WORK HEALTH AND SAFETY ACT 2011 - As at 25 April 2024 - Act 10 of 2011
- As at 25 April 2024
- Act 10 of 2011
Table of Provisions
PART 1 - PRELIMINARY
Division 1 - Introduction
- 1 Name of Act
- 2 Commencement
Division 2 - Object
Division 3 - Interpretation
Subdivision 1 - Definitions
- 4 Definitions
Subdivision 2 - Other important terms
4A. (Repealed)
- 5 Meaning of "person conducting a business or undertaking"
- 6 Meaning of "supply"
- 7 Meaning of "worker"
- 8 Meaning of "workplace"
- 9 Examples and notes
Division 4 - Application of Act
- 10 Act binds the Crown
- 11 Extraterritorial application
- 12 Scope
- 12A Offences are offences of strict liability
PART 2 - HEALTH AND SAFETY DUTIES
Division 1 - Introductory
Subdivision 1 - Principles that apply to duties
- 13 Principles that apply to duties
- 14 Duties not transferrable
- 15 Person may have more than one duty
- 16 More than one person can have a duty
- 17 Management of risks
Subdivision 2 - What is reasonably practicable
- 18 What is "reasonably practicable" in ensuring health and safety
Division 2 - Primary duty of care
Division 3 - Further duties of persons conducting businesses or undertakings
- 20 Duty of persons conducting businesses or undertakings involving management or control of workplaces
- 21 Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces
- 22 Duties of persons conducting businesses or undertakings that design plant, substances or structures
- 23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures
- 24 Duties of persons conducting businesses or undertakings that import plant, substances or structures
- 25 Duties of persons conducting businesses or undertakings that supply plant, substances or structures
- 26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures
Division 4 - Duty of officers, workers and other persons
- 27 Duty of officers
- 28 Duties of workers
- 29 Duties of other persons at the workplace
Division 5 - Offences and penalties
Note
- 30 Health and safety duty
- 31 Gross negligence or reckless conduct--Category 1
- 32 Failure to comply with health and safety duty--Category 2
- 33 Failure to comply with health and safety duty--Category 3
- 34 Exceptions
- 34A Exception for police responding to particular active armed offender incidents
PART 3 - INCIDENT NOTIFICATION
- 35 What is a "notifiable incident"
- 36 What is a "serious injury or illness"
- 37 What is a "dangerous incident"
- 38 Duty to notify of notifiable incidents
- 39 Duty to preserve incident sites
PART 4 - AUTHORISATIONS
- 40 Meaning of "authorised"
- 41 Requirements for authorisation of workplaces
- 42 Requirements for authorisation of plant or substance
- 43 Requirements for authorisation of work
- 44 Requirements for prescribed qualifications or experience
- 45 Requirement to comply with conditions of authorisation
PART 5 - CONSULTATION, REPRESENTATION AND PARTICIPATION
Division 1 - Consultation, co-operation and co-ordination between duty holders
- 46 Duty to consult with other duty holders
Division 2 - Consultation with workers
- 47 Duty to consult workers
- 48 Nature of consultation
- 49 When consultation is required
Division 3 - Health and safety representatives
Subdivision 1 - Request for election of health and safety representatives
- 50 Request for election of health and safety representative
Subdivision 2 - Determination of work groups
- 51 Determination of work groups
- 52 Negotiations for agreement for work group
- 53 Notice to workers
- 54 Failure of negotiations
Subdivision 3 - Multiple-business work groups
- 55 Determination of work groups of multiple businesses
- 56 Negotiation of agreement for work groups of multiple businesses
- 57 Notice to workers
- 58 Withdrawal from negotiations or agreement involving multiple businesses
- 59 Effect of Subdivision on other arrangements
Subdivision 4 - Election of health and safety representatives
- 60 Eligibility to be elected
- 61 Procedure for election of health and safety representatives
- 62 Eligibility to vote
- 63 When election not required
- 64 Term of office of health and safety representative
- 65 Disqualification of health and safety representatives
- 66 Immunity of health and safety representatives
- 67 Deputy health and safety representatives
Subdivision 5 - Powers and functions of health and safety representatives
- 68 Powers and functions of health and safety representatives
- 69 Powers and functions generally limited to the particular work group
Subdivision 6 - Obligations of person conducting business or undertaking to health and safety representatives
- 70 General obligations of person conducting business or undertaking
- 71 Exceptions from obligations under section 70 (1)
- 72 Obligation to train health and safety representatives
- 73 Obligation to share costs if multiple businesses or undertakings
- 74 List of health and safety representatives
Division 4 - Health and safety committees
- 75 Health and safety committees
- 76 Constitution of committee
- 76A Special provision for coal mines
- 77 Functions of committee
- 78 Meetings of committee
- 79 Duties of person conducting business or undertaking
Division 5 - Issue resolution
- 80 Parties to an issue
- 81 Resolution of health and safety issues
- 82 Referral of issue to regulator for resolution by inspector
Division 6 - Right to cease or direct cessation of unsafe work
- 83 Definition of "cease work under this Division"
- 84 Right of worker to cease unsafe work
- 85 Health and safety representative may direct that unsafe work cease
- 86 Worker to notify if ceases work
- 87 Alternative work
- 88 Continuity of engagement of worker
- 89 Request to regulator to appoint inspector to assist
Division 7 - Provisional improvement notices
- 90 Provisional improvement notices
- 91 Provisional improvement notice to be in writing
- 92 Contents of provisional improvement notice
- 93 Provisional improvement notice may give directions to remedy contravention
- 94 Minor changes to provisional improvement notice
- 95 Issue of provisional improvement notice
- 96 Health and safety representative may cancel notice
- 97 Display of provisional improvement notice
- 98 Formal irregularities or defects in notice
- 99 Offence to contravene a provisional improvement notice
- 100 Request for review of provisional improvement notice
- 101 Regulator to appoint inspector to review notice
- 102 Decision of inspector on review of provisional improvement notice
Division 8 - Part not to apply to prisoners
- 103 Part does not apply to prisoners
PART 6 - DISCRIMINATORY, COERCIVE AND MISLEADING CONDUCT
Division 1 - Prohibition of discriminatory, coercive or misleading conduct
- 104 Prohibition of discriminatory conduct
- 105 What is "discriminatory conduct"
- 106 What is a "prohibited reason"
- 107 Prohibition of requesting, instructing, inducing, encouraging, authorising or assisting discriminatory conduct
- 108 Prohibition of coercion or inducement
- 109 Misrepresentation
Division 2 - Criminal proceedings in relation to discriminatory conduct
- 110 Proof of discriminatory conduct
- 111 Order for compensation or reinstatement
Division 3 - Civil proceedings in relation to discriminatory or coercive conduct
- 112 Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct
- 113 Procedure for civil actions for discriminatory conduct
Division 4 - General
- 114 General provisions relating to orders
- 115 Prohibition of multiple actions
PART 7 - WORKPLACE ENTRY BY WHS ENTRY PERMIT HOLDERS
Note
Division 1 - Introductory
Division 2 - Entry to inquire into suspected contraventions
- 117 Entry to inquire into suspected contraventions
- 118 Rights that may be exercised while at workplace
- 119 Notice of entry
- 120 Entry to inspect employee records or information held by another person
Division 3 - Entry to consult and advise workers
- 121 Entry to consult and advise workers
- 122 Notice of entry
Division 4 - Requirements for WHS entry permit holders
- 123 Contravening WHS entry permit conditions
- 124 WHS entry permit holder must also hold permit under other law
- 125 WHS entry permit to be available for inspection
- 126 When right may be exercised
- 127 Where the right may be exercised
- 128 Work health and safety requirements
- 129 Residential premises
- 130 WHS entry permit holder not required to disclose names of workers
Division 5 - WHS entry permits
- 131 Application for WHS entry permit
- 132 Consideration of application
- 133 Eligibility criteria
- 134 Issue of WHS entry permit
- 135 Conditions on WHS entry permit
- 136 Term of WHS entry permit
- 137 Expiry of WHS entry permit
- 138 Application to revoke WHS entry permit
- 139 Authorising authority must permit WHS entry permit holder to show cause
- 140 Determination of application
Division 6 - Dealing with disputes
- 141 Application for assistance of inspector to resolve dispute
- 142 Authorising authority may deal with a dispute about a right of entry under this Act
- 143 Contravening order made to deal with dispute
Division 7 - Prohibitions
- 144 Person must not refuse or delay entry of WHS entry permit holder
- 145 Person must not hinder or obstruct WHS entry permit holder
- 146 WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace
- 147 Misrepresentations about things authorised by this Part
- 148 Unauthorised use or disclosure of information or documents
Division 8 - General
- 149 Return of WHS entry permits
- 150 Union to provide information to authorising authority
- 151 Register of WHS entry permit holders
PART 8 - THE REGULATOR
Division 1 - Functions of regulator
- 152 Functions of regulator
- 153 Powers of regulator
- 154 Delegation by regulator
Division 2 - Powers of regulator to obtain information
- 155 Powers of regulator to obtain information
- 155A Extraterritorial application
- 155B Service of notices
PART 9 - SECURING COMPLIANCE
Division 1 - Appointment of inspectors
- 156 Appointment of inspectors
156A. (Repealed)
- 157 Identity cards
- 158 Accountability of inspectors
- 159 Suspension and ending of appointment of inspectors
Division 2 - Functions and powers of inspectors
- 160 Functions and powers of inspectors
- 161 Conditions on inspectors' compliance powers
- 162 Inspectors subject to regulator's directions
162A. (Repealed)
Division 3 - Powers relating to entry
Subdivision 1 - General powers of entry
- 163 Powers of entry
- 164 Notification of entry
- 165 General powers on entry
165A. (Repealed)
- 166 Persons assisting inspectors
166A. (Repealed)
Subdivision 2 - Search warrants
- 167 Search warrant
- 168 Announcement before entry on warrant
- 169 Copy of warrant to be given to person with management or control of place
Subdivision 3 - Limitation on entry powers
- 170 Places used for residential purposes
Subdivision 4 - Specific powers on entry
- 171 Power to require production of documents and answers to questions
- 171A Giving of notices
- 172 Abrogation of privilege against self-incrimination
- 173 Warning to be given
- 174 Powers to copy and retain documents
- 175 Power to seize evidence etc
- 176 Inspector's power to seize dangerous workplaces and things
- 177 Powers supporting seizure
- 178 Receipt for seized things
- 179 Forfeiture of seized things
- 180 Return of seized things
- 181 Access to seized things
Division 4 - Damage and compensation
- 182 Damage etc to be minimised
- 183 Inspector to give notice of damage
- 184 Compensation
Division 5 - Other matters
- 185 Power to require name and address
- 185A Recording of evidence
- 186 Inspector may take affidavits
- 187 Attendance of inspector at coronial inquests
Division 6 - Offences in relation to inspectors
- 188 Offence to hinder or obstruct inspector
- 189 Offence to impersonate inspector
- 190 Offence to assault, threaten or intimidate inspector
PART 10 - ENFORCEMENT MEASURES
Division 1 - Improvement notices
- 191 Issue of improvement notices
- 192 Contents of improvement notices
- 193 Compliance with improvement notice
- 194 Extension of time for compliance with improvement notices
Division 2 - Prohibition notices
- 195 Power to issue prohibition notice
- 196 Contents of prohibition notice
- 197 Compliance with prohibition notice
Division 2A - Prohibited asbestos notices
- 197A Definitions
- 197B Issue of prohibited asbestos notices
- 197C Contents of prohibited asbestos notices
- 197D Compliance with prohibited asbestos notice
- 197E Extension of time for compliance with prohibited asbestos notices
Division 3 - Non-disturbance notices
- 198 Issue of non-disturbance notice
- 199 Contents of non-disturbance notice
- 200 Compliance with non-disturbance notice
- 201 Issue of subsequent notices
Division 4 - General requirements applying to notices
- 202 Application of Division
- 203 Notice to be in writing
- 204 Directions in notices
- 205 Recommendations in notice
- 206 Changes to notice
- 207 Regulator may vary or cancel notice
- 208 Formal irregularities or defects in notice
- 209 Issue and giving of notice
- 210 Display of notice
Division 5 - Remedial action
- 211 When regulator may carry out action
- 212 Power of the regulator to take other remedial action
- 213 Costs of remedial or other action
Division 6 - Injunctions
- 214 Application of Division
- 215 Injunctions for noncompliance with notices
PART 11 - ENFORCEABLE UNDERTAKINGS
- 216 Regulator may accept WHS undertakings
- 217 Notice of decision and reasons for decision
- 218 When a WHS undertaking is enforceable
- 219 Compliance with WHS undertaking
- 220 Contravention of WHS undertaking
- 221 Withdrawal or variation of WHS undertaking
- 222 Proceeding for alleged contravention
PART 12 - REVIEW OF DECISIONS
Division 1 - Reviewable decisions
- 223 Which decisions are reviewable
Division 2 - Internal review
- 224 Application for internal review
- 225 Internal reviewer
- 226 Decision of internal reviewer
- 227 Decision on internal review
- 228 Stays of reviewable decisions
Division 3 - External review
- 229 Application for external review
PART 13 - LEGAL PROCEEDINGS
Division 1 - General matters
229A. (Repealed)
- 229B Procedure for offences
- 230 Prosecutions
- 231 Procedure if prosecution is not brought
- 232 Limitation period for prosecutions
- 233 Multiple contraventions of health and safety duty provision
- 233A Certificate evidence of certain matters
Division 2 - Sentencing for offences
- 234 Application of this Division
- 235 Orders generally
- 236 Adverse publicity orders
- 237 Orders for restoration
- 238 Work health and safety project orders
- 239 Release on the giving of a court-ordered WHS undertaking
- 240 Injunctions
- 241 Training orders
- 242 Offence to fail to comply with order
Division 2A - Penalty units
- 242A Definitions
- 242B Value of penalty unit
- 242C Amount of penalties
- 242D Notice of indexed penalties
Division 3 - Penalty notices
Division 4 - Offences by bodies corporate
- 244 Definitions
- 244A Imputing conduct to body corporate
- 244B State of mind
- 244C Mistake of fact
- 244D Failure to take reasonable precautions
Division 5 - The Crown
- 245 Offences and the Crown
- 246 WHS civil penalty provisions and the Crown
- 247 Officers
- 248 Responsible agency for the Crown
Division 6 - Public authorities
- 249 Application to public authorities that are bodies corporate
- 250 Proceedings against public authorities
- 251 Imputing conduct to public authorities
- 252 Officer of public authority
- 253 Proceedings against successors to public authorities
Division 7 - WHS civil penalty provisions
- 254 When is a provision a WHS civil penalty provision
- 255 Proceedings for contravention of WHS civil penalty provision
- 256 Involvement in contravention treated in same way as actual contravention
- 257 Contravening a civil penalty provision is not an offence
- 258 Civil proceeding rules and procedure to apply
- 259 Proceeding for a contravention of a WHS civil penalty provision
- 260 Proceedings may be brought by the regulator or an inspector
- 261 Limitation period for WHS civil penalty proceedings
- 262 Recovery of a monetary penalty
- 263 Civil double jeopardy
- 264 Criminal proceedings during civil proceedings
- 265 Criminal proceedings after civil proceedings
- 266 Evidence given in proceedings for contravention of WHS civil penalty provision not admissible in criminal proceedings
Division 8 - Civil liability not affected by this Act
- 267 Civil liability not affected by this Act
PART 14 - GENERAL
Division 1 - General provisions
- 268 Offence to give false or misleading information
- 269 Act does not affect legal professional privilege
- 270 Immunity from liability
- 271 Confidentiality of information
- 271A Information sharing between regulators
- 271B Provision of information from Health Secretary to regulator
- 271C Dust Diseases Register
- 271D SafeWork NSW must report to Minister
- 271E SafeWork NSW to publish information on website
- 271F National register of dust diseases
- 272 No contracting out
- 272A Prohibition on certain insurance or indemnity arrangements
- 272B Liability of officers for offences by body corporate under section 272A
- 273 Person not to levy workers
Division 1A - Silica worker registration
- 273A Silica worker register
- 273B Access to silica worker register
Division 2 - Codes of practice
- 274 Approved codes of practice
- 275 Use of codes of practice in proceedings
Division 3 - Regulation-making powers
- 276 Regulation-making powers
Division 3A - Miscellaneous
- 276A Case-finding study
- 276B Review of Act
276C. (Repealed)