Supplementary Order Paper No 108

No 108

House of Representatives

Supplementary Order Paper

Wednesday, 19 August 2015

Health and Safety Reform Bill

Proposed amendments for the consideration of the Committee of the whole House

Key to symbols used

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Hover your cursor over an amendment for information about that amendment. Download the PDF version to see this information in a form that can be printed out.

Explanatory note

This Supplementary Order Paper amends the Health and Safety Reform Bill (the Bill).

The amendments include—

  • amendments to clause 2, which relates to the commencement of the Bill. The first amendment inserts new clause 2(1AA) so that Parts 1 to 5 (except subpart 3 of Part 5) and Schedules 1 to 3 of the Bill, which comprise the Health and Safety at Work Bill, come into force on 4 April 2016. The second amendment corrects an omission and brings clause 255 into force at the same time as clause 292 but only for the purposes of commencing clause 7 of Schedule 7 of the Hazardous Substances and New Organisms Act 1996 (as replaced by the Bill). The third amendment changes the final date that the rest of the Bill comes into force, if it has not earlier been brought into force by Order in Council, from 31 October 2017 to 1 January 2018:

  • amendments to clause 6, which relates to the application of the Health and Safety at Work Bill to the Armed Forces, to refine the coverage of the Bill to the Armed Forces. The amendments replace the definition of operational service with a definition of operational activity to distinguish the power to declare any service or activity or class of service or activity to be an operational activity from other similar declaration powers, such as under the Veterans’ Support Act 2014:

  • a new clause 29A(2), which clarifies the scope of a duty-holder’s duty under the Health and Safety at Work Bill. New clause 29A(2) provides that a duty imposed on a person by or under the Bill requires the person only to do what is, or what would reasonably expected to be, within the person’s ability to control and influence the matter to which the risks relate:

  • amendments to clause 32, which sets out the duty of a PCBU who manages or controls a workplace. Clause 32(1B) is amended to provide that where a PCBU is conducting a farming business or undertaking, the duty in clause 32 does not apply in relation to the main dwelling house on the farm (if any):

  • a new clause 39(1A), which is based on section 137 of the Companies Act 1993, that clarifies that 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 the nature of the business or undertaking, the position of the officer, and the nature of the responsibilities undertaken by the officer:

  • the reordering of clause 39(3) as new clause 39(1B):

  • amendments to clauses 65 and 86A that introduce a requirement on a PCBU to notify workers when the PCBU seeks to rely on the exclusion set out in those provisions that relate to businesses or undertakings with fewer than 20 workers that are not within the scope of any prescribed high-risk sector or industry:

  • a new clause 138(3), which provides that where a notice issued under the Health and Safety at Work Bill is posted to a person, the notice is to be treated as having been received on the seventh day after the date it was posted:

  • an amendment to clause 169, which specifies sentencing criteria that a court must apply when determining how to sentence or otherwise deal with an offender convicted of an offence against clause 42, 43, or 44 of the Health and Safety at Work Bill. The amendment inserts new clause 169(2)(ca), which requires a court, when sentencing an offender under the Bill, to have particular regard to whether death, serious injury, or serious illness occurred or could reasonably have been expected to occur:

  • a new clause 207(4) that clarifies the status of a designation of a designated agency under clause 207(1) as a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012:

  • amendments to clause 221, which authorises regulations to be made relating to health and safety, to make various amendments that clarify the scope of the empowering provision:

  • amendments to clause 222, which authorises regulations to be made relating to hazardous substances, to add new clause 222(2) and (3). New subclauses (2) and (3) provide that if, before, on, or after the commencement of clause 222, the Environmental Protection Authority (the Authority) issues an EPA notice under section 74 of the Hazardous Substances and New Organisms Act 1996 (the HSNO Act) establishing a new hazardous substances classification system, regulations made under clause 222 may be based on the existing classification system for a period not exceeding 5 years after the date on which the EPA notice is issued:

  • a new clause 285AA, which inserts a new section 97C into the HSNO Act that provides for the sharing of information between the Authority and enforcement agencies under that Act:

  • the replacement of clause 289, which amends section 140 of the HSNO Act. New clause 289 recasts section 140 entirely, reflecting the removal of various regulation-making powers from the HSNO Act by the Bill and the addition of 3 new regulation-making powers that provide for regulations to be made to prohibit the importation, restrict the sale, and restrict the access to and use of a hazardous substance (see new section 140(1)(p), (q), and (r)):

  • amendments to Schedule 2A, which contains provisions relating to classified security information used in proceedings in relation to the Health and Safety at Work Bill. The amendments limit the application of the schedule to proceedings in which all parties have access to the classified security information or the defendant seeks to produce or refer to classified security information:

  • other amendments to correct errors, improve the consistency of provisions, and make other drafting improvements.

Departmental disclosure statement

The Ministry of Business, Innovation, and Employment considers that a departmental disclosure statement is not required to be prepared for those parts of this Supplementary Order Paper that relate to the proposed Health and Safety at Work Act.

The Ministry for the Environment is required to prepare a disclosure statement to assist with the scrutiny of those parts of this Supplementary Order Paper that relate to new regulation-making powers in clause 289 of the Bill. A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=sop &subtype=government&year=2015&no=108.

The Hon Michael Woodhouse, in Committee, to propose the amendments shown in the following document.

Hon Michael Woodhouse

Health and Safety Reform Bill

Government Bill

192—2

Contents

1Title
2Commencement
3Purpose
4Transitional, savings, and related provisions
5Application of Act to the Crown
5AEnforcement of Act against the Crown
6Application of Act to Armed Forces
6AApplication of Act to intelligence and security agencies
7Application of Act to aircraft in operation
8Application of Act to ships
9Application of Act in exclusive economic zone and in or on continental shelf
10Application of Act to prescribed high-risk plant
10ACertain provisions of Part 3 do not apply to members of Armed Forces
10BPart 3 does not apply to volunteer workers
11Part 3 does not apply to prisoners
12Interpretation
13Meaning of PCBU
13AMeaning of officer
14Meaning of worker
15Meaning of workplace
16Meaning of supply
17Meaning of reasonably practicable
18Meaning of notifiable injury or illness
19Meaning of notifiable incident
20Meaning of notifiable event
21Status of examples
28PCBU must not levy workers
29No contracting out
29AAInsurance against fines unlawful
29AManagement of risks
29BDuties not transferable
29CPerson may have more than 1 duty
29DMore than 1 person may have same duty
29EPCBU must consult other PCBUs with same duty
29FCompliance with other enactments
30Primary duty of care
32Duty of PCBU who manages or controls workplace
33Duty of PCBU who manages or controls fixtures, fittings, or plant at workplaces
34Duty of PCBU who designs plant, substances, or structures
35Duty of PCBU who manufactures plant, substances, or structures
36Duty of PCBU who imports plant, substances, or structures
37Duty of PCBU who supplies plant, substances, or structures
38Duty of PCBU who installs, constructs, or commissions plant or structures
39Duty of officers
40Duties of workers
41Duties of other persons at workplace
42Offence of reckless conduct in respect of duty
43Offence of failing to comply with duty that exposes individual to risk of death or serious injury or serious illness
44Offence of failing to comply with duty
45Liability of officers
46Liability of volunteers
47Liability of certain office holders
49Actions taken to prevent harm
50Proof of intention not required for certain offences
51Duty to preserve sites
52Duty to notify notifiable event
53Requirement to keep records
61Duty to engage with workers
62Nature of engagement
63When engagement is required
64Duty to have worker participation practices
65Election of health and safety representatives
65ARequirements for conducting elections
66Determination of work groups
66ADetermination of numbers of health and safety representatives for work groups
86AHealth and safety committees
86BFurther provisions relating to health and safety representatives and health and safety committees
87Further provisions relating to mining sector
92Provisional improvement notices
93Training requirements relating to issue of provisional improvement notice
94Requirements relating to provisional improvement notices
95Provisional improvement notice may include recommendations to remedy contravention
96Minor changes to provisional improvement notice
97Issue of provisional improvement notice
98Cancellation of provisional improvement notice
99Display of provisional improvement notice
100Irregularities or defects in notice
101Offence relating to breach of provisional improvement notice
102Review of provisional improvement notice
103Regulator must ensure inspector reviews notice
104Decision of inspector on review of provisional improvement notice
105Meaning of cease work
106Right of worker to cease or refuse to carry out unsafe work
107Health and safety representative may direct unsafe work to cease
107ATraining requirements relating to giving direction to cease work
108Alternative work
109Regulator may assist to resolve issues relating to cessation of work
110Meaning of adverse conduct
111Meaning of prohibited health and safety reason
112Prohibition on adverse conduct
113Prohibition on requesting, instructing, inducing, encouraging, authorising, or assisting adverse conduct
114Prohibition on coercion or inducement
115Misrepresentation
116Proof of adverse conduct
117Civil proceedings in relation to engaging in or inducing adverse or coercive conduct
118Procedure for civil proceedings for adverse conduct
119General provisions
120Resolution of work health and safety issues
121Regulator may appoint inspector to assist parties in resolving issue
122Meaning of notice
123Power to issue improvement notices
124Content of improvement notices
125Compliance with improvement notice
126Extension of time for compliance with improvement notices
127Power to issue prohibition notice
128Content of prohibition notice
129Compliance with prohibition notice
130Power to issue non-disturbance notice
131Content of non-disturbance notice
132Compliance with non-disturbance notice
133Issue of subsequent non-disturbance notices
134General provisions relating to notices
135Changes to notice by inspector
136Regulator may vary or cancel notice
137Formal irregularities or defects in notice
138Issue of notice
139Display of notice at workplace by person issued with notice
139AInspector may display notice
140When regulator may carry out remedial action
141Power of regulator to take other remedial action
142Costs of remedial or other action
143Civil proceedings relating to non-compliance with notice
144Regulator may accept enforceable undertakings
145Notice of decision and reasons for decision
146When enforceable undertaking is enforceable
147Compliance with enforceable undertaking
148Contravention of enforceable undertaking
149Withdrawal or variation of enforceable undertaking
150Proceedings for alleged contravention
151Interpretation
152Application for internal review
153Decision of regulator
154Notice of decision on internal review
155Stay of reviewable decision on internal review
156Application for appeal
157Interpretation
158Proceedings for infringement offence
159Infringement notices
160Revocation of infringement notice
161Payment of infringement fees
162Meaning of enforcement action
163Person may notify regulator of interest in knowing of enforcement action taken by regulator
164Prosecutions by regulator
165Private prosecutions
166Continuing or repeated matters
167Limitation period for prosecutions brought by regulator
167AExtension of time if regulator needs longer to decide whether to bring prosecution
167BLimitation period for private prosecutions
167CExtension of time for certain proceedings Certain proceedings may be brought after end of limitation period if fresh evidence discovered
168Application of subpart
169Sentencing criteria
170Order for payment of regulator’s costs in bringing prosecution
171Adverse publicity orders
172Orders for restoration
173Work health and safety project orders
174Release on giving of court-ordered enforceable undertaking
175Injunctions
176Training orders
177Offence to fail to comply with order
178State of mind of directors, employees, or agents attributed
179Conduct of directors, employees, or agents attributed
180AProceedings involving classified security information
181Appointment of inspectors
182Identity cards
183Suspension and ending of appointment of inspectors
184Inspectors subject to regulator’s directions
184ARegulator has powers of inspector
185Powers of entry and inspection
186Power to enter homes
187Power to deal with cause of imminent danger
188Notice of entry
189Power to take samples and other objects and things
190Power of regulator to authorise making of applications for search warrants
191Continuation of powers of entry and inspection without search warrants
192Power to require name and address
193Duty to assist inspectors
194Immunity of inspectors and persons assisting inspectors or regulator
195Offence for failing to provide inspector with correct name and residential address
196Offence to hinder or obstruct inspector
197Offence to impersonate inspector
198Appointment of health and safety medical practitioners
198ASuspension and ending of appointment of health and safety medical practitioners
199Powers of entry and inspection of health and safety medical practitioners
200Health and safety medical practitioners may require workers to be medically examined
201Health and safety medical practitioners may suspend workers in certain cases
202Immunity of health and safety medical practitioners and persons assisting health and safety medical practitioners
203Offence to hinder or obstruct health and safety medical practitioner
204Offence to impersonate health and safety medical practitioner
205Role of WorkSafe
206Functions and powers of regulator other than WorkSafe
207Designated agencies
208Role of designated agencies
209Proceedings not to be questioned for want of form
210Designated agency must give effect to joint policy directions
211Health and Safety at Work Strategy
212Workplace injury prevention
213Sharing of information between regulator and regulatory agencies
214Requirement of other regulator to notify WorkSafe of notifiable event
215Requirement of medical officer of health to notify regulator of work-related notifiable disease or hazardous substances injury
216Coroner may call for report on fatal accident
217Funding levy
218Consultation requirement relating to funding levy
218AMeaning of authorised
218BRequirements for authorisation of workplaces
218CRequirements for authorisation of plant or substance
218DRequirements for authorisation of work
218ERequirements for prescribed qualifications or experience
218FRequirement to comply with conditions of authorisation
219Offence to give false or misleading information
220Confidentiality of information
221Regulations relating to health and safety
222Regulations relating to hazardous substances
223Regulations relating to exemptions in respect of Armed Forces
224Regulations relating to worker engagement, participation, and representation
224ARegulations relating to levies
225Regulations providing for transitional matters
226Consultation requirements for making certain regulations
227Further provisions relating to regulations
228Procedure for making regulations relating to definitions, exclusions, or exemptions
228ARegulator may grant exemption from compliance with regulations
228BStatus and publication of exemptions granted by regulator
229Approval of codes of practice
230Publication and commencement of approved code of practice
231Access to approved codes of practice
232Proof of codes of practice
233Use of approved codes of practice in proceedings
234Minister may approve safe work instruments
235Legal effect of safe work instruments
236Minister may delegate approval of codes of practice and safe work instruments to regulator
236ARelationship between regulations relating to hazardous substances under this Act and Resource Management Act 1991
238Repeals and revocations
239Consequential amendments
240Principal Act
241New section 5A inserted (Provisions affecting application of amendments to this Act)
5ATransitional, savings, and related provisions
241ASection 6 amended (Interpretation)
242Section 167 amended (Application and source of funds)
243Section 169 amended (Rates of levies)
244New sections 174A to 174F inserted
174ACorporation may develop and establish workplace incentive programmes
174BProcess to develop workplace incentive programme
174CMinister’s approval of certain workplace incentive programmes
174DEstablishment of workplace incentive programmes
174EAmendments to workplace incentive programme
174FCorporation must report on effectiveness of workplace incentive programmes
245Section 175 amended (Risk adjustment of Work Account levies)
246Section 176 amended (Incorporation by reference)
247Section 190 amended (Purchase of weekly compensation by shareholder-employees)
248Section 263 amended (Prevention of personal injury)
249New sections 264A and 264B inserted
264AWorkplace injury prevention action plan
264BInjury prevention measures undertaken by WorkSafe and funded by Corporation or jointly undertaken
249ASection 280 amended (Disclosure of information to Corporation)
249BSection 286 amended (Corporation to provide information to Ministry of Business, Innovation, and Employment and to WorkSafe)
251New Schedule 1AA inserted
252Principal Act
253Section 2 amended (Interpretation)
254Section 3 amended (Act to bind the Crown)
255New section 3A inserted (Transitional and savings provisions relating to amendments to Act)
3ATransitional and savings provisions relating to amendments to Act
257Section 11 amended (Powers, functions, and duties of Authority)
258Section 19 amended (Delegation by Authority)
258ASection 20 amended (Obligation to prepare and maintain register)
260Section 26 replaced (Determination of new organism or hazardous substance)
26Determination of new organism or hazardous substance
261Section 33 amended (Exemptions from Act for small-scale research on hazardous substances)
262Section 53 amended (Applications required to be publicly notified)
263Section 53A repealed (Method of public notification)
264Section 58 amended (Further information)
265Section 59 amended (Time limits and waivers)
265ASection 62 amended (Grounds for reassessment of a substance or organism)
266Section 63A amended (Modified reassessment procedure for amendments to approvals of hazardous substances)
267New section 63C inserted (Modified reassessment to change controls in other cases)
63CModified reassessment to change controls in other cases
268Section 65 amended (No compensation following reassessment)
269New section 67B inserted (Revoking duplicated approvals)
67BRevoking duplicated approvals
270Section 68 amended (Minister’s power to call in applications with significant effects)
271Section 74 replaced (Establishment of hazard classification system)
74Establishment of hazard classification system
272Section 75 amended (Regulations prescribing hazard classification control)
273Section 76 replaced (Requirements for containers, identification, disposal, emergencies, tracking, and fireworks)
76Authority may prescribe controls and requirements relating to hazardous substances
76AAuthority may prescribe other matters relating to hazardous substances
76AAAuthority may prescribe transitional and savings provisions
76AAFurther provisions relating to EPA notices
76BProcedure for issuing EPA notices
76CApplication of Legislation Act 2012 to EPA notices
274Section 77 amended (Controls on hazardous substances)
275Section 77A amended (Authority’s power to impose controls and vary specified controls)
276Section 77B amended (Exposure limits for substances with toxic or ecotoxic properties)
277Section 78 amended (Codes of practice)
278Section 82 replaced (Issue of test certificates by test certifiers)
82Certificates
279Sections 82A, 82B, and 83 to 86 repealed
279ASection 82C amended (Revocation of test certificates)
280Cross-heading above section 95A amended
281Section 95B repealed (Licences)
282Section 96B amended (Group standards)
283Section 96C amended (When group standards may be issued or amended)
283ASection 96D amended (Revocation of group standards)
284Section 97 amended (Enforcement of Act)
285Section 97B replaced (Enforcement of Act in respect of hazardous substances in place of work)
97BEnforcement of Act in respect of hazardous substances in workplace
285AANew section 97C inserted (Sharing of information between Authority and enforcement agencies)
97CSharing of information between Authority and enforcement agencies
285ASection 99 amended (Supervision of inspection)
285BSection 103 amended (Powers of entry for inspection)
285CNew section 103A inserted (Powers of entry for inspection relating to hazardous substances)
103APowers of entry for inspection relating to hazardous substances
286Section 109 amended (Offences)
287Section 111 amended (Commission of infringement offence)
287ASection 113 amended (Entitlement to infringement fees)
287BSection 117 amended (Strict liability and defences)
288Section 125 amended (Appeals)
289Section 140 amended (Regulations)
289Section 140 replaced (Regulations)
140Regulations
290Section 141 amended (Procedure for making Orders in Council)
290ASection 142 amended (Relationship to other Acts)
290BSection 144 amended (Reporting of incidents)
291Schedule 2A amended
292Schedule 7 replaced
293Consequential and other amendments to principal Act
294Amendments to other enactments
295Principal Act
296Section 67B amended (Effect of trial provision under section 67A)
297Section 103 amended (Personal grievance)
298Section 104 amended (Discrimination)
299Section 107 amended (Definition of involvement in activities of union for purposes of section 104)
300New section 110A inserted (Adverse conduct for prohibited health and safety reason)
110AAdverse conduct for prohibited health and safety reason
301Section 111 amended (Definitions relating to personal grievances)
302Section 137 amended (Power of Authority to order compliance)
303Section 138 amended (Further provisions relating to compliance order by Authority)
304Schedule 1A amended
305Principal Act
306Section 3 amended (Interpretation)
307Section 7 amended (WorkSafe New Zealand’s board)
308Section 8 amended (Advisory groups)
309Section 9 amended (WorkSafe New Zealand’s main objective)
310Section 10 amended (WorkSafe New Zealand’s functions)
311New section 21A and cross-heading inserted
21ATransfer of EPA employees and contracts to WorkSafe New Zealand
312New Schedule 2 inserted

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Health and Safety Reform Act 2014.

2 Commencement

(1AA)

Parts 1 to 5 (except subpart 3 of Part 5) and Schedules 1 to 3 come into force on 4 April 2016.

(1)

The following provisions come into force on the day after the date on which this Act receives the Royal assent:

(a)

subpart 3 of Part 5:

(b)

sections 253(5), (6), (8), and (9), 258, 258A(4), 262, 263, 265, 283, 283A, 286(1AB), 290, and 291.

(1A)

The following provisions also come into force on the day after the date on which this Act receives the Royal assent:

(a)

section 253(1), but only as it relates to the definition of EPA notice:

(b)

section 273, but only as it relates to sections 76A(d), (f), (g), and (h), 76AA, 76B, and 76C of the Hazardous Substances and New Organisms Act 1996:

(c)

section sections 255 and 292, but only as it relates they relate to clause 7 of Schedule 7 of the Hazardous Substances and New Organisms Act 1996 (which clause is set out in Schedule 5):

(d)

section 293, but only as it relates to the items about sections 63B, and 141 to 141I of the Hazardous Substances and New Organisms Act 1996 (which items are set out in Schedule 6).

(2)

The rest of this Act comes into force on a date appointed by the Governor-General by Order in Council, and 1 or more Orders in Council may be made bringing different provisions into force on different dates and appointing different dates for different purposes.

(3)

Any provision that has not earlier been brought into force comes into force on 31 October 2017 1 January 2018.

Part 1 Health and safety at work

Subpart 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.

Compare: 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 have effect according to their terms.

Subpart 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 5A.

Compare: 1992 No 96 s 3

5A 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) of the Crown Proceedings Act 1950, an injunction may be granted or another order made against an instrument of the Crown, in accordance with this Act, but only if—

(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.

Compare: 1992 No 96 s 3(2), (3)

6 Application of Act to Armed Forces

(1AA)

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.

(1)

Subject to this section, section 10A, and any regulations made under section 223, this Act applies to the Armed Forces and any military aircraft or naval ship.

(2)

This Act does not apply to—

(a)

a worker who—

(i)

is a member of the Armed Forces while the worker is on operational service carrying out any operational activity; or

(ii)

is carrying out work for the Armed Forces at a place outside New Zealand to which the Armed Forces are deployed on operational service 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 operational service an operational activity.

(3)

In subsection (2), operational service means

(a)

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 outside New Zealand:

(b)

any other service 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 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):

(c)

any service or activity, or a class of service or activity, that is declared by the Minister of Defence by notice in the Gazette to be operational service.

(3)

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 (3A) 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).

(3A)

The Chief of Defence Force may, by notice in writing, declare any service or activity or class of service or activity to be an operational activity for the purposes of this section.

(3B)

As soon as practicable after making a declaration under subsection (3A), 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 notice to the regulator.

(3C)

A declaration made under subsection (3A) must be published on an Internet site maintained by or on behalf of the New Zealand Defence Force.

(3D)

A declaration made under subsection (3A) is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

(4)

In commanding the New Zealand Defence Force, the Chief of the 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.

Compare: Work Health and Safety Act 2011 (Aust) s 12D

6A 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 of Security may, by notice in writing, declare that specified provisions of this Act or regulations do not apply (or apply with modifications) in relation to any worker carrying out work for the Security Intelligence Service:

(b)

the Director of the Government Communications Security Bureau may, by notice in writing, declare that specified provisions of this Act or regulations do not apply (or apply with modifications) in relation to any worker carrying out work for the Bureau.

(3)

Without limiting subsection (2), a declaration may apply to: 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 made under subsection (2) is not neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

(6)

In administering the Security Intelligence Service or the Bureau and in exercising the power under subsection (2), the Director of Security or Director of the Bureau (as the case requires) must take into account the need to promote the purpose of this Act to the greatest extent consistent with maintaining the security or defence of New Zealand or the international relations of the Government of New Zealand.

(7)

A worker who is an employee of the Security Intelligence Service or the Bureau may ask the Inspector-General to review a declaration made under subsection (2) to determine whether, in making the declaration, the Director of Security or Director of the 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 or Bureau means the Government Communications Security Bureau continued by section 6 of the Government Communications Security Bureau Act 2003

Inspector-General

(a)

means the Inspector-General of Intelligence and Security holding office under section 5 of the Inspector-General of Intelligence and Security Act 1996; and

(b)

includes the Deputy Inspector-General of Intelligence and Security holding office under section 5 of that Act

Minister,—

(a)

in relation to the Security Intelligence Service, has the same meaning as in section 2(1) of the New Zealand Security Intelligence Service Act 1969:

(b)

in relation to the Bureau, has the same meaning as in section 4 of the Government Communications Security Bureau Act 2003

Security Intelligence Service means the New Zealand Security Intelligence Service continued by section 3 of the New Zealand Security Intelligence Service Act 1969.

Compare: Work Health and Safety Act 2011 (Aust) s 12C

7 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, in relation to an aircraft, means while the aircraft is taxiing, taking off, flying, or landing.

Compare: 1992 No 96 s 3A(2), (3), (5)

8 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 6 (which relates to the application of this Act to the Armed Forces); or

(b)

section 9 (which relates to the application of this Act in the exclusive economic zone or in or on the continental shelf).

Compare: 1992 No 96, s 3B(1), (4)

9 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 or the Crown Minerals Act 1991 is carried out at the workplace; and

(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 has the same meaning as in section 2(1) of the Continental Shelf Act 1964

exclusive economic zone means the exclusive economic zone of New Zealand as defined in section 9 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977.

10 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 13.

(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.

Compare: Model Work Health and Safety Act (Aust), Schedule 1

Disapplication of Part 3

10A Certain provisions of Part 3 do not apply to members of Armed Forces

(1)

The following provisions of Part 3 do not apply to members of the Armed Forces:

(a)

section 65(1) (which relates to requests for the election of health and safety representatives); and

(b)

section 86A(1)(b) (which relates to requests for the establishment of a health and safety committee).

(2)

Sections 106 and 107 (which relate to the right of a worker to cease unsafe work and a health and safety representative to direct unsafe work to cease), do not authorise a member of the Armed Forces to cease work where a lawful order has been issued that requires the work to be undertaken.

10B Part 3 does not apply to volunteer workers

Nothing in Part 3 applies to a volunteer worker (as defined in section 14(3)).

11 Part 3 does not apply to prisoners

(1)

Nothing in Part 3 applies to a worker who is a prisoner who is carrying out work inside a prison.

(2)

In subsection (1)this section, prison and prisoner have the same meanings as in section 3(1) of the Corrections Act 2004.

Compare: Model Work Health and Safety Act (Aust) s 103

Subpart 3—Interpretation

General

12 Interpretation

In this Act, unless the context otherwise requires,—

ACC means the Accident Compensation Corporation continued by section 259 of the Accident Compensation Act 2001

adverse conduct has the meaning given in section 110

aircraft has the same meaning as in section 2(1) of the Civil Aviation Act 1990

approved code of practice means a code of practice approved by the Minister under section 229

Armed Forces has the same meaning as in section 2(1) of the Defence Act 1990

authorised has the meaning given in section 218A

CAA means the Civil Aviation Authority of New Zealand established by section 72A of the Civil Aviation Act 1990

cease work has the meaning given in section 105

Chief of Defence Force means the officer appointed under section 8 of the Defence Act 1990

compliance power means the functions and powers conferred on an inspector or a health and safety medical practitioner (as relevant) under this Act

constable has the same meaning as in section 4 of the Policing Act 2008

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

Crown organisation has the same meaning as in section 4 of the Crown Organisations (Criminal Liability) Act 2002

defence area has the same meaning as in section 2(1) of the Defence Act 1990

demise charter has the same meaning as in section 2(1) of the Ship Registration Act 1992

demolition includes deconstruction

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

(a)

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

(b)

the redesign or modification of a design

designated agency means an agency designated under section 207

employee has the same meaning as in section 6 of the Employment Relations Act 2000

employment agreement has the same meaning as in section 5 of the Employment Relations Act 2000

enforceable undertaking means an undertaking accepted by the regulator under section 144

engage in conduct means to do an act or omit to do an act

EPA means the Environmental Protection Authority established by section 7 of the Environmental Protection Authority Act 2011

EPA control has the same meaning as in section 2(1) of the Hazardous Substances and New Organisms Act 1996

foreign ship has the same meaning as in section 2(1) of the Maritime Transport Act 1994

handle includes transport

hazard includes a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour)

hazardous substance has the same meaning as in section 2(1) of the Hazardous Substances and New Organisms Act 1996

health means physical and mental health

health and safety medical practitioner means a person for the time being appointed under section 198

health and safety representative means a worker elected as a health and safety representative in accordance with 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 has the same meaning as in section 5 of the Employment Relations Act 2000

importation has the same meaning as in section 2(1) of the Customs and Excise Act 1996, and import has a corresponding meaning

improvement notice means a notice issued under section 123

inspector means an inspector appointed under section 181

issuing officer has the same meaning as in section 3(1) of the Search and Surveillance Act 2012

local authority has the same meaning as in section 5(1) of the Local Government Act 2002

Maritime New Zealand means the authority continued by section 429 of the Maritime Transport Act 1994

medical officer of health

(a)

has the same meaning as in section 2(1) of the Health Act 1956; and

(b)

includes the officers referred to in section 22 of that Act

medical practitioner means a health practitioner who—

(a)

is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine; and

(b)

holds a current practising certificate

military aircraft means an aircraft of, or pertaining to, the Armed Forces

Minister, except in section 6A, means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

naval ship has the same meaning as in section 2(1) of the Defence Act 1990

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 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977); and

(b)

includes—

(i)

all airspace within the territorial limits of New Zealand:

(ii)

the Ross Dependency

New Zealand Fire Service means the New Zealand Fire Service established by section 3 of the Fire Service Act 1975

New Zealand ship has the same meaning as in section 2(1) of the Maritime Transport Act 1994

New Zealand Transport Agency means the Agency established by section 93 of the Land Transport Management Act 2003

non-disturbance notice means a notice issued under section 130

notifiable event has the meaning given in section 20

notifiable incident has the meaning given in section 19

notifiable injury or illness has the meaning given in section 18

officer has the meaning given in section 13A

person includes the Crown, a corporation sole, and a body of persons, whether corporate or unincorporate

person conducting a business or undertaking or PCBU has the meaning given in section 13

personal information has the same meaning as in section 2(1) of the Privacy Act 1993

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 includes—

(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 means plant prescribed by regulations as high-risk plant

prohibited health and safety reason has the meaning given in section 111

prohibition notice means a notice issued under section 127

reasonably practicable, in relation to a duty of a PCBU set out in subpart 1 of Part 2, has the meaning given in section 17

regulations means regulations made under this Act

regulator means, as the case requires,—

(a)

WorkSafe; or

(b)

the relevant designated agency

regulatory agency means any of the following:

(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)

the New Zealand Fire Service:

(i)

a medical officer of health:

(j)

the Ministry of Health:

(k)

ACC:

(ka)

the Ministry of Business, Innovation, and Employment, including any statutory officer who carries out work for that business or undertaking:

(l)

a prescribed agency

relevant health and safety legislation means—

(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:

(iv)

WorkSafe New Zealand Act 2013

representative, in relation to a worker, means—

(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 means work done by a person employed or engaged by the occupier of a home of either or both of the following kinds:

(a)

domestic work done or to be done in the home:

(b)

work done or to be done in respect of the home

ship has the same meaning as in section 2(1) of the Maritime Transport Act 1994

statutory officer means a person—

(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 has the meaning given in section 16

suspension notice means a notice issued under section 201

union has the same meaning as in section 5 of the Employment Relations Act 2000

volunteer means a person who is acting on a voluntary basis (whether or not the person receives out-of-pocket expenses)

volunteer worker has the meaning given in section 14(3)

work group means a work group determined under section 66

worker has the meaning given in section 14

workplace has the meaning given in section 15

WorkSafe means WorkSafe New Zealand established by section 5 of the WorkSafe New Zealand Act 2013.

Compare: 1992 No 96 s 2(1); Model Work Health and Safety Act (Aust) s 4

Key terms

13 Meaning of PCBU

(1)

In this Act, unless the context otherwise requires, a person conducting a business or undertaking or 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:

(iiia)

a statutory officer to the extent that the officer is a worker in, or an officer of, the business or undertaking:

(iv)

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 subsection (1)(b)(ii)this section, volunteer association means a group of volunteers (whether incorporated or unincorporated) working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

Compare: Model Work Health and Safety Act (Aust) s 5

13A Meaning of officer

In this Act, unless the context otherwise requires, officer, in relation to a PCBU,

(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).

Compare: Model Work Health and Safety Act (Aust) s 4

14 Meaning of worker

(1)

In this Act, unless the context otherwise requires, a worker means an individual who carries out work in any capacity for a PCBU, including work as—

(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 subsection (1)(h)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.

Compare: 1992 No 96 s 3C(1), (3); Model Work Health and Safety Act (Aust) s 7

15 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 subsection (1)this section, place includes—

(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.

Compare: Model Work Health and Safety Act (Aust) s 8

16 Meaning of supply

(1)

In this Act, unless the context otherwise requires, supply, in relation to a thing,—

(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 means a financial services provider registered in accordance with Financial Service Providers (Registration and Dispute Resolution) Act 2008 that is in the business of providing a financial service within the meaning of section 5(e) of that Act

real estate agent has the same meaning as agent in section 4(1) of the Real Estate Agents Act 2008

registered auctioneer has the same meaning as in section 4(1) of the Auctioneers Act 2013.

Compare: Model Work Health and Safety Act (Aust) s 6

17 Meaning of reasonably practicable

In this Act, unless the context otherwise requires, reasonably practicable, in relation to a duty of a PCBU set out in subpart 1 of Part 2, means that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including—

(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.

Compare: Model Work Health and Safety Act (Aust) s 18

18 Meaning of notifiable injury or illness

(1)

In this Act, unless the context otherwise requires, a notifiable injury or illness, in relation to a person, means—

(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 microorganisms 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:

(f)

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 does not include any injury or illness declared by regulations not to be a notifiable injury or illness for the purposes of this sectionAct.

(3)

In this section,—

animal has the same meaning as in section 2(1) of the Animal Welfare Act 1999

fish has the same meaning as in section 2(1) of the Fisheries Act 1996

marine mammal has the same meaning as in section 2(1) of the Marine Mammals Protection Act 1978.

Compare: Model Work Health and Safety Act (Aust) s 36

19 Meaning of notifiable incident

(1)

In this Act, unless the context otherwise requires, a notifiable incident means an unplanned or uncontrolled incident in relation to a workplace that exposes a worker or any other person to a serious risk to that person’s health or safety arising from an immediate or imminent exposure to—

(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 does not include an incident declared by regulations not be a notifiable incident for the purposes of this sectionAct.

Compare: Model Work Health and Safety Act (Aust) s 37

20 Meaning of notifiable event

In this Act, unless the context otherwise requires, a notifiable event means any of the following events that arise from work:

(a)

the death of a person; or

(b)

a notifiable injury or illness; or

(c)

a notifiable incident.

Compare: Model Work Health and Safety Act (Aust) s 35

Examples

21 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.

Subpart 4—General provisions

28 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.

(4)

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.

Compare: Model Work Health and Safety Act (Aust) s 273

29 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 the Illegal Contracts Act 1970.

Compare: Model Work Health and Safety Act (Aust) s 272

29AA 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 section 7 of the Illegal Contracts Act 1970 or otherwise.

(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.

Compare: 1992 No 96 s 56I

Part 2 Health and safety duties

Subpart 1AA—Key principles relating to duties

29A 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.

Compare: Model Work Health and Safety Act (Aust) s 17

29B Duties not transferable

A duty imposed on a person by or under this Act may not be transferred to another person.

Compare: Model Work Health and Safety Act (Aust) s 14

29C 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.

Compare: 1992 No 96 s 2(2); Model Work Health and Safety Act (Aust) s 15

29D 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.

Compare: 1992 No 96 s 2(2); Model Work Health and Safety Act (Aust) s 16

29E 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.

Compare: Model Work Health and Safety Act (Aust) s 46

29F 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.

Subpart 1—Duties of PCBUs

30 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.

Compare: Model Work Health and Safety Act (Aust) s 19

32 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.

(1A)

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.

(1B)

For the purposes of subsection (1), if the workplace is a farm 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 any other part of the farm unless work is being carried out in that part at the time.

(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.

(2)

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.

Compare: Model Work Health and Safety Act (Aust) s 20

33 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.

(1A)

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.

(2)

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.

Compare: Model Work Health and Safety Act (Aust) s 21

34 Duty of PCBU who designs plant, substances, or structures

(1)

This section applies to a PCBU (a designer) who conducts a business or undertaking that designs—

(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).

Compare: Model Work Health and Safety Act (Aust) s 22

35 Duty of PCBU who manufactures plant, substances, or structures

(1)

This section applies to a PCBU (a manufacturer) who conducts a business or undertaking that manufactures—

(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).

Compare: Model Work Health and Safety Act (Aust) s 23

36 Duty of PCBU who imports plant, substances, or structures

(1)

This section applies to a PCBU (an importer) who conducts a business or undertaking that imports—

(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).

Compare: Model Work Health and Safety Act (Aust) s 24

37 Duty of PCBU who supplies plant, substances, or structures

(1)

This section applies to a PCBU (a supplier) who conducts a business or undertaking that supplies—

(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 means that the plant is sold without any representations or warranties about its quality, durability, or fitness, and with the entire risk in those respects to be borne by the buyer.

Compare: 1992 No 96 s 18A(4), (5); Model Work Health and Safety Act (Aust) s 25

38 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).

Compare: Model Work Health and Safety Act (Aust) s 26

Subpart 2—Duties of officers, workers, and other persons

39 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.

(1A)

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.

(1B)

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 does not have a duty to exercise due diligence to ensure that any council-controlled organisation (as defined in section 6 of the Local Government Act 2002) complies with its duties or obligations under this Act unless that member is also an officer of that council-controlled organisation.

(2)

In this section, due diligence includes taking reasonable steps—

(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).

(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, does not have a duty to exercise due diligence to ensure that any council-controlled organisation (as defined in section 6 of the Local Government Act 2002) complies with its duties or obligations under this Act unless that member is also an officer of that council-controlled organisation.

Compare: Model Work Health and Safety Act (Aust) s 27(1), (5)

40 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.

Compare: Model Work Health and Safety Act (Aust) s 28

41 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.

Compare: Model Work Health and Safety Act (Aust) s 29

Subpart 3—Offences relating to duties

42 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 1 or 2; and

(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.

Compare: Model Work Health and Safety Act (Aust) s 31

43 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 the person

(a)

the person has a duty under subpart 1 or 2; and

(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.

Compare: Model Work Health and Safety Act (Aust) s 32

44 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 1 or 2; and

(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 1 or 2, the maximum penalty under subsection (2) for an offence by an officer against subsection (1) in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

Compare: Model Work Health and Safety Act (Aust) ss 27(3), 33

Specific provisions relating to liability of certain persons

45 Liability of officers

An officer of a PCBU may be convicted or found guilty of an offence against section 39 whether or not the PCBU has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

Compare: Model Work Health and Safety Act (Aust) s 27(4)

46 Liability of volunteers

A volunteer does not commit an offence under section 42, 43, or 44 for a failure to comply with a duty imposed by subpart 1 or 2, except a duty under—

(a)

section 40 (duties of workers); or

(b)

section 41 (duties of other persons at workplaces).

Compare: Model Work Health and Safety Act (Aust) s 34(1)

47 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 42, 43, or 44 for a failure to comply with the duty imposed by section 39 (duties of officers).

(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 trustee of a board of a school appointed or elected under the Education Act 1989.

(3)

In subsection (2) this section,

board and trustee, in relation to a school, have the same meanings as in section 92(1) of the Education Act 1989

community board means a board established under section 49(1) of the Local Government Act 2002

local authority and local board have the same meanings as in section 5(1) of the Local Government Act 2002.

Other matters relating to offences

49 Actions taken to prevent harm

Where a person (person A) harms another person (person B) by taking any action necessary to protect person B or any other person from harm,—

(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.

Compare: 1992 No 96 s 51

50 Proof of intention not required for certain offences

In a matter involving a prosecution for an offence against section 43 or 44, it is not necessary to prove that the defendant—

(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.

Compare: 1992 No 96 s 53

Subpart 4—Duties to preserve sites and notify notifiable events

51 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 or the 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.

Compare: Model Work Health and Safety Act (Aust) s 39

52 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.

Compare: Model Work Health and Safety Act (Aust) s 38(1)–(6)

53 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 52.

(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.

Compare: Model Work Health and Safety Act (Aust) s 38(7)

Part 3 Engagement, worker participation, Worker engagement, participation, and representation

Subpart 1—Engagement with workers and worker participation practices

Engagement with workers

61 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 62.

(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.

Compare: Model Work Health and Safety Act (Aust) s 47

62 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.

Compare: Model Work Health and Safety Act (Aust) s 48

63 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:

(h)

when carrying out any other activity prescribed by regulations for the purposes of this section.

Compare: Model Work Health and Safety Act (Aust) s 49

Worker participation practices

64 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 subsection (1)this section, reasonable opportunities means opportunities that are reasonable in the circumstances, having regard to relevant matters, including—

(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 of the Employment Relations Act 2000.

(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.

Compare: 1992 No 96 s 19B

Subpart 2—Health and safety representatives and health and safety committees

Election of health and safety representatives

65 Election of health and safety representatives

(1)

A worker who carries out work for a business or undertaking may notify the PCBU that the worker wishes 1 or more health and safety representatives to be elected to represent workers who carry out work for that business or undertaking.

(1A)

If Subject to subsection (3), if a PCBU receives a notification under subsection (1), the PCBU must initiate the election of 1 or more health and safety representatives to represent workers who carry out work for that business or undertaking, within the time prescribed by regulations.

(2)

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.

(3)

Despite subsection (1A), a A PCBU is not required to initiate the election of 1 or more health and safety representatives, if the work of the business or undertaking—

(a)

is carried out by fewer than 20 workers; and

(b)

is not within the scope of any prescribed high-risk sector or industry prescribed by regulations for the purposes of this section.

(3A)

A PCBU who seeks to rely on subsection (3) to refuse a worker’s request for the election of 1 or more health and safety representatives under subsection (1) must give written notice to that effect within a reasonable time to that worker.

(4)

The PCBU’s obligation to hold an election in response to a worker’s request for the election of 1 or more health and safety representatives under subsection (1) applies only in relation to holding an election for the work group to which that worker belongs.

(5)

A person who contravenes subsection (1A) or (3A) 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.

Compare: Model Work Health and Safety Act (Aust) s 50

65A 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 65) must comply with any prescribed requirements.

Compare: 1992 No 96 s 19V; Model Work Health and Safety Act (Aust) s 61(2)

Determination of work groups

66 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 65, the PCBU must determine 1 or more work groups, in accordance with either subsection (2) or (3).

(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.

Compare: Model Work Health and Safety Act (Aust) s 51(1), (2), (3)

66A Determination of numbers of health and safety representatives for work groups

(1)

A PCBU who determines a work group under section 66(2), If section 66(2) applies, the PCBU must determine the number of health and safety representatives who may be elected for that work group in accordance with the prescribed minimum ratio of health and safety representatives to workers.

(2)

A PCBU who determines a work group under section 66(3), If section 66(3) applies, the PCBU must determine the number of health and safety representatives who may be elected for that work group in accordance with any prescribed requirements.

Health and safety committees

86A Health and safety committees

(1)

The following persons may request that the PCBU at a workplace 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 Subject to subsection (3), the PCBU must, within 2 months of receiving a request under subsection (1), decide whether to establish a health and safety committee for the business or undertaking or part of the business or undertaking.

(3)

Despite subsection (2), a A PCBU is not required to decide whether to establish a health and safety committee if the work of the business or undertaking—

(a)

is carried out by fewer than 20 workers; and

(b)

is not within the scope of any prescribed high-risk sector or industry prescribed by regulations for the purposes of this section.

(3A)

A PCBU who considers subsection (3) applies in relation to a request under subsection (1) must give written notice to that effect within a reasonable time to the person (or persons) who made the request.

(4)

The PCBU may refuse a request made under subsection (1) if the PCBU is satisfied that existing worker participation practices at the workplace sufficiently meet the requirements of section 64.

(5)

The PCBU must give written notice of its decision under subsection (2)

(a)

as soon as practicable to workers who the PCBU considers have an interest in the decision; and

(b)

no later than any prescribed time.

(6)

If the PCBU refuses decides to refuse a request made under subsection (1), the notice under subsection (5) must include—

(a)

the reasons for the decision; and

(b)

a statement that workers may raise the refusal as an issue under subpart 7 of this Part.

(7)

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.

(8)

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.

Compare: Model Work Health and Safety Act (Aust) s 75

Further provisions relating to health and safety representatives, health and safety committees, and health and safety in mining sector

86B Further provisions relating to health and safety representatives and health and safety committees

(1)

Part 1 of Schedule 1A contains further provisions that apply to health and safety representatives for a business or undertaking.

(2)

Part 2 of Schedule 1A contains further provisions that apply to health and safety committees for a business or undertaking.

87 Further provisions relating to mining sector

Schedule 2 contains further provisions that apply to health and safety representatives and other matters in the mining sector.

Subpart 4—Provisional improvement notices

92 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 heath and safety representative represents, as soon as practicable.

Compare: Model Work Health and Safety Act (Aust) s 90

93 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.

Compare: Model Work Health and Safety Act (Aust) s 90(4)

94 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.

Compare: Model Work Health and Safety Act (Aust) ss 91, 92

95 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).

Compare: Model Work Health and Safety Act (Aust) s 93

96 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.

Compare: Model Work Health and Safety Act (Aust) s 94

97 Issue of provisional improvement notice

A provisional improvement notice must be issued to a person in accordance with section 138.

Compare: Model Work Health and Safety Act (Aust) s 95

98 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.

Compare: Model Work Health and Safety Act (Aust) s 96

99 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.

Compare: Model Work Health and Safety Act (Aust) s 97

100 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.

Compare: Model Work Health and Safety Act (Aust) s 98

101 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 102 to review the notice.

(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.

Compare: Model Work Health and Safety Act (Aust) s 99

102 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.

Compare: Model Work Health and Safety Act (Aust) s 100

103 Regulator must ensure inspector reviews notice

(1)

The regulator must ensure that, as soon as practicable after a request is made under section 102, an inspector—

(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.

Compare: Model Work Health and Safety Act (Aust) s 101

104 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 138 to—

(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.

Compare: Model Work Health and Safety Act (Aust) s 102

Subpart 5—Right to cease or direct cessation of unsafe work

105 Meaning of cease work

In this subpart, unless the context otherwise requires, cease work means—

(a)

to cease or refuse to carry out work under section 106; or

(b)

to cease work on a direction under section 107.

Compare: Model Work Health and Safety Act (Aust) s 83

106 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 exist if a health and safety representative has advised the worker 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.

(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.

Compare: 1992 No 96 s 28A; Model Work Health and Safety Act (Aust) ss 84, 86

107 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.

Compare: 1992 No 96 s 28A; Model Work Health and Safety Act (Aust) s 85(1), (2), (4), (5)

107A Training requirements relating to giving direction to cease work

A health and safety representative must not give a direction under section 107 to cease work 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.

Compare: Model Work Health and Safety Act (Aust) s 85(6)

108 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 means,—

(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.

Compare: 1992 No 96 s 28A(6); Model Work Health and Safety Act (Aust) s 87

109 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.

Compare: Model Work Health and Safety Act (Aust) s 89

Subpart 6—Prohibition of adverse, coercive, or misleading conduct

110 Meaning of adverse conduct

(1)

For the purposes of this subpart, a person engages in adverse conduct if—

(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 includes anything that has a detrimental effect on the worker’s employment or engagement, job performance, or job satisfaction.

Compare: Model Work Health and Safety Act (Aust) s 105

111 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 if it is engaged in because the worker or prospective worker or the person referred to in section 110(1)(b) or (c) (as the case requires)—

(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 106 or 107.

Compare: Model Work Health and Safety Act (Aust) s 106

112 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.

Compare: Model Work Health and Safety Act (Aust) s 104

113 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 112.

(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.

Compare: Model Work Health and Safety Act (Aust) s 107

114 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 includes a person who has a legal duty (under any enactment, employment agreement, other binding agreement or arrangement, or other source) to, at the scene of an emergency, provide 1 or more of the following services:

(a)

ambulance services, first aid, or medical or paramedical care:

(b)

services provided by or on behalf of a fire brigade (within the meaning of section 2(1) of the Fire Service Act 1975) to save life or property

organise or take, or threaten to organise or take, any action against a person includes not taking a particular action or threatening not to take a particular action in relation to that person.

Compare: Model Work Health and Safety Act (Aust) s 108

115 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.

Compare: Model Work Health and Safety Act (Aust) s 109

116 Proof of adverse conduct

(1)

This section applies if, in proceedings for an offence of contravening section 112 or 113, the prosecution—

(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.

Compare: Model Work Health and Safety Act (Aust) s 110(1), (2)

Civil proceedings in relation to adverse or coercive conduct

117 Civil proceedings in relation to engaging in or inducing adverse or coercive conduct

(1)

An eligible person may apply to a District Court for 1 or more orders specified in subsection (2) in relation to a person who has—

(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 114 (which relates to the prohibition on coercion or inducement).

(2)

The orders are—

(a)

an injunction restraining the person from engaging in conduct described in subsection (1); or:

(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; or:

(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 means—

(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.

Compare: Model Work Health and Safety Act (Aust) s 112

118 Procedure for civil proceedings for adverse conduct

(1)

A proceeding brought under section 117 must be commenced not more than 1 year after the date on which the action or conduct occurred or came to the notice of the eligible person, whichever is the later.

(2)

In a proceeding under section 117 in relation to conduct referred to in section 117(1)(a) or (b), if a prohibited health and safety reason is alleged for adverse conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(3)

It is a defence to a proceeding under section 117 in relation to conduct referred to in section 117(1)(a) or (b) if the defendant proves that—

(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.

Compare: Model Work Health and Safety Act (Aust) s 113

General provisions

119 General provisions

(1)

Subject to subsections (2) and (3), the bringing of a prosecution under section 112, 113, or 114 does not prevent, in respect of the same conduct,—

(a)

the bringing of a civil proceeding under section 117; or

(b)

the raising of a personal grievance under the Employment Relations Act 2000.

(2)

If a District Court orders reparation to be paid under the Sentencing Act 2002 following conviction of a person under section 112, 113, or 114,—

(a)

the court may not order compensation to be payable in respect of the same losses in a civil proceeding under section 117:

(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.

Compare: Model Work Health and Safety Act (Aust) s 114

Subpart 7—Issue resolution

120 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.

Compare: Model Work Health and Safety Act (Aust) s 81

121 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 120 to achieve a resolution of the issue.

(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.

Compare: Model Work Health and Safety Act (Aust) s 82(1), (2)

Part 4 Enforcement and other matters

122 Meaning of notice

In this Part, notice, unless the context otherwise requires,—

(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.

Subpart 1—Enforcement measures

Improvement notices

123 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.

Compare: 1992 No 96 s 39(1), (2); Model Work Health and Safety Act (Aust) s 191

124 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; or:

(b)

the things or activities causing the contravention, or likely to cause a contravention, to which the notice relates.

Compare: 1992 No 96 s 39(3), (4); Model Work Health and Safety Act (Aust) s 192

125 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.

Compare: 1992 No 96 s 39(5); Model Work Health and Safety Act (Aust) s 193

126 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 125(1); and

(b)

includes any extension of that period under this section.

Compare: Model Work Health and Safety Act (Aust) s 194

Prohibition notices

127 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 1A of Part 5 or a mining operation (as defined in clause 2 of Schedule 2), an inspector—

(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) issued to the person as soon as practicable.

Compare: 1992 No 96 s 41(1); Model Work Health and Safety Act (Aust) s 195

128 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 127(1)(b) applies, specify the provision of this Act or regulations that the inspector believes is being, or is likely to be, contravened by that matter or activity.

(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 127, a prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying 1 or more of the following:

(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.

Compare: 1992 No 96 s 41(2), (4); Model Work Health and Safety Act (Aust) s 196

129 Compliance with prohibition notice

(1)

A person to whom a direction is given under section 127(2) or to whom a prohibition notice is issued must comply with the direction or 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 $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.

Compare: 1992 No 96 s 43; Model Work Health and Safety Act (Aust) s 197

Non-disturbance notices

130 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.

Compare: Model Work Health and Safety Act (Aust) s 198

131 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 subsection (1)this section, a reference to a site includes any plant, substance, structure, or thing associated with the 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.

Compare: Model Work Health and Safety Act (Aust) s 199

132 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.

Compare: Model Work Health and Safety Act (Aust) s 200

133 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 131 (which deals with the content of non-disturbance notices).

Compare: Model Work Health and Safety Act (Aust) s 201

General provisions

134 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.

Compare: 1992 No 96 s 44; Model Work Health and Safety Act (Aust) s 203

135 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.

Compare: Model Work Health and Safety Act (Aust) s 206

136 Regulator may vary or cancel notice

Except as provided in section 135, a notice issued by an inspector or a health and safety medical practitioner may be varied or cancelled only by the regulator.

Compare: Model Work Health and Safety Act (Aust) s 207

137 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 138.

Compare: Model Work Health and Safety Act (Aust) s 208

138 Issue of notice

(1)

A notice may be issued to a person—

(a)

by delivering it personally to the person or sending it by post, fax, or electronic transmission to the person’s usual or last known place of residence or business; or

(ab)

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

(b)

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

(c)

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

(d)

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)(ab)(i) is to be treated as having been received on the seventh day after the date on which it was posted.

Compare: 1992 No 96 ss 40, 42; Model Work Health and Safety Act (Aust) s 209

139 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.

Compare: Model Work Health and Safety Act (Aust) s 210

139A Inspector may display notice

(1)

An inspector who issues a notice under section 138 may, either before or after issuing the notice, display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which the 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 (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.

Compare: 1996 No 96 s 42(1)

Subpart 2—Remedial action

140 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.

Compare: Model Work Health and Safety Act (Aust) s 211

141 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 exist; 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.

Compare: Model Work Health and Safety Act (Aust) s 212

142 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 140 from the person to whom a prohibition notice is issued; or

(b)

section 141 from any person to whom a prohibition notice could have been issued in relation to the matter.

Compare: Model Work Health and Safety Act (Aust) s 213

Subpart 3—Civil proceedings for non-compliance with notices

143 Civil proceedings relating to non-compliance with notice

(1)

On an application by the regulator, a District Court may make an order—

(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.

Compare: Model Work Health and Safety Act (Aust) s 215

Subpart 4—Enforceable undertakings

144 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 42.

(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.

Compare: Model Work Health and Safety Act (Aust) s 216

145 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.

Compare: Model Work Health and Safety Act (Aust) s 217

146 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.

Compare: Model Work Health and Safety Act (Aust) s 218

147 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.

Compare: Model Work Health and Safety Act (Aust) s 219

148 Contravention of enforceable undertaking

(1)

The regulator may apply to a District Court for an order if a person contravenes an enforceable undertaking.

(2)

If the court is satisfied that the person who made the enforceable undertaking has contravened the undertaking, the court may make 1 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.

(5)

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.

Compare: Model Work Health and Safety Act (Aust) s 220

149 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.

Compare: Model Work Health and Safety Act (Aust) s 221

150 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.

Compare: Model Work Health and Safety Act (Aust) s 222

Subpart 5—Reviews and appeals

151 Interpretation

In this subpart, unless the context otherwise requires,—

appealable decision means any of the following:

(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:

(da)

a decision made by the regulator to stay the operation of a decision to issue a notice:

(e)

a decision made by the regulator of a type prescribed by regulations for the purposes of this section

eligible person, in relation to an appealable decision or a reviewable decision, means a person affected by the decision or that person’s representative

reviewable decision means a decision made by an inspector—

(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)

under section 104 in respect of a provisional improvement notice under section 104; or

(d)

of a type prescribed by regulations for the purposes of this section.

Internal review

152 Application for internal review

(1)

An eligible person in relation to a reviewable decision may apply to the regulator for review (an internal review) of the decision within—

(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 is,—

(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.

Compare: Model Work Health and Safety Act (Aust) s 224

153 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.

Compare: Model Work Health and Safety Act (Aust) ss 225, 226

154 Notice of decision on internal review

As soon as practicable after making a decision in accordance with section 153, the regulator must give the applicant in writing—

(a)

the decision on the internal review; and

(b)

the reasons for the decision.

Compare: Model Work Health and Safety Act (Aust) s 227

155 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.

Compare: Model Work Health and Safety Act (Aust) s 228

Appeal to District Court

156 Application for appeal

(1)

An eligible person may appeal to a District Court against an appealable decision on the grounds that it is unreasonable.

(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.

Compare: 1992 No 96 s 46; Model Work Health and Safety Act (Aust) s 229

Subpart 6—Infringement offences

157 Interpretation

In this subpart,—

infringement fee, in relation to an infringement offence, means the infringement fee for the offence prescribed for the purposes of this section in regulations

infringement offence means an offence against this Act (except an offence against section 42, 43, or 44) or regulations that is declared by regulations to be an infringement offence for the purposes of this Act.

158 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 of the Criminal Procedure Act 2011; or

(b)

be served with an infringement notice under section 159.

(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) of the Summary Proceedings Act 1957.

159 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) of the Summary Proceedings Act 1957; and

(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 of the Summary Proceedings Act 1957 may be used in respect of the offence to which the infringement notice relates and, in that case, the provisions of that section apply with all necessary modifications.

Compare: 1992 No 96 ss 56B(1)(a), 56E(2)–(5)

160 Revocation of infringement notice

(1)

The regulator may revoke an infringement notice issued under section 159 before the infringement fee is paid or an order for payment of a fine is made or deemed to be made by a court under section 21 of the Summary Proceedings Act 1957.

(2)

An infringement notice is revoked by giving written notice to the person to whom it was issued that the notice is revoked.

Compare: 1992 No 96 s 56B(2), (3)

161 Payment of infringement fees

All infringement fees paid in respect of infringement offences must be paid into a Crown Bank Account.

Compare: 1992 No 96 s 56G

Subpart 7—Criminal proceedings

162 Meaning of enforcement action

In this subpart, unless the context otherwise requires,—

enforcement action means,—

(a)

in relation to the regulator, the filing of a charging document under section 14 of the Criminal Procedure Act 2011 or the issuing of an infringement notice in respect of an offence under this Act:

(b)

in relation to a person other than the regulator, the filing of a charging document under section 14 of the Criminal Procedure Act 2011 in respect of an offence under this Act.

163 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.

Compare: 1992 No 96 s 54

164 Prosecutions by regulator

Subject to section 165, a prosecution for an offence under this Act may be brought only by the regulator.

Compare: 1992 No 96 s 54A

165 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 163(2)(b) that neither the regulator nor a regulatory agency—

(i)

has taken enforcement action or prosecution action against any person in respect of the same incident, situation, or set of circumstances; and

(ii)

will intends to take any enforcement action or prosecution action.

(1A)

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.

(2)

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 163(2)(b) that the regulator has made a decision not to take enforcement action in respect of the same incident, situation, or set of circumstances.

(3)

If a person applies for leave under subsection (2)(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.

(4)

Section 26(2) to (5) of the Criminal Procedure Act 2011 applies to an application for leave under subsection (2)(a) with the following modifications:

(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.

Compare: 1992 No 96 s 54A(2), (3)

166 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.

Compare: 1992 No 96 s 54E

Limitation periods for prosecutions

167 Limitation period for prosecutions brought by regulator

(1)

Despite section 25 of the Criminal Procedure Act 2011, proceedings for an offence under this Act may be brought by the regulator within the latest of the following periods to occur:

(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 of the Coroners Act 2006 if it appears from the certificate of findings (or the proceedings of an inquiry) that an offence has been committed under this Act:

(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 149 to the withdrawal of the enforceable undertaking.

(2)

Subsection (1)(a) is subject to section 167A.

Compare: 1992 No 96 s 54B; Model Work Health and Safety Act (Aust) s 232

167A 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 167(1)(a).

(2)

The District Court may, on application by the regulator made before the end of the 12-month period specified in section 167(1)(a), extend the time available for filing a charging document for a further period not exceeding 12 months from the date of expiry of the 12-month period specified in section 167(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 163(1).

Compare: 1992 No 96 s 54D

167B Limitation period for private prosecutions

Despite section 25 of the Criminal Procedure Act 2011, proceedings for an offence against this Act may be brought by a person other than the regulator within the latest of the following periods to occur:

(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 of the Coroners Act 2006 if it appears from the certificate of findings (or the proceedings of an inquiry) that an offence has been committed under this Act:

(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 149 to the withdrawal of the enforceable undertaking.

167C Extension of time for certain proceedings Certain proceedings may be brought after end of limitation period if fresh evidence discovered

Despite anything in section 167, 167A, or 167B, the following proceedings may be brought after the end of the applicable limitation period if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within that period:

(a)

proceedings for an offence against section 42:

(b)

proceedings for an offence against section 43 that relates to the death of a person.

Compare: Model Work Health and Safety Act (Aust) s 232(2)

Subpart 8—Sentencing for offences

168 Application of subpart

This subpart applies if a court convicts a person (an offender) or finds an offender guilty of an offence under this Act.

Compare: Model Work Health and Safety Act (Aust) s 234

169 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 42, 43, or 44.

(2)

The court must apply the Sentencing Act 2002 and must have particular regard to—

(a)

sections 7 to 10 of that Act; and

(b)

the purpose of this Act; and

(c)

the risk of, and the potential for, illness, injury, or death that could have occurred; and

(ca)

whether death, serious injury, or serious illness occurred or could reasonably have been expected to have occurred; and

(d)

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

(e)

the degree of departure from prevailing standards in the person’s sector or industry as an aggravating factor; and

(f)

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.

Compare: 1992 No 96 s 51A

170 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 of the Costs in Criminal Cases Act 1967.

(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.

Compare: 1967 No 129 s 4(5)

171 Adverse publicity orders

(1)

A court may make an order (an adverse publicity order) requiring an offender—

(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).

Compare: Model Work Health and Safety Act (Aust) s 236

172 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 of the Sentencing Act 2002.

Compare: Model Work Health and Safety Act (Aust) s 237

173 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.

Compare: Model Work Health and Safety Act (Aust) s 238

174 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.

Compare: Model Work Health and Safety Act (Aust) s 239

175 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.

Compare: Model Work Health and Safety Act (Aust) s 240

176 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.

Compare: Model Work Health and Safety Act (Aust) s 241

177 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 174; or

(b)

an injunction granted under section 175.

(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.

Compare: Model Work Health and Safety Act (Aust) s 242

Subpart 8A—General provisions relating to proceedings

178 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, in relation to a person, includes the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention, opinion, belief, or purpose.

Compare: Model Work Health and Safety Act (Aust) s 244(2), (3)

179 Conduct of directors, employees, or agents attributed

(1)

Conduct engaged in on behalf of an individual (person A) by any of the following must be treated, for the purposes of this Act, as having been engaged in also by 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.

Compare: Model Work Health and Safety Act (Aust) s 244(1)

180A Proceedings involving classified security information

Schedule 2A contains provisions that apply in civil and criminal proceedings that involve classified security information.

Subpart 9—Inspectors and health and safety medical practitioners

Inspectors

181 Appointment of inspectors

(1)

The regulator may, by notice in writing, appoint any of the following as an inspector:

(a)

an employee of a department (within the meaning of the State Sector Act 1988):

(b)

an employee of the State services (within the meaning of the State Sector Act 1988):

(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.

(4)

The regulator has all the powers that an inspector has under this Act.

Compare: Model Work Health and Safety Act (Aust) ss 156, 161

182 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.

Compare: Model Work Health and Safety Act (Aust) s 157

183 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.

Compare: Model Work Health and Safety Act (Aust) s 159

184 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.

Compare: Model Work Health and Safety Act (Aust) s 162

184A Regulator has powers of inspector

The regulator has all the powers that an inspector has under this Act.

185 Powers of entry and inspection

(1)

Subject to section 186, for the purpose of performing any function of the regulator or an inspector under relevant health and safety legislation, any inspector may, at any reasonable time, enter any workplace and—

(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 includes any document.

Compare: 1992 No 96 s 31; Model Work Health and Safety Act (Aust) s 163

186 Power to enter homes

(1)

Despite section 185(1) and (2), an inspector must not, except with the consent of an occupier or pursuant to a warrant issued under subsection (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 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 inspector may enter the workplace.

(3)

A warrant issued under subsection (2) authorises an inspector to exercise only the powers specified in section 185.

Compare: 1992 No 96 s 31; Model Work Health and Safety Act (Aust) s 170

187 Power to deal with cause of imminent danger

(1)

This section applies if an inspector who enters a workplace under section 185 or 186 reasonably believes that any material, substance, structure, or thing in a workplace is defective or hazardous to a degree that it is likely to imminently cause death or serious injury or illness or a notifiable incident (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.

(4)

This section is subject to section 186.

Compare: Model Work Health and Safety Act (Aust) s 176; Health and Safety at Work etc. Act 1974 (UK) s 25

188 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 includes—

(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.

Compare: 1992 No 96 s 32(2); Model Work Health and Safety Act (Aust) s 164

189 Power to take samples and other objects and things

(1)

An inspector who enters a workplace or a former workplace under section 185 or 186 may take or remove a sample of any material, substance, or thing for analysis, or seize and retain any material, substance, or thing, for the purpose of—

(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, and 159 of the Search and Surveillance Act 2012 apply in relation to any sample, material, substance, or thing removed or retained.

(7)

Those sections The provisions of the Search and Surveillance Act 2012 referred to in subsection (6) apply as if—

(a)

the reference in section 159(1) of that Act to a person described in section 156(2) were to—

(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.

Compare: 1992 No 96 s 33; Model Work Health and Safety Act (Aust) ss 165, 178, 180

190 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 of the Search and Surveillance Act 2012 by a specified person authorised under subsection (1), if the issuing officer is satisfied that there are reasonable grounds—

(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 means—

(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 and Part 4 of the Search and Surveillance Act 2012 (except sections 118 and 119) apply, with any necessary modifications.

Compare: Model Work Health and Safety Act (Aust) s 167

191 Continuation of powers of entry and inspection without search warrants

An inspector who, in the course of exercising a power under section 185 or 186, finds evidence of contravention of relevant health and safety legislation is not required to obtain a search warrant under section 190 to continue exercising powers under section 185 or 186.

192 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.

Compare: Model Work Health and Safety Act (Aust) s 185

193 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.

Compare: 1992 No 96 s 47

194 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.

Compare: Model Work Health and Safety Act (Aust) s 270(1)

195 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 192(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.

Compare: Model Work Health and Safety Act (Aust) s 185

196 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.

Compare: 1992 No 96 s 48; Model Work Health and Safety Act (Aust) s 188

197 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.

Compare: 1992 No 96 s 58; Model Work Health and Safety Act (Aust) s 189

Health and safety medical practitioners

198 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.

Compare: 1992 No 96 s 34(1)–(3)

198A 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.

Compare: 1992 No 96 s 34(4)

199 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 (3),—

(a)

enter a workplace that is, or is within, a home; or

(b)

enter a workplace through a home.

(2A)

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.

(3)

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.

Compare: 1992 No 96 s 35

200 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 201, significant hazard means a hazard that is an actual or a potential cause or source of—

(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.

Compare: 1992 No 96 s 36

201 Health and safety medical practitioners may suspend workers in certain cases

(1)

Subject to the provisions of 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 200; or

(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.

Compare: 1992 No 96 s 37

202 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.

203 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.

Compare: 1992 No 96 s 38

204 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.

Compare: 1992 No 96 s 38

Part 5 Miscellaneous provisions

Subpart 1—Administration

205 Role of WorkSafe

Except to the extent that a designation under section 207 is in force, WorkSafe is the regulator for the purposes of this Act.

206 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:

(ca)

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:

(d)

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:

(e)

to promote and support research, education, and training in work health and safety:

(f)

to collect, analyse, and publish statistics and other information relating to work health and safety:

(g)

to engage in, promote, and co-ordinate the sharing of information with other regulatory agencies:

(h)

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:

(i)

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:

(j)

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.

Compare: Model Work Health and Safety Act (Aust) ss 152, 153(2)

Designated agencies

207 Designated agencies

(1)

The Prime Minister may, having regard to the specialist knowledge of the agency, designate by notice in the Gazette, an agency listed in subsection (3) as a designated agency.

(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 and must specify the scope of the designated agency’s role (scope of designation) by reference to—

(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 27A of the State Sector Act 1988):

(b)

a Crown entity (within the meaning of section 7 of the Crown Entities Act 2004):

(c)

the Commissioner of Police:

(d)

the Chief of Defence Force.

(4)

A designation under subsection (1) is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Compare: 1992 No 96 s 28B

208 Role of designated agencies

(1)

If a designated agency has been given a scope of designation under section 207, WorkSafe or another agency may perform functions or exercise powers under this Act or any other enactment in respect of the scope of designation only if the designated agency has given its consent for WorkSafe or the other agency to do so.

(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).

209 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.

Compare: Model Work Health and Safety Act (Aust) s 208

Joint policy directions

210 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 and 115 of the Crown Entities Act 2004 apply to a direction given under subsection (1) subject to—

(a)

all references to a Crown entity or entity being read as references to a designated agency; and

(b)

any other necessary modifications.

Compare: 1992 No 96 s 28B(2)

Health and Safety at Work Strategy and workplace injury prevention

211 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.

212 Workplace injury prevention

(1)

Section 264A of the Accident Compensation Act 2001 requires WorkSafe and ACC to, at all times, have a workplace injury prevention action plan that meets the requirements of that section.

(2)

Section 264B of the Accident Compensation Act 2001 requires WorkSafe and ACC to enter into written agreements about injury prevention measures that are—

(a)

jointly undertaken by ACC and WorkSafe; or

(b)

undertaken by WorkSafe and partly or wholly funded by ACC.

Information sharing

213 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 1993.

(5)

This section applies despite anything to the contrary in any contract, deed, or document.

214 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 51 section 52.

(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.

215 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 of the Health Act 1956 of a notifiable disease that he or she reasonably believes arises from work:

(b)

a notification under section 143 of the Hazardous Substances and New Organisms Act 1996 of an injury caused by a hazardous substance that he or she reasonably believes arises from work.

(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 1993 and any relevant code of practice issued under that Act.

216 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.

Compare: 1992 No 96 s 28; Model Work Health and Safety Act (Aust) s 187

Funding levy

217 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) on the earnings specified in relation to that person at a rate or rates prescribed by regulations.

(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 3(2) to (4) of the Income Tax Act 2007 applies, on the amount of earnings derived or deemed to have been derived by the shareholder-employee.

(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 means any expected cost to the Crown associated with—

(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 means the chief executive of the department responsible for administering this Act

earner, earnings, and earnings as a self-employed person have the same meanings as in section 6(1) of the Accident Compensation Act 2001

Work Account levy means the levy payable under section 168, 168A, 168B, or 211 of the Accident Compensation Act 2001.

(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.

Compare: 1992 No 96 s 59

218 Consultation requirement relating to funding levy

The Minister must not recommend the making of regulations for the purposes of section 217 without first—

(a)

consulting WorkSafe and ACC; and

(b)

having regard to any recommendations of WorkSafe made under section 10(d) of the WorkSafe New Zealand Act 2013.

Compare: 1992 No 96 s 59(7)

Subpart 1A—Authorisations

218A Meaning of authorised

In this subpart, authorised means authorised by a licence, permit, registration, consent, certificate, or other authority (however described) as required by regulations.

Compare: Model Work Health and Safety Act (Aust) s 40

218B 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.

Compare: Model Work Health and Safety Act (Aust) s 41

218C 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.

Compare: Model Work Health and Safety Act (Aust) s 42

218D 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.

Compare: Model Work Health and Safety Act (Aust) s 43

218E 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.

Compare: Model Work Health and Safety Act (Aust) s 44

218F 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.

Compare: Model Work Health and Safety Act (Aust) s 45

Subpart 2—General provisions

219 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)

stating states that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and

(ii)

setting sets out, or referring 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.

Compare: Model Work Health and Safety Act (Aust) s 268

220 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 213; or

(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 1993).

Compare: Model Work Health and Safety Act (Aust) s 271

Subpart 3—Regulations, exemptions, approved codes of practice, and safe work instruments

Regulations

221 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:

(ca)

imposing specific duties on persons in relation to any matter provided for under regulations:

Notifiable events

(d)

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

(e)

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

(f)

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, for example, workplace exposure standards or biological exposure indices:

Hazards and risks

(g)

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

(h)

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:

(ha)

prescribing the information that must be included in any notice, report, or other document made available or given in accordance with paragraph (h):

Authorisations

(i)

prescribing matters relating to authorisations (including licences, certifications, registrations, and permits) qualifications, and experience for the purposes of subpart 1A of Part 5 or regulations, including providing for—

(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, or variation variation, or audit of authorisations:

(xiv)

the keeping of 1 or more registers of authorisations, and for access to those registers:

(j)

the recognition of authorisations granted under other enactments or by other jurisdictions and any exceptions to such recognition:

Identity cards

(k)

prescribing matters relating to identity cards:

Review and appeal of decisions

(l)

prescribing matters relating to the review and appeal of decisions made under this Act:

Mining sector

(m)

prescribing matters relating to industry health and safety representatives, including the eligibility criteria for appointment as an industry health and safety representative:

(n)

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

(o)

prescribing exemptions from compliance with regulations on the terms and conditions (if any) prescribed:

(p)

prescribing criteria or other requirements that relate to exemptions granted by the regulator under section 228A, including specifying that an exemption must not be granted in respect of any particular provision or provisions:

Offences and penalties

(q)

creating offences in respect of the contravention of regulations and providing for the imposition of fines not exceeding $50,000:

Infringement offences

(r)

prescribing infringement offences for the purposes of this Act and regulations:

(s)

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:

(t)

prescribing the form of infringement notices and infringement offence reminder notices:

Fees and charges

(u)

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

(v)

prescribing the information that must be contained in forms for the purposes of this Act:

General

(w)

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)(o), the reasons for it must be set out in the explanatory note of the regulations.

Compare: 1992 No 96 ss 21, 23; Model Work Health and Safety Act (Aust) Schedule 3

222 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:

(ga)

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 of the Defence Act 1990 that may be in addition to, or in place of, the provisions of the regulations:

(h)

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:

(i)

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 of the Hazardous Substances and New Organisms Act 1996 establishing a hazard classification system that replaces the hazard classification system provided for in the Hazardous Substances (Classification) Regulations 2001 and the Hazardous Substances (Minimum Degrees of Hazard) Regulations 2001 (the 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.

Compare: 1996 No 30 ss 75, 140

223 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.

224 Regulations relating to worker engagement, participation, and representation

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:

(iva)

specifying high-risk sectors or industries for the purposes of sections 65(3)(b) and 86A(3)(b):

(ivb)

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) of Schedule 1A, based on the number of workers who work for the PCBU as at specified dates in the year:

(ivc)

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) of Schedule 1A:

(v)

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.

Compare: 1992 No 96 s 21; Model Work Health and Safety Act (Aust) Schedule 3 cl cls 8, 9

224A 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 226.

225 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 on which this section commences of commencement of this section.

226 Consultation requirements for making certain regulations

(1)

The Minister must not recommend the making of any regulations under section 221, 222, 224, or 224A without first consulting persons and organisations that the Minister considers appropriate, having regard to the subject matter of the proposed regulations.

(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.

Compare: 1992 No 96 s 21(2), (3)

227 Further provisions relating to regulations

(1)

Regulations made under this Act may—

(aa)

impose similar or additional duties on a person in relation to the same circumstances or matters as this Act does:

(a)

be of general or limited application:

(b)

differ according to differences in time, place, or circumstance, or any other basis:

(c)

impose prohibitions:

(d)

apply differently to people of a differing age or health status, and may apply only to people of a particular age or health status:

(e)

apply differently to different classes of person, workplace, plant, structure, substance, or kind of risk:

(f)

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 may not be held invalid just are not invalid merely because they confer any discretion on, or allow any matter to be determined or approved by, any person.

Compare: 1992 No 96 s 22

228 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; and

(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 10 (which relates to the application of this Act to prescribed high-risk plant):

(b)

section 13 (which defines person conducting a business or undertaking):

(c)

section 14 (which defines worker):

(d)

section 16 (which defines supply):

(e)

section 18 (which defines notifiable injury or illness):

(f)

section 19 (which defines notifiable incident):

(g)

section 32 (which relates to the duty of a PCBU who manages or controls a workplace):

(h)

section 33 (which relates to the duty of a PCBU who manages or controls fixtures, fittings, or plant at a workplace):

(i)

section 51 (which relates to the duty to preserve sites):

(j)

section 221(1)(o) (which authorises regulations prescribing exemptions from compliance with regulations):

(k)

section 223 (which authorises regulations relating to exemptions in respect of the Armed Forces).

Exemptions

228A 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 purposes 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 228B (which may not be earlier than the date of the notice); and

(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).

228B Status and publication of exemptions granted by regulator

(1)

An exemption granted under section 228A that is a class exemption is a legislative instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

(2)

An exemption granted under section 228A that is not a class exemption is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

(3)

As soon as practicable after an exemption granted under section 228A is made, it must be—

(a)

notified in the Gazette; and

(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 for the purpose of subsection (3)(a) does not have to incorporate the exemption.

(6)

In this section, class exemption means an exemption granted under section 228A that is of general application and that applies to classes of persons.

Codes of practice

229 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) of that Act; or

(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 of the Health and Safety in Employment Act 1992:

(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)

A code of practice approved under this section is neither a disallowable instrument nor a legislative instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

Compare: 1992 No 96 s 20; Model Work Health and Safety Act (Aust) s 274(1)–(3)

230 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 229(5) comes into force on the date specified by notice in the Gazette.

Compare: 1992 No 96 s 20A

231 Access to approved codes of practice

(1)

The Gazette notice published by the regulator under section 230(1) must specify the place or places at which copies of the code of practice or amendment (as the case may be) are available for public inspection and purchase.

(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.

Compare: 1992 No 96 s 20C(1)

232 Proof of codes of practice

The publication by the regulator of a notice under section 230(1) is conclusive proof that the code has been validly made under section 229.

Compare: 1992 No 96 s 20A(5)

233 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.

Compare: 1992 No 96 s 20B; Model Work Health and Safety Act (Aust) s 275

Safe work instruments

234 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)

A safe work instrument is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act but only to the extent that the instrument is given effect to in accordance with section 235(1).

(6)

The Minister must, as soon as practicable after a safe work instrument is made,—

(a)

notify the safe work instrument in the Gazette; and

(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.

235 Legal effect of safe work instruments

(1)

A safe work instrument made under section 234 has legal effect only to the extent that any regulations made under the relevant health and safety legislation refer to it.

(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 is not or has not been made at the time the regulations are made).

General provisions

236 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 229 to approve, amend, or revoke a code of practice:

(b)

under section 234 to approve, amend, or revoke a safe work instrument.

(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.

236A Relationship between regulations relating to hazardous substances under this Act and Resource Management Act 1991

(1)

A person performing a function or exercising a power under the Resource Management Act 1991 that relates to the use, handling, manufacture, transport, storage, or disposal of any hazardous substance must comply with the provisions of any regulations for work involving hazardous substances made under this Act, except as provided in subsections (2) and (3).

(2)

Nothing in subsection (1) prevents any person lawfully imposing more stringent requirements on the use, handling, manufacture, or storage of any hazardous substance than may be required by regulations for work involving hazardous substances made under this Act where those requirements are considered necessary by that person for the purposes of the Resource Management Act 1991.

(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 of the Resource Management Act 1991; or

(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 and until such time as the conditions on the resource consent are reviewed in accordance with section 128 of the Resource Management Act 1991.

(5)

In this section, resource consent has the same meaning as in section 2(1) of the Resource Management Act 1991.

Subpart 4—Repeals, revocations, and consequential amendments

238 Repeals and revocations

(1)

The Health and Safety in Employment Act 1992 (1992 No 96) is repealed.

(2)

The Machinery Act 1950 (1950 No 52) is repealed.

(3)

The following regulations and order are revoked:

(a)

Health and Safety in Employment (Prescribed Matters) Regulations 2003 (SR 2003/90):

(b)

Machinery (Exclusion of Some Pressure Equipment, Cranes, and Passenger Ropeways) Order 1999 (SR 1999/127):

(c)

Noxious Substances Regulations 1954 (SR 1954/128).

239 Consequential amendments

Amend the enactments specified in Schedule 3 as set out in that schedule.

Part 6 Amendments to other Acts

Subpart 1—Amendments to Accident Compensation Act 2001

240 Principal Act

This subpart amends the Accident Compensation Act 2001 (the principal Act).

241 New section 5A inserted (Provisions affecting application of amendments to this Act)

After section 5, insert:

5A Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

241A Section 6 amended (Interpretation)

In section 6, insert in its appropriate alphabetical order:

health and safety regulator has the same meaning as regulator in section 12 of the Health and Safety Reform Act 2014.

242 Section 167 amended (Application and source of funds)

Replace section 167(3)(g) with:

(g)

audits and assessments referred to in sections 174D and 175; and

243 Section 169 amended (Rates of levies)

After section 169(4)(a), insert:

(ab)

section 174A(2):

244 New sections 174A to 174F inserted

After section 174, insert:

174A Corporation may develop and establish workplace incentive programmes

(1)

The Corporation may develop and establish 1 or more workplace incentive programmes to provide incentives for employers and self-employed persons to reduce the incidence, severity, and impact of work-related personal injuries.

(2)

A Work Account levy determined for the purposes of section 168, 168B, or 211 may be adjusted up or down for a particular employer or a particular self-employed person in accordance with the terms and conditions of a workplace incentive programme.

(3)

Regulations made under section 333 may prescribe fees and charges payable by employers and self-employed persons who participate in a workplace incentive programme, including:

(a)

administration fees to meet the costs, or part of the costs, incurred in administering the programme; and

(b)

fees or charges for audits and assessments provided for under section 174D(3).

174B Process to develop workplace incentive programme

(1)

In developing a workplace incentive programme, the Corporation must—

(a)

have regard to the following matters:

(i)

the extent to which the programme is likely to lead to reductions in the incidence, severity, and impact of work-related personal injuries and to improvements in rehabilitation and durable return to work; and

(ii)

the extent to which the programme may affect the Work Account levies payable by levy payers who are not participating in the programme; and

(iii)

the expected administration costs of the programme; and

(iv)

the impact of the programme on the administration of the accident compensation scheme as a whole and on claims management processes; and

(b)

endeavour to ensure that programmes are available for a variety of types of employers and self-employed persons, including small and large businesses; and

(c)

endeavour to ensure that the rates of adjustment to Work Account levies that will be available under the programme are proportionate to the expected increases or decreases in costs to the Corporation as a result of employers and self-employed persons participating in the programme.

(2)

In developing a workplace incentive programme, the Corporation must consult the persons or organisations it considers appropriate, having regard to—

(a)

the potential participants in the programme; and

(b)

the potential impact of the programme on the Work Account levies of non-participating levy payers.

(3)

Subsection (2) does not apply if the Minister determines under section 174C that the workplace incentive programme must be approved by the Minister.

174C Minister’s approval of certain workplace incentive programmes

(1)

The Minister may determine, in relation to any proposed workplace incentive programme, that the programme must be approved by the Minister before it is established under section 174D.

(2)

In deciding whether to make a determination under subsection (1), the Minister may consider any relevant factors, including—

(a)

the public interest; and

(b)

how the proposed workplace incentive programme aligns with the Government’s broader objectives; and

(c)

the impact of the proposed workplace incentive programme on levy payers generally or on particular groups of levy payers; and

(d)

the impact of the proposed workplace incentive programme on levy payers who, despite being eligible to participate in the proposed programme, may choose not to participate.

(3)

If the Minister makes a determination under subsection (1), before the Minister approves the establishment of the workplace incentive programme, the Minister must consult any persons or organisations that the Minister considers appropriate, having regard to—

(a)

the potential participants in the programme; and

(b)

the potential impact of the programme on the Work Account levies of non-participating levy payers.

174D Establishment of workplace incentive programmes

(1)

The Corporation may, by notice in the Gazette, establish a workplace incentive programme.

(2)

A notice in the Gazette under subsection (1) must set out the terms and conditions of the workplace incentive programme, including—

(a)

any criteria that must be met before an employer or a self-employed person may participate in the programme; and

(b)

the basis and conditions on which, and periods for which, Work Account levies may be adjusted for participants in the programme; and

(c)

the level or levels of levy adjustment that may apply to participants in the programme.

(3)

Without limiting subsection (2), a notice in the Gazette under subsection (1) may provide for audits or assessments of participants in the workplace incentive programme, including—

(a)

the order in which applications for audits or assessments are to be dealt with:

(b)

the approval of auditors and assessors:

(c)

requirements that audits or assessments be conducted in accordance with an audit tool or audit tools developed or approved by the Corporation:

(d)

the frequency of audits or assessments and the circumstances under which additional audits or assessments may be required.

(4)

A notice in the Gazette under subsection (1), and an audit tool developed for the purposes of subsection (3)(c), may incorporate by reference any material referred to in section 176, and that section and section 177 apply as if the notice were a regulation made for the purposes of section 175, the audit tool were an audit tool referred to in section 175(4), and the reference to the Minister in section 176(3) were a reference to the Corporation.

(5)

A notice in the Gazette under this section is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

174E Amendments to workplace incentive programme

(1)

A workplace incentive programme may be amended in the same manner as a workplace incentive programme is developed and established.

(2)

Sections 174B to 174D apply, with all necessary modifications, in relation to an amendment to a workplace incentive programme.

(3)

Despite subsection (2), sections 174B(2) and 174C(3) do not apply if the amendment is a minor or technical amendment.

(4)

A notice in the Gazette under this section is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

174F Corporation must report on effectiveness of workplace incentive programmes

The Corporation must include in its annual report under section 150 of the Crown Entities Act 2004 a report on the effectiveness of workplace incentive programmes in reducing the incidence and impact of work-related personal injuries.

245 Section 175 amended (Risk adjustment of Work Account levies)

(1)

Repeal section 175(1) and (2).

(2)

In section 175(4), replace “An audit of an employer’s or a self-employed person’s safety management practices must, and an assessment of a self-employed person’s safety management capabilities may,” with “An audit of an employer’s safety management practices must”.

(3)

In section 175(7), replace “subsection (1)(a) or (3) must, and regulations made for the purposes of subsection (1)(b) may,” with “subsection (3) must”.

(4)

Replace section 175(7)(c) with:

(c)

the frequency of audits of an employer’s safety management practices and the circumstances under which additional audits may be required:

246 Section 176 amended (Incorporation by reference)

Replace section 176(1)(a) with:

(a)

New Zealand standard, or any requirement or recommended practice of any New Zealand organisation; or

247 Section 190 amended (Purchase of weekly compensation by shareholder-employees)

In section 190(2), replace “sections 175,” with “sections 174D, 175,”.

248 Section 263 amended (Prevention of personal injury)

Replace section 263(5) with:

(5)

The Corporation must ensure that any measures undertaken or funded in accordance with this section—

(a)

are co-ordinated with similar activities of other government agencies to contribute to the overall injury prevention objectives in an efficient and effective way; and

(b)

to the extent that the measures will be funded from the Work Account, take account of the Health and Safety at Work Strategy published under section 211 of the Health and Safety Reform Act 2014.

249 New sections 264A and 264B inserted

After section 264, insert:

264A Workplace injury prevention action plan

(1)

The Corporation and WorkSafe must at all times have a workplace injury prevention action plan.

(2)

The Corporation and WorkSafe—

(a)

may amend the workplace injury prevention action plan at any time; and

(b)

must review the workplace injury prevention action plan at least once every 3 years.

(3)

The workplace injury prevention action plan must—

(a)

outline all workplace injury prevention programmes that will be undertaken by WorkSafe and the Corporation (jointly or separately) in the period to which the plan relates; and

(b)

state how those programmes are to be funded; and

(c)

if funding from one agency is to be used to fund programmes undertaken by the other agency, state the amount of that funding; and

(d)

in relation to programmes, or aspects of programmes, to be undertaken by WorkSafe, be consistent with the Health and Safety at Work Strategy published under section 211 of the Health and Safety Reform Act 2014; and

(e)

in relation to programmes, or aspects of programmes, to be undertaken by the Corporation, be consistent with the Corporation’s priorities for injury prevention measures relating to the Work Account.

(4)

The Corporation and WorkSafe must, to the extent practicable, ensure that—

(a)

the workplace injury prevention action plan outlines a coherent scheme of workplace injury prevention programmes that do not involve the duplication of activities carried out by the Corporation and WorkSafe; and

(b)

workplace injury prevention programmes are undertaken by the agency that is best suited to undertake them; and

(c)

programmes outlined in the workplace injury prevention action plan complement the agencies’ other activities, such as enforcement and education activities.

264B Injury prevention measures undertaken by WorkSafe and funded by Corporation or jointly undertaken

(1)

This section applies to injury prevention measures that are—

(a)

jointly undertaken by the Corporation and WorkSafe; or

(b)

undertaken by WorkSafe and partly or wholly funded by the Corporation.

(2)

Before measures to which this section applies commence, the Corporation and WorkSafe must enter into 1 or more written agreements that specify—

(a)

how the measures—

(i)

are likely to result in a cost-effective reduction in actual or projected levy rates in the Work Account; and

(ii)

are consistent with the Health and Safety at Work Strategy published under section 211 of the Health and Safety Reform Act 2014; and

(iii)

are consistent with the Corporation’s priorities for injury prevention measures relating to the Work Account; and

(b)

the amount of funding to be provided by the Corporation and by WorkSafe; and

(c)

how and when that funding will be provided; and

(d)

how the measures will be evaluated, including the key performance indicators to be used and the expected outcomes; and

(e)

any requirements for reporting between the agencies.

(3)

If funding for injury prevention measures undertaken by WorkSafe is to be provided by the Corporation, the agreement may also provide that the Corporation may cease providing funding if it is satisfied that—

(a)

key performance indicators are not being met; or

(b)

expected outcomes are not being achieved.

249A Section 280 amended (Disclosure of information to Corporation)

In section 280(2), replace “Worksafe” with “health and safety regulators”.

249B Section 286 amended (Corporation to provide information to Ministry of Business, Innovation, and Employment and to WorkSafe)

(1)

In the heading to section 286, replace Worksafe with health and safety regulators.

(2)

In section 286(1), replace “Worksafe” with “a health and safety regulator”.

(3)

In section 286(1)(b), replace “Worksafe” with “the health and safety regulator”.

(4)

In section 286(2), replace “Worksafe” with “the health and safety regulator” in each place.

(5)

In section 286(3), replace “Worksafe” with “health and safety regulators”.

(6)

In section 286(5)(e), replace “Health and Safety in Employment Act 1992” with Parts 1 to 5 of the Health and Safety Reform Act 2014.

251 New Schedule 1AA inserted

Before Schedule 1, insert the Schedule 1AA set out in Schedule 4 of this Act.

Subpart 2—Amendments to Hazardous Substances and New Organisms Act 1996

252 Principal Act

This subpart amends the Hazardous Substances and New Organisms Act 1996 (the principal Act).

253 Section 2 amended (Interpretation)

(1)

In section 2(1), insert in their appropriate alphabetical order:

classification control means a control imposed under this Act for any hazardous substance in any place that specifies any requirements for advertising, identification, labelling, packaging, or safety data sheets

content control means a control imposed under this Act that—

(a)

specifies the allowable limits for the content of any—

(i)

substance contained in any substance or product; or

(ii)

element or compound that makes up any substance contained in any substance or product; or

(b)

specifies the allowable limits for the properties of any substance or product; or

(c)

prohibits the presence of any—

(i)

substance contained in any substance or product; or

(ii)

element or compound that makes up any substance contained in any substance or product

document has the same meaning as in section 4(1) of the Evidence Act 2006

ecotoxic control means a control imposed under this Act for the purposes of controlling the ecotoxic effects of a hazardous substance

EPA control

(a)

means any control imposed by the Authority under this Act for the purpose of controlling the adverse effects of hazardous substances on people or on the environment; and

(b)

includes, but is not limited to, classification controls, content controls, disposal controls, and ecotoxic controls

EPA notice means a notice issued in the Gazette by the Authority under Part 6 or under any other provision of this Act that applies section 76B

gases under pressure means—

(a)

a compressed gas; or

(b)

a liquefied gas; or

(c)

a refrigerated liquefied gas; or

(d)

a dissolved gas

workplace has the same meaning as in section 15 of the Health and Safety Reform Act 2014.

(1A)

In section 2(1), repeal the definition of container.

(2)

In section 2(1), definition of controls, replace “regulations, rules, codes, or other documents” with “regulations, rules, EPA notices, codes, or other instruments or documents”.

(3)

In section 2(1), definition of exposure limit, replace “, a tolerable exposure limit, or a workplace exposure standard” with “or a tolerable exposure limit”.

(4)

In section 2(1), definition of hazardous substance, replace regulations with an EPA notice.

(4)

In section 2(1), definition of hazardous substance, after regulations, insert or an EPA notice.

(4A)

In section 2(1), repeal the definition of landfill.

(5)

In section 2(1), definition of persistent organic pollutant, paragraph (b), replace “but” with “and”.

(6)

In section 2(1), definition of persistent organic pollutant, after paragraph (b), insert:

(ba)

includes a manufactured article containing 1 or more of those substances; but

(7)

In section 2(1), repeal the definitions of place of work and port of entry.

(8)

In section 2(1), definition of prescribed, after “regulations made”, insert “or an EPA notice issued”.

(9)

In section 2(1), replace the definition of public notice with:

public notice means—

(a)

a notice published on an Internet site maintained by or on behalf of the Authority; or

(b)

a notice published in 1 or more daily newspapers circulating in the main metropolitan areas, together with any other public notice (if any) that the Authority or Minister (as applicable) thinks fit

(9A)

In section 2(1), repeal the definition of serious harm.

(9B)

In section 2(1), repeal the definition of stationary container.

(10)

In section 2(1), repeal the definition of test certificate.

(11)

In section 2(1), repeal the definition of tracking system.

254 Section 3 amended (Act to bind the Crown)

(1)

In section 3(3), after “codes of practice for”, insert “EPA controls for”.

(2)

In section 3(4)(a)(i), (5)(a)(i), and (6), replace “controls” with “EPA controls”.

(3)

In section 3(4)(a)(ii) and (5)(a)(ii), replace “regulations made” with “EPA notices issued”.

(4)

In section 3(7), after “regulations”, insert “or EPA notices”.

(5)

In section 3(8), after “which involves any”, insert “breach of an EPA control relating to a”.

255 New section 3A inserted (Transitional and savings provisions relating to amendments to Act)

After section 3, insert:

3A Transitional and savings provisions relating to amendments to Act

The transitional and savings provisions set out in Schedule 7, which relate to amendments made to this Act by subpart 2 of Part 6 of the Health and Safety Reform Act 2014, have effect for the purposes of this Act.

257 Section 11 amended (Powers, functions, and duties of Authority)

(1)

After section 11(1)(b), insert:

(ba)

carry out its enforcement functions under this Act:

(bb)

issue certificates in accordance with section 82 and revoke certificates in accordance with section 82C:

(2)

After section 11(2), insert:

(2A)

In carrying out its powers, functions, and duties conferred on it by or under this Act that relate to hazardous substances, the Authority must foster a co-operative and consultative relationship with WorkSafe.

258 Section 19 amended (Delegation by Authority)

(1)

After section 19(1)(a), insert:

(ab)

the issuing of an EPA notice; and

(1A)

In section 19(2)(ha), delete “test”.

(2)

After section 19(5A), insert:

(5B)

Despite subsection (5A), if any function or power under section 26 or 51 in relation to hazardous substances or under section 28A, 29, or 32 is delegated under this section, the delegate may delegate the function or power to the chief executive or to the chief executive under this section, the delegate may delegate the function or power to any employee of the Authority with the prior written consent of the Authority.

258A Section 20 amended (Obligation to prepare and maintain register)

(1)

Replace section 20(1) with:

(1)

The Authority must keep a register of all applications for approvals for hazardous substances and new organisms made to the Authority, including pending and withdrawn applications.

(2)

Replace section 20(2)(f) with:

(f)

all the controls on a hazardous substance imposed under this Act.

(3)

After section 20(3), insert:

(3A)

The register must also include reference to controls on a hazardous substance imposed under the Health and Safety Reform Act 2014.

(3B)

The register may also include reference to controls on a hazardous substance imposed under any other Act.

(4)

After section 20(5), insert:

(6)

The Authority may withhold any information relating to transhipment applications that this section would otherwise require to be on the register if, in its opinion, the information could pose a risk to national safety and security.

260 Section 26 replaced (Determination of new organism or hazardous substance)

Replace section 26 with:

26 Determination of new organism or hazardous substance

(1)

The Authority may, on application by any person, determine whether or not any organism is a new organism.

(2)

A determination under subsection (1) must be issued by notice in the Gazette.

(3)

The Authority may, on application by any person, determine 1 or more of the following:

(a)

whether or not any substance is a hazardous substance:

(b)

a hazardous substance’s classification:

(c)

the approvals that apply or are required to be obtained.

(4)

A determination under subsection (3) must be publicly notified.

(5)

Before issuing a determination under this section, the Authority must have regard to—

(a)

any information held by the Authority; and

(b)

any information held by any department listed in Schedule 1 of the State Sector Act 1988 and any Crown entity; and

(c)

any information provided by the applicant.

(6)

The Authority may revoke or reissue a determination issued by it under this section if it receives further information.

261 Section 33 amended (Exemptions from Act for small-scale research on hazardous substances)

In section 33(1)(a), (2)(a), and (2)(b)(i), replace “prescribed requirements” with “requirements prescribed under Parts 1 to 5 of the Health and Safety Reform Act 2014.

262 Section 53 amended (Applications required to be publicly notified)

(1)

Repeal section 53(1)(f).

(2)

After section 53(1), insert:

(1A)

The Authority must publicly notify, in 1 or more public notices,—

(a)

an application under section 96B to issue, amend, or revoke a group standard; and

(b)

the proposal to issue or amend (as the case may be) a group standard; and

(c)

the Authority’s assessment of the matters required under section 96C(1)(a), (b), (c), (d), and (e) in relation to a group standard as proposed to be issued or amended.

(3)

In section 53(4)(c)(ii), after “application”, insert “; and”.

(4)

After section 53(4)(c), insert:

(d)

if the application is an application for approval of a hazardous substance, WorkSafe.

263 Section 53A repealed (Method of public notification)

Repeal section 53A.

264 Section 58 amended (Further information)

Replace section 58(1)(c) with:

(c)

must consult with all departments or Crown entities notified of the application in accordance with section 53(4) and,—

(i)

if any application is for approval to import, develop, field test, conditionally release, or release a new organism, have particular regard to any submissions made by the Department of Conservation; and

(ii)

if any application is for approval to import or manufacture a hazardous substance, have particular regard to any submissions made by WorkSafe.

265 Section 59 amended (Time limits and waivers)

(1)

In section 59(1)(a), replace “section 53” with “section 53(1), (1A)(a), and (2)”.

(2)

In section 59(3)(a), after “regulation”, insert “or an EPA notice”.

265A Section 62 amended (Grounds for reassessment of a substance or organism)

After section 62(2)(a), insert:

(aa)

a change in any controls under Parts 1 to 5 of the Health and Safety Reform Act 2014; or

266 Section 63A amended (Modified reassessment procedure for amendments to approvals of hazardous substances)

(1)

In section 63A(2)(a), after “may vary the”, insert “EPA”.

(2)

Replace section 63A(7) with:

(7)

Sections 77, 77A, and 77B apply to any hazardous substance that is approved under this section and, for the purposes of this section, controls previously imposed under section 77A have effect as other specified controls under that section.

267 New section 63C inserted (Modified reassessment to change controls in other cases)

After section 63B, insert:

63C Modified reassessment to change controls in other cases

(1)

Despite anything to the contrary in this Act, the Authority may reassess a hazardous substance in accordance with this section if the Authority considers that—

(a)

a reassessment of the hazardous substance under section 63 is not appropriate because the reassessment will involve only a specific aspect of the approval; and

(b)

the amendment is not a minor or technical amendment to which section 67A applies; and

(c)

the reassessment is necessary because of a change in the hazard classification system, controls in regulations, EPA controls, or controls under Parts 1 to 5 of the Health and Safety Reform Act 2014.

(2)

A reassessment under this section—

(a)

may vary 1 or more of the following:

(i)

the EPA controls that attach to a hazardous substance:

(ii)

the description of a hazardous substance:

(iii)

the hazard classification of a hazardous substance; but

(b)

may not revoke an approval given to import or manufacture a hazardous substance under this Act.

(3)

A reassessment under this section is deemed to be an application, and sections 55 to 61 apply with all necessary modifications.

(4)

The Authority may reassess a hazardous substance under this section without publicly notifying the reassessment in accordance with section 53.

(5)

If the Authority does not publicly notify the reassessment in accordance with section 53, the Authority must—

(a)

do everything reasonably practicable on its part to consult with all persons who, in its opinion, may be affected by the reassessment; and

(b)

give those persons a reasonable opportunity to make submissions and comments to the Authority on the reassessment; and

(c)

consider all submissions and comments received.

(6)

The Authority may approve or decline an application for reassessment under this section as it considers appropriate after taking into account—

(a)

all the effects associated with the reassessment; and

(b)

the best international practices and standards for the safe management of hazardous substances.

(7)

Section 65(e) applies, with all necessary modifications, to a reassessment under this section.

(8)

Sections 77, 77A, and 77B apply to any hazardous substance that is approved under this section and, for the purposes of this section, controls previously imposed under section 77A have effect as other specified controls under that section.

(9)

This section does not limit the operation of section 77(2)(a).

268 Section 65 amended (No compensation following reassessment)

In section 65, after “section 63,”, insert “63A, or 63C or a group standard is amended or revoked under section 96B(3),”.

269 New section 67B inserted (Revoking duplicated approvals)

After section 67A, insert:

67B Revoking duplicated approvals

(1)

The Authority may, by notice in the Gazette, revoke an approval, a deemed approval, or a group standard for a substance if the Authority is satisfied that a corresponding approval to the same or a substantially similar effect applies to the substance under—

(a)

a group standard; or

(b)

a Part 5 approval that is not a deemed approval.

(2)

The Authority may, but is not required to, consult any person or organisation before revoking an approval, a deemed approval, or a group standard under this section.

270 Section 68 amended (Minister’s power to call in applications with significant effects)

After section 68(1), insert:

(1A)

However, a direction under this section applies to an application that relates to any hazardous substances only if the application is one referred to in section 53.

271 Section 74 replaced (Establishment of hazard classification system)

Replace section 74 with:

74 Establishment of hazard classification system

The Authority may from time to time, in accordance with section 76B, issue an EPA notice establishing a hazard classification system by—

(a)

prescribing, for each intrinsic hazardous substance property, a number of degrees or types of hazard, which may be done either by reference to an international system or by incorporation of material under section 141A:

(b)

prescribing, for each intrinsic hazardous substance property, a degree of hazard below which any substance is not considered hazardous, which may be done either by reference to an international system or by incorporation of material under section 141A:

(ba)

prescribing, for gases under pressure, a physical state when packaged:

(c)

prescribing substances as substances that are not hazardous for the purpose of this Act.

272 Section 75 amended (Regulations prescribing hazard classification control)

(1)

Replace the heading to section 75 with Authority may prescribe hazardous property controls.

(2)

In section 75(1), replace “Subject to section 141, the Governor-General may, from time to time, by Order in Council make regulations prescribing controls” with “The Authority may from time to time, in accordance with section 76B, issue an EPA notice prescribing any EPA controls”.

(3)

Replace section 75(1)(f) and (g) with:

(f)

for substances with ecotoxic properties—

(i)

to reduce the likelihood of unintended exposure to any such substance:

(ii)

to control the adverse effects of any exposure to such substances.

(4)

Repeal section 75(2).

(5)

In section 75(3), replace “regulations” with “notice”.

273 Section 76 replaced (Requirements for containers, identification, disposal, emergencies, tracking, and fireworks)

Replace section 76 with:

76 Authority may prescribe controls and requirements relating to hazardous substances

(1)

The Authority may, from time to time, in accordance with section 76B, issue an EPA notice prescribing EPA controls that do 1 or more of the following:

(a)

prescribe requirements for packages or containers for hazardous substances:

(b)

prescribe requirements for the identification, labelling, and advertising of hazardous substances, and requirements for safety data sheets:

(c)

prescribe requirements for disposal of hazardous substances:

(d)

prescribe qualifications and other requirements that persons must hold or meet in order to obtain or handle—

(i)

hazardous substances other than in a workplace:

(ii)

hazardous substances with ecotoxic properties:

(e)

prescribe requirements for content controls:

(f)

prescribe EPA controls on any gases under pressure, whether or not the properties of any gas that is under pressure are intrinsically hazardous:

(g)

prescribe EPA controls for any hazardous substance to avoid or mitigate any adverse effects on the physical or chemical nature of the environment:

(h)

prescribe EPA controls to avoid or mitigate illness or injury to people or damage to the environment or chattels from any hazardous substance:

(i)

prescribe EPA controls for by-products with hazardous properties, which result from the manufacture or use of any substance:

(j)

prescribe technical restrictions and prohibitions on the sale of specified fireworks.

(3)

Gases under pressure that are subject to EPA controls under subsection (1)(f) must be treated as hazardous substances for the purposes of Part 7, regardless of their properties.

(4)

EPA controls may be prescribed under subsection (1)(i) only if the Authority is satisfied that the controls on any by-product with hazardous properties under this Act or any other Act are not sufficient to achieve the purposes of this Act.

(5)

The Authority may, in any EPA notice,—

(a)

prescribe EPA controls for any specified hazardous substance or hazardous substances of a specified class:

(b)

prescribe or provide for EPA controls by reference to controls prescribed under any other Act.

76A Authority may prescribe other matters relating to hazardous substances

The Authority may, in accordance with section 76B, issue an EPA notice that does 1 or more of the following:

(a)

prescribes the method of estimating the quantity of any substance to be imported or manufactured:

(b)

prescribes countries for the purposes of sections 28 and 31:

(c)

prescribes information to be provided to the Authority with any application for approval of any hazardous substance:

(d)

prescribes, whether by reference to any specified classes of importers or manufacturers or on some other basis,—

(i)

information that importers or manufacturers must provide to the Authority; and

(ii)

related requirements, including the making available of, or the giving of, any notice or information about specified activities, matters, or things to the Authority or to an enforcement officer:

(e)

prescribes forms for the purposes of this Act that relate to any hazardous substances:

(f)

prescribes documentation to be issued in respect of any hazardous substance before importation into New Zealand:

(g)

prescribes qualifications for enforcement officers appointed under section 100:

(h)

prescribes who is an importer or a manufacturer, which may be done by reference to any classes or otherwise:

(i)

provides for any matters contemplated by this Act, necessary for its administration or necessary for giving it full effect.

76AA Authority may prescribe transitional and savings provisions

The Authority may, in any EPA notice, include transitional and savings provisions for the purpose of giving effect to any matters arising from the notice that are necessary because of the coming into effect of the notice.

76AA Further provisions relating to EPA notices

(1)

An EPA notice issued under section 74, 75, 76, or 76A may

(a)

be of general or limited application:

(b)

differ according to differences in time, place, or circumstance, or any other basis:

(c)

impose prohibitions:

(d)

impose obligations and restrictions on persons:

(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.

(2)

An EPA notice made under subsection (1) is not invalid merely because it confers a discretion on, or allows a matter to be determined or approved by, any person.

(3)

The Authority may, in any EPA notice, include transitional and savings provisions for the purpose of giving effect to any matters arising from the notice that are necessary because of the coming into effect of the notice.

76B Procedure for issuing EPA notices

(1)

Before issuing an EPA notice, the Authority must—

(a)

publicly notify its intention to issue the notice; and

(b)

give interested persons a reasonable time, which must be specified in the notification published under paragraph (a), to make submissions on the proposal; and

(c)

consult any persons, representative groups within the hazardous substances industry or elsewhere, government departments, WorkSafe, and Crown entities that the Authority considers appropriate in each case.

(2)

Before issuing an EPA notice, the Authority must have regard, and give any weight that it considers appropriate in each case, to the following:

(a)

the costs and benefits of implementing measures for which the notice is being proposed:

(b)

the best international practices and standards for the safe management of hazardous substances:

(c)

any other matters that the EPA considers appropriate in the circumstances.

(3)

An EPA notice must—

(a)

be signed by the chairperson of the Authority; and

(b)

set out fully the requirements of the notice, except where certain information is incorporated in the notice by reference; and

(c)

include a statement of the objective of the notice; and

(d)

be published in the Gazette.

(4)

An EPA notice must be publicly notified, along with a statement stating the extent of consultation that took place before the notice was made.

(5)

The Authority may amend or revoke any EPA notice and the amendment or revocation is subject to subsections (1) to (3), except as provided by subsection (6).

(6)

The Authority may, on its own initiative, amend an EPA notice without complying with subsections (1) and (2), if it considers that the amendment is minor in effect or corrects a minor or technical error.

(7)

A failure to comply with subsections (1), (3), and (4) does not affect the validity of any EPA notice made under this Act.

76C Application of Legislation Act 2012 to EPA notices

An EPA notice is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

274 Section 77 amended (Controls on hazardous substances)

(1AA)

In the heading to section 77, replace Controls with EPA controls.

(1AB)

In section 77(1), replace “degree of hazard of that substance” with “degree or type of hazard of that substance, if applicable”.

(1)

Replace section 77(2) and (2A) with:

(2)

The controls prescribed by any regulations, and the EPA controls prescribed by any EPA notice, for each hazard classification attach to the substance, but may be varied,—

(a)

from time to time, by amendments to the regulations or notice prescribing the controls for the relevant hazard classification:

(b)

at the time the substance is approved, in accordance with subsections (3), (4), and (5).

(2A)

Nothing in any regulations or EPA notice referred to in subsection (2)(a) affects any variations made by the Authority under subsections (3) to (5) before the commencement of the regulations or notice, unless the Authority determines otherwise.

(4)

Replace section 77(7) with:

(7)

Any restrictions and prohibitions on the sale of fireworks prescribed under section 76(1)(j) or 140(1)(r) 140(1)(r) or (s) are in addition to any EPA controls placed on fireworks under this section to control their explosive properties.

275 Section 77A amended (Authority’s power to impose controls and vary specified controls)

(1AA)

In the heading to section 77A, after impose, insert EPA.

(1)

In section 77A(1), after “the Authority thinks fit”, insert “for the purpose of setting EPA controls”.

(2)

Replace section 77A(2) with:

(2)

Without limiting anything in subsection (1), the Authority may, in approving a substance, specify as an EPA control under this section—

(a)

an obligation to obtain a permission under section 95A for general or particular use of the substance; or

(b)

a restriction on the use of a substance.

(2A)

In section 77A(3), after “this section are”, insert “EPA”.

(2B)

Replace section 77A(4) with:

(4)

Before imposing a control under this section, the Authority must be satisfied that, either—

(a)

against any other specified controls that apply to the substance,—

(i)

the proposed control is more effective in terms of its effect on the management, use, and risks of the substance; or

(ii)

the proposed control is more cost-effective in terms of its effect on the management, use, and risks of the substance; or

(iii)

the proposed control is more likely to achieve its purpose; or

(b)

in the case of a control that is a restriction on the use of a hazardous substance, the positive effects of the substance when restricted to that use outweigh the adverse effects.

(3)

Replace section 77A(5) with:

(5)

In this section, other specified controls means controls imposed by or under any other section of this Act, and includes controls imposed by regulations made under this Act or EPA controls made under an EPA notice.

276 Section 77B amended (Exposure limits for substances with toxic or ecotoxic properties)

(1)

Repeal section 77B(2)(c).

(2A)

In section 77B(4), after “this section are”, insert “EPA”.

(2)

In section 77B(6), definition of environmental exposure limit, replace “regulations made under section 75” with “EPA notices”.

(3)

In section 77B(6), definition of tolerable exposure limit, replace “regulations made under section 75” with “EPA notices”.

(4)

In section 77B(6), repeal the definition of workplace exposure standard.

277 Section 78 amended (Codes of practice)

(1AA)

In section 78(1), after “included in”, insert “EPA”.

(1)

In section 78(1), after “regulations”, insert “or an EPA notice”.

(2)

Replace section 78(6) with:

(6)

The Authority must not, without the written consent of the relevant Minister,—

(a)

adopt with modification any documents previously approved by a Minister of the Crown; or

(b)

approve any amendment of any part of a code of practice that comprises a document approved by a Minister of the Crown and later adopted by the Authority.

278 Section 82 replaced (Issue of test certificates by test certifiers)

Replace section 82 with:

82 Certificates

Regulations made under this Act, EPA notices, approvals granted by the Authority, and requirements imposed in accordance with Part 3 of Schedule 3 may require a person to obtain a certificate—

(a)

from a certifier authorised under section 221(i) of the Health and Safety Reform Act 2014 that certifies that any specified requirement has been met; or

(b)

from the Authority under this Act that certifies that any specified requirement has been met; or

(c)

under any other relevant enactment that certifies that any specified requirement has been met.

279 Sections 82A, 82B, and 83 to 86 repealed

Repeal sections 82A, 82B, and 83 to 86.

279A Section 82C amended (Revocation of test certificates)

(1)

In the heading to section 82C, delete test.

(2)

In section 82C(1), (2), and (8) delete “test” in each place where it appears.

280 Cross-heading above section 95A amended

In the cross-heading above section 95A, delete and licences.

281 Section 95B repealed (Licences)

Repeal section 95B.

282 Section 96B amended (Group standards)

Replace section 96B(1)(b) with:

(b)

impose as conditions that apply to the identified group of hazardous substances or products any obligations and restrictions that the Authority thinks fit for the purpose of setting EPA controls.

283 Section 96C amended (When group standards may be issued or amended)

(1AA)

In section 96C(1)(g), after “types of”, insert “EPA”.

(1)

Replace section 96C(1)(h) with:

(h)

comply with the requirements of section 53(1A) (which relates to public notification).

(2)

In section 96C(3), after “this section”, insert “or section 53(1A).

283A Section 96D amended (Revocation of group standards)

In section 96D(1), replace “section 53” with section 53(1A).

284 Section 97 amended (Enforcement of Act)

(1)

Replace section 97(1)(a) with:

(a)

WorkSafe must ensure that the provisions of this Act in respect of disposal and ecotoxic controls, and equivalent conditions in group standards issued under section 96B that relate to hazardous substances, are enforced in any workplace:

(1A)

After section 97(1)(d), insert:

(da)

in relation to the retail sale of fireworks, the Commissioner of Police must ensure that any restrictions and prohibitions imposed under this Act are enforced:

(1B)

In section 97(1)(e), after “any aircraft”, insert “and that the provisions of this Act relating to the discharge of hazardous substances from an aircraft are enforced”.

(2)

After section 97(2), insert:

(3)

The Authority must ensure that the following matters are enforced:

(a)

provisions of this Act in respect of classification controls and content controls, and equivalent conditions in group standards issued under section 96B that relate to hazardous substances:

(b)

the requirement for a hazardous substance to have an approval before being imported or manufactured:

(c)

prohibitions relating to persistent organic pollutants and hazardous substances prohibited by regulations:

(d)

requirements imposed under any EPA notice made under section 76A.

(4)

The Authority must ensure the provisions of this Act in respect of any regulations, EPA controls, and equivalent conditions in group standards issued under section 96B that relate to hazardous substances are enforced in any workplace to the extent that responsibility for enforcement is not provided for in subsection (1)(a) to (g).

285 Section 97B replaced (Enforcement of Act in respect of hazardous substances in place of work)

Replace section 97B with:

97B Enforcement of Act in respect of hazardous substances in workplace

An inspector appointed under section 181 of the Health and Safety Reform Act 2014 may also exercise the powers of an enforcement officer under this Act in relation to hazardous substances in any workplace, whether or not the person is appointed as an enforcement officer under this Act.

285AA New section 97C inserted (Sharing of information between Authority and enforcement agencies)

After section 97B, insert:

97C Sharing of information between Authority and enforcement agencies

(1)

Subject to any enactment,

(a)

the Authority may provide an enforcement 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 this Act; and

(ii)

considers may assist the enforcement agency in the performance or exercise of the enforcement agency’s functions, duties, or powers under or in relation to any enactment; and

(b)

an enforcement agency may provide the Authority 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 Authority in the performance or exercise of its functions, duties, or powers under or in relation to this Act.

(2)

If subsection (1)(a) or (b) applies, the Authority or enforcement 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)

In this section, enforcement agency means the New Zealand Customs Service and any entity referred to in section 97.

(4)

Nothing in this section limits the Privacy Act 1993.

(5)

This section applies despite anything to the contrary in any contract, deed, or document.

285A Section 99 amended (Supervision of inspection)

In section 99(4), replace “compressed gases” with “gases under pressure”.

285B Section 103 amended (Powers of entry for inspection)

(1)

In the heading to section 103, after inspection, insert relating to new organisms.

(2)

In section 103(1)(c), delete “hazardous substance or” in each place where it appears.

(3)

In section 103(1)(d), delete “substance or”.

285C New section 103A inserted (Powers of entry for inspection relating to hazardous substances)

After section 103, insert:

103A Powers of entry for inspection relating to hazardous substances

(1)

Any enforcement officer may, at any reasonable time, for the purposes referred to in subsection (2),—

(a)

go on, into, under, and over any premises (excluding dwellings); or

(b)

with the consent of the occupier, go on, into, under, and over a dwelling.

(2)

The purposes concerned are to—

(a)

monitor or enforce compliance with this Act and any conditions, controls, or requirements on any hazardous substance; or

(b)

determine the nature of any hazardous substance; or

(c)

determine whether or not any person is complying with a compliance order.

(3)

For the purposes of this section, an enforcement officer may—

(a)

take samples of water, air, soil, any substance, or any organism; and

(b)

open containers or packages (including secured or sealed containers or packages) to inspect the contents; and

(c)

take photographs and measurements and make sketches and recordings; and

(d)

take or remove any thing for analysis or testing; and

(e)

conduct examinations, tests, inquiries, demonstrations, and inspections; and

(f)

require that any place or thing specified by the enforcement officer is not disturbed for a reasonable time pending any examination, test, inquiry, demonstration, or inspection; and

(g)

require any person in charge of relevant premises to—

(i)

make statements, in any form or manner specified by the enforcement officer, about conditions, material, or equipment relevant to the purpose of the inspection; or

(ii)

produce information relevant to the purpose of the inspection, and take copies of the information or extracts from the information.

(4)

An enforcement officer may do any of the things referred to in subsection (3) whether or not—

(a)

the enforcement officer or the person whom the enforcement officer is dealing with has gone on, into, under, or over premises or a dwelling described in subsection (1)(a) or (b); or

(b)

in respect of any information, the information is—

(i)

on premises or in a dwelling that is described in subsection (1)(a) or (b); or

(ii)

in the place where the enforcement officer is; or

(iii)

in another place.

(5)

If any enforcement officer has taken any thing in accordance with subsection (3)(d), the enforcement officer must give the occupier of the premises written notice of the things that have been taken, the reason for taking the things, and where the things will be kept.

(6)

Within 5 working days of removing a thing, the enforcement officer must give the person in charge of the premises written notice stating—

(a)

whether or not the thing will be returned or destroyed; and

(b)

either—

(i)

the time and date of the return of the thing to the premises; or

(ii)

the results of the analysis of the thing and why it is being destroyed.

(7)

Every enforcement officer exercising any of the powers conferred under this section must, at the time of exercising that power, and after that on request, produce—

(a)

evidence of that person’s appointment as an enforcement officer; and

(b)

evidence of that person’s identity.

(8)

An enforcement officer may take any person with relevant experience or expertise on to the premises to assist the officer with the inspection.

(9)

Nothing in this section limits or affects the privilege against self-incrimination.

(10)

In this section,—

information includes any document

relevant premises means premises where hazardous substances are located or that are used or are likely to be used for activities related to the manufacture, import, or supply of hazardous substances, including the keeping of documents related to those activities.

286 Section 109 amended (Offences)

(1AA)

In section 109(1)(a), before “manufactures”, insert “imports or”.

(1AB)

After section 109(1)(d), insert:

(da)

fails to comply with any requirements in an EPA notice made under section 76A(d) or (f); or

(1AC)

Replace section 109(1)(e) with:

(e)

fails to comply with—

(i)

any controls imposed by an approval relating to a new organism granted under this Act; or

(ii)

any EPA controls imposed by an approval relating to a hazardous substance granted under this Act; or

(iii)

any controls specified in any regulations relating to a new organism; or

(iiia)

any prohibition specified in any regulations; or

(iv)

any controls specified in any regulations or an EPA notice relating to a hazardous substance; or

(v)

any requirement to obtain a certificate specified in any regulations or an EPA notice; or

(1)

In section 109(1)(eb), after “substances”, insert “or products”.

287 Section 111 amended (Commission of infringement offence)

In section 111, insert as subsection (2):

(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) of the Summary Proceedings Act 1957.

287A Section 113 amended (Entitlement to infringement fees)

In section 113, insert as subsections (2) and (3):

(2)

A regional council is entitled to retain all infringement fees received by it in respect of infringement offences where the infringement notice was issued by an enforcement officer employed by that council.

(3)

Except as provided in subsections (1) and (2), all infringement fees paid in respect of infringement offences must be paid into a Crown Bank Account.

287B Section 117 amended (Strict liability and defences)

Repeal section 117(4).

288 Section 125 amended (Appeals)

(1AA)

In section 125(5)(a), replace “controls” with “EPA controls”.

(1)

After section 125(7), insert:

(8)

An appeal under this section must be made and determined in accordance with the District Courts Act 1947 and the District Courts Rules 2014.

289 Section 140 amended (Regulations)

(1)

Repeal section 140(1)(c), (e), (f), (g), (n), and (p).

(2)

In section 140(1)(d), delete substance or and or manufactured.

(2A)

In section 140(1)(j), replace $1,000 with $3,000.

(3)

Replace section 140(1)(k) with:

(k)

prescribing countries or organisations for the purposes of sections 34, 38A, and 40 (which relate to new organisms):

(4)

In section 140(1)(l), after approval, insert relating to new organisms.

(5)

In section 140(1)(m), after this Act, insert relating to new organisms and prescribing forms of search warrants under this Act.

(6)

Replace section 140(1)(o) with:

(o)

prescribing qualifications for enforcement officers appointed under section 100 who perform functions relating to new organisms:

(6A)

After section 140(1), insert:

(1A)

Regulations made under subsection (1)(i) may (without limitation) prescribe as an infringement offence the failure to comply with

(a)

any control referred to in section 109(1)(e)(ii) or (iv) that is specified or described in the regulations:

(b)

any condition referred to in section 109(1)(eb) that is specified or described in the regulations, including any condition that is referred to as being equivalent to a control:

(c)

any requirement referred to in section 109(1)(e)(v) or (vi).

(7)

Repeal section 140(2), (4), and (5).

(8)

In section 140(3), after Any regulations, insert or other instrument.

289 Section 140 replaced (Regulations)

Replace section 140 with:

140 Regulations

(1)

Subject to section 141, the Governor-General may from time to time, by Order in Council, make regulations for 1 or more of the following purposes:

(a)

prescribing organisms as genetically modified organisms for the purpose of this Act:

(b)

prescribing organisms as organisms that are not genetically modified for the purpose of this Act:

(c)

prescribing organisms that are not new organisms for the purpose of this Act:

(d)

prescribing the method of estimating the quantity of any organism to be imported:

(e)

prescribing controls for any conditionally released new organism or any qualifying organism released with controls, to avoid or mitigate any adverse effects on the physical or chemical nature of the environment:

(f)

prescribing controls for any conditionally released new organism or any qualifying organism released with controls, to avoid or mitigate illness or injury to people or animals (other than the persons or animals referred to in section 38I(4)(a) and (b)) or damage to the environment or chattels:

(g)

prescribing

(i)

any species as a risk species where any subspecies, infrasubspecies, variety, strain, or cultivar of that species may have adverse effects on the health and safety of people or the environment; or

(ii)

any subspecies, infrasubspecies, variety, strain, or cultivar as a risk species where that subspecies, infrasubspecies, variety, strain, or cultivar may have adverse effects on the health and safety of people or the environment:

(h)

prescribing offences under this Act that constitute infringement offences against this Act:

(i)

prescribing forms of infringement notices, and prescribing the infringement fees (not exceeding $3,000) for each infringement offence, which may be different fees for different offences:

(j)

prescribing countries or organisations for the purpose of sections 34, 38A, and 40 (which relate to new organisms):

(k)

prescribing information to be provided with any application for approval relating to new organisms:

(l)

prescribing forms for the purpose of this Act that relate to new organisms and prescribing forms of search warrants under this Act:

(m)

prescribing qualifications for enforcement officers appointed under section 100 who perform functions relating to new organisms:

(n)

prescribing controls for by-products with hazardous properties, which result from the manufacture of any substance:

(o)

prescribing damage as serious environmental damage for the purpose of section 144:

(p)

prescribing prohibitions on the possession, importation, and manufacture of any hazardous substance:

(q)

prescribing restrictions on the access to or use of a hazardous substance outside the workplace:

(r)

prescribing restrictions on the sale of any hazardous substance:

(s)

prescribing prohibitions on the sale of specified fireworks:

(t)

providing for any matters contemplated by this Act, necessary for its administration or necessary for giving it full effect.

(2)

Regulations may be made under subsection (1)(c) only if the Minister has considered

(a)

whether the organism has formed a self-sustaining population in New Zealand; and

(b)

whether any person is attempting to manage, control, or eradicate the organism under any Act.

(3)

Regulations made under subsection (1)(h) may (without limitation) prescribe as an infringement offence the failure to comply with

(a)

any control referred to in section 109(1)(e)(ii) or (iv) that is specified or described in the regulations:

(b)

any requirement referred to in section 109(1)(e)(v):

(c)

any condition referred to in section 109(1)(eb) that is specified or described in the regulations, including any condition that is referred to as being equivalent to a control.

(4)

Regulations may be made under subsection (1)(p), (q), or (r) only if the Minister

(a)

is satisfied that the proposed regulations are desirable in the public interest; and

(b)

has consulted the Authority and the Minister for Workplace Relations and Safety.

(5)

Any regulations or other instrument made under this Act may provide for controls by reference to controls in regulations under any other Act.

(6)

Regulations made under this section may

(a)

be of general or limited application:

(b)

differ according to differences in time, place, or circumstance, or on any other basis:

(c)

impose prohibitions:

(d)

impose obligations and restrictions on persons:

(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.

(7)

Any regulation made under this section is not invalid merely because it confers a discretion on, or allows a matter to be determined or approved by, any person.

290 Section 141 amended (Procedure for making Orders in Council)

After section 141(2), insert:

(2A)

Subsection (1) does not apply in respect of an Order in Council if its sole purpose is to revoke any regulations replaced or to be replaced, or otherwise provided for, by an EPA notice or by any regulations or safe work instrument made under Parts 1 to 5 of the Health and Safety Reform Act 2014.

290A Section 142 amended (Relationship to other Acts)

After section 142(6), insert:

(7)

Nothing in this Act affects the requirements of Parts 1 to 5 of the Health and Safety Reform Act 2014, or of any regulations or safe work instruments made under that Act, that relate to hazardous substances in a workplace.

290B Section 144 amended (Reporting of incidents)

Replace section 144(1) with:

(1)

Every person in charge of a substance involved in an incident resulting in death, or a notifiable injury or illness as defined by section 18 of the Health and Safety Reform Act 2014, or serious environment damage must, unless an enforcement officer attended the incident or subsection (2) applies, report that incident to an enforcement officer.

291 Schedule 2A amended

In Schedule 2A, first column, insert in its appropriate alphabetical order:

Polychlorinated dibenzo-p-dioxins and dibenzofurans (PCDD/PCDF)
292 Schedule 7 replaced

Replace Schedule 7 with the Schedule 7 set out in Schedule 5 of this Act.

293 Consequential and other amendments to principal Act

Amend the principal Act as set out in Schedule 6.

294 Amendments to other enactments

Amend the enactments specified in Schedule 7 in the manner set out in that schedule.

Subpart 3—Amendments to Employment Relations Act 2000

295 Principal Act

This subpart amends the Employment Relations Act 2000 (the principal Act).

296 Section 67B amended (Effect of trial provision under section 67A)

In section 67B(3), replace “section 103(1)(b) to (g)” with section 103(1)(b) to (h).

297 Section 103 amended (Personal grievance)

After section 103(1)(g), insert:

(h)

that the employee’s employer has, in relation to the employee,—

(i)

engaged in adverse conduct for a prohibited health and safety reason; or

(ii)

contravened section 114 of the Health and Safety Reform Act 2014 (which prohibits coercion or inducement).

298 Section 104 amended (Discrimination)

In section 104(1), delete “or by reason directly or indirectly of that employee’s refusal to do work under section 28A of the Health and Safety in Employment Act 1992,”.

299 Section 107 amended (Definition of involvement in activities of union for purposes of section 104)

Repeal section 107(2).

300 New section 110A inserted (Adverse conduct for prohibited health and safety reason)

After section 110, insert:

110A Adverse conduct for prohibited health and safety reason

(1)

For the purposes of this Part, an employer engages in adverse conduct for a prohibited health and safety reason if the employer or a representative of the employer, for a prohibited health and safety reason,—

(a)

dismisses an employee; or

(b)

refuses or omits to offer or afford to the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(c)

subjects the employee to any detriment in circumstances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment; or

(d)

retires the employee, or requires or causes the employee to retire or resign.

(2)

For the purposes of subsection (1), conduct described in that section is engaged in for a prohibited health and safety reason if it is engaged in for a reason described in section 111 of the Health and Safety Reform Act 2014.

(3)

An employer may be found to have engaged in adverse conduct for a prohibited health and safety reason only if the prohibited health and safety reason was a substantial reason for the conduct.

(4)

For the purposes of subsection (3), a prohibited health and safety reason is presumed to be a substantial reason for the conduct unless the employer proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(5)

It is a defence to an action for a personal grievance under section 103(1)(h)(i) if the employer proves that—

(a)

the conduct was reasonable in the circumstances; and

(b)

a substantial reason for the conduct was to comply with the requirements of Parts 1 to 5 of the Health and Safety Reform Act 2014 or other relevant health and safety legislation (as defined in section 12 of that Act).

(6)

For the purposes of this section,—

(a)

an employer also engages in adverse conduct if the employer or a representative of the employer, in relation to the employee,—

(i)

organises to take any action referred to in subsection (1) or threatens to organise or take that action; or

(ii)

requests, instructs, induces, encourages, authorises, or assists another person to engage in adverse conduct for a prohibited health and safety reason:

(b)

detriment includes anything that has a detrimental effect on the employee’s employment , job performance, or job satisfaction.

301 Section 111 amended (Definitions relating to personal grievances)

In section 111, replace “and duress have in any employment agreement the meanings given to those terms by sections 103, 104, 105, 106, 107, 108, 109, and 110” with duress, and adverse conduct for prohibited health and safety reason have in any employment agreement the meanings given to those terms by sections 103, 104, 105, 106, 107, 108, 109, 110, and 110A.

302 Section 137 amended (Power of Authority to order compliance)

Repeal section 137(1)(a)(xi) and (4)(b).

303 Section 138 amended (Further provisions relating to compliance order by Authority)

Repeal section 138(1)(b)(ii).

304 Schedule 1A amended

In paragraph (f), replace “place of work (within the meaning of the Health and Safety in Employment Act 1992)” with “workplace”.

Subpart 4—Amendments to WorkSafe New Zealand Act 2013

305 Principal Act

This subpart amends the WorkSafe New Zealand Act 2013 (the principal Act).

306 Section 3 amended (Interpretation)

(1)

In section 3, replace the definition of relevant health and safety legislation with:

relevant health and safety legislation has the same meaning as in section 12 of the Health and Safety Reform Act 2014

(2)

In section 3, definition of transferred employee, after “section 11” insert “or clause 1 of Schedule 2.

(3)

In section 3, replace the definition of workplace with:

workplace has the same meaning as in section 15 of the Health and Safety Reform Act 2014.

(4)

In section 3, insert in their appropriate alphabetical order:

EPA means the Environmental Protection Authority established by section 7 of the Environmental Protection Authority Act 2011

PCBU has the same meaning as in section 13 of the Health and Safety Reform Act 2014

worker has the same meaning as in section 14 of the Health and Safety Reform Act 2014

307 Section 7 amended (WorkSafe New Zealand’s board)

(1)

In section 7(2)(c) and (f), replace “workplace” with “work” in each place.

(2)

In section 7(2)(e), replace “employers” with “PCBUs”.

308 Section 8 amended (Advisory groups)

In section 8(1)(a) and (b), replace “employers, and workers on workplace” with “PCBUs, and workers on work”.

309 Section 9 amended (WorkSafe New Zealand’s main objective)

(1)

In section 9(1), after “contribute to”, insert “a balanced framework for”.

(2)

After section 9(1), insert:

(1A)

An additional objective of WorkSafe New Zealand is to promote and contribute to the safe supply and use of electricity and gas in New Zealand.

310 Section 10 amended (WorkSafe New Zealand’s functions)

(1)

In section 10, replace “workplace” with “work” in each place.

(3)

After section 10(c), insert:

(ca)

publish information about—

(i)

its approach to enforcing compliance with relevant health and safety legislation (including where a provision of relevant health and safety legislation overlaps with a provision in another enactment); and

(ii)

its performance standards for completing investigations in relation to enforcing compliance with relevant health and safety legislation:

(4)

After section 10(e), insert:

(ea)

develop safe work instruments:

(5)

In section 10(g), delete “on or”.

(6)

After section 10(j), insert:

(ja)

foster a co-operative and consultative relationship with the EPA when carrying out its functions, duties, and powers in respect of hazardous substances:

311 New section 21A and cross-heading inserted

After section 21, insert:

Transfer of EPA employees and contracts

21A Transfer of EPA employees and contracts to WorkSafe New Zealand

Schedule 2 contains provisions relating to the transfer of EPA employees and contracts to WorkSafe New Zealand.

312 New Schedule 2 inserted

After the Schedule, insert as Schedule 2 the schedule set out in Schedule 8 of the Health and Safety Reform Act 2014 of this Act.

Schedule 1 Transitional and savings provisions

ss 4, 237 s 4

1 Interpretation

In this schedule, former Acts means—

(a)

the Health and Safety in Employment Act 1992:; and

(b)

the Machinery Act 1950.

Legislative instruments

2 Transitional provision relating to regulations made under former Acts and Factories Act 1946

(1)

The following regulations made under the former Acts and the Factories Act 1946 are to be treated as regulations made under this Act and may be amended or revoked accordingly:

(a)

Amusement Devices Regulations 1978:

(b)

Health and Safety in Employment (Pipelines) Regulations 1999:

(c)

Health and Safety in Employment (Pressure Equipment, Cranes, and Passenger Ropeways) Regulations 1999:

(d)

Health and Safety in Employment Regulations 1995:

(e)

Lead Process Regulations 1950:

(f)

Spray Coating Regulations 1962.

(1A)

The regulations specified in subclause (1) may be amended from time to time under the corresponding empowering provisions (if any) in this Act or (if there is no corresponding empowering provision) as if this clause contained the relevant empowering provision (as it read immediately before the commencement of section 238 of this Act).

(1B)

Despite the repeal of the Machinery Act 1950 by section 238 of this Act, section 21A of that Act is to be treated as continuing in force until the Amusement Devices Regulations 1978 are revoked.

(2)

A person who contravenes a provision of any regulations specified in subclause (1)(a) to (d) commits an offence and is liable on conviction to a fine not exceeding $50,000.

Compare: 1992 No 96 s 50(1)(b)

3 Transitional provision relating to Geothermal Energy Regulations 1961

(1)

The Geothermal Energy Regulations 1961 (SR 1961/124) made under the Geothermal Energy Act 1953 are to be treated as regulations made under this Act and may be amended or revoked accordingly.

(2)

A person who contravenes a provision of the regulations specified in subclause (1) commits an offence and is liable on conviction to a fine not exceeding $50,000.

Approved codes of practice

4 Transitional provision relating to approved codes of practice

An approved code of practice issued under section 20 of the Health and Safety in Employment Act 1992 continues in force as if it had been made under this Act subject to any other necessary modifications.

Exemptions

4A Transitional provision relating to exemptions granted from regulations under Health and Safety in Employment Act 1992

(1)

This clause applies to an exemption granted by WorkSafe under regulations made under the Health and Safety in Employment Act 1992 (including any conditions or limitations imposed on the exemption) and in force immediately before the commencement of this clause.

(2)

On and after the commencement of this clause, the exemption (and any conditions or limitations imposed on the exemption) continues to apply until it is sooner replaced or revoked as if it were granted by the regulator under section 228A of this Act.

4B Transitional provision relating to exemptions granted from regulations and instruments under Hazardous Substances and New Organisms Act 1996

(1)

This clause applies if—

(a)

an exemption from a requirement is granted by WorkSafe, the EPA, or any other regulator, under a regulation or other instrument (for example, a transfer notice) made under the Hazardous Substances and New Organisms Act 1996; and

(b)

the exemption is in effect on the commencement of this clause; and

(c)

the requirement from which the exemption is granted is revoked and replaced, or continued in force, by regulations made under this Act.

(2)

On and after the making of the regulations, notice, or other instrument referred to in subclause (1)(c), the exemption (and any conditions or limitations imposed on the exemption) continues to apply, with any necessary modifications, until—

(a)

it expires; or

(b)

it is sooner revoked or replaced under section 228A or under any other enactment or instrument.

Pre-commencement consultation

4C Pre-commencement consultation relating to regulations, codes of practice, and safe work instruments

(1)

Sections 218, 224A(4), and 226(1) and (2) are satisfied in relation to any regulations if action of the kind described in those provisions was taken before their commencement for the purpose of facilitating the making of the regulations.

(2)

Section 229(2) is satisfied in relation to any code of practice if action of the kind described in that provision was taken before its commencement for the purpose of facilitating the making of the code of practice.

(3)

Section 234(3) is satisfied in relation to any safe work instrument if action of the kind described in that subsection was taken before its commencement for the purpose of facilitating the making of the instrument.

Re-incorporation of existing material incorporated by reference

4D Re-incorporation of existing material incorporated by reference

(1)

This clause applies to material (existing material) that, as at the commencement of this clause, is incorporated by reference into:

(a)

the following regulations:

(i)

Hazardous Substances (Classes 1 to 5 Controls) Regulations 2001:

(ii)

Hazardous Substances (Classes 6, 8, and 9 Controls) Regulations 2001:

(iii)

Hazardous Substances (Compressed Gases) Regulations 2004:

(iv)

Hazardous Substances (Emergency Management) Regulations 2001:

(v)

Hazardous Substances (Exempt Laboratories) Regulations 2001:

(vi)

Hazardous Substances (Fireworks, Safety Ammunition, and Other Explosives Transfer) Regulations 2003:

(vii)

Hazardous Substances (Identification) Regulations 2001:

(viii)

Hazardous Substances (Tank Wagons and Transportable Containers) Regulations 2004:

(ix)

Hazardous Substances (Tracking) Regulations 2001; and

(b)

any transfer notice made under section 160A of the Hazardous Substances and New Organisms Act 1996; and

(c)

any group standard made under section 96B of the Hazardous Substances and New Organisms Act 1996; and

(d)

any reassessment under section 63 of the Hazardous Substances and New Organisms Act 1996.

(2)

Section 51 of the Legislation Act 2012 (which requires consultation about material proposed to be incorporated by reference) does not apply to regulations made under this Act or safe work instruments approved under section 234 of this Act that incorporate existing material by reference in reliance on section 49 of that Act.

(3)

Existing material that is incorporated by reference in accordance with this clause may—

(a)

include corrections or changes:

(b)

include new material that replaces or supersedes the existing material in whole or in part (for example, a new standard that replaces an earlier standard):

(c)

exclude material that is no longer required.

Inspectors, enforcement officers, and health and safety medical practitioners

5 Transitional provision relating to inspectors and enforcement officers

(1)

A person who, immediately before the commencement of this clause, held office as an inspector, a geothermal inspector, or an enforcement officer (as the case may be) under a provision specified in subclause (2) continues in office on and after that commencement as if the person were appointed as an inspector under section 181 of this Act.

(2)

The provisions are—

(a)

section 29 of the Health and Safety in Employment Act 1992:

(b)

section 5 of the Machinery Act 1950:

(c)

regulation 3 of the Geothermal Energy Regulations 1961:

(d)

section 97B of the Hazardous Substances and New Organisms Act 1996.

(3)

A person who continues to hold office under subsection (1) remains subject to any direction or condition that applied to the person’s appointment before the commencement of this clause.

6 Transitional provision relating to health and safety medical practitioners

(1)

A person’s appointment as a health and safety medical practitioner under section 34 of the Health and Safety in Employment Act 1992 before the commencement of this clause continues on and after that commencement as if the person had been appointed as a health and safety medical practitioner under section 198 of this Act.

(2)

A person who continues to hold office under subsection (1) remains subject to any direction or condition that applied to the person’s appointment before the commencement of this clause.

Funding levy

7 Transitional provision relating to funding levy

If, before the commencement of this clause, a person is liable to pay a levy under section 59 of the Health and Safety in Employment Act 1992 and the levy remains unpaid after payment is due, then, on and after the commencement of this clause,—

(a)

the person must pay the levy as if the levy were payable under section 217 of this Act; and

(b)

this Act applies to the levy in all respects.

Employee participation systems, health and safety representatives, and health and safety committees

7A Transitional provision relating to employee participation systems

An employee participation system developed, agreed, and implemented under section 19C of the Health and Safety in Employment Act 1992 that is in force immediately before the commencement of this clause continues on and after that commencement and must be treated as if it were a worker participation practice under section 64 of this Act and all references in the system to—

(a)

an employer were references to a PCBU as defined in section 13; and

(b)

an employee were references to a worker as defined in section 14; and

(c)

a health and safety representative were references to a health and safety representative elected in accordance with subpart 2 of Part 3; and

(d)

a health and safety committee were references to a health and safety committee established in accordance with section 86A.

7B Transitional provision relating to health and safety representatives

(1)

This clause applies to a person who, immediately before the commencement of this clause, was a health and safety representative in accordance with an employee participation system established under section 19C of the Health and Safety in Employment Act 1992 or in accordance with Part 3 of Schedule 1A of that Act.

(2)

The person continues in that role on and after that commencement and must be treated as if the person had been elected as a health and safety representative in accordance with subpart 2 of Part 3 of this Act.

(3)

Part 3 of this Act applies, with any necessary modifications, to a person who continues in his or her role under subclause (1) as if, in relation to the representative, references to a work group or members of a work group were references to the group of workers described in the employee participation system or, if none, the workers in the workplace.

(4)

Subclause (3) is to avoid doubt.

(5)

However, a person to whom this clause applies may not exercise a power conferred by a provision referred to in subclause (6) unless he or she has completed the prescribed training requirements relating to the exercise of the power.

(6)

The provisions are—

(a)

section 92 (which relates to the power to issue a provisional improvement notice):

(b)

section 107 (which relates to the power to direct unsafe work to cease).

7C Transitional provision relating to training of health and safety representatives

(1)

This clause applies if clause 12 of Schedule 1A commences during a year, being a period starting on 1 April in a year and ending on 31 March in the following year.

(2)

The training requirements for health and safety representatives under clause 12 of Schedule 1A do not take effect until the start of the following year.

7D Transitional provision relating to health and safety committees

A health and safety committee established as part of an employee participation system under section 19C of the Health and Safety in Employment Act 1992 or in accordance with Part 3 of Schedule 1A of that Act continues on and after the commencement of this clause as if it were a health and safety committee established under section 86A of this Act.

Health and safety in mining sector

8 Transitional provision relating to worker participation systems

A worker participation system developed, agreed, and implemented under section 19R of the Health and Safety in Employment Act 1992 that is in force immediately before the commencement of this clause continues on and after that commencement and must be treated as if it were a worker participation practice under section 64 of this Act and all references in the system to—

(a)

a site health and safety representative were references to a health and safety representative elected in accordance with subpart 2 of Part 3; and

(b)

a site health and safety committee were references to a health and safety committee established in accordance with section 86A.

9 Transitional provision relating to site health and safety representatives

(1)

This section applies to a person who, immediately before the commencement of this clause, was elected as a site health and safety representative in accordance with a worker participation system established under section 19R of the Health and Safety in Employment Act 1992 or with regulations made under that Act.

(2)

The person continues in that role on and after that commencement and must be treated as if the person had been elected as a health and safety representative in accordance with subpart 2 of Part 3 of this Act.

(3)

Part 3 of this Act applies, with any necessary modifications, to a person who continues in his or her role under subclause (1) as if, in relation to the representative,—

(a)

references to a PCBU (except in section 107) were references to a mine operator; and

(ab)

references to a PCBU in section 107 were references to a site senior executive; and

(b)

references to a work group or members of a work group were references to the group of mine workers described in the worker participation system or, if none, to the mine workers in a mining operation; and

(c)

references to a business or an undertaking were references to a mining operation.

(4)

In addition, the person may exercise the specific powers of a health and safety representative in the mining sector specified in clauses 6 and 7 of Schedule 2.

(5)

Subclauses (3) and (4) are to avoid doubt.

(6)

However, a person to whom this clause applies may not exercise a power conferred by a provision referred to in subclause (7) unless he or she has completed the prescribed training requirements relating to the exercise of the power.

(7)

The provisions are—

(a)

section 92 (which relates to the power to issue a provisional improvement notice):

(b)

section 107 (which relates to the power to direct unsafe work to cease):

(c)

clauses 6 and 7 of Schedule 2 (which relates to the power to give notice requiring suspension of a mining operation and the power to require a mining operation to stop in case of serious risk to health and safety).

10 Transitional provision relating to site health and safety committees

(1)

A site health and safety committee established as part of a worker participation system under section 19R of the Health and Safety in Employment Act 1992 continues on and after the commencement of this clause as if it were a health and safety committee established under section 86A of this Act.

(2)

Part 3 of this Act applies, with any necessary modifications, to a committee continued under subclause (1) as if, in relation to the committee,—

(a)

references to a PCBU were references to a mine operator; and

(c)

references to a business or an undertaking were references to a mining operation.

(3)

Subclause (2) is to avoid doubt.

11 Transitional provision relating to industry health and safety representatives

(1)

A person who, immediately before the commencement of this clause, was appointed as an industry health and safety representative under section 19ZU of the Health and Safety in Employment Act 1992 continues in that role on and after that commencement and must be treated as if the person had been appointed under clause 13 of Schedule 2 of this Act.

(2)

Schedule 2 applies to a person who continues in his or her role as an industry health and safety representative.

11A Transitional provision relating to identity cards issued to industry health and safety representatives

(1)

This clause applies to an identity card given to an industry health and safety representative under section 19ZY of the Health and Safety in Employment Act 1992.

(2)

On and after the commencement of this clause, the identity card must be treated as if it were issued under clause 18 of Schedule 2 of this Act until it expires or is sooner revoked.

11B Transitional provision relating to register of industry health and safety representatives

(1)

This clause applies to the register of industry health and safety representatives kept under section 19ZZB of the Health and Safety in Employment Act 1992.

(2)

On and after the commencement of this clause, the register must be treated as if it were kept under clause 20 of Schedule 2 of this Act.

New Zealand Mining Board of Examiners

12 Continuation of New Zealand Mining Board of Examiners

(1)

The New Zealand Mining Board of Examiners (the Board) established under section 20D of the Health and Safety in Employment Act 1992 is continued.

(2)

A person who, immediately before the commencement of this clause, held office as a member of the Board continues in office on and after that commencement and must be treated as if the person were appointed under clause 25 of Schedule 2 of this Act.

13 Savings of Board levy

If, before the commencement of this clause, a mine operator is liable to pay a levy under section 20H of the Health and Safety in Employment Act 1992 and the levy remains unpaid after payment is due, then, on and after the commencement of this clause,—

(a)

the mine operator must pay the levy to the Board as if the levy were payable under clause 27 of Schedule 2 of this Act; and

(b)

that this Act applies to the levy in all respects.

Register of accidents and serious harm

14 Continuation of register of accidents and serious harm for transitional period

(1)

This clause applies to a register of accidents and serious harm kept by an employer under section 25 of the Health and Safety in Employment Act 1992.

(2)

The employer must retain the register until the close of the day that is 5 years after the date of the commencement of this clause.

Notices, offences, and contraventions under former Acts

15 Transitional provision relating to notices issued under Health and Safety in Employment Act 1992

(1)

This clause applies to an improvement notice, a prohibition notice, or a hazard notice issued under the Health and Safety in Employment Act 1992 and in force immediately before the commencement of section 238 of this Act.

(2)

The notice continues to have effect as if this Act had not been passed for the purpose of completing any matter relating to the notice.

16 Transitional provision for existing offences and contravention under former Acts

(1)

This clause applies to an offence committed under, or a contravention of,—

(a)

the former Acts before the commencement of section 238 of this Act; and

(b)

regulations made under the former Acts and in force immediately before the commencement of section 238 of this Act but not saved by clause 2(1).

(2)

The former Acts, and the regulations referred to in subclause (1)(b), continue to have effect as if this Act had not been passed for the purpose of—

(a)

investigating an offence or a contravention to which this clause applies:

(b)

commencing or completing proceedings for an offence or a contravention to which this clause applies:

(c)

imposing a penalty or other remedy, or making an order, in relation to an offence or a contravention to which this clause applies.

Schedule 1A Health and safety representatives and health and safety committees

s 86B

Part 1 Health and safety representatives

Functions and powers of health and safety representatives

1 Functions of health and safety representatives

The functions of a health and safety representative for a work group are—

(a)

to represent the workers in the work group in matters relating to health and safety:

(b)

to investigate complaints from workers in the work group regarding health and safety:

(c)

if requested by a worker in the work group, to represent the worker in relation to a matter relating to health and safety (including a complaint):

(d)

to monitor the measures taken by the PCBU that are relevant to health and safety:

(e)

to inquire into anything that appears to be a risk to the health or safety of workers in the work group arising from the conduct of the business or undertaking:

(f)

to make recommendations relating to work health and safety:

(g)

to provide feedback to the PCBU about whether the requirements of this Act or regulations are being complied with:

(h)

to promote the interests of workers in the work group who have been harmed at work, including in relation to arrangements for rehabilitation and return to work.

Compare: 1992 No 96 s 19W; Model Work Health and Safety Act (Aust) s 68

2 Health and safety representative may attend interview

(1)

With the consent of the worker concerned, a health and safety representative may attend an interview concerning work health and safety between a worker whom the health and safety representative represents and—

(a)

an inspector; or

(b)

the PCBU or the PCBU’s representative.

(2)

With the consent of the workers concerned, a health and safety representative may attend an interview concerning work health and safety between a group of workers whom the health and safety representative represents and—

(a)

an inspector; or

(b)

the PCBU or the PCBU’s representative.

(3)

If subclause (1)(a) or (2)(a) applies, an inspector may refuse to allow a health and safety representative to be present—

(a)

during any discussion in which personal information may be disclosed (unless the person who is the subject of the information has expressly consented to the health and safety representative being present):

(b)

if the inspector believes that the presence of the health and safety representative would prejudice the maintenance of the law, including the investigation and prosecution of offences.

Compare: 1992 No 96 s 19Z

3 Health and safety representative may enter and inspect workplace

(1)

A health and safety representative may, at any reasonable time, enter and inspect any area of a workplace to perform the functions, or exercise the powers, of the health and safety representative.

(2)

Before exercising the power under subclause (1), the health and safety representative must give reasonable notice to the PCBU at that workplace, including reasonable notice of whether the health and safety representative intends to be accompanied by another person in accordance with clause 5(1).

(3)

In exercising the power under this section, the health and safety representative must comply with any reasonable procedures and requirements that relate to work health and safety.

(4)

Despite subclauses (1) and (2), a health and safety representative may, at any time and without notice, enter and inspect any area of a workplace (including when the health and safety representative is accompanied by another person) in the event of an incident, or any situation involving a serious risk to the health or safety of a person arising from an immediate or imminent exposure to a hazard.

Compare: 1992 No 96 s 19ZA

4 Health and safety representative may request information

(1)

A health and safety representative may request a PCBU to provide any information necessary to enable the health and safety representative to perform his or her functions or exercise his or her powers, including information relating to—

(a)

hazards (including associated risks) at the workplace affecting workers in the work group; and

(b)

subject to clause 11, the health and safety of workers in the work group.

(2)

The health and safety representative may retain and copy any document containing information provided by the PCBU following a request under subclause (1).

5 Health and safety representative may be assisted by another person

(1)

A health and safety representative may, for the purposes of performing or exercising his or her functions or powers under this Act, be accompanied or assisted by another person.

(2)

The following provisions apply, with all necessary modifications, to any person accompanying or assisting a health and safety representative under subclause (1):

(a)

clause 3(3) (compliance with any reasonable procedures and requirements that relate to work health and safety); and

(b)

clause 13 (functions and powers for health and safety purposes only); and

(c)

clause 14 (information to be used for health and safety purposes only).

Compare: Model Work Health and Safety Act (Aust) s 68(2)(g)

6 Health and safety representative in one work group may assist, or act in the capacity of, health and safety representative in another work group

(1)

This clause sets out the circumstances in which a health and safety representative (HSR-A, whose ordinary role is to represent workers in work group A) may, for the purposes of performing or exercising his or her functions or powers under this Act, be accompanied and assisted by another health and safety representative (HSR-B, whose ordinary role is to represent workers in work group B), and when HSR-B may act in the capacity of HSR-A.

(2)

HSR-B may accompany and assist HSR-A, or act in the capacity of HSR-A, in the circumstances in subclause (3), if—

(a)

work group A and work group B consist of workers carrying out work for the same business or undertaking; or

(b)

work group A and work group B are within the same multiple PCBU work group arrangement (as defined in section 66(5)).

(3)

The circumstances are—

(a)

HSR-B may accompany and assist HSR-A, on HRS-A’s request, in the performance or exercise of HSR-A’s functions or powers under this Act; and

(b)

HSR-B may act in the capacity of HSR-A, if—

(i)

a worker in work group A asks for HSR-B’s assistance, and HSR-A is found, after reasonable inquiry, to be unavailable; or

(ii)

HSR-A requests that HSR-B perform his or her functions and exercise his or her powers during a period of absence or in other circumstances that will render HSR-A unavailable to the workers of work group A.

(4)

This clause overrides clause 9(1).

7 Health and safety representative may accompany inspector

(1)

A health and safety representative may accompany an inspector who has entered a workplace under section 185.

(2)

An inspector may refuse to allow a health and safety representative accompanying the inspector under this section to be present—

(a)

during any discussion in which personal information may be disclosed (unless the person who is the subject of the information has expressly consented to the health and safety representative being present):

(b)

if the inspector believes that the presence of the health and safety representative would prejudice the maintenance of the law, including the investigation and prosecution of offences.

Compare: 1992 No 96 s 19ZD

8 Health and safety representative may consult regulator or inspector

A health and safety representative may consult the regulator or an inspector about any work health and safety issue.

Compare: 1992 No 96 s 19ZE

9 Functions and powers of health and safety representative generally limited to particular work group

(1)

A health and safety representative for a work group may perform his or her functions and exercise his or her powers under this Act only in relation to matters that affect, or may affect, the health and safety of workers in that work group.

(2)

Subclause (1) does not apply if—

(a)

there is a serious risk to health or safety arising from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or

(b)

any of the circumstances specified in clause 6(3) apply.

(3)

In this clause, another work group means—

(a)

another work group carrying out work for a business or undertaking that relates to the work group that the health and safety representative represents:

(b)

for a multiple PCBU work group arrangement (as defined in section 66(5)), another work group within that arrangement.

Compare: Model Work Health and Safety Act (Aust) s 69

Obligations of PCBU to health and safety representatives

10 Obligations of PCBU to health and safety representative

(1)

Subject to clause 11, the PCBU must—

(a)

consult, so far as is reasonably practicable, about health and safety matters with any health and safety representative for a work group of workers carrying out work as part of the conduct of the business or undertaking; and

(b)

confer with a health and safety representative for a work group, whenever reasonably requested by the representative, for the purpose of ensuring the health and safety of the workers in the work group; and

(c)

allow a health and safety representative to spend as much time as is reasonably necessary to perform his or her functions or exercise his or her powers under this Act; and

(d)

provide any health and safety representative for a work group with any information necessary to enable the health and safety representative to perform his or her functions or exercise his or her powers, including information relating to—

(i)

hazards (including associated risks) at the workplace affecting workers in a work group; and

(ii)

the health and safety of the workers in a work group; and

(e)

allow the health and safety representative to be present at an interview relating to health and safety between a worker and—

(i)

an inspector; or

(ii)

the PCBU at that workplace or the PCBU’s representative; and

(f)

allow the health and safety representative to be present at an interview concerning health and safety between a group of workers and—

(i)

an inspector; or

(ii)

the PCBU at that workplace or the PCBU’s representative; and

(g)

provide to a health and safety representative for the work group, any resources, facilities, and assistance that are reasonably necessary or prescribed by regulations to enable the representative to perform his or her functions and exercise his or her powers under this Act; and

(h)

allow a person assisting a health and safety representative for the work group to have access to the workplace if that is necessary to enable the assistance to be provided; and

(i)

permit a health and safety representative for the work group to accompany an inspector during an inspection of any part of the workplace where a worker in the work group works.

(2)

If a health and safety representative makes a recommendation regarding work health and safety, the PCBU must, within a reasonable time,—

(a)

adopt the recommendation; or

(b)

provide a written statement to the health and safety representative setting out the reasons for not adopting the recommendation.

(3)

Any time that a health and safety representative spends for the purposes of performing or exercising his or her functions or powers under this Act must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(4)

A person who contravenes subclause (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.

Compare: Model Work Health and Safety Act (Aust) s 70

11 Exceptions to clauses 4(1) and 10(1)

(1)

Despite clauses 4(1) and 10(1), a PCBU—

(a)

must not allow a health and safety representative to have access to any personal information concerning a worker without the worker’s consent unless the information is in a form that—

(i)

does not identify the worker; and

(ii)

could not reasonably be expected to identify the worker; and

(b)

is not required to give financial assistance to a health and safety representative for the purpose of the assistance referred to in clause 5; and

(c)

may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative.

(2)

A person who contravenes subclause (1)(a) 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.

Compare: Model Work Health and Safety Act (Aust) s 71

12 Requirement to allow health and safety representatives to attend certain training

(1)

Subject to subclause (2), if a health and safety representative has been elected to represent workers who carry out work for a business or undertaking, the PCBU must—

(a)

allow the health and safety representative, for the purpose of attending health and safety training,—

(i)

2 days’ paid leave each year; or

(ii)

the number of days’ paid leave that a PCBU must allow a health and safety representative in specific industries to take in a year, as specified in regulations made under section 224(b)(ivc); and

(b)

comply with any prescribed requirements relating to access to training for health and safety representatives (including any requirement to meet the costs of that training).

(2)

The number of days’ paid leave that a PCBU must allow a health and safety representative to take in a year is subject to the maximum total number of days’ paid leave that that PCBU is required to allow for health and safety representatives in the whole business or undertaking, as specified in, or determined under, regulations made under section 224(b)(ivb).

(3)

The PCBU must pay a health and safety representative for every day or part of a day that the health and safety representative is given time off work to attend training,—

(a)

in the case of a health and safety representative who is an employee of the PCBU, the health and safety representative’s relevant daily pay, as defined in section 9 of the Holidays Act 2003, or average daily pay calculated in accordance with section 9A of that Act (as the case may be):

(b)

in the case of a worker who is not an employee of the PCBU, the pay that the health and safety representative would otherwise be entitled to receive for performing the health and safety representative’s normal duties during that period.

(4)

Subclause (3) does not apply in respect of any day for which the eligible employee or other worker is paid weekly compensation under the Accident Compensation Act 2001.

(5)

A person who contravenes subclause (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.

(6)

For the purposes of this clause, year means a period starting on 1 April in a year and ending on 31 March in the following year.

Compare: 1992 No 96 ss 19E, 19F; Model Work Health and Safety Act (Aust) s 72(1)–(4)

Other matters

13 Functions and powers for health and safety purposes only

A health and safety representative must not perform a function or exercise a power under this Act for a purpose other than a health and safety purpose.

Compare: 1992 No 96 s 19ZM

14 Information to be used by health and safety representative for health and safety purposes only

(1)

This section applies to any information obtained by a health and safety representative in the performance of his or her functions or exercise of his or her powers under this Act.

(2)

The health and safety representative may—

(a)

disclose or use the information,—

(i)

if the information is about a person, only with the person’s consent:

(ii)

only to the extent necessary for the performance or exercise of the health and safety representative’s functions or powers under this Act:

(b)

disclose the information—

(i)

to the regulator or a person authorised by the regulator only if the health and safety representative reasonably believes the disclosure is necessary for administering, monitoring, or enforcing compliance with the relevant health and safety legislation:

(ii)

only if the disclosure is authorised or required by law.

(3)

In subclause (2), disclose includes to give any person access to information.

Compare: 1992 No 96 s 19ZN

15 No duty on health and safety representative

Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity.

Compare: 1992 No 96 s 19X; Model Work Health and Safety Act (Aust) s 68(4)

16 Immunity of health and safety representatives

A health and safety representative is protected from civil and criminal liability for any act done or omitted to be done—

(a)

in the performance or intended performance of his or her functions or the exercise or intended exercise of his or her powers; and

(b)

in good faith.

Compare: 1992 No 96 s 19ZP; Model Work Health and Safety Act (Aust) s 66

17 Regulator may remove health and safety representative

(1)

The regulator may, at its discretion, remove a health and safety representative from office if the regulator considers that the representative has not performed or exercised his or her functions or powers satisfactorily, including if the health and safety representative has—

(a)

performed a function or exercised a power as a health and safety representative for an improper purpose; or

(b)

used or disclosed any information he or she acquired as a health and safety representative in contravention of clause 14.

(2)

The regulator must give written notice of a decision under subclause (1) to—

(a)

the health and safety representative affected by the decision; and

(b)

the PCBU of the health and safety representative.

(3)

The notice under subclause (2) must state—

(a)

the reasons for the regulator’s decision; and

(b)

whether the removal from office is for a specified period or indefinite.

Compare: 1992 No 96 s 19ZR

18 Appeal against removal from office

(1)

A health and safety representative may appeal to a District Court against a decision of the regulator to remove him or her from office.

(2)

An appeal must be brought within 28 days of the date of the notice given under clause 17(2).

Compare: 1992 No 96 s 19ZT

19 PCBU may request regulator to exercise discretion to remove health and safety representative

(1)

A PCBU may,—

(a)

request the regulator to exercise its discretion under clause 17(1) to remove a health and safety representative in the PCBU’s business or undertaking; and

(b)

provide any relevant information to support the request.

(2)

After receiving the request, the regulator must decide whether to exercise its discretion to remove the health and safety representative.

(3)

If the regulator decides not to exercise its discretion to remove the health and safety representative, the regulator must give written notice to the PCBU stating the reasons for the regulator’s decision.

(4)

The PCBU may appeal to a District Court against a decision of the regulator not to exercise its discretion to remove the health and safety representative.

(5)

An appeal must be brought within 28 days of the date of the notice given under subclause (3).

Part 2 Health and safety committees

20 Functions of health and safety committee

The functions of a health and safety committee are—

(a)

to facilitate co-operation between the PCBU and workers in instigating, developing, and carrying out measures designed to ensure the workers’ health and safety at work; and

(b)

to assist in developing any standards, rules, policies, or procedures relating to health and safety that are to be followed or complied with at the workplace; and

(c)

to make recommendations relating to work health and safety; and

(d)

to perform any other functions that are—

(i)

agreed between the PCBU and the committee; or

(ii)

prescribed by regulations.

Compare: Model Work Health and Safety Act (Aust) s 77

21 Obligations of PCBU in relation to health and safety committees

(1)

The PCBU must—

(a)

consult, so far as is reasonably practicable, about health and safety matters with a health and safety committee; and

(b)

allow each member of a health and safety committee to spend as much time as is reasonably necessary to attend meetings of the committee or to carry out functions as a member of the committee; and

(c)

provide the health and safety committee with any information that is necessary to enable the committee to perform its functions, including information relating to—

(i)

hazards (including associated risks) at the workplace; and

(ii)

the health and safety of the workers at the workplace.

(2)

If a health and safety committee makes a recommendation regarding work health and safety, the PCBU must, within a reasonable time,—

(a)

adopt the recommendation; or

(b)

provide a written statement to the health and safety committee setting out the reasons for not adopting the recommendation.

(3)

Any time that a member of a health and safety committee spends for the purposes set out in subclause (1) must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(4)

Despite subclause (1)(c), the PCBU must not allow the health and safety committee to have access to any personal information concerning a worker without the worker’s consent unless the information is in a form that—

(a)

does not identify the worker; and

(b)

could not reasonably be expected to identify the worker.

(5)

A person who contravenes subclause (1), (2), or (4) 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.

Compare: 1996 No 96 s 19B(4); Model Work Health and Safety Act (Aust) s 79

22 Information to be used by health and safety committee for health and safety purposes only

(1)

This section applies to any information obtained by a member of a health and safety committee in the performance of the committee’s functions under this Act.

(2)

The member may—

(a)

disclose or use the information,—

(i)

if the information is about a person, only with the person’s consent:

(ii)

only to the extent necessary for the performance of the health and safety committee’s functions under this Act:

(b)

disclose the information—

(i)

to the regulator or a person authorised by the regulator only if the member reasonably believes the disclosure is necessary for administering, monitoring, or enforcing compliance with the relevant health and safety legislation:

(ii)

only if the disclosure is authorised or required by law.

(3)

In subclause (2), disclose includes to give any person access to information.

Compare: 1992 No 96 s 19ZN

Schedule 2 Health and safety in mining sector

s 87

Part 1 General provisions

1 Interpretation

In this schedule,—

alluvial mining operation means a mining operation carried out above ground and associated with—

(a)

the extraction of gold from river deposits of sand or gravel:

(b)

the extraction of ironsand from sand or gravel

Board means the New Zealand Mining Board of Examiners established under clause 23

coal means anthracite, bituminous coal, sub-bituminous coal, and lignite, and—

(a)

includes every other substance worked or normally worked with coal; but

(b)

does not include coal in the form of peat

industry health and safety representative means a person appointed in accordance with clause 13

licence or other permission means a lease, licence, or other instrument under which a person with an interest in land (including, for example, the owner of the land) permits another person to carry out a mining operation on the land

mine operator means,—

(a)

for a mining operation carried out under a permit granted under the Crown Minerals Act 1991,—

(i)

the person appointed by the permit operator to manage and control the mining operation; or

(ii)

the permit operator, if no such person has been appointed:

(b)

for a mining operation (not being a mining operation described in paragraph (a)) carried out under a licence or other permission,—

(i)

the person appointed to manage and control the mining operation by the person who holds the licence or other permission to carry out mining operations; or

(ii)

the person who holds the licence or other permission to carry out mining operations, if no such person has been appointed:

(c)

in any other case,—

(i)

the person appointed to manage and control the mining operation by the owner of the land where the mining operation is being carried out; or

(ii)

the owner of the land where the mining operation is being carried out, if no such person has been appointed

mine worker means a worker in a mining operation

mineral means a naturally occurring inorganic substance beneath or at the surface of the earth, and—

(a)

includes metallic minerals, non-metallic minerals, and precious stones; but

(b)

does not include clay, coal, gravel, limestone, sand, or stone

mining operation has the meaning given to it in clause 2

peat means combustible, soft, porous, or compressed sedimentary deposit of plant origin with a high water content

permit operator has the same meaning as in section 2(1) of the Crown Minerals Act 1991

quarrying operation has the meaning given to it in clause 3

site senior executive means a worker appointed as the site senior executive by the mine operator

tourist mining operation means an operation that has the purpose of—

(a)

mine education; or

(b)

mine research; or

(c)

mine tourism

tunnelling operation has the meaning given to it in clause 4.

2 Meaning of mining operation

In this schedule, mining operation

(a)

means the extraction of coal and minerals and the place at which the extraction is carried out; and

(b)

includes any of the following activities and the place at which they are carried out:

(i)

exploring for coal:

(ii)

mining for coal or minerals:

(iii)

processing coal or minerals associated with a mine:

(iv)

producing or maintaining tailings, spoil heaps, and waste dumps:

(v)

the excavation, removal, handling, transport, and storage of coal, minerals, substances, contaminants, and wastes at the place where the activities described in subparagraphs (i) to (iv) are carried out:

(vi)

the construction, operation, maintenance, and removal of plant and buildings at the place where the activities described in subparagraphs (i) to (iv) are carried out:

(vii)

preparatory, maintenance, and repair activities associated with the activities described in subparagraphs (i) to (iv); and

(c)

includes—

(i)

a tourist mining operation:

(ii)

a tunnelling operation; but

(d)

does not include—

(i)

exploring for minerals:

(ii)

an alluvial mining operation:

(iii)

a mining operation wholly on or under the seabed on the seaward side of the mean high-water mark:

(iv)

a quarrying operation.

Compare: 1992 No 96 s 19M

3 Meaning of quarrying operation

(1)

In this schedule, quarrying operation

(a)

means an activity carried out above ground for the purpose of—

(i)

extracting any material, other than coal or any mineral, from the earth; or

(ii)

processing any material, other than coal or any mineral, at the place where the material is extracted; and

(b)

includes the place where an activity described in paragraph (a) is carried out; and

(c)

includes any place in which any material extracted or processed in a quarry is crushed or screened.

(2)

Subclause (1) applies whether or not the material is to be extracted or processed for commercial gain and whether or not the material is extracted or processed by the use of explosives.

Compare: 1992 No 96 s 19N

4 Meaning of tunnelling operation

In this schedule, tunnelling operation

(a)

means an operation involving extraction of fill with the purpose of creating a tunnel or shaft or enlarging or extending any tunnel or shaft; and

(b)

includes the place where an operation described in paragraph (a) is carried out; but

(c)

excludes any tunnelling operation of a kind declared under clause 5 not to be a tunnelling operation.

Compare: 1992 No 96 s 19O

5 Regulations excluding tunnelling operations from clause 4

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations declaring that certain operations or classes of operation are not tunnelling operations for the purposes of clause 4.

Compare: 1992 No 96 s 19P

Engagement, worker participation, Worker engagement, participation, and representation in mining sector

5A How Part 3 applies in mining sector

(1)

For the purposes of the mining sector, the provisions in Part 3, unless the context otherwise requires, must be read as if—

(a)

every reference to a PCBU were a reference to the mine operator:

(b)

every reference to a work group or members of a work group were a reference to—

(i)

a group of mine workers who are represented by a health and safety representative; or

(ii)

mine workers in a mining operation:

(c)

every reference to a business or undertaking were a reference to a mining operation.

(2)

Despite subclause (1)(a), references to a PCBU in section 107 must be read as references to the site senior executive.

Specific provision relating to competency of inspectors who inspect mining operations

5B Competency of inspectors appointed under this Act who inspect mining operations

A person appointed as an inspector under section 181 and who is to inspect mining operations must, unless the person already has experience relevant to health and safety in mining operations, have passed an examination or examinations in areas of knowledge that the regulator is satisfied are specifically relevant to health and safety in mining operations.

Compare: SR 2013/483 r 51(2)

Specific powers of health and safety representatives in mining sector

6 Power of health and safety representative to give notice requiring suspension of mining operation

(1)

This section applies if a health and safety representative—

(a)

believes on reasonable grounds that the whole, or a part or an aspect, of a mining operation is likely to cause a serious risk to the health and safety of a person; and

(b)

has discussed or attempted to discuss the matter likely to involve a serious risk to the health and safety of a person with the site senior executive.

(2)

The health and safety representative may give a written notice to the site senior executive ordering the suspension of the whole, or a part or an aspect, of the mining operation.

(3)

The notice must set out the reasons for the health and safety representative’s belief.

(4)

If the site senior executive receives a notice under subclause (2), the site senior executive must stop the mining operation, or the part or aspect of the mining operation, specified in the notice.

(5)

If a notice ordering the suspension of the whole, or a part or an aspect, of the mining operation has been given by a health and safety representative, the site senior executive must notify the regulator of that fact.

(6)

A person who contravenes—

(a)

subclause (4) commits an offence and is liable on conviction to a fine not exceeding $50,000:

(b)

subclause (5) commits an offence and is liable on conviction to a fine not exceeding $2,000.

Compare: 1992 No 96 s 19ZG

7 Power of health and safety representative to require mining operation to stop in case of serious risk to health and safety

(1)

This section applies if a health and safety representative believes on reasonable grounds that a serious risk to any person’s health and safety arising from an immediate or imminent exposure to a hazard is likely to be caused by the whole, or a part or an aspect, of a mining operation.

(2)

The health and safety representative may—

(a)

stop the whole, or a part or an aspect, of the mining operation and immediately advise the person in charge of the operation or part or aspect of the operation; or

(b)

require the person in charge of the operation or part or aspect of the operation to stop the operation.

(3)

If a health and safety representative requires a person to stop the whole, or a part or an aspect, of a mining operation, that person must do so.

(4)

The health and safety representative must, as soon as practicable after exercising the power under subclause (2), advise the site senior executive of the action taken under that subclause and the reasons for the action taken.

(5)

If a health and safety representative has advised the site senior executive of action taken under subclause (2), the site senior executive must notify the regulator of that fact.

(6)

A person who contravenes—

(a)

subclause (3) commits an offence and is liable on conviction,—

(i)

for an individual who is not a mine operator or site senior executive, to a fine not exceeding $10,000:

(ii)

for an individual who is a mine operator or a site senior executive, to a fine not exceeding $50,000:

(iii)

for any other person, to a fine not exceeding $250,000:

(b)

subclause (5) commits an offence and is liable on conviction to a fine not exceeding $2,000.

Compare: 1992 No 96 s 19ZH

8 Inspector may cancel order to suspend mining operation

An inspector may cancel the whole or part of a notice given under clause 6 (whether or not mining operations have stopped pursuant to the notice) or an action taken by a health and safety representative under clause 7 if the inspector does not consider that the operation or the part or aspect of the mining operation concerned is likely to cause a serious risk to the health and safety of a person.

Compare: 1992 No 96 s 19ZI

9 Competency and experience requirements for exercise of powers under clauses 6 and 7

A health and safety representative must not exercise any power under clause 6 or 7 unless he or she meets the competency and experience requirements for a health and safety representative at a mining operation prescribed by or under regulations made under this Act.

Compare: 1992 No 96 s 19Y

10 Mine workers must do other work

(1)

This section applies if the whole or a part or an aspect of a mining operation is stopped under clause 6 or 7.

(2)

Section 108 applies with any necessary modifications to a mine worker who has stopped work under clause 6 or 7.

Compare: 1992 No 96 s 19ZJ

11 Work not to restart until no likelihood of serious risk to health and safety

(1)

The site senior executive must ensure that the operation or part or aspect of the mining operation stopped because a notice is given under clause 6, or stopped or required to be stopped under clause 7, is not restarted until the site senior executive is satisfied that it is not likely to involve a serious risk to the health and safety of a person.

(2)

A person who contravenes subclause (1) commits an offence and is liable on conviction to a fine not exceeding $50,000.

Compare: 1992 No 96 s 19ZK

12 Health and safety representative not to unnecessarily impede production

A health and safety representative must not unnecessarily impede production at a mining operation when performing functions or exercising powers under this schedule.

Compare: 1992 No 96 s 19ZO

12A Power to require assistance

(1)

A health and safety representative may require the senior site executive or person in charge of the relevant part or aspect of a mining operation to give the health and safety representative reasonable assistance in the exercise of a power under clause 3 or 4 of Schedule 1A.

(2)

A person who fails to comply with subclause (1) commits an offence and is liable on conviction to a fine not exceeding $10,000.

Compare: 1992 No 96 s 19ZC

12B Obstructing health and safety representatives performing functions or exercising powers

(1)

A mine operator or site senior executive must not prevent or attempt to prevent a health and safety representative from performing his or her functions or exercising his or her powers.

(2)

A person who contravenes subclause (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.

Compare: 1992 No 96 s 19ZL(a)

Industry health and safety representatives

13 Appointment of industry health and safety representatives

(1)

This clause and clauses 14 to 19 apply only to—

(a)

a mining operation associated with the extraction of coal and where any person works below ground (underground coal mining operation):

(b)

mine workers who work in an underground coal mining operation:

(c)

any union that represents mine workers who work in an underground coal mining operation.

(2)

A union or group of mine workers may, in any manner determined by the union or group, appoint a person to be an industry health and safety representative.

(3)

The person appointed must meet the competency requirements for industry health and safety representatives prescribed in regulations made under this Act.

(4)

The union or group of mine workers that appoints an industry health and safety representative must meet the costs of the representative.

Compare: 1992 No 96 s 19ZU

14 Notice to regulator of appointment or cessation of appointment of representative

A union or group of mine workers that appoints an industry health and safety representative must—

(a)

give notice to the regulator of that appointment; and

(b)

provide the prescribed information in relation to that appointment, and a photograph of the representative authenticated in accordance with any prescribed requirements; and

(c)

give notice to the regulator within 14 days after the date on which the person ceases to be a representative.

Compare: 1992 No 96 s 19ZV

15 Functions and powers of industry health and safety representatives

(1)

In addition to the functions and powers conferred on a health and safety representative specified in Part 3, an industry health and safety representative has the following functions and powers:

(a)

to give no