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Contents (2011 - 674)
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Work Health and Safety Regulation 2011
Repealed version for 1 July 2017 to 31 August 2017 (accessed 19 April 2019 at 13:10)
Chapter 11
Chapter 11 General
Part 11.1 Review of decisions under this Regulation
Division 1 Reviewable decisions
676   Which decisions under this Regulation are reviewable
(1)  The following table sets out:
(a)  decisions made under this Regulation that are reviewable under this Part (reviewable decisions), and
(b)  who is eligible to apply for review of a reviewable decision (the eligible person).
Item
Clause under which reviewable decision is made
Eligible person in relation to reviewable decision
 
High risk work licences
 
1
89—Refusal to grant licence
Applicant
2
91—Refusal to grant licence
Applicant
2A
91A—Imposition of a condition when granting licence
Applicant
2B
91A—Imposition of a condition when renewing licence
Licence holder
3
98—Refusal to issue replacement licence document
Licence holder
4
104—Refusal to renew licence
Applicant
5
106—Suspension of licence
Licence holder
6
106—Cancellation of licence
Licence holder
7
106—Disqualification of licence holder from applying for another licence
Licence holder
7A
106—Variation of licence conditions
Licence holder
 
Accreditation of assessors
 
8
118—Refusal to grant accreditation
Applicant
An RTO that engages the applicant
9
120—Refusal to grant accreditation
Applicant
An RTO that engages the applicant
10
121—Imposition of a condition when granting accreditation
Applicant
An RTO that engages the applicant
11
121—Imposition of a condition when renewing accreditation
Applicant
An RTO that engages the applicant
12
127—Refusal to issue replacement accreditation document
Accredited assessor
An RTO that engages the accredited assessor
13
132—Refusal to renew accreditation
Applicant
An RTO that engages the applicant
14
133—Suspension of accreditation
Accredited assessor
An RTO that engages the accredited assessor
15
133—Cancellation of accreditation
Accredited assessor
An RTO that engages the accredited assessor
16
133—Disqualification of assessor from applying for a further accreditation
Accredited assessor
An RTO that engages the accredited assessor
 
Registration of plant designs
 
17
256—Refusal to register plant design
Applicant
18
257—Refusal to register plant design
Applicant
19
258—Imposition of a condition when granting registration of plant design
Applicant
 
Registration of plant
 
20
269—Refusal to register item of plant
Applicant
The person with management or control of the item of plant
21
270—Refusal to register item of plant
Applicant
The person with management or control of the item of plant
22
271—Imposition of a condition when granting registration of item of plant
Applicant
The person with management or control of the item of plant
23
271—Imposition of a condition when renewing registration of item of plant
Registration holder
The person with management or control of the item of plant
24
279—Refusal to renew registration of item of plant
Registration holder
The person with management or control of the item of plant
25
283—Amendment of registration, on regulator’s initiative
Registration holder
The person with management or control of the item of plant
26
284—Refusal to amend registration on application (or a decision to make a different amendment)
Registration holder
The person with management or control of the item of plant
27
288—Refusal to issue replacement registration document
Registration holder
The person with management or control of the item of plant
27A
288B—Decision to cancel registration
Registration holder
The person with management or control of the item of plant
 
General construction induction training
 
28
322—Refusal to issue general construction induction training card
Applicant
29
322—Refusal to issue replacement general construction induction training card
Card holder
30
323—Cancellation of general construction induction training card
Card holder
 
Hazardous chemicals and lead
 
31
384—Refusal to grant authorisation to use, handle or store a prohibited or restricted carcinogen
Applicant
32
386—Cancellation of authorisation to use, handle or store a prohibited or restricted carcinogen
Authorisation holder
33
393—Deciding a process to be a lead process
A person conducting a business or undertaking that carries out the lead process
A worker whose interests are affected by the decision
34
407—Determining a different frequency for biological monitoring of workers at a workplace, or a class of workers, carrying out lead risk work
A person conducting a business or undertaking that carries out lead risk work
A worker whose interests are affected by the decision
 
Asbestos removal licences and asbestos assessor licences
 
35
497—Refusal to grant licence
Applicant
36
501—Refusal to grant licence
Applicant
37
502—Imposition of a condition when granting licence
Applicant
38
502—Imposition of a condition when renewing licence
Applicant
39
508—Amendment of licence, on regulator’s initiative
Licence holder
40
509—Refusal to amend licence on application (or a decision to make a different amendment)
Licence holder
41
513—Refusal to issue replacement licence document
Licence holder
42
517—Refusal to renew licence
Applicant
43
520—Suspension of licence
Licence holder
44
520—Cancellation of licence
Licence holder
45
520—Disqualification of licence holder from applying for another licence
Licence holder
 
Major hazard facilities
 
 
Determination of facility to be major hazard facility
 
46
541—Determination of facility to be a major hazard facility, on making inquiry
Operator of facility
47
541—Decision not to determine proposed facility to be a major hazard facility
Operator of facility
48
542—Determination of major hazard facility
Operator of facility
49
543—Determination of suitability of operator
Operator of facility
50
544—Imposition of a condition on a determination of a major hazard facility
Operator of facility
 
Licensing of major hazard facility
 
51
580—Refusal to grant licence
Operator of facility
52
584—Imposition of a condition when granting licence
Operator of facility
53
584—Imposition of a condition when renewing licence
Operator of facility
54
589—Amendment of licence, on regulator’s initiative
Operator of facility
55
590—Refusal to amend licence, on application (or a decision to make a different amendment)
Operator of facility
56
594—Refusal to issue replacement licence document
Operator of facility
57
598—Refusal to renew licence
Operator of facility
58
600—Refusal to transfer licence, on application
Operator of facility
Proposed operator of facility
59
601—Refusal to cancel licence, on application
Operator of facility
60
602—Suspension of licence
Operator of facility
61
602—Cancellation of licence
Operator of facility
62
602—Disqualification of licence holder from applying for another licence
Operator of facility
 
Exemptions
 
63
684—Refusal to exempt person (or a class of persons) from compliance with any of this Regulation
Applicant
64
686—Refusal to exempt person from requirement to hold a high risk work licence
Applicant
65
688—Refusal to exempt operator of major hazard facility from compliance with any of this Regulation, on application
Operator of facility
66
691—Imposing condition on an exemption granted on application under Part 11.2
Applicant
67
696—Refusal to grant exemption
Applicant
68
697—Amendment of an exemption granted on application under Part 11.2
Applicant
69
697—Cancellation of an exemption granted on application under Part 11.2
Applicant
(2)  Unless the contrary intention appears, a reference in this Part to a decision includes a reference to:
(a)  making, suspending, revoking or refusing to make an order, determination or decision, or
(b)  giving, suspending, revoking or refusing to give a direction, approval, consent or permission, or
(c)  granting, issuing, amending, renewing, suspending, cancelling, revoking or refusing to grant, issue, amend or renew an authorisation, or
(d)  imposing or varying a condition, or
(e)  making a declaration, demand or requirement, or
(f)  retaining, or refusing to deliver up, a thing, or
(g)  doing or refusing to do any other act or thing, or
(h)  being taken to refuse or do any act or thing.
Division 2 Internal review
677   Application
This Division apples to all reviewable decisions made under this Regulation.
678   Application for internal review
(1)  Subject to subclause (2), an eligible person in relation to a reviewable decision may apply to the regulator for review (an internal review) of the decision within:
(a)  28 days after the day on which the decision first came to the eligible person’s notice, or
(b)  any longer time the regulator allows.
(2)  An eligible person in relation to a reviewable decision under clause 89 (5), 118 (5), 256 (5), 269 (5) or 497 (5) may apply to the regulator for review (an internal review) of the decision within:
(a)  28 days after the day on which the 120 day period referred to in that provision, or
(b)  any longer time the regulator allows.
(3)  The application must be made in the manner and form required by the regulator.
679   Internal reviewer
(1)  The regulator may appoint a person or body to review decisions on applications under this Division.
(2)  The person who made the reviewable decision cannot be an internal reviewer in relation to that decision.
680   Decision of internal reviewer
(1)  The internal reviewer must review the reviewable decision and make a decision as soon as practicable and within 21 days after the application for internal review, or the additional information requested under subclause (3), is received.
(2)  The decision may be:
(a)  to confirm or vary the reviewable decision, or
(b)  to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate.
(3)  The internal reviewer may ask the applicant to provide additional information in support of the application for review.
(4)  The applicant must provide the additional information within the time (being not less than 7 days) specified by the internal reviewer in the request for information.
(5)  If the applicant does not provide the additional information within the required time, the reviewable decision is taken to have been confirmed by the internal reviewer at the end of that time.
(6)  If the reviewable decision is not varied or set aside within the 21 day period referred to in subclause (1), the reviewable decision is taken to have been confirmed by the internal reviewer.
681   Decision on internal review
Within 21 days after the application for internal review, or the additional information requested under clause 680 (3), is received, the internal reviewer must give the applicant written notice of:
(a)  the decision on the internal review, and
(b)  the reasons for the decision.
682   Internal review—reviewable decision continues
Subject to any provision to the contrary in relation to a particular decision, an application for an internal review does not affect the operation of the reviewable decision or prevent the taking of any lawful action to implement or enforce the decision.
Division 3 External review
683   Application for external review
(1)  An eligible person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (an external review) of a decision made, or taken to have been made, on an internal review.
(2)  The application must be made within:
(a)  28 days after the day on which the decision first came to the eligible person’s notice, or
(b)  any longer time the Civil and Administrative Tribunal allows.
Part 11.2 Exemptions
Division 1 General
684   General power to grant exemptions
(1)  The regulator may exempt a person or class of persons from compliance with any of this Regulation.
(2)  The exemption may be granted on the regulator’s own initiative or on the written application of 1 or more persons.
(3)  This clause is subject to the limitations set out in this Part.
(4)  This clause does not apply to an exemption from:
(a)  a provision requiring a person to hold a high risk work licence, or
(b)  a provision of Chapter 9 relating to a major hazard facility or proposed major hazard facility.
Note.
 A decision to refuse to grant an exemption is a reviewable decision (see clause 676).
685   Matters to be considered in granting exemptions
In deciding whether or not to grant an exemption under clause 684 the regulator must have regard to all relevant matters, including the following:
(a)  whether the granting of the exemption will result in a standard of health and safety at the relevant workplace, or in relation to the relevant undertaking, that is at least equivalent to the standard that would be achieved by compliance with the relevant provision or provisions,
(b)  whether the requirements of paragraph (a) will be met if the regulator imposes certain conditions in granting the exemption and those conditions are complied with,
(c)  whether exceptional circumstances justify the grant of the exemption,
(d)  if the proposed exemption relates to a particular thing—whether the regulator is satisfied that the risk associated with the thing is not significant if the exemption is granted,
(e)  whether the applicant has carried out consultation in relation to the proposed exemption in accordance with Divisions 1 and 2 of Part 5 of the Act.
Division 2 High risk work licences
686   High risk work licence—exemption
(1)  The regulator may exempt a person or class of persons from compliance with a provision of this Regulation requiring the person or class of persons to hold a high risk work licence.
(2)  The exemption may be granted on the written application of any person concerned.
Note.
 A decision to refuse to grant an exemption is a reviewable decision (see clause 676).
687   High risk work licence—regulator to be satisfied about certain matters
(1)  The regulator must not grant an exemption under clause 686 unless satisfied that granting the exemption will result in a standard of health and safety that is at least equivalent to the standard that would have been achieved without that exemption.
(2)  For the purposes of subclause (1), the regulator must have regard to all relevant matters, including whether or not:
(a)  the obtaining of the high risk work licence would be impractical, and
(b)  the competencies of the person to be exempted exceed those required for a high risk work licence, and
(c)  any plant used by the person can be modified in a way that reduces the risk associated with using that plant.
Division 3 Major hazard facilities
688   Major hazard facility—exemption
(1)  The regulator may exempt the operator of a major hazard facility or proposed major hazard facility from compliance with any provision of this Regulation relating to that facility.
(2)  The exemption may be granted on the written application of the operator of the major hazard facility or proposed major hazard facility.
Note.
 A decision to refuse to grant an exemption is a reviewable decision (see clause 676).
689   Major hazard facility—regulator to be satisfied about certain matters
(1)  The regulator must not grant an exemption under clause 688 unless satisfied that:
(a)  1 or more Schedule 15 chemicals are present or likely to be present at the facility, and
(b)  the quantity of the Schedule 15 chemicals exceeds the threshold quantity of the Schedule 15 chemicals periodically because they are solely the subject of intermediate temporary storage, and
(c)  the Schedule 15 chemicals are in 1 or more containers with the capacity of each container being not more than a total of 500 kilograms, and
(d)  granting the exemption will result in a standard of health and safety in relation to the operation of the facility that is at least equivalent to the standard that would be achieved by compliance with the relevant provision or provisions.
(2)  For the purposes of subclause (1) (d), the regulator must have regard to all relevant matters, including whether or not:
(a)  the applicant is complying with the Act and this Regulation, and
(b)  the applicant has processes and procedures in place which will keep the quantity of the Schedule 15 chemical or chemicals present or likely to be present at or below the threshold quantity for the Schedule 15 chemical or chemicals as often as practicable, and
(c)  the applicant has implemented adequate control measures to minimise the risk of a major incident occurring.
Division 4 Exemption process
690   Application for exemption
An application for an exemption must be made in the manner and form required by the regulator.
Notes.
 
1   
The application must be in writing (see clause 684 (2)).
2   
The regulator may grant an exemption on its own initiative (see clause 684 (2)).
3   
See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
691   Conditions of exemption
(1)  The regulator may impose any conditions it considers appropriate on an exemption granted under this Part.
(2)  Without limiting subclause (1), conditions may require the applicant to do 1 or more of the following:
(a)  monitor risks,
(b)  monitor the health of persons at the workplace who may be affected by the exemption,
(c)  keep certain records,
(d)  use a stated system of work,
(e)  report certain matters to the regulator,
(f)  give notice of the exemption to persons who may be affected by the exemption.
Note.
 A decision to impose a condition is a reviewable decision (see clause 676).
692   Form of exemption document
The regulator must prepare an exemption document that states the following:
(a)  the name of the applicant for the exemption (if any),
(b)  the person or class of persons to whom the exemption will apply,
(c)  the work or thing to which the exemption relates, if applicable,
(d)  the circumstances in which the exemption will apply,
(e)  the provisions of this Regulation to which the exemption applies,
(f)  any conditions on the exemption,
(g)  the date on which the exemption takes effect,
(h)  the duration of the exemption.
693   Compliance with conditions of exemption
A person to whom the exemption is granted must:
(a)  comply with the conditions of the exemption, and
(b)  ensure that any person under the management or control of that person complies with the conditions of the exemption.
694   Notice of decision in relation to exemption
The regulator must give a copy of the exemption document referred to in clause 692, within 14 days after making the decision to grant the exemption, to:
(a)  if a person applied for the exemption—the applicant, or
(b)  if the regulator granted the exemption on its own initiative—each person (other than persons to whom clause 695 applies) to whom the exemption will apply.
695   Publication of notice of exemption
(1)  This clause applies to an exemption that relates to a class of persons.
(2)  The regulator must publish a copy of the exemption in the Gazette.
696   Notice of refusal of exemption
(1)  If the regulator refuses to grant an exemption, the regulator must give the applicant for the exemption written notice of the refusal within 14 days after making that decision.
(2)  The notice must state the regulator’s reasons for the refusal.
Note.
 A refusal to grant an exemption is a reviewable decision (see clause 676).
697   Amendment or cancellation of exemption
The regulator may at any time amend or cancel an exemption.
Note.
 A decision to amend or cancel an exemption is a reviewable decision (see clause 676).
698   Notice of amendment or cancellation
(1)  The regulator must give written notice of the amendment or cancellation of an exemption, within 14 days after making the decision to amend or cancel the exemption, to:
(a)  if a person applied for the exemption—the applicant, or
(b)  if the regulator granted the exemption on its own initiative—each person (other than persons to subclause (2) applies) to whom the exemption applies.
(2)  If the exemption affects a class of persons, the regulator must publish notice of the amendment or cancellation of the exemption in the Gazette.
(3)  The notice must state the regulator’s reasons for the amendment or cancellation.
(4)  The amendment or cancellation takes effect:
(a)  on the publication of the notice in the Gazette, or on a later date specified in the notice, or
(b)  if the notice is not required to be published in the Gazette, on the giving of the notice to the applicant under subclause (1) or on a later date specified in the notice.
Part 11.3 Miscellaneous
699   Incident notification—prescribed serious illnesses
For the purposes of section 36 of the Act, each of the following conditions is a serious illness:
(a)  any infection to which the carrying out of work is a significant contributing factor, including any infection that is reliably attributable to carrying out work:
(i)  with micro-organisms, or
(ii)  that involves providing treatment or care to a person, or
(iii)  that involves contact with human blood or body substances, or
(iv)  that involves handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products,
Note.
 The Public Health Act 2010 also imposes obligations relating to the notification of certain medical conditions.
(b)  the following occupational zoonoses contracted in the course of work involving handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products:
(i)  Q fever,
(ii)  Anthrax,
(iii)  Leptospirosis,
(iv)  Brucellosis,
(v)  Hendra Virus,
(vi)  Avian Influenza,
(vii)  Psittacosis.
700   Inspectors’ identity cards
For the purposes of section 157 (1) of the Act, an identity card given by the regulator to an inspector must include the following:
(a)  a recent photograph of the inspector in the form, specified by the regulator,
(b)  the inspector’s signature,
(c)  the date (if any) on which the inspector’s appointment ends,
(d)  any conditions to which the inspector’s appointment is subject, including the kinds of workplaces in relation to which the inspector may exercise his or her compliance powers.
701   Review of decisions under the Act—stay of decision
For the purposes of section 228 (6) (a) of the Act, the prescribed period is the relevant period within which an application for an external review must be made under section 229 (2) of the Act.
702   Confidentiality of information—exception relating to administration or enforcement of other laws
The following Acts are prescribed for the purposes of section 271 (3) (c) (ii) of the Act:
(a)  a corresponding WHS law,
(l)  Occupational Health and Safety Act 2004 of Victoria,
(m)  Occupational Safety and Health Act 1984 of Western Australia,
702A   Penalty notice offences and penalties
(1)  For the purposes of section 243 of the Act:
(a)  each offence created by a provision specified in Column 1 of Schedule 18A is an offence for which a penalty notice may be served, and
(b)  the penalty prescribed for each such offence is:
(i)  in the case of a penalty payable by an individual—the amount specified in relation to the offence in Column 2 of that Schedule, and
(ii)  in the case of a penalty payable by a corporation—the amount specified in relation to the offence in Column 3 of that Schedule.
(2)  If the reference to a provision in Column 1 of Schedule 18A is qualified by words that restrict its operation to specified kinds of offences, an offence created by the provision is a prescribed offence only if it is an offence of a kind so specified or committed in the circumstances so specified.
703   (Repealed)