust) s 217
125: When enforceable undertaking is enforceable
An enforceable undertaking takes effect and becomes enforceable when the regulator's decision to accept the undertaking is given to the person who made the undertaking, or at any later date specified by the regulator. Model Work Health and Safety Act (Aust) s 218
126: Compliance with enforceable undertaking
1: A person must not contravene an enforceable undertaking given by that person that is in force.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $50,000:
b: for any other person, to a fine not exceeding $250,000. Model Work Health and Safety Act (Aust) s 219
127: Contravention of enforceable undertaking
1: The regulator may apply to the District Court
2: If the court is satisfied that the person who made the enforceable undertaking has contravened the undertaking, the court may make either or both of the following orders:
a: an order directing the person to comply with the undertaking:
b: an order discharging the undertaking.
3: In addition to the orders referred to in subsection (2), the court may make any other order that the court considers appropriate in the circumstances, including orders directing the person to pay to the regulator—
a: the costs of the proceedings; and
b: the reasonable costs of the regulator in monitoring compliance with the enforceable undertaking in the future.
4: This section does not prevent proceedings being brought for the contravention or alleged contravention of this Act or regulations to which the enforceable undertaking relates. Model Work Health and Safety Act (Aust) s 220 Section 127(1) amended 1 March 2017 section 261 District Court Act 2016
128: Withdrawal or variation of enforceable undertaking
1: A person who has given an enforceable undertaking may at any time, with the written agreement of the regulator,—
a: withdraw the undertaking; or
b: vary the undertaking.
2: However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Act or regulations.
3: The regulator must publish on an Internet site maintained by or on behalf of the regulator notice of the withdrawal or variation of an enforceable undertaking. Model Work Health and Safety Act (Aust) s 221
129: Proceedings for alleged contravention
1: Subject to this section, no proceedings (whether civil or criminal) for a contravention or an alleged contravention of this Act or regulations may be brought against a person if an enforceable undertaking is in effect in relation to that contravention.
2: No proceedings may be brought for a contravention or an alleged contravention of this Act or regulations against a person who—
a: has made an enforceable undertaking in relation to that contravention; and
b: has completely discharged the enforceable undertaking.
3: The regulator may accept an enforceable undertaking in relation to a contravention or an alleged contravention before proceedings in relation to that contravention have been completed.
4: If the regulator accepts an enforceable undertaking before the proceedings are completed, the regulator must take all reasonable steps to have the proceedings discontinued as soon as practicable. Model Work Health and Safety Act (Aust) s 222
5: Reviews and appeals
130: Interpretation
In this subpart, unless the context otherwise requires,— appealable decision
a: a reviewable decision, but only if that decision has been subject to internal review and the regulator has made a decision on the review:
b: a decision made by the regulator to issue a notice (including a subsequent notice):
c: a decision made by the regulator to cancel or vary a notice:
d: a decision made by the regulator to extend the time to comply with an improvement notice:
e: a decision made by the regulator to stay the operation of a decision to issue a notice:
f: a decision made by the regulator of a type prescribed by regulations for the purposes of this section eligible person reviewable decision
a: to issue a notice (including a subsequent notice) under this Act; or
b: to extend the time to comply with an improvement notice; or
c: in respect of a provisional improvement notice under section 81
d: of a type prescribed by regulations for the purposes of this section. Internal review
131: Application for internal review
1: An eligible person in relation to a reviewable decision may apply to the regulator for review (an internal review
a: the specified time after the day on which the decision first came to the eligible person's notice; or
b: any longer period that the regulator allows.
2: The application must be made in the manner and form required by the regulator.
3: For the purposes of this section, the specified time
a: for a decision to issue an improvement notice, the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser; and
b: in any other case, 14 days. Model Work Health and Safety Act (Aust) s 224
132: Decision of regulator
1: The regulator must review the reviewable decision and make a decision—
a: as soon as practicable; and
b: within 14 days after the application for internal review is received.
2: However, the individual who made the reviewable decision must not review the decision.
3: The regulator's decision may—
a: confirm or vary the reviewable decision; or
b: set aside the reviewable decision; or
c: set aside the reviewable decision and substitute another decision that the regulator considers appropriate.
4: The regulator may seek further information from the applicant, and, if it does,—
a: the period specified in subsection (1)﻿(b) ceases to run until the applicant provides the information to the regulator; and
b: the applicant must provide the information within the period (not less than 7 days) specified by the regulator in the request for information.
5: If the applicant does not provide the further information within the required time, the regulator may make a decision on the internal review on the basis of the information held by the regulator.
6: If the reviewable decision is not varied or set aside within the period specified in subsection (1)﻿(b), the decision is to be treated as having been confirmed by the regulator. Model Work Health and Safety Act (Aust) ss 225, 226
133: Notice of decision on internal review
As soon as practicable after making a decision in accordance with section 132
a: the decision on the internal review; and
b: the reasons for the decision. Model Work Health and Safety Act (Aust) s 227
134: Stay of reviewable decision on internal review
1: If an application is made for an internal review of a decision to issue a notice, the regulator may stay the operation of the decision.
2: The regulator may stay the operation of a decision—
a: on the regulator's own initiative; or
b: on the application of the applicant for review.
3: The regulator must make a decision on an application for a stay within 3 working days after the regulator receives the application.
4: If the regulator has not made a decision on an application under subsection (2)﻿(b) within the time set out in subsection (3), the regulator is to be treated as having made a decision to grant a stay.
5: A stay of the operation of a decision pending a decision on an internal review continues until the reviewer has made a decision on the review. Model Work Health and Safety Act (Aust) s 228 Appeal to District Court
135: Application for appeal
1: An eligible person may appeal to the District Court
2: The appeal must be lodged within 14 days after the day on which the appealable decision first came to the eligible person's notice.
3: On an appeal under subsection (1), the court must inquire into the decision and may—
a: confirm or vary the decision; or
b: set aside the decision; or
c: set aside the decision and substitute another decision that the court considers appropriate. 1992 No 96 s 46 Section 135(1) amended 1 March 2017 section 261 District Court Act 2016
6: Infringement offences
136: Interpretation
In this subpart,— infringement fee infringement offence section 47 48 49
137: Proceedings for infringement offence
1: A person who is alleged to have committed an infringement offence may either—
a: be proceeded against by the filing of a charging document under section 14
b: be served with an infringement notice under section 138
2: Proceedings commenced in the way described in subsection (1)﻿(a) do not require the leave of a District Court Judge or Registrar under section 21(1)﻿(a)
138: Infringement notices
1: The regulator may issue an infringement notice to a person if the regulator believes on reasonable grounds that the person is committing, or has committed, an infringement offence.
2: The regulator may deliver the infringement notice (or a copy of it) in person to the person alleged to have committed an infringement offence or send the notice by post addressed to that person's last known place of residence or business.
3: An infringement notice (or a copy of it) sent by post to a person under subsection (2) is to be treated as having been served on that person when it was posted.
4: An infringement notice must be in the prescribed form and must contain the following particulars:
a: such details of the alleged infringement offence as are sufficient fairly to inform a person of the time, place, and nature of the alleged offence; and
b: the amount of the infringement fee; and
c: the address of the place at which the infringement fee may be paid; and
d: the time within which the infringement fee must be paid; and
e: a summary of the provisions of section 21(10)
f: a statement that the person served with the notice has a right to request a hearing; and
g: a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing; and
h: any other particulars that may be prescribed.
5: If an infringement notice has been issued under this section, the procedure under section 21 1992 No 96 ss 56B(1)﻿(a) 56E(2)–(5)
139: Revocation of infringement notice
1: The regulator may revoke an infringement notice issued under section 138 section 21
2: An infringement notice is revoked by giving written notice to the person to whom it was issued that the notice is revoked. 1992 No 96 s 56B(2), (3)
140: Payment of infringement fees
All infringement fees paid in respect of infringement offences must be paid into a Crown Bank Account. 1992 No 96 s 56G
7: Criminal proceedings
141: Meaning of enforcement action
In this subpart, unless the context otherwise requires, enforcement action
a: in relation to the regulator, the filing of a charging document under section 14
b: in relation to a person other than the regulator, the filing of a charging document under section 14
142: Person may notify regulator of interest in knowing of enforcement action taken by regulator
1: A person may notify the regulator in the manner determined by the regulator that the person has an interest in knowing whether a particular incident, situation, or set of circumstances has been, is, or is to be subject to the taking of enforcement action by the regulator.
2: If the regulator receives a notification under subsection (1), the regulator must—
a: establish whether—
i: it or any other regulator has made a decision to take any enforcement action in respect of the incident, situation, or set of circumstances; or
ii: any regulatory agency has made a decision to take prosecution action in respect of the same incident, situation, or set of circumstances; and
b: notify the person in writing of that decision, but not the reasons for the decision. 1992 No 96 s 54
143: Prosecutions by regulator
Subject to section 144 1992 No 96 s 54A
144: Private prosecutions
1: A person other than the regulator may file a charging document in respect of an offence under this Act if—
a: the regulator has not taken, and does not intend to take, enforcement action against any person in respect of the same incident, situation, or set of circumstances; and
b: a regulatory agency has not taken, and does not intend to take, prosecution action under any other Act against any person in respect of the same incident, situation, or set of circumstances; and
c: any person has received notification from the regulator under section 142(2)﻿(b)
i: has taken enforcement action or prosecution action against any person in respect of the same incident, situation, or set of circumstances; and
ii: intends to take any enforcement action or prosecution action.
2: For the purposes of subsection (1), if the regulator or a regulatory agency is unable to take enforcement action or prosecution action against any person in respect of the same incident, situation, or set of circumstances because the person is dead, the regulator or regulatory agency (as the case may be) must be treated as intending to take enforcement action or prosecution action.
3: Despite subsection (1)﻿(b), a person other than the regulator may file a charging document even though a regulatory agency has taken or intends to take prosecution action if—
a: the person has leave of the court; and
b: the person has received notification from the regulator under section 142(2)﻿(b)
4: If a person applies for leave under subsection (3)﻿(a), the Registrar must refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial, or such part of that evidence that the person considers is sufficient to justify a trial.
5: Section 26(2) to (5)
a: a reference to accepting a charging document for filing must be read as if it were a reference to granting leave:
b: in determining whether the proposed prosecution is an abuse of process in accordance with section 26(3)﻿(b) of that Act, the Judge must take into account—
i: whether allowing the proposed prosecution to proceed would be consistent with the purpose of this Act; and
ii: whether the proposed prosecution is in the public interest. 1992 No 96 s 54A(2), (3)
145: Continuing or repeated matters
Nothing in this Act prevents the regulator or another person from taking enforcement action in respect of an incident, situation, or set of circumstances despite enforcement action having been taken in respect of that incident, situation, or set of circumstances, if the incident, situation, or set of circumstances is continuing or repeated. 1992 No 96 s 54E Limitation periods for prosecutions
146: Limitation period for prosecutions brought by regulator
1: Despite section 25
a: within 12 months after the date on which the incident, situation, or set of circumstances to which the offence relates first became known, or ought reasonably to have become known, to the regulator:
b: within 6 months after the date on which a coroner completes and signs a certificate of findings under section 94
c: if an enforceable undertaking has been given in relation to the offence, within 6 months after—
i: the enforceable undertaking is contravened; or
ii: it comes to the notice of the regulator that the enforceable undertaking has been contravened; or
iii: the regulator has agreed under section 128
2: Subsection (1)﻿(a) is subject to section 147 1992 No 96 s 54B
147: Extension of time if regulator needs longer to decide whether to bring prosecution
1: This section applies if the regulator considers that it will not be able to file a charging document by the end of the 12-month period specified in section 146(1)﻿(a)
2: The District Court may, on application by the regulator made before the end of the 12-month period specified in section 146(1)﻿(a)
3: The court must not grant an extension under subsection (2) unless it is satisfied that—
a: the regulator reasonably requires longer than the 12-month period to decide whether to file a charging document; and
b: the reason for requiring the longer period is that the investigation of the events and issues surrounding the alleged offence is complex or time consuming; and
c: it is in the public interest in the circumstances that a charging document is able to be filed after the 12-month period expires; and
d: filing the charging document after the 12-month period expires will not unfairly prejudice the proposed defendant in defending the charge.
4: The court must give the following persons an opportunity to be heard:
a: the regulator:
b: the proposed defendant:
c: any other person who has an interest in whether or not a charging document should be filed, being a person described in section 142(1) 1992 No 96 s 54D
148: Limitation period for private prosecutions
Despite section 25
a: within 2 years after the date on which the incident, situation, or set of circumstances to which the offence relates first became known, or ought reasonably to have become known, to the regulator:
b: within 6 months after the date on which a coroner completes and signs a certificate of findings under section 94
c: within 3 months after the date of expiry of any extension granted to the regulator under section 147(2)
d: if an enforceable undertaking has been given in relation to the offence, within 6 months after—
i: the enforceable undertaking is contravened; or
ii: it comes to the notice of the regulator that the enforceable undertaking has been contravened; or
iii: the regulator has agreed under section 128
149: Certain proceedings may be brought after end of limitation period if fresh evidence discovered
Despite anything in section 146 147 148
a: proceedings for an offence against section 47
b: proceedings for an offence against section 48 Model Work Health and Safety Act (Aust) s 232(2)
8: Sentencing for offences
150: Application of subpart
This subpart applies if a court convicts a person (an offender Model Work Health and Safety Act (Aust) s 234
151: Sentencing criteria
1: This section applies when a court is determining how to sentence or otherwise deal with an offender convicted of an offence under section 47 48 49
2: The court must apply the Sentencing Act 2002
a: sections 7 to 10
b: the purpose of this Act; and
c: the risk of, and the potential for, illness, injury, or death that could have occurred; and
d: whether death, serious injury, or serious illness occurred or could reasonably have been expected to have occurred; and
e: the safety record of the person (including, without limitation, any warning, infringement notice, or improvement notice issued to the person or enforceable undertaking agreed to by the person) to the extent that it shows whether any aggravating factor is present; and
f: the degree of departure from prevailing standards in the person's sector or industry as an aggravating factor; and
g: the person's financial capacity or ability to pay any fine to the extent that it has the effect of increasing the amount of the fine. 1992 No 96 s 51A
152: Order for payment of regulator's costs in bringing prosecution
1: On the application of the regulator, the court may order the offender to pay to the regulator a sum that it thinks just and reasonable towards the costs of the prosecution (including the costs of investigating the offending and any associated costs).
2: If the court makes an order under subsection (1), it must not make an order under section 4
3: If the court makes an order under subsection (1) in respect of a Crown organisation, any costs and fees awarded must be paid from the funds of that organisation. 1967 No 129 s 4(5)
153: Adverse publicity orders
1: A court may make an order (an adverse publicity order
a: to take either or both of the following actions within the period specified in the order:
i: to publicise, in the way specified in the order, the offence, its consequences, the penalty imposed, and any other related matter:
ii: to notify a specified person or specified class of persons, in the way specified in the order, of the offence, its consequences, the penalty imposed, and any other related matter; and
b: to give the regulator, within 7 days after the end of the period specified in the order, evidence that the action or actions have been taken by the offender in accordance with the order.
2: The court may make an adverse publicity order on its own initiative or on the application of the person prosecuting the offence.
3: If the offender fails to give evidence to the regulator in accordance with subsection (1)﻿(b), the regulator, or a person authorised in writing by the regulator, may take the action or actions specified in the order.
4: However, the regulator may apply to the court for an order authorising the regulator, or a person authorised in writing by the regulator, to take the action or actions specified in the order if—
a: the offender gives evidence to the regulator in accordance with subsection (1)﻿(b); and
b: despite that evidence, the regulator is not satisfied that the offender has taken the action or actions specified in the order in accordance with the order.
5: If the court makes an order under subsection (1), the regulator may recover as a debt due to the regulator in any court of competent jurisdiction any reasonable expenses incurred in taking an action under subsection (3) or (4). Model Work Health and Safety Act (Aust) s 236
154: Orders for restoration
1: A court may make an order requiring an offender to take the specified steps, within a specified period, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender's power to remedy.
2: The period in which an order under this section must be complied with may be extended, or further extended, by order of the court, but only if an application for the extension is made before the expiry of that period.
3: The court may not make an order under this section for any matter in respect of which an order for reparation is made under section 32 Model Work Health and Safety Act (Aust) s 237
155: Work health and safety project orders
1: A court may make an order requiring an offender to undertake a specified project for the general improvement of work health and safety within the period specified in the order.
2: The order may specify conditions that must be complied with in undertaking the specified project. Model Work Health and Safety Act (Aust) s 238
156: Release on giving of court-ordered enforceable undertaking
1: The court may (with or without recording a conviction) adjourn a proceeding for up to 2 years and make an order for the release of the offender if the offender gives an undertaking with specified conditions (a court-ordered enforceable undertaking
2: A court-ordered enforceable undertaking must specify the following conditions:
a: that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned:
b: that the offender does not commit, during the period of the adjournment, any offence against this Act or regulations:
c: that the offender observes any special conditions imposed by the court.
3: An offender who has given a court-ordered enforceable undertaking under this section may be called on to appear before the court by order of the court.
4: An order under subsection (3) must be served on the offender not less than 4 days before the time specified in it for the appearance.
5: If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the court-ordered enforceable undertaking, it must discharge the offender without any further hearing of the proceeding.
6: The regulator must publish, on an Internet site maintained by or on behalf of the regulator, notice of a court-ordered enforceable undertaking made in accordance with subsection (1), unless the court orders otherwise. Model Work Health and Safety Act (Aust) s 239
157: Injunctions
If a court finds a person guilty of an offence against this Act or regulations, the court may issue an injunction requiring the offender to cease any particular conduct or action that constitutes a contravention of this Act or regulations. Model Work Health and Safety Act (Aust) s 240
158: Training orders
The court may make an order requiring an offender to undertake, or arrange for 1 or more workers to undertake, a specified course of training. Model Work Health and Safety Act (Aust) s 241
159: Offence to fail to comply with order
1: A person must not, without reasonable excuse, fail to comply with an order under this subpart.
2: Subsection (1) does not apply to—
a: an order made under section 156
b: an injunction granted under section 157
3: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $50,000:
b: for any other person, to a fine not exceeding $250,000. Model Work Health and Safety Act (Aust) s 242
9: General provisions relating to proceedings
160: State of mind of directors, employees, or agents attributed
1: If, in any civil proceedings under this Act in respect of any conduct engaged in by an individual, being conduct in relation to which any provision of this Act or regulations applies, it is necessary to establish the state of mind of that individual, it is sufficient to show that an employee or agent of the individual acting within the scope of his, her, or its actual or apparent authority, had that state of mind.
2: If, in any civil or criminal proceedings under this Act in respect of any conduct engaged in by a person other than an individual, being conduct in relation to which any provision of this Act or regulations applies, it is necessary to establish the state of mind of the person, it is sufficient to show that an officer, employee, or agent of the person, acting within the scope of his or her actual or apparent authority, had that state of mind.
3: In this section, state of mind Model Work Health and Safety Act (Aust) s 244(2), (3)
161: Conduct of directors, employees, or agents attributed
1: Conduct engaged in on behalf of an individual ( person A
a: an employee or agent of person A, acting within the scope of his, her, or its actual or apparent authority:
b: any other person at the direction or with the consent or agreement (whether express or implied) either of person A or an employee or agent of person A, given within the scope of the actual or apparent authority of the employee or agent.
2: Conduct engaged in on behalf of a person (other than an individual) by any of the following must be treated, for the purposes of this Act, as having been engaged in also by that person:
a: an officer, employee, or agent of the person acting within the scope of his, her, or its actual or apparent authority:
b: any other person at the direction or with the consent or agreement (whether express or implied) of an officer, employee, or agent of the person, given within the scope of the actual or apparent authority of the officer, employee, or agent. Model Work Health and Safety Act (Aust) s 244(1)
162: Proceedings involving classified security information
Schedule 4
10: Inspectors and health and safety medical practitioners
Inspectors
163: Appointment of inspectors
1: The regulator may, by notice in writing, appoint any of the following as an inspector:
a: a public service employee as defined in section 65
b: an employee of the State services (within the meaning of the Public Service Act 2020
c: a statutory officer:
d: a prescribed person:
e: an employee of the regulator:
f: any other person who the regulator is satisfied—
i: is suitably qualified and trained:
ii: belongs to a class of persons who are suitably qualified and trained to exercise any or all of the powers of, and carry out any or all of the duties of, an inspector under relevant health and safety legislation.
2: An inspector's compliance powers are subject to any conditions or limitations specified in the notice of the inspector's appointment.
3: However, the exercise of a compliance power by an inspector is not invalid merely because it did not comply with the conditions specified in the notice of the inspector's appointment. Model Work Health and Safety Act (Aust) ss 156, 161 Section 163(1)﻿(a) replaced 7 August 2020 section 135 Public Service Act 2020 Section 163(1)﻿(b) amended 7 August 2020 section 135 Public Service Act 2020
164: Identity cards
1: The regulator must give each inspector an identity card that—
a: states the person's name and appointment as an inspector; and
b: includes any other matter prescribed by regulations.
2: An inspector must, when exercising compliance powers under this Act, produce his or her identity card for inspection on request.
3: A person who ceases to be an inspector must as soon as practicable return the identity card to the regulator. Model Work Health and Safety Act (Aust) s 157
165: Suspension and ending of appointment of inspectors
1: The regulator may suspend or end the appointment of an inspector at any time.
2: To avoid doubt, a person's appointment as an inspector ends when the person ceases to be eligible for appointment as an inspector. Model Work Health and Safety Act (Aust) s 159
166: Inspectors subject to regulator's directions
1: An inspector (whether or not an employee) is subject to directions from the regulator that appointed him or her in the exercise of the inspector's compliance powers.
2: A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.
3: A failure to comply with a direction under subsection (1) does not invalidate the exercise of an inspector's compliance power. Model Work Health and Safety Act (Aust) s 162
167: Regulator has powers of inspector
The regulator has all the powers that an inspector has under this Act.
168: Powers of entry and inspection
1: Subject to section 169
a: conduct examinations, tests, inquiries, and inspections, or direct a PCBU or a person who is or appears to be in charge of the workplace to conduct examinations, tests, inquiries, or inspections:
b: be accompanied and assisted by any other person and bring into the workplace any equipment necessary to carry out the inspector's functions:
c: take photographs and measurements and make sketches and recordings:
d: require the PCBU or a person who is or appears to be in charge of the workplace to ensure that the workplace or any place or thing in the workplace specified by the inspector is not disturbed for a reasonable period pending examination, test, inquiry, or inspection:
e: require the PCBU or a person who is or appears to be in charge of the workplace to—
i: produce information relating to the work, the workplace, or the workers who work there; and
ii: produce information relating to the PCBU's compliance with relevant health and safety legislation; and
iii: permit the inspector to examine and make copies of, or take extracts from, the information:
f: require the PCBU or a person who is or appears to be in charge of the workplace to make or provide statements, in any form and manner that the inspector specifies.
2: An inspector may do any of the things referred to in subsection (1), whether or not—
a: the inspector or the person whom the inspector is dealing with is in the workplace; or
b: the workplace is still a workplace; or
c: the workers work in the workplace; or
d: the PCBU is still a PCBU in respect of the workplace; or
e: the workers still carry out work in any capacity for the PCBU; or
f: in respect of any information, the information is—
i: in the workplace; or
ii: in the place where the inspector is; or
iii: in another place.
3: Despite subsection (1), an inspector must not enter a defence area except in accordance with a written agreement between the regulator and the Chief of Defence Force that is entered into for the purposes of this section and is for the time being in force.
4: Despite subsection (1)﻿(e), if all or any part of the information relates to a person's health status and identifies the person, an inspector must not, without that person's consent,—
a: require the production of information; or
b: examine the information; or
c: make a copy of, or take an extract from, the information.
5: Nothing in this section affects the application of section 60 of the Evidence Act 2006.
6: In this section, information 1992 No 96 s 31
169: Power to enter homes
1: Despite section 168(1) and (2)
a: enter a workplace that is, or is within, a home; or
b: enter a workplace through a home.
2: An issuing officer may, on an application made by an inspector in the manner provided in subpart 3 of Part 4
a: is a workplace or has a workplace within it; or
b: is the only practicable means through which the inspector may enter the workplace.
3: A warrant issued under subsection (2) authorises an inspector to exercise only the powers specified in section 168 1992 No 96 s 31
170: Power to deal with cause of imminent danger
1: This section applies if an inspector who enters a workplace under section 168 169 cause of imminent danger
2: The inspector may seize, destroy, or take any other action to reduce or remove the cause of imminent danger.
3: The inspector must,—
a: before exercising the power under subsection (2), if it is practicable to do so, take a sample of the cause of imminent danger:
b: as soon as practicable after exercising the power under subsection (2), give the PCBU written notice of the action taken in relation to the cause of imminent danger. Model Work Health and Safety Act (Aust) s 176; Health and Safety at Work etc. Act 1974 (UK) s 25
171: Notice of entry
1: If an inspector enters any workplace under this Act and is unable, despite reasonable efforts, to find any person in charge, the inspector must before leaving the workplace leave a written notice stating—
a: the inspector's identity; and
b: the inspector's contact information; and
c: the date and time of entry; and
d: the inspector's reasons for entering.
2: In this section, contact information
a: the name of the inspector; and
b: 1 or more of the following:
i: telephone number:
ii: email address:
iii: physical or postal address. 1992 No 96 s 32(2)
172: Power to take samples and other objects and things
1: An inspector who enters a workplace or a former workplace under section 168 169
a: monitoring conditions in the workplace; or
b: determining the nature of any material or substance in the workplace; or
c: determining whether relevant health and safety legislation has been, is being, or is likely to be complied with; or
d: gathering evidence to support the taking of enforcement action.
2: This section does not allow an inspector to take a sample from a person's body unless the inspector has that person's informed consent to the taking of the sample.
3: If an inspector removes or retains any sample, material, substance, or thing under subsection (1), the inspector must,—
a: at the time he or she removes or retains the sample, material, substance, or thing or as soon as practicable after doing so, give the PCBU written notice of—
i: what has been (or is being) removed or retained; and
ii: why it has been (or is being) removed or retained; and
iii: where it will be kept in the meantime; and
b: subject to subsections (4) and (5), within 5 working days of removing or retaining any sample, material, substance, or thing, give the PCBU written notice of whether the inspector intends to return it or destroy it.
4: If it is practicable to do so, the inspector must return the sample, material, substance, or thing to its owner—
a: when it is no longer required for any purpose under relevant health and safety legislation (or any other enactment); or
b: if a court earlier orders its return.
5: The inspector may destroy any removed or retained sample, material, substance, or thing if—
a: it is perishable and has become rotten or has otherwise deteriorated; or
b: it is perishable and is likely to become rotten or perish before it can be dealt with under subsection (4); or
c: it is likely to pose a risk to public health.
6: In addition, sections 154 155 159
7: The provisions of the Search and Surveillance Act 2012
a: the reference in section 159(1) section 156(2)
i: any person from whom the sample, material, substance, or thing was seized:
ii: the PCBU:
iii: any other person who, in the opinion of the inspector, may be affected by the forfeiture of the sample, material, substance, or thing; and
b: references to a thing were to any sample, material, substance, or thing; and
c: references to seized or produced were to removed or retained; and
d: references to the person in whose custody the thing is were to the inspector; and
e: all other necessary modifications were made.
8: Any sample, material, substance, or thing forfeited to the Crown may be destroyed or otherwise disposed of as the inspector directs. 1992 No 96 s 33
173: Power of regulator to authorise making of applications for search warrants
1: A regulator may authorise a specified person to enter and search a place, vehicle, or other thing for the purpose of ascertaining whether a person has engaged in or is engaging in conduct that contravenes or may contravene relevant health and safety legislation if the regulator is satisfied that there are reasonable grounds—
a: to suspect that person has engaged in or is engaging in conduct that constitutes or may constitute such a contravention; and
b: to believe that the search will find evidential material in or on any part of the place, vehicle, or thing.
2: A specified person authorised under subsection (1) may enter and search the place, vehicle, or other thing if—
a: the occupier of the place, or the person in charge of the vehicle or thing, (as the case may be) consents; or
b: the specified person obtains a warrant under subsection (3).
3: An issuing officer may issue a search warrant in relation to a place, vehicle, or thing, on an application made in the manner provided by subpart 3 of Part 4
a: to suspect that a person has engaged in or is engaging in conduct that contravenes or may contravene any provision of relevant health and safety legislation; and
b: to believe that the search will find evidential material in or on any part of the place, vehicle, or thing.
4: In this section, specified person
a: an inspector; or
b: an employee of the regulator; or
c: any other person who, the regulator is satisfied,—
i: is suitably qualified and trained:
ii: belongs to a class of persons who are suitably qualified and trained to act under this section.
5: Despite subsection (4), a constable may apply for a warrant to be issued under subsection (3) without an authorisation from a regulator under subsection (1).
6: The provisions of subpart 2 of Part 3 Part 4 sections 118 119 Model Work Health and Safety Act (Aust) s 167
174: Continuation of powers of entry and inspection without search warrants
An inspector who, in the course of exercising a power under section 168 169 section 173 section 168 or 169
175: Power to require name and address
1: An inspector may require a person to provide the person's name and residential address if—
a: the inspector finds the person committing an offence against relevant health and safety legislation; or
b: the inspector finds the person in circumstances that lead, or has information that leads, the inspector to reasonably suspect the person has committed an offence against relevant health and safety legislation.
2: When asking a person to provide his or her name and residential address, the inspector must—
a: tell the person the reason for the requirement to provide his or her name and residential address; and
b: warn the person that it is an offence to fail to provide his or her name and residential address, unless the person has a reasonable excuse.
3: If the inspector reasonably believes that the name and residential address a person provides are false, the inspector may require the person to give evidence of their correctness. Model Work Health and Safety Act (Aust) s 185
176: Duty to assist inspectors
1: Any person on whom a duty is imposed by relevant health and safety legislation must give all reasonable assistance to enable an inspector to enter, inspect, examine, inquire, or exercise any other power under relevant health and safety legislation.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $10,000:
b: for any other person, to a fine not exceeding $50,000. 1992 No 96 s 47
177: Immunity of inspectors and persons assisting inspectors or regulator
The following persons are not liable in any criminal or civil proceedings for any act done or omitted to be done in good faith in the performance or exercise, or intended performance or exercise, of an inspector’s functions or powers under relevant health and safety legislation:
a: an inspector:
b: a person called on to assist an inspector:
c: a person called on to assist the regulator. Model Work Health and Safety Act (Aust) s 270(1)
178: Offence for failing to provide inspector with correct name and residential address
1: A person must not, without reasonable excuse, refuse or fail to comply with a requirement under section 175(1) or (3)
2: A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding $10,000. Model Work Health and Safety Act (Aust) s 185
179: Offence to hinder or obstruct inspector
1: A person must not, without reasonable cause, hinder or obstruct an inspector in exercising his or her compliance powers, or cause or attempt to cause any other person to do so.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $10,000:
b: for any other person, to a fine not exceeding $50,000. 1992 No 96 s 48
180: Offence to impersonate inspector
1: A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding $10,000. 1992 No 96 s 58 Health and safety medical practitioners
181: Appointment of health and safety medical practitioners
1: The regulator may appoint any medical practitioner to be a health and safety medical practitioner.
2: A health and safety medical practitioner must exercise the powers of a health and safety medical practitioner subject to the directions given and conditions (if any) for the time being imposed by the regulator.
3: Every health and safety medical practitioner must have a certificate of appointment in a form approved by the regulator. 1992 No 96 s 34(1)–(3)
182: Suspension and ending of appointment of health and safety medical practitioners
1: The regulator may suspend or end the appointment of a health and safety medical practitioner at any time.
2: A person’s appointment as a health and safety medical practitioner ends when the person ceases to be a medical practitioner. 1992 No 96 s 34(4)
183: Powers of entry and inspection of health and safety medical practitioners
1: For the purposes of relevant health and safety legislation, a health and safety medical practitioner may, at any reasonable time, enter a workplace and—
a: conduct examinations, tests, inquiries, and inspections, or direct a PCBU to conduct examinations, tests, inquiries, or inspections:
b: be accompanied and assisted by any other person and bring into the workplace any equipment necessary to carry out the health and safety medical practitioner's functions:
c: take photographs and measurements and make sketches and recordings:
d: require a PCBU to produce documents or information relating to the workplace or the workers who work there and permit the health and safety medical practitioner to examine and make copies or extracts of the documents and information.
2: Despite subsection (1), a health and safety medical practitioner must not, except with the consent of an occupier or pursuant to a warrant issued under subsection (4),—
a: enter a workplace that is, or is within, a home; or
b: enter a workplace through a home.
3: Despite subsection (1), a health and safety medical practitioner must not enter a defence area except in accordance with a written agreement between the regulator and the Chief of Defence Force that is entered into for the purposes of this section and is for the time being in force.
4: An issuing officer may, on an application made by a health and safety medical practitioner in the manner provided in subpart 3 of Part 4 of the Search and Surveillance Act 2012, issue a warrant to enter a home (or part of a home) if he or she is satisfied that there are reasonable grounds to believe that the home—
a: is a workplace or has a workplace within it; or
b: is the only practicable means through which the health and safety medical practitioner may enter the workplace. 1992 No 96 s 35
184: Health and safety medical practitioners may require workers to be medically examined
1: A health and safety medical practitioner may exercise the powers under this section if satisfied that—
a: any worker is, has been, or may have been exposed to a significant hazard while at work; and
b: by examining the worker or causing a sample taken from the worker to be tested or analysed, it is likely to be possible to determine—
i: whether the worker is or has been exposed to the hazard; or
ii: the extent to which the worker is or has been exposed to the hazard; or
iii: the extent to which the worker's health has been or may have been affected by exposure to the hazard.
2: A health and safety medical practitioner may, by notice in writing to the worker,—
a: require the worker—
i: to be examined by a health practitioner; and
ii: to provide to the health and safety medical practitioner a certificate from the health practitioner as to the worker's fitness for work:
b: require the worker—
i: to allow a person (or person of a kind) specified in the notice to take from the worker a sample of a kind specified in the notice; and
ii: to have the sample tested or analysed by a person (or person of a kind) specified in the notice in a manner specified in the notice; and
iii: to provide the health and safety medical practitioner with a written report from the person who tests or analyses the sample on the results of the tests and analyses done.
3: In this section and in section 185 significant hazard
a: death; or
b: notifiable injury or illness the severity of whose effects on any person depends (entirely or among other things) on the extent or frequency of the person's exposure to the hazard; or
c: notifiable injury or illness that does not usually occur, or usually is not easily detectable, until a significant time after exposure to the hazard. 1992 No 96 s 36
185: Health and safety medical practitioners may suspend workers in certain cases
1: Subject to subsection (2), a health and safety medical practitioner may, by written notice to the worker (a copy of which must be given to the PCBU),—
a: require the worker to cease doing anything specified in the notice that, in the health and safety medical practitioner's opinion, constitutes, causes, or increases the worker's exposure to the hazard; and
b: require the PCBU to ensure that the worker ceases doing the thing or things specified in the notice.
2: A health and safety medical practitioner may exercise the powers under subsection (1) if satisfied that—
a: a worker—
i: is, has been, or may have been exposed to a significant hazard while at work; and
ii: has failed or refused, without reasonable cause, to comply with a notice under section 184
b: a worker has been so harmed by exposure to a significant hazard while at work that the worker should not continue to be exposed to the hazard.
3: Every worker and PCBU must comply with a suspension notice served under this section. 1992 No 96 s 37
186: Immunity of health and safety medical practitioners and persons assisting health and safety medical practitioners
A health and safety medical practitioner or a person called on to assist a health and safety medical practitioner is not liable in any criminal or civil proceedings for any act done or omitted to be done in good faith in the performance or exercise, or intended performance or exercise, of his or her functions or powers under relevant health and safety legislation.
187: Offence to hinder or obstruct health and safety medical practitioner
1: A person must not, without reasonable cause, hinder or obstruct a health and safety medical practitioner in exercising his or her compliance powers, or cause or attempt to cause any other person to do so.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $10,000:
b: for any other person, to a fine not exceeding $50,000. 1992 No 96 s 38
188: Offence to impersonate health and safety medical practitioner
1: A person who is not a health and safety medical practitioner must not, in any way, hold himself or herself out to be a health and safety medical practitioner.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding $10,000. 1992 No 96 s 38
5: Miscellaneous provisions
1: Administration
189: Role of WorkSafe
Except to the extent that a designation under section 191
190: Functions and powers of regulator other than WorkSafe
Subject to its scope of designation, a regulator other than WorkSafe has the following functions under this Act:
a: to monitor and enforce compliance with relevant health and safety legislation:
b: to develop codes of practice:
c: to develop safe work instruments:
d: to publish information about—
i: its approach to enforcing compliance with relevant health and safety legislation (including where a provision of the relevant health and safety legislation overlaps with another enactment); and
ii: its performance standards for completing investigations in relation to enforcing compliance with relevant health and safety legislation:
e: to provide guidance, advice, and information on work health and safety to—
i: persons who have duties under the relevant health and safety legislation; and
ii: the public:
f: to promote and support research, education, and training in work health and safety:
g: to collect, analyse, and publish statistics and other information relating to work health and safety:
h: to engage in, promote, and co-ordinate the sharing of information with other regulatory agencies:
i: to foster a co-operative and consultative relationship between persons who have duties under the relevant health and safety legislation and the persons to whom they owe duties and their representatives in relation to work health and safety:
j: to promote and co-ordinate the implementation of work health and safety initiatives by establishing partnerships or collaborating with other agencies or interested persons in a coherent, efficient, and effective way:
k: to perform any other functions or exercise any other powers conferred on the regulator by or under—
i: this Act or regulations; or
ii: any other enactment. Model Work Health and Safety Act (Aust) ss 152, 153(2) Designated agencies
191: Designated agencies
1: The Prime Minister may designate an agency listed in subsection (3) as a designated agency, having regard to the specialist knowledge of that agency.
2: A designation under subsection (1) must be made by notice in the Gazette scope of designation
a: a particular industry, sector, or type of work or circumstance; and
b: the functions or powers (or both) of the regulator under this Act, or any other enactment, that the designated agency may perform or exercise in respect of the particular industry, sector, or type of work or circumstance.
3: The agencies are—
a: the chief executive of a department or departmental agency (within the meaning of section 5
b: a Crown entity (within the meaning of section 7
c: the Commissioner of Police:
d: the Chief of Defence Force.
4: A designation under this section is secondary legislation ( see Part 3 1992 No 96 s 28B The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 191(3)﻿(a) amended 7 August 2020 section 135 Public Service Act 2020 Section 191(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
192: Role of designated agencies
1: If a designated agency has been given a scope of designation under section 191
2: A designated agency or its inspectors must not perform any functions or exercise any powers in respect of a matter that is outside its scope of designation unless WorkSafe (or, if relevant, another designated agency) has given its consent for the designated agency to do so.
3: However, a failure to obtain consent under subsection (1) or (2) does not affect the validity of the performance of any function or exercise of any power by WorkSafe or another agency or by the designated agency (as the case may be).
193: Proceedings not to be questioned for want of form
No action by a regulator or an inspector and no process or proceedings may be dismissed, set aside, or held invalid by any court by reason only of a regulator or the inspector acting outside its scope of designation or of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice. Model Work Health and Safety Act (Aust) s 208 Joint policy directions
194: Designated agency must give effect to joint policy directions
1: Subject to any enactment or rule of law, a designated agency must, in performing functions and exercising powers under this Act or any other enactment, give effect to any joint policy directions given to it by the Minister and the Minister responsible for the designated agency.
2: A direction given under subsection (1) must be in writing and signed by the Ministers.
3: Sections 113 115
a: all references to a Crown entity or entity being read as references to a designated agency; and
b: any other necessary modifications. 1992 No 96 s 28B(2) Health and Safety at Work Strategy and workplace injury prevention
195: Health and Safety at Work Strategy
1: The Minister must publish a strategy, called the Health and Safety at Work Strategy, that sets out the Government's overall direction in improving the health and safety of workers.
2: The strategy must be developed jointly with WorkSafe.
3: The Minister must make reasonable efforts to publish the first strategy within 24 months after the commencement of this section.
4: The Minister may amend or replace the strategy at any time.
5: The strategy must—
a: identify any significant issues relating to capacity or capability in the work health and safety system and any plan for addressing the issues; and
b: take account of ACC's injury prevention priorities.
6: The strategy, or amendments to it or replacement of it, must be developed by a process that involves consultation—
a: with regulatory agencies; and
b: with other persons who have an interest in work health and safety in New Zealand or with organisations representing those persons.
7: The Minister must make publicly available, and present to the House of Representatives, a copy of any strategy, amendment, or replacement as soon as practicable after the strategy, amendment, or replacement has been published or made under this section.
196: Workplace injury prevention
1: Section 264A
2: Section 264B
a: jointly undertaken by ACC and WorkSafe; or
b: undertaken by WorkSafe and partly or wholly funded by ACC. Information sharing
197: Sharing of information between regulator and regulatory agencies
1: Subject to any enactment,—
a: the regulator may provide a regulatory agency with any information, or a copy of any document, that it—
i: holds in relation to the performance or exercise of its functions, duties, or powers under or in relation to the relevant health and safety legislation; and
ii: considers may assist the regulatory agency in the performance or exercise of the regulatory agency's functions, duties, or powers under or in relation to any enactment; and
b: a regulatory agency may provide the regulator with any information, or a copy of any document, that it—
i: holds in relation to the performance or exercise of its functions, duties, or powers under or in relation to any enactment; and
ii: considers may assist the regulator in the performance or exercise of its functions, duties, or powers under or in relation to the relevant health and safety legislation.
2: If subsection (1)﻿(a) or (b) applies, the regulator or regulatory agency (as the case may be) may impose conditions that it thinks fit relating to the provision of the information or document, including conditions relating to—
a: the storage and use of, or access to, anything provided:
b: the copying, returning, or disposing of copies of any documents provided.
3: However, if ACC receives any information or document from the regulator under subsection (1), it must not use that information or document in connection with making decisions about cover or entitlements under the Accident Compensation Act 2001
4: Nothing in this section limits the Privacy Act 2020
5: This section applies despite anything to the contrary in any contract, deed, or document. Section 197(4) amended 1 December 2020 section 217 Privacy Act 2020
198: Requirement of other regulator to notify WorkSafe of notifiable event
1: This section applies if a regulator other than WorkSafe receives a notification of a notifiable event under section 56
2: The regulator must, as soon as practicable,—
a: supply a copy of the notification to WorkSafe; and
b: advise WorkSafe of whether it intends to investigate the event and, if so, whether the investigation will be carried out under this Act or another enactment.
199: Requirement of medical officer of health to notify regulator of work-related notifiable disease or hazardous substances injury
1: This section applies if a medical officer of health receives—
a: a notification under section 74
b: a notification under section 143
2: The medical officer of health must, as soon as practicable after receiving the notification,—
a: advise the regulator of the notification; and
b: provide the regulator with the following information:
i: the name of the person who suffers or suffered from the notifiable disease or injury caused by the hazardous substance; and
ii: the nature of the disease or injury.
3: Except as required by subsection (2)﻿(b), the medical officer of health must comply with the Privacy Act 2020 Section 199(3) amended 1 December 2020 section 217 Privacy Act 2020
200: Coroner may call for report on fatal accident
If requested by a coroner, the regulator must give the coroner a written report of an investigation that the regulator has carried out, or is carrying out, on the circumstances of any fatal accident that occurs at a workplace. 1992 No 96 s 28 Funding levy
201: Funding levy
1: For the purpose of recovering certain Crown costs, the Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations requiring the persons specified in subsection (2) to pay a levy (a funding levy
2: The funding levy is payable by—
a: every employer, on the amount of earnings paid or deemed to have been paid by the employer to the employer's employees:
b: every earner who has earnings as a self-employed person, on the amount of earnings as a self-employed person derived or deemed to have been derived by the earner:
c: every shareholder-employee to whom section RD 3B RD 3C
3: The funding levy must be added to, and is deemed to be part of, the Work Account levy, and—
a: the funding levy is payable, collected, and remitted, and penalties are payable in respect of it, as if it were the Work Account levy; and
b: ACC and the Commissioner of Inland Revenue have all of the powers in respect of the funding levy that they have in respect of the Work Account levy; and
c: the Commissioner of Inland Revenue is not required to refer separately to or account separately for, or identify, any funding levy in performing his or her functions in relation to the Work Account levy or the funding levy.
4: ACC must, by the 20th day of the month after the month in which ACC receives any funding levy from the Commissioner of Inland Revenue, pay the funding levy to the chief executive.
5: ACC may charge WorkSafe a fee for collecting the funding levy.
6: The chief executive must pay into a Crown Bank Account all of the funding levy that ACC pays to the chief executive.
7: In this section,— certain Crown costs
a: WorkSafe carrying out its functions under any enactment:
b: a designated agency performing functions or exercising powers under this Act:
c: the Crown administering the relevant health and safety legislation:
d: collecting the funding levy chief executive earner earnings earnings as a self-employed person section 6(1) Work Account levy section 168 168A 168B 211
8: To avoid doubt, this section does not require all of the Crown's costs referred to in the definition of certain Crown costs to be recovered by the funding levy.
9: Regulations under this section are secondary legislation ( see Part 3 1992 No 96 s 59 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 201(2)﻿(c) amended 29 March 2018 section 418 Taxation (Annual Rates for 2017–18, Employment and Investment Income, and Remedial Matters) Act 2018 Section 201(9) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
202: Consultation requirement relating to funding levy
The Minister must not recommend the making of regulations for the purposes of section 201
a: consulting WorkSafe and ACC; and
b: having regard to any recommendations of WorkSafe made under section 10(d) 1992 No 96 s 59(7)
2: Authorisations
203: Meaning of authorised
In this subpart, authorised Model Work Health and Safety Act (Aust) s 40
204: Requirements for authorisation of workplaces
1: A person must not conduct a business or undertaking at a workplace or direct or allow a worker to carry out work at a workplace if—
a: regulations require the workplace, or class of workplaces, to be authorised; and
b: the workplace is not authorised in accordance with regulations.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $50,000:
b: for any other person, to a fine not exceeding $250,000. Model Work Health and Safety Act (Aust) s 41
205: Requirements for authorisation of plant or substance
1: A person must not use plant or a substance at a workplace if—
a: regulations require the plant or substance or its design to be authorised; and
b: the plant or substance or its design is not authorised in accordance with regulations.
2: A PCBU must not direct or allow a worker to use plant or a substance at a workplace if—
a: regulations require the plant or substance or its design to be authorised; and
b: the plant or substance or its design is not authorised in accordance with regulations.
3: A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $20,000:
b: for any other person, to a fine not exceeding $100,000. Model Work Health and Safety Act (Aust) s 42
206: Requirements for authorisation of work
1: A person must not carry out work if—
a: regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and
b: the person, or the person on whose behalf the work is carried out, is not authorised in accordance with regulations.
2: A PCBU must not direct or allow a worker to carry out work if—
a: regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised; and
b: the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with regulations.
3: A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $20,000:
b: for any other person, to a fine not exceeding $100,000. Model Work Health and Safety Act (Aust) s 43
207: Requirements for prescribed qualifications or experience
1: A person must not carry out work if regulations require the work, or class of work, to be carried out—
a: by a person who has prescribed qualifications or experience and the person does not have the prescribed qualifications or experience; or
b: under the supervision of a person who has prescribed qualifications or experience and the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.
2: A PCBU must not direct or allow a worker to carry out work if regulations require the work, or class of work, to be carried out—
a: by a worker who has prescribed qualifications or experience and the worker does not have the prescribed qualifications or experience; or
b: under the supervision of a person who has prescribed qualifications or experience and the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.
3: A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $20,000:
b: for any other person, to a fine not exceeding $100,000. Model Work Health and Safety Act (Aust) s 44
208: Requirement to comply with conditions of authorisation
1: A person must comply with the conditions of any authorisation given to that person that are prescribed in or under regulations.
2: A person who contravenes subsection (1) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $20,000:
b: for any other person, to a fine not exceeding $100,000. Model Work Health and Safety Act (Aust) s 45
3: General provisions
209: Offence to give false or misleading information
1: A person must not give information in complying or purportedly complying with this Act or regulations that the person knows—
a: is false or misleading in a material particular; or
b: omits any matter or thing without which the information is misleading.
2: A person must not produce a document in complying or purportedly complying with this Act or regulations that the person knows is false or misleading in a material particular without—
a: indicating the respect in which it is false or misleading and, if practicable, providing correct information; or
b: accompanying the document with a written statement signed by the person, or, in the case of a body corporate, a person authorised by the body corporate that—
i: states that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and
ii: sets out, or refers to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.
3: A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction,—
a: for an individual, to a fine not exceeding $10,000:
b: for any other person, to a fine not exceeding $50,000. Model Work Health and Safety Act (Aust) s 268
210: Confidentiality of information
1: This section applies if the regulator obtains information or gains access to a document in performing or exercising any function, duty, or power under this Act or regulations.
2: The regulator must not publish or disclose, or direct any person to publish or disclose, any information or document to which this section applies unless—
a: the information or document is available to the public under any enactment or is otherwise publicly available; or
b: the information is in a statistical or summary form; or
c: the publication or disclosure of the information or document is—
i: for the purposes of, or in connection with, the performance or exercise of any function, duty, or power conferred or imposed on the regulator or the person by the relevant health and safety legislation; or
ii: to a regulatory agency in accordance with section 197
iii: to a person who the person disclosing the information is satisfied has a proper interest in receiving the information or document; or
iv: with the consent of the person to whom the information or document relates or of the person to whom the information or document is confidential; or
v: required or authorised by law.
3: The person must not publish or disclose, or direct a person to publish or disclose, any information or document under subsection (2)﻿(c)﻿(iii) unless the person is satisfied that appropriate protections are or will be in place for the purpose of maintaining the confidentiality of the information or document (in particular, information that is personal information within the meaning of the Privacy Act 2020 Model Work Health and Safety Act (Aust) s 271 Section 210(3) amended 1 December 2020 section 217 Privacy Act 2020
4: Regulations, exemptions, approved codes of practice, and safe work instruments
Regulations
211: Regulations relating to health and safety
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes: Duties and obligations
a: imposing duties and obligations relating to work health and safety on PCBUs, workers, and other persons at workplaces:
b: prescribing the way in which duties and obligations imposed by this Act and regulations are to be performed:
c: prescribing matters relating to the regulation or prohibition of specified activities or a specified class of activities—
i: at workplaces or a specified class of workplaces; or
ii: by a specified class of persons on whom duties or obligations are imposed by this Act to eliminate or minimise risks to health and safety:
d: imposing specific duties on persons in relation to any matter provided for under regulations: Notifiable events
e: prescribing matters (including requirements) relating to notifiable events at workplaces, including—
i: regulating the taking of any action to prevent a notifiable event from occurring at a workplace or in the course of conducting a business or undertaking:
ii: regulating or prohibiting the taking of any action in the event of a notifiable event at a workplace or in the conduct of a business or undertaking: Plant, substances, or structures
f: prescribing matters (including requirements) relating to plant, substances, or structures, including—
i: regulating the storage, tracking, and handling of plant, substances, or structures:
ii: regulating the design, manufacture, installation, operation, alteration, examination, testing, labelling, maintenance, or repair of plant or structures:
iii: regulating the examination, testing, analysis, packaging, or labelling of any substance (taking into account any EPA controls set for a hazardous substance): Protection and welfare of workers and other persons
g: prescribing matters (including requirements) relating to the protection and welfare of workers and other persons at a workplace, including—
i: regulating the provision, maintenance, administration, or use in specified circumstances of—
A: personal protective equipment:
B: first aid (including requiring a PCBU to make persons available at the workplace who are trained in administering first aid):
C: rescue equipment:
ii: regulating the provision of facilities for the welfare of workers and other persons at the workplace:
iii: prescribing matters relating to health and safety in relation to any accommodation provided to workers or facilities for the welfare of workers using accommodation:
iv: setting, or providing for the setting of, mechanisms for measuring and controlling exposure to substances (or their components) in the workplace: Hazards and risks
h: prescribing matters (including requirements) relating to hazards and risks, including—
i: specifying standards relating to the use of or exposure to any hazard, for example, a physical, biological, chemical, atmospheric, or psychological hazard:
ii: prescribing matters relating to safety cases, safety management plans, and safety management systems (however described):
iii: prescribing matters relating to measures to control hazards and risks:
iv: requiring workers who work with children to undergo Police vetting: Records and notices
i: prescribing requirements relating to—
i: the keeping and availability of records of health and safety representatives:
ii: the keeping of records in relation to notifiable events:
iii: the keeping and availability of records of specified activities, matters, or things to be kept by specified persons:
iv: the making available of, or the giving of, any notice, report, or other document about specified activities, matters, or things to the regulator, an inspector, or other specified person:
j: prescribing the information that must be included in any notice, report, or other document made available or given in accordance with paragraph (i): Authorisations
k: prescribing matters relating to authorisations (including licences, certifications, registrations, and permits), qualifications, and experience for the purposes of subpart 2 of Part 5
i: the grant, issue, renewal, variation, suspension, cancellation, expiry, and replacement of authorisations:
ii: the evidence and information to be provided in relation to applications (for example, statutory declarations or compliance certificates):
iii: exemptions from a requirement to be authorised:
iv: variations of authorisations by the regulator, whether on application or otherwise:
v: the authorisation of persons who are to be involved in the authorisation of other persons (for example, as trainers, assessors, auditors, or compliance certifiers):
vi: the authorisation of persons to authorise other persons:
vii: the grant, issue, renewal, suspension, or cancellation of authorisations granted by persons referred to in subparagraph (vi):
viii: processes for the review or appeal of decisions in respect of authorisations:
ix: the examination of applicants for authorisations, including setting competency, character, security, or other relevant requirements or providing for the regulator to do so:
x: the minimum age for a person to be eligible for an authorisation:
xi: the grounds and processes for regular and performance-based auditing of authorisations:
xii: conditions of authorisations:
xiii: fees for applications for the grant, issue, renewal, variation, or audit of authorisations:
xiv: the keeping of 1 or more registers of authorisations, and for access to those registers:
l: the recognition of authorisations granted under other enactments or by other jurisdictions and any exceptions to such recognition: Identity cards
m: prescribing matters relating to identity cards: Review and appeal of decisions
n: prescribing matters relating to the review and appeal of decisions made under this Act: Mining sector
o: prescribing matters relating to industry health and safety representatives, including the eligibility criteria for appointment as an industry health and safety representative:
p: prescribing matters relating to the New Zealand Board of Mining Examiners, including prescribing functions relating to training and competency requirements for participants in the extractives industry: Exemptions
q: prescribing exemptions from compliance with regulations on the terms and conditions (if any) prescribed:
r: prescribing criteria or other requirements that relate to exemptions granted by the regulator under section 220 Offences and penalties
s: creating offences in respect of the contravention of regulations and providing for the imposition of fines not exceeding $50,000: Infringement offences
t: prescribing infringement offences for the purposes of this Act and regulations:
u: setting the infringement fee payable for an infringement offence, which may not exceed $12,000, and setting different infringement fees for different infringement offences or in respect of different persons or individuals:
v: prescribing the form of infringement notices and infringement offence reminder notices: Fees and charges
w: prescribing fees or charges for doing any act or providing any service for the purposes of this Act or regulations, including—
i: prescribing the circumstances and way in which fees or charges can be refunded, waived, or reduced:
ii: specifying the method or methods by which fees and charges may be recovered: Forms
x: prescribing the information that must be contained in forms for the purposes of this Act: General
y: providing for any matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: If an exemption is provided under subsection (1)﻿(q), the reasons for it must be set out in the explanatory note of the regulations.
3: Regulations under this section are secondary legislation ( see Part 3 1992 No 96 ss 21 23 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 211(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
212: Regulations relating to hazardous substances
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
a: prescribing duties, obligations, or restrictions imposed on any hazardous substance, or on any person in relation to any hazardous substances—
i: for substances with explosive properties,—
A: to reduce the likelihood of an unintended explosion:
B: to control the adverse effects likely to be caused by an explosion:
ii: for substances with flammable properties,—
A: to reduce the likelihood of an unintended fire or explosion:
B: to control the adverse effects of any fire or explosion:
iii: for substances with oxidising properties,—
A: to reduce the likelihood of any unintended release of chemical energy as an explosion or fire:
B: to control the adverse effects of any release of chemical energy as an explosion or fire:
iv: for substances with corrosive properties,—
A: to reduce the likelihood of any unintended corrosion:
B: to control the adverse effects of any corrosion:
v: for substances with toxic properties,—
A: to reduce the likelihood of any unintended exposure to any such substances:
B: to control the adverse effects of any exposure to such substances:
b: prescribing or providing for controls on gases under pressure, whether intrinsically hazardous or not:
c: prescribing controls to avoid or mitigate illness or injury to people or damage to the environment or chattels from any hazardous substance:
d: prescribing requirements to be met by a laboratory:
e: prescribing controls for by-products with hazardous properties, which result from the manufacture or use of any hazardous substance:
f: prescribing requirements to manage any emergency involving a hazardous substance:
g: prescribing systems for tracking hazardous substances, including requirements that—
i: the whereabouts of the substances be recorded at all times or from time to time:
ii: the quantity of the substances be recorded:
iii: a person be identified as being in charge of the substances:
iv: any person handling the substances hold prescribed qualifications:
h: in relation to any hazardous substances under the control of the Minister of Defence or the Chief of Defence Force, applying (with or without modifications) for the purposes of the regulations any provisions of a Defence Force Order issued under section 27
i: prescribing qualifications, including competency, character, or other relevant requirements (for example, that a person be a member of any specified professional body or organisation) for any person handling a hazardous substance:
j: providing for any matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Subsection (3) applies if, before, on, or after the commencement of this section, the EPA issues an EPA notice under section 74 Hazardous Substances (Classification) Regulations 2001 Hazardous Substances (Minimum Degrees of Hazard) Regulations 2001 existing classification system
3: Regulations made under this section may be made based on the existing classification system for a period not exceeding 5 years after the date on which the EPA notice is issued.
4: Regulations under this section are secondary legislation ( see Part 3 1996 No 30 ss 75 140 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 212(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
213: Regulations relating to exemptions in respect of Armed Forces
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing that any specified provisions of this Act or regulations do not apply (or apply with modifications) in respect of—
a: any specified activity or class of activity of the Armed Forces; or
b: any defence area; or
c: the Armed Forces or any part of the Armed Forces; or
d: military aircraft or naval ships, or any class of military aircraft or naval ships.
2: Without limiting subsection (1), the regulations may be subject to any conditions specified in the regulations.
3: Before making a recommendation under subsection (1), the Minister must consult the Minister of Defence.
4: If an exemption is provided under this section, the reasons for the exemption must be set out in the explanatory note of the regulations.
5: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 213(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
214: Regulations relating to worker engagement, participation, and representation
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
a: prescribing matters relating to work groups, including—
i: the requirements for determining a work group (including work groups for workers carrying out work for 2 or more PCBUs):
ii: agreements or variations of agreements relating to the determination of work groups:
b: prescribing matters relating to health and safety representatives, including—
i: the eligibility criteria for election as a health and safety representative:
ii: the procedure for electing or removing a health and safety representative:
iii: the eligibility criteria to vote for a health and safety representative:
iv: the term of office for health and safety representatives:
v:
vi: specifying or providing for the method of determining the maximum total number of days’ paid leave for health and safety representatives that a PCBU is required to allow for the whole business or undertaking under clause 12(2)
vii: specifying the number of days’ paid leave that a PCBU must allow a health and safety representative in specific industries to take in a year under clause 12(1)﻿(a)﻿(ii)
viii: maintaining a list of health and safety representatives and providing the list to the regulator:
c: prescribing matters relating to health and safety committees, including—
i: the constitution of health and safety committees:
ii: meeting requirements for health and safety committees:
d: providing for any matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations under this section are secondary legislation ( see Part 3 1992 No 96 s 21 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 214(1)﻿(b)﻿(v) repealed 13 June 2023 section 6 Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Act 2023 Section 214(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
215: Regulations relating to levies
1: The Governor-General may, by Order in Council, made on the recommendation of the Minister, make regulations prescribing levies for the purposes of recovering the costs of the regulator that relate to its functions in respect of authorisations granted under this Act.
2: The regulations may—
a: prescribe different levies for different classes of persons:
b: provide for the method by which the levies will be calculated:
c: specify the criteria and other requirements by and against which the levies will be set or reset:
d: provide for the payment and collection of the levy:
e: state whether or not the persons collecting the levy are entitled to recover the cost of collection and, if the persons are entitled to do so, specify the maximum rate of collection costs:
f: exempt any person or classes of persons from paying the levies:
g: provide for waivers or refunds of the whole or any part of the levies:
h: provide for any other matters that are necessary or desirable to set, calculate, administer, collect, and enforce the levies, including (without limitation),—
i: the returns to be made to the regulator for the purpose of enabling or assisting in the determination of the amounts of levy payable:
ii: the circumstances in which, and conditions subject to which, persons may be allowed extensions of time for paying the levies:
iii: the keeping and retention of accounts, statements, or records specified by the regulator for a specified period for the purpose of ascertaining whether regulations are being complied with:
iv: the establishment of a dispute resolution process for disputes relating to levies, including the appointment of persons to resolve the disputes, the procedures to be followed by those persons, and the remuneration of those persons.
3: If an exemption is provided under subsection (2)﻿(f), the reasons for it must be set out in the explanatory note of the regulations.
4: Before making a recommendation under this section, the Minister must—
a: receive advice from WorkSafe on the proposed levy; and
b: consult in accordance with section 217
5: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 215(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
216: Regulations providing for transitional matters
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
a: providing transitional and savings provisions concerning the coming into force of this Act that may be in addition to, or in place of, the transitional and savings provisions in Schedule 1
b: providing that, subject to such conditions as may be specified in the regulations, during a specified transitional period,—
i: specified provisions of this Act (including definitions) do not apply:
ii: specified terms have the meaning given to them by the regulations:
iii: specified provisions repealed or amended or revoked by this Act are to continue to apply:
c: providing for any other matters necessary for facilitating or ensuring an orderly transition from the provisions of any enactments replaced by this Act to the provisions of this Act.
2: No regulations made under this section may be made, or continue in force, later than 2 years after the date of commencement of this section.
217: Consultation requirements for making certain regulations
1: The Minister must not recommend the making of any regulations under section 211 212 214 215
2: The Minister, before recommending the making of any regulations relating to hazardous substances, must consult the EPA about the subject matter of the proposed regulations.
3: A failure to comply with this section does not affect the validity of the regulations made. 1992 No 96 s 21(2), (3)
218: Further provisions relating to regulations
1: Regulations made under this Act may—
a: impose similar or additional duties on a person in relation to the same circumstances or matters as this Act does:
b: be of general or limited application:
c: differ according to differences in time, place, or circumstance, or any other basis:
d: impose prohibitions:
e: apply differently to people of a differing age or health status, and may apply only to people of a particular age or health status:
f: apply differently to different classes of person, workplace, plant, structure, substance, or kind of risk:
g: prescribe, set, or provide for any thing by reference to any methodology, value, or similar tool (however described) or by reference to controls in other Acts, regulations, or instruments.
2: Regulations made under this Act are not invalid merely because they confer any discretion on, or allow any matter to be determined or approved by, any person. 1992 No 96 s 22
219: Procedure for making regulations relating to definitions, exclusions, or exemptions
1: The Minister must, before making a recommendation in relation to a provision referred to in subsection (2),—
a: have regard to the purpose of this Act set out in section 3
b: be satisfied that the extent to which any definitions are modified, or any requirements are modified, exempted, excluded, or applied (as the case may be) is not broader than is reasonably necessary to address the matters that gave rise to the proposed regulations.
2: The provisions are—
a: section 12
b: section 17
c: section 19
d: section 21
e: section 23
f: section 24
g: section 37
h: section 38
i: section 55
j: section 211(1)﻿(q)
k: section 213 Exemptions
220: Regulator may grant exemption from compliance with regulations
1: The regulator may exempt any person or class of persons from compliance with any provision or provisions of regulations.
2: The regulator must not grant an exemption under subsection (1) unless it is satisfied that—
a: the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the proposed exemption; and
b: the exemption is not inconsistent with the purpose of this Act.
3: The regulator may—
a: grant the exemption on any terms and conditions that the regulator thinks fit; and
b: amend or revoke an exemption; and
c: replace an exemption either before or when it expires.
4: An exemption granted under subsection (1)—
a: takes effect from the date specified in the notice published in accordance with section 221
b: expires on the close of the day that is 5 years after the date on which it took effect, unless it is sooner replaced or revoked.
5: The breach of a term or condition of an exemption granted under subsection (1) is a breach of the provision to which the exemption relates (unless the terms of the exemption provide otherwise).
221: Status and publication of exemptions granted by regulator
1: An exemption under section 220 see Part 3
1A: If an exemption is secondary legislation, the regulator’s reasons for granting the exemption (including why it is appropriate) must be published with the exemption.
2: If an exemption is not secondary legislation, subsections (3), (4), and (5) apply.
3: As soon as practicable after an exemption granted under section 220
a: notified in the Gazette
b: published on an Internet site maintained by or on behalf of the regulator.
4: The regulator’s reasons for granting the exemption (including why the exemption is appropriate) must be published in accordance with subsection (3)﻿(b) together with the exemption.
5: A notification in the Gazette
6: The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (1). Legislation Act 2019 requirements for secondary legislation referred to in subsection (1) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 221(1) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 221(1A) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 221(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 221(6) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Codes of practice
222: Approval of codes of practice
1: The Minister may—
a: approve a code of practice developed by the regulator for the purposes of this Act; and
b: amend or revoke an approved code of practice.
2: The Minister may approve, amend, or revoke a code of practice under subsection (1) only if the Minister is satisfied that the code of practice, amendment, or revocation was developed by a process that involved consultation between—
a: unions; and
b: employer organisations; and
c: other persons or representatives of other persons affected, or reasonably likely to be affected, by the code, amendment, or revocation.
3: A code of practice may incorporate, adopt, or apply (with or without modification) all or any part of any other document that is prepared or issued by any person or body, and that is in force at a particular time.
4: However, an approved code of practice may not, without the approval of—
a: the relevant Minister,—
i: adopt with modification any documents previously approved by a Minister of the Crown; or
ii: approve any amendment of any part of a code of practice that comprises a document approved by a Minister of the Crown; or
b: the Minister responsible for the administration of the Building Act 2004
i: adopt an acceptable solution or verification method (or both) issued under section 22(1)
ii: approve any amendment of any part of a code of practice that comprises a document approved by that Minister.
5: The following may be approved by the Minister without carrying out the consultation required by subsection (2):
a: a code of practice that corresponds, or substantially corresponds, to a code of practice made under section 20
b: any minor or technical amendments to an approved code of practice (including the incorporation of amendments to, or updates of, documents incorporated by reference).
6: If the Minister approves any amendment in accordance with subsection (5)﻿(b), the regulator must make reasonable efforts to notify any affected persons or their representatives of the amendment.
7: 1992 No 96 s 20 Section 222(7) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
223: Publication and commencement of approved code of practice
1: As soon as practicable after an approved code of practice has been approved, amended, or revoked, the regulator must ensure that notice of the approval, amendment, or revocation is published in the Gazette
2: Subject to subsection (3), an approved code of practice, an amendment, or a revocation may not come into force until at least 28 days after it has been notified in the Gazette
3: A minor or technical amendment approved by the Minister under section 222(5) Gazette 1992 No 96 s 20A
224: Access to approved codes of practice
1: The Gazette section 223(1)
2: The regulator must ensure that the approved code of practice is available—
a: free of charge on an Internet site maintained by or on behalf of the regulator; and
b: for purchase in hard copy at a reasonable charge. 1992 No 96 s 20C(1)
225: Proof of codes of practice
The publication by the regulator of a notice under section 223(1) section 222 1992 No 96 s 20A(5)
226: Use of approved codes of practice in proceedings
1: No code of practice issued or amended under this Part confers rights or obligations capable of enforcement in any civil or criminal proceedings.
2: However, an approved code of practice is admissible in any civil or criminal proceedings as evidence of whether or not a duty or obligation under this Act has been complied with.
3: The court may—
a: have regard to the code as evidence of what is known about a hazard or risk, risk assessment, or risk control to which the code relates; and
b: rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.
4: Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code. 1992 No 96 s 20B Safe work instruments
227: Minister may approve safe work instruments
1: The Minister may—
a: approve a safe work instrument developed by the regulator for the purposes referred to in subsection (2); and
b: amend or revoke a safe work instrument approved under paragraph (a).
2: The purposes of safe work instruments are to define terms, prescribe matters, or make other provision in relation to any activity or thing, including (without limitation) listing standards, control of substances, and competency requirements.
3: The Minister must not approve a safe work instrument unless the Minister is satisfied that all persons and organisations that the Minister thinks appropriate have been consulted, having regard to the subject matter of the proposed safe work instrument.
4: The Minister may approve an amendment to a safe work instrument (including approving incorporation of amendments to, or updates of, documents incorporated by reference) without complying with subsection (3) if the Minister is satisfied that the amendment is minor or technical.
5: To the extent that a safe work instrument is given effect to in accordance with section 228(1) see Part 3
5A: To the extent that a safe work instrument is not secondary legislation, subsection (6) applies.
6: The Minister must, as soon as practicable after a safe work instrument is made,—
a: notify the safe work instrument in the Gazette
b: ensure that a copy of the safe work instrument is available—
i: free of charge on an Internet site maintained by or on behalf of the regulator; and
ii: for purchase in hard copy at a reasonable charge.
7: A failure to comply with subsection (3) does not affect the validity of a safe work instrument. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	notify it in the Gazette •	make it available on a website maintained by, or on behalf of, the regulator •	make it available for purchase in hard copy at a reasonable charge Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 227(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 227(5A) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
228: Legal effect of safe work instruments
1: A safe work instrument made under section 227
2: For the purposes of subsection (1), regulations may refer to—
a: a particular safe work instrument as amended or replaced from time to time; or
b: any safe work instrument that may be made for the purposes of regulations (even if the instrument has not been made at the time the regulations are made). General provisions
229: Minister may delegate approval of codes of practice and safe work instruments to regulator
1: The Minister may, either generally or particularly, delegate to the regulator his or her power—
a: under section 222
b: under section 227
2: A delegation under this section must be in writing.
3: The regulator must not delegate the power to approve, amend, or revoke a code of practice or a safe work instrument delegated to it under subsection (1) except in accordance with the terms of the delegation.
4: The power of the Minister to delegate under this section—
a: is subject to any prohibitions, restrictions, or conditions contained in any other Act in relation to the delegation of the Minister's functions or powers; but
b: does not limit any power of delegation conferred on the Minister by any other Act.
5: The regulator may exercise the power delegated to it under this section in the same manner and with the same effect as if it had been conferred on the regulator (subject to any restrictions or conditions imposed under the delegation).
6: If the regulator purports to act under a delegation under this section, the regulator must, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.
7: No delegation affects or prevents the performance or exercise of any function or power by the Minister or affects the responsibility of the Minister for the actions of a person acting under the delegation.
230: Relationship between regulations relating to hazardous substances under this Act and Resource Management Act 1991
1:
2:
3: Nothing prescribed in regulations made under this Act for the safe use, handling, manufacture, or storage of hazardous substances applies in relation to any resource consent to which this subsection applies that is—
a: a land use consent relating to the use, handling, manufacture, or storage of any hazardous substance; or
b: a coastal permit to do something that would otherwise contravene section 15
c: a discharge permit.
4: Subsection (3) applies where the resource consent concerned was granted before the coming into force of any regulations made under the Hazardous Substances and New Organisms Act 1996 section 128
5: In this section, resource consent section 2(1) Section 230(1) repealed 19 April 2017 section 123 Resource Legislation Amendment Act 2017 Section 230(2) repealed 19 April 2017 section 123 Resource Legislation Amendment Act 2017
5: Repeals, revocations, and consequential amendments
231: Repeals and revocations
1: The Health and Safety in Employment Act 1992
2: The Machinery Act 1950
3: The following regulations and order are revoked:
a: Health and Safety in Employment (Prescribed Matters) Regulations 2003
b: Machinery (Exclusion of Some Pressure Equipment, Cranes, and Passenger Ropeways) Order 1999
c: Noxious Substances Regulations 1954 2016-04-04 Health and Safety in Employment Act 1992 Machinery Act 1950 Health and Safety in Employment (Prescribed Matters) Regulations 2003 Machinery (Exclusion of Some Pressure Equipment, Cranes, and Passenger Ropeways) Order 1999 Noxious Substances Regulations 1954
232: Consequential amendments
Amend the enactments specified in Schedule 5 2016-04-04 Building Act 2004 Civil Defence Emergency Management Act 2002 Coroners Act 2006 Costs in Criminal Cases Act 1967 Crown Minerals Act 1991 Crown Organisations (Criminal Liability) Act 2002 Electricity Act 1992 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 Gas Act 1992 Income Tax Act 2007 Inspector-General of Intelligence and Security Act 1996 Maritime Transport Act 1994 Mines Rescue Act 2013 Plumbers, Gasfitters, and Drainlayers Act 2006 Prostitution Reform Act 2003 Railways Act 2005 Search and Surveillance Act 2012 Sentencing Act 2002 Sharemilking Agreements Act 1937 Smoke-free Environments Act 1990 Social Security Act 1964 Summary Proceedings Act 1957 Terrorism Suppression Act 2002 Victims’ Rights Act 2002 Biosecurity (Costs) Regulations 2010 Education (Playgroups) Regulations 2008 Electricity (Safety) Regulations 2010 Gas (Safety and Measurement) Regulations 2010 Hazardous Substances (Packaging) Regulations 2001 Health and Safety in Employment (Pipelines) Regulations 1999 Health and Safety in Employment (Pressure Equipment, Cranes, Passenger Ropeways) Regulations 1999 Health and Safety in Employment Regulations 1995 Mines Rescue (Levy) Regulations 2014 Railways Regulations 2008