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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Repealed version for 1 July 2017 to 31 August 2017 (accessed 22 September 2017 at 03:38)
Chapter 4 Part 4.5
Part 4.5 High risk work
Division 1 Licensing of high risk work
Subdivision 1 Requirement to be licensed
81   Licence required to carry out high risk work
A person must not carry out a class of high risk work unless the person holds a high risk work licence for that class of high risk work, except as provided in clause 82.
Notes.
 
1   
See section 43 of the Act.
2   
Schedule 3 sets out the high risk work licences and classes of high risk work that are within the scope of each licence. Schedule 4 sets out the qualifications required for a high risk work licence.
82   Exceptions
(1)  A person who carries out high risk work is not required to be licensed to carry out the work if the work is carried out:
(a)  in the course of training towards a certification in order to be licensed to carry out the high risk work, and
(b)  under the supervision of a person who is licensed to carry out the high risk work.
(1A)  A person who holds a certification in relation to a specified VET course for high risk work is not required to be licensed to carry out the work:
(a)  for 60 days after the certification is issued, and
(b)  if the person applies for the relevant high risk work licence within that 60-day period, until:
(i)  the person is granted the licence, or
(ii)  the expiry of 28 days after the person is given written notice under clause 91 (2) of a decision to refuse to grant the licence.
(1B)  A person who carries out high risk work is not required to be licensed to carry out the work if the work is carried out while an accredited assessor is conducting an assessment of the person’s competency in relation to the work.
(2)  A person who carries out high risk work involving plant is not required to be licensed if:
(a)  the work is carried out at a workplace solely for the purpose of the manufacture, testing, trialling, installation, commissioning, maintenance, servicing, repair, alteration, demolition or disposal of the plant at that workplace or moving the plant within the workplace, and
(b)  the plant is operated or used without a load except when standard weight loads with predetermined fixing points are used for calibration of the plant.
(3)  For the purposes of subclause (2) (a), moving includes operating the plant in order to load the plant onto, or unload it from, a vehicle or equipment used to move it.
(4)  A person who carries out high risk work with a crane or hoist is not required to be licensed as a crane operator if:
(a)  the work is limited to setting up or dismantling the crane or hoist, and
(b)  the person carrying out the work holds a licence in relation to rigging, which qualifies the person to carry out the work.
Note.
 See Schedule 3 for the classes of crane operator licence.
(5)  A person who carries out high risk work with a heritage boiler is not required to be licensed as a boiler operator.
83   Recognition of high risk work licences in other jurisdictions
(1)  In this Subdivision, a reference to a high risk work licence includes a reference to an equivalent licence:
(a)  granted under a corresponding WHS law, and
(b)  that is being used in accordance with the terms and conditions under which it was granted.
(2)  Subclause (1) does not apply to a licence that is suspended or cancelled or has expired in the corresponding jurisdiction.
84   Duty of person conducting business or undertaking to ensure direct supervision
(1)  A person conducting a business or undertaking must ensure that a person supervising the work of a person carrying out high risk work as required by clause 82 (1) provides direct supervision of the person except in the circumstances set out in subclause (2).
Maximum penalty:
(a)  in the case of an individual—$6,000, or
(b)  in the case of a body corporate—$30,000.
(2)  Direct supervision of a person is not required if:
(a)  the nature or circumstances of a particular task make direct supervision impracticable or unnecessary, and
(b)  the reduced level of supervision will not place the health or safety of the supervised person or any other person at risk.
(3)  In this clause, direct supervision of a person means the oversight by the supervising person of the work of that person for the purposes of:
(a)  directing, demonstrating, monitoring and checking the person’s work in a way that is appropriate to the person’s level of competency, and
(b)  ensuring a capacity to respond in an emergency situation.
85   Evidence of licence—duty of person conducting business or undertaking
(1)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work for which a high risk work licence is required unless the person sees written evidence provided by the worker that the worker has the relevant high risk work licence for that work.
Maximum penalty:
(a)  in the case of an individual—$3,600, or
(b)  in the case of a body corporate—$18,000.
(2)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work in the circumstances referred to in clause 82 (1) unless the person sees written evidence provided by the worker that the worker is undertaking the course of training referred to in clause 82 (1) (a).
Maximum penalty:
(a)  in the case of an individual—$3,600, or
(b)  in the case of a body corporate—$18,000.
(2A)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to carry out high risk work in the circumstances referred to in clause 82 (1A) unless the person sees written evidence provided by the worker that the worker:
(a)  in the circumstances referred to in clause 82 (1A) (a)—holds a certification referred to in clause 82 (1A), and
(b)  in the circumstances referred to in clause 82 (1A) (b):
(i)  holds a certification referred to in clause 82 (1A), and
(ii)  has applied for the relevant licence within the period referred to in clause 82 (1A) (b).
Maximum penalty:
(a)  in the case of an individual—$3,600, or
(b)  in the case of a body corporate—$18,000.
(3)  A person conducting a business or undertaking at a workplace must not direct or allow a worker to supervise high risk work as referred to in clauses 82 (1) and 84 unless the person sees written evidence that the worker holds the relevant high risk work licence for that high risk work.
Maximum penalty:
(a)  in the case of an individual—$3,600, or
(b)  in the case of a body corporate—$18,000.
(4)  A person conducting a business or undertaking at a workplace must keep a record of the written evidence provided:
(a)  under subclause (1) or (2)—for at least 1 year after the high risk work is carried out,
(b)  under subclause (3)—for at least 1 year after the last occasion on which the worker performs the supervision work.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
Subdivision 2 Licensing process
86   Who may apply for a licence
Only a person who holds a qualification set out in Schedule 4 may apply for a high risk work licence.
87   Application for high risk work licence
(1)  An application for a high risk work licence must be made in the manner and form required by the regulator.
(2)  The application must include the following information:
(a)  the applicant’s name and residential address,
(b)  a photograph of the applicant in the form required by the regulator,
(c)  evidence of the applicant’s age,
(d)  any other evidence of the applicant’s identity required by the regulator,
(e)  the class of high risk work licence to which the application relates,
(f)  a copy of a certification:
(i)  that is held by the applicant in relation to the specified VET course, or each of the specified VET courses, for the high risk work licence applied for, and
(ii)  that was issued not more than 60 days before the application is made,
(g)  a declaration that the applicant does not hold an equivalent licence under a corresponding WHS law,
(h)  a declaration as to whether or not the applicant has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law,
(i)  details of any conviction or finding of guilt declared under paragraph (h),
(j)  a declaration as to whether or not the applicant has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law,
(k)  details of any enforceable undertaking declared under paragraph (j),
(l)  if the applicant has previously been refused an equivalent licence under a corresponding WHS law, a declaration giving details of that refusal,
(m)  if the applicant has previously held an equivalent licence under a corresponding WHS law, a declaration:
(i)  describing any condition imposed on that licence, and
(ii)  stating whether or not that licence had been suspended or cancelled and, if so, whether or not the applicant had been disqualified from applying for any licence, and
(iii)  giving details of any suspension, cancellation or disqualification.
Note.
 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3)  The application must be accompanied by the relevant fee.
88   Additional information
(1)  If an application for a high risk work licence does not contain sufficient information to enable the regulator to make a decision whether or not to grant the licence, the regulator may ask the applicant to provide additional information.
(2)  A request for additional information must:
(a)  specify the date (not being less than 28 days after the request) by which the additional information is to be given, and
(b)  be confirmed in writing.
(3)  If an applicant does not provide the additional information by the date specified, the application is to be taken to have been withdrawn.
(4)  The regulator may make more than 1 request for additional information under this clause.
89   Decision on application
(1)  Subject to subclause (3), the regulator must grant a high risk work licence if satisfied about the matters referred to in subclause (2).
(2)  The regulator must be satisfied about the following:
(a)  the application has been made in accordance with this Regulation,
(b)  the applicant does not hold an equivalent licence under a corresponding WHS law unless that licence is due for renewal,
(c)  the applicant:
(i)  resides in this jurisdiction, or
(ii)  resides outside this jurisdiction and circumstances exist that justify the grant of the licence,
(d)  the applicant is at least 18 years of age,
(e)  the applicant has provided the certification required under clause 87 (2) (f),
(f)  the applicant is able to carry out the work to which the licence relates safely and competently.
(3)  The regulator must refuse to grant a high risk work licence if satisfied that:
(a)  the applicant is disqualified under a corresponding WHS law from holding an equivalent licence, or
(b)  the applicant, in making the application, has:
(i)  given information that is false or misleading in a material particular, or
(ii)  failed to give any material information that should have been given.
(4)  If the regulator decides to grant the licence, it must notify the applicant within 14 days after making the decision.
(5)  If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 88, the regulator is taken to have refused to grant the licence applied for.
Note.
 A refusal to grant a high risk work licence (including under subclause (5)) is a reviewable decision (see clause 676).
90   Matters to be taken into account
For the purposes of clause 89 (2) (f), the regulator must have regard to all relevant matters, including the following:
(a)  any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty,
(b)  in relation to any equivalent licence applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law:
(i)  any refusal to grant the licence, and
(ii)  any condition imposed on the licence, if granted, and
(iii)  any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence,
(c)  any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law,
(d)  the applicant’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.
91   Refusal to grant high risk work licence—process
(1)  If the regulator proposes to refuse to grant a licence, the regulator must give a written notice to the applicant:
(a)  informing the applicant of the reasons for the proposed refusal, and
(b)  advising the applicant that the applicant may, by a specified date (being not less than 28 days after giving the notice), make a submission to the regulator in relation to the proposed refusal.
(2)  After the date specified in a notice under subclause (1), the regulator must:
(a)  if the applicant has made a submission in relation to the proposed refusal to grant the licence—consider that submission, and
(b)  whether or not the applicant has made a submission—decide whether to grant or refuse to grant the licence, and
(c)  within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision.
Note.
 A decision to refuse to grant a licence is a reviewable decision (see clause 676).
91A   Conditions of licence
(1)  The regulator may impose any conditions it considers appropriate on a high risk work licence.
(2)  Without limiting subclause (1), the regulator may impose conditions in relation to one or more of the following:
(a)  control measures that must be implemented in relation to the carrying out of work or activities under the licence,
(b)  the circumstances in which work or activities authorised by the licence may be carried out.
(3)  The regulator must give the licence holder written notice of any conditions imposed on the licence.
Notes.
 
1   
A person must comply with the conditions of a licence (see section 45 of the Act).
2   
A decision to impose a condition on a licence is a reviewable decision (see clause 676).
92   Duration of licence
Subject to this Division, a high risk work licence takes effect on the day it is granted and, unless cancelled earlier, expires 5 years after that day.
93   Licence document
(1)  If the regulator grants a high risk work licence, the regulator must issue to the applicant a licence document in the form determined by the regulator.
(2)  The licence document must include the following:
(a)  the name of the licence holder,
(b)  a photograph of the licence holder,
(c)  the date of birth of the licence holder,
(d)  a copy of the signature of the licence holder or provision for the inclusion of a copy signature,
(e)  the class of high risk work licence and a description of the work within the scope of the licence,
(f)  the date on which the licence was granted,
(g)  the expiry date of the licence.
(3)  For the purposes of subclause (2) (e), if the regulator grants more than 1 class of high risk work licence to a person, the licence document must contain a description of each class of licence and the work that is within the scope of each licence.
(4)  If a licence holder holds more than 1 high risk work licence, the regulator may issue to the licence holder one licence document in relation to some or all those licences.
(5)  Despite clause 92, if a licence document is issued under subclause (4), the licences to which that licence document related expire on the date that the first of those licences expires.
94   Licence document to be available
(1)  A licence holder must keep the licence document available for inspection under the Act.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
(2)  Subclause (1) does not apply if the licence document is not in the licence holder’s possession because:
(a)  it has been returned to the regulator under clause 97, or
(b)  the licence holder has applied for, but has not received, a replacement licence document under clause 98.
95   Reassessment of competency of licence holder
The regulator may direct a licence holder to obtain a reassessment of the competency of the licence holder to carry out the high risk work covered by the licence if the regulator reasonably believes that the licence holder may not be competent to carry out that work.
Examples.
 
1   
The training or competency assessment of the licence holder did not meet the standard required to hold the licence.
2   
The regulator receives information that the licence holder has carried out high risk work incompetently.
Subdivision 3 Amendment of licence document
96   Notice of change of address
The licence holder of a high risk work licence must give written notice to the regulator of a change of residential address, within 14 days of the change occurring.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
97   Licence holder to return licence
If a high risk work licence is amended, the licence holder must return the licence document to the regulator for amendment at the written request of the regulator and within the time specified in the request.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
98   Replacement licence document
(1)  A licence holder must give written notice to the regulator as soon as practicable if the licence document is lost, stolen or destroyed.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
(2)  If a licence document is lost, stolen or destroyed, the licence holder may apply to the regulator for a replacement document.
Note.
 A licence holder is required to keep the licence document available for inspection (see clause 94).
(3)  An application for a replacement licence document must be made in the manner and form required by the regulator.
(4)  The application must:
(a)  include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and
Note.
 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)  be accompanied by the relevant fee.
(5)  The regulator must issue a replacement licence document if satisfied that the original document was lost, stolen or destroyed.
(6)  If the regulator refuses to issue a replacement licence document, it must give the licence holder written notice of this decision, including the reasons for the decision, within 14 days after making the decision.
Note.
 A decision to refuse to replace a licence is a reviewable decision (see clause 676).
99   Voluntary surrender of licence
(1)  A licence holder may voluntarily surrender the licence document to the regulator.
(2)  The licence expires on the surrender of the licence document.
Subdivision 4 Renewal of high risk work licence
100   Regulator may renew licence
The regulator may renew a high risk work licence on application by the licence holder.
101   Application for renewal
(1)  An application for renewal of a high risk work licence must be made in the manner and form required by the regulator.
(2)  The application must include the following information:
(a)  the name and residential address of the applicant,
(b)  if required by the regulator, a photograph of the applicant in the form required by the regulator,
(c)  any other evidence of the applicant’s identity required by the regulator,
(d)  a declaration by the applicant that he or she has maintained his or her competency to carry out the high risk work, including by obtaining any reassessment directed under clause 95.
Note.
 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3)  The application must be accompanied by the relevant fee.
(4)  The application must be made before the expiry of the licence.
102   Licence continues in force until application is decided
If a licence holder applies under clause 101 for the renewal of a high risk work licence, the licence is taken to continue in force from the day it would, apart from this clause, have expired until the licence holder is given notice of the decision on the application.
103   Renewal of expired licence
A person whose high risk work licence has expired may apply for a renewal of that licence:
(a)  within 12 months after the expiry of the licence, or
(b)  if the person satisfies the regulator that exceptional circumstances exist—within any longer period that the regulator allows.
Notes.
 
1   
As the licence has expired, the applicant cannot carry out the work covered by the licence until the licence is renewed. An application made after a period referred to in paragraph (a) or (b) would be an application for a new licence under clause 87.
2   
See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
104   Provisions relating to renewal of licence
(1)  For the purposes of this Subdivision:
(a)  clause 88 applies as if a reference in that clause to an application for a licence were a reference to an application to renew a licence, and
(b)  clauses 89 (except subclause (5)), 90, 91A and 92 apply as if a reference in those clauses to the grant of a licence were a reference to the renewal of a licence, and
(c)  clause 91 applies as if a reference in that clause to a refusal to grant a licence were a reference to a refusal to renew a licence.
(2)  The regulator may renew a high risk work licence granted to a person under a corresponding WHS law unless that licence is renewed under that law.
Note.
 A refusal to renew a licence is a reviewable decision (see clause 676).
105   Status of licence during review
(1)  This clause applies if the regulator gives a licence holder written notice of its decision to refuse to renew the licence.
(2)  If the licence holder does not apply for internal review of the decision, the licence continues to have effect until the last of the following events:
(a)  the expiry of the licence,
(b)  the end of the period for applying for an internal review.
(3)  If the licence holder applies for an internal review of the decision, the licence continues to have effect until the earlier of the following events:
(a)  the licence holder withdraws the application for review,
(b)  the regulator makes a decision on the review.
(4)  If the licence holder does not apply for an external review, the licence continues to have effect until the end of the time for applying for an external review.
(5)  If the licence holder applies for an external review, the licence continues to have effect until the earlier of the following events:
(a)  the licence holder withdraws the application for review,
(b)  the Civil and Administrative Tribunal makes a decision on the review.
(6)  The licence continues to have effect under this clause even if its expiry date passes.
Subdivision 5 Suspension and cancellation of high risk work licence
106   Suspension or cancellation of licence
(1)  The regulator may suspend or cancel a high risk work licence if satisfied about 1 or more of the following:
(a)  the licence holder has failed to take reasonable care to carry out the high risk work safely and competently,
(ab)  the licence holder has failed to comply with a condition of the licence,
(b)  the licence holder has failed to obtain a reassessment of competency directed under clause 95,
(c)  the licence holder, in the application for the grant or renewal of the licence or on request by the regulator for additional information:
(i)  gave information that was false or misleading in a material particular, or
(ii)  failed to give any material information that should have been given in that application or on that request,
(d)  the licence was granted or renewed on the basis of a certification that was obtained on the basis of the giving of false or misleading information by any person or body or that was obtained improperly through a breach of a condition of accreditation by the accredited assessor who conducted the competency assessment.
(2)  If the regulator suspends or cancels a licence, the regulator may disqualify the licence holder from applying for:
(a)  a further high risk work licence of the same class, or
(b)  another licence under this Regulation to carry out work which requires skills that are the same as or similar to those required for the work authorised by the licence that has been suspended or cancelled.
(3)  If the regulator suspends a licence, the regulator may vary the conditions of the licence, including by imposing different or additional conditions.
(4)  A variation of conditions under subclause (3) takes effect when the suspension of the licence ends.
Notes.
 
1   
A decision to suspend a licence, to cancel a licence or to disqualify the licence holder from applying for a further licence is a reviewable decision (see clause 676).
2   
A variation of licence conditions is a reviewable decision (see clause 676).
107   Matters taken into account
(1)  In making a decision under clause 106, the regulator must have regard to:
(a)  any submissions made by the licence holder under clause 108, and
(b)  any advice received from a corresponding regulator.
(2)  For the purposes of clause 106 (1) (a), the regulator must have regard to all relevant matters, including the following:
(a)  any offence under the Act or this Regulation or under a corresponding WHS law, of which the licence holder has been convicted or found guilty,
(b)  in relation to any equivalent licence applied for or held by the licence holder under the Act or this Regulation or under a corresponding WHS law:
(i)  any refusal to grant the licence, and
(ii)  any condition imposed on the licence, if granted, and
(iii)  any suspension or cancellation of the licence, if granted, including any disqualification from applying for any licence,
(c)  any enforceable undertaking the licence holder has entered into under the Act or a corresponding WHS law,
(d)  the licence holder’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.
108   Notice to and submissions by licence holder
(1)  Before suspending or cancelling a high risk work licence, the regulator must give the licence holder a written notice of:
(a)  the proposed suspension or cancellation, and
(b)  any proposed disqualification, and
(c)  any proposed variation of licence conditions.
(2)  A notice under subclause (1) must:
(a)  outline all relevant allegations, facts and circumstances known to the regulator, and
(b)  advise the licence holder that the licence holder may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation, any proposed disqualification and any proposed variation of licence conditions.
109   Notice of decision
(1)  The regulator must give the licence holder written notice of a decision under clause 106 to suspend or cancel a high risk work licence within 14 days after making the decision.
(2)  The notice must:
(a)  state that the licence is to be suspended or cancelled, and
(b)  if the licence is to be suspended, state:
(i)  when the suspension begins and ends, and
(ii)  the reasons for the suspension, and
(iii)  whether the licence holder is required to undergo retraining or reassessment or take any other action before the suspension ends, and
(iv)  whether or not the licence holder is disqualified from applying for a further licence during the suspension, and
(v)  if the licence conditions are to be varied—the variation, and
(vi)  if the licence conditions are to be varied—that the variation will take effect when the suspension ends, and
(c)  if the licence is to be cancelled, state:
(i)  when the cancellation takes effect, and
(ii)  the reasons for the cancellation, and
(iii)  whether or not the licence holder is disqualified from applying for a further licence, and
(d)  if the licence holder is to be disqualified from applying for a further licence, state:
(i)  when the disqualification begins and ends, and
(ii)  the reasons for the disqualification, and
(iii)  whether or not the licence holder is required to undergo retraining or reassessment or take any other action before the disqualification ends, and
(iv)  any other class of high risk work licence or other licence under this Regulation the licence holder is disqualified from applying for during the period of suspension or disqualification, and
(e)  state when the licence document must be returned to the regulator.
110   Immediate suspension
(1)  The regulator may suspend a high risk work licence on a ground referred to in clause 106 without giving notice under clause 108 if satisfied that:
(a)  work carried out under the high risk work licence should cease because the work may involve an imminent serious risk to the health or safety of any person, or
(b)  a corresponding regulator has suspended an equivalent licence held by the licence holder under this clause as applying in the corresponding jurisdiction.
(2)  If the regulator decides to suspend a licence under this clause:
(a)  the regulator must give the licence holder written notice of the suspension and the reasons for the suspension, and
(b)  the suspension of the licence takes effect on the giving of the notice.
(3)  The regulator must then:
(a)  give notice under clause 108 within 14 days after giving the notice under subclause (2), and
(b)  make its decision under clause 106.
(4)  If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period.
(5)  If the regulator gives notice under subclause (3), the licence remains suspended until the decision is made under clause 106.
111   Licence holder to return licence document
A licence holder, on receiving a notice under clause 109, must return the licence document to the regulator in accordance with the notice.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
112   Regulator to return licence document after suspension
When the period of suspension of a licence ends, the regulator must return the licence document to the licence holder within 14 days after the licence suspension ends.
Division 2 Accreditation of assessors
Subdivision 1 Requirement to be accredited
113   Accreditation required to assess competency for high risk work licence
A person who is not an accredited assessor must not:
(a)  conduct a competency assessment, or
(b)  issue a notice of satisfactory assessment, or
(c)  in any other way hold himself or herself out to be an accredited assessor.
Note.
 See section 43 of the Act.
114   Accredited assessor must act in accordance with accreditation
(1)  An accredited assessor must not conduct a competency assessment unless:
(a)  the competency assessment relates to a class of high risk work for which the assessor is accredited, and
(b)  the accredited assessor conducts the competency assessment for or on behalf of an RTO.
(2)  An accredited assessor must not issue a notice of satisfactory assessment unless the competency assessment relates to a class of high risk work for which the assessor is accredited.
(3)  An accredited assessor who conducts a competency assessment must do so in accordance with the conditions of accreditation imposed under clause 121.
(4)  An accredited assessor who issues a notice of satisfactory assessment must do so in accordance with any conditions of accreditation imposed under clause 121.
(5)  Subclauses (1) to (4) do not apply if the regulator is the accredited assessor.
Note.
 See section 43 of the Act.
Subdivision 2 Accreditation process
115   Regulator may accredit assessors
The regulator may, under this Division, accredit persons to conduct assessments.
116   Application for accreditation
(1)  An application for accreditation must be made in the manner and form required by the regulator.
(2)  The application must include the following information:
(a)  the name and residential address of the applicant,
(b)  any other evidence of the applicant’s identity required by the regulator,
(c)  details of the class of high risk work to which the application relates,
(d)  evidence that the applicant is qualified to conduct the type of competency assessment in relation to the class of high risk work to which the application relates,
(e)  details of any current equivalent accreditation under a corresponding WHS law,
(f)  a declaration as to whether or not the applicant has ever been convicted or found guilty of any offence under the Act or this Regulation or under any corresponding WHS law,
(g)  details of any conviction or finding of guilt declared under paragraph (f),
(h)  a declaration as to whether or not the applicant has ever entered into an enforceable undertaking under the Act or under any corresponding WHS law,
(i)  details of any enforceable undertaking declared under paragraph (h),
(j)  if the applicant has previously been refused an equivalent accreditation under a corresponding WHS law, a declaration giving details of that refusal,
(k)  if the applicant has previously held an equivalent accreditation under a corresponding WHS law, a declaration:
(i)  describing any condition imposed on that accreditation, and
(ii)  stating whether or not that accreditation had been suspended or cancelled and, if so, whether or not the applicant had been disqualified from applying for any accreditation, and
(iii)  giving details of any suspension, cancellation or disqualification.
Note.
 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(3)  The application must be accompanied by the relevant fee.
117   Additional information
(1)  If an application for accreditation does not contain sufficient information to enable the regulator to make a decision whether or not to grant the accreditation, the regulator may ask the applicant to provide additional information.
(2)  A request for additional information must:
(a)  specify the date (being not less than 28 days after the request) by which the additional information is to be given, and
(b)  be confirmed in writing.
(3)  If an applicant does not provide the additional information by the date specified, the application is taken to have been withdrawn.
(4)  The regulator may make more than 1 request for additional information under this clause.
118   Decision on application
(1)  Subject to subclause (3), the regulator must grant an accreditation if satisfied about the matters referred to in subclause (2).
(2)  The regulator must be satisfied that:
(a)  the applicant:
(i)  is qualified to conduct the competency assessment to which the application relates, and
(ii)  is able to conduct the competency assessment to which the application relates competently, and
(iii)  is able to ensure compliance with any conditions that will apply to the accreditation, or
(b)  the applicant holds a current equivalent accreditation under a corresponding WHS law.
(3)  The regulator must refuse to grant an accreditation if satisfied that:
(a)  the applicant is disqualified under a corresponding WHS law from holding an equivalent accreditation, or
(b)  the applicant, in making the application, has:
(i)  given information that is false or misleading in a material particular, or
(ii)  failed to give any material information that should have been given.
(4)  If the regulator decides to grant the accreditation, it must notify the applicant within 14 days after making the decision.
(5)  If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 117, the regulator is taken to have refused to grant the accreditation applied for.
(6)  For the purposes of subclause (2) (a) (i), an applicant is qualified to provide the competency assessment if:
(a)  the applicant’s competencies, skills and knowledge are in accordance with the Standards for NVR Registered Training Organisations 2011 published by the Commonwealth, and
(b)  the applicant holds a current high risk work licence for the class of high risk work to which the competency assessment relates.
Note.
 A refusal to grant accreditation (including a refusal under subclause (5)) is a reviewable decision (see clause 676).
119   Matters to be taken into account
For the purposes of clause 118 (2) (a) (ii) and (iii), the regulator must have regard to all relevant matters, including the following:
(a)  any offence under the Act or this Regulation or under a corresponding WHS law of which the applicant has been convicted or found guilty,
(b)  any enforceable undertaking the applicant has entered into under the Act or a corresponding WHS law,
(c)  in relation to any equivalent accreditation applied for or held by the applicant under the Act or this Regulation or under a corresponding WHS law:
(i)  any refusal to grant the accreditation, and
(ii)  any condition imposed on the accreditation, if granted, and
(iii)  any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation,
(d)  the applicant’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.
120   Refusal to grant accreditation—process
(1)  If the regulator proposes to refuse to grant an accreditation, the regulator must give the applicant a written notice:
(a)  informing the applicant of the reasons for the proposed refusal, and
(b)  advising the applicant that the applicant may, by a specified date (being not less than 28 days after the notice is given), make a submission to the regulator in relation to the proposed refusal.
(2)  After the date specified in a notice under subclause (1), the regulator must:
(a)  if the applicant has made a submission in relation to the proposed refusal to grant the accreditation—consider that submission, and
(b)  whether or not the applicant has made a submission—decide whether to grant or refuse to grant the accreditation, and
(c)  within 14 days after making that decision, give the applicant written notice of the decision, including the reasons for the decision.
Note.
 A refusal to grant an accreditation is a reviewable decision (see clause 676).
121   Conditions of accreditation
(1)  The regulator may impose any conditions it considers appropriate on an accreditation.
(2)  Without limiting subclause (1), the regulator may impose conditions:
(a)  relating to the competency assessments and assessment activities that may be carried out, and
(b)  relating to the circumstances in which competency assessments or assessment activities may be carried out, and
(c)  requiring the accredited assessor to keep specified information, and
(d)  requiring the accredited assessor to give specified information to the regulator.
Notes.
 
1   
A person must comply with the conditions of accreditation (see section 45 of the Act).
2   
A decision to impose a condition on an accreditation is a reviewable decision (see clause 676).
122   Duration of accreditation
An accreditation takes effect on the day it is granted and, unless cancelled earlier, expires 3 years after that day.
123   Accreditation document
(1)  If the regulator grants an accreditation, it must issue to the applicant an accreditation document in the form determined by the regulator.
(2)  An accreditation document must include the following:
(a)  the name of the accredited assessor,
(b)  the class of high risk work to which the accreditation relates,
(c)  any conditions imposed on the accreditation by the regulator,
(d)  the date on which the accreditation was granted,
(e)  the expiry date of the accreditation.
(3)  If an assessor is accredited to conduct a competency assessment in relation to more than 1 class of high risk work, the regulator may issue to the accredited assessor one accreditation document in relation to some or all of those classes of high risk work.
(4)  If 2 or more of the classes of high risk work referred to in subclause (3) represent levels of the same type of work, it is sufficient if the accreditation document contains a description of the class of work that represents the highest level.
124   Accreditation document to be available
(1)  An accredited assessor must keep the accreditation document available for inspection under the Act.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
(2)  An accredited assessor must make the accreditation document available for inspection by any person in relation to whom the assessor is conducting, or is to conduct, a competency assessment.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
(3)  Subclauses (1) and (2) do not apply if the accreditation document is not in the accredited assessor’s possession because:
(a)  it has been returned to the regulator under clause 126, or
(b)  the accreditation assessor has applied for, but has not received, a replacement accreditation document under clause 127.
Subdivision 3 Amendment of accreditation document
125   Changes to information
(1)  An accredited assessor must give the regulator written notice of any change to any material particular in any information given at any time by the assessor to the regulator in relation to the accreditation within 14 days after the assessor becomes aware of the change.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
(2)  Subclause (1) applies whether the information was given in the application for grant or renewal of the accreditation or in any other circumstance.
126   Accredited assessor to return accreditation document
If an accreditation is amended, the accredited assessor must return the accreditation document to the regulator for amendment at the written request of the regulator and within the time specified in the request.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
127   Replacement accreditation document
(1)  An accredited assessor must give written notice to the regulator as soon as practicable if the accreditation document is lost, stolen or destroyed.
Maximum penalty:
(a)  in the case of an individual—$1,250, or
(b)  in the case of a body corporate—$6,000.
(2)  If an accreditation document is lost, stolen or destroyed an accredited assessor may apply to the regulator for a replacement accreditation document.
Note.
 An accreditation holder is required to keep the accreditation document available for inspection (see clause 124).
(3)  An application for a replacement accreditation document must be made in the manner and form required by the regulator.
(4)  The application must:
(a)  include a declaration describing the circumstances in which the original document was lost, stolen or destroyed, and
Note.
 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)  be accompanied by the relevant fee.
(5)  The regulator must issue a replacement accreditation document if satisfied that the original document was lost, stolen or destroyed.
(6)  If the regulator refuses to issue a replacement accreditation document, it must give the accredited assessor written notice of this decision, including the reasons for the decision, within 14 days after making the decision.
Note.
 A refusal to issue a replacement accreditation document is a reviewable decision (see clause 676).
128   Voluntary surrender of accreditation
(1)  An accredited assessor may voluntarily surrender the accreditation document to the regulator.
(2)  The accreditation expires on the surrender of the accreditation document.
Subdivision 4 Renewal of accreditation
129   Regulator may renew accreditation
The regulator may renew an accreditation on the application of the accredited assessor.
130   Application for renewal
(1)  An application for renewal of accreditation must be made in the manner and form required by the regulator.
(2)  An application must:
(a)  include the information referred to in clause 116 (2), and
Note.
 See section 268 of the Act for offences relating to the giving of false or misleading information under the Act or this Regulation.
(b)  be accompanied by the relevant fee.
(3)  The application must be made before the expiry of the accreditation.
131   Accreditation continues in force until application is decided
If an accredited assessor applies under clause 130 for the renewal of accreditation, the accreditation is taken to continue in force from the day it would, apart from this clause, have expired until the accredited assessor is given notice of the decision on the application.
132   Provisions relating to application
For the purposes of this Division:
(a)  clause 117 applies as if a reference in that clause to an application for accreditation were a reference to an application to renew an accreditation, and
(b)  clauses 118 (except subclause (5)), 119, 121 and 122 apply as if a reference in those clauses to the grant of an accreditation were a reference to the renewal of an accreditation, and
(c)  clause 120 applies as if a reference in that clause to a refusal to grant an accreditation were a reference to a refusal to renew an accreditation.
Note.
 A refusal to renew an accreditation is a reviewable decision (see clause 676).
Subdivision 5 Suspension and cancellation
133   Regulator may suspend or cancel accreditation
(1)  The regulator may, under this Division:
(a)  suspend or cancel an accreditation, and
(b)  if suspending an accreditation, vary the conditions of the accreditation, including by imposing different or additional conditions.
(2)  If the regulator cancels an accreditation, the regulator may disqualify the accredited assessor from applying for a further accreditation for a specified period.
Note.
 A decision to suspend or cancel an accreditation, to vary the conditions of an accreditation or to disqualify an accredited assessor from applying for a further accreditation is a reviewable decision (see clause 676).
134   Suspension or cancellation of accreditation
(1)  The regulator may suspend or cancel an accreditation if satisfied about 1 or more of the following:
(a)  the accredited assessor is no longer qualified to conduct the competency assessment specified in the assessor’s accreditation document,
(b)  the accredited assessor is not able to conduct the competency assessment to which the accreditation relates competently,
(c)  the accredited assessor has failed to comply with a condition imposed on the accreditation under clause 121,
(d)  the accredited assessor, in the application for the grant or renewal of accreditation or on request by the regulator for additional information:
(i)  gave information that was false or misleading in a material particular, or
(ii)  failed to give any material information that should have been given in that application or on that request.
(2)  In subclause (1) (a), qualified has the same meaning in relation to an accredited assessor as it has in clause 118 in relation to an applicant for accreditation.
135   Matters to be taken into account
(1)  In making a decision under clause 133, the regulator must have regard to:
(a)  any submissions made by the accredited assessor under clause 136, and
(b)  any advice received from a corresponding regulator.
(2)  For the purposes of clause 134 (1) (b) and (c), the regulator must have regard to all relevant matters, including the following:
(a)  any offence under the Act or this Regulation or under a corresponding WHS law, of which the accredited assessor has been convicted or found guilty,
(b)  any enforceable undertaking the accredited assessor has entered into under the Act or a corresponding WHS law,
(c)  in relation to any equivalent accreditation applied for or held by the accredited assessor under the Act or this Regulation or under a corresponding WHS law:
(i)  any refusal to grant the accreditation, and
(ii)  any condition imposed on the accreditation, if granted, and
(iii)  any suspension or cancellation of the accreditation, if granted, including any disqualification from applying for any accreditation,
(d)  any suspension of a high risk work licence held by the accredited assessor under the Act or this Regulation or under a corresponding WHS law,
(e)  the accredited assessor’s record in relation to any matters arising under the Act or this Regulation or under a corresponding WHS law.
136   Notice to and submissions by accredited assessor
Before suspending or cancelling an accreditation, the regulator must give the accreditation holder a written notice of the proposed suspension or cancellation and any proposed disqualification:
(a)  outlining all relevant allegations, facts and circumstances known to the regulator, and
(b)  advising the accreditation holder that the accreditation holder may, by a specified date (being not less than 28 days after giving the notice), make a submission in relation to the proposed suspension or cancellation and any proposed disqualification.
137   Notice of decision
(1)  The regulator must give the accredited assessor written notice of a decision under clause 134 to suspend or cancel the accreditation within 14 days after making the decision.
(2)  The notice must:
(a)  state that the accreditation is to be suspended or cancelled, and
(b)  if the accreditation is to be suspended, state:
(i)  when the suspension begins and ends, and
(ii)  the reasons for the suspension, and
(iii)  whether or not the accredited assessor is required to undergo retraining or reassessment or take any other action before the suspension ends, and
(iv)  whether any variation is to be made to the conditions of accreditation, and
(v)  whether or not the accredited assessor is disqualified from obtaining a further accreditation during the suspension, and
(c)  if the accreditation is to be cancelled, state:
(i)  when the cancellation takes effect, and
(ii)  the reasons for the cancellation, and
(iii)  whether or not the accredited assessor is disqualified from applying for a further accreditation, and
(d)  if the accredited assessor is to be disqualified from obtaining a further accreditation, state:
(i)  when the disqualification begins and ends, and
(ii)  the reasons for the disqualification, and
(iii)  whether or not the accredited assessor is required to undergo retraining or reassessment or take any other action before the disqualification ends, and
(e)  state when the accreditation document must be returned to the regulator.
138   Immediate suspension
(1)  The regulator may suspend an accreditation on a ground referred to in clause 134 without giving notice under clause 136 if satisfied that a person may be exposed to an imminent serious risk to his or her health or safety if the accreditation were not suspended.
(2)  If the regulator decides to suspend an accreditation under this clause:
(a)  the regulator must give the accredited assessor written notice of the suspension and the reasons for the suspension, and
(b)  the suspension takes effect on the giving of the notice.
(3)  The regulator must then:
(a)  give notice under clause 136 within 14 days after giving the notice under subclause (2), and
(b)  make its decision under clause 134.
(4)  If the regulator does not give notice under subclause (3), the suspension ends at the end of the 14 day period.
(5)  If the regulator gives notice under subclause (3), the accreditation remains susp