WHS (MPS) Act 2013 - Gold Lego

Question 1

What is a “notifiable incident”

WHS (MPS) Act 2013 Section 14

Answer 1

In this Act, notifiable incident means—
a) the death of a person, or
b) a serious injury or illness of a person, or
c) a dangerous incident prescribed by the regulations.

Question 2

Duty to notify of notifiable incidents

WHS (MPS) Act 2013 Section 15

Answer 2

1) A mine operator of a mine must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of any business or undertaking at the mine has occurred.
2) A person conducting a business or undertaking at a mine site must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking at the mine site has occurred.
3) Notice under this section must be given in accordance with this section and by the fastest possible means.
4) The notice must be given—
a) by telephone, or
b) in writing.
Example—
The written notice can be given by facsimile, email or other electronic means.

5) A person giving notice by telephone must—
a) give the details of the incident requested by the regulator, and
b) give a written notice of the incident within 48 hours of giving the notice by telephone.

6) A written notice must be in a form, or contain the details, approved by the regulator.

Question 3

Notifiable incident at coal mine

WHS (MPS) Act 2013 Section 16

Answer 3

1) A person who is required to ensure that the regulator is notified of a notifiable incident at a coal mine to which Part 5 applies must also ensure that an industry safety and health representative is given notice of the incident in accordance with this section.
2) Notice is to be given in the same manner and form as notice is given to the regulator and is to contain the same details as those required by the regulator in respect of telephone notice or written notice, as the case may be.

Question 4

Duty to preserve incident sites

WHS (MPS) Act 2013 Section 17

Answer 4

1) When a notifiable incident has occurred at a mine site each of the following persons must ensure, so far as is reasonably practicable, that the incident site is not disturbed until an inspector arrives at the incident site or any earlier time that a government official directs—
a) any person who is required to ensure that the regulator is notified of the notifiable incident,
b) each person with management or control of the incident site.
2) (Repealed)
3) Subsection (1) does not prevent any action—
a) to assist an injured person, or
b) to remove a deceased person, or
c) that is essential to make the incident site safe or to minimise the risk of a further notifiable incident, or
d) that is associated with a police investigation, or
e) for which an inspector or the regulator has given permission.
4) A government official must not direct an earlier time under subsection (1) in the case of a notifiable incident at a coal mine to which Part 5 applies unless the government official has consulted with an industry safety and health representative.
5) In this section—
incident site means the workplace (or part of the workplace) at which the notifiable incident occurred and includes any plant, substance, structure or thing associated with the notifiable incident.

Question 5

Appointment of industry safety and health representatives

WHS (MPS) Act 2013 Section 28

Answer 5

1) In this section— eligible person means a person who—
a) is a WHS entry permit holder, and
b) has the qualifications (if any) prescribed by the regulations.
2) The Minister may appoint a person as an industry safety and health representative if—
a) the person is an eligible person, and
b) the person is nominated by the Mining and Energy Union, and
c) the person is, in the Minister’s opinion, a suitable person to be appointed as an industry safety and health representative.
2) 2AA - For the purpose of determining under subclause (2)(c) whether a person is suitable to be appointed as an industry safety and health representative, the Minister may make enquiries about the person the Minister considers appropriate, including—
a) a nationwide criminal record check, and
b) other relevant probity checks relating to the person’s previous employment or other activities.
2) 2A - The Minister must appoint a person under subsection (2) if there are fewer than 4 persons currently appointed as industry safety and health representatives.
3) An appointment of an industry safety and health representative must be in writing.
4) A person’s appointment as an industry safety and health representative is revoked if the person ceases to be an eligible person.
5) The regulations may prescribe circumstances in which the Minister must suspend or revoke, or may not suspend or revoke, an appointment under this section. Note— Section 47 of the Interpretation Act 1987 provides incidental powers with respect to appointments including providing a power to suspend or revoke any such appointment.
6) A person whose appointment is suspended or revoked by the Minister may apply for an external review under section 229 of the WHS Act as if the person were an eligible person and the decision of the Minister to suspend or revoke the appointment were a reviewable decision. For the purposes of the review any reference in that section to the regulator is taken to include a reference to the Minister.

Question 6

Functions of industry safety and health representatives

WHS (MPS) Act 2013 Section 29

Answer 6

1) An industry safety and health representative has the functions of a health and safety representative under the WHS Act for a work group, as if the work group comprised all workers at all coal mines.
2) An industry safety and health representative has the following additional functions—
a) to review the content and implementation of any safety management system required by the regulations in respect of a coal mine,
b) to participate in investigations of events, occurrences or notifiable incidents at coal mines,
c) to assist in the training of site safety and health representatives and electrical safety and health representatives.
3) For the purposes of exercising a function, an industry safety and health representative—
a) may enter and inspect a workplace or any part of a workplace at a coal mine at any time—
i. after giving reasonable notice to the mine operator of the coal mine, or (
ii. without notice in the event of an incident or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and
b) may accompany a government official when the government official is carrying out an inspection of a workplace or part of a workplace at a coal mine.

Question 7

Suspending operations

WHS (MPS) Act 2013 Section 30

Answer 7

1) An industry safety and health representative may give a direction to the mine operator of a coal mine to suspend mining operations at the coal mine if the industry safety and health representative is of the opinion that—
a) there has been a failure at the coal mine to comply with the WHS laws or with any safety management system required by the regulations in respect of the coal mine, and
b) because of that failure there is a danger to the health or safety of workers at the coal mine.
2) A direction under this section must—
a) be in the form (if any) approved by the regulator, and
b) state that the industry safety and health representative is of the opinion referred to in subsection (1), and
c) give particulars of the industry safety and health representative’s reasons for being of that opinion, and
d) identify the mining operations that are to be suspended, and
e) give particulars of any action that, in the industry safety and health representative’s opinion, could be taken to remove the danger.
3) A mine operator who is given a direction must immediately—
a) comply with the direction, and
b) notify the regulator of the giving of the direction.
4) An industry safety and health representative must take all reasonable steps to notify the regulator that the industry safety and health representative proposes to give a direction to a mine operator before the direction is given.
5) An industry safety and health representative may instead notify the regulator as soon as practicable after giving a direction if the direction is given in relation to any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
6) Failure to notify the regulator does not affect the validity of a direction.
7) An industry safety and health representative must, as soon as practicable after giving a direction to a mine operator, give a copy of the direction to the regulator.
8) A direction ceases to have effect at such time as an inspector attends and assesses the matters to which the direction relates.
9) A direction also ceases to have effect if it is withdrawn by the industry safety and health representative by giving notice in writing to the mine operator.
10) A direction under this section does not prevent the carrying out of work for the purpose of preventing or mitigating any danger to which the direction relates.

Question 8

Issue of provisional improvement notices

WHS (MPS) Act 2013 Section 31

Answer 8

1) An industry safety and health representative, in the exercise of the functions of a health and safety representative under the WHS Act, cannot issue a provisional improvement notice in relation to a matter if the regulator has already issued (or decided not to issue) a stop work order in relation to the same matter.

Note— Section 90 (5) of the WHS Act prevents an industry safety and health representative issuing a provisional improvement notice if a government official has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.

2) An industry safety and health representative must, as soon as practicable after issuing a provisional improvement notice and within the time (if any) prescribed by the regulations, give a copy of the notice to the regulator along with such other information in relation to the giving of the notice as may be prescribed by the regulations.

Question 9

Delegation of functions to site safety and health representative

WHS (MPS) Act 2013 Section 32

Answer 9

1) An industry safety and health representative may delegate his or her functions under section 30 (Suspending operations) to a site safety and health representative.
2) A delegation must be in writing and a copy must be given to the site safety and health representative, the mine operator of the relevant coal mine and the regulator.
3) A site safety and health representative may only exercise delegated functions under this section if—
a) the site safety and health representative has received any required training prescribed by the regulations, and
b) the industry safety and health representative is not available or it is not practicable for him or her to attend at short notice.

Question 10

Identification of industry safety and health representatives

WHS (MPS) Act 2013 Section 33

Answer 10

1) Every industry safety and health representative is to be issued with an identity card by the Minister.
2) The identity card must—
a) state that it is issued under this Act, and
b) give the name of the person to whom it is issued, and
c) state the date (if any) on which it expires, and
d) include any other matter prescribed by the regulations.

Question 11

Offence to hinder or obstruct

WHS (MPS) Act 2013 Section 34

Answer 11

A person must not intentionally hinder or obstruct an industry safety and health representative in exercising his or her functions, or induce or attempt to induce any other person to do so.

Question 12

Offence to impersonate

WHS (MPS) Act 2013 Section 35

Answer 12

A person who is not an industry safety and health representative must not, in any way, hold himself or herself out to be an industry safety and health representative.

Question 13

Offence to assault, threaten or intimidate

WHS (MPS) Act 2013 Section 36

Answer 13

A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an industry safety and health representative or a person assisting an industry safety and health representative. Division 3 Mine safety and health representatives

Question 14

Definition

Mine Safety and Health Representative means

WHS (MPS) Act 2013 Section 37

Answer 14

MSHR, mine safety and health representative means—
a) a site safety and health representative (SSHR), or
b) an electrical safety and health representative (ESHR).

Question 15

Election of mine safety and health representatives

WHS (MPS) Act 2013 Section 38

Answer 15

1) An individual may be elected as a site safety and health representative for a coal mine if the individual has such qualifications and skills (if any) as may be prescribed by the regulations.
2) An individual may be elected as an electrical safety and health representative for a coal mine if the individual has such qualifications and skills (if any) as may be prescribed by the regulations.
3) More than one individual may be elected under subsection (1) or (2) if the mine operator of the mine agrees or the regulator directs.
4) The person conducting an election must inform the regulator and an industry safety and health representative as soon as reasonably practicable after an individual is elected.
5) The mine operator of the mine must, as soon as reasonably practicable after an individual is elected, cause one or more prominent notices to be displayed at the mine that are reasonably likely to ensure that all workers at the mine will be notified in a timely manner about the election of the individual.

Question 16

Election procedure (MSHR)

WHS (MPS) Act 2013 Section 39

Answer 16

1) The election of a mine safety and health representative is to be conducted in accordance with the regulations and for that purpose the regulations may make provision for or with respect to the election of mine safety and health representatives, including the following—
a) eligibility for election,
b) eligibility to vote at an election,
c) the nomination of candidates for election,
d) the conduct of an election.
2) An election of a mine safety and health representative for a coal mine must be held if one or more positions are vacant and—
a) a worker at the coal mine requests in writing that an election be held, or
b) the regulator directs that an election be held.
3) If the number of candidates for election as a site safety and health representative or an electrical safety and health representative for a coal mine equals the number of vacancies for the particular office, the election need not be conducted and each candidate is to be taken to have been elected.

Question 17

Term of office (MSHR)

WHS (MPS) Act 2013 Section 40

Answer 17

1) A mine safety and health representative for a coal mine holds office for 3 years.
2) However, a person ceases to hold office before that time if—
a) the person resigns that office by written notice given to the mine operator, or
b) the person ceases to be eligible for election to that office, or
c) the person is disqualified under this Division from acting in that office, or
d) the person is removed from that office by a majority of the workers at the coal mine in accordance with the regulations.
3) A mine safety and health representative is eligible for re-election.

Question 18

Disqualification (MSHR)

WHS (MPS) Act 2013 Section 41

Answer 18

1) An application may be made to the Industrial Relations Commission to disqualify a mine safety and health representative on the ground that the representative has—
a) exercised a function as a mine safety and health representative for an improper purpose, or
b) used or disclosed any information he or she acquired as a mine safety and health representative for a purpose other than in connection with the role of mine safety and health representative.
2) The following persons may make an application under this section—
a) any person adversely affected by any such exercise of a function or use or disclosure of information,
b) the regulator.
3) If the Industrial Relations Commission is satisfied that a ground in subsection (1) is made out, the Commission may disqualify the mine safety and health representative for a specified period or indefinitely.

Question 19

Functions of mine safety and health representatives

WHS (MPS) Act 2013 Section 42

Answer 19

1) A mine safety and health representative for a coal mine has all the functions of a health and safety representative under the WHS Act for a work group at the mine, as if the work group comprised all the workers at the mine.

Example— The power to issue provisional improvement notices under the WHS Act.

2) An electrical safety and health representative for a coal mine may only exercise his or her functions in relation to electrical installations and electrical equipment and any issues and risks arising from their use.
3) A mine safety and health representative for a coal mine may observe any formal investigation conducted by or on behalf of the mine operator of an event or other occurrence at the coal mine that must be notified to the regulator.
4) The fact that there may be one or more health and safety representatives under the WHS Act for workers at a coal mine does not limit the functions of a mine safety and health representative for the coal mine.

Question 20

Issue of provisional improvement notices

WHS (MPS) Act 2013 Section 43

Answer 20

1) A health and safety representative under the WHS Act for a work group that comprises workers at a coal mine cannot issue a provisional improvement notice in relation to the coal mine while there is—
a) a site safety and health representative for the coal mine, or
b) an electrical safety and health representative for the coal mine, but only if—
i. there is no site safety and health representative for the coal mine, and
ii. the provisional improvement notice relates only to electrical installations and electrical equipment and any issues and risks arising from their use.
2) A mine safety and health representative for a coal mine, in the exercise of the functions of a health and safety representative under the WHS Act, cannot issue a provisional improvement notice in relation to a matter if—
a) the regulator has already issued (or decided not to issue) a stop work order in relation to the same matter, or
b) an industry safety and health representative has already issued (or decided not to issue) a provisional improvement notice in relation to the same matter.

Note— Section 90 (5) of the WHS Act prevents a mine safety and health representative from issuing a provisional improvement notice if a government official has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.

3) A mine safety and health representative for a coal mine must, before issuing a provisional improvement notice, take reasonable steps to consult with a health and safety representative under the WHS Act for a work group that comprises workers at the coal mine but only if workers in that work group will be affected by the notice.
4) A failure to consult under subsection (3) does not affect the validity of the provisional improvement notice.
5) A mine safety and health representative for a coal mine cannot issue a provisional improvement notice unless the person has completed the course of training required by section 45.
6) A mine safety and health representative must, as soon as practicable after issuing a provisional improvement notice and before the time (if any) prescribed by the regulations, give a copy of the notice to the regulator.

Question 21

Government officials to consult with mine safety and health representatives

WHS (MPS) Act 2013 Section 44

Answer 21

1) A government official who proposes to inspect a coal mine in connection with any matter that may affect the health and safety of workers at the mine must (if it is reasonably practicable to do so)—
a) consult regarding the proposed inspection with—
i. a site safety and health representative for the coal mine, and
ii. an electrical safety and health representative for the coal mine, if the matter relates to electrical installations and electrical equipment and any issues and risks arising from their use, and
b) permit each such mine safety and health representative to accompany the government official on the inspection.
2) A failure by a government official to comply with this section does not affect the exercise of any function by the government official.

Question 22

Training of mine safety and health representatives

WHS (MPS) Act 2013 Section 45

Answer 22

1) A mine safety and health representative for a coal mine must undertake a course of training relating to work health and safety that is accredited by the regulator for the purposes of this section.
2) The mine operator of a coal mine must ensure that a person who is elected to be a mine safety and health representative for the coal mine undertakes the course of training as soon as is reasonably practicable after the person is elected.
3) The mine operator of a coal mine must ensure that a mine safety and health representative for the coal mine is permitted to take any time off work, without loss of remuneration or other entitlements, that is necessary to undertake the training.

Question 23

Reports by mine safety and health representatives

WHS (MPS) Act 2013 Section 46

Answer 23

1) A mine safety and health representative for a coal mine must, within 7 days after making an inspection of the coal mine or of any part of the coal mine, give the mine operator of the coal mine a report of the results of the inspection.
2) The mine operator of the coal mine must keep any such report at the mine for at least 12 months after it is made.
3) The regulations may limit the kinds of inspection to which this section applies.

Question 24

Reporting of dangers

WHS (MPS) Act 2013 Section 47

Answer 24

1) A mine safety and health representative who finds any of the following during an inspection of a coal mine must record the finding in a book or other form of record (to be kept at the coal mine by the mine operator for that purpose) on the day of the inspection and before the representative leaves the coal mine following the inspection—
a) a danger in relation to noxious or flammable gas,
b) a danger in relation to the existence of self-heating by coal or other material,
c) any other condition from which danger to the coal mine or to the safety or health of persons employed at the coal mine may be apprehended.
2) The mine operator of a coal mine must immediately inform the regulator of the contents of any record made as referred to in subsection (1) and must cause a copy of the record to be given to the regulator.
3) The regulations may prescribe how the regulator is required to be informed under this section and what additional information (if any) must be given to the regulator.