Work Health and Safety (Transitional and Consequential Provisions) Act 2012

Work Health and Safety (Transitional and Consequential Provisions) Act 2012

An Act to provide for savings and transitional matters and to amend, repeal, rescind and revoke certain legislation consequent on the enactment of the Work Health and Safety Act 2012

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Work Health and Safety (Transitional and Consequential Provisions) Act 2012 .

2.   Commencement

This Act commences on the day on which the Work Health and Safety Act 2012 commences.

3.   Interpretation

In this Act –

commencement day means the day on which the new Act commences;

former Act means the Workplace Health and Safety Act 1995 as in force immediately before the commencement day;

former regulations means the Workplace Health and Safety Regulations 1998 as in force immediately before the commencement day;

new Act means the Work Health and Safety Act 2012 ;

new legislative scheme means the new Act and the regulations made under that Act;

old legislative scheme means –

(a) the former Act and former regulations; and

(b) the Dangerous Substances (Safe Handling) Act 2005 and the Dangerous Substances (Safe Handling) Regulations 2009 .

PART 2 - Savings and Transitional Provisions

4.   Duties of designers

(1)  Subject to subsections (3) and (4) , the duties imposed on a designer under section 22 of the new Act do not apply to or in relation to the designing by the designer of any plant, substance or structure (including with respect to carrying out any calculations, analysis, testing or examination or with respect to the provision of any information) if the designer commenced, or commenced and completed, designing the plant, substance or structure before the commencement day.

(2)  If –

(a) subsection (1) applies in relation to the designing of plant, a substance or a structure by a designer; and

(b) section 14 of the former Act would apply to the designing if that section were still in operation –

then –

(c) the designer must, in relation to the designing of the plant, substance or structure, comply with the relevant requirements of section 14 of the former Act as if the former Act were still in operation; and

(d) if the designer fails to comply with paragraph (c) , the designer may be prosecuted under the former Act, in relation to the designing of that plant, substance or structure, as if the former Act were still in operation.

(3)  If a designer commenced designing any plant, substance or structure before the commencement day but has not completed the design by thesecond anniversaryof the commencement day, subsection (1) ceases to apply in relation to the design of the plant, substance or structure and the designer must comply with the requirements under section 22 of the new Act in relation to the duties of a designer.

(4)  If –

(a) a designer, on or after the commencement day, carries out any calculations, analysis, testing or examination in connection with the performance of a duty under the former Act; and

(b) the designer would, if the calculations, analysis, testing or examination were carried out under the new Act, be subject to a requirement set out in section 22(4)(b) or (5) of the new Act –

then the designer must comply with the requirement as if that section applied in relation to the plant, substance or structure.

5.   Duties of manufacturers

(1)  Subject to subsections (3) and (4) , the duties imposed on a manufacturer under section 23 of the new Act do not apply to or in relation to the manufacture by the manufacturer of any plant, substance or structure (including with respect to carrying out any calculations, analysis, testing or examination or with respect to the provision of any information) if the manufacturer commenced, or commenced and completed, any process associated with the manufacturing of the plant, substance or structure before the commencement day.

(2)  If –

(a) subsection (1) applies in relation to the manufacture of a plant, substance or structure by a manufacturer; and

(b) section 14 of the former Act would apply to the manufacture if that section were still in operation –

then –

(c) the manufacturer must, in relation to the manufacture of the plant, substance or structure, comply with the relevant requirements of section 14 of the former Act as if the former Act were still in operation; and

(d) if the manufacturer fails to comply with paragraph (c) , the manufacturer may be prosecuted under the former Act, in relation to the manufacture of that plant, substance or structure, as if the former Act were still in operation.

(3)  If a manufacturer commenced any process associated with the manufacturing of any plant, substance or structure before the commencement day but has not completed the manufacturing by the first anniversary of the commencement day, subsection (1) ceases to apply in relation to the manufacture of the plant, substance or structure and the manufacturer must comply with the requirements under section 23 of the new Act in relation to the duties of a manufacturer.

(4)  If –

(a) a manufacturer, on or after the commencement day, carries out any calculations, analysis, testing or examination in connection with the performance of a duty under the former Act; and

(b) the manufacturer would, if the calculations, analysis, testing or examination were carried out under the new Act, be subject to a requirement set out in section 23(4)(b) or (5) of the new Act –

the manufacturer must comply with those requirements as if that section applied in relation to the plant, substance or structure.

6.   Duties of an importer

(1)  Subject to subsections (3) and (4) , the duties imposed on an importer under section 24 of the new Act do not apply to or in relation to the importing by the importer of any plant, substance or structure (including with respect to carrying out any calculations, analysis, testing or examination or with respect to the provision of any information) if the importer commenced, or commenced and completed, any steps constituting the importation of the plant, substance or structure before the commencement day.

(2)  If –

(a) subsection (1) applies in relation the importing of a plant, substance or structure; and

(b) section 14 of the former Act would apply to the importation if that section were still in operation –

then –

(c) the importer must, in relation to the importation of the plant, substance or structure, comply with the relevant requirements of section 14 of the former Act as if the former Act were still in operation; and

(d) if the importer fails to comply with paragraph (c) , the importer may be prosecuted under the former Act, in relation to the importation of that plant, substance or structure, as if the former Act were still in operation.

(3)  If an importer commenced any process associated with the importing of any plant, substance or structure before the commencement day but has not completed the importing by the first anniversary of the commencement day, then the importer will, in relation to the importing of the plant, substance or structure, cease to have the benefit of subsection (1) and the importer must comply with the requirements under section 24 of the new Act in relation to the duties of an importer.

(4)  If –

(a) an importer, on or after the commencement day,carries out any calculations, analysis, testing or examination in connection with the performance of a duty under the former Act; and

(b) the importer would, if the calculations, analysis, testing or examination were carried out under the new Act, be subject to a requirement set out in section 24(4)(b) or (5) of the new Act –

the importer must comply with those requirements as if that section applied in relation to the plant, substance or structure.

7.   Duties of suppliers

(1)  Subject to subsections (3) and (4) , the duties imposed on a supplier under section 25 of the new Act do not apply to or in relation to the supply by the supplier of any plant, substance or structure (including with respect to carrying out any calculations, analysis, testing or examination or with respect to the provision of any information) if the supplier commenced, or commenced and completed, any process associated with the supply of the plant, substance or structure before the commencement day.

(2)  If –

(a) subsection (1) applies in relation to the supply of a plant, substance or structure by a supplier; and

(b) section 14 of the former Act would apply to the supply if that section were still in operation –

then –

(c) the supplier must, in relation to the supply of the plant, substance or structure, comply with the relevant requirements of section 14 of the former Act as if the former Act were still in operation; and

(d) if the supplier fails to comply with paragraph (c) , then the supplier may be prosecuted under the former Act, in relation to the supply of that plant, substance or structure as if the former Act were still in operation.

(3)  If a supplier commenced any process associated with the supply of any plant, substance or structure before the commencement day but has not completed the supplying by the first anniversary of the commencement day, then subsection (1) ceases to apply in relation to the supply of the plant, substance or structure and the supplier must comply with the requirements under section 25 of the new Act in relation to the duties of a supplier.

(4)  If –

(a) a supplier, on or after the commencement day, carries out any calculations, analysis, testing or examination in connection with the performance of a duty under the former Act; and

(b) the supplier would, if the calculations, analysis, testing or examination were carried out under the new Act, be subject to a requirement set out in section 25(4)(b) or (5) of the new Act –

the supplier must comply with those requirements as if that section applied in relation to the plant, substance or structure.

8.   Duties of persons who install, construct or commission plant or structures

(1)  In this section –

designated person means a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure.

(2)  Subject to subsection (3) , the duties imposed on a designated person under section 26 of the new Act do not apply to or in relation to the installation, construction or commissioning of any plant or structure if the designated person commenced, or commenced and completed, any process associated with the installation, construction or commissioning of the plant or structure before the commencement day.

(3)  If a designated person commenced any process associated with the installation, construction or commissioning of any plant or structure before the commencement day but has not completed the installation, construction or commissioning by the second anniversary of the commencement day, then subsection (2) ceases to apply in relation to the installation, construction or commissioning of the plant or structure and the designated person must comply with the requirements under section 26 of the new Act in relation to the duties of a designated person.

9.   Inspectors

If a person was appointed as an inspector under the former Act and, immediately before the commencement day, holds that office –

(a) that person is taken to have been appointed as an inspector under section 156 of the new Act in respect of the remainder of the term for which he or she was appointed under the former Act; and

(b) an identity card issued to the inspector under the former Act is taken to have been issued under section 157 of the new Act.

10.   Employees' safety representative

(1)  A person who was elected as an employees' safety representative under the former Act and, immediately before the commencement day, holds that office –

(a) is taken to have been elected as a health and safety representative under Part 5 of the new Act; and

(b) is to hold that office for a period of 3 years from the date of that person's election as an employees' safety representative under the former Act, unless that person ceases to hold office under section 64(2) of the new Act.

(2)  If, immediately before the commencement day, an election process to appoint an employees' safety representative has been commenced but not completed in accordance with the former regulations –

(a) subject to subsection (3) , that election process may continue after the commencement day in accordance with the procedures under the former regulations; and

(b) the person elected under that process is to be taken to have been elected as a health and safety representative under the new Act.

(3)  If an election process under subsection (2) has not been completed within 3 months after the commencement day, that process must be discontinued and a new election process commenced under the new Act.

(4)  Section 85(6) of the new Act does not apply to an employees' safety representative referred to in subsection (1) for a period of 12 months from the commencement day.

(5)  If an employees' safety representative referred to in subsection (1) was, immediately before the commencement day, eligible to issue a written direction under regulation 36(2) of the former regulations, section 90(4) of the new Act does not apply to that representative for a period of 12 months from the commencement day.

(6)  If a person has been prohibited under regulation 38(4)(b) of the former regulations from being appointed as an employees' safety representative, that person is not, for the term determined by the Director under that regulation, eligible for election under section 60 of the new Act.

11.   Work groups

(1)  If a person is –

(a) taken to have been elected as a health and safety representative under the new Act pursuant to section 10(1) of this Act; or

(b) taken to have been elected as a health and safety representative under the new Act pursuant to section 10(2) of this Act –

the work group for that person is taken to be the workers at that person's workplace.

(2)  When a health and safety representative referred to in subsection (1) ceases to hold that office, the work group for that health and safety representative ceases to exist.

(3)  For the avoidance of doubt, after a work group ceases to exist pursuant to subsection (2) , a new work group may be determined under Part 5 of the new Act if a request for the election of a health and safety representative is made under section 50 of the new Act.

12.   Health and safety committees

(1)  A health and safety committee that is –

(a) established under section 26 of the former Act; and

(b) in existence immediately before the commencement day –

is taken to be a health and safety committee for the purposes of the new Act.

(2)  If the composition of the health and safety committee referred to in subsection (1) is inconsistent with the requirements for a health and safety committee under section 76 of the new Act, the membership of that committee must be changed, within 12 months of the commencement day, so that the composition of the committee complies with section 76 of the new Act.

(3)  If the membership referred to in subsection (2) is not changed within 12 months of the commencement day to comply with section 76 of the new Act, the person conducting the business or undertaking or the workers at the workplace may ask the regulator to appoint an inspector to decide the appropriate composition of the committee.

13.   OHS access cards

(1)  If a person, immediately before the commencement day, holds an OHS access card under the former Act, the card is taken to be a WHS entry permit, issued under the new Act, until whichever of the following events occurs first:

(a) the expiry of the day on which the OHS access card would have ceased to remain in force under the former Act had that Act not been repealed;

(b) the permit expires under section 137 of the new Act;

(c) the permit is revoked under section 140(1)(c) of the new Act.

(2)  If, on the commencement day, an application for an OHS access card had been made under section 22C of the former Act and the Director has not made a decision under section 22E of that Act in relation to that application –

(a) the regulator may make a decision under section 22E in relation to that application as if he or she were the Director and that section had not repealed; and

(b) the requirements of the new Act for the issue of a WHS entry permit to the person are taken to be satisfied; and

(c) instead of issuing an OHS access card, the regulator is to issue the applicant with a WHS entry permit under section 134 of the new Act.

14.   Investigative powers and related matters

(1)  An inspector may, on or after the commencement day, perform or exercise a function or power of an inspector under the new Act for the purposes of –

(a) an investigation or legal proceeding in respect of an act, or omission, which occurred before the commencement day and that may constitute, before the commencement day, an offence under the former Act or former regulations; or

(b) any other matter under the former Act or former regulations that continues to have force or effect.

(2)  For the purposes of subsection (1)  –

(a) a reference in the new Act to a contravention of that Act is to be taken to include a contravention of the former Act; and

(b) a reference in the new Act to an offence against that Act is to be taken to include an offence against the former Act.

15.   Code of practice

(1)  A code of practice approved by the Minister under section 22 of the former Act is taken to be an approved code of practice for the purposes of section 274 of the new Act if that code of practice is prescribed.

(2)  Section 274(2) of the new Act does not apply to a variation or revocation, under section 274(1) of that Act, of an approved code of practice to which subsection (1) applies.

16.   Notices

(1)  If, immediately before the commencement day, a notice given or served under section 14A, 38, 39 or 40 of the former Act is in force and effect –

(a) the notice continues in force and effect; and

(b) the provisions of the former Act continue to apply in relation to that notice as if the former Act had not been repealed –

until the notice has been complied with, has expired or has been revoked under the former Act.

(2)  The regulator may, after the commencement day, revoke a notice issued under section 14A, 38, 39 or 40 of the former Act as if he or she were the Director and those sections had not been repealed.

17.   Appeals and reviews

An appeal or review relating to a decision made under the former Act may be lodged or continued under section 41 of that Act after the commencement day, as if that Act had not been repealed.

18.   Directions

(1)  If a written direction was issued by an employees' safety representative under regulation 36 of the former regulations and before the commencement day –

(a) the action specified in the direction to be taken had not been taken; or

(b) the direction had not been cancelled –

regulation 36 of the former regulations continues in force in relation to the written direction as if the regulation had not been rescinded.

(2)  If a direction or advice was issued by an employees' safety representative under regulation 37 of the former regulations and before the commencement day –

(a) the action specified in the direction or advice as being taken had not been taken; or

(b) the direction or advice had not been cancelled –

regulation 37 of the former regulations continues in force in relation to the direction or advice as if the regulation had not been rescinded.

(3)  For the purposes of regulations 36 and 37 of the former regulations, as continued in force under this section in relation to a direction or advice, a reference to an inspector in those regulations is taken to be a reference to an inspector appointed under the new Act.

19.   Enforceable undertakings

If an undertaking is given to the Secretary under section 55A of the former Act and that undertaking is still in effect immediately before the commencement day –

(a) that undertaking continues in force until it is fulfilled, withdrawn or it expires; and

(b) that section applies to that undertaking as if the former Act had not been repealed.

20.   Exemptions

An exemption that was, immediately before the commencement day, in force under the former Act, is to be taken to be, on and after the commencement day, an exemption issued under the new Act until whichever of the following occurs first:

(a) the exemption expires;

(b) the end of a period of one year after the commencement day.

21.   Preservation of relevant decisions, &c., of Director

A decision, determination, direction, appointment or delegation made by the Director under a provision of the Security-sensitive Dangerous Substances Act 2005 and having force and effect immediately before the commencement day, is taken to be a decision, determination, direction, appointment or delegation of the regulator under that provision.

22.   Regulations

(1)  The Governor may make regulations of a savings and transitional nature consequent on the enactment of the Work Health and Safety Act 2012 to effect, and facilitate, the transition from the old legislative scheme to the new legislative scheme.

(2)  Without limiting the generality of subsection (1) , regulations made under that subsection may –

(a) provide for the preservation, continuation, variation or revocation of decisions or actions taken under the old legislative scheme; and

(b) provide for the preservation, continuation, variation or revocation of notices or other instruments given or issued under the old legislative scheme; and

(c) deal with any incidental or ancillary matters.

(3)  Regulations made under subsection (1) may –

(a) take effect on the commencement day or a later day as specified in the regulations, whether the day so specified is before, on or after the day on which the regulations are made; and

(b) be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations; and

(c) authorise any matter to be from time to time determined, applied or regulated by any person or body specified in the regulations.

(4)  To the extent to which a regulation takes effect from a date earlier than the date of publication of the regulation in the Gazette, the regulation does not operate to the disadvantage of a person, other than the State or a State authority, by –

(a) decreasing the person’s rights; or

(b) imposing liabilities on the person.

PART 3 - Miscellaneous

23.   Consequential amendments of regulations, &c., do not prevent their subsequent amendment

The amendment by this Act of a provision of any regulations or notice does not prevent that or any other provision of those regulations or notice from being amended or rescinded by a subsequent regulation or notice.

24.   Application of Acts Interpretation Act 1931

Nothing in this Act is to be taken as restricting the application of section 16 of the Acts Interpretation Act 1931 to an Act or regulation that is repealed or rescinded, or amended by this Act.

25.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Workplace Relations; and

(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Justice.

PART 4 - Approvals (Deadlines) Act 1993 Amended

PART 5 - Building and Construction Industry Security of Payment Act 2009 Amended

PART 6 - Dangerous Goods (Road and Rail Transport) Act 2010 Amended

PART 7 - Electricity Supply Industry Act 1995 Amended

PART 8 - Fire Service Act 1979 Amended

PART 9 - Gas (Safety) Regulations 2002 Amended

PART 10 - Gas Act 2000 Amended

PART 11 - Gas Pipelines Act 2000 Amended

PART 12 - Occupational Licensing (Electrical Work) Regulations 2008 Amended

PART 13 - Petroleum (Submerged Lands) (Occupational Health and Safety) Regulations 2008 Amended

PART 14 - Petroleum (Submerged Lands) Act 1982 Amended

PART 15 - Public Interest Disclosures Regulations 2003 Amended

PART 16 - Rail Safety Act 2009 Amended

PART 17 - Security-sensitive Dangerous Substances Act 2005 Amended

PART 18 - Vehicle and Traffic (Vehicle Operations) Notice 2010 Amended

PART 19 - Workers Rehabilitation and Compensation Act 1988 Amended

PART 20 - Legislation repealed, rescinded and revoked

112.   Legislation repealed

The legislation specified in Schedule 1 is repealed.

113.   Legislation rescinded

The legislation specified in Schedule 2 is rescinded.

114.   Legislation revoked

The legislation specified in Schedule 3 is revoked.

SCHEDULE 1 - Legislation repealed

Section 112

SCHEDULE 2 - Legislation rescinded

Section 113

SCHEDULE 3 - Legislation revoked

Section 114