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This OHS Alert is the copyright of Workplace Safety Australia Pty Ltd. Other than for the purposes, and subject to the conditions prescribed under the Copyright Act 1968, you may not replicate, forward, copy or otherwise transmit this OHS Alert to any other party, except pursuant to the following terms, without the prior written permission of Workplace Safety Australia. Paid subscribers of Workplace Safety Australia Pty Ltd who receive this OHS Alert as part of their subscription may forward or copy this publication within their business or organisation only pursuant to the terms of their subscription. Under no circumstances should this OHS Alert be distributed or copied to any person, or organisation, or any other entity, outside of the subscriber organisation.

Please Note: When you click on the hyperlink and it takes you down to your selected item

this allows you to read only what is relevant to your industry.

In This Alert…

• Editorial

• Lead Story…

o MULTI – New Model Code: How to Manage the Risks of Respirable

Crystalline Silica from Engineered Stone

• Legislative Changes and Proposed Legislative Changes…

o NSW - Road Transport Legislation Amendment Act 2021

o NSW - Gas and Electricity (Consumer Safety) Amendment (Electrical Meter Installation Safety) Regulation 2021

o NSW - Road Amendment (Miscellaneous) Rule 2021

o NSW - Environmental Planning and Assessment Amendment (Short-

term Rental Accommodation) Regulation 2021

o NZ - Pae Ora (Healthy Futures) Bill

o QLD - Resources and Other Legislation Amendment Act 2021

o QLD - Transport Legislation Amendment Regulation (No. 2) 2021

o SA - Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Act 2021

o TAS - Traffic Amendment (Personal Mobility Devices) Bill 2021

o WA - Industrial Relations Legislation Amendment Bill 2021

o WA - Police Amendment (Compensation Scheme) Bill 2021

o WA - COVID-19 Response Legislation Amendment (Extension of Expiring Provisions) Bill (No. 2) 2021

• COVID Health Directives…

• New & Updated Standards…

• Open for Comment…

• In Other News…

WORKPLACE SAFETY AUSTRALIA PTY LTD

Safety Alert: 42-2021

03 November 2021

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o MULTI - National Transport Commission Seeking Feedback to Safely

Manage Truck Driver Fatigue

o MULTI – New PBS Access Notice Provides Permit-Free Travel

o MULTI – Updated Guidance Material: Managing the Risks of Working in Heat

o WA – Mining Fined After Workers Exposed to Extreme Heat

o WA – WorkCover Release COVID Vaccination & Worker’s Compensation Guidance

o NZ - Govt Response to Worksafe Independent Review

• In the Courts…

o NSW - SafeWork NSW v Askfay Pty Ltd; and; SafeWork NSW v Anthony Elias Felix Grima

Note: Web hyperlinks are reproduced in their full text throughout Workplace Safety Australia’s Alerts. If you are reading an electronic copy of this Alert, you should be able to access the pages and documents by clicking the links (holding “control” and left mouse clicking is the usual way). However, some subscribers find that the links do not work effectively by simply clicking. If this is the case, simply highlight the link, copy it, and ‘paste’ it into your web browser.

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Editorial

In this week’s Workplace Safety Australia’s weekly Alert, we take a look at a recent case,

as well as the main legal and regulatory changes that have occurred in the past week.

Our case this week comes after a construction company and its supervisor elected to continue operating despite the need for scaffolding.

Our lead story comes as Safe Work Australia has released a new model Code of Practice on how to manage the risks of respirable crystalline silica from engineered stone in the

workplace. Our ‘Legislative Changes and Proposed Legislative Changes’ section contains analysis of the

Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Act 2021 (SA), which amends the Rail Safety National Law (South Australia) Act 2012 to make it

clear that a rail safety worker will be taken to be carrying out rail safety work when he or she has arrived at their place of work and has signed on and is available, or is otherwise on duty.

Our ‘Legislative Changes and Proposed Legislative Changes’ section contains analysis of the

Environmental Planning and Assessment Amendment (Short-term Rental Accommodation) Regulation 2021 (NSW), which introduces a new statewide policy for Short-Term Rental Accommodation, which supersede all previous short-term accommodation planning laws in

NSW including existing ad hoc local council regulations on the subject matter. The Amendment Regulation introduces a new Short-term Rental Accommodation Fire Safety

Standard which sets out the minimum fire safety and evacuation requirements for dwellings used for the purpose of short-term rental accommodation.

Our ‘Legislative Changes and Proposed Legislative Changes’ section contains analysis of the Resources and Other Legislation Amendment Act 2021 (QLD), which contains amendments

to the Coal Mining Safety and Health Act 1999 extending transitional arrangements for statutory role requirements for coal mining operations that would otherwise come into effect on 25 November 2021.

Our ‘Legislative Changes and Proposed Legislative Changes’ section contains analysis of the

Industrial Relations Legislation Amendment Bill 2021 (WA), which proposes to implement the Government's election commitments to make Easter Sunday a public holiday from 2022, and to introduce an entitlement to five days of unpaid family and domestic violence leave

per year for all employees.

Safe Work Australia published its Key Work Health and Safety Statistics this week, which included the following key findings:

• The fatality rate of workers has decreased by 50% since 2007;

• 96% of worker fatalities in 2020 were male;

• Vehicle collisions accounted for 41% of all 2020 worker fatalities;

• Machinery operators and drivers had the highest number of fatalities by occupation

(67 fatalities) in 2020;

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• The agriculture, forestry and fishing industry had the highest worker fatality rate in

2020.

Regards,

Go back to ‘In this alert’

Kim Schekeloff

Director Workplace Safety Australia Pty Ltd

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Lead Story…

MULTI – New Model Code: How to Manage the Risks of Respirable

Crystalline Silica from Engineered Stone

Relevance: Commonwealth; All States & Territories

Industries: All Industries

Keywords: Codes of Practice; Safe Work Australia; Respirable Crystalline Silica;

Engineered Stone

Safe Work Australia has released a new model Code of Practice on how to manage the risks of respirable crystalline silica from engineered stone in the workplace.

The model Code of Practice provides information to help persons conducting a business or undertaking (PCBUs) understand their specific WHS duties for working with engineered

stone and protect their workers from exposure to silica dust.

The model Code of Practice should be used if you are a duty holder and you:

• manage the health and safety risks associated with working with engineered stone;

• design, manufacture, import or supply engineered stone;

• fabricate, install, maintain, remove or dispose of engineered stone.

The model Code applies to all types of work and all workplaces covered by the model Work Health and Safety Act. The code covers:

• who has health and safety duties in relation to working with engineered stone;

• how to identify, manage and control the risks of working with engineered stone;

• the workplace exposure standard for respirable crystalline silica;

• health monitoring;

• air monitoring; and

• clean-up and disposal of silica dust maintenance, refurbishment or removal of engineered stone.

The model Code sets out the following:

‘In its solid form, such as the slab supplied to a workplace for fabrication, engineered stone does not have hazardous properties; it is the dust that is

generated from engineered stone that has the potential to cause harm when it is breathed in.

The fabrication stage involves using mechanical processes such as cutting, grinding, trimming, drilling, sanding and polishing of the engineered stone to create a specific

product ready to be supplied for installation. For example, creating a kitchen benchtop to size and cutting holes for positioning a sink and tap.

Once the fabricated engineered stone product is installed, further mechanical processes may be required, for example, minor cutting to enable a custom fit, or for

maintenance purposes.

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Cutting, grinding, trimming, drilling, sanding and polishing engineered stone

products generates respirable dust containing crystalline silica (silica dust). When breathed in over time, silica dust can cause fatal lung disease. The risks are much

greater where the engineered stone contains high levels of crystalline silica. Workers fabricating, processing, installing, maintaining or removing engineered

stone products without appropriate control measures in place may be exposed to high levels of silica dust (for example through dust or mist clouds). Workers can

also be exposed to silica’. Safe Work Australia Chief Executive Officer Michelle Baxter, stated the following:

‘Silicosis is a serious lung disease that can be fatal. All workers have the right to a

healthy and safe working environment and no workplace death or injury is acceptable…Occupational lung disease and silicosis continues to be a major work

health and safety concern in Australia…The Occupational lung diseases in Australia 2006-2019 report highlighted a substantial increase in silicosis in those who work with engineered stone…Not all hazards in the workplace are visible. Silica dust from

engineered stone can be invisible to the naked eye but can cause serious lung disease…It’s incredibly important to know what hazards exist in your workplace and

how to eliminate or manage them.’

To have legal effect in a jurisdiction, the model Code of Practice must be approved as a Code of Practice in that jurisdiction. To determine if this model Code of Practice has been

approved as a Code of Practice in a particular jurisdiction, check with the relevant regulator.

The Code of Practice can be accessed here.

Further information can be accessed here.

Go back to ‘In this alert’

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Legislative Changes and Proposed Legislative Changes…

NSW - Road Transport Legislation Amendment Act 2021

Relevance: New South Wales

Title of Instrument: Road Transport Legislation Amendment Act 2021

Amending: Crimes Act 1900; Interpretation Act 1987; Motor Accident Injuries Regulation

2017; Motor Accidents Compensation Regulation 2020; Motor Vehicles Taxation Act

1988; Motor Vehicles Taxation Regulation 2016; National Environment Protection Council

(New South Wales) Act 1995; Passenger Transport (General) Regulation 2017; Point to

Point Transport (Taxis and Hire Vehicles) Act 2016; Point to Point Transport (Taxis and

Hire Vehicles) Regulation 2017; Protection of the Environment Operations (Clean Air)

Regulation 2010; Protection of the Environment Operations (Noise Control) Regulation

2017; Road Rules 2014; Road Transport (Driver Licensing) Regulation 2017; Road

Transport (Vehicle Registration) Regulation 2017; Road Transport Act 2013

Commencement: Assented 20 October 2021; See Commencement Below

Industries: All Industries; Transport, Logistics and Warehousing

Keywords: Road Transport; Registration Charges; Heavy Vehicles; Primary Producers

Amendment Act Located here.

The Road Transport Legislation Amendment Act 2021 was assented on 20 October 2021

and commences, as follows:

• 1 July 2021: Schedule 5.5 is taken to have commenced on the day on which section 15 of the Road Vehicle Standards Act 2018 (CTH); and

• 20 October 2021: the remainder.

The Road Transport Legislation Amendment Act 2021 amends the Road Transport Act 2013 and the Motor Vehicles Taxation Act 1988 concerning the fixing of registration charges and

motor vehicle taxation amounts; to make minor miscellaneous amendments to legislation administered by the Minister for Transport and Roads and Minister for Regional Transport and Roads; and to make minor consequential amendments.

The objects of the Amendment Act are as follows:

• to amend the Road Transport Act 2013 and the Motor Vehicles Taxation Act 1988

concerning the fixing of registration charges and motor vehicle taxation amounts, including by providing that the Road Transport Act 2013 and the related regulations

deal with all heavy vehicles, including primary producers’ heavy vehicles;

• to provide for the Motor Vehicles Taxation Regulation 2016 to fix the amounts of

motor vehicle taxation, and the indexation of those amounts;

• to update enforcement powers;

• to make minor and consequential amendments and savings and transitional

provisions;

• to amend various Acts and instruments to make consequential amendments for the

purposes of giving effect to provisions of the Road Vehicle Standards Act 2018 of the Commonwealth.

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The Act makes amendments to the Road Transport Act 2013 and the Motor Vehicles Taxation

Act 1988 that will create a more flexible legislative framework to enable the Government to more readily respond to the needs of farmers in times of drought, flood and other natural

disasters. The amendments do not change the manner in which primary producer vehicle registration concessions are currently calculated. Importantly, the amendments will rectify a longstanding legislative anomaly caused by a drafting error which incorrectly applies a

monetary cap on heavy vehicle primary producer registration charges.

The Road Transport Legislation Amendment Act 2021 amends to the following legislation:

• Crimes Act 1900;

• Interpretation Act 1987;

• Motor Accident Injuries Regulation 2017;

• Motor Accidents Compensation Regulation 2020;

• Motor Vehicles Taxation Act 1988;

• Motor Vehicles Taxation Regulation 2016;

• National Environment Protection Council (New South Wales) Act 1995;

• Passenger Transport (General) Regulation 2017;

• Point to Point Transport (Taxis and Hire Vehicles) Act 2016;

• Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017;

• Protection of the Environment Operations (Clean Air) Regulation 2010;

• Protection of the Environment Operations (Noise Control) Regulation 2017;

• Road Rules 2014;

• Road Transport (Driver Licensing) Regulation 2017;

• Road Transport (Vehicle Registration) Regulation 2017;

• Road Transport Act 2013.

Go back to ‘In this alert’

NSW - Gas and Electricity (Consumer Safety) Amendment (Electrical Meter

Installation Safety) Regulation 2021

Relevance: New South Wales

Title of Instrument: Gas and Electricity (Consumer Safety) Amendment (Electrical Meter

Installation Safety) Regulation 2021

Amending: Gas and Electricity (Consumer Safety) Regulation 2018

Commencement: Published on the NSW Legislation Website 22 October 2021;

Commenced 22 October 2021

Industries: Utilities (Electricity, Gas & Water); Government & Defence

Keywords: Energy and Resources; Electricity; Gas; Exemption; Consumer Safety;

Electrical Meter Installation Safety

Amendment Regulations Located here.

The Gas and Electricity (Consumer Safety) Amendment (Electrical Meter Installation Safety) Regulation 2021 was published on the NSW Legislation Website on 22 October 2021 and

commenced on 22 October 2021, amending the Gas and Electricity (Consumer Safety) Regulation 2018 to exempt retailers and metering coordinators from obligations under the

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Gas and Electricity (Consumer Safety) Act 2017 in relation to the installation of advanced

electrical meters, subject to conditions.

The Gas and Electricity (Consumer Safety) Amendment (Electrical Meter Installation Safety)

Regulation 2021 amending the Gas and Electricity (Consumer Safety) Regulation 2018, as follows:

• Insertion of Part 9AA after Part 9:

38AA Definitions

In this Part—

metering provider has the same meaning as it has in the National Electricity Rules.

metering safety management system means a safety management system that—

(a) complies with the Act, section 38AB(1), and

(b) satisfies the requirements of the Code for Safe Meter Installation.

National Electricity (NSW) Law means the provisions applying because of the National Electricity (New South Wales) Act 1997, section 6, and includes

the National Electricity Rules.

National Electricity Rules has the same meaning as it has in the National

Electricity (NSW) Law.

38AB Exemptions for metering coordinators

For the purposes of the Act, section 75(3), a metering coordinator is exempt from the Act, section 38AB(4), if—

(a) the metering coordinator engages a metering provider to install,

maintain or replace an advanced meter, and

(b) the metering provider ensures the Asbestos Management Code of

Practice is complied with for the installation, maintenance or replacement of the advanced meter.

38AC Metering safety management system—exemptions

(1) For the purposes of the Act, section 75(3), a metering coordinator is exempt from the Act, section 38AC(1), if—

(a) the metering coordinator engages a metering provider to provide,

install, maintain or replace an advanced meter, and

(b) the metering coordinator ensures that the metering provider has a

metering safety management system in place.

(2) For the purposes of the Act, section 75(3), a retailer is exempt from the Act, section 38AC(2) if—

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(a) the metering coordinator engaged by the retailer engages a metering

provider to install, maintain or replace an advanced meter, and (b) the metering provider—

(i) has a metering safety management system in place, and

(ii) installs, maintains or replaces the advanced meter in a way that

ensures the safety of persons and property, and

(c) the retailer ensures—

(i) the metering provider has a metering safety management

system in place, and

(ii) the metering provider installs, maintains or replaces the

advanced meter in a way that ensures the safety of persons and property.

(3) For the purposes of the Act, section 75(3), a metering coordinator is exempt from the Act, section 38AC(5) if—

(a) the metering coordinator engages a metering provider to provide,

install, maintain or replace an advanced meter, and

(b) the metering provider—

(i) has provided documentation relating to the provider’s metering

safety management system to the Secretary before providing,

installing, maintaining or replacing the advanced meter, and

(ii) ensures the metering safety management system is brought to the attention of the persons engaged by the metering

coordinator to install, replace or maintain an advanced meter,

and

(iii) ensures a copy of the documents relating to the system are made readily available to those persons.

Go back to ‘In this alert’

NSW - Road Amendment (Miscellaneous) Rule 2021

Relevance: New South Wales

Title of Instrument: Road Amendment (Miscellaneous) Rule 2021

Amending: Road Rules 2014; Road Transport (Vehicle Registration) Regulation 2017

Commencement: Published on the NSW Legislation Website22 October 2021;

Commenced 22 October 2021

Industries: All Industries; Transport, Logistics and Warehousing

Keywords: Child Safety Harness; Road Rules; Motor Bike Helmets

Amendment Rule Located here.

The Road Amendment (Miscellaneous) Rule 2021 was published on the NSW Legislation Website on 22 October 2021 and commenced on 22 October 2021, amending the Road

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Rules 2014 in regard to child safety harnesses, motor bike helmets and not overtake turning

vehicle signage.

The object of Road Amendment (Miscellaneous) Rule 2021 is to:

• amend the Road Rules 2014 to:

o enable children who are at least 7 years of age but less than 16 years of age

to use an approved child safety harness or an approved Type G child

restraint; and

o allow the use of a do not overtake turning vehicle sign if it complies with VSB

12—National Code of Practice—Rear Marking Plates; and

o expand the list of approved standards for motor bike helmets; and

o remove a spent provision, and

• amend the Light Vehicle Standards Rules set out in the Road Transport (Vehicle

Registration) Regulation 2017, Schedule 2 to make a minor amendment to correct a cross-reference.

Go back to ‘In this alert’

NSW - Environmental Planning and Assessment Amendment (Short-term

Rental Accommodation) Regulation 2021

Relevance: New South Wales

Title of Instrument: Environmental Planning and Assessment Amendment (Short-term

Rental Accommodation) Amendment Regulation 2021

Amending: Environmental Planning and Assessment Regulation 2000

Commencement: Published on the NSW Legislation Website 9 April 2021; Commenced 1

November 2021

Industries: Government and Defence; Construction; Building & Property Support

Services; Accommodation and Food Services (Hospitality); Administration & Management

Services

Keywords: Environment and Planning; Planning Regulation; Short-term Rental

Accommodation; Fire Safety Standards

Amendment Regulations Located here.

The Environmental Planning and Assessment Amendment (Short-term Rental Accommodation) Regulation 2021 was published on the NSW Legislation Website on 9 April

2021 and commenced on 1 November 2021, introducing a new statewide policy for Short-Term Rental Accommodation (STRA), which supersede all previous short-term accommodation planning laws in NSW including existing ad hoc local council regulations on

the subject matter.

The Environmental Planning and Assessment Amendment (Short-term Rental Accommodation) Regulation 2021 amends the Environmental Planning and Assessment Regulation 2000 to prohibit a dwelling from being used for the purpose of short-term rental

accommodation, even if that use is otherwise permissible, unless:

• the dwelling complies with certain fire safety and evacuation controls; and

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• the dwelling is registered on the register established by the Planning Secretary on

the NSW planning portal.

The Amendment Regulation also revises the location of certain references to offences under the Environmental Planning and Assessment Regulation 2000 so that the maximum penalties for the offences are attributed to the correct enabling provision.

The Amendment Regulation introduces a new Short-term Rental Accommodation Fire Safety

Standard which sets out the minimum fire safety and evacuation requirements for dwellings used for the purpose of short-term rental accommodation, and requires the Planning Secretary to establish and maintain on the NSW Planning Portal a register of dwellings used

for the purpose of short-term rental accommodation, as provided for in the Code of Conduct. In particular, the register is to include a description of how a dwelling used for the purpose

of short-term rental accommodation complies with the new fire safety standard.

A person who proposes to provide a dwelling for the purposes of short-term rental accommodation must apply to the Planning Secretary for the dwelling to be registered on the register and pay a $65 registration fee.

A person who proposes to provide a dwelling for the purposes of short-term rental

accommodation must apply to the Planning Secretary for the dwelling to be registered on the register and pay a $65 registration fee.

Short-Term Rental Accommodation Fire Safety Standards

The STRA planning policy framework includes the new Short-term Rental Accommodation fire safety standards (fire safety standards). The fire safety standards have been revised in

response feedback received on the exhibited standards and are considered to strike an appropriate and reasonable balance between the need for higher safety requirements and cost prohibitive safety requirements.

Dwellings proposed to be used for STRA are required to comply with the new fire safety

standards. The fire safety standards are enacted by the EP&A Regulation which:

• introduce minimum fire safety standards for STRA dwellings and associated penalty

notice offences for non-compliance;

• require all STRA dwellings to comply with the relevant fire safety standards,

including the requirement for all STRA dwellings to an evacuation plan and

interconnected smoke alarms; and

• require all STRA dwellings to be registered on the Government-run STRA register to confirm compliance with the new fire safety standards.

STRA hosts will also be required to ensure each STRA dwelling provides an information

sheet on general emergency advice that provides advice to STRA guests regarding:

• what does a total fire ban mean and what you can and can’t do on these days?

• what do different fire warning levels mean?

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• information on emergency service broadcasts and contacts.

The Short-term Rental Accommodation Fire Safety Standard requires all STRA dwellings to comply with upgraded and stricter fire safety standards, including but not limited to:

• Installation of an evacuation plan;

• Installation of interconnected smoke alarms;

• Registration with the NSW Government-mandated STRA register to confirm

compliance with the new fire safety standards;

• Provision of an information sheet by STRA hosts to guests on general emergency

advice regarding the meanings of total fire ban, different fire warning levels and

emergency service broadcasts and contacts etc; and

• Introduction of minimum fire safety standards for STRA dwellings and associated penalty notice offences for non-compliance.

Class 2 and Class 4 dwellings will require things such as the installation of a fire extinguisher and fire blanket in the kitchen.

Fire Safety requirements for STRA dwellings

Dwelling Type Standard

All dwellings Mains-powered smoke alarms or long life, sealed battery powered

smoke alarms in:

• dwelling floor levels containing bedrooms, every corridor or hallway associated with a bedroom, or if there is no corridor or hallway, in an area between the bedrooms and the remainder if

the building; and • each other storey not containing bedrooms.

Smoke alarms must comply with AS 3786.

Smoke alarms must be interconnected where there is more than one alarm. Wireless interconnected smoke alarms are permitted.

An Evacuation Plan and signage to familiarise guests with the exit

system, including the national emergency services number (000) and advice for guests to download the Emergency+ app.

Dwellings in multi-unit

buildings only (Dwellings in

Class 2 and Class 4 buildings)

Entry doors that can be opened from inside the dwelling without a key

Fire extinguisher and fire blanket in the kitchen

Dwellings in multi-unit

An inter-connected heat alarm in the garage

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buildings only (Dwellings in Class 2 and

Class 4 buildings)

To clarify: a heat alarm is required where there is an approved secondary dwelling such as a ‘Fonzie flat’ or studio above the garage of the main dwelling. A standalone dwelling with a garage does not

require a heat alarm in the garage.

All An Information Booklet/Advice Sheet on general emergency advice for the STRA and its location.

All STRA hosts and guests are also encouraged to download an appropriate emergency application to their mobile phones that

provides sufficient information on potential environmental hazards for the location the STRA.

For example:

• ‘Fires near Me’ app: developed by NSW Rural Fire Service to provide warnings about bush fires and other incidents.

Further information can be accessed here.

Environmental Planning and Assessment Amendment (Short-term Rental

Accommodation) Amendment Regulation 2021

The Environmental Planning and Assessment Amendment (Short-term Rental Accommodation) Amendment Regulation 2021 was published on the NSW Legislation

Website on 28 July 2021 and commenced on 28 July 2021, amending the Environmental Planning and Assessment Amendment (Short-term Rental Accommodation) Regulation

2021 postponing the commencement of the Environmental Planning and Assessment Amendment (Short-term Rental Accommodation) Regulation 2021 to 1 November 2021.

The Environmental Planning and Assessment Amendment (Short-term Rental

Accommodation) Regulation 2021 was previously planned to commence 30 July 2021.

Go back to ‘In this alert’

NZ - Pae Ora (Healthy Futures) Bill

Relevance: New Zealand

Title of Instrument: Pae Ora (Healthy Futures) Bill

Amending: Consequential Amendments – See Bill

Commencement: Introduced 20 October 2021; First Reading 27 October 2021; Referred

to Pae Ora Legislation Committee

Industries: Health Care, Aged Care & Social Assistance Services

Keywords: Public Health; Primary Health Care; Maori Health Authority

Bill Located here.

The Pae Ora (Healthy Futures) Bill was introduced on 20 October and referred to Pae Ora

Legislation Committee for consideration and report by 27 April 2022. The Bill provides for a new structure and new accountability arrangements for the publicly-

funded health system, in order to protect, promote, and improve the health of all New Zealanders.

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The Bill will replace the 20 District Health Boards with Health New Zealand (a new Crown

organisation) to provide a national health service with a strong focus on primary health care. It also establishes an independent Māori Health Authority to work in partnership with

Health New Zealand. The Bill recognises the role of Iwi-Māori Partnership Boards for the first time and also

establishes a hauora Maori advisory group to advise the Minister of Health on exercising powers in relation to the Maori Health Authority.

It also establishes an expanded Public Health Agency within the Ministry of Health to lead public health strategy, as well as an expert advisory Committee on public health.

Clause 3 of the Bill sets out its purpose, as follows:

The purpose of this Act is to provide for the public funding and provision of services in order

to:

• protect, promote, and improve the health of all New Zealanders; and

• achieve equity by reducing health disparities among New Zealand’s population

groups, in particular for Māori; and

• build towards pae ora (healthy futures) for all New Zealanders.

According to the Explanatory Note the ‘Bill disestablishes district health boards and the Health Promotion Agency. Their assets, liabilities, contracts, and employees will transfer to

new entities. All transferring employees will retain their existing Terms and Conditions of employment on transfer, including arrangements that had been specific to particular district

health boards. Health New Zealand

The Bill establishes Health New Zealand, a new Crown agent to lead system operations, planning, commissioning and delivery of health services, working with the Māori Health Authority. Health New Zealand will establish localities to plan and commission primary and

community health services effectively and engage with communities at the appropriate level. This will reduce system complexity and enable consistency, a population health focus,

and meaningful community and consumer participation in the planning, delivery, and monitoring of health services.

Māori Health Authority

The Bill establishes the Māori Health Authority to drive improvement in hauora Māori. The Authority will be an independent statutory entity with clear accountabilities to both Māori

and the Crown. It will co-commission and plan services with Health New Zealand, commission kaupapa Māori services, and monitor the performance of the system for Māori. The Authority will work with the Ministry of Health to prepare national strategies and provide

advice to the Minister. The Bill also requires the Minister to establish a Hauora Māori advisory committee to advise on the exercise of Ministerial powers in relation to the Authority

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Iwi-Māori partnership boards

The Bill provides a statutory purpose and framework for recognising iwi-Māori partnership boards as a vehicle to exercise tino rangatiratanga and mana motuhake at the local level. The interim Māori Health Authority is leading a process of engagement to advise on the

specific functions and powers the partnership boards should have, and changes are anticipated during the passage of the legislation.

Public health

The Ministry of Health will continue to act as chief steward of the health system with a focus on strategy, policy, regulation, and monitoring. A new Public Health Agency will be

established as a business unit within the Ministry of Health to provide system leadership for public health and advise the Director-General on public health matters. The role of the

Director of Public Health as a system leader will be strengthened. The Bill also requires the Minister to establish an expert advisory committee to provide independent advice on issues relating to public health.

Strategic, accountability, and monitoring documents

The Bill establishes a more cohesive system focused on long-term strategic direction and

population health needs, providing for a number of key health system strategic, accountability, and monitoring documents:

• the Government Policy Statement on Health, which will set out the Government’s

overall direction, priorities, and objectives for the health system. It must be issued

by the Minister at intervals no longer than 3 years; and

• National health strategies—the New Zealand Health Strategy will provide a framework for the overall 5–10 year direction of the health system and must be prepared and determined by the Minister. The Minister must also prepare and

determine Hauora Māori, Pacific Health, and Disability Health strategies that include specific consideration of outcomes and performance for Māori, Pacific, and disabled

peoples; and

• the New Zealand Health Plan, which will set the operational direction for the system

and is to be jointly prepared by Health New Zealand and the Māori Health

Authority; and

• locality plans, which will assess health needs at the local level and are to be jointly

agreed by Health New Zealand and the Māori Health Authority; and

• the New Zealand Health Charter, which will provide common values, principles, and

behaviours for organisations and workers in the health system; and

• the Code of Consumer Participation, which will support consumer participation and

enable the consumer voice to be heard.

Continuation of some existing statutory provisions

Part 3 of the Bill continues Pharmac, the New Zealand Blood and Organ Service, and the Health Quality and Safety Commission (HQSC) They will continue to exercise their current

functions, subject to the accountability and monitoring requirements in the Bill, and minor amendments to reflect a stronger role for HQSC in supporting consumer engagement.

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Part 3 also continues provisions relating to ministerial committees. Part 4 continues general

administrative requirements that apply to health entities.

Schedule 1 set out transitional, savings and related provisions. This includes the transfer of district health board assets and liabilities. Schedules 4 and 6 replicate relevant schedules of the New Zealand Public Health and Disability Act 2000.’

Commentary

Health Minister Andrew Little, stated the following:

‘We are fixing a public health system that has, for far too long, failed Māori and

many others who have been left out…This Government is committed to building a new health system that provides better national coordination and more consistent support, so all New Zealanders can get the health care they need no matter who

they are or where they live…The special Select Committee will ensure we draw on a wide range of strengths, knowledge and perspectives when it comes to the next

stages of the health reforms.’ Associate Health Minister (Māori Health) Peeni Henare, stated the following:

‘The Māori Health Authority is about transforming Māori health outcomes which will

be a game changer for our people…This is our chance to address the disproportionate health inequities that have significantly affected our Māori communities. When we put people at the centre of the healthcare experience it is

more likely that people including Māori will reach out when they need to - this could save more lives.’

Go back to ‘In this alert’

QLD - Resources and Other Legislation Amendment Act 2021

Relevance: Queensland

Title of Instrument: Resources and Other Legislation Amendment Act 2021

Amending: Mineral Resources Act 1989; Petroleum Act 1923; South-East Queensland

Water (Distribution and Retail Restructuring) Act 2009; Transport Operations (Passenger

Transport) Act 1994; Water Supply (Safety and Reliability) Act 2008; Coal Mining Safety

and Health Act 1999

Repealing: Personalised Transport Ombudsman Act 2019

Commencement: Published on the Queensland Legislation Website 20 October 2021;

Commenced 20 October 2021

Industries: Mining

Keywords: Transport and Resources Committee; Legal Standing; Production Leases

Amendment Act Located here.

The Resources and Other Legislation Amendment Act 2021 was published on the Queensland Legislation Website on 20 October 2021 and commenced on 20 October 2021,

extending transitional arrangements for statutory role requirements for coal mining operations that would otherwise come into effect on 25 November 2021. The extension provides further time so implementation challenges identified by industry may be

addressed.

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The amendments achieve the objectives by extending the period for compliance

with the statutory office holder requirements under the Coal Mining Safety and Health Act 1999 by 12 months to subsequently take effect from 25 November 2022.

The extended transitional timeframe time will enable industry stakeholders to address identified implementation challenges.

The Resources and Other Legislation Amendment Act 2021 makes a number of amendments

that will provide certainty to resource authority holders and ensure existing rights and interests are maintained.

The Amendment Act also enhances the water restrictions compliance and enforcement framework by ensuring water restrictions can equitably be investigated and enforced across

the South East Queensland region. It also excludes cyber security measures, reported to the Water Supply Regulator, from being made publicly available. This will mitigate the risks of malicious attacks on water service providers and water supply schemes.

The purpose of the Amendment Act is:

• to clarify the legal standing of certain historically granted tenures, activities and

entitlements under the Mineral Resources Act 1989 and Petroleum Act 1923;

• to repeal the Personalised Transport Ombudsman Act 2019 and make minor

consequential amendments to the Transport Operations (Passenger Transport) Act

1994;

• to ensure water restrictions can be equitability investigated and enforced across the South East Queensland region by amending the South East Queensland Water

(Distribution and Retail Restructuring) Act 2009 to align with the powers local

Government water service providers have under the Local Government Act 2009;

• to exclude cyber security measures, reported to the Water Supply Regulator, from being made publicly available to mitigate the risk of malicious attacks on water

service providers and water supply schemes by amending the Water Supply (Safety and Reliability) Act 2008.

Coal Mining Safety and Health Act 1999

The amendments achieve the objectives by extending the period for compliance with the statutory office holder requirements under the Coal Mining Safety and Health Act 1999 by 12 months to subsequently take effect from 25 November 2022. The extended transitional

timeframe time will enable industry stakeholders to address identified implementation challenges.

• Section 319 of the Coal Mining Safety and Health Act 1999 amended so that the

deferral of the requirement under Sections 54, 57, 59, 60, 61 and 61A of the Act

for coal mine operators to ensure employees are appointed to statutory office roles is extended by 12 months to 25 November 2022. This means that there will be a

total of 30 months from the original commencement date of these obligations, before they need to be complied with. This clause responds to stakeholder concerns about not being able to meet the original timeframes. This amendment will provide

further time so implementation challenges identified by industry may be addressed.

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• Section 320 of the Coal Mining Safety and Health Act 1999 so that if the appointee

to a statutory office as identified in Sections 54(5), 57(2), 59(2), 60(12), 61(4) or 61A(5) of the Act is not an employee of a coal mine operator, the appointee is

taken to hold a valid appointment only until 25 November 2022; instead of the original 18-month timeframe which ended on 25 November 2021. This clause responds to stakeholder concerns about not being able to meet the original

timeframes. This amendment will provide further time so implementation challenges identified by industry may be addressed.

Mineral Resources Act 1989

The amendments validate certain mining leases that were granted between the

commencement of the Mineral Resources Act 1989 and 2010, for which there may have been some deficiencies in the administrative process relating to the formal issuing of lease instruments.

Petroleum Act 1923

The amendments also address issues in relation to authorities to prospect and leases granted under the Petroleum Act 1923. In particular, they seek to:

• Clarify that a production lease with a validly made application for renewal under the Petroleum Act 1923 continues in force until the application is decided or is

otherwise resolved; and

• Provide that authorities to prospect which are subject to an application for a

production lease will continue in force if the lease application remains undecided on 1 November 2021. They also clarify that the associated production lease

applications can also be decided after 1 November 2021 if required. South East Queensland Water (Distribution and Retail Restructuring) Act 2009

The Water Supply (Safety and Reliability) Act 2008 enables water service providers to set restrictions for the volume of water, hours of use and the way water is used. It is an offence to contravene a water service provider’s water restriction with penalties attached. The

purpose of the South East Queensland Water (Distribution and Retail Restructuring) Act 2009 is to facilitate the restructuring of the water industry in South East Queensland and

improve water services and wastewater services to customers in response to the Millennium Drought.

The Amendment Act provides investigation and compliance powers for water restrictions to the distributor retailers in the South East Queensland Water (Distribution and Retail

Restructuring) Act 2009. The powers available to distributor-retailers will align with powers local Government water service providers already have under the Local Government Act 2009. Equitable powers between all water service providers will ensure consistency in the

imposition, investigation and enforcement of water restrictions.

Water Supply (Safety and Reliability Act) 2008

In 2017, the Queensland Audit Office conducted an audit to assess water service providers’ ability to identify and manage the risks associated with monitoring, treating and distributing drinking water in their service areas. To action the recommendations from the audit, the

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water supply regulator (the Chief Executive responsible for administering the Water Supply

(Safety and Reliability Act) 2008) issued a report requirement notice to require cyber security information and metrics to be included in key documents, such as a water service

provider’s drinking water quality management plan and annual reporting requirements. In September 2019, when the first annual reports with the new cyber security information

were required, it was identified there was significant risk to urban water security throughout Queensland. The risk was the result of key water service provider documents, which now

contained highly sensitive cyber security information, being required to be made publicly available under Sections 575 and 575A of the Water Supply (Safety and Reliability) Act 2008.

The amendments remove the current requirement for water service providers to make

publicly available highly sensitive cyber security information and reporting metrics.

Legal standing of historical leases

The amendments clarify the legal standing of certain leases approved between 1989 to 2010 under the Mineral Resources Act 1989 and the Petroleum Act 1923. The amendments clarify that leases issued without an instrument of lease are valid and have always been valid.

Expiry of authorities to prospect (ATPs)

The amendments to defer the expiry of existing authorities to prospect (ATPs) that are

subject to production lease applications.

This would mean ATPs due to expire on 1 November 2021 will remain valid until a decision is made on the lease applications.

Renewal of production leases

Under the proposed amendments, if a company has made a valid application to renew a production lease under the Petroleum Act 1923 before the lease expires, that lease will

remain in force beyond its expiry date until a decision is made on the renewal. The proposed amendments do not provide any additional rights or entitlements. They simply

provide additional time for a decision to be made.

Commentary

Resources Minister Scott Stewart said the Resources and Other Legislation Amendment Bill 2021 would clarify some minor administrative aspects of mining and petroleum leases.

‘The key purpose of the proposed amendments is to provide certainty to stakeholders and ensure existing rights and interests are maintained…Importantly,

the amendments made as part of the Bill do not provide any new rights or obligations for existing petroleum tenure holders or holders of mining leases.’

Mr Stewart went on to state that the amendments would clarify that any leases approved between 1989 and 2010 under the Mineral Resources Act 1989 and were not issued a hard

copy instrument of lease are ­– and always have been – considered valid.

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‘This would extend to any approvals and agreements associated with the mining

lease, such as an environmental authority’ he said.

Existing holders of these mining leases and associated environmental authorities will continue to be able to operate – this amendment simply clarifies that these leases have been and continue to be valid.

‘Also, we are making clear that if a company has made a valid application to renew a production lease under the Petroleum Act 1923 prior to it expiring, that lease

remains valid while a decision is made on the renewal…The amendments will also ensure that sufficient time is available for key production lease applications to be

appropriately considered in the context of broader government policy commitments.’

In some cases, companies hold authorities to prospect (ATP) under the Petroleum Act 1923

which are due to expire on 1 November 2021.

‘A number of these ATPs are in the Lake Eyre Basin, for which the government has

committed to consult on how an appropriate balance of environmental and economic considerations can be achieved in the Basin…The amendments will allow government the time it needs to make these decisions for these ATPs…Importantly

the amendments do not put any onus on government to approve the applications prior to policy positions being decided.’

Go back to ‘In this alert’

QLD - Transport Legislation Amendment Regulation (No. 2) 2021

Relevance: Queensland

Title of Instrument: Transport Legislation Amendment Regulation (No. 2) 2021

Amending: Traffic Regulation 1962; Transport Operations (Marine Safety) Regulation

2016; Transport Operations (Road Use Management—Accreditation and Other Provisions)

Regulation 2015; Transport Operations (Road Use Management—Driver Licensing)

Regulation 2021; Transport Operations (Road Use Management—Vehicle Standards and

Safety) Regulation 2021

Commencement: Published on the Queensland Legislation Website 22 October 2021; See

Commencement Below

Industries: Transport, Logistics and Warehousing

Keywords: Marine Safety; Road Use Management; Driver Licensing; Vehicle Standards

and Safety; Occupational Health and Safety; Dangerous Goods and Explosives

Amendment Regulations Located here.

The Transport Legislation Amendment Regulation (No. 2) 2021 was published on the Queensland legislation website on 22 October 2021 and commences, as follows:

• 1 November 2021: Part 2;

• 27 November 2021: Part 6;

• 22 October 2021: the remainder.

The purpose of the Transport Legislation Amendment Regulation (No. 2) is to:

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• amend the Transport Operations (Marine Safety) Regulation 2016 (Marine Safety

Regulation) to ensure that the established pilot boarding grounds in North

Queensland no longer fall within compulsory pilotage areas;

• amend the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2021 (Vehicle Standards Regulation) to provide that the term of

a certificate of inspection (COI) for all COI vehicles is 12 months (with the

exception of heavy primary production vehicles);

• amend the Vehicle Standards Regulation to provide that an approved examiner may approve an inspection certificate for particular COI vehicles currently required to be

inspected by a Department of Transport and Main Roads' (TMR) transport inspector;

• make a small number of minor clarifications in the Vehicle Standards Regulation;

• amend the Transport Operations (Road Use Management—Accreditation and Other

Provisions) Regulation 2015 (Accreditation Regulation) to remove the requirement

for assessment and workplace training qualifications for an accredited rider trainer;

• amend the Traffic Regulation 1962 (Traffic Regulation) to provide that the Chief Executive can sign a certificate stating that a document is a copy of a part of the

Traffic Camera Coding Manual; and

• amend the Transport Operations (Road Use Management—Driver Licensing)

Regulation 2021 (Driver Licensing Regulation) to make a consequential amendment to reference certain sections of the TORUM Act following the commencement of the

relevant provisions in the Transport Legislation (Road Safety and Other Matters) Amendment Act 2019.

The Explanatory Notes set out the achievement of policy objectives of the Amendment

Regulation, as follows:

‘Compulsory pilotage areas

Under the Marine Safety Act, a pilot is a licensed person who has the conduct of a

ship when onboard, even though they do not belong to the ship. Pilots possess local knowledge of the particular waterway in which they operate, such as its depth, currents and hazards. They have the expertise to manoeuvre ships through

dangerous or congested waters, such as harbours or river mouths. It is an offence for a person to navigate certain ships in a compulsory pilotage area unless the

person uses the services of a pilot.

Pilot boarding grounds are locations where pilots can safely board ships requiring

their services. Pilot boarding ground locations are determined based on safety factors such as the particular marine environment and the size of the ship being boarded. For example, the pilot boarding ground for a large ship may be located

further out to sea, whereas a pilot boarding ground for a small tug may require more sheltered waters to board safely.

Currently, there are a number of pilot boarding grounds located within compulsory pilotage areas, as described in Schedule 3 of the Marine Safety Regulation. This may require a ship's Master to contravene the requirements of the Marine Safety

Act, because the ship must enter a compulsory pilotage area to get to the pilot boarding area to allow the pilot to board.

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The Amendment Regulation amends the following compulsory pilotage areas to

ensure that the established pilot boarding grounds no longer fall within those areas:

• Gladstone pilotage area;

• Abbot Point pilotage area;

• Townsville pilotage area;

• Lucinda pilotage area;

• Weipa pilotage area;

• Amrun pilotage area; and

• Karumba pilotage area.

Certificate of inspection currency (public passenger vehicles)

COI vehicles are vehicles which present a higher risk if not properly maintained.

This includes, for example, heavy vehicles, licensed tow trucks, and vehicles that provide a public passenger service. These COI vehicles are required to have programmed safety inspections to ensure the vehicle meets minimum vehicle safety

standards.

In relation to public passenger vehicles, the Vehicle Standards Regulation currently

provides that personalised transport vehicles (taxis, limousines and booked hire vehicles) require an inspection every 12 months, compared to other public passenger vehicles (for example, buses) which require an inspection every six

months.

To align the remaining inspection requirements, the Amendment Regulation amends

the Vehicle Standards Regulation to provide that the inspection requirement, for all COI vehicles, including all public passenger vehicles, is 12 months (with the

exception of heavy primary production vehicles, where the COI will remain current for 2 years).

Inspections for certain heavy vehicles garaged in exempt areas

Registered COI vehicles require periodic inspections to ensure they meet minimum

safety standards. A COI may be issued by a TMR Authorised Officer for any COI vehicle. However, TMR policy is to outsource inspections for low to medium risk

vehicles to a private sector approved examiner at an approved inspection station. Private sector approved examiners are restricted from inspecting registered vehicles that are classified as high risk, which includes heavy passenger transport vehicles,

trucks over 16 tonne and trailers over 10 tonne.

An amendment to the Vehicle Standards Regulation will extend the vehicles that an

approved examiner is able to inspect to include any registered heavy vehicle, regardless of mass, if the vehicle's garage address is in an exempt area (which are particular regional areas listed in the Vehicle Standards Regulation). Vehicles that

are only used in exempt areas are not required to have a COI, but if a vehicle is going to be used outside an exempt area then a COI is required. The amendment is

intended to reduce the distance that heavy vehicles may need to be taken and reduce the service delivery burden on TMR, as an approved inspection station will

often be more accessible than a TMR inspection centre.

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Minor clarifications in the Vehicle Standards Regulation

The exempt areas, as listed in Schedule 2, Item 1 of the Vehicle Standards Regulation, have been amended to reflect that both the Torres and Torres Strait Island local government areas are exempt areas (previously only the Torres local

government area was listed as an exempt area).

In addition, two minor clarifications were made to the drafting of Sections 67 and

111 the Vehicle Standards Regulation.

Accredited rider trainer assessment and workplace training qualifications

The Q-Ride scheme provides the main avenue for obtaining a motorcycle licence in Queensland. QRide motorcycle training and assessment is provided by registered

service providers who employ, or who are, accredited rider trainers.

The assessment and workplace training qualifications were introduced as a

requirement for rider trainer accreditation when the Q-Ride scheme commenced in 2001. In 2016, a standardised training and assessment program for Q-Ride (the Q-

Ride program) was introduced as part of a broad range of reforms to the motorcycle licensing system in Queensland. The Q-Ride program prescribes the training and assessment content, method of delivery, and what and how a Q-Ride

accredited rider trainer must assess to determine a learner rider's competency. This now covers many of the same elements as the assessment and workplace training

courses.

The Amendment Regulation amends section 34 of the Accreditation Regulation to remove the obsolete requirement for an accredited rider trainer to successfully

complete an approved training course in assessment and workplace training.

Certificate stating that a document is a copy of a part of the Traffic Camera Coding

Manual

In July 2021, the Transport Legislation (Distracted Driver and Other Matters) Amendment Regulation 2021 was made to facilitate camera enforcement of mobile phone and driver-related seatbelt offences.

The introduction of camera enforcement of mobile phone and driver-related seatbelt offences requires a number of elements to be proven to allow for successful

prosecution, this includes that information contained in the data block on an image is consistent with what appears in the Traffic Camera Coding Manual (the TCCM).

The Traffic Regulation provides that, in a criminal proceeding, a certificate purporting to be signed by the Commissioner of the Queensland Police Service stating a document is a copy of a part of the TCCM is evidence of that fact.

However, as TMR will be involved in the prosecution of the new camera detected mobile phone and seatbelt offences, an amendment provides for the chief executive

to also be able to issue certificates under section 212(2) of the Traffic Regulation. However, the chief executive (or delegate) will only sign certificates for camera detected mobile phone and seatbelt offences, while the Commissioner (or delegate)

will continue signing certificates for all other matters in the TCCM.

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Consequential amendment to the Transport Operations (Road Use Management—

Driver Licensing) Regulation 2021 (Driver Licensing Regulation)

Section 390 of the Driver Licensing Regulation references provisions of the TORUM Act which relate to the fees payable in Schedule 7 of the Driver Licensing

Regulation.

From 10 September 2021, following commencement of the Transport Legislation

(Road Safety) Act 2019, the following provisions of TORUM Act provide the power to prescribe the following fees in a regulation:

• Section 91B of the TORUM Act provides that a regulation may prescribe fees payable for a brief intervention education program for those convicted of a

drink driving offence.

• Section 91G of TORUM Act provides that an application to be exempted from

the requirement to undertake a repeat offender drink driving education program must be accompanied by the fee prescribed by regulation.

As these fees were included in the Driver Licensing Regulation on 10 September 2021, the Amendment Regulation will amend section 390 of the Driver Licensing Regulation to include reference to section 91B and 91G of the TORUM Act.’

The Transport Legislation Amendment Regulation (No. 2) 2021 provides the following benefits:

• ensuring that a ship's master can comply with their requirements relating to pilot

boarding grounds;

• simplifying vehicle inspection requirements by providing for consistent COI currency

for all public passenger vehicles;

• assisting those in remote areas of Queensland by providing that vehicles that are

garaged in exempt areas can be inspected by approved examiners;

• simplifying the legislation by removing an obsolete assessment and workplace

training requirement for accredited rider trainers; and

• assisting court efficiency by providing that the Chief Executive can sign evidentiary

certificates for new mobile phone and seatbelt cameras.

Go back to ‘In this alert’

SA - Rail Safety National Law (South Australia) (Alcohol and Drug Offence)

Amendment Act 2021

Relevance: South Australia

Title of Instrument: Rail Safety National Law (South Australia) (Alcohol and Drug

Offence) Amendment Act 2021

Amending: Rail Safety National Law (South Australia) Act 2012

Commencement: Gazetted 2 September 2021; Commenced 1 November 2021

Industries: Transport, Logistics and Warehousing

Keywords: Rail Safety National Law; Alcohol and Drug Offence; Rail Safety Workers

Amendment Act Located here.

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The Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Act

2021 was gazetted on 2 September 2021 and commenced on 1 November 2021, amending the Rail Safety National Law (South Australia) Act 2012 to make it clear that a rail safety

worker will be taken to be carrying out rail safety work when he or she has arrived at their place of work and has signed on and is available, or is otherwise on duty.

The Rail Safety National Law (South Australia) (Alcohol and Drug Offence) Amendment Act 2021 amends Section 128 (Offence relating to prescribed concentration of alcohol or

prescribed drug) the Rail Safety National Law (South Australia) Act 2012, as follows:

• Section 128(1) of the Act provides that it is an offence for a rail safety worker to

carry out or attempt to carry out rail safety work while the worker has the prescribed concentration of alcohol present in their blood, or a prescribed drug

present in their blood or oral fluid, or is under the influence of alcohol or drugs such that they are incapable of effectively discharging a function or duty of a rail safety

worker. The proposed amendment inserts new Subsection (1a) which provides that, for the purposes of this offence, a rail safety worker will be taken to be carrying out, or attempting to carry out rail safety work if the worker has arrived at work

and has signed on or is otherwise on duty, for the purposes of carrying out rail safety work.

Once the amendments commence Section 128 will appear as follows:

128—Offence relating to prescribed concentration of alcohol or prescribed drug

(1) A rail safety worker must not carry out, or attempt to carry out, rail safety

work—

(a) while there is present in his or her blood the prescribed concentration

of alcohol; or

(b) while a prescribed drug is present in his or her oral fluid or blood; or

(c) while so much under the influence of alcohol or a drug as to be incapable of effectively discharging a function or duty of a rail safety

worker.

Maximum penalty: $10,000.

Note—

In some participating jurisdictions, provision is made that, for the

purposes of this Law, a concentration of alcohol in a sample of a person's breath will be taken to indicate a concentration of alcohol in the person's blood.

(1a) For the purposes of Subsection (1), and without limiting the circumstances in which a rail safety worker will be taken to b carrying out, or attempting to carry

out, rail safety work, if a rail safety worker—

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(a) has arrived at the rail safety worker's place of work; and

(b) —

(i) has signed on for the purpose of carrying out rail safety work (in such manner as may be required by the practices and

procedures at the worker's place of work and however

described) and is available to carry out the rail safety work; or

(ii) is otherwise on duty for the purpose of carrying out rail safety work, then the rail safety worker will be taken to be

carrying out, or attempting to carry out, rail safety work.

(2) For the purposes of Subsection (1)(c), a person is incapable of effectively

discharging a function or duty of a rail safety worker if, owing to the influence of alcohol or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired (but this Subsection does not restrict in any

way the operation of Subsection (1)(c)).

(3) Subject to Subsection (4), it is a defence to a charge of an offence against

Subsection (1)(b) if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood.

(4) Subsection (3) does not apply if the defendant consumed the prescribed drug

believing that he or she was consuming a substance unlawfully but was mistaken as to, unaware of, or indifferent to, the identity of the prescribed

drug.

(5) For the purposes of this section—

prescribed concentration of alcohol, in relation to a rail safety worker,

means—

(a) any concentration of alcohol in the blood; or

(b) if some other concentration of alcohol is prescribed in the

national regulations (being a specified amount of alcohol in 100 millilitres of blood) for the purposes of this definition—that

concentration;

prescribed drug means—

(a) any of the following substances:

(i) delta-9-tetrahydrocannabinol;

(ii) Methylamphetamine (Methamphetamine);

(iii) 3,4-Methylenedioxymethylamphetamine (MDMA); and

(b) any other substance declared by the national regulations to be a

prescribed drug for the purposes of this section.

State Infrastructure and Transport Minister Corey Wingard told Parliament:

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‘The Rail Safety National Law (South Australia) (Alcohol and Drug Offence)

Amendment Bill 2021 clarifies that a rail safety worker will be taken to be carrying out rail safety work when he or she has arrived at their place of work and has

signed on and is available, or is otherwise on duty. The Rail Safety National Law establishes a co-regulatory system under which rail safety operators assess the risks associated with their railway operations, and then establish a safety

management system to manage those risks.

A worker who has been subject to alcohol and drug testing under Sections 126 and 127 of the National Law can only be prosecuted for an alcohol or drug offence under section 128 if they are carrying out or attempting to carry out rail safety work. It is

not always clear when a worker has begun rail safety work. If there is any ambiguity in relation to establishing whether the worker is carrying out or

attempting to carry out rail safety work, this can impact the regulator's ability to prosecute. There is no intention for this proposed amendment to cover workers who

have arrived at work but not signed on, that is, those who may be regarded as about to carry out rail safety work.

The Rail Safety National Law (NSW) 2012 and the Victorian Rail Safety National Law Application Act 2013 both define 'about to carry out rail safety work'. The proposed

amendments align with similar provisions in the Civil Aviation Safety Regulations 1998, which include offences for workers if they are present in the aerodrome testing area and are performing or available to perform a safety sensitive activity.

On 30 March 2021, infrastructure and transport ministers agreed to these

amendments, along with amendments to the national regulations dealing with exemptions from FOI laws. In September 2020, the National Law Maintenance Advisory Group was consulted on the drafting instructions for the bill. The group

comprises rail industry representatives as well as commonwealth, state and territory governments. No issues were raised and the bill was endorsed by the

Transport and Infrastructure Senior Officials' Committee in October 2020.’ Rail Safety National Law

The Rail Safety National Law was first enacted in South Australia and each State and

Territory has passed a law explaining that the Rail Safety National Law (being the schedule to the South Australian law) is the rail safety law in that State or Territory or replicates that

law. The law establishes the ONRSR as the body responsible for rail safety regulation in that State or Territory.

Go back to ‘In this alert’

29

TAS - Traffic Amendment (Personal Mobility Devices) Bill 2021

Relevance: Tasmania

Title of Instrument: Traffic Amendment (Personal Mobility Devices) Bill 2021

Amending: Traffic Act 1925

Proposed: Introduced to the Legislative Assembly 26 October 2021

Industries: Transport, Logistics and Warehousing

Keywords: Personal Mobility Devices; Transport; Motor Vehicles; Police; Australian Road

Rules

Amendment Bill Located here.

The Traffic Amendment (Personal Mobility Devices) Bill 2021 was introduced to the Legislative Assembly on 26 October 2021, proposing amendments to the Traffic Act 1925 to allow road managers (such as local Governments) to permit personal mobility devices

(PMDs) on roads that are speed limited to 50km/h in addition to local roads that will be permitted under subordinate regulations.

The amendments will also provide police with the power to seize and temporarily detain a PMD if they reasonably believe that it is being used contrary to the Road Rules, similarly

to current provisions for wheeled recreational devices such as skateboards and scooters.

Go back to ‘In this alert’

WA - Industrial Relations Legislation Amendment Bill 2021

Relevance: Western Australia

Title of Instrument: Industrial Relations Legislation Amendment Bill 2021

Amending: Courts and Tribunals (Electronic Processes Facilitation) Act 2013; Industrial

Relations Act 1979; Long Service Leave Act 1958; Minimum Conditions of Employment

Act 1993; Public and Bank Holidays Act 1972; Work Health and Safety Act 2020

Proposed: Introduced to the Legislative Assembly 20 October 2021

Industries: All Industries

Keywords: Occupational/Workplace Health and Safety; Employment and Industrial

Relations; Industrial Relations; Workplace Safety; Fair Work Commission

Amendment Bill Located here.

The Industrial Relations Legislation Amendment Bill 2021 was introduced to the Legislative Assembly on 20 October 2021, to implement the Government's election commitments to

make Easter Sunday a public holiday from 2022, and to introduce an entitlement to five days of unpaid family and domestic violence leave per year for all employees.

The new laws will also extend coverage of minimum conditions to domestic and support

workers employed directly by household employers, to ensure WA's employment laws apply to all employees in the State industrial relations system.

Other key provisions of the Bill are:

• provide the Western Australian Industrial Relations Commission the power to issue a stop-bullying order in relation to sexual harassment, consistent with the

Australian Human Rights Commission's 2020 Respect@Work Sexual Harassment

National Inquiry Report;

• introducing an equal remuneration jurisdiction for the WAIRC;

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• introducing penalties for non-compliance with employment laws that align with the

national industrial relations system and enhancing the powers of industrial

inspectors to ensure compliance;

• prohibiting an employer from forcing an employee to pay back part of their wages

('cash backs');

• addressing the lack of certainty for WA local Governments as to which industrial

relations jurisdiction applies, by taking steps to bring all local Governments under

the State industrial relations system;

• modernising the Long Service Leave Act 1958; and

• providing that WAIRC commissioners who qualify for appointment as a magistrate

be capable of appointment as an industrial magistrate.

The Amendment Bill proposes amendments to the following:

• Courts and Tribunals (Electronic Processes Facilitation) Act 2013;

• Industrial Relations Act 1979;

• Long Service Leave Act 1958;

• Minimum Conditions of Employment Act 1993;

• Public and Bank Holidays Act 1972.

The Amendment Bill also proposes consequential amendments to the Work and Safety Act 2020.

The Industrial Relations Legislation Amendment Bill 2021 is the State Government’s

response to the recommendations made by:

• the 2018 Ministerial Review of the State Industrial Relations System conducted by

former acting President of the Western Australian Industrial Relations Commission

(the Commission), Mark Ritter SC, and Stephen Price MLA; and

• the 2019 Inquiry Into Wage Theft in Western Australia conducted by former Chief

Commissioner of the Commission, Tony Beech.

The new laws, based principally on these recommendations, seek to protect

vulnerable workers, tackle wage theft and modernise Western Australian employment laws.

Ministerial Review of the State Industrial Relations System

The Ministerial Review made a suite of recommendations. The Bill implements the following recommendations:

• remove exclusions from the definition of employee;

• introduce a stop workplace bullying jurisdiction for the Commission;

• introduce an equal remuneration jurisdiction for the Commission;

• vary the scope of private sector awards to ensure that all State private sector

employees are covered by an award, other than those not traditionally award-

covered;

• modernise the Long Service Leave Act 1958 and introduce penalties for non-

compliance;

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• increase penalties for breaches of employment laws, strengthen industrial inspector

powers and enhance rights of authorised representatives;

• allow the Industrial Magistrates Court to treat illegal contracts of employment as valid (such as those involving visa holders working in contravention of visa

conditions);

• address the lack of certainty as to which industrial relations jurisdiction applies to

WA local Government; and

• increase the compulsory retirement age of commissioners from 65 to 70 years.

Inquiry into Wage Theft in Western Australia

The Inquiry into Wage Theft in Western Australia made a number of recommendations

relating to legislative reform. The Bill implements the following recommendations:

• a prohibition on:

o employers unreasonably requiring employees to spend, or ‘pay back’ to the

employer, their wages (colloquially known as ‘cash backs’);

o employers discriminating against employees because of their right to inquire

or complain about their employment conditions;

o employment being advertised at less than the applicable minimum wage for

the position;

o sham contracting arrangements;

• a successful claimant be able to recover legal costs in the case of systematic and

deliberate underpayments; and

• broader powers for industrial inspectors, including the power to post a notice at a

workplace outlining employment rights and obligations.

The Explanatory Memorandum provide the following overview of the key reforms of the

Amendment Bill:

‘Employee coverage 1. The Bill amends the definition of ‘employee’ in the IR Act and the MCE Act to

remove the following existing exclusions:

• from the IR Act definition – persons engaged in domestic service in a private

home;

• from the MCE Act definition:

o persons remunerated wholly by commission, percentage reward or

piece rates;

o persons with a disability in supported employment;

o persons appointed under the National Trust of Australia (W.A.) Act to

carry out the duties of wardens; and

• volunteers.

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2. These exclusions have been identified by the Commonwealth Government as

a barrier to Australia ratifying the International Labour Organization Protocol of 2014 to the Forced Labour Convention, 1930. The Protocol aims to support

the global fight against forced labour, people trafficking and modern slavery. The amendments will ensure that no category of employee is denied employment protections and therefore ensure that Western Australian laws

are compliant with the Protocol.

Private sector award scope

3. Some private sector awards are expressed to apply to an industry as

determined by the industry carried on by named employer respondents listed in the award. This is the industry of the named employers at the time an award was made. There are a number of issues which result from such award

scope clauses.

a) As an award ages and employers named in an award cease to exist, it becomes difficult to establish the exact nature of the industry carried on by the named employers at the time the award was made and consequently,

difficult to establish the scope of an award.

b) Some awards do not identify the industry carried on by a named employer

and instead include only a name – for example – ‘Brown and Co’. This makes determining the nature of the industry carried on by the employer, and

therefore the scope of the award difficult, if not impossible, particularly if

awards were made many years ago.

c) Awards made in past decades have not kept pace with new industries and so named respondent lists that have not been updated limit the scope of the

award. For example – the award applying to retail employees does not include a named employer operating a mobile phone business and so retail employees working in a mobile phone store are excluded from award

coverage.

d) Similarly, gaps in coverage occur where an employee performing a particular type of work in one industry is covered by an award but an employee performing the same type of work in another industry is not covered. For

example, a clerical employee working in a chiropractor’s clinic is currently covered by an award, while a clerical employee performing the same duties

in a physiotherapy clinic is not covered.

4. To address these deficiencies, the Bill amends the IR Act to prescribe how the

scope of an award is to be expressed when the Commission is varying its scope. This alternative expression of scope will ensure that awards relating to

a particular industry or occupation are truly ‘common rule’. That is, the award will apply to all employers and employees operating in a specified industry or employees employed in a specified kind of work. The amendments will also

ensure that no new private sector award can be made which determines its scope by the industry carried on by named employer respondents. This

approach to private sector award scope is consistent with s 143 of the FW Act and how coverage of national modern awards is expressed.

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5. To facilitate variations to private sector award scope clauses, the

amendments provide the Commission with a new power to vary scope of its own motion. This is in addition to its existing powers under s 40 of the IR Act

to vary an award’s scope on application, or make a General Order on application or of its own motion under s 50.

6. The provisions relating to private sector award scope clauses and variations of the Commission’s own motion will not apply to public sector awards or

enterprise awards. Employment records and pay slips

7. Division 2F of the IR Act sets out requirements regarding the keeping of, and

access to, employment records. The Bill amends Division 2F to introduce:

a) additional employment record keeping requirements;

b) a requirement for employers to issue pay slips containing prescribed

information;

c) a prohibition on an employer making an employment record or giving a pay

slip that the employer knows is false or misleading.

8. Employment records and pay slips are an important safeguard for both employers and employees to check that correct entitlements are being paid, thereby increasing the likelihood of compliance with employment laws.

9. The employment record requirements in Division 2F will replace those in s 44

and s 45 of the MCE Act. It is intended that all Western Australian employers in the State industrial relations system be covered by the same employment record and pay slip obligations, regardless of whether they are bound by an

award, industrial agreement, order of the Commission or the MCE Act. Furthermore, a number of the new requirements reflect those contained in

the FW Act and the FW Regulations, in order to create consistent obligations between State and national system employers.

Stop bullying and sexual harassment provisions 10. The Bill inserts stop bullying and sexual harassment provisions in new

Division 3AA. As recommended by the Ministerial Review, the stop bullying provisions are based on those contained in Part 6-4B of the FW Act in order

to provide Western Australian workers who fall within the State industrial relations system with similar rights as Western Australian workers who fall within the national industrial relations system.

11. A number of the definitions in the stop bullying and sexual harassment

provisions reflect the definitions of the same terms in the WHS Act. 12. The stop sexual harassment provisions are based on those inserted into the

FW Act by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, which implemented recommendations of the

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Australian Human Rights Commission’s ‘Respect@Work: Sexual Harassment

National Inquiry Report (2020)’.

13. The stop bullying and sexual harassment provisions will provide workers who are bullied or sexually harassed at work with an individual right of access to the Commission and will provide the Commission with the jurisdiction and

powers to deal with, and make orders in relation to, the worker’s bullying and/or sexual harassment allegations directly and promptly. The objective is

to provide a mechanism that will help prevent harm to a person’s health and safety due to workplace bullying or sexual harassment.

14. These provisions are intended to complement obligations in the WHS Act placed on a person conducting a business or undertaking to ensure, so far as

is reasonably practicable, the health and safety of workers at work in the business or undertaking.

15. These provisions are also intended to complement the rights and remedies an employee, person or worker has under the WHS Act or the EO Act. There is

nothing in the stop bullying or sexual harassment provisions that will prevent a worker from also making a complaint to WorkSafe or the Equal Opportunity

Commission regarding a workplace hazard relating to the same alleged bullying or sexually harassing behaviour. Similarly, it is intended that the Commission be able to deal with a bullying or sexual harassment application

notwithstanding that the worker has made a complaint to WorkSafe or the Equal Opportunity Commission. This recognises the complementary nature of

the provisions.

Equal remuneration

16. The Bill inserts equal remuneration provisions in new Division 3B of the IR Act. These will:

a) provide the Commission with the jurisdiction to make an equal remuneration

order on application to ensure an employee receives equal remuneration; and

b) require the Commission to issue an equal remuneration principle as part of

the statement of principles in each annual State Wage order. Concurrent appointment of commissioners as industrial magistrates

17. The Bill amends the IR Act to enable suitably qualified commissioners of the

Commission to be concurrently appointed as industrial magistrates. Commissioners who meet the qualifications for appointment as a magistrate under the Magistrates Court Act will be capable of appointment as an

industrial magistrate. Currently under the IR Act, only magistrates may be appointed as an industrial magistrate.

18. The Inquiry into Wage Theft identified the need to enable the IMC to deal

more expeditiously with underpayment claims. Enabling the concurrent

appointment of commissioners as industrial magistrates will improve the

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timeliness of matters before the IMC, as well as ensure industrial relations

expertise on the court.

Industrial organisations

19. Currently under the IR Act, the Registrar of the Commission may issue a

certificate under s 71(5) to a State organisation (a union) which declares that

the provisions of the IR Act relating to elections for office within a State organisation do not apply to the State organisation. This certificate is issued

where the federal counterpart of the State union (registered under the FW (Registered Organisations) Act) has a WA branch and the prescribed

requirements regarding rules of membership and offices are met. Although it is common for federally registered organisations of employees to have State branches, there has been some movement away from this form of structure.

20. The Bill amends the industrial organisation provisions in the IR Act to allow

the Registrar to issue a certificate under existing s 71(5) to a State organisation for which there is no WA branch registered under the FW (Registered Organisations) Act.

21. The amendments include provisions regarding the deeming of a federally

registered organisation by the CICS to be a State organisation’s counterpart federal body, and the conditions that must be satisfied in order for this to occur and before a s 71 certificate can be issued.

Employers declared not to be national system employers

22. Section 14(2) of the FW Act sets out a process for enabling certain

employers, including a local government, to be declared not to be a national

system employer. As identified by the Ministerial Review, ‘there is grave doubt about whether local governments in Western Australia will be held to

be trading corporations…the preponderance of judicial determinations on the issue suggest they are not. However, unless and until there is a decision of the High Court on the issue there will be legal uncertainty’.

23. The Bill inserts new Part 2AA into the IR Act to enable certain employers to

be declared not to be a national system employer, as provided by s 14(2) of the FW Act. It is intended that every Western Australian local government will be declared not to be a national system employer. Part 2AA sets out

transitional arrangements to move declared employers and employees from the national industrial relations system to the State system. The transitional

arrangements will recognise existing federal employment arrangements for a specified period, to give declared employers sufficient time to comply with the IR Act and other State industrial laws. The arrangements will also

preserve employees’ continuity of employment and entitlements accrued in the national industrial relations system.

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Penalties, enforcement tools and powers of inspectors

24. As recommended by both the Ministerial Review and the Inquiry into Wage

Theft, the Bill amends the IR Act to significantly enhance compliance and enforcement mechanisms. The current penalty levels and enforcement tools under the IR Act have not been changed in 19 years and are significantly

inferior to those under the FW Act.

25. The Bill amends Part III of the IR Act to increase the maximum pecuniary

penalty amounts under s 83 (for a contravention of an entitlement provision) and s 83E (for a contravention of a civil penalty provision). The amended

penalty amounts are broadly consistent with those under the FW Act for comparable contraventions.

26. A person who commits a ‘serious contravention’ will be liable to a maximum

penalty that is 10 times higher than the normal penalty amount. A serious contravention is one that is committed knowingly and forms part of a

systematic pattern of conduct.

27. A person who is ‘involved in’ a contravention committed by another person may be held liable under s 83 or s 83E. Among other things, a person held

accessorily liable under s 83 may be ordered to rectify any underpayments, as well as pay a pecuniary penalty.

28. The Bill inserts new Divisions 3 to 5 in Part III of the IR Act to provide industrial inspectors with a range of enforcement tools. As an alternative to taking enforcement proceedings in the IMC, inspectors will be able to:

a) issue a civil infringement notice for a contravention relating to employment records;

b) accept an enforceable undertaking in relation to a contravention of an entitlement provision or a civil penalty provision; and

c) issue a compliance notice for a contravention of an entitlement provision.

29. The Bill also amends s 98 of the IR Act to enhance the powers of industrial inspectors in the performance of their statutory functions. The Inquiry into

Wage Theft found ‘the role of State Industrial Inspectors and Fair Work Inspectors to be the single most important factor in the effective regulatory

response to wage theft’. Protection of employee rights

30. The Bill inserts new Part 6B in the IR Act to provide additional protections to

employees, as recommended by the Inquiry into Wage Theft. The protections are based on certain general protections in Part 3-1 of the FW Act and are civil penalty provisions for the purposes of s 83E of the IR Act.

31. An employer will be prohibited from taking ‘damaging action’ against an

employee because the employee is able to make an employment-related inquiry or complaint. ‘Damaging action’ includes dismissing an employee or altering an employee’s position to their disadvantage.

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32. An employer will also be prohibited from engaging in sham contracting

arrangements, such as dismissing an employee in order to engage them under a contract for services.

33. An employer who takes damaging action against an employee or who engages in sham contracting may be subject to a pecuniary penalty under s 83E. The IMC may also make an order to provide redress to the affected

employee (e.g. an order for reinstatement if the employee was dismissed from employment).

34. Finally, a person will be prohibited from advertising employment at a rate of pay that is less than the minimum wage applicable to the position under the

MCE Act or an industrial instrument.

Public and Bank Holidays Act 1972

35. The Bill amends the PBH Act to specify Easter Sunday as a public holiday throughout Western Australia. Easter Sunday is already a public holiday in

Victoria, New South Wales, Queensland and the Australian Capital Territory.

36. The Bill amends the PBH Act to ensure that State industrial instruments recognise Easter Sunday as a public holiday. This ensures that State system

employees immediately receive the benefits of the new public holiday, such as public holiday penalty rates. For national system employees, s 115(1)(b)

of the FW Act will give recognition to the new public holiday.

37. As many State industrial instruments substitute another day for a public holiday that falls on a weekend, the Bill will prevent substitution of Easter

Sunday. This will ensure that employees who are required to work on this culturally significant day are appropriately recompensed.

Long Service Leave Act 1958

38. The Bill amends the LSL Act to:

a) clarify the absences that do not break an employee’s continuous employment, and the absences that do and do not count towards the length

of an employee’s continuous employment. This includes specific provisions

relating to casual and seasonal employees, and apprentices;

b) clarify existing provisions relating to the cashing out of long service leave;

c) replace existing transmission of business provisions with transfer of business

provisions, based on the FW Act transfer of business provisions;

d) provide for increased flexibilities regarding the taking of long service leave;

e) enable a long service leave entitlement to be enforced under s 83 of the IR Act and so ensure that contraventions attract a penalty consistent with the treatment of contraventions of other minimum employment entitlements;

and

f) repeal spent provisions.

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Minimum Conditions of Employment Act 1993

39. The Bill amends the MCE Act to:

a) remove all exclusions to the definition of employee;

b) enable a minimum condition to be directly enforced;

c) include provisions relating to minimum wages for specified employees

with a disability;

d) include provisions relating to unreasonable requirements:

i. for a person to spend or pay an amount of money to an employer or a party related to the employer that is for the benefit of the employer

or a party related to the employer;

ii. for an employer to deduct an amount owing to an employee if the

deduction is for the benefit of the employer or a party related to the

employer;

e) include provisions relating to deductions or payments required of an

employee aged under 18 years;

f) remove the cap on personal leave for caring purposes;

g) include 5 days’ unpaid family and domestic violence leave;

h) repeal the record keeping requirements.

40. The Bill also amends s 7 and s 50A of the IR Act to include provisions relevant

to new Division 2 – Employees with disabilities in the MCE Act.’

Commentary

Industrial Relations Minister Stephen Dawson, stated the following:

‘This legislation implements recommendations from the 2018 Ministerial Review of the State Industrial Relations System and the 2019 Inquiry into Wage Theft in

Western Australia, which will increase protections for workers and help modernise the State industrial relations system…Making Easter Sunday a public holiday

recognises the cultural and religious significance of this day to many Western Australians…WA's employment laws do not currently apply to all employees in the State industrial relations system. The Bill removes the exclusions so domestic and

support workers employed directly by households will be entitled to minimum employment protections for the important work they do…By ending the outdated

exclusions, this Bill will remove the barrier to Australia ratifying the International Labour Organization Protocol of 2014 to the Forced Labour Convention, 1930 which

aims to support the global fight against modern slavery.’

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WA - Police Amendment (Compensation Scheme) Bill 2021

Relevance: Western Australia

Title of Instrument: Police Amendment (Compensation Scheme) Bill 2021

Amending: Industrial Relations Act 1979; Police Act 1892

Proposed: Introduced to the Legislative Assembly 21 October 2021

Industries: Government & Defence

Keywords: Industrial Relations; Police; Compensation Scheme; Work-Related Injury or

Illness

Amendment Bill Located here.

The Police Amendment (Compensation Scheme) Bill 2021 was introduced to the Legislative Assembly on 21 October 2021, proposing to establish a new compensation scheme for medically retired police officers.

The scheme has been specifically tailored for police, and ensures there is no reduction to

existing in-service and post-service entitlements for work-related illness or injury. Under the scheme, medically retired officers will be eligible for lump sum payments capped

at $239,179 and, in certain circumstances, the cap could increase by $179,384 to $418,563.

Usually, the lump sum payment will comprise an impairment payment and salary amount of up to twelve months' pre-retirement salary.

There will also be a payment of $16,743 for vocational support and retraining.

The caps and vocational rehabilitation payment are linked to State workers' compensation payments and indexed annually.

Officers who receive compensation will continue to have medicines and medical treatment costs covered under the current post-service medical benefits scheme.

The Bill fulfils an election promise and achieves what no Government has been able to do before - introduce a compensation scheme for medically retired police.

The Bill makes amendments to the Police Act to introduce the new police compensation

scheme. Additionally, a dispute resolution process is introduced for dealing with grievances in relation to certain evaluations carried out for the purposes of determining entitlements.

The Bill also makes amendments to the Industrial Relations Act 1979 to provide that Act with additional regulation-making powers relating to procedural matters and issues

necessary to give effect to the provisions of this Bill.

Commentary

WA Police Union Acting President Mick Kelly, stated the following:

‘The McGowan Government's introduction of its police compensation scheme bill

into Parliament is a landmark moment for the health and safety of Western Australia's police officers and their families…The scheme, coupled with the McGowan

Government's changes to the medical retirement process, will give financial and

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educational support to police officers who are injured in the line of duty and

consequently are unable to continue serving our community…Thanks to the McGowan Government, which voiced its support for such a scheme before it

secured office, medically retired police officers will be able to not only end their service with dignity and an exit payment but also receive monies towards vocational retraining…The WA Police Union commend the McGowan Government for

recognising the plight of our members, acting with compassion and righting the wrongs of many years of neglect.’

Go back to ‘In this alert’

WA - COVID-19 Response Legislation Amendment (Extension of Expiring

Provisions) Bill (No. 2) 2021

Relevance: Western Australia

Title of Instrument: COVID-19 Response Legislation Amendment (Extension of Expiring

Provisions) Bill (No. 2) 2021

Amending: Criminal Code Act Compilation Act 1913; Criminal Code Amendment (COVID-

19 Response) Act 2020; Emergency Management Amendment (COVID-19 Response) Act

2020

Proposed: Introduced to the Legislative Assembly 20 October 2021

Industries: Government & Defence

Keywords: COVID-19; Authorised Officers; Border Arrangements; Quarantining Measures

Amendment Bill Located here.

The COVID-19 Response Legislation Amendment (Extension of Expiring Provisions) Bill (No.

2) 2021 was introduced to the Legislative Assembly on 20 October 2021, proposing an Act to amend the Criminal Code, the Criminal Code Amendment (COVID-19 Response) Act 2020, and the Emergency Management Amendment (COVID-19 Response Act 2020 to

extend the operation of provisions relating to the COVID-19 pandemic for a further six months.

The extension will allow the McGowan Government to respond to the challenges of the pandemic in the short term, while vaccination rates increase, and also in the longer term as

we navigate a way forward.

The amendments give authorised officers the power to direct a person to take any action reasonably necessary to prevent, control or abate risks associated with COVID-19.

Importantly, they allow WA to implement its border arrangements, put in place quarantining measures that stopped the spread of the virus, and for contact tracing and physical

distancing measures in line with health advice. The penalties of up to 10 years in jail reflect the seriousness of deliberately coughing or

spitting on public officers who are trying to help keep the State safe.

The new Bill will seek to extend those necessary provisions for another six months from 4 January 2022 to 4 July 2022.

The Amendment Bill:

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• amends the Emergency Management Amendment (COVID-19 Response) Act 2020

to extend the sunset date that applies to Section 72A of the Emergency Management Act 2005 (EMA) so the powers under that provision are available for a

further 6 months beyond the current sunset date of 4 January 2022; and

• amends the Criminal Code Amendment (COVID-19 Response) Act 2020 to ensure that higher penalties continue to apply to serious assaults and threats against

public officers committed in the context of COVID-19 for a further 6 months beyond the current sunset date of 4 January 2022.

Commentary

Emergency Services Minister Reece Whitby, stated the following:

‘Extending the rolling State of Emergency to protect our State from the COVID-19 pandemic is not a decision the McGowan Government takes lightly, but we are in extraordinary times…This legislative framework has allowed our State to

successfully deal with the pandemic, protecting us from the Delta variant…It is vital that these powers continue for the health, safety and financial security of Western

Australians…The threat of COVID-19 is ever-evolving, and in a time of uncertainty and rapid change it is essential we have the ability to adapt to new threats quickly and protect the vulnerable and the frontline workers who keep us safe.’

Go back to ‘In this alert’

COVID Health Directives…

Public health orders relating to COVID-19 are available at:

• Australian Capital Territory

• New South Wales

• Northern Territory

• New Zealand

• Queensland

• South Australia

• Tasmania

• Victoria

• Western Australia

Due to the evolving nature of the COVID-19 pandemic and Government response strategies, public health orders and Government announcements are subject to frequent updates. Please note our advice is current as of 31 October 2021.

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ACT – The Public Health (Aged Care Workers and Visitors COVID-19 Vaccination)

Emergency Direction 2021 (No 3) commenced at 11:59 pm on 28 October 2021, repealing and replacing Public Health (Aged Care Workers and Visitors COVID-19 Vaccination)

Emergency Direction 2021(No 2). A worker at a residential aged care facility must not enter or remain on the premises of a residential aged care facility in the Australian Capital Territory unless:

• if the worker is entering the premises on or after 29 October 2021 but before 1 December 2021, the worker has received at least one dose of a COVID-19

vaccination; and

• if the worker is entering the premises on or after 1 December 2021, the worker

has received two doses of a COVID-19 vaccination. The operator of a residential aged care facility must take all reasonable steps to ensure that

a person does not enter or remain on the premises of the residential aged care facility if the person is prohibited from doing so under paragraph 1.

ACT – The Public Health (Mandatory Face Masks) Emergency Direction 2021 (No 4)

commenced at 9:30am on 29 October 2021, repealing and replacing Public Health (Mandatory Face Masks) Emergency Direction 2021 (No 3), easing face covering/mask rules.

ACT – The Public Health (Health Care and Support Workers COVID-19 Vaccination)

Emergency Direction 2021 commenced 11:59 pm on 15 October 2021, to prescribe that a worker for a health care facility must not work at the premises of a health care facility for work in the ACT unless:

• the work is done on or after 29 October 2021 but before 1 December 2021, the

worker has received at least one dose of a COVID-19 vaccination; and

• the work is done on or after 1 December 2021, the worker has received two doses

of a COVID-19 vaccination; or

• they are a permitted person or a worker who has been granted an exemption for

COVID-19 vaccination.

ACT – The Public Health (ACT School or Early Childhood Education and Care Workers COVID-19 Vaccination) Emergency Direction 2021 commenced at 11.59pm on 19 October 2021, requiring full vaccination against COVID-19 for staff working across early childhood

education and care services, primary schools, out of school hours care, and specialist and flexible education settings for the remainder of 2021. This also includes staff in preschool

to year 10/12 schools where they share a campus with those younger year groups. High school and colleges that don’t share a campus with primary school students are not covered by the mandate.

The vaccination mandate will apply to all workers in these schools and childcare settings,

including out of school hours care, who work directly with children, or are in regular contact with children. Permanent, temporary, casually employed, contracted or voluntary workers

will all be included, as well as people working in school canteens and uniform shops.

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These workers will be required to provide proof of vaccination to their employer and have

their first vaccination by 1 November 2021, and a second dose by 29 November 2021.

The public health direction won’t apply to people who might be on school sites but have no interaction with children, for example delivery drivers, tradespeople, or construction and maintenance workers.

ACT – The Public Health (Restricted Activities) Emergency Direction 2021 (No 5)

commenced at 3:00pm on 29 October 2021, repealing and replacing the Public Health (Restricted Activities) Emergency Direction 2021 (No 4), further easing COVID-19 related restrictions. Restrictions continue to be in place for some businesses. Mask wearing

continues to be required indoors, unless an exception applies

The ACT's Pathway Forward can be accessed here. Further information can be accessed here.

NSW – The Public Health (COVID-19 General) Order 2021 commenced on 11 October 2021, repealing and remaking the Public Health (COVID-19 Additional Restrictions for Delta

Outbreak) Order (No 2) 2021. The Order has been amended on 15 October 2021 at 6:22pm, 18 October 2021, 19 October 2021 at 4:57pm, 20 October 2021 at 5:23pm, 21 October

2021 at 8am and at 2.12pm and on 27 October 2021. The most recent amendments prohibit the provision, display or production of information or

evidence purporting to show a person is a fully vaccinated person, unless it is true and accurate.

The Order provides clarity regarding the roadmap to a COVID-normal society and specifically includes the freedoms granted to fully vaccinated individuals. In addition, the Order details

specific information regarding re-opening and rules which businesses are required to follow.

The Order eases a range of restrictions for people aged 16 or over who are fully vaccinated.

Restrictions remain on entering and leaving Greater Sydney.

The Order provide provision regarding:

• Closure of premises;

• Maximum number of persons permitted on premises;

• Fitted face coverings;

• Unvaccinated adults;

• COVID-19 Safety Plans;

• COVID-19 Safety Check-in;

• Among others.

The Order also incorporates matters that were in the Public Health (COVID-19 Safety) Order

2021 and the Public Health (COVID-19 Spitting and Coughing) Order (No 3) 2021 and repeals those Orders.

Further information can be accessed here and here.

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NSW – The Public Health (COVID-19 Vaccination of Education and Care Workers) Order

2021 commenced on 23 September 2021, requiring certain education and care workers to be vaccinated against COVID-19.

The Order requires vaccination of education and care workers, including teachers and education providers as well as:

• Workers who undertake maintenance at schools, asset workers that plan and

maintain school assets;

• Family day care;

• Non-Government school employees;

• Early childhood educators;

• Contractors engaged by schools and early education and care facilities;

• Drivers and Assisted Transport Support Officers engaged by DoE to provide

disability support services under the Assisted School Travel Program of the DoE;

• Vocational Education and Training providers working on school and early education

and care facility sites;

• NSW TAFE teachers and assessors that work on school and early education and care

facility sites;

• University practicum students;

• Disability support workers working on school or early education and care facility sites.

The Order requires these workers to have both doses of COVID-19 vaccination by 8 November 2021. An exemption is available for a worker if they are unable to be vaccinated

in the rare situation of a medical contraindication. Workers will be required to provide evidence of a medical contraindication via a certificate from a medical practitioner, in a form approved by the CHO, that specifies the medical contraindication.

Technical amendments were made to the Order on 20 October 2021 by the Public Health

Amendment (COVID-19 Definitions) Order 2021. NSW – The Public Health (COVID-19 Care Services) Order (No 2) 2021 commenced on 1

November 2021, repealing and replacing the Public Health (COVID-19 Care Services) Order 2021 with the following amendments:

• The No 2 Order no longer prohibits visitors under 12 years of age from visiting a

resident in a residential aged care facility;

• There will still be a 2 visitor per day limit for each resident. However, the limit will

not include up to 2 children under 12 years of age who accompany a fully vaccinated visitor. In addition, consistent with the Public Health (COVID-19 General) Order, the operator of the facility will have to consider the advice of the

CHO in relation to the management of visitors;

• The definition of a COVID-19 vaccine will mean a TGA recognised or approved vaccine. This will mean that if someone from overseas has been fully vaccinated

with a TGA recognised vaccine they may meet the directions relating to vaccination;

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• The definition of a medical contraindication certificate has been updated to mean a

certificate approved by the Chief Health Officer that certifies that a person cannot

have any approved vaccine available in NSW.

NSW - The Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 commenced 22 October 2021, repealing and replacing the Public Health (COVID-19

Vaccination of Health Care Workers) Order 2021, which deals with the vaccination of health care workers.

The Order directs that a "health care worker" must not work as a health care worker unless

they have received their first dose of a vaccine by 30 September with a second dose required by 30 November 2021 in order to continue to work as a health care worker.

Further information can be accessed here.

NT – The Directions for mandatory vaccination of workers to attend the workplace

commenced on 13 October 2021, mandating COVID-19 vaccination for all public-facing roles, including those likely to come into contact with a vulnerable person. The list of workplaces that will require a mandatory jab includes hospitality workers, bankers,

receptionists, hairdressers, barbers, beauty therapists and more.

NT – The COVID-19 Directions (No. 56) 2021: Directions for Freight Workers commenced

on 20 October 2021, mandating vaccination from freight workers entering the Northern Territory from 1 November 2021.

Further information can be accessed here and here.

NZ – The COVID-19 Public Health Response (Vaccinations) Amendment Order (No 3) 2021 commenced at 11.59 pm on 25 October 2021, amending the COVID-19 Public Health

Response (Vaccinations) Order 2021 requiring persons belonging to specified groups (affected persons) who carry out certain work to be vaccinated by 1 December 2021. This amendment came into effect on 25 October 2021 and applies to the health and disability

sector, education services and prisons.

Any unvaccinated workers who have previously been assigned to work in these settings will

need to discuss alternative options with their employers. They will not be able to continue to work in high-risk environments until they are vaccinated.

High-risk workers in the health and disability sector to be fully vaccinated by 1 December, 2021, and to receive their first dose by 30 October.

School and early learning staff and support people who have contact with children and

students to be fully vaccinated by 1 January, 2022, and to receive their first dose by 15 November.

The Order includes provisions regard:

• Affected persons working in health and disability sector;

• Affected persons working in prisons;

• Affected persons in affected education services;

• Duty on relevant PCBUs to keep vaccination records;

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• Enforcement.

Further information can be accessed here, here and here.

NZ – The COVID-19 Public Health Response (Alert Level Requirements) Order (No 12) Amendment Order (No 10) 2021 commenced at 11.59 pm on 27 October 2021, amending the COVID-19 Public Health Response (Alert Level Requirements) Order (No 12) 2021

easing restrictions in Waikato. Further information can be accessed here.

NZ – The COVID-19 Public Health Response (Alert Level Requirements) Order (No 12) Amendment Order (No 11) 2021 commenced at 11.59 pm on 28 October 2021, amending

the COVID-19 Public Health Response (Alert Level Requirements) Order (No 12) 2021 modifying the requirement for the wearing of face coverings by workers of close-proximity businesses or services in the alert level 2 area, requiring face coverings to be worn when

on any part of the premises of a car parking building that is open to the public in the alert level 3 area, among other amendments.

The COVID-19 Protection Framework can be accessed here.

A Summary table of the COVID-19 Alert Levels, can be accessed here.

A Detailed table of the COVID-19 Alert Levels, can be accessed here.

Advice for the operation of building, construction and maintenance services within differing alert levels, can be accessed here.

SA - The Emergency Management (COVID-19) (Healthcare Setting Workers Vaccination) Direction 2021 No 2 commenced on 20 October 2021, repealing and replacing the

Emergency Management (COVID-19) (Healthcare Setting Workers Vaccination) Direction 2021 to prescribe that all healthcare workers must have had their first COVID jab by 1

November 2021 if they want to continue working. Further information can be accessed here. SA - The Emergency Management (South Australia Police Workers Vaccination) (COVID-19)

Direction 2021 comes into effect at 12:01 am 15 November 2021, providing that a police worker must not engage in work or perform duties of a police worker from unless:

• the police worker has received at least one dose of a Therapeutic Goods

Administration (TGA) approved COVID-19 vaccine and

• the police worker has received, or has evidence of a booking to receive, a second

dose of a TGA approved COVID-19 vaccine within the interval after the first dose recommended by the ATAGI for that COVID-19 vaccine

The South Australia Government has released the COVID-Ready Plan with changes to occur

on 23 November 2021 when it is expected that the State will reach 80% of people aged 16+ being fully vaccinated. Further changes, including reduced restrictions, will occur when

the State reaches 90% of people aged 12+ fully vaccinated.

TAS - The Direction under Section 16 - Mandatory Vaccination of Certain Workers - No. 7

commenced on 7 October 2021, repealing and replacing the Direction under Section 16 - Mandatory Vaccination of Certain Workers - No. 6. The Direction further provides that healthcare workers healthcare workers will be required to be vaccinated against COVID-19

47

(or provided evidence of a booking or exemption) to enter the State's public and private

healthcare settings by 31 October 2021.

Further information can be accessed here.

VIC - The COVID-19 Mandatory Vaccination (General Workers) Directions commenced at 6:00pm on 29 October 2021, imposing obligations upon employers in relation to the

vaccination of general workers, in order to limit the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) within the population of those workers.

VIC - The COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No. 11)

commenced at 6:00 on 29 October 2021 replacing COVID-19 Mandatory Vaccination Directions (No. 10). The purpose of these directions is to impose obligations upon operators

of specified facilities in relation to the vaccination of workers, in order to limit the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) within the population in these settings.

Employers must ensure all authorised workers who are required to leave their usual place of residence for work, must have had their first COVID-19 vaccine dose, and will need to be

fully vaccinated by Friday, 26 November. This deadline does not apply to construction workers who must have received their first COVID-19 vaccine dose by Monday, 4 October and their second dose by Saturday, 13 November 2021.

VIC –The COVID-19 Mandatory Vaccination (Workers) Directions (No. 6) commenced at 6:00pm on 29 October 2021, repealing and replacing the COVID-19 Mandatory Vaccination

(Workers) Directions (No. 5). The purpose of these directions is to impose obligations upon employers in relation to the vaccination of workers, in order to limit the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) within the population of those

workers.

Information for industry and workers required to be vaccinated, can be accessed here.

VIC – The Open Premises Directions (No. 3) commenced at 11:59pm on 23 October 2021 and end at 11:59pm on 18 November 2021, repealing and replacing the Open Premises

Directions (No. 2).

The purpose of these directions is to impose obligations upon:

• operators of certain premises in Metropolitan Melbourne and Regional Victoria; and

• patrons that attend those premises;

in relation to vaccination against COVID-19 and other requirements, in order to address the serious public health risk posed to Victoria by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).

VIC – The Workplace Directions (No. 54) came into force at 6:00pm on 29 October 2021, repealing and replacing the Workplace Directions (No. 53). The purpose of these directions

is to limit the number of Victorians attending Work Premises to assist in reducing the frequency and scale of outbreaks of SARS-CoV-2 in Victorian workplaces and to establish more specific obligations on employers and workers in relation to managing the risk

associated with SARS-CoV-2.

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• You can go to work if it’s open and if you meet the relevant vaccination

requirements for your workplace;

• You will also have to be fully vaccinated if your workplace is only open for fully

vaccinated patrons;

• You can work at an office if you are fully vaccinated. Areas in your office workplace not accessible by the public can open (with density limits of one person per 2 sqm).

You must wear your mask indoors;

• Early childhood education and care is open;

• Schools are open with on-site safety measures in place;

• Adult education on-site learning can continue for fully vaccinated students and staff.

VIC – The Workplace (Additional Industry Obligations) Directions (No. 54) came into force

at 6:00pm on 29 October 2021, repealing and replacing the Workplace (Additional Industry Obligations) Directions (No. 53). The purpose of these directions is to establish additional specific obligations on employers and workers in specific industries in relation to managing

the risk associated with SARS-CoV-2.

COVID Marshals and surveillance testing are mandatory for some industries.

Section specific guidance can be accessed here.

Further information regarding additional industry obligations can be accessed here

For general business FAQs related to current restrictions visit:

• How we work: metropolitan Melbourne and areas of regional Victoria

• How we work: regional Victoria

Victoria's Roadmap: Summary (updated) can be accessed here.

Further information can be accessed here.

WA – The Transport, Freight and Logistics Directions (No 6) commenced on 13 October 2021, enforcing mandatory vaccination for transport, freight and logistics workers travelling

from or through 'high' or 'extreme' risk jurisdictions to enter Western Australia. The purpose of these directions is to prevent the importation of COVID-19 into Western Australia and to

otherwise limit the spread of COVID-19 in Western Australia. From 12.01am, 24 October, transport, freight and logistics workers will need to have had at least their first dose of a COVID-19 vaccine to enter WA if they have travelled through a 'high' or an 'extreme' risk

jurisdiction.

WA – The Exposed Port Worker (Restrictions on Access) Directions (No 3) commenced 28 October 2021, preventing a person to work on an exposed vessel or in connection with an exposed vessel if they have not been vaccinated against COVID-19. The Directions apply to

all commercial ports in Western Australia and include anyone who has contact with an exposed vessel. Implementation will be a staged approach to limit the potential impact on

port activities. From 12.01am, October 15, port workers will need to have had at least their first dose of a COVID-19 vaccine to access an exposed vessel, carry out a service in connection with an exposed vessel or interact with crew. These workers will need to be fully

vaccinated by 12.01am, November 12.

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WA – The Residential Aged Care Facility Worker Access Directions (No 4) commenced on

12 October 2021, repealing and replacing the Residential Aged Care Facility Worker Access Directions (No 3), preventing residential aged care facility workers from entering residential

aged care facilities if they have not been vaccinated against COVID-19. WA – The Health Worker (Restrictions on Access) Directions (No 3) commenced on 16

September 2021, repealing and replacing the Health Worker (Restrictions on Access) Directions (No 2), establishing measures to address the unique risks posed by COVID-19 in

health care settings in order to limit the spread of COVID-19 in Western Australia and ensure critical health care facilities are available to help manage the current public health state of emergency.

The requirement to be vaccinated applies to people who work in health care settings and

people who provide health and medical services and treatments outside of these settings, including persons registered under the Health Practitioner Regulation National Law and

particular allied health professionals. All Department of Health employees and contractors are also required to be vaccinated. On and after 31 October 2021, a person is not permitted to enter, or remain on, the premises of a medical or health facility for employment,

engagement (including volunteering), placement, or work experience, unless they are sufficiently vaccinated against COVID-19.

WA – The Primary Health Care Worker (Restrictions on Access) Directions commenced on 22 October 2021, prevent primary health care workers from entering or remaining at

primary health care facilities if they have not been vaccinated against COVID-19. The purpose of these directions is to put in place some measures to address the unique risks

posed by COVID-19 in primary health care settings in order to limit the spread of COVID-19 in Western Australia and ensure primary health care facilities are available to help manage the current public health state of emergency.

WA Border Control

The new requirement will take effect from 12.01am 5 November 2021 for 'medium', 'high' and 'extreme' risk jurisdictions and strengthens WA's border control arrangements with the

Australian Capital Territory, New South Wales and Victoria to reduce the risk of importing and spreading COVID-19. Further information can be accessed here.

Mandatory Vaccination

Employers have a duty under the model Work Health and Safety laws to eliminate, or if that is not reasonably practicable, minimise the risks of COVID-19 in the workplace so far as is

reasonably practicable. Employers also have a duty to consult workers regarding COVID-19 risks and how these risks are to be managed. This includes the introduction of workplace

policies relating to vaccination. This information will assist you to assess whether a COVID-19 vaccine is a reasonably practicable control measure to manage the risks of COVID-19 in your workplace

You must also comply with any public health orders made by State and Territory

Governments that apply to you and your workplace, including those mandating vaccination of particular workers.

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A safe and effective vaccine is an important part of keeping the Australian community safe

and healthy. The COVID-19 vaccines available for use in Australia will help protect people by preventing serious health effects of COVID-19 in the person who is vaccinated, if they

are infected with the COVID 19 virus. However, a vaccinated person may still unknowingly carry and spread the virus to others around them, including workers and others in their workplace. Because of this, even if your workers are vaccinated, to meet your duties under

the model WHS laws and minimise the risks of COVID-19 in your workplace, you must continue to implement all other reasonably practicable COVID-19 control measures such as:

• ensuring your workers do not come to work when unwell;

• practising physical distancing;

• improving ventilation, where appropriate;

• practising good hygiene;

• increasing cleaning and maintenance; and

• wearing masks.

According to the Fair Work Ombudsman employers can only require their employees to be vaccinated where:

• a specific law (such as a State or Territory public health order) requires an employee to be vaccinated (see COVID-19 vaccinations: legislation and public

health orders);

• the requirement is permitted by an enterprise agreement, other registered

agreement or employment contract (see Agreements or contracts relating to

vaccinations); or

• it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis (see Lawful

and reasonable directions to get vaccinated).

Employers can direct their employees to be vaccinated if the direction is lawful and reasonable. Whether a direction is lawful and reasonable is fact dependent and needs to be assessed on a case-by-case basis. Just because it may be lawful and reasonable to give a

direction to one employee, that doesn’t mean it will automatically be lawful and reasonable to give the same direction to another employee or to all employees.

For a direction to be lawful, it needs to comply with any employment contract, award or agreement, and any Commonwealth, State or Territory law that applies (for example, an

anti-discrimination law).

There are a range of factors that may be relevant when determining whether a direction to an employee is reasonable. Things to take into consideration include:

• the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the

business is providing an essential service);

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• the extent of community transmission of COVID-19 in the location where the

direction is to be given, including the risk of transmission of the Delta variant

among employees, customers or other members of the community;

• the terms of any public health orders in place where the workplace is located;

• the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant (find out more at the Department of Health: statement

from ATAGI external-icon.png);

• work health and safety obligations (find out more at Safe Work Australia external-

icon.png);

• each employee’s circumstances, including their duties and the risks associated with

their work;

• whether employees have a legitimate reason for not being vaccinated (for example,

a medical reason);

• vaccine availability.

When undertaking this case-by-case assessment, it may also be helpful as a general guide

to divide work into 4 broad tiers:

• Tier 1 work, where employees are required as part of their duties to interact with people with an increased risk of being infected with coronavirus (for example,

employees working in hotel quarantine or border control);

• Tier 2 work, where employees are required to have close contact with people who

are particularly vulnerable to the health impacts of coronavirus (for example,

employees working in health care or aged care);

• Tier 3 work, where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course

of employment (for example, stores providing essential goods and services);

• Tier 4 work, where employees have minimal face-to-face interaction as part of their

normal employment duties (for example, where they are working from home).

Further information can be accessed here and here.

State and Territory Governments have made public health orders requiring certain workers to be vaccinated against COVID-19 in their State or Territory. Employers and workers need

to comply with any public health orders that apply to them.

The current public health orders requiring vaccination in various States and Territories are outlined below.

Australian Capital Territory: The Australian Capital Territory (ACT) Government has introduced COVID-19 vaccination requirements for certain workers. The requirements apply

to:

• residential aged care facility workers;

• health care facility workers (from 29 October 2021);

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• workers in school or early childhood education and care facilities (from 1 November

2021).

Further information can be accessed here. New South Wales: The New South Wales (NSW) Government has introduced COVID-19

vaccination requirements for certain workers. The requirements apply to:

• workers specified in the NSW Airport and Quarantine Vaccination Program, including

quarantine, transportation and airport workers;

• residential aged care facility workers (the requirements don’t apply until 31 October

2021 for some health practitioners and students entering an aged care facility);

• in-home and community aged care workers (from 25 October 2021);

• persons providing disability support services (from 25 October 2021);

• certain health care workers;

• education and care workers, including teachers and education providers (from 8

November 2021);

• other workers who are allowed to go into work.

Further information can be accessed here.

Northern Territory: The Northern Territory (NT) Government has introduced COVID-19

vaccination requirements for certain workers. The requirements apply to:

• residential aged care facility workers;

• quarantine workers;

• workers in other high-risk sectors;

• freight workers entering the NT (from 1 November 2021). Further information can

be accessed here.

Further information can be accessed here.

Queensland: The Queensland Government has introduced COVID-19 vaccination

requirements for certain workers. The requirements apply to:

• health service employees ;

• Queensland Ambulance Service employees;

• hospital and health service contractors;

• residential aged care facility workers;

• workers in quarantine facilities;

• certain workers with permission to cross into Queensland from New South Wales;

• freight or logistic workers entering Queensland from another State or Territory;

• health service employees (as required by a Health Employment Directive).

Further information can be accessed here.

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South Australia: The South Australian Government has introduced COVID-19 vaccination

requirements for certain workers. The requirements apply to:

• workers within the SA quarantine system, including in airports, medi-hotels, health-

care settings and transportation;

• workers in residential aged care facilities;

• some ‘essential travellers’ arriving into SA;

• workers on certain commercial vessels arriving into SA;

• workers in health care settings (from 1 November 2021);

• police officers (from 15 November 2021).

Further information can be accessed here.

Tasmania: The Tasmanian Government has introduced COVID-19 vaccination requirements for certain workers. The requirements apply to workers:

• entering a residential aged care facility;

• entering a Tasmanian quarantine site;

• providing quarantine transport services;

• entering a medical or health facility (from 31 October 2021);

• providing health and medical services or treatments (from 31 October 2021).

Further information can be accessed here.

Victoria: The Victorian (VIC) Government has introduced COVID-19 vaccination requirements for certain workers. The requirements apply to:

• residential aged care facility workers;

• workers at a construction site;

• health care workers;

• education workers;

• certain commercial freight and healthcare workers entering Victoria;

• other specified workers who can’t work from home;

• any person working at an open premises.

Further information can be accessed here.

Western Australia: The Western Australian (WA) Government has introduced COVID-19 vaccination requirements for certain workers. The requirements apply to:

• quarantine centre workers;

• residential aged care facility workers;

• health care facility workers;

• primary health care workers (from 1 November 2021);

• certain port workers in WA who board or work with exposed vessels;

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• certain transport, freight and logistics workers entering WA (from 24 October

2021). Further information can be accessed here.

• mission critical area workers (including members of WA police force, ambulance and health care workers entering mission critical areas).

Western Australian announced an overarching mandatory COVID-19 vaccination policy with

a phased approach to a majority of occupations and workforces. Employers that are found to have unvaccinated staff working after the deadline could be fined up to $100,000, while

individual employees face a $20,000 penalty. Further information can be accessed here and here.

The WA Government has also announced vaccination requirements for fly-in fly-out (FIFO) and other resource sector workers from 1 December 2021. Further information can be

accessed here. Further information can be accessed here and here.

Go back to ‘In this alert’

New & Updated Standards…

The following list includes new, amended or superseded Australia Standards associated with health & safety, from the past week:

• AS 2290.1:2021 Electrical equipment for coal mines - Introduction, inspection and maintenance Hazardous areas – Published 22 October 2021, superseding AS/NZS

2290.1:2014 Electrical equipment for coal mines - Introduction, inspection and maintenance For hazardous areas.

• AS/NZS IEC 61000.4.3:2021 Electromagnetic compatibility (EMC) Testing and measurement techniques - Radiated, radio-frequency, electromagnetic field

immunity test – Published 22 October 2021, superseding AS/NZS IEC 61000.4.3:2013 Electromagnetic compatibility (EMC).

• SA TS 5367:2021 Photoluminescent exit signage - Hybrid photoluminescent signage - Product specification, installation and operation – Published 22 October 2021,

specifying requirements for the design, construction, physical installation and operation of photoluminescent exit signs used for the identification of exits.

• AS/NZS 60947.1:2021 Low-voltage switchgear and controlgear General rules – Published 22 October 2021, adopting IEC 60947 1:2020 with modifications for

Australia and New Zealand, which specifies requirements, when required by the relevant product standard, to low-voltage switchgear and control gear hereinafter referred to as “equipment” or “device” and intended to be connected to circuits, the

rated voltage of which does not exceed 1 000 V AC or 1 500 V DC.

• AS 4627:2017 Amd 2:2021 Quick-connect devices for gas - Published 8 October 2021, amending AS 4627:2017 Quick-connect devices for gas.

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• AS 4617:2018 Amd 1:2021 Manually operated gas valves - Published 8 October

2021, superseding DR AS 4617:2018 Amd 1:2021 Manually operated gas valves.

• AS 2549:2021 Cranes, hoists and winches - Glossary of terms – Published 1 October 2021, superseding AS 2549-1996 Cranes (including hoists and winches) - Glossary of terms.

• AS 1735.1.3:2021 Lifts, escalators and moving walks Safety rules for the

construction and installation of lifts - Examinations and tests - Design rules, calculations, examinations and tests of lift components - Published 24 September 2021 identically adopting EN 81-50:2020 which specifies the design rules,

calculations, examinations and tests of lift components which are referred to by other standards used for the design of passenger lifts, goods passenger lifts, goods

only lifts, and other similar types of lifting appliances.

• AS 1735.1.4:2021 Lifts, escalators and moving walks Safety rules for the construction and installation of lifts - Existing lifts - Rules for the improvement of safety of existing passenger and goods passenger lifts - Published 24 September

2021 identically adopting EN 81 80:2019 which gives a methodology for improving the safety of existing lifts with the aim of reaching an equivalent level of safety to

that of a newly installed lift by the application of today’s state-of-the-art for safety.

• AS 1735.1.2:2021 Lifts, escalators and moving walks Safety rules for the

construction and installation of lifts - Lifts for the transport of persons and goods - Passenger and goods passenger lifts – Published 17 September 2021, identically

adopting EN 81 20:2020 for Australia which specifies the safety rules for permanently installed new passenger or goods passenger lifts, with traction, positive or hydraulic drive, serving defined landing levels, having a car designed for

the transportation of persons or persons and goods, suspended by ropes, chains or jacks and moving between guide rails inclined not more than 15° to the vertical.

• AS 2243.2:2021 Safety in laboratories Chemical aspects and storage – Published 10

September 2021 superseding AS/NZS 2243.2:2006 Safety in laboratories

Chemical aspects.

• AS 2243.1:2021 Safety in laboratories Planning and operational aspects – Published 10 September 2021 superseding AS/NZS 2243.1:2005 Safety in laboratories Planning and operational aspects.

• AS 1067.1:2016 Amd 1:2021 Eye and face protection - Sunglasses and fashion

spectacles Requirements – Published 3 September 2021 amending AS 1067.1:2016 Eye and face protection - Sunglasses and fashion spectacles Requirements.

• AS/NZS ISO 18526.2:2021 Scaffolding Safe use of encapsulation on scaffolding –

Published 3 September 2021, specifying requirements and test methods for encapsulation and containment products for attachment to scaffolding, including fire hazard properties, strength properties, fixing requirements and installation

procedures for various types of encapsulation.

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A full list of Standards under review, along with a link to the Draft Standards and a link for

making comments to the above Draft Standards can be found in our ‘Open for Comment’ section, under the title ‘Draft Standards Open for Comment’.

Go back to ‘In this alert’

Open for Comment…

Draft Standards Open for Comment ‘UPDATED’

A number of Draft Standards are open for comment. They include:

Draft Standard Comments due by

DR AS/NZS 3001.2:2021 Electrical installations-Connectable electrical installations and supply arrangements Part 2:

Connectable electrical installations

18 October 2021

DR SA/SNZ TS IEC 60079.42:2021 Explosive atmospheres Part 42: Electrical safety devices for the control of potential ignition

sources for Ex-Equipment

18 October 2021

AS/NZS ISO/IEC 80079.34 Explosive atmospheres, Part 34:

Application of quality systems for equipment manufacture

18 October 2021

DR AS/NZS IEC 60079.32.2:2021 Explosive atmospheres Part

32.2: Electrostatics hazards - Tests

18 October 2021

DR AS/NZS 3001.1:2021 Electrical installations-Connectable

electrical installations and supply arrangements Part 1: Site supplies for connectable electrical installations

18 October 2021

DR AS/NZS ISO/IEC 80079.34:2021 Explosive atmospheres Part 34: Application of quality systems for equipment manufacture

18 October 2021

DR AS 2088:2021 Prams and strollers - Safety requirements 25 October 2021

DR AS/NZS 2243.3:2021 Safety in laboratories, Part 3:

Microbiological safety and containment

28 October 2021

AS 1735.1.1 Lifts, escalators and moving walks, Part 1: General

requirements

5 November 2021

AS 3610.2 Formwork for concrete, Part 2: Design and construction

9 November 2021

DR AS 3610.2:2021 Formwork for concrete Part 2: Design and construction

9 November 2021

AS 3610.2 Formwork for concrete, Part 2: Design and construction

11 November 2021

DR AS/NZS ISO 16900.6:2021 Respiratory protective devices ? Methods of test and test equipment Method 6: Mechanical

resistance/strength of components and connections

3 December 2021

DR AS 2809.4:2021 Road tank vehicles for dangerous goods Part

4: Road tank vehicles for toxic corrosive or ammonium nitrate emulsion suspension or gel cargoes

10 December 2021

DR AS 62271.301:2021 High voltage switchgear and controlgear - Part 301: Dimensional standardization of terminals

13 December 2021

AS/NZS 62368-1 Audio/video, information and communication technology equipment – Part 1: Safety requirements

22 December 2021

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A full list of Standards under review, along with a link to the Draft Standards and a link for

making comments to the above Draft Standards can be accessed here.

Readers who may have an interest in Standards reviews are encouraged to view the whole list, as the reviews listed above are only a selection of those standards under review.

ACT - Discrimination Law Reform ‘NEW’

The Justice and Community Safety Directorate is seeking feedback on plans to extend the protections the ACT Discrimination Act 1991 provides to people at work, accessing education or Government services, or participating in other day-to-day activities.

An ACT Government priority is to modernise our discrimination law and put the ACT at the

forefront of best practice in promoting equal opportunity, respect for diversity and social inclusion in our community.

This is a key part of the ACT Government’s Capital of Equality Strategy, and the next step in implementing recommendations from the ACT Law Reform Advisory’s Council 2015

Review of the Discrimination Act 1991. The Directorate is seeking feedback on several issues:

• What is the best way to ensure discrimination laws protect people in all areas of

public life?

• How can exceptions to discrimination law be made simpler and consistent with

human rights?

• Should there be a positive obligation on organisations to eliminate discrimination?

The Government will be guided by the following principles in reforming discrimination law:

‘Broader and stronger protections: Any changes to discrimination law should create

broader and stronger protections to send a clear message that our society believes in equality and respect.

Clear, simple, and user-friendly: Discrimination laws should be as clear, simple, and user-friendly as possible, to make it easier for people to know their rights and obligations.

Align with our human rights framework: Discrimination laws should align with our human rights framework, meaning that any exceptions should be reasonably justifiable

and proportionate to legitimate objectives under the Human Rights Act 2004, and other human rights should also be protected.

The same standard for everyone: Discrimination laws should be comprehensive and consistent. Everyone should enjoy the same standard of protection, unless there are principled reasons based on reasonable and objective criteria to distinguish between

the different protected groups.

Promote systemic and preventive change: Discrimination laws should promote

systemic and preventive change.’

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There are eight short Consultation Guides, each dealing with a specific discussion topic:

• Short Consultation Guide - Coverage of the Act

• Short Consultation Guide - Insurance and Superannuation Exceptions

• Short Consultation Guide - Licenced Clubs Exception

• Short Consultation Guide - Positive Duty

• Short Consultation Guides - Religious Bodies Exception

• Short Consultation Guides - Sports Exceptions

• Short Consultation Guides - Voluntary Bodies Exception

• Short Consultation Guides - Work Exceptions

The Issues Paper can be accessed here.

Further information can be accessed here. Feedback may be submitted online here or via email to civilconsultation@act.gov.au

Comments close 9 January 2022

TAS - Occupational Licensing (Plumbing Work) Regulations 2021 ‘NEW’

The Department of Justice is seeking feedback as it undertakes a review of the Occupational Licensing (Plumbing Work) Regulations 2021.

The Occupational Licensing (Plumbing Work) Regulations 2010 will expire on 15 December

2021 as the provisions of the Subordinate Legislation Act 1992 provide that subordinate legislation is repealed on the tenth anniversary of the date on which it was made. This date was to be 15 December 2020, however this repeal was postponed by 12 months by Section

25 of the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020.

The Occupational Licensing (Plumbing Work) Regulations 2010 provide the definition of prescribed plumbing work and also provide certain record-keeping obligations, provide definitions of defective work, establish fees for the application of licences and other

miscellaneous administrative provisions.

It is proposed that the Occupational Licensing (Plumbing Work) Regulations 2010 be remade with minimal changes. Changes include removing references to demerit points and inserting a Clause at 4(2)(j) excluding work by sheetmetal tradespersons where their work is carried

out in connection with the manufacture, installation, maintenance or repair of ventilation or air conditioning plant or equipment as part of a plumbing installation. The effect of this

change is to exclude these allied metal working trades from being required to be licensed as a plumber.

The consultation draft can be accessed here.

Further information can be accessed here.

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Feedback may be submitted online here, via email to: haveyoursay@justice.tas.gov.au or

post to:

Department of Justice

Office of the Secretary GPO Box 825 Hobart TAS 7001

Comments close 15 November 2021.

CTH – Draft Privacy Legislation Amendment (Enhancing Online Privacy and

Other Measures) Bill 2021 ‘NEW’

The Attorney-General’s Department is seeking feedback on the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021, which will give effect to the Australian Government's commitment to strengthen the Privacy Act 1988. It enables

the introduction of a binding online privacy code for social media and certain other online platforms, and increases penalties and enforcement measures.

Online platforms subject to the code will need to comply with strict new privacy requirements, including stronger protections for children on social media. Under the code,

social media platforms will be required to take all reasonable steps to verify their users' age, and give primary consideration to the best interests of the child when handling children's

personal information. The code will also require platforms to obtain parental consent for users under the age of 16.

The Online Privacy Bill will also introduce tougher penalties and enforcement powers to enable Australia's privacy regulator, the Office of the Australian Information Commissioner,

to resolve matters more effectively and efficiently. Under the draft Amendment Bill, the maximum penalty of $2.1 million for serious or

repeated breaches of privacy will increase to not more than the greater of $10 million, or 3 times the value of any benefit obtained through the misuse of information, or 10% of the

entity’s annual Australian turnover.

Attorney-General Michaelia Cash, stated the following:

‘We know that Australians are wary about what personal information they give over

to large tech companies. We are ensuring their data and privacy will protected and handled with care. Our draft legislations means that these companies will be

punished heavily if they don't meet that standard.’

Assistant Minister to the Prime Minister for Mental Health and Suicide Prevention David

Coleman, stated the following:

‘In Australia, even before the COVID-19 pandemic, there was a consistent increase in signs of distress and mental ill-health among young people. While the reasons for

this are varied and complex, we know that social media is part of the problem…Young people have told us this themselves. In a 2018 headspace survey

of over 4000 young people aged 12 to 25, social media was nominated as the main reason youth mental health is getting worse. And the recent leak of Facebook's own

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internal research demonstrates the impact social media platforms can have on body

image and the mental health of young people…That's why this legislation is so important. It will provide families with powerful protections, and require

fundamental changes to the way that social media platforms operate in Australia.’

Australian Information Commissioner and Privacy Commissioner Angelene Falk, stated the following:

‘These updates to penalties are needed to bring Australian privacy law into closer alignment with competition and consumer remedies…We also welcome new

information sharing powers, which will facilitate engagement with domestic regulators and our international counterparts to help us perform our regulatory role

efficiently and effectively.’

The Exposure Draft can be accessed here.

The Explanatory Paper can be accessed here.

Further information can be accessed here.

Feedback may be submitted online here.

Comments close 6 December 2021.

CTH – Lifejacket Wear Requirements for Domestic Commercial Vessels

‘NEW’

The Australian Maritime Safety Authority is seeking feedback on practical ways to increase lifejacket wear on domestic commercial vessels .

The Australian Maritime Safety Authority is seeking feedback on three different options to

achieve increased lifejacket wear.

• Option 1 — Mandate lifejacket wear requirements on all domestic commercial

vessels, at all times, when on deck.  

• Option 2 — Mandate lifejacket wear at all times on: 

o vessels less than 7.5 metres in length

o vessels with only one person on board

o fishing vessels of any length, when on deck

o unpowered barges that do not have railings or means to prevent a person from falling overboard.

 

All domestic commercial vessel owners and operators will also need to have a documented risk assessment and procedure on lifejacket wear in their safety management system.  

  • Option 3 — Continue with lifejacket carriage requirements and do not introduce

lifejacket wear requirements, however, all vessels must have a documented risk assessment and procedure on lifejacket wear in their safety management system.

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Since July 2013, 44 people on domestic commercial vessels have fallen overboard and lost

their lives. We are taking action to limit this unnecessary loss of life by proposing to make it mandatory to wear a lifejacket on certain domestic commercial vessels.

AMSA Chief Executive Officer Mick Kinley said the review aims to reduce the number of drowning and achieve better safety outcomes for all people on domestic commercial vessels. Mr Kinley, stated the following:

‘Advancements in lifejacket design have made lifejackets more wearable than ever before and are proven to save lives…Old excuses that lifejackets are too bulky or

awkward and people can’t work in them no longer cut it with modern designs…Lifejackets on boats are like seatbelts in cars, or hard hats and high-

visibility clothes on work sites. We need to make them a normal part of the personal protective equipment on commercial vessels where the risk is real.’ 

Further information can be accessed here.

Feedback may be submitted online here.

Comments close 17 December 2021.

CTH – Asbestos Safety Training for Workers Entering Trades ‘NEW’

The Asbestos Safety and Eradication Agency is seeking feedback on a discussion paper prepared in response to ongoing concerns raised by stakeholders about whether current

training arrangements adequately protect these workers.

The Discussion Paper covers:

• current WHS legal requirements for training relevant to asbestos safety in all

Australian jurisdictions;

• a description of the main training options available to PCBUs, including a general explanation of the national vocational education and training system (VET) and its

regulatory framework;

• recent efforts to introduce more nationally recognised asbestos safety awareness

training in the context of current Vocational Education and Training system reforms;

• options to enhance current asbestos safety awareness training, particularly for new

workers acquiring their qualifications.

The Discussion Paper includes specific questions to guide submissions. There is also a

template submission sheet which you may wish to use – this is optional.

The consultation draft can be accessed here.

Further information can be accessed here.

Feedback may be submitted via email to: engage@asbestossafety.gov.au using the submission template.

Comments close 17 December 2021.

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CTH - Draft Safety Guide - Borehole Disposal Facilities for Radioactive

Waste

The Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) coordinates comments on behalf of Australia on International Atomic Energy Agency (IAEA) draft

documents. The IAEA is seeking comments from their member states on a new draft IAEA Safety Guide

– DS512 – Borehole Disposal Facilities for Radioactive Waste.

The of the Safety Guide is to provide recommendations and guidance on the development, operation, closure, institutional control and regulation of borehole disposal facilities for:

• disused sealed radioactive sources that have been declared radioactive waste; and

• small amounts of low-level waste and intermediate-level waste generated during

the management of the disused sealed radioactive sources;

• The Safety Guide can also be used as a basis for reassessing and where appropriate upgrading the safety of existing borehole disposal facilities.

The Issues Paper can be accessed here.

Further information can be accessed here.

Feedback may be submitted online here or emailed to: stakeholdercomment@arpansa.gov.au using the template.

Comments close 7 January 2022.

NSW - McDougall Review Recommendations COVID-19 and Future

Opportunities For Personal Injury Schemes

The State Insurance Regulatory Authority is seeking input into:

• Reforms to thresholds and entitlements recommended in the McDougall Review;

• Reforms to thresholds, entitlements and costs proposed in the 2020 Law and Justice

Review;

• Options to mitigate the impact of COVID-19 on customers of the workers

compensation and CTP schemes;

• Preliminary ideas for modernising and aligning customer experience and support

within the workers compensation and CTP schemes. In April 2021, the Hon Robert McDougall QC handed down the icare and State Insurance

and Care Governance Act 2015 Independent Review (McDougall review). At the same time, the NSW Standing Committee on Law and Justice handed down the 2020 review of the

workers compensation scheme.

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These reviews made specific recommendations that concern entitlements, thresholds and

costs in the NSW workers compensation scheme.

COVID-19 has created unprecedented community, workplace, and economic impacts and

challenges. To date, SIRA has overseen the implementation of numerous measures to address the ongoing impact of COVID-19 in its personal injury schemes. However, as the pandemic evolves, more measures may be needed to manage the impacts of COVID-19 on

the scheme and outcomes for customers.

With any change or reform, there are opportunities to consider how to improve outcomes

for injured people. Looking to the best features of other personal injury or compensation schemes, or developments in personal injury research, may provide alternative options to

shape the design of the future system to improve the experience and outcomes for injured people.

The Issues Paper can be accessed here.

Further information can be accessed here.

Feedback may be submitted online here, via email to: Policy&Design@sira.nsw.gov.au or

post to:

McDougall Review recommendations COVID-19 and future opportunities for personal injury schemes consultation

State Insurance Regulatory Locked Bag 2906

Lisarow NSW 2252

Comments close 4 November 2021.

MULTI - Inspection Policy Open for Comment

From 1 January 2022, the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) is adopting a new approach to its inspections, striking a balance between regular inspections of all activities and the need to focus on higher risk

activities with a greater likelihood of non-compliance.

To assist industry in understanding NOPSEMA’s new approach a draft inspection policy has

been published for comment.

The policy sets out a baseline, or minimum frequency for inspections. It also lists a variety

of risk-factors that will drive more frequent inspections, such as the complexity of the activity and the stage of life of the asset.

The Issues Paper can be accessed here.

Further information can be accessed here.

Feedback may be submitted online here.

Comments closed 26 October 2021.

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NZ - Proposals to amend the New Zealand (Maximum Residue Levels for

Agricultural Compounds) Food Notice

The Ministry for Primary Industries is seeking feedback on proposed changes to the New Zealand Food Notice: Maximum Residue Levels for Agricultural Compounds which include:

• amended maximum residue levels in Schedule 1 for:

o fluazinam;

o mandestrobin;

o pyriofenone;

• amendments to 3 existing entries in Schedule 2 (agricultural chemicals for which no

maximum residue level applies).

• 2 new entries in Schedule 3 (veterinary medicines for which no maximum residue

level applies). One of these replaces an entry that is no longer required.

Maximum Residue Levels (MRLs) are the maximum legal levels for residues of agricultural chemicals and veterinary medicines in food for sale in New Zealand. As new products and

uses are registered, new entries for MRLs and compounds for which no MRL applies are established, and existing entries are adjusted as needed. The MRLs are set to ensure that

residue levels remain as low as practicable without compromising the ability for the chemical to successfully do what is intended.

The Food Notice and its entries are established for agricultural compounds to support Good Agricultural Practice in New Zealand while ensuring risks associated with food safety are

effectively managed. MRLs may also be proposed to support the importation of food into New Zealand.

The Issues Paper can be accessed here.

Further information can be accessed here.

Feedback may be submitted via email to: MaximumResidueLevels@mpi.govt.nz or via post to:

MRL Amendments New Zealand Food Safety Ministry for Primary Industries

PO Box 2526 Wellington 6140

New Zealand Comments close 30 November 2021.

NZ - Public Consultation for Adventure Activities Regime

The New Zealand Government has announced the start of the public consultation into the health and safety regime for registered adventure activities.

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Following the Whakaari/White Island eruption on 9 December 2019, the Workplace Relations

and Safety Minister directed the Ministry of Business, Innovation and Employment (MBIE) to undertake a targeted review of the adventure activities regulatory regime.

The review found that although safety standards in adventure activities were improving, there were a number of areas in the regime that could be strengthened, including the management of natural hazards, the role of the regulator and the audit process.

The Government has proposed options for changes to the regime to improve safety in the sector which:

• strengthen requirements for how operators, landowners and the regulator manage

natural hazard risks;

• improve how risk is monitored, assessed and communicated;

• strengthen WorkSafe’s regulatory leadership role; and

• improve the safety audit standard, audit process and guidance and information for

the sector.

The consultation documents are as follows:

• Adventure Activities - keeping it safe: Summary of proposals: A summary of the

consultation document outlining the proposals for changes to the adventure activities regulations.

• Adventure Activities - keeping it safe: Consultation document: A consultation document outlining the proposals for changes to the adventure activities regulations.

• Adventure Activities - keeping it safe: Consultation brochure: A brochure outlining the proposals for changes to the adventure activities regulations.

The Minister Workplace Relations and Safety, Michael Wood stated the following:

‘The Whakaari White Island eruption was a devastating tragedy that meant 22 people sadly lost their lives. We are committed to learning the lessons to reduce the

risk of a similar incident happening…A review of the adventure activities regime showed that the regime is performing reasonably well, but identified areas which could be strengthened. We are proposing a number of changes to strengthen it and

raise safety standards…Adventure activities are a key part of our tourism sector. Prior to COVID-19, as many as one in three international tourists took part in at

least one adventure activity. It’s important we provide a safe as possible experiences for New Zealanders and international visitors once our borders

reopen…We intend to work in partnership with the sector to achieve change and I encourage tourism stakeholders, business owners and operators to look through the proposals and submit on them’.

Adventure activities regulatory regime background

Adventure activities are activities which are paid for, involve the participant being guided or

taught and are designed to deliberately expose the participant to serious risk that operators must manage.

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Adventure activity operators must obtain a safety audit by an accredited safety auditor and

be registered by WorkSafe as an adventure activities operator in order to offer their activities.

The health and safety regulatory regime for adventure activities is relatively new, introduced in 2011 and came fully into force in November 2014, following concerns over the

management of risk in the adventure tourism sector.

The Issues Paper can be accessed here. Further information can be accessed here.

Feedback may be submitted online here, via email to: HSWregs@mbie.govt.nz or post to:

Health and Safety Policy Team

Ministry of Business, Innovation & Employment PO Box 1473 Wellington 6140

Comments close 5 November 2021.

SA – Draft Controlled Substances (Poisons) (Miscellaneous) Variation Regulations

2021

The South Australian Government is seeking feedback on Controlled Substances (Poisons) (Miscellaneous) Variation Regulations 2021, which mandate the use of ScriptCheckSA and

additional amendments to ensure that monitored drug data is more complete.

Broadly, the amendments in the Variation Regulations:

• Mandate the use of ScriptCheckSA when a Schedule 8 drug is prescribed or dispensed, with exemptions from use to mirror those currently in place for Section

18A of the Controlled Substances Act 1984 (Regulation 22 CS Regs);

• Increase the monitored drug reporting frequency to fortnightly (from monthly),

where it cannot be collected automatically in real-time;

• Mandate that all prescribers and pharmacists who use clinical software which has

the capability to connect to a Prescription Exchange Service (PES), do connect so records are submitted to ScriptCheckSA in real-time to help ensure that the

monitored drug data is more complete;

• Includes a data sharing provision under Regulation 53A to allow information in

ScriptCheckSA to be disclosed in accordance with an authorisation given by the

Minster for Health and Wellbeing;

• Minor administrative amendments and an amendment to Regulation 45A to align with a National Scheduling decision that is unrelated to RTPM.

ScriptCheckSA helps to address prescription forgery, misuse, and doctor-shopping in South Australia by providing prescribers and pharmacists with real-time information about their

patients’ access to monitored drugs so that they can make safer clinical decisions about which medicines to prescribe or supply.

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The Issues Paper can be accessed here.

Further information can be accessed here.

Feedback may be submitted online here via email to: Health.RTPM@sa.gov.au or post to:

Health Protection and Licensing Services (HPLS), Department for Health and Wellbeing,

PO Box 6, Rundle Mall, Adelaide, SA 5000.

Comments close 1 November 2021.

QLD - Rural Plant Code of Practice Under Review

The Rural Plant Code of Practice 2004 is under review and Workplace Health and Safety Queensland will consider what changes are needed to ensure it remains fit-for-purpose and

supports the agriculture industry to meet legislative obligations and ensure worker safety.

Farm machinery has the potential to kill and maim; the risk of fatalities and incidents in rural workplaces is real. In the past five years there have been 67 work-related fatalities in the agricultural, forestry and fishing industry in Queensland. This includes 30 (45%)

involving a vehicle or some sort of mobile plant, eight of these involving a quad bike (12%).

While not limited to the below key issues, the review will consider updates to the code in order to address:

• tractor roll over protection;

• quad bikes and side by side-by-side vehicles;

• electrical risks;

• isolation and fatigue;

• technological advancements.

The Issues Paper can be accessed here. Public consultation will commence shortly, with an opportunity to provide written

submissions.

Further information can be accessed here.

NZ - Workplace Exposure Standards (WES) & Biological Exposure Indices

Consultation

WorkSafe New Zealand is seeking feedback on the following Workplace Exposure Standards and Biological Exposure Indices:

• Workplace Exposure Standard (WES) review: 1,1-Dichloroethane;

• Workplace Exposure Standard (WES) review: 2-Ethoxyethanol (Glycol monoethyl

ester);

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• Workplace Exposure Standard (WES) review: 2-Ethoxyethyl acetate (EGEEA);

• Workplace Exposure Standard (WES) review: Caprolactam (dust);

• Workplace Exposure Standard (WES) review: Carbon monoxide;

• Workplace Exposure Standard (WES) review: Cyanamide;

• Workplace Exposure Standard (WES) review: Dibutyl phthalate;

• Workplace Exposure Standard (WES) review: Diesel fuel;

• Workplace Exposure Standard (WES) review: Diethylamine;

• Workplace Exposure Standard (WES) review: Diethylene glycol;

• Workplace Exposure Standard (WES) review: Dimethylamine;

• Workplace Exposure Standard (WES) review: Dimethylformamide;

• Workplace Exposure Standard (WES) review: Dinitolmide (3,5-Dinitro-o-toluamide);

• Workplace Exposure Standard (WES) review: Diquat dibromide;

• Workplace Exposure Standard (WES) review: Ethyl benzene;

• Workplace Exposure Standard (WES) review: Hydrogen Cyanide;

• Workplace Exposure Standard (WES) review: Iodine;

• Workplace Exposure Standard (WES) review: Isocyanates;

• Workplace Exposure Standard (WES) review: Mercury;

• Workplace Exposure Standard (WES) review: Methyl acrylate;

• Workplace Exposure Standard (WES) review: Methyl bromide;

• Workplace Exposure Standard (WES) review: Methyl Chloroform (1,1,1-

Trichloroethane);

• Workplace Exposure Standard (WES) review: Methylamine;

• Workplace Exposure Standard (WES) review: Nitrobenzene;

• Workplace Exposure Standard (WES) review: o-Dichlorobenzene;

• Workplace Exposure Standard (WES) review: Picric Acid (2,4,6-trinitrophenol);

• Workplace Exposure Standard (WES) review: Tetrahydrofuran;

• Workplace Exposure Standard (WES) review: Toluene;

• Workplace Exposure Standard (WES) review: Turpentine;

• Workplace Exposure Standard (WES) review: Welding fume;

• Biological Exposure Index (BEI) review: Lead. Further information can be accessed here.

Feedback may be submitted online here.

Comments close 4 February 2022.

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TAS - New Contemporary Fire Service Act 1979 ‘UPDATED’

The Tasmanian Government has commenced development of a new contemporary Fire

Service Act 1979 as part of the Tasmanian Liberal Government’s plan to keep Tasmanians safe and our commitment as outlined in our First 100 Day Plan.

The Minister for Police, Fire and Emergency Management, Jacquie Petrusma, stated the following:

‘The current Act is now 42 years old, and we want to ensure that the Tasmania Fire Service is underpinned by contemporary legislation that reflects the service delivery

that is expected by the community now and into the future.

Significant work has already been undertaken on a new Act through a review of the Act by Mr Mike Blake and the House of Assembly Standing Committee Inquiry into

the State Fire Commission.

The Blake Fire Service Act Review includes 45 Recommendations for reform, and

Tasmanians are now invited to have their say on the recommendations to ensure we have an accountable, flexible and responsive fire and emergency service.

I am pleased to announce that Mr Michael Stevens, an experienced policy

professional who undertook the role of Bushfire Recovery Coordinator for the devastating Bushfires in 2013 and 2019, will lead the next stage of this important

body of work.

As the Review also made 16 Financial Management Recommendations, the

Department of Treasury and Finance will release a separate Options Paper on potential funding models to ensure that fire and emergency services in Tasmania are funded in an equitable, transparent and sustainable way.

The Tasmanian Liberal Government is taking action to keep Tasmanians safe, and we will continue to invest to ensure bushfire safety and prevention.’

As part of developing a new contemporary Fire Service Act, the Government is seeking community input on the Blake Fire Service Act Review.

The Tasmanian Government wants to ensure that fire and emergency services in Tasmania

are funded in an equitable, transparent, and sustainable way which is why we are now inviting Tasmanians to review the Options Paper and to have their say on potential future funding models.

To allow all Tasmanians to review both documents in detail and to make submissions, we

are extending the consultation period for the Blake Fire Service Act Review and the Treasury Options Paper to Monday 6 December 2021.

As previously announced, Mr Michael Stevens, an experienced policy professional who undertook the role of Bushfire Recovery Coordinator for the devastating Bushfires in 2013

and 2019, is leading the next stage of this important body of work. Specific questions that you may want to address in your submission include:

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• As the Tasmanian Government is committed to ring fencing funding for fire and

emergency services in legislation, what should the future structure and functions of a State Fire Commission be, so as to meet the future needs of Tasmania's fire and

emergency service? Why?

• Should the State Fire Commission remain as a representative based Commission or

transition to a skills-based Commission? Why?

Further information can be accessed here. Feedback may be emailed to: act.review@fire.tas.gov.au

Comments close 15 November 2021.

MULTI - Statutory Review of the Mental Health Act

The Mental Health Commission is undertaking a Statutory Review of the Mental Health Act

2014 to examine the operations and effectiveness of the Act - what is working well, and where improvements to treatment, care and support could be made.

The Mental Health Commission is reviewing the Act and want to hear from people who:

• Have received treatment under the Act;

• Have supported someone who received treatment under the Act;

• Work in the mental health sector, including as an advocate or volunteer;

• Have feedback about the operation and effectiveness of the Act.

The objectives of the Review are to:

• identify elements of the Act that work well;

• opportunities where the Act could be improved; and

• make recommendations to the Minister and Parliament.

A Discussion Paper has been developed to help guide a public comment period, with feedback sought on the Act as a whole, individual parts of the Act, and issues that have arisen since the Act commenced in November 2015.

Individuals with an interest in or experience under the Act, particularly lived experience, over the past five years are encouraged to participate in the review.

People working under and administrating the Act are also called upon to express their views and perspectives.

Extracts of the Discussion Paper are below

• Invitation to comment

• Tips for preparing your submission

• Chapter 2: Summary of the Mental Health Act (2014)

• Chapter 3: Previously Identified Issues

• Chapter 4: Previously Proposed Amendments

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Mental Health Minister Stephen Dawson, stated the following:

‘Since the Mental Health Act 2014 came into effect in November 2015 our

understanding of mental health issues and recovery continues to develop…Now is the time to review what is working well, what can be done differently and how we can better support people to live a contributing and meaningful life…This review will

make a valuable contribution to identifying possible improvements to the Act…To do this, it is vital for the Government to draw on, empower and be guided by the

critical knowledge and strength of people with a lived experience, consumers, carers, family members or other support people; as well as those who administer and work within the legislative framework…You may feel like yours is but one story,

but collectively your experiences tell the story of a community. A community which is entitled to the best practice care and support delivered in a manner which is

respectful, maintains dignity and upholds human rights’.

The Mental Health Act provides for the treatment, care, support and protection of people who have a mental illness; the protection of the rights of people who have a mental illness; and the recognition of the role of families and carers in providing the best possible care and

support to people who have a mental illness, in the least restrictive environment.

The Issues Paper can be accessed here. Further information can be accessed here.

Feedback may be submitted online here or emailed to: statutoryreview@mhc.wa.gov.au or

posted to:

Mental Health Act Statutory Review, Mental Health Commission GPO Box X2299

Perth Business Centre WA 6847

Comments close 31 January 2022.

WA - Modernising Workers Compensation Laws

The Government is seeking public submissions on the Workers Compensation and Injury

Management Bill 2021 – Consultation Draft. The draft Bill modernises WA’s workers compensation laws and is based on

recommendations from WorkCover WA’s 2014 Review of the Workers’ Compensation and Injury Management Act 1981: Final Report.

It also delivers on the McGowan Government's 2021 election commitments to increase the cap on medical and health expenses and extend the point at which a worker's income

compensation payments step down, from 13 to 26 weeks.

The Bill also implements lifetime care and support arrangements for catastrophically injured workers, delivering on a commitment between the Commonwealth and State and Territory Governments.

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The draft Bill has been prepared for public comment before it is introduced into State

Parliament, continuing WorkCover WA’s open and consultative approach on the legislative review.

The Guide to the Bill provides an overview of the structure of the Bill to help you identify key areas of interest, and provides a guide to the main provisions of the Bill.

• The Information Sheets – consolidated provide summary information on a number

of topical issues;

• The Comparison with Current Act by Key Provisions compares the Bill with the

current Act on key provisions;

• The Comparison with Current Act by Section Number identifies the consultation Bill clause numbers for the corresponding sections of the current Act, or whether a

section of the current Act is being repealed;

• The 2014 Review of the Workers’ Compensation and Injury Management Act 1981:

Final Report contains the background and recommendations for drafting a new Act on which the Bill is based.

Industrial Relations Minister Stephen Dawson, stated the following:

‘Today's launch of a draft Bill is the first step in replacing the archaic 1981 legislation with a Bill that is fair, workable and easier to understand…Election commitments delivered in this Bill will see injured workers receiving an appropriate

level of financial support for medical expenses and loss of income…I encourage anyone who has an interest in the workers' compensation scheme to make a

submission so that the workers' compensation legislation can serve Western Australia well for many decades to come’.

The Issues Paper can be accessed here.

Further information can be accessed here. Feedback may be emailed to: consultation@workcover.wa.gov.au accompanied with the

cover sheet.

Comments close 10 November 2021.

Go back to ‘In this alert’

In Other News…

MULTI - National Transport Commission Seeking Feedback to Safely Manage Truck

Driver Fatigue

The National Transport Commission is seeking industry stakeholders to an important workshop discussion on the work and rest hours for heavy vehicle drivers across Australia.

Driver fatigue is one of the top three contributors to the road toll and is associated with an increased risk of crashing and road trauma.

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As part of the Heavy Vehicle National Law Safety and Productivity Program, the NTC is

drawing on scientific and safety evidence and operational insights in Australia and internationally to inform a best practice approach to managing driver fatigue.

Dr Gillian Miles, NTC Chief Executive Officer and Commissioner, stated the following:

‘Today’s workshop is an opportunity to share the best practice research and to

factor in local conditions by listening to the many voices and experience across industry…It would be remiss of us not to fully understand the practical impacts of

applying the science and research, because we need to get the balance right and make this work for Australia…

…Evidence also tells us that shift hours longer than 12 hours are associated with at least a twofold increase in drowsiness events. International studies found some aspects of driving performance deteriorated after 8 to 9 hours driving.’

The workshop will seek feedback on the:

• impact of fatigue provisions on driver health and wellbeing and earnings;

• the wider heavy vehicle industry impacts on transport costs and productivity;

• the feasibility of transitioning to a streamlined approach that considers the types of trucking operations and regional and geographic differences across Australia.

The NTC completed a first-principles review of the law on behalf of Australia’s transport ministers and is on track to deliver a modern, outcome-focused law for regulating heavy vehicle operations in Australia.

Further information can be accessed here.

Go back to ‘In this alert’

MULTI – New PBS Access Notice Provides Permit-Free Travel

The National Class 2 Performance Based Standards (Tier 1) Authorisation Notice 2021

provides eligible Tier 1 Performance Based Standards (PBS) vehicles with immediate access to relevant PBS networks across Australia to operate on approved networks without the

need of a permit as soon as a Vehicle Approval is issued, although this may be at a restricted mass.

Operators should note that:

• They must hold a Vehicle Approval with a Tier 1 bridge assessment;

• Vehicle lengths are limited to the approved lengths contained in the PBS Network

Classification Guidelines;

• The networks approved in each State or Territory are reflected in the jurisdictional schedules. Each network has a maximum mass cap, and eligible vehicles also have

a specific length limit for each network;

• Queensland is not currently participating in this Notice.

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South Australia’s Minister for Infrastructure and Transport Corey Wingard said all PBS

vehicles must pass various safety and infrastructure standards, such as acceleration capability, turning space, pavement wear, and mass and dimension limits. Minister Wingard

went on to state the following:

‘Previously operators of these approved PBS combinations would have to apply for a permit after receiving their vehicle approval. This National Class 2 Performance

Based Standards (Tier 1) Authorisation Notice 2021 eliminates the requirement of a permit application and allows operators automatic access to approved

networks…This is another example of governments and the regulator reducing red tape and providing increased access for the heavy vehicle industry, which has

continued to keep Australia moving during the pandemic.’

NHVR CEO Sal Petroccitto said the Notice establishes a platform to provide operators with guaranteed PBS access before they build their vehicle. Mr Petroccitto stated the following:

‘Operators have told us that knowing they have immediate network access would be a big factor in deciding whether to invest in a PBS vehicle or expand their PBS

fleet…It will certainly encourage the take-up of these smarter, safer and more-productive PBS vehicles in the Australian heavy vehicle fleet…We will continue to build on this Notice by starting to roll out a higher productivity PBS notice later this

year.’

The National Class 2 Performance Based Standards (Tier 1) Authorisation Notice 2021

applies in South Australia, the Australian Capital Territory, New South Wales, Tasmania and Victoria.

Further information can be accessed here.

Go back to ‘In this alert’

MULTI – Updated Guidance Material: Managing the Risks of Working in Heat

Safe Work Australia has updated our guidance material on managing the risks of working

in heat. The new guidance reflects changes made to the recommended first aid for heat stroke.

This guide provides practical guidance for a person conducting a business or undertaking (PCBU) on how to manage the risks associated with working in heat, including information

on first aid for heat-related illnesses that reflects updated medical advice. Working in heat can be hazardous and is a common cause of harm among Australian

workers. Some common risks of working in heat include heat-related illness, dehydration, burns and reduced concentration.

The new guide states that f practicable and safe to do, immersion in a bath of cold water is the most effective means for cooling a person. This means immersing the worker (whole-

body from the neck down) in a bath of cold water (preferably 1–7˚) for 15 minutes. Further information can be accessed here.

Go back to ‘In this alert’

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WA – Mining Fined After Workers Exposed to Extreme Heat

Rio Tinto Exploration Pty Ltd has been fined $80,000 and ordered to pay $7,500 in costs

after three workers were exposed to extreme conditions without proper training.

The company pleaded guilty in the Perth Magistrates Court for failing to ensure the safety

of employees.

On 14 October 2017, two workers and a supervisor were searching for proposed drill sites in rugged terrain while working at Mount Windell in the Pilbara region of Western Australia.

The work took place over two days in temperatures estimated to be higher than 37°C.

The three men were required to walk more than 16km each day in harsh conditions, carrying

equipment and supplies.

Rio Tinto Exploration had various policies and procedures in place concerning the risks associated with exposure to extreme conditions, including hydration monitoring, recognition

of heat stress symptoms and appropriate management.

The three workers conducting the reconnaissance did not understand they were required to

complete heat stress assessments.

This procedure indicates muscle cramps and dehydration are symptoms of heat stress that

can lead to life-threatening conditions such as heat exhaustion or heat stroke if not appropriately managed.

At the end of the second day, one of the workers collapsed and later died after complaining

of leg cramps and that he felt dehydrated the day before.

While other factors contributed to the worker’s death, it is difficult to predict an individual’s

susceptibility to heat stroke and it can occur very suddenly. A person suffering heat stress must receive immediate treatment with appropriate cooling.

The exact temperature of the work site is unknown, though the nearest weather station at

Wittenoom, 48kms from the incident, recorded temperatures of 37.8°C on the day of the employee’s death and 37.4°C the day before.

Acting Mines Safety Director at the Department of Mines, Industry Regulation and Safety Sally North said employers must ensure workers understand that exposure to extreme conditions including hot, humid temperatures, while undertaking demanding work can lead

to heat stroke. Ms North went on to state the following:

‘The company had written procedures in place but they were not well known or

understood by some workers or enforced by some supervisors…As at October 2017, the company did not provide these workers with a specific training program to

educate them about the causes, symptoms and treatment of thermal stress.’

Further information can be accessed here.

Go back to ‘In this alert’

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WA – WorkCover Release COVID Vaccination & Worker’s Compensation

Guidance

WorkCover WA has published a Mandatory COVID-19 Vaccinations & Workers’ Compensation bulletin, which provides general information on the issue of COVID-19

vaccine injuries in the Western Australian workers’ compensation and injury management scheme.

The bulletin sets out the following:

• ‘While COVID-19 vaccines are safe and effective, a small percentage of people may experience more significant side effects. In certain circumstances an adverse reaction to a COVID-19 vaccine resulting in injury/ disease may be covered by

workers’ compensation;

• Workers’ compensation claims are considered and assessed by an approved insurer

on the merits of the individual claim;

• Whilst WorkCover WA is unable to provide advice as to the likely outcome of any specific claim, the following sets out key requirements that must be satisfied to

support a successful claim.’ Under the Workers’ Compensation and Injury Management Act 1981, for a worker to make

a successful workers’ compensation claim for a COVID-19 vaccine related injury or disease, the approved insurer needs to be satisfied that:

• the vaccine injury arose in, or out of, the course of the worker's employment;

• for a disease, the worker’s employment must also be shown to be a significant

contributing factor to the disease.

Further information can be accessed here.

Go back to ‘In this alert’

NZ - Govt Response to WorkSafe Independent Review

WorkSafe New Zealand has welcomed the recommendations in the "Review of WorkSafe

New Zealand’s Performance of its Regulatory Functions in Relation to Activities on Whakaari White Island."

The review was commissioned by the Minister for Workplace Relations and Safety through the Ministry of Business, Innovation and Employment (MBIE) and was carried out by David

Laurenson QC.

Phil Parkes, WorkSafe NZ Chief Executive, stated the following:

‘The tragic loss of 22 lives and the ongoing injuries and trauma sustained in the eruption of Whakaari White Island in December 2019 continue to affect us all, and in particular I acknowledge the ongoing impact on individuals and their whanau…

…WorkSafe accepts that there were significant shortcomings in our implementation

and enforcement of the Adventure Activities Regulations in relation to adventure activities on Whakaari. We deeply regret that and I am fully committed to

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improving our performance by addressing the review’s recommendations…Most

notably we accept the review finding that we should have moved faster to enforce the registration of a helicopter operator who was resisting registration under the

Health and Safety at Work (Adventure Activities) Regulations. We particularly welcome the review’s recommendation to extend the existing regulatory scheme to introduce a group of independent technical experts, identified by an appropriate

industry body, who would be available as an extra layer of assurance for the safety audits of adventure activity operators on Whakaari….When I announced WorkSafe

was filing charges against 13 parties in relation to the eruption I said ‘this was an unexpected event, but that does not mean it was unforeseeable’…Adventure activities, by their very nature, carry risk. Operators have the primary legal duty to

keep people as safe as they can while taking part in adventure activities. WorkSafe has the duty under the regulations to ensure that Operators apply for registration

so they can be subjected to independent audit of their systems. We are committed to working with the adventure activities sector to improve how risks are being

managed to ensure safety of workers and participants…WorkSafe has a vision of an Aotearoa New Zealand where everyone comes home from work healthy and safe. We will continue to work with businesses, workers and communities to achieve that

vision.’

Workplace Relations and Safety Minister Michael Wood, stated the following:

‘The Whakaari White Island eruption was a devastating tragedy where 22 people

died and more were injured - as a Government we committed to learning the lessons to help prevent similar incidents…The review found that WorkSafe fell short

of good practice in its regulation of activities on Whakaari White Island over the 2014-19 period. The review says that improvements are needed in WorkSafe’s management of the adventure activities system…The review makes clear

recommendations and my expectation is they will be actioned by July next year and have asked for their plan to complete this work by the end of the month. I have

also asked WorkSafe to consider the review’s lessons and how these might apply more broadly to other areas of their work to ensure they do not have the same issues…There is also wider work underway on improving the adventure activities

regime in New Zealand to raise safety standards. It’s important we provide safe experiences for New Zealanders and international visitors once our borders

reopen…A consultation on the adventure activities regime is currently open and I encourage everyone to have their say on the proposed improvements to health and safety in the sector…If we strengthen the adventure activities regulations and

improve WorkSafe processes, we can reduce the risk of terrible events like the Whakaari White Island eruption happening again’.

The review found that WorkSafe fell short of good practice in its regulation of activities on Whakaari White Island over the 2014-19 period. The review says that improvements are

needed in WorkSafe’s management of the adventure activities system.

The recommendations of the independent review include:

• WorkSafe should recognise activities carried out on Whakaari White Island as its

own adventure activity (rather than as part of trekking/mountaineering activities);

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• WorkSafe should identify the appropriate experience and qualifications required to

carry out an audit of these activities – in particular, the expertise to assess whether operators are using good practice to manage the risks of people being close to a

live volcano;

• WorkSafe, or an appropriate industry body, should identify individuals or

organisations with appropriate experience and qualifications, and ensure they are

available to be engaged as a technical expert when required;

• WorkSafe should implement processes to ensure that when they are informed about an audit being planned for activities on Whakaari White Island, auditors are told to

use an appropriate technical expert and are provided the details of the technical

experts available;

• WorkSafe, in partnership with the identified technical experts, should consider whether it should develop safety Guidelines for activities on Whakaari White Island.

Further information can be accessed here.

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In the Courts…

NSW - SafeWork NSW v Askfay Pty Ltd; and; SafeWork NSW v Anthony Elias

Felix Grima

District Court New South Wales

October 2021

Extract from Judgment and commentary – The link to transcript can be found at the

end of summary

A construction company (Askfay) and its site supervisor/site foreman (Mr Grima) have been fined $500,000 and $50,000 respectively, for failing to perform basic safety measures

before work was undertaken. Mr Grima was the site supervisor and site foreman, engaged by Askfay to supervise workers

at the construction site. He was a person who had control, in whole or in part, of the worksite.

Mr Grima was engaged by Mr Frank Carnuccio on behalf of Askfay, to perform tasks such as inductions and site safety operations on behalf of and as an agent of Askfay at the

worksite.

Askfay conducted a business or undertaking in the design and construction of residential and commercial buildings. Mr Carnuccio was the sole Director of Askfay.

Askfay also subcontracted with Arena Homes Pty Ltd (‘Arena’) to manufacture and erect steel frames at the site. The injured person, Mr Dyson, was employed by Arena.

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On 17 May 2018, Mr Dyson was working on level 1 of townhouse 2 when he stepped

backwards and fell through an area designated to be a stairwell measuring approximately 3 metres by 1.8 metres. He fell 3 metres onto the concrete floor of the ground level below.

Mr Dyson suffered an acute fracture of the femur and a laceration to his right fourth finger. He was admitted to Nepean Hospital for 2 days. Mr Dyson also suffered acute hip pain and

could not bear any weight on his right leg for six weeks. He travelled to his family home in Queensland for six weeks to receive assistance following the incident.

Scaffolding was installed by ABC Scaffolding Pty Ltd on 17 May 2018 and 22 May 2018. At the time of the incident, ABC Scaffolding Pty Ltd was let to complete the installation of

scaffolding.

At the time of the incident, workers were not required to wear harnesses on level 1 of townhouse 2 in the event the penetration was uncovered, nor were harnesses made

available to workers. Although Askfay and Mr Grima were not aware, the most senior person employed by Arena,

Tim Silk, had instructed workers to ‘be careful’ at a time when the existence of the uncovered penetration was known and obvious. Askfay and Mr Grima were also unaware Mr

Dyson did not hold a general construction induction card (a white card) and had not been inducted onto the worksite.

In respect to Askfay:

• No risk assessment for the erection of framing on level 1 of the worksite had been completed. A risk assessment was conducted on 15 May 2018 but did not involve

the erection of framing as scaffolding was only expected on 17 May 2018.

• Not all available steps were taken to ensure that Arena or its employees had completed a risk assessment regarding working from heights on level 1 of the

worksite.

• Not all available steps were taken to ensure that scaffolding and penetration covers

were in place before workers commenced work on level 1 of the worksite.

• Not all available steps were taken to ensure that Mr Dyson held a white card.

• Not all available steps were taken to ensure that Mr Dyson had read and understood any Safe Work Method Statement (‘SWMS’) associated with high risk construction work being undertaken on the worksite.

In respect to Mr Grima:

• He was the site supervisor and had the authority to refuse workers access until

scaffolding and penetration covering were in place. • Not all available steps were taken to exercise his authority to prohibit workers from

working on level 1 of townhouse 2 until such time as scaffolding and penetration

covering were in place.

• He had not ensured adequate scaffolding and penetration coverings were in place.

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• Not all available steps were taken to ensure that workers did not work on level 1 of

townhouse 2 if scaffolding and penetration coverings were not in place.

• Not all available steps were taken to ensure Mr Dyson held a white card.

• Not all available steps were taken to ensure that Mr Dyson had read and understood any SWMS associated with working at heights at the worksite.

Systems of Work After Incident

On 22 May 2018, following the incident, SafeWork NSW issued a Prohibition Notice to cease work on level 1 of the worksite until and unless the Housing Code of Practice is complied with, specifically, the requirement to provide void and edge protections.

On 24 May 2018, SafeWork NSW issued an Improvement Notice direction that a suitable

scaffolding system be completed and be made safe for use at the worksite. On 24 May 2018, Askfay, with the assistance of Arena, complied with the Prohibition Notice

and Improvement Notice by installing scaffolding and penetration covers at the worksite.

Guilty Peas

On 14 December 2020, Askfay entered a plea of guilty in respect of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) that it failed to comply with its health and

safety duty under Section 19(1) of the Work Health and Safety Act 2011 (NSW) and thereby and Michael Dyson to a risk of death or serious injury.

On 14 December 2020, Mr Grima entered a plea of guilty in respect of an offence under Section 32 of the Work Health and Safety Act 2011 (NSW), that he failed to comply with his

health and safety duty, being a person with management or control of a workplace who had a duty under Section 20(2) of the Work Health and Safety Act 2011 (NSW) and thereby exposed Mr Barota, Mr Ferguson, Mr Sharp, Mr Silk and Mr Dyson to a risk of death or

serious injury.

The maximum penalty for an offence under s 32 of the Act for a corporate entity is $1,500,000.00. The maximum penalty for an offence for an individual is $300,000.00.

Judgement

NSW District Court Judge Wendy Strathdee stated that ‘Despite there being no scaffolding

on site, Askfay and Mr Grima elected to continue operating despite the need for scaffolding. This election to continue in spite of fall protection had tragic consequences. That adds to

the seriousness of the offence given that the risk was clearly foreseen…

… There were no measures put in place to protect workers working on the first floor other than those workers being told to ‘be careful’. That is effectively no safety measures at all, and it is the lack thereof which culminated in both the exposure to risk between 17 and 22

May 2018, and by the manifestation of the risk being the significant injuries tragically sustained by Mr Dyson…

… It is trite law, that the duties of each of the defendants required that they ensure the health and safety of workers, as far as reasonably practicable, is paramount. It is expected,

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and in fact the case, that such a duty is not delegable and each of the defendants had

control and influence over the workers on the site. The duty required the identification of risks in the workplace and a detailed assessment of the measures to address each of those

risks, with a relevant safety plan not only notified to the workers but implemented by direction and correction.

The risk was clearly foreseen and glaringly obvious. By not ensuring that the scaffolding was installed, Askfay and Grima elected to permit the site to operate unsafely.’

Judge Strathdee noted that in all four affidavits there was not one word to demonstrate any remorse or contrition.

Judge Strathdee ordered Askfay and Grima to pay penalties of $375,000 and $37,500, after

25% discounts for their guilty pleas.

The full transcript of the Court’s Judgment can be found here.

Yours Faithfully,

Workplace Safety Australia Pty Ltd

Important Note The information contained in this Safety Alert is in general terms only and does not constitute legal advice or

other professional advice. The information contained in this Safety Alert should not be relied upon and is no

substitute for seeking legal or other professional advice as appropriate to any facts, circumstances and materials that might be necessary for you to provide to a professional advisor. While all reasonable care is taken in producing Safety Alerts, Workplace Safety Australia, its Consultants, Lawyers and all others involved in providing this Safety Alert all expressly disclaim all and any liability for the results of any actions or failure to act taken on the basis of this Safety Alert, and for any error or omission arising there from. The information contained therein does not necessarily reflect the views of the management of Workplace Safety Australia. Should you

wish to discuss this further, please contact Workplace Safety Australia on 02 9387 1248 DISCLAIMER PRIVATE AND CONFIDENTIAL

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