Western Australia. Western Australia CHAPTER Objects of the WA Act. 5.2 Employers duties under the Act and Regulations

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1 WORKPLACE SAFETY AUSTRALIA Western Australia CHAPTER 5 Western Australia 5. Objects of the WA Act The WA Occupational Safety and Health Act 984 states that its objects are:. To promote and secure the safety and health of persons at work;. To protect persons at work against hazards;. To assist in securing safe and hygienic work environments; 4. To reduce, eliminate and control the hazards to which persons are exposed at work; 5. To foster co-operation and consultation between and to provide for the participation of employers and employees and associations representing employers and employees in the formulation and implementation of safety and health standards to current levels of technical knowledge and development; 6. To provide for formulation of policies and for the co-ordination of the administration of laws relating to occupational safety and health; 7. To promote education and community awareness on matters relating to occupational safety and health. OSH Act s Employers duties under the Act and Regulations In order to fulfil the objects of the Act duties are imposed upon a number of different groups but predominant among them are employers. Employers have a duty, so far as is practicable, to provide and maintain a working environment in which his or her employees are not exposed to hazards. The Act then goes on to state particular duties required to be met by employers. They are:. To provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards.. To provide such information, instruction, and training to, and supervision of, his employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards. In determining the training required to be provided employers are required to have regard to the functions performed by employees and the capacities in which they are employed.. To consult and co-operate with safety and health representatives, if any, and other employees at his workplace, regarding occupational safety and health at the workplace. 4. Where it is not practicable to avoid the presence of hazards at the workplace, provide his employees with, or otherwise provide for his employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees. 5. To make arrangements for ensuring, so far as is practicable, that the use, cleaning, maintenance, transportation and disposal of plant and the use, handling, processing, storage, transportation and disposal of substances, at the workplace is carried out in a manner such that employees are not exposed to hazards. 4 The Regulation states that an employer s duty extends only to those aspects of the workplace it is reasonable to expect would be within the employer s control. 5 05

2 NATIONAL HANDBOOK Edition 0 CHAPTER 5 Western Australia The Regulation states that it is an employer s duty to attempt to identify hazards in a workplace. Employers and others who have responsibilities for workplaces such as controllers of workplaces must, as far as practicable:. Identify each hazard to which a person at the workplace is likely to be exposed;. Assess the risk of injury or harm to a person resulting from each hazard, if any, that has been identified 6, and;. Consider the means by which the risk may be reduced. 7 A breach of this regulation can result in a fine of up to $5,000 (for a first offence, $,50 for a subsequent offence) for an individual, or for a body corporate, a first offence fine of up to $50,000 and $6,500 for a subsequent offence. 8 Employers also have a similar duty to investigate, within a reasonable time, any hazard that has been reported by an OHS Representative Employers duty to make Act, Regulations and Standards etc available A person who, at a workplace, is an employer or the main contractor must ensure that, as soon as practicable following a request from a person who works at the workplace, there is available for that person s perusal an up to date copy of: 0. The Act;. The Regulations;. All Australian Standards, Australian/New Zealand Standards and NOHSC documents or parts of those Standards or documents referred to in these regulations that apply to that workplace; 4. All Codes of Practice approved under section 57 of the Act that apply to that workplace; and 5. Guidelines or forms of guidance referred to in section 4 of the Act the titles of which have been published in the Government Gazette and which are set out in Schedule.; and that apply in the workplace. There are penalties for breaches of the Regulation of up to a maximum of $5,000. The Regulation identifies a wide number of instances in which duties are imposed on employers from everything from ensuring regular communication with employees working in isolation to access and egress in the workplace, to ensuring that there is sufficient work space for workers and that employees are protected from extremes of heat and cold. There are literally hundreds of other Regulations found in the WA OSH Regulation. Reference to many of these is found in the A-Z Chapter of this book. The phrase as far as is practicable is discussed in MacCarron v Coles Supermarkets Australia Pty Ltd (00) WAR 55; Laing v O Rourke (BMC) Pty Ltd v Kirwin [0] WASCA 7. This is a strict liability requirement; see Interstruct Pty Ltd v Wakelam (990) WAR 00. See for example, Henry Walker Eltin Contracting Pty Ltd v Tarquil Briggs (unreported), SCFC, 8 March OSH Act s 9. 5 OHS Reg r.4. 6 In relation to whether a risk is forseeable see Tenix Defence Pty Ltd v Maccarone [00] WASCA 65. For the general requirement to undertake a job safety analysis, see, for example, Transfield Pty Ltd v MacCarron, No. 089 of 00 (WASCA). 7 OHS Reg r.. 8 OHS Reg r.6. 9 OHS Reg r.5. 0 OHS Reg r.. 06

3 WORKPLACE SAFETY AUSTRALIA Western Australia CHAPTER 5 5. Reporting of injuries If, at a workplace, an employee incurs an injury, or is affected by a disease, that results in the death of the employee or is of a kind prescribed in the Regulations, the employer of that employee shall forthwith notify the Commissioner in the prescribed form (see Form in Schedule ), or by telephone, giving such particulars as may be prescribed. 5.4 Employers duties to contractors The Act requires that where, in the course of a trade or business carried on, a person (in the Act called the principal ) engages another person ( the contractor ) to carry out work for the principal the principal is deemed, in relation to matters over which he or she has control or, but for an agreement between him and the contractor to the contrary, would have had control, to be the employer of the contractor. Further, any person employed or engaged by the contractor to carry out or to assist in carrying out the work are, along with the contractor, also deemed to be employees of the principal. In other words, a principal is not able to contract with a contractor out of his or her OHS duties either in relation to the contractor or the contractor s employees the employer is deemed responsible for all of them as if they were employees. This does not in any way mean that the contractor does not also have similar duties to his or her subcontractors. In fact, an employer may have multiple duties under the Act as an employer, as a contractor, as the controller of premises and under other different obligations as well all at the same time. (Note that though this is the case, one person may not be prosecuted under the Act twice for the same offence). OHS Reg r.4 and r.5. OHS Act s D. For discussion of when and to what extent a duty holder may defer to the skill and expertise of a contractor or other person engaged to perform work see Tobiassen v Reilly (009) 78 IR, [009] WASCA 6; Reilly v Devcon Australia Pty Ltd (008) 6 WAR Employers duties in relation to employees accommodation Employers are also responsible for those premises that are supplied to employees outside of the metropolitan areas or townships. This would include all sorts of premises that are used by employees as residences in remote worksites. The Act specifies that where an employee occupies residential premises that are owned by or under the control of the employee s employer and the occupancy is necessary for the purposes of the employment because other accommodation is not reasonably available in the area concerned, then the employer must, so far as is practicable, maintain the premises so that the employee occupying the premises is not exposed to hazards at the premises. There are certain exemptions in the Act that employers should refer to, such as where the employee has entered into a written tenancy agreement or where the workplace is a mine or a workplace falling under the provisions of the Petroleum and Geothermal Energy Resources Act or the Petroleum Pipelines Act. OHS Act s G. 5.6 Employees duty to take reasonable care Employees also have a duty under the Act to take reasonable care of their own health and safety at work. The Act specifies a number of instances where it will be deemed that an employee has failed in this duty. These include where an employee: Fails to comply, so far as he or she is reasonably able, with instructions given by his employer for his own safety or health or for the safety or health of other persons; 07

4 NATIONAL HANDBOOK Edition 0 CHAPTER 5 Western Australia Fails to use such protective clothing and equipment as is provided, or provided for, by his employer in a manner in which he has been properly instructed to use it; Misuses or damages any equipment provided in the interests of safety or health; Fails to report forthwith to his employer any situation at the workplace that he has reason to believe could constitute a hazard to any person and he cannot himself correct or any injury or harm to health of which he is aware that arises in the course of, or in connection with, his work. Employees are also required by the Act to cooperate with their employers in carrying out the employer s OHS responsibilities. OHS Act s Duties of others As noted above, the OSH Act imposes certain duties on others in addition to employers and employees. These include: Persons who have control of workplaces OSH Act s ; Manufacturers, importers and suppliers of plant OSH Act s ; Manufacturers, importers and suppliers of substances OSH Act s (); Designers or constructors of buildings or structures OSH Act s (a); Persons who install or erect plant OSH Act s (); Contractors OSH Act s D(4a). See Reilly v Tobiassen [008] WASC 6; Morrison v DeBono No. SJA 064 of 005 (WASC). See for example, Shepherd v Viticulture Technologies (Aust) Pty Ltd (unreported), Court of Petty Sessions, Albany, 5 May 00. See for example, Headfirst International Pty Ltd (unreported), Court of Petty Sessions, Naroggin, 5 October Employer duty to give employee feedback Where an employee reports a hazard to their employer as required under the Act (see above a hazard that the employee can t fix themselves) the employer must, within a reasonable time after receiving the report investigate the matter that has been reported and determine the action, if any, that the employer intends to take and notify the employee of any determination which is made. If an employer fails to investigate the matter and notify the employee of any determination, the employer commits an offence. OHS Act s K. 5.9 Resolution of issues at a workplace Generally, the Act requires that where an issue relating to occupational safety or health arises at a workplace the employer shall, in accordance with the relevant procedure, attempt to resolve the issue with either:. The safety and health representative,. The safety and health committee, or,. The employees, 08

5 WORKPLACE SAFETY AUSTRALIA Western Australia CHAPTER 5 whichever is specified in the relevant procedure. The relevant procedure means the procedure agreed between the employer and the employees as applying in respect of the workplace concerned or, where no procedure is so agreed, the procedure prescribed for that purpose in the Regulations. Where attempts to resolve an issue do not succeed and there is both a safety and health representative and a safety and health committee in the workplace concerned, the safety and health representative shall refer the issue to the safety and health committee for it to attempt to resolve the issue Referral to an inspector Where attempts to resolve an issue are unsuccessful, and where there is a risk of imminent and serious injury to, or imminent and serious harm to the health of any person, the employer, a safety and health representative or, if there is no safety and health representative, an employee may notify an inspector of the issue. If an inspector is informed of an issue they must attend the workplace forthwith and determine whether (and what) action is to be taken. OHS Act s Can employees stop work? The Act allows an employee to stop work if he has reasonable grounds to believe that to continue to work would expose him or any other person to a risk of imminent and serious injury or imminent and serious harm to his health. An employee must immediately notify his or her employer if they stop work, and cannot leave the workplace concerned until the employee has notified the employer and that employer has authorized the employee to leave that workplace. Notification need not be given if the employee has reasonable grounds to believe that to remain at the workplace concerned would expose the employee to a risk of imminent and serious injury or imminent and serious harm to his or her health. An employee who refuses to work may be given reasonable alternative work to do until he or she resumes his usual work. An employee who refuses to work is entitled to the same pay and other benefits, if any, to which he would be entitled if he had continued to do his usual work but not if the employee leaves the workplace without the authorization of the employer or in the case that the employee refuses to do reasonable alternative work that the employee is given. However, if the employee leaves the workplace without authorisation of the employer or refuses to do alternative work, the employee is not entitled to the same pay and other benefits. OHS Act s 6.See Theiss Pty Ltd v AFMEPKIU WA Branch [006] WAIRComm 475. OHS Act s 7. OHS Act s Safety and Health Representatives The Act allows for the election of S&H Representatives in a workplace. An employee who works at a workplace may give notice to the employer requiring the election of a safety and health representative for the workplace. 09

6 NATIONAL HANDBOOK Edition 0 CHAPTER 5 Western Australia 5.. Method of election of Representatives An employer shall, within days of being given notice regarding the election of a representative invite the employees who work at the workplace to appoint a delegate or delegates. The delegates are not the Representatives, but represent the employees in discussions with the employer about:. The number of health and safety representatives to be elected;. The matters or areas in respect of which each safety and health representative is to exercise functions in the workplace;. How a vacancy in an office of safety and health representative is to be dealt with; and 4. The person by whom and the manner in which the election is to be conducted. The delegates can request that the State Electoral Commissioner run such an election (this would probably not be appropriate in very small workplaces but may be in large ones). Every employee who works at the workplace is entitled to vote at an election and the election shall be by secret ballot and any employee is entitled to be elected as a representative. Other aspects of the election procedure are covered in section of the Act. Representatives hold office for years. 4 OHS Act s 9. OHS Act s 0. OHS Act s. 4 OHS Act s. 5.. Role and duties of SH Representatives The Act sets out the role and duties of a safety and health representative as:. To inspect that workplace or any part of it at such times as are agreed with the employer or where he has not inspected the workplace, or that part of it, in the preceding 0 days, at any time upon giving reasonable notice to the employer;. To immediately, in the event of an accident, a dangerous occurrence, or a risk of imminent and serious injury to, or imminent and serious harm to the health of, any person, to carry out any appropriate investigation in respect of the matter;. To keep himself or herself informed as to the safety and health information provided by his employer in accordance with the Act and liaise as necessary with the department and other Government and private bodies; 4. To forthwith report to the employer any hazard or potential hazard to which any person is, or might be, exposed at the workplace that comes to his notice; 5. Where there is a safety and health committee for the workplace, to refer to it any matters that he thinks should be considered by the committee; 6. To consult and co-operate with his employer on all matters relating to the safety or health of persons in the workplace; 7. To liaise with the employees regarding matters concerning the safety or health of persons in the workplace; and 8. Where requested to do so by an inspector, may accompany an inspector while the inspector is carrying out, at the workplace, any of the inspector s functions under this Act. 0

7 WORKPLACE SAFETY AUSTRALIA Western Australia CHAPTER Employers duties in relation to Representatives Where there is a safety and health representative in a workplace the employer shall make available to each representative such information as the employer has, or could reasonably be expected to have, relating to:. Hazards to persons that arise or may arise at the workplace;. So far as it is relevant to the hazards mentioned, the plant and substances used at the workplace and the systems of work at the workplace; and. The safety and health of employees who work at the workplace. Where an employee so requests, employers must permit a safety and health representative to be present at any interview concerning occupational safety or health between the employer or his representative and the employee. Employers are required to consult with safety and health representatives on intended changes to the workplace or the plant or substances used at the workplace where those changes may reasonably be expected to affect the safety or health of employees at the workplace. Employers must also permit a safety and health representative to take such time off work, with pay, for the purposes of performing his functions under the Act. Where any accident or dangerous occurrence takes place in a part of the workplace where employees who are represented by a safety and health representative work, employers are required to ensure that the safety and health representative is notified there of forthwith. Employers must also provide safety and health representatives with such facilities and assistance as are necessary or prescribed for the purposes of the performance by them of their functions. Employers shall not make available to a Representative any medical information concerning an employee unless either the employee has consented to him doing so or the information is in a form that does not identify, nor permit the identification of, the employee. Employers are not obliged to provide Representatives with any information disclosing a trade secret Representatives and Training Employer must also in accordance with the Regulations, permit a safety and health representative to take such time off work, with pay, for the purposes of his attendance at courses of accredited training courses. A representative, subject to the availability of introductory courses, is to endeavour to attend an introductory course within the first months of being elected. Lists of introductory courses are available from Worksafe WA. 4 A representative who has not previously attended an introductory course may give to his or her employer, not less than days, or such shorter period as has been agreed between the representative and his or her employer, before the commencement of an introductory course, notice in writing that the representative wishes to attend the course. 5 If a representative has given notice that he or she wishes to attend an introductory course then the employer, is to permit the representative to take off work, with pay, such time, not exceeding 5 days, as is required for the purpose of attending that course unless they follow the procedure in the Regulations which allows them to delay the Representatives attendance at a course in certain circumstances, or to suggest that the representative attend an alternative course. The rest of Regulation. sets out all of the requirements in relation to training courses.

8 NATIONAL HANDBOOK Edition 0 CHAPTER 5 Western Australia The training requirements under the Act require that Representatives must receive training only from trainers who must be accredited by the Commission for Occupational Safety and Health. 6 OHS Act s. OHS Act s 5. OHS Act s 5. 4 OHS Reg r. (). 5 OHS Reg r. (4). 6 OHS Reg part, Div, Reg r., r.8b Provisional Improvement Notices Elected and qualified safety and health representatives are able to issue provisional improvement notices (PINs) where they believe there is a breach of the Occupational Safety and Health Act 984 or Regulations. A PIN is similar to an improvement notice issued by a WorkSafe inspector, except for its provisional nature. Before issuing a PIN, the safety and health representative will have to consult with the person to whom the notice is to be issued, about the matter that needs remedying. OHS Act Part VI, Division. 5. Safety and Health Committees An employee who works at a workplace may request the employer to establish a safety and health committee for the workplace under this Part. Where an employer has been requested by an employee to establish a safety and health committee, the employer shall, within days of the request either notify the employee and any Representative of the workplace that he agrees to the request, or where he considers that the circumstances of his case are such that a safety and health committee should not be required to be established under the Act, refer to the Commissioner the question of whether such a committee should be established and notify the employee and any safety and health representative for the workplace that he has referred the matter to the Commissioner. In the case that an employer agrees with the establishment of a Committee, or is instructed to establish one by the Commissioner, it should be done within months (of the agreement or the Commissioner s instruction). Of course, an employer may, of his or her own motion, establish a safety and health committee at any time. OHS Act s 9. OHS Act s 8 (). OHS Act s 9 (). 5.. Composition of Committees A safety and health committee for a workplace shall consist of the safety and health representatives in a workplace, (if any), if there are no safety and health representatives, the person or persons elected by the employees for the purposes of this section and the person or persons appointed by the employer. The

9 WORKPLACE SAFETY AUSTRALIA Western Australia CHAPTER 5 number of persons to be elected by the employees for the purposes of this section shall be as is substantially agreed between the employer and employees concerned. The composition of the committee should be agreed between the employer (or their representatives) but, at least half of the members of a committee shall be safety and health representatives or, where there are no safety and health representatives, persons elected by the employees. If the employer and others cannot come to an agreement as to the number of appointees, the Commissioner can intervene to decide a number. An employer may appoint himself or herself as a member of a safety and health committee. All elections must be by secret ballot. OHS Act s 9C. 5.. Functions of Committees The Act states that the functions of a safety and health committee are:. To facilitate consultation and co-operation between an employer and his employees in initiating, developing, and implementing measures designed to ensure the safety and health of employees at the workplace;. To keep itself informed as to standards relating to safety and health generally recommended or prevailing in workplaces of a comparable nature and to review, and make recommendations to the employer on, rules and procedures at the workplace relating to the safety and health of the employees;. To recommend to the employer and employees the establishment, maintenance, and monitoring of programs, measures and procedures at the workplace relating to the safety and health of the employees; 4. To keep in a readily accessible place and form such information as is provided under this Act by the employer regarding the hazards to persons that arise or may arise at the workplace; 5. To consider, and make such recommendations to the employer as the committee sees fit in respect of, any changes or intended changes to or at the workplace that may reasonably be expected to affect the safety or health of employees at the workplace; 6. To consider such matters as are referred to the committee by a safety and health representative; and 7. To perform such other functions as may be prescribed in the regulations or given to the committee, with its consent, by the employer. Although the Act allows a Committee to set its own procedure, all committees should meet at least once every months. OHS Act s 40. OHS Act s 4.

10 NATIONAL HANDBOOK Edition 0 CHAPTER 5 Western Australia 5. Inspectors powers The main way the Act seeks to enforce OSH responsibilities is through the appointment of inspectors by the Commissioner. The inspectors are given certain powers of investigation and enforcement. The Act lists those powers as:. At all reasonable times of the day or night, enter, inspect and examine any workplace ;. Enter any workplace at any other time that the performance of his functions under the Act requires such entry;. When entering any workplace, take with him such equipment and materials as he considers appropriate; 4. Conduct such examination and inquiry as he considers necessary to ascertain whether there has been compliance with this Act. The Act also allows the Inspector to be accompanied by any person he believes necessary to assist him in carrying out his role under the Act; 5. Examine any plant, substance or other thing whatsoever at the workplace; 6. Take and remove samples of any substance or thing, without paying for it; 7. Take possession of any plant or thing for further examination or testing or for use as evidence; 8. Take photographs and measurements, and make sketches and recordings; 9. Require the production of, examine, and take copies or extracts of, any document; 0. Require that the workplace, or any part of it, be left undisturbed for as long as is specified in the requirement;. Interview, either in private or otherwise, as he considers appropriate, any person whom he finds at a workplace or whom he has reasonable grounds to believe is, or was at any time during the preceding years, an employee working at a workplace;. Require any person whom he interviews to answer any questions put to him and, if the inspector considers it appropriate, to verify any such answer by statutory declaration (see below where this power is discussed further);. Require any person to state his name and address; 4. Require the employer or any person who works at a workplace to render such assistance to the inspector as the inspector considers necessary for the performance of his functions under this Act; 5. Exercise such other powers as may be conferred on him by the regulations or as may be necessary for the performance of his functions under this Act. Upon entering a workplace an inspector shall forthwith take all reasonable steps to notify the employer of his presence. Once an employer has been notified of an inspector s presence he must notify relevant Representatives of the inspector s presence. Once the inspector has completed an inspection of a workplace they must inform the employer or relevant safety and health committee of any action he has taken or requires to be taken. If the inspector takes pictures or makes sketches, he must inform the employer what pictures etc he has taken. If he takes samples, one part of the sample must be supplied to the employer and another part kept for future reference. 4 OHS Act ss 4-4. For an example of where an inspector has exceeded their powers of entry see for instance Gren v Conato Pty Ltd t/as Narrogin Furnishing (994) 5 IR 76. OHS Act s 4 (). 4 OHS Act s 45. 4

11 WORKPLACE SAFETY AUSTRALIA Western Australia CHAPTER Offences in relation to inspectors The Act makes it an offence to obstruct or interfere with an inspector in the performance of his functions under the Act, or any interpreter or other person assisting an inspector. It is also an offence to use any threat or any abusive or insulting language to an inspector lawfully acting in the performance of a function conferred on an inspector under the Act, or to abuse or insult any interpreter or other person assisting an inspector. Similarly, it is an offence if a person provides to an inspector an answer or information that is false or misleading in any material particular or directly or indirectly prevents another person from complying with a requirement under the Act. Note than in Western Australia, unlike some other States, a person is not exempted from answering questions that may incriminate them. The Act states: A person is not excused from complying with a requirement under this Act to answer a question or provide information or produce a document on the ground that to do so might result in him incriminating himself or rendering himself liable to a penalty, but an answer given or information provided by a person when so required is not admissible in evidence against him in any civil or criminal proceedings other than proceedings for perjury or for an offence under this Act arising out of the false or misleading nature of the answer or information. In other words, though a person may give an answer that indicates they have breached the Act (and must give an answer if a question is asked), a prosecutor cannot use the answer as evidence to demonstrate that a breach has occurred or that the person has committed an offence.5 OHS Act s 47. OHS Act s 47 (). 5.5 Notices Improvement notices and Prohibition notices 5.5. Improvement notice Where an inspector is of the opinion that any person is contravening any provision of the Act or has contravened a provision of the Act in circumstances that make it likely that the contravention will continue or be repeated, the inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention Content of improvement notice The Act requires that an improvement notice shall:. State that the inspector is of the opinion that the person is contravening a provision of this Act, or has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated;. State reasonable grounds for forming that opinion;. Specify the provision of this Act in respect of which that opinion is held; 4. Specify the time before which the person is required, to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention; and 5. Contain a brief summary of how the right to have the notice reviewed, given by sections 5 and 5A, may be exercised. 5

12 NATIONAL HANDBOOK Edition 0 CHAPTER 5 Western Australia If the notice is issued to a person other than the employer (eg a supervisor, manager or employee), the person must give a copy to the employer as soon as possible after receiving it. Employers must display any notice received in a prominent place Prohibition notices Where an inspector is of the opinion that an activity is occurring or may occur at a workplace which activity involves or will involve a risk of imminent and serious injury to, or imminent and serious harm to the health of any person, the inspector may issue to a person who is or will be carrying on the activity, or a person who has or may be reasonably presumed to have control over the activity, a prohibition notice prohibiting the carrying on of the activity until an inspector is satisfied that the matters which give or will give rise to the risk are remedied. An inspector who issues a prohibition notice must remain at the workplace until the employer has been advised of the notice and, where the notice is in respect of an activity that is occurring, the prohibited activity has ceased Content of a prohibition notice A prohibition notice must:. State that the inspector is of the opinion that in the workplace there is occurring or may occur an activity which involves or will involve a risk of imminent and serious injury to, or imminent and serious harm to the health of, a person;. State reasonable grounds for forming that opinion;. Specify the activity which in the inspector s opinion involves or will involve the risk and the matters which give or will give rise to the risk; 4. Where in the inspector s opinion the activity involves a contravention or likely contravention of any provision of this Act, specify that provision and state the reasons for that opinion; and 5. Contain a brief summary of how the right to have the notice reviewed, given by sections 5 and 5A, may be exercised. An inspector may include in an improvement notice or a prohibition notice directions as to the measures to be taken to remedy any contravention, likely contravention, risk, matters or activities to which the notice relates. The Act allows that any direction may refer to any code of practice and offer the person to whom it is issued a choice of ways in which to remedy the contravention, likely contravention, risk, matters or activities. The Act allows a procedure whereby employers may dispute and seek review of notices issued against them by referring the notice to the Commissioner for review. 4 OHS Act s 48. OHS Act s 49. OHS Act s OHS Act ss 5-5A. 6

13 WORKPLACE SAFETY AUSTRALIA Western Australia CHAPTER Penalties There are four levels of fine that can be imposed on an individual or corporation for an offence ranging from level penalties for the least serious to level 4 for the most. Since January 005, a corporation convicted of the most serious offence (level 4) can be fined up to $500,000 for a first offence. A subsequent offence attracts a maximum penalty of $65,000. Individuals can be fined, for a first offence, a maximum $50,000, and can be imprisoned for years. For a subsequent offence the maximum fine for an individual is $5,000 and imprisonment for up to years. For details on the specific maximum fine levels for each level offence, refer to section A of the Act. The other significant change relates to non-monetary penalties in the form of enforceable undertakings. Courts are able to make an order allowing an offender either to pay a monetary penalty, or to enter into an undertaking with the WorkSafe Commissioner to take action, such as remedying or publicising details of the offence or punishment imposed. The value of the undertaking would be roughly equivalent to the level of the penalty. Failure to comply will be an offence and if convicted, the offender would be required to pay the original penalty as well as a further penalty for the new offence. OHS Act s A. 7

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