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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Repealed version for 1 July 2017 to 31 August 2017 (accessed 20 September 2017 at 06:32)
Chapter 4 Part 4.5 Division 1
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.