Chapter 1 sets out preliminary matters including
commencement dates, authorising provisions and definitions.
Part 1.1 – Introductory matters
Regulation 1 – Name of Regulations
Regulation 1 names the
Regulations the Work Health and Safety Regulations 2011.
Regulation 2 – Commencement
Regulation 2 provides
that the Regulations (except regulation 164) commence on
1 January 2012.
Regulation 164 and Part 4.8 commence on
1 January 2013.
A number of provisions in these Regulations will commence on
1 January 2013, but will not immediately impose duties on a person as
a result of transitional arrangements set out in Chapter 12.
Regulation 3 – Authorising provisions
Regulation 3 provides
that the Regulations are made under section 276 of the Work Health and
Safety Act 2011, Schedule 3 to that Act and the Work Health and Safety
(Transitional and Consequential Provisions) Act 2011.
Regulation 5 – Definitions
Definitions in the WHS Act also apply to these Regulations. Examples
of relevant definitions include:
·
corresponding regulator;
·
corresponding WHS law (see also regulation 6A);
·
employee record;
·
health and safety representative;
·
notifiable incident;
·
WHS entry permit
Regulation 5 provides
a list of definitions relevant to the Regulations. Key definitions include:
‘competent person’
The term ‘competent person’ is used throughout the
Regulations to define a person who has acquired through training, qualification
or experience the knowledge and skills to carry out specific tasks.
Paragraph (a) sets out who is a ‘competent person’ for
electrical work on energised electrical equipment or energised electrical
installations in relation to these Regulations (and in particular Regulations
155, 168 and 161).
To ensure consistent application of both the Commonwealth
and state and territory law to situations where these Regulations may apply
concurrently with a corresponding WHS law, these Regulations cross reference
the corresponding definition in the corresponding State or Territory WHS law.
Subparagraph (a)(i) provides that a competent person for
electrical work on energised electrical equipment would be a person who is
‘competent’ within the meaning of the equivalent provision in the corresponding
WHS law.
Where there is not a corresponding definition because that
jurisdiction has not enacted the provisions of the model WHS Regulations,
subparagraph (a)(ii) provides that a person who is licensed or permitted under
a law of the relevant State relating to electrical safety or occupational
licensing is a ‘competent person’. State is defined in section 4 of the WHS
Act to include a Territory.
For example, a person who holds a licence under the Electricity
Licensing Regulations 1991 (WA) to undertake electrical work would be
competent by virtue of this definition if subparagraph (a)(ii) applies.
Subparagraph (a)(iii) makes it clear that while a member of
the Defence Force is not bound by any law of a State or Territory that would
require the member to have permission (e.g. a licence) to do anything in the
course of his or her duties as a member of the Defence Force by virtue of
section 123 of the Defence Act 1903, an equivalent level of competency
is required. A member of the Defence Force will be a ‘competent person’ when
they have acquired through training, qualification or experience the knowledge
and skills to carry out the task.
A PCBU is required to ensure that specified work is only
undertaken by a competent person in the following chapters:
·
Chapter 4 – Hazardous work (Part 4.3 – Confined spaces; Part 4.7
– General Electrical Safety in Workplace and Energised Electrical Work; and
Part 4.8 – Diving Work);
·
Chapter 5 – Plant and structures; and
·
Chapter 8 – Asbestos
‘Commission’
The term ‘commission’ means the Safety Rehabilitation and
Compensation Commission established by section 89A of the Safety
Rehabilitation and Compensation Act 1989.
‘electricity supply authority’
The term ‘electricity supply authority’ is used throughout
Part 4.7 (General Electrical Safety in Workplaces and Energised Electrical
Work) to refer to an authority that supplies electricity to places of work.
To ensure consistent application of both the Commonwealth
and state and territory law to situations where these Regulations may apply
concurrently with a corresponding WHS law, these Regulations cross reference
the corresponding definition in a corresponding state or territory WHS law.
Paragraph(a) provides that an ‘electricity supply authority’
is a person or body that is an electricity supply authority under a
corresponding WHS law.
Where there is no relevant corresponding WHS law definition
because that jurisdiction has not enacted the provisions of the model WHS
Regulations, paragraph (b) provides that an ‘electricity supply authority’ is a
person or body permitted or licensed under a law of a State regulating the
electricity industry to distribute, generate or transmit electricity.
For example, a supply authority permitted or licensed under
the Electricity Act 1945 (WA) would be an ‘electricity supply authority’
if paragraph (b) applied.
‘emergency service organisation’
The term ‘emergency services organisation’ is used
throughout Part 4.6 (Demolition Work) and Part 4.7 (General Electrical Safety in
Workplaces and Energised Electrical Work) in relation to exemptions from
certain requirements in the Regulations.
The definition is consistent with the definition of
‘emergency service worker’ as found in the WHS Act.
‘excavation’
The term ‘excavation’ means a trench, tunnel or shaft but
does not include the following:
·
A mine;
·
A bore to which a law mentioned in the definition of ‘excavation’
in a corresponding WHS law applies, or to which a state or territory law
applies if there is no corresponding WHS law; or
·
A trench for use as a place of interment.
To ensure consistent application of both the Commonwealth
and state and territory law to situations where these Regulations may apply
concurrently with a corresponding WHS law, these Regulations cross reference
the corresponding definition in the corresponding State or Territory WHS law.
Subparagraph (b)(i) provides that the definition of
‘excavation’ does not include a bore to which a law mentioned in the definition
of excavation in a corresponding WHS law applies.
Where there is no relevant law specified in the definition
of ‘bore’ in the corresponding State or Territory WHS law because that
jurisdiction has not enacted the provisions of the model WHS Regulations,
subparagraph (b)(ii) provides that the definition of ‘excavation’ does not
include a bore which is regulated under another law of the State. State is
defined in section 4 of the WHS Act to include a Territory.
For example, a bore that is regulated under the Health
(Underground Water Supply) Regulations 1959 (WA) would not fall within the
definition of excavation if subparagraph (b)(ii) applies.
The term ‘excavation’ is part of the term ‘excavation work’,
which is subject to Division 3 of Part 6.3 of Chapter 6.
‘general construction induction training card’
The term ‘general construction induction training card’ is
used within Division 2 of Part 6.5 (General construction induction training
requirements) and refers to cards issued by the regulator to persons who have
successfully completed general construction induction training.
The Commonwealth scheme of general construction induction
training cards is to be administered by the regulator.
‘GHS’
The term ‘GHS’ refers to the Globally Harmonised System of
Classification and Labelling of Chemicals, Third revised edition, published by
the United Nations.
The GHS can be purchased at a cost from the United Nations
Economic Commission for Europe website (http://www.unece.org/trans/danger/publi/ghs/ghs_pubdet.html).
‘OHS Act’
The term ‘OHS Act’ means the Occupational Health and
Safety Act 1991.
‘OHS Regulations’
The term ‘OHS Regulations’ means the Occupational Health
and Safety (Safety Standards) Regulations 1994.
‘pressure piping’
The term ‘pressure piping’ means an assembly of pipes, pipe
fittings, valves and pipe accessories subject to internal or external pressure
and used to convey liquid or to transmit liquid pressure, and includes
distribution headers, bolting, gaskets, pipe supports and pressure containing
accessories.
The definition does not include a boiler or pressure vessel,
or any piping that is regulated under either a law mentioned in the definition
of ‘pressure piping’ in a corresponding WHS law or, in the absence of a
corresponding WHS law, another relevant law of a State.
To ensure consistent application of both the Commonwealth
and state and territory law to situations where these regulations may apply
concurrently with a corresponding WHS law, these regulations cross reference
the corresponding definition in a corresponding WHS law.
Subparagraph (d)(i) provides that the definition of
‘pressure piping’ does not include any piping that is regulated under a law
mentioned in the definition of ‘pressure piping’ in a corresponding WHS law.
Where there is no relevant corresponding WHS law definition
because that jurisdiction has not enacted the provisions of the model WHS
Regulations, subparagraph (d)(ii) provides that the definition of ‘pressure
piping’ does not include pressure piping that is regulated under a law of a
State and is used for transmission or distribution of water, gas or oil or
other fluid.
For example, pressure piping that is regulated under the Pipelines
Act 2005 (Vic) would not fall within the definition of pressure piping if
subparagraph (d)(ii) applies.
‘primary emergency services organisation’
The term ‘primary emergency services organisation’ is used
in regulation 359 (Part 7 – Hazardous Chemicals) to identify the organisation
that is most likely to attend in an emergency.
To ensure consistent application of Commonwealth, state and
territory WHS laws, this definition cross references the definition in the
corresponding state or territory law. The definition in the corresponding WHS
law will generally prescribe the relevant fire service.
‘relevant fee’
The term ‘relevant fee’ used throughout the Regulations
refers to the fees specified in Schedule 2 to these Regulations.
Regulation 6 – Determination of safety management system
Regulation 6 provides
that the regulator may make a determination for the purposes of defining the
term ‘certified safety management system’.
Regulation 6A – Meaning of corresponding WHS law
Regulation 6A
provides for the State and Territory laws that constitute a ‘corresponding WHS
law’ for the purposes of section 4 of the WHS Act.
Regulation 6B – Meaning of court
Regulation 6B
prescribes the courts of a State or Territory that apply to paragraph (d) of
the definition of ‘court’ in section 4 of the WHS Act. This includes a
district court, a local court, a magistrates court and the Industrial Relations
Court of South Australia.
Regulation 6C – Meaning of public authority
Regulation 6C
prescribes the bodies corporate that apply to paragraph (c) of the definition
of ‘public authority’ in section 4 of the WHS Act.
Regulation 7 – Meaning of person conducting a business
or undertaking – persons excluded
Regulation 7
clarifies that, for the purposes of section 5 of the WHS Act, the following are
not deemed to be a PCBU:
·
a strata body corporate that is responsible for any common areas
used only for residential purposes; and
·
an incorporated association consisting of a group of volunteers
working together for one or more specified community purposes.
Regulation 8 – Meaning of supply
Regulation 8
clarifies the meaning of ‘supply’ for the purposes of paragraph 6(3)(b) of the
WHS Act, by specifying that the supply of a thing does not include the
situation where a thing is supplied by a person, such as an auctioneer or a
real estate agent, who does not control the supply and has no authority to make
decisions about the supply.
Regulation 9 – Provisions linked to health and safety
duties in the Act
Regulation 9 provides
that if a note in a foot of a provision of these Regulations states ‘WHS Act’
followed by a reference to a section number of the WHS Act, then the regulation
sets out the way in which a person’s duty or obligation under the section of the
WHS Act referred to in the regulation is to be performed in relation to the
matters and to the extent set out in the regulation provision. A failure to
comply with a duty or obligation under the section of the WHS Act referred to
in a regulation linked to the WHS Act is an offence to which a penalty applies.
Part 1.2 – Application
Regulation 11 – Application of these Regulations
Regulation 11 specifies
that a duty imposed on a person under a provision of the Regulations in
relation to health and safety does not limit or affect any duty the person has
under the WHS Act or, unless otherwise expressly provided, any other provision
of the Regulations.
Regulation 12 – Assessment of risk in relation to a class
of hazards, tasks, circumstances or things
Regulation 12 specifies
the conditions under which a risk assessment may be carried out for a class of
hazards, tasks, things or circumstances.
Part 1.3 – Incorporated documents
Regulation 13 – Documents incorporated as in force when
incorporated
Regulation 13 provides
that a reference to a document applied, adopted or incorporated by, or referred
to in the Regulations is taken to be the document in force at the time it was
applied, adopted or incorporated by, or referred to, unless otherwise advised.
Regulation 14 – Inconsistencies between provisions
Regulation 14
provides that where an inconsistency exists, a provision of the Regulations
will prevail over any provision of a document applied, adopted or incorporated
by, or referred to in the Regulations.
Regulation 15 – References to standards
Regulation 15 clarifies
what is meant by references made to Australian Standards and Australia/New
Zealand Standards in the Regulations.
Chapter 2 sets out rights and duties of PCBUs, workers,
workers’ unions and other workers’ representatives about the determination of
work groups and the election, removal and training of health and safety
representatives, and the procedure for resolution of health and safety issues.
It also prescribes requirements for workplace entry by WHS permit holders.
This Chapter prescribes matters for Part 5 of the WHS Act –
Consultation, representation and participation and Part 7 of the WHS Act –
Workplace entry by WHS entry permit holders.
Part 2.1 – Representation
Division 1 – Work groups
Regulation 16 – Negotiations for and determinations of
work groups
Regulation 16
provides that any negotiations for work groups, determinations of work groups
or variation of work groups must be directed at ensuring that workers are
grouped in a way that most effectively and conveniently enables the
representation of the workers’ work health and safety interests. The need for
a health and safety representative to be readily accessible to each worker in
the work group must also be taken into account.
Regulation 16 also notes that under subsection 51(3) of the
WHS Act, a work group may be determined so as to include workers at more than
one workplace. Under Subdivision 3 of Division 3 of Part 5 of the WHS Act, a
work group may also be determined to include workers who carry out work for two
or more PCBUs at one or more workplaces.
Regulation 17 – Matters to be taken into account in
negotiations
Regulation 17
prescribes the matters to be taken into account when negotiating for and
determining work groups, as well as varying agreements concerning work groups,
for the purposes of subsections 52(6) and 56(4) of the WHS Act. This
regulation provides that all relevant matters must be taken into account,
including the thirteen matters set out in the regulation.
The list includes matters such as the number of workers, and
the nature and type of work carried out by the workers.
Division 2 – Health and safety representatives
Regulation 18 – Procedures for election of health and
safety representatives
Regulation 18 sets
out the minimum procedural requirements for the election of a health and safety
representative for a work group as required by subsection 61(2) of the WHS Act.
Subsection 42(2) of the WHS Act requires the person
conducting the election to take all reasonable steps to ensure that:
·
each PCBU with a worker in the work group is informed of the date
of the election as soon as practicable after the date is determined;
·
all workers in the workgroup are given an opportunity to nominate
for the position of health and safety representative and to vote in the
election; and
·
all workers in the work group and all relevant PCBUs are informed
of the outcome of the election.
Regulation 19 – Persons conducting business or undertaking
must not delay election
Regulation 19
provides that it is an offence for a PCBU to unreasonably delay the election of
a health and safety representative.
Regulation 20 – Removal of health and safety
representatives
Regulation 20
outlines how a majority of members of a work group may remove a health and
safety representative as allowed under subparagraph 64(2)(d) of the WHS Act.
Subregulation 20(1) provides that a majority of the members
of a work group may remove a health and safety representative for that work
group if those members sign a written declaration that the health and safety
representative should no longer represent the work group.
Subregulation 20(2) provides that a member of the work group
nominated by the members who signed the declaration removing the health and
safety representative, must, as soon as practicable, inform the removed health
and safety representative and each PCBU with a worker in the work group of the
removal. The nominated member must also, as soon as practicable, take all reasonable
steps to inform all members of the work group of the removal.
Subregulation 20(3) provides that the removal takes effect
when the health and safety representative concerned, each PCBU with a worker in
the work group, and the majority of members of the work group have been
informed of the removal.
Regulation 21 – Training for health and safety
representatives
Regulation 21 sets
out the training entitlements of health and safety representatives as provided
by subsection 72(1) of the WHS Act.
Subregulation 21(1) provides that a health and safety
representative (including a deputy health and safety representative) is
entitled to attend an initial course of training in work health and safety of 5
days duration. A health and safety representative (including a deputy health
and safety representative) is also entitled to one day’s refresher training
each year, with the entitlement to the first refresher training commencing one
year after the initial training of 5 days duration.
Subregulation 21(2) allows the regulator to have regard to
all relevant matters when approving a course of training in work health and
safety for the purposes of subparagraph 72(1)(b) of the WHS Act, including:
·
the content and quality of the curriculum,
·
relevance of the curriculum to the powers and functions of a WHS
permit holder, and
·
the qualifications, knowledge and experience of the person who is
to provide the training.
Regulation 21 also notes that in addition to the
entitlements set out in this section, the health and safety representative and
the relevant PCBU may agree that the representative will attend or receive
further training. It is further noted that the power to approve a course of
training includes a power to revoke or vary the approval.
Part 2.2 – Issue resolution
Regulation 22 – Agreed procedure – minimum requirements
Subsection 81(2) of the WHS Act provides that when a health
or safety issue arises at a workplace, the parties must make reasonable efforts
to resolve the issue in accordance with the relevant agreed procedure if there
is one in place.
Regulation 22 sets out the minimum requirements for an agreed
procedure for issue resolution at a workplace. An agreed procedure may include
any matters that the parties agree to. However, subregulation 22(2) provides
that an agreed procedure must include all of the steps set out in the default
procedure at subregulation 22(3).
Subregulation 22(3) places an obligation on a PCBU at a
workplace to ensure that any agreed procedure for issue resolution complies
with subregulation 22(2), is set out in writing, and is communicated to all
workers to whom the agreed procedure applies.
Regulation 23 – Default procedure
Subsection 81(2) of the WHS Act provides that when a health
or safety issue arises at a workplace, the parties must make reasonable efforts
to resolve the issue in accordance with the relevant agreed procedure if there
is one in place, or if there is no agreed procedure, the default procedure
prescribed in the regulations.
Regulation 23 sets
out the default procedure for issue resolution for the purposes of Subsection
81(2) of the WHS Act.
Subregulation 23(2) provides that any party to the issue may
commence the issue resolution procedure by telling each of the other parties
that there is an issue to be resolved and the nature and scope of the issue.
Subregulation 23(3) provides that as soon as the parties are
told of the issue, all parties must meet or communicate with each other to
attempt to resolve the issue.
In attempting to resolve the issue, subregulation 23(4) requires
the parties to have regard to all relevant matters including:
·
the degree and immediacy of risk to workers or other persons
involved in the issue;
·
the number and location of workers and other persons affected by
the issue;
·
the temporary or permanent measure that must be implemented to
resolve the issue; and
·
the person responsible for implementing the resolution measures.
Subregulation 23(5) provides that a party who is involved in
resolving the issue may nominate a person to assist or represent them.
Subregulation 23(6) provides that if an issue is resolved,
and any party to the issue requests it, details of the issue and its resolution
must be set out in a written agreement. The subregulation also notes that
under section 80 of the WHS Act, parties to an issue include a PCBU, a worker,
a health and safety representative, and any representatives of these persons.
If a written agreement is prepared, subregulation 23(7)
provides that all parties to the issue must be satisfied that the written
agreement reflects the resolution of the issue. Subregulation 23(8) further
provides that a copy of the written agreement must be provided to all parties
to the issue. Subregulation 23(8) also requires a copy of the written
agreement to be provided to the health and safety committee for the workplace
if it requests a copy.
Subregulation 23(9) clarifies that nothing in the issue
resolution procedure prevents a worker from bringing a work health and safety
issue to the attention of the worker’s health and safety representative.
Part 2.3 – Cessation of unsafe work
Regulation 24 – Continuity of engagement of worker
Section 88 of the WHS Act provides that if a worker ceases work in
circumstances where they are entitled to do so, and complies with the
requirements set out in that section, their action does not affect the
continuity of their engagement for prescribed purposes.
Regulation 24 sets
out the prescribed purposes referred to by section 88 of the WHS Act. These
prescribed purposes are the assessment of eligibility for, or the calculation
of benefits for, any benefit or entitlement associated with the worker’s
engagement. This includes:
·
remuneration and promotion as affect by seniority;
·
superannuation benefits;
·
leave entitlements; and
·
any entitlement to notice of termination of engagement.
Part 2.4 – Workplace entry by WHS entry
permit holders
Note: A ‘WHS entry permit’ is defined in clause 5 of the WHS Act
to mean a permit issued under Part 7 of the WHS Act or the equivalent part of a
corresponding WHS law.
Regulation 25 – Training requirement for WHS entry permits
Regulation 25
provides that the prescribed training required under sections 131 and 133 of
the WHS Act is training that is provided or approved by the regulator.
Subregulation 25(1) sets out the matters that must be covered by the training.
Subregulation 25(2) requires the training to provide
participants with information about the availability of any guidance material
published by the regulator in relation to the WHS Act and these Regulations.
Subregulation 25(3) provides that for the purpose of
approving training, the regulator must have regard to any relevant matter,
including:
·
the content and quality of the curriculum;
·
relevance of the curriculum to the powers and functions of a WHS
permit holder; and
·
the qualifications, knowledge and experience of the person who is
to provide the training.
The power to approve training includes a power to revoke or
vary the approval.
Regulation 26 – Form of WHS entry permit
Regulation 26 sets
out the information that must be included in a WHS entry permit.
Regulation 27 – Notice of entry – general
Regulation 27
provides that a notice of entry under Part 7 of the WHS Act must be written.
It also sets out the information that must be included in a notice of entry.
Regulation 28 – Additional requirements – entry under
section 117
Regulation 28 sets
out additional requirements for entry under section 117 of the WHS Act (entry
to enquire into suspected contraventions). A notice of entry in relation to
section 117 must also include:
·
so far as reasonably practicable, the particulars of the
suspected contravention to which the notice relates;
·
a declaration stating:
o
that the union is entitled to represent the industrial interests
of a worker who carries out work at the workplace entered, and that the worker
is a member, or eligible to be a member, of that union;
o
the provision in the union’s rules that entitles the union to
represent the industrial interests of that worker; and
o
that the suspected contravention relates to or affects that
worker.
Regulation 28 also notes that section 130 of the WHS Act
provides that a WHS entry permit holder is not required to disclose the name of
any worker to the PCBU, and may do so only with the consent of the worker.
Regulation 29 – Additional requirements – entry under
section 120
Regulation 29 sets
out additional requirements for a notice of entry under section 120 of the WHS
Act (entry to inspect employee records or information held by another person).
A notice of entry in relation to section 120 must also include:
·
so far as reasonably practicable, the particulars of the
suspected contravention to which the notice relates;
·
a description of the employee records and other documents, or the
classes of records and documents that are directly relevant to the suspected
contravention that are proposed to be inspected;
·
a declaration stating that:
o
the union is entitled to represent the industrial interests of a
worker who is a member, or eligible to be a member, of that union;
o
the provision in the union’s rules that entitles the union to
represent the industrial interests of that worker;
o
the suspected contravention relates to or affects that worker;
and
o
the records or documents proposed to be inspected relate to that
contravention.
Regulation 29 also notes that section 130 of the WHS Act
provides that a WHS entry permit holder is not required to disclose the name of
any worker to the PCBU, and may do so only with the consent of the worker.
Regulation 30 – Additional requirements – entry under
section 121
Regulation 30 sets
out additional requirements for a notice of entry under section 121 of the WHS
Act (entry to consult and advise workers). A notice of entry in relation to
section 121 must also include:
·
a declaration stating:
o
that the union is entitled to represent the industrial interests
of a worker who carries out work at the workplace proposed to be entered, and
that the worker is a member, or eligible to be a member, of that union; and
o
the provision in the union’s rules that entitles the union to
represent the industrial interests of that worker.
Regulation 30 also notes that section 130 of the WHS Act
provides that a WHS entry permit holder is not required to disclose the name of
any worker to the PCBU, and may do so only with the consent of the worker.
Regulation 31 – Register of WHS entry permit holders
Regulation 31
provides that for the purposes of section 151 of the WHS Act, the authorising
authority must publish on its website an up to date register of persons who
hold a WHS entry permit issued under Part 7 of the WHS Act and the date the
register was last updated.
Corresponding duties will be imposed on State and Territory
authorities to maintain a register of persons who hold an entry permit that is
issued under the State or Territory WHS laws.
Part 3.1 – Managing risks to health and
safety
Part 3.1 imposes risk management duties on PCBUs who have
duties under these Regulations to manage risks to health and safety. It
requires duty holders to manage risks to health and safety by identifying
hazards, applying a hierarchy of risk control measures and, in specified
circumstances, requires a review of risk control measures.
Duty holders under this Part also have duties under section
17 of the WHS Act to manage risks, and duties under Part 5 Division 2 of the
WHS Act to consult with workers about matters in this Part. Section 27 of the
WHS Act applies to officers in respect of this Part.
There are additional Regulations about management of risk in
Part 4.1 – Noise; Part 4.2 – Hazardous manual tasks; Part 4.3 – Confined
spaces; Part 4.4 – Falls; Part 4.7 – General electrical safety in
workplaces and energised electrical work; Part 4.8 – Diving work;
Chapter 5 – Plant and Structures; Chapter 6 – Construction Work;
Part 7.1 – Hazardous Chemicals; Part 7.2 – Lead; Chapter 8 – Asbestos;
and Chapter 9 – Major Hazard Facilities.
Defined terms in Chapter 1 which are relevant to this Part
include administrative control, control measure, duty holder, engineering
control, and personal protective equipment.
Regulation 32 – Application of Part 3.1
Regulation 32
specifies that Part 3.1 applies to a PCBU who has a duty under the Regulations
to manage risks to health and safety.
Regulation 33 – Specific requirements must be complied
with
Regulation 33
provides that any specific requirements under the Regulations for the
management of risk must be complied with when implementing the requirements of
Part 3.1.
Regulation 34 – Duty to identify hazards
Regulation 34
requires a duty holder, in managing risks to health and safety, to identify
reasonably foreseeable hazards that could result in risks to health and safety.
Regulation 35 – Managing risks to health and safety
Regulation 35
specifies the ways in which a duty holder must manage risks to health and safety.
Risks to health and safety must first be eliminated so far as is reasonably
practicable. If it is not reasonably practicable to eliminate risks to health
and safety, then the risks must be minimised so far as is reasonably
practicable.
Regulation 36 – Hierarchy of control measures
Regulation 36 sets
out the hierarchy of control measures to be implemented to minimise risks to
health and safety if it is not reasonably practicable for a duty holder to
eliminate risks to health and safety. Administrative controls must be
implemented if a risk remains after implementing risk control measures. A duty
holder may use a combination of controls to minimise a risk so far as is
reasonably practicable if a single control is not sufficient for the purpose.
This regulation refers to the term ‘administrative control’,
which is defined in regulation 5.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Regulation 37 – Maintenance of control measures
Regulation 37
provides that a duty holder must ensure effectiveness of a control measure that
is implemented to eliminate or minimise risks to health and safety. The duty
holder must also ensure that the control measure is maintained so that it
remains effective.. In order to do this, the duty holder must ensure that the
control measure is and remains fit for purpose, suitable for the nature and
duration of work, and installed, set up and used correctly.
Regulation 38 – Review of control measures
Regulation 38
requires a duty holder to review and revise control measures implemented under
the Regulations in certain circumstances so as to maintain, so far as is
reasonably practicable, a work environment that is without risks to health or
safety. Health and safety representatives may request a review of control
measures under circumstances set out in subregulation 38(4).
Part 3.2 – General workplace management
Part 3.2 imposes duties upon PCBUs to ensure that the
environment at a workplace is without risks to health and safety. It requires
the provision of facilities, first aid, emergency plans, training and
instruction for workers and imposes duties regarding remote or isolated work
and falling objects. It imposes duties regarding personal protective equipment
upon PCBUs who direct the carrying out of work at a workplace, workers and
other persons at a workplace.
Duty holders under this Part may also have health and safety
duties under sections 19, 20, 21, 28 or 29 of the WHS Act. PCBUs may have
duties under Part 5 Division 2 of the WHS Act to consult with workers about
matters in this Part. Section 27 of the WHS Act applies to officers in respect
of this Part.
There are additional Regulations about emergency plans in
Part 4.3 – Confined spaces; Part 4.4 – Falls; Part 4.8 – Diving
work; Part 7.1 – Hazardous chemicals; and Chapter 9 – Major
hazard facilities.
Additional Regulations about personal protective equipment
are contained in Part 4.3 – Confined spaces; Part 4.4 – Falls;
Chapter 6 – Construction work; and Chapter 8 – Asbestos.
Additional Regulations about workplace environmental
conditions relate to Part 4.2 – Hazardous manual tasks; Part 4.3 – Confined
spaces; Part 4.4 – Falls; Part 4.7 – General electrical safety in
workplaces and energised electrical work; Chapter 6 – Construction work;
Chapter 8 – Asbestos; and Chapter 9 – Major hazard facilities.
Regulations about training, information and instruction are
also included in Part 4.3 – Confined spaces; Part 4.4 – Falls;
Part 4.8 – Diving work; Chapter 6 – Construction work; Part 7.1 –
Hazardous chemicals; Part 7.2 – Lead; Chapter 8 – Asbestos;
and Chapter 8 – Major hazard facilities.
Defined terms in Chapter 1 which are relevant to this Part
include:
·
combustible liquid
·
combustible substance
·
contaminant, control measure
·
emergency service organisation
·
emergency service worker
·
essential services
·
exposure standard
·
flammable gas
·
gas cylinder
·
hazardous area
·
ignition source
·
lower explosive limit (LEL)
·
personal protective equipment, and
·
safe oxygen level.
Division 1 – Information, training and instruction
Regulation 39 – Provision of information, training and
instruction
Regulation 39
requires a PCBU to ensure that information, training and instruction provided
to a worker are suitable and adequate, and takes into account the nature of the
work being carried out, the natures of the risks associated with the work and
the control measures that are implemented.
Division 2 – General working environment
Regulation 40 – Duty in relation to general workplace
facilities
Regulation 40 sets
out the requirements for a PCBU at a workplace to ensure that the workplace
layout and maintenance allows persons to enter, exit and move about without
risk to health and safety in normal working conditions and in an emergency.
Regulation 40 also sets out similar requirements in relation
to space for work to occur, floors and other surfaces, lighting, ventilation,
work undertaken in extremes of heat or cold, and work on or near essential
services.
This regulation refers to the term ‘essential services’,
which is defined in regulation 5.
Regulation 41 – Duty to provide and maintain adequate and
accessible facilities
Regulation 41
provides that a PCBU at a workplace must ensure the provision and maintenance
of adequate facilities for workers. Facilities in this regulation include
toilets, drinking water, washing facilities and eating facilities. The PCBU is
required to consider a number of listed relevant matters in determining the
adequacy of facilities.
Division 3 – First aid
Regulation 42 – Duty to provide first aid
Regulation 42
provides that a PCBU at a workplace must ensure the provision of first aid equipment,
access to first aid facilities and access by each worker to the equipment. A
PCBU is also required to ensure that an adequate number of workers are trained
to administer first aid or given access to an adequate number of other persons
who have been trained to administer first aid. The PCBU is required to
consider a number of listed relevant matters in determining the adequacy of
first aid facilities and equipment.
Division 4 – Emergency plans
Regulation 43 – Duty to prepare, maintain and implement
emergency plan
Regulation 43
requires a PCBU at a workplace to prepare an emergency plan for the workplace
which provides for specified requirements, such as emergency procedures, the
testing of emergency procedures and information, training and instruction to
relevant workers in relation to implementing the emergency procedures. All
relevant matters must be considered when preparing the plan, and the PCBU is
required to implement the emergency plan in the event of an emergency.
Note: Regulation 717 provides that the duties imposed on a person
under regulation 43 do not apply until 1 January 2013.
Division 5 – Personal protective equipment
This Division refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Regulation 44 – Provision and use of personal protective
equipment
Regulation 44 applies
if personal protective equipment is to be used to minimise a risk to health and
safety in relation to work at a workplace in accordance with the hierarchy of
control measures outlined in regulation 36. Regulation 44 requires the PCBU
who directs the carrying out of work to provide the personal protective
equipment to workers at the workplace, unless the personal protective equipment
has been provided by another PCBU.
Regulation 44 provides that the PCBU who directs the
carrying out of work must ensure that the personal protective equipment
provided is selected to minimise risk to health and safety is suitable for the
work and associated hazards, and is of a suitable size and fit and reasonably
comfortable for the worker. The personal protective equipment must also be
maintained so that it is clean and hygienic and in good working order. The
PCBU must also ensure that the appropriate personal protection equipment is
worn by the worker. The PCBU must provide the worker with training,
information and instruction in the proper use, wearing, storage and maintenance
requirements.
Regulation 45 – Personal protective equipment used by
other persons
Regulation 45
requires that a PCBU who directs the carrying out of work must ensure that
personal protective equipment used by any person other than a worker at a
workplace is capable of minimising risk to the person’s health and safety, and
that the person uses or wears the equipment.
Regulation 46 – Duties of worker
Regulation 46 applies
if a PCBU provides a worker with personal protective equipment. In such a case,
the worker is required to:
·
wear the equipment in accordance with any information, training
or reasonable instruction by the PCBU;
·
not intentionally misuse or damage the equipment; and
·
inform the PCBU of any damage to, defect in, or need to clean or
decontaminate any of the equipment of which the worker becomes aware.
Regulation 47 – Duty of person other than worker
Regulation 47
requires a person other than a worker to wear personal protective equipment at
a workplace in accordance with any information, training or reasonable
instruction provided by the PCBU at the workplace.
Division 6 – Remote or isolated work
Regulation 48 – Remote or isolated work
Regulation 48
requires a PCBU to manage risks to the health and safety of a worker associated
with remote or isolated work, including the provision of a system of work that
includes effective communication with the worker. In relation to a worker,
remote or isolated work means work that is isolated from the assistance of
other persons because of location, time or the nature of the work.
This regulation defines the terms ‘assistance’ and ‘remote
or isolated work’.
Note: Regulation 716 provides that the duties imposed on a person
under regulation 48 do not apply until 1 January 2013.
Division 7 – Managing risks from airborne contaminants
This division refers to the term ‘airborne contaminant’,
which is defined in regulation 5 to mean a contaminant in the form of a fume,
mist, gas, vapour or dust, and includes microorganisms.
Regulation 49 – Ensuring exposure standards for substances
and mixtures not exceeded
Regulation 49
requires a PCBU at a workplace to ensure that no person at the workplace is
exposed to a substance or mixture in an airborne concentration that exceeds the
relevant exposure standard.
Regulation 50 – Monitoring airborne contaminant levels
Regulation 50
requires a PCBU at a workplace to ensure that air monitoring is carried out to
determine the airborne concentration of a substance or mixture at the workplace
to which an exposure standard applies if:
·
the PCBU is reasonably uncertain about whether the airborne
concentration of a substance or mixture exceeds the relevant exposure standard;
and
·
monitoring is necessary to determine whether there is a risk to
health.
The PCBU is required to ensure that the monitoring results
are kept for 30 years from the monitoring date, and that the results are
accessible to potentially exposed persons at that workplace.
Division 8 – Hazardous atmospheres
Regulation 51 – Managing risks to health and safety
Regulation 51
requires a PCBU to manage risks to health and safety associated with a
hazardous atmosphere at the workplace, and provides a description of a
hazardous atmosphere.
This regulation defines the term ‘hazardous atmosphere’.
Regulation 52 – Ignition sources
Regulation 52
requires a PCBU to manage risks to health and safety associated with an
ignition source in a hazardous atmosphere at the workplace. The regulation
does not apply to an ignition source if it is part of a deliberate process or
activity at the workplace.
Division 9 – Storage for flammable or combustible substances
Regulation 53 – Flammable and combustible material not to
be accumulated
Regulation 53
requires a PCBU to ensure flammable or combustible substances (or their empty
containers) are kept at the lowest practicable quantity at the workplace.
This regulation defines the term ‘flammable or combustible
substances’.
This regulation refers to the term ‘gas cylinder’, which is
defined in regulation 5.
Division 10 – Falling objects
Regulation 54 – Management of risk of falling objects
Regulation 54
requires a PCBU to manage the risk of an object falling on a person if the
falling object is reasonably likely to injure the person.
Regulation 55 – Minimising risk associated with falling
objects
Regulation 55
requires a PCBU to minimise the risk of an object falling by providing adequate
protection against the risk if it is not reasonably practicable to eliminate
the risk referred to in regulation 54. It describes adequate protection
against the risk as the provision and maintenance of a safe system of work,
including preventing an object from falling freely, so far as is reasonably
practicable. If it is not reasonably practicable to prevent an object from
falling, a system to arrest the fall of a falling object must be provided, so
far as is reasonably practicable.
Chapter 4 sets out the health and safety requirements for
noise, hazardous manual tasks, confined spaces, falls, high risk work,
demolition work, electrical safety and energised electrical work and diving
work.
Part 4.1 – Noise
Part 4.1 imposes duties upon a PCBU regarding the exposure
of workers to noise at the workplace. Duty holders under this Part may also
have health and safety duties under sections 19, 20 or 21 of the WHS Act, and
duties under Part 5 Division 2 of the WHS Act to consult with workers about
matters in this Part. Section 27 of the WHS Act applies to officers in respect
of this Part.
Defined terms in Chapter 1 which are relevant to this Part
include:
·
control measure
·
designer
·
hazardous manual task
·
importer
·
manufacturer
·
personal protective equipment, and
·
supplier.
Regulation 56 – Meaning of exposure standard for noise
Regulation 56
provides the meaning of the exposure standard for noise.
Regulation 57 – Managing risk of hearing loss from noise
Regulation 57 provides
that, in accordance with Part 3.1 of these Regulations, a PCBU at a workplace
must manage the risks to health and safety relating to hearing loss associated
with noise. Subregulation 57(1) refers to section 19 of the WHS Act and
clarifies that Part 3.1 of these Regulations contains general risk management
requirements.
Subregulation 57(2) provides that a PCBU must ensure that
workers at the workplace are not exposed to noise that exceeds the exposure
standard.
Regulation 58 – Audiometric testing
Regulation 58 applies
to workers who are frequently required to wear personal protective equipment to
protect against noise that exceeds the exposure standard.
Subregulation 58(1) provides that regulation 58 applies to
workers who are frequently required by a PCBU to wear personal protective
equipment to protect the worker from the risk of hearing loss associated with
noise that exceeds the exposure standard.
Subregulation 58(2) provides that a PCBU who provides this
personal protective equipment must also provide audiometric testing for the
worker within 3 months of the worker commencing the work and, in any event, at
least every 2 years.
Subregulation 58(3) provides the meaning of ‘audiometric
testing’.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Note: Regulation 718 provides for the phasing in of the duties in
subregulation 58(2).
Regulation 59 – Duties of designers, manufacturers,
importers and suppliers of plant
Regulation 59
provides for the duties of designers, manufacturers, importers or suppliers of
plant.
Subregulation 59(1) provides that a designer of plant must
ensure that the plant is designed so that its noise emission is as low as
reasonably practicable.
Subregulation 59(2) further provides that a designer of
plant must give each person provided with the design for the purpose of giving
effect to it (for example, for the purpose of manufacturing it), adequate
information about:
·
the noise emission values of the plant;
·
the operating conditions of the plant when noise emission is to
be measured; and
·
the methods the designer has used to measure the noise emission
of the plant.
Subregulation 59(3) provides that a manufacturer of plant
must ensure that the plant is manufactured so that its noise emission is as low
as reasonably practicable.
Subsection 59(4) further provides that a manufacturer of
plant must give to each person provided with the plant, adequate information
about:
·
the noise emission values of the plant;
·
the operating conditions of the plant when noise emission is to
be measured; and
·
the methods the designer has used to measure the noise emission
of the plant.
Subregulation 59(5) requires an importer of plant to take
all reasonable steps to obtain the information the manufacturer is required to
provide to an importer under subregulation 59(4) and give that information to
any person the plant is supplied to.
Subregulation 59(6) requires a supplier of plant to take all
reasonable steps to obtain the information the designer, manufacturer or
importer is require to provide to a supplier under subregulations 59(2), 59(4)
and 59(5), and give that information to any person the supplier supplies the
plant to.
Note: Regulations 719 to 722 provide for the phasing in of the
duties in regulation 59.
Part 4.2 – Hazardous manual tasks
Part 4.2 imposes duties on a PCBU to manage the risk of a
musculoskeletal disorder associated with a hazardous manual task. It specifies
the duties placed on designers, manufacturers, importers and suppliers of plant
or structures for hazardous manual tasks. Duty holders under this Part also
have health and safety duties under sections 19 – 26 of the WHS Act, and duties
under Part 5 Division 2 of the WHS Act to consult with workers about matters in
this Part. Section 27 of the WHS Act applies to officers in respect of this
Part. There are additional regulations about management of risk in Part 3.1 –
Managing risks to health and safety and about workplace environmental
conditions in Part 3.2 – General Workplace Management.
Defined terms in Chapter 1 which are relevant to this Part
include:
·
control measure
·
designer
·
hazardous manual task
·
Importer
·
manufacturer
·
musculoskeletal disorder and
·
supplier.
Regulation 60 – Managing risks to health and safety
Regulation 60
specifies that a PCBU must manage the risk of a musculoskeletal disorder
associated with a hazardous manual task. The general risk management
requirements are outlined in part 3.1 of these Regulations.
The PCBU must have regard to all relevant matters that may
contribute to a musculoskeletal disorder when determining what control measures
must be implemented to manage the risk of the musculoskeletal disorder. The
matters that must be regarded in this process are listed in this regulation.
Regulation 61 – Duties of designers, manufacturers,
importers and suppliers of plant or structures
Regulation 61
provides that designers, manufacturers, importers and suppliers of plant or
structure must eliminate or, if it is not reasonably practicable to do so, minimise
the need for a hazardous manual task to be carried out in relation to the plant
or structure when it is being designed, manufactured, imported or supplied.
Subregulations (4), (5) and (6) provide that a manufacturer
of plant or a structure must take all reasonable steps, including by providing
adequate information, to eliminate or minimise the need for any hazardous
manual task to be carried out in connection with the plant or structure.
Subregulations (7) and (8) provide that an importer or a
supplier of plant or a structure must take all reasonable steps to obtain the
relevant information about the features of the plant or structure from the
manufacturer. The importer or supplier must give this information to any
person to whom the plant or structure is supplied.
Note: Regulations 723 to 726 provide for the phasing in of the
duties in regulation 61.
Part 4.3 – Confined spaces
Part 4.3 applies to any confined space that is or could be
entered by a person. It imposes duties upon a PCBU to minimise the need to
enter confined spaces where entry to a confined space is required. A PCBU must
put in place known safe working practices including risk assessments, control
measures, training, emergency response and record keeping. It also imposes
duties upon a PCBU who designs, manufactures, supplies or imports plant in
relation to confined spaces.
Duty holders under this Part also have health and safety
duties under sections 20, 21, 22, 23 or 25 of the WHS Act, and duties under
Part 5 Division 2 of the WHS Act to consult with workers about matters in this
Part. Section 27 of the WHS Act applies to officers in respect of this Part.
There are additional Regulations about management of risk in
Part 3.1 – Managing risks to health and safety, about workplace environmental
conditions and information, training and instruction in Part 3.2 – General
Workplace Management and about construction work involving confined spaces in
Chapter 6 – Construction work. Additional regulations imposing duties on
designers, manufacturers and suppliers about plant and structures are included
in Chapter 5 – Plant and structures.
Defined terms in Chapter 1 which are relevant to this Part
include:
·
airborne contaminant
·
competent person
·
confined space
·
confined space entry permit
·
contaminant
·
control measure
·
designer
·
emergency service organisation
·
emergency service worker
·
entry
·
flammable gas
·
head or upper body
·
ignition source
·
importer
·
lower explosive limit (LEL)
·
manufacturer
·
personal protective equipment
·
safe oxygen level, and
·
supplier.
Division 1 – Preliminary
Regulation 62 – Confined spaces to which this Part applies
Regulation 62
provides that Part 4.3 of these Regulations applies to any confined space that
is or could be entered by a person. It also clarifies that the person with
management or control of the confined space is the PCBU for the purposes of
Part 4.3.
Regulation 63 – Application to emergency service workers
Regulation 63 exempts
an emergency service worker from the requirements for an entry permit and
signage requirements prescribed in regulations 67 and 68 if they are either
rescuing or providing first aid to a person in a confined space at the
direction of the emergency service organisation.
Division 2 – Duties of designer, manufacturer, importer,
supplier, installer and constructor of plant or structure
Regulation 64 – Duty to eliminate or minimise risk
Regulation 64 applies
to plant or structures that include a space that is, or is intended to be, a
confined space.
Paragraph 64(2)(a) imposes a duty on a designer,
manufacturer, importer or supplier of the plant or structure, and a person who
installs or constructs the plant or structure to ensure that the need for any
person to enter the space and the risk of a person inadvertently entering the
space are eliminated, so far as is reasonably practicable.
Paragraph 64(2)(b) prescribes that if elimination is not
possible, the need to enter the space or the risk of a person inadvertently
entering the space should be minimised so far as is reasonably practicable.
The confined space should be designed with a safe means of entry and exit, and
the risk to health and safety of any person who enters the space must be
eliminated so far as is reasonably practicable and if that is not possible,
minimised so far as is reasonably practicable.
Division 3 – Duties of person conducting business or
undertaking
Regulation 65 – Entry into confined space must comply with
this Division
Regulation 65
provides that a PCBU must ensure that a worker does not enter a confined space
before the duties in Division 3 of Part 4.3 have been complied with.
Regulation 66 – Managing risks to health and safety
Regulation 66
requires a PCBU to manage risks to health and safety associated with a confined
space at a workplace by having the risks assessed by a competent person, and
results recorded in writing, which includes all relevant matters, including a
specified list of matters.
A competent person is defined in regulation 5 to mean a
person who has acquired through training, qualification or experience, the
knowledge and skills to carry out the task.
This regulation requires the PCBU to ensure that this risk
assessment is revised to reflect any review and revision of control measures.
Regulation 67 – Confined space entry permit
Regulation 67 states
that a PCBU must not direct a worker to enter a confined space to carry out
work unless the person has issued a confined space entry permit for the work.
This regulation specifies items which must be included in the confined space
entry permit, and who may complete the permit which must be in writing.
Furthermore, the controls specified in the permit must be based on the risk
assessment required by regulation 66, and detail the communication and safety
monitoring required in regulation 69. The PCBU must ensure that, when the work
for which the entry permit was issued is completed, all workers leave the
confined space and the entry permit is signed off as being completed
Regulation 68 – Signage
Regulation 68
requires a PCBU to ensure that signs which identify the confined space, inform
workers that they must not enter the space unless they have a confined space
entry permit, and are clear and prominently located next to each entry to the
space, are erected before preparation and work in a confined space commences
and are maintained while the work is being carried out and is being finalised.
Regulation 69 – Communication and safety monitoring
Regulation 69 requires
a PCBU to ensure that a worker does not enter a confined space to carry out
work unless the PCBU provides a system of work that includes continuous
communication with the worker from outside the space, and monitoring conditions
within the space by a standby person who is in the vicinity of the space.
Regulation 70 – Specific control – connected plant and
services
Regulation 70
requires a PCBU to eliminate or minimise any risk associated with work in a
confined space from the introduction of any substance or condition into the
space from or by any plant or services connected to the space, or from the
activation or energising in any way of any plant or services connected to the
space.
Regulation 71 – Specific control – atmosphere
Regulation 71
requires a PCBU to ensure that purging or ventilation of any contaminant in the
atmosphere of the space is carried out, and pure oxygen or gas mixtures with
oxygen in a concentration exceeding 21% by volume are not used for purging or
ventilation. The PCBU must also ensure that while work is being carried out in
a confined space, the atmosphere of the space has a safe oxygen level, and if
this is not reasonably practicable to comply with paragraph (a) and the
atmosphere in the space has an oxygen level less than 19.5% by volume – any
worker carrying out work in the space is provided with air supplied respiratory
equipment.
This regulation also clarifies that in this regulation,
purging means the method used to displace any contaminant from a confined space
This regulation refers to the term ‘contaminant’, which is
defined in regulation 5 to mean any substance that may be harmful to health or
safety.
Regulation 72 – Specific control – flammable gases and
vapours
Regulation 72
requires a PCBU to ensure, so far as is reasonably practicable, that while work
is being carried out in a confined space, the concentration of any flammable
gas, vapour or mist in the atmosphere of the space is less than 5% of its lower
explosive limit (LEL). If this is not reasonably practicable, and the
concentration of any flammable gas, vapour or mist in the atmosphere of the
confined space is equal to or greater than 5% but less than 10% of its LEL, the
PCBU must ensure that any worker is immediately removed from the space unless a
suitably calibrated, continuous-monitoring flammable gas detector is used in
the space. The PCBU must ensure that any worker is immediately removed from
the space if the concentration of any flammable gas, vapour or mist in the
atmosphere of the confined space is equal to or greater than 10% of its LEL.
This regulation refers to the term ‘flammable gas’, which
has the same meaning as it has in the GHS.
Regulation 73 – Specific control – fire and explosion
Regulation 73
requires a PCBU to ensure that an ignition source is not introduced into the
space if there is a possibility of fire or explosion in a confined space being
caused by an ignition source being introduced into the space
Regulation 74 – Emergency procedures
Regulation 74
requires a PCBU to establish first aid and rescue procedures to be followed in
the event of an emergency in a confined space, and to ensure that the
procedures are practised to ensure that they are efficient and effective. The
PCBU is required to ensure that first aid and rescue procedures are initiated
from outside the confined space as soon as practicable in an emergency.
Furthermore, the PCBU must ensure that access is large
enough to facilitate emergency access, that access is not obstructed, and that
plant, equipment and personal protective equipment provided for first aid or
emergency rescue are maintained in good working order.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Regulation 75 – Personal protective equipment in
emergencies
Regulation 75 applies
to a worker who is to enter a confined space in order to carry out first aid or
rescue procedures in an emergency.
This regulation requires the PCBU to take all reasonable
steps to ensure that air supplied respiratory equipment is provided to and
available for use by the worker in an emergency where the atmosphere in the
confined space does not have a safe oxygen level, or has a harmful
concentration of an airborne contaminant, or there is a serious risk of the
atmosphere developing such a condition while the worker is in the space.
The PCBU is required to ensure that suitable personal
protective equipment is provided and available for use by the worker in an
emergency in which an engulfment has occurred inside the confined space, or
there is a serious risk of an engulfment occurring while the worker is in the
space.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Regulation 76 – Information, training and instruction for
workers
Regulation 76
requires a PCBU to ensure that relevant workers are provided with suitable and
adequate information, training and instruction in relation to particular listed
issues. The PCBU is also required to keep a record of this training for 2
years.
This regulation clarifies the meaning of relevant worker to
include workers (and their supervisors) who may enter the confined space, or
carry out regulated confined space functions (including emergency procedures),
whether they enter the confined space or not.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air supplied
respiratory equipment.
Regulation 77 – Confined space entry permit and risk
assessment must be kept
Regulation 77 states
that if a PCBU prepares a risk assessment under regulation 66, or issues a
confined space entry permit under regulation 67, the PCBU must keep a copy of
the risk assessment for at least 28 days after the work to which it relates is
completed, and keep a copy of the confined space entry permit until the work to
which it relates is completed. In addition to this, the PCBU must keep the
copy of the assessment or permit (as the case requires) for at least 2 years
after the occurrence of a notifiable incident in connection with the work to
which the assessment or permit relates.
This regulation also requires the PCBU to ensure that, for the
period for which the assessment or permit must be kept under this regulation, a
copy is available for inspection under the WHS Act, and by any relevant worker
on request.
Part 4.4 – Falls
Part 4.4 applies to situations where a person could fall
from one level to another, where that fall is reasonably likely to cause injury
to the person or any other person. This part also establishes requirements for
control measures to eliminate or minimise the risk, and establishes more
onerous requirements where the risk of a fall is not eliminated.
Duty holders under this Part may also have health and safety
duties under sections 19, 20 or 21 of the WHS Act, and duties under Part 5
Division 2 of the WHS Act to consult with workers about matters in this Part.
Section 27 of the WHS Act applies to officers in respect of this Part.
There are additional Regulations about management of risk in
Part 3.1 – Managing risk to health and safety, about workplace environmental
conditions in Part 3.2 – General Workplace Management and about construction
work involving risk of a person falling in Chapter 6 – Construction work. Part
4.5 – High risk work may apply in respect of some work involving risk of falls.
Regulation 78 – Management of risk of fall
Regulation 78
requires a PCBU at a workplace to manage, in accordance with Part 3.1, the risk
of a fall by a person from one level to another, where that fall is reasonably
likely to cause injury to the person or any other person.
Subregulation 78(2) explains that a fall from one level to
another includes a potential fall in or on an elevated workplace, or in the
vicinity of an opening or edge through which or over which a person could fall,
or a surface through which a person could fall, or any other place from which a
person could fall.
Subregulation 78(3) requires the PCBU to ensure, so far as
is reasonably practicable, that any work that involves the risk of a fall is
carried out on the ground or on a solid construction.
Subregulation 78(4) requires the PCBU to provide safe means
of access to, and exit from, the workplace or areas where there is a risk of a
fall within the workplace.
Subregulation 77(5) defines the term solid construction for
the purpose of these Regulations.
Regulation 79 – Specific requirements to minimise risk of
fall
Regulation 79 applies
if it is not reasonably practicable to eliminate the risk of a fall referred to
in regulation 78. This regulation requires a PCBU to minimise the risk of a
fall by providing adequate protection against the fall risk.
Subregulation 79(3) explains that adequate protection is
taken to be provided if the PCBU provides and maintains a safe system of work,
including:
·
providing a fall prevention device if it is reasonably
practicable to do so;
·
providing a work positioning system, if it is not reasonably
practicable to provide a fall prevention device; or
·
providing a fall arrest system, so far as is reasonably
practicable, if it is not reasonably practicable to provide either a fall
prevention device or a work positioning system.
Subregulation 79(4) clarifies that regulation 79 does not
apply to the performance of stunt work, acrobatics, theatrical performance, a
sporting or athletic activity or horse riding.
Subregulation 79(5) provides examples of fall prevention
devices which include a secure fence, edge protection, working platforms and
covers.
Regulation 80 – Emergency and rescue procedures
Regulation 80
requires a PCBU who implements a fall arrest system as a control measure to
establish emergency and rescue procedures in relation to the use of the system,
Subregulation 80(3) provides that the PCBU must also ensure
that the emergency and rescue procedures are tested so that they are effective.
Subregulation 80(4) provides that a PCBU is also required to
provide relevant workers with suitable and adequate information, training and
instruction in relation to the emergency and rescue procedures.
Subregulation 80(5) defines relevant worker as including
both a worker who uses or is required to use a fall arrest system, as well as a
worker who may be involved in initiating or implementing the emergency and
rescue procedures.
Part 4.5 – High risk work
Part 4.5 outlines the licensing requirements for the
following classes of work:
·
basic scaffolding, intermediate scaffolding, advanced
scaffolding;
·
dogging, basic rigging, intermediate rigging, advanced rigging;
·
crane and hoist operation – tower crane, self-erecting tower
crane, derrick crane, portal boom crane, bridge and gantry crane, vehicle
loading crane, non-slewing mobile crane, slewing mobile crane with a capacity
up to 20 tonnes, slewing mobile crane with a capacity up to 60 tonnes, slewing
mobile crane with a capacity up to 100 tonnes, slewing mobile crane with a
capacity over 100 tonnes, materials hoist, personnel and materials hoist,
boomtype elevating work platform, concrete placing boom;
·
reach stacker;
·
forklift operation – forklift truck, order-picking forklift
truck; and
·
pressure equipment operation – standard boiler operation,
advanced boiler operation, turbine operation, reciprocating steam engine.
This Part prescribes requirements for the authorisation of
work for section 43 of the WHS Act and the required qualifications for section
44 of the WHS Act.
Schedules 3 and 4 of these Regulations apply to this Part. Part
4.4 – Falls and Chapter 6 – Construction work may also apply to some classes of
high risk work.
Defined terms in Chapter 1 which are relevant to this Part
include:
·
accredited assessor
·
boiler
·
boom-type elevating work platform
·
bridge crane
·
certification
·
class
·
competency assessment
·
concrete placing boom
·
conveyor
·
crane
·
derrick crane
·
direct fired process heater
·
dogging work
·
external review
·
forklift truck
·
gantry crane
·
heritage boiler
·
high risk work
·
high risk work licence
·
hoist
·
licence holder
·
mast climbing work platform
·
materials hoist
·
non-slewing mobile crane
·
notice of satisfactory assessment
·
order-picking forklift truck
·
personnel and materials hoist
·
portal boom crane
·
pressure equipment
·
reach stacker
·
reciprocating steam engine
·
registered training organisation (RTO)
·
relevant fee
·
rigging work
·
scaffold
·
scaffolding work
·
self-erecting tower crane
·
slewing mobile crane
·
slinging techniques
·
suspended scaffold
·
tower crane, turbine
·
vehicle loading crane, and
·
VET course.
Division 1 – Licensing of high risk work
Division 1 of this Part outlines how to apply for a high
risk work licence and places certain requirements on the regulator relating to the
granting or refusing an application. It contains provisions covering the
replacement, surrender, renewal and suspension and cancellation of licences.
As per regulation 83, a reference to a high risk work
licence in this subdivision includes a reference to an equivalent licence that
is granted under a corresponding WHS law and is being used in accordance with
the terms and conditions under which it was granted.
Subdivision 1 – Requirement to be licensed
Regulation 81 – Licence required to carry out high risk
work
Regulation 81
specifies that a person must not carry out a class of high risk work prescribed
in schedule 3 unless the person holds a high risk work licence for that particular
class of high risk work.
Note: Subregulation 727(1) provides that regulation 81 does not
apply to certain persons until 1 July 2014. The persons listed are members of
the Defence Force, a person who has been exempted by a corresponding regulator,
and a person otherwise exempt by a law of a corresponding jurisdiction.
Regulation 82 – Exceptions
Regulation 82
identifies the specific and limited circumstances in which a person is not
required to hold a high risk work licence for carrying out high risk work.
This regulation refers to the terms ‘boiler’,
‘certification’ and ‘heritage boiler’, which are defined in regulation 5.
Regulation 83 – Recognition of high risk work licences in
other jurisdictions
Regulation 83
clarifies that a reference to a high risk work licence in subdivision 1
includes a reference to an equivalent licence that was granted by a
corresponding regulator under a corresponding WHS law and is being used
according to the terms and conditions under which it was granted.
Subregulation 83(2) stipulates that this regulation does not
apply to a licence that is suspended or cancelled, or has expired in the
corresponding jurisdiction.
Regulation 84 – Duty of person conducting business or
undertaking to ensure direct supervision
Regulation 84
provides that a PCBU must ensure that a person who is carrying out high risk
work as part of training towards a high risk work certification is directly
supervised except in the limited circumstances stated in subregulation 84(2), such
as if the nature or circumstances of a particular task make direct supervision
impracticable or unnecessary and if the reduced level of supervision will not
place the health or safety of the supervised person or any other person at
risk.
Subregulation 84(3) also provides the meaning of direct
supervision for the purpose of regulation 84.
Regulation 85 – Evidence of licence – duty of person
conducting business or undertaking
Regulation 85
requires a PCBU to sight specific written evidence that the worker has the
relevant high risk licence for that work before directing or allowing a worker
to carry out or supervise high risk work.
This regulation refers to the term ‘certification’, which is
defined in regulation 5.
Subdivision 2 – Licensing process
Regulation 86 – Who may apply for a licence
Regulation 86
specifies that only a person who holds a qualification set out in Schedule 4 to
these Regulations may apply for a high risk work licence.
Regulation 87 – Application for high risk work licence
Regulation 87 sets
out the requirements for an application for a high risk work licence. The application
must be made in the approved form, include certain information listed in subregulation
87(2) and be accompanied by the relevant fee.
This regulation refers to the term ‘certification’, which is
defined in regulation 5.
Regulation 88 – Additional information
Regulation 88 allows
the regulator to seek additional information from the applicant if an application
for a high risk work licence does not contain sufficient information for the
regulator to make a decision whether or not to grant the licence.
Subregulation 88(2) requires that the request for additional
information must be made in writing and specify the date by which the
information is to be given.
Subregulation 88(3) provides that the application is taken
to be withdrawn if the additional information is not provided by the specified
date.
Subregulation 88(4) allows the regulator to make more than
one request for additional information.
Regulation 89 – Decision on application
Regulation 89
requires the regulator to award a high risk work licence if the regulator is satisfied
about the matters listed in subregulation 89(2).
Subregulation 89(2) and (3) sets out the matters that the
regulator must be satisfied of before deciding to grant or refuse a high risk
work licence. The regulator must notify the applicant within 14 days after
making a decision to grant the high risk work licence.
Subregulation 89(5) provides that an application is taken to
have been refused if the regulator does not make a decision within 120 days
after receiving the application or the additional information requested under
regulation 88.
This regulation refers to the term ‘certification’, which is
defined in regulation 5.
A note provides that a refusal
to grant a licence under this regulation is a reviewable decision under
regulation 676.
Regulation 90 – Matters to be taken into account
Regulation 90
identifies the matters that the regulator must consider when determining
whether the applicant for a high risk work licence is able to carry out the
work to which the licence relates safely and competently.
The matters to be considered include the cancellation or
suspension of any equivalent licence held by the applicant or any refusal to
issue an equivalent licence to the applicant under the WHS Act, these
Regulations or any other law of the Commonwealth or a State or corresponding
WHS law dealing with an OHS matter, including a law that may have been repealed
upon the commencement of the new WHS laws. Other matters include any
enforceable undertakings the applicant has entered into and the applicant’s
record.
Regulation 91 – Refusal to grant high risk work licence – process
Regulation 91
outlines the action that the regulator must take if the regulator proposes to
refuse to grant a high risk work licence.
A note provides that a refusal
to issue a licence under this regulation is a reviewable decision under
regulation 676.
Regulation 92 – Duration of licence
Regulation 92
provides that a high risk work licence takes effect on the day it is granted
and expires 5 years after that day unless it is cancelled earlier.
Regulation 93 – Licence document
Regulation 93
provides that if the regulator grants a high risk work licence, the applicant
must be issued with a licence document that contains the name of the licence
holder, a copy of the licence holder’s signature, a recent photograph of the
licence holder, the date of birth of the licence holder, and the date on which
the licence was granted.
Subregulation 93(2) prescribes the information that must be
included in the licence document.
Subregulation 93(3) provides that the licence document must
contain a description of each class of licence and the work that is within the
scope of each licence if more than one class of high risk work licence is
granted to a person.
Subregulation 93(4) provides that if the licence holder
holds more than one high risk work licence, the licence holder may be issued
one licence document in relation to some or all of those licences.
If a licence document is issued under subregulation 93(4),
then the licences to which that licence document relates will expire on the
date that the first of those licences expires.
Regulation 94 – Licence document to be available
Regulation 94
requires the licence holder to keep the licence document available for
inspection under the WHS Act.
Subregulation 94(2) clarifies that the requirement in subregulation
94(1) does not apply if the licence document is not in the licence holder’s
possession because it has been returned to the regulator to be amended under
regulation 97 or the licence holder has applied for, but has not yet received,
a replacement licence document under regulation 98.
Regulation 95 – Reassessment of competency of licence
holder
Regulation 95 allows
the regulator to direct a licence holder to obtain a reassessment of their
competency to carry out the high risk work covered by the licence, if the
regulator reasonably believes that the licence holder may not be competent to
carry out that work (for example, if the regulator receives information that
the licence holder has carried out high risk work incompetently).
Subdivision 3 – Amendment of licence document
Regulation 96 – Notice of change of address
Regulation 96
requires the licence holder of a high risk work licence to notify the regulator
in writing of a change of residential address within 14 days of the change
occurring.
Regulation 97 – Licence holder to return licence
Regulation 97
provides that if a high risk work licence is amended, the licence holder must
comply with the written request of the regulator to return the licence document
to the regulator within the time specified in the request.
Regulation 98 – Replacement licence document
Regulation 98 sets
out the requirements for a licence holder to notify the regulator, as soon as
practicable, if the original licence document is lost, stolen or destroyed and
to apply for a replacement licence document.
Subregulation 98(5) requires the regulator to issue a
replacement licence document if the regulator is satisfied that the original
licence document was lost, stolen or destroyed.
Subregulation 98(6) provides that if the regulator refuses to
issue a replacement licence document, the regulator must notify the licence
holder in writing of this decision, within 14 days after making the decision.
A note provides that a refusal
to issue a replacement licence document under this regulation is a reviewable
decision under regulation 676.
Regulation 99 – Voluntary surrender of licence
Regulation 99
provides that a licence holder may voluntarily surrender the licence document
to the regulator, resulting in the expiry of the licence document.
Subdivision 4 – Renewal of high risk work licence
Regulation 100 – Regulator may renew licence
Regulation 100 provides
that the regulator may renew a high risk work licence on application by the
licence holder.
Regulation 101 – Application for renewal
Regulation 101 sets
out the requirements for an application for renewal of a high risk work
licence, such as the name of the applicant, a recent photograph of the
applicant and a declaration that he or she has maintained his or her competency
to carry out the high risk work.
Subregulations 101(3) and (4) provides that the application
must be made before the expiry of the licence and be accompanied by the
relevant fee.
Regulation 102 – Licence continues in force until
application is decided
Regulation 102 provides
that if a licence holder has applied to renew a high risk work licence, the
licence continues to be valid until the licence holder is notified about the
decision on the application.
Regulation 103 – Renewal of expired licence
Regulation 103 allows
a person who has an expired high risk work licence to apply for the licence to
be renewed within 12 months of the licence expiring, or a longer time if the
regulator is satisfied that exceptional circumstances exist. As the licence
has expired, the applicant cannot carry out the work covered by the licence
until the licence is renewed. If the licence lapses beyond the time periods
stated in this regulation, the applicant is required to apply for a new licence
under regulation 87.
Regulation 104 – Provisions relating to renewal of licence
Regulation 104 provides
that the following requirements also apply in relation to the requirements to
renew a licence:
·
providing additional information in support of an application for
high risk work under regulation 88;
·
the regulator being satisfied about certain matters before
granting a high risk work licence under regulation 89 and 90; and
·
the process for refusing an application for high risk work under
regulation 91,
Subregulation 104(2) provides that the regulator may renew a
high risk work licence granted to a person under a corresponding WHS law if
that licence has not been renewed under that law.
A note provides that a refusal
to renew a licence under this regulation is a reviewable decision under
regulation 676.
Regulation 105 – Status of licence during review
Regulation 105 specifies
the status of a high risk work licence during internal review and external
review if the regulator has notified the licence holder before a high risk work
licence expires that the regulator proposes to refuse to renew the licence.
Subregulation 105(6) stipulates that the licence continues
to have effect under this regulation even if its expiry date passes.
Subdivision 5 – Suspension and cancellation of high risk
work licence
Regulation 106 – Suspension or cancellation of licence
Regulation 106 establishes
the power of the regulator to suspend or cancel a high risk work licence. It
provides that the regulator may suspend or cancel a high risk work licence if
the regulator is satisfied about certain matters and specifies the action the
regulator may take if the regulator suspends or cancels a licence.
Subregulation 106(2) provides that the regulator may disqualify
the licence holder from applying for further high risk work licence of the same
class or another licence under the regulations to carry out work which requires
skills which are the same as or similar to those required for the work
authorised by the licence that has been suspended or cancelled.
A note provides that the
suspension, cancellation or disqualification of a licence under this regulation
is a reviewable decision under regulation 676.
This regulation refers to the term ‘certification’, which is
defined in regulation 5.
Regulation 107 – Matters taken into account
Regulation 107 provides
that the regulator must consider submissions made by the licence holder under
regulation 108 and advice received by from a corresponding regulator before
making a decision under regulation 106 to suspend or cancel a high risk work
licence.
Regulation 108 – Notice to and submissions by licence
holder
Regulation 108 prescribes
what the regulator must do before suspending or cancelling a high risk work
licence, including giving the licence holder a written notice of the proposed
suspension or cancellation and any proposed disqualification that outlines all
relevant allegations, facts and circumstances known to the regulator.
Regulation 109 – Notice of decision
Regulation 109 requires
the regulator to notify the licence holder in writing of the decision to cancel
or suspend a high risk work licence under regulation 106 within 14 days after
making the decision.
Subregulation 109(2) prescribes the information which must
be included in the written notice.
Regulation 110 – Immediate suspension
Regulation 110 allows
the regulator to immediately suspend a high risk work licence without providing
notice under regulation 109 in circumstances where the work carried out under
the high risk work licence should cease because the work may involve an
immediate serious risk to the health or safety of an person.
Subregulation 110(2) prescribes the steps that the regulator
must take if it proposes to suspend a licence including providing the licence
holder with the reasons for the suspension and the date the suspension takes
effect.
Regulation 111 – Licence holder to return licence document
Regulation 111 provides
that a licence holder must return the licence document to the regulator in
accordance with a notice received under regulation 109.
Regulation 112 – Regulator to return licence document
after suspension
Regulation 112 provides
that when the period of licence suspension ends, the regulator must return the
licence document to the licence holder within 14 days after the suspension
ends.
Part 4.6 – Demolition work
Part 4.6 Demolition work provides notification and licensing
requirements in relation to demolition work.
Defined terms in Chapter 1 which are relevant to this Part
include demolition work, emergency service organisation and emergency
service worker.
Regulation 142 – Notice of demolition work
Regulation 142
requires a PCBU to give the regulator written notice, in a manner and form
required by the regulator, of the following types of proposed demolition work
at least 5 days prior to the commencement of the work:
·
demolition of a structure or part thereof which is load bearing
or related to the physical integrity of the structure, that is at least 6
metres in height;
·
demolition work involving load shifting machinery on a suspended
floor; and
·
demolition work involving explosives.
Subregulation 142(3) prescribes different notification
requirements for emergency service organisations that may have carried out
demolition work for the purposes of rescuing a person or providing first aid to
a person. These organisations must give the regulator notice as soon as is
practicable after carrying out the work.
Note: Regulation 728
provides that the duties imposed on a person under regulation 142 do not apply
until 1 January 2013.
Part 4.7 – General Electrical Safety in Workplaces
and Energised Electrical Work
This Part sets out how risks to health and safety associated
with electrical work are to be managed at the workplace.
This Part also includes specific duties in relation to
PCBUs:
·
with management or control of electrical equipment in a
workplace:
·
to minimise the risks associated with the carrying out of electrical
work; and
·
to minimise the risks associated with their carrying out work in
the vicinity of overhead or underground electric lines by following the
specified steps set out in the regulation.
In relation to general electrical safety in the workplace,
this Part includes requirements for inspecting and testing electrical equipment
in certain high risk environments and requirements to provide and use effective
residual current devices in the prescribed circumstances.
Duty holders under this Part may also have health and safety
duties under sections 19, 20 and 21 of the WHS Act. PCBUs may have duties
under Divisions 1 and 2 of Part 5 of the WHS Act to consult another duty holder
and with workers about matters in this Part.
Defined terms in Chapter 1 which are relevant to this Part
include:
·
amusement device
·
competent person
·
control measure
·
electrical risk
·
electricity supply authority
·
extra-low voltage
·
person with management or control of a workplace
·
personal protective equipment, and
·
safe work method statement.
Division 1 – Preliminary
Regulation 144 – Meaning of electrical equipment
Regulation 144
defines the term ‘electrical equipment’ for this Part.
Regulation 145 – Meaning of electrical installation
Regulation 145
defines the term ‘electrical installation’ for this Part, for the avoidance of
doubt, to clarify that this Part covers electrical installations – which are
essentially grouped items of electrical equipment as defined by the regulation.
Regulation 146 – Meaning of electrical work
Regulation 146
defines the term ‘electrical work’ for this Part. This regulation does this by
broadly describing electrical work in subregulation 146(1), and then setting
out what work is not electrical work for the purposes of this Part in
subregulation 147(2). Electrical work does not include work such as replacing
a light bulb, assembling electrical equipment as part of a manufacturing
process, or certain work done as part of a person’s training to obtain an
electrical licence.
Division 2 – General risk management
Regulation 147 – Risk management
Regulation 147
provides that a PCBU at a workplace must manage risks to health and safety
associated with electrical risks at the workplace, in accordance with Part 3.1
of the Regulations.
Division 3 – Electrical equipment and electrical
installations
Regulation 148 – Electrical equipment and electrical
installations to which this division applies
Regulation 148
ensures that the duties placed on a PCBU in relation to electrical equipment or
an electrical installation under Division 3 only arise if the electrical
equipment or an electrical installation is under the person’s management or
control.
Regulation 149 – Unsafe electrical equipment
Regulation 149
requires a PCBU to ensure that any unsafe electrical equipment at a workplace
is disconnected or isolated from its electricity supply and is not reconnected
until it is repaired or tested and found to be safe, or is replaced or
permanently removed from use.
Subregulation 149(2) clarifies that for the purposes of
regulation 149, electrical equipment is unsafe if there are reasonable grounds
for believing it to be unsafe.
Regulation 150 – Inspection and testing of electrical
equipment
Regulation 150 sets
out the requirements for when a PCBU must ensure that electrical equipment used
in certain high risk environments is regularly inspected and tested by a
competent person.
Subregulation 150(2) provides that when equipment is new or
unused at a workplace, a PCBU is not required to comply with subregulation (1)
but must ensure that the equipment is inspected for obvious damage before being
used.
Subregulation 150(3) provides that a PCBU must retain any
record of testing carried out until the next test, or the equipment is
permanently removed from the workplace or disposed of.
Subregulation 150(4) includes requirements for the content
of records of testing.
Regulation 151 – Untested electrical equipment not to be
used
Regulation 151
stipulates that a PCBU must ensure, so far as is reasonably practicable, that
electrical equipment is not used if the equipment is required to be tested
under regulation 150 but has not been tested.
Division 4 – Electrical work on energised electrical
equipment
This Division refers to the term ‘electric equipment’, which
is defined in regulation 144.
Regulation 152 – Application of Division 4
Regulation 152
provides that division 4 does not apply to work carried out by or on behalf of
an ‘electricity supply authority’ on the electrical equipment, including
electric line-associated equipment, controlled or operated by the authority to
generate, transform, transmit or supply electricity.
Regulation 153 – Persons conducting a business or
undertaking to which this Division applies
Regulation 153
provides that the duties placed on a PCBU in relation to ‘electrical work’
under this Division only apply to a PCBU who is carrying out the electrical
work, except for the duties under regulations 156, 159 and 160 which apply more
broadly.
Regulation 154 – Electrical work on energised electrical
equipment – prohibited
Regulation 154
requires a PCBU to ensure that electrical work is not carried out on electrical
equipment – including electrical equipment that forms part of an electrical
installation – while it is energised (or ‘live’), unless the requirements in
relation to energised electrical work under the Division are met.
Regulation 155 – Duty to determine whether equipment is
energised
Regulation 155 provides
that a PCBU must ensure that before electrical work is carried out on
electrical equipment, the equipment is tested by a competent person to
determine if it is energised.
‘Competent person’ is a defined term and a person is
required to be licensed or permitted to carry out work (including testing) on
energised electrical equipment.
Subregulation 155(2) requires the PCBU to ensure that each
exposed part is treated as energised until it is isolated and determined not to
be energised and each high-voltage exposed part is earthed after being
de-energised.
This regulation is intended to give effect to the ‘test
before you touch’ principle of electrical safety.
Regulation 156 – De-energised equipment must not be
inadvertently re-energised
Regulation 156
provides that a PCBU must ensure that electrical equipment that has been
de-energised so that work can be carried out on it is not inadvertently re‑energised
while the work is being carried out.
Regulation 157 – Electrical work on energised electrical
equipment – when permitted
Regulation 157
provides that a PCBU must ensure that electrical work on energised electrical
equipment is not carried out unless one or more of the circumstances listed in
subregulation 157(1) applies.
Regulation 158 – Preliminary steps
Regulation 158 sets
out the preliminary steps a PCBU must ensure have been completed before work on
energised electrical equipment commences. It includes (among other things) a
requirement that a risk assessment be carried out by a competent person and
recorded.
Regulation 159 – Unauthorised access to equipment being
worked on
Regulation 159
provides that a PCBU must ensure that only persons authorised by the PCBU enter
the immediate area where energised electrical work is being carried out.
Regulation 160 – Contact with equipment being worked on
Regulation 160
provides that a PCBU must ensure that – while energised electrical work is
being carried out – persons (including the person carrying out the work) are
prevented from inadvertently contacting an exposed energised component of the
electrical equipment
Regulation 161 – How the work is to be carried out
Regulation 161 sets
out requirements for carrying out energised electrical work, including
requirements in relation to equipment used in carrying out the work (including Personal
Protective Equipment) and requirements for a safety observer in the prescribed
circumstances.
Regulation 161 also requires work to be carried out in
accordance with a safe work method statement (SWMS) prepared for the work. The
requirements for safe work method statements in subregulation 161(3) are
aligned as far as possible with equivalent requirements under the construction
regulations.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Regulation 162 – Record keeping
Regulation 162 sets
out record keeping and access requirements in relation to risk assessments and
safe work method statements prepared under this Part.
Division 5 – Electrical equipment and installations and
construction work – additional duties
This Division refers to the term ‘electric equipment’, which
is defined in regulation 144.
Regulation 163 – Duty of person conducting business or
undertaking
Regulation 163
requires a PCBU that carries out construction work to comply with AS/NZS
3012:2010.
Subregulation 163(2) and (3) set out interpretation rules if
the AS/NZS is inconsistent with key definitions or requirements under this
Part.
Division 6 – Residual current devices
Regulation 164 – Use of socket outlets in hostile
operating environment
Regulation 164 sets
out requirements for residual current devices (RCDs) in higher risk
environments, as defined in subregulation 164(1). The duty to ensure an
appropriate RCD is used in these environments is qualified by what is
reasonably practicable. For example the RCD may be either portable or non‑portable
depending on what is reasonably practicable in the circumstances.
If an RCD is required under subregulation 164(2) then
subregulation (3) sets out minimum requirements in relation to the tripping
current the RCD must have if electricity is supplied to the equipment through a
socket outlet not exceeding 20 amps.
Subregulation 164(4) sets out the circumstances in which an
RCD is not required.
Note: this regulation imposes new duties on PCBUs and a 12 month
transition period has therefore been provided. While the remainder of these
Regulations will commence on 1 January 2012, this regulation will not
commence until 1 January 2013.
Regulation 165 – Testing of residual current devices
Regulation 165
requires a person with management or control of a workplace to take all
reasonable steps to ensure that RCDs used at the workplace are tested regularly
by a competent person to ensure the devices are operating effectively. It also
requires records of all such testing (other than a daily test) to be kept until
the device is next tested or is permanently removed from use.
Division 7 – Overhead and underground electric lines
Regulation 166 – Duty of person conducting business or
undertaking
Regulation 166
requires a PCBU to ensure, so far as is reasonably practicable, that no person,
plant or thing at the workplace comes within an unsafe distance of an overhead
or underground electric line. Further provision on what constitutes an ‘unsafe
distance’ may be made separately under general electrical safety laws, relevant
codes of practice or guidance material.
Subregulation 166(2) sets out the requirements that apply if
it is not reasonably practicable to ensure that the safe distance is observed
including a risk assessment requirement. The provision requires the relevant
work to be carried out in accordance with any control measures determined in
accordance with the risk assessment, and also any relevant requirement of an
electricity supply authority with responsibility for the electric line.
Part 4.8 – Diving work
Part 4.8 sets out how the risks associated with diving work
are to be managed. Specifically, this part requires a PCBU to ensure:
·
the fitness and competence of persons who carry out general
diving work and high risk diving work; and
·
the health and safety of persons who carry out general diving
work and high risk diving work; and
·
the health and safety of other persons at workplaces where
general diving work or high risk diving work is carried out.
Part 4.8 prohibits workers from carrying out specified
diving work unless relevant competency requirements are met (as set out in
Division 2).
Duty holders under this Part may also have health and safety
duties under section 19 or 28 of the WHS Act. PCBUs may have duties under
Divisions 1 and 2 of Part 5 of the WHS Act to consult with other PCBUs and
workers about matters in this Part. This Part prescribes required
qualifications for section 44 of the WHS Act. Section 27 of the WHS Act
applies to officers in respect of this Part.
There are additional Regulations about management of risk in
Part 3.1 – Risk Management, about provision of information in Part 3.2 –
General workplace management and about construction work involving diving work
in Chapter 6 – Construction Work.
Defined terms in Chapter 1 which are relevant to this Part
include incidental diving work, limited diving and limited scientific diving
work.
Defined terms in Chapter 1 which are relevant to this Part
include:
·
appropriate training in underwater medicine
·
certificate of medical fitness
·
competent person
·
current certificate of medical fitness
·
EANx
·
fitness criteria
·
general diving work
·
high risk diving work
·
incidental diving work
·
limited diving
·
limited scientific diving work
·
registered medical practitioner, and
·
VET course.
Note: Regulation 729 provides that the duties in this Part do not
apply until 1 January 2013.
Division 1 – Preliminary
Regulation 167 – Purpose of Part 4.8
Regulation 167
provides that the purpose of Part 4.8 is to impose duties on a person carrying
out a business or undertaking at a workplace to ensure the fitness, competence,
and health and safety of persons who carry out general diving work and high
risk diving work, as well as the health and safety of other persons at
workplaces where general diving work or high risk diving work is carried out.
Division 2 – General diving work – Fitness and competence of
worker
Regulation 168 – Person conducting business or undertaking
must ensure fitness of workers
Regulation 168
prohibits a PCBU at a workplace from directing or allowing a worker to carry
out (or undergo training for) general diving work if the worker does not hold a
current certificate of medical fitness. Subregulation 168(2) further provides
that a PCBU must not direct or allow a worker to carry out diving work unless
the diving work or training complies with any conditions on the current
certificate of medical fitness of the worker.
Regulation 169 – Certificate of medical fitness
Regulation 169
provides that a certificate of medical fitness must be issued by a registered
medical practitioner with appropriate training in underwater medicine and sets
out the details that must be included in the certificate.
This regulation refers to the term ‘appropriate training in
underwater medicine’, which is defined in regulation 5 to mean training that
results in knowledge of the matters specified in clause M3 of Appendix M to
AS/NZS 2299.1:2007 (Occupational diving operations – Standard operational
practice).
Regulation 170 – Duty to keep certificate of medical
fitness
Regulation 170
requires a PCBU to keep the certificate of medical fitness of a worker who
carries out general diving work for 1 year after the work is carried out.
Regulation 171 – Competence of worker – general diving
work
Regulation 171
provides that a person must not carry out general diving work (other than
incidental diving work and limited scientific diving work) unless that person
has one or more of a number of qualifications. This regulation also states
that the person must have, through training, qualification or experience,
acquired sound knowledge and skill in relation to the listed issues.
This regulation refers to the term ‘incidental diving work’,
which is defined in regulation 5.
Regulation 172 – Competence of worker – incidental diving
work
Regulation 172
provides that a person must not carry out incidental diving work unless the
person has the training, qualification or experience and relevant diving experience
referred to in paragraph 171(b).
Subregulation 172(2) specifies the meaning of relevant
diving experience for this regulation.
Regulation 173 – Competence of worker – limited scientific
diving work
Regulation 173
provides that a person who is not permanently resident in Australia must not
carry out limited scientific diving work unless the person has the listed
training, qualification or experience and relevant diving experience obtained
outside Australia.
Subregulation 173(2) specifies the meaning of relevant
diving experience for this regulation.
Regulation 174 – Competence of competent person
supervising general diving work
Regulation 174
provides that a person appointed under regulation 177 must not perform any
function associated with that appointment unless the person has specified
qualifications and experience in the type of diving work to be supervised.
Regulation 175 – Evidence of competence – duty of person
conducting business or undertaking
Regulation 175
prohibits a PCBU from directing or allowing a worker to carry out general
diving work unless the person sees written evidence that the worker has the
relevant competence. Subregulation 175(3) provides that the written evidence
must be kept for at least 1 year after the diving work is performed.
Subregulation 175(2) similarly prohibits a PCBU from
directing or allowing a person appointed as a competent person to supervise
diving work (under regulation 177) to supervise diving work unless the PCBU
sees written evidence that the person appointed has the competence required
under regulation 174. Subregulation 175(3) provides that the written evidence
must be kept for at least 1 year after the last occasion that supervision work
is performed.
Division 3 – Managing risks – general diving work
Regulation 176 – Management of risks to health and safety
Subregulation 176(1) provides that a PCBU must manage risks
to health and safety associated with general diving work in accordance with
Part 3.1.
Subregulations 176(2) and (3) provide that a PCBU must
ensure that a risk assessment is conducted by a competent person and recorded
in writing.
Regulation 177 – Appointment of competent person to
supervise diving work
Regulation 177
requires a PCBU to appoint one or more competent persons to supervise general
diving work carried out in the business or undertaking, and to perform other
functions required in Division 3 of Part 4.8 of these Regulations.
Regulation 178 – Additional control – dive plan
Regulation 178 states
that a PCBU must not direct or allow general diving work to be carried out
unless a dive plan has been prepared by a competent person for the dive (or for
a similar prior dive), and includes a specified list of matters which the dive
plan must cover.
Regulation 179 – Dive plan must be complied with
Regulation 179
requires a PCBU to ensure, so far as is reasonably practicable, that general
diving work is carried out in accordance with the dive plan prepared for that
work, and that a competent person is appointed (under regulation 177) to brief
workers on the dive plan before commencing work under the plan.
Regulation 180 – Additional control – dive safety log to
be kept
Regulation 180
requires a PCBU to keep a dive safety log that contains specified information
about each dive carried out by a worker. The list includes general
information, and specifies particular additional information where a repetitive
factor is involved, or if EANx or mixed gas is used instead of air.
Regulation 181 – Use of dive safety log
Regulation 181
applies to a PCBU at a workplace where general diving work is carried out. A
PCBU is required to:
·
ensure that, after each dive, the return of each diver is
verified in the dive safety log, by both the diver and the competent person
appointed under regulation 177 to supervise the diving work;
·
ensure that the competent person appointed under regulation 177
to supervise the diving work makes and verifies entries in the dive safety log
of the number of workers and other persons, if diving from a vessel, before the
dive work commences and before the vessel leaves the location after the dive
work is completed; and
·
ensure that a dive safety log is kept for at least 1 year after
the last entry is made.
Subregulation 181(5) provides that an event is verified in
the dive safety log by signing the log or, if the log is electronic, by
entering the verifier’s unique identifier.
Regulation 182 – Record keeping
Regulation 182
applies if a PCBU prepares a risk assessment or dive plan (under regulations
176 or 178). This regulation sets out record keeping requirements for these
documents, namely:
·
the PCBU must keep the risk assessment for at least 28 days after
the work is completed and the dive plan until the dive work is completed;
·
if a notifiable incident occurs, the PCBU musk keep the relevant
documents for at least 2 years after the incident occurs; and
·
the PCBU must make the record readily accessible to any worker
involved in the work, and available for inspection under the WHS Act during the
period for which the relevant record must be kept.
Division 4 – High risk diving work
Regulation 183 – Duties of person conducting business or
undertaking
Regulation 183
requires a PCBU to ensure that the fitness and competence of persons carrying
out high risk diving work, and the undertaking of that high risk diving work,
meets the requirements of AS/NZS 2299.1:2007, or an alternative standard
approved by the regulator where in force.
Subregulation 183(2) provides that the regulator may approve
a standard for the carrying out of high risk diving work by a member of the
Defence Force. Where an approved standard is in force, members of the Defence
Force must comply with that standard and the duty to comply with the Australian
Standard as specified in subregulation 183(1) will not apply.
Subregulation 183(3) is intended to provide the regulator
with flexibility to approve an alternative standard that has regard to the
unique diving activities undertaken by members of the Defence Force, both
within and outside Australian territorial waters.
The Defence Force currently draws on a mix of Australian and
international diving standards to manage the risks associated with diving activities
undertaken by members of the Defence Force.
Regulation 184 – Duty of worker – competence
Regulation 184
provides that a worker must not carry out high risk diving work unless the
worker has the qualifications, knowledge, skills and experience required by
AS/NZS 2299.1:2007 for the kind of work they intend to carry out.
Subregulation 184(2) applies to members of the Defence Force.
If a standard is in force that has been approved by the Regulator, a member of
the Defence Force must not carry out high risk diving work unless the member
has the qualifications, knowledge, skills and experience required by that
standard for the high risk diving work.
This Chapter imposes duties upon designers, manufacturers,
importers and suppliers of plant, in order to ensure health and safety in
respect of subsequent use of plant. It imposes duties upon PCBUs that
commission plant or structures to comply with designer or manufacturer
information, and relevant health and safety instructions in doing so. It imposes
complementary duties on PCBUs with management and control of plant, as well as
imposing a range of additional control measures for specific types of plant. It
provides for the registration of plant and plant designs, and imposes
additional duties in respect of plant and plant designs that are required to be
registered.
Duty holders under this Chapter may have health and safety
duties under sections 21, 22, 23, 24, 25 and 26 of the WHS Act, and
duties under Part 5, Division 1 and Division 2 of the WHS Act to consult with
other duty holders and workers about matters in this Chapter. This Chapter requires
authorisation of plant and plant design for section 42 of the WHS Act. Section
27 of the WHS Act applies to officers in respect of this Chapter.
There are additional Regulations about the provision of
information in Part 3.2 – General Workplace Management. There are
additional Regulations imposing duties on designers, manufacturers and
suppliers in respect of plant and structures in Part 4.3 – Confined Spaces and
imposing duties on designers of structures and PCBUs that commission a
structure in Chapter 6 – Construction work.
Defined terms in Chapter 1 which are relevant to this Part
include:
·
amusement device
·
boom-type elevating work platform
·
building maintenance equipment
·
building maintenance unit
·
competent person
·
concrete placement unit with delivery boom
·
control measure
·
crane
·
designer
·
direct fired process heater
·
earthmoving machinery
·
external review
·
fault
·
gantry crane
·
gas cylinder
·
hazardous chemical
·
hoist
·
importer
·
industrial lift truck
·
industrial robot
·
lift
·
manufacturer
·
mast climbing work platform
·
mobile crane
·
operator protective device
·
person with management or control of plant at a workplace
·
plant
·
powered mobile plant
·
presence-sensing safeguarding system
·
pressure equipment
·
pressure piping
·
pressure vessel
·
relevant fee
·
scaffold
·
self-erecting tower crane
·
supplier
·
suspended scaffold
·
theatrical performance
·
tower crane
·
tractor
·
vehicle hoist, and
·
work box.
Part 5.1 – General duties for plant and
structures
The note to Part 5.1 states
that in some States and Territories, provisions will be included in Schedule 1 to
the WHS Act to extend the operation of this Part to plant outside the workplace.
Division 1 – Preliminary
Regulation 185 – Application of Part 5.1 to plant
Regulation 185 provides
that this Part applies to all plant, other than plant that relies exclusively
on manual power for its operation and is designed to be primarily supported by
hand. This regulation also specifies that this Part applies to explosive power
tools designed to be supported by hand.
Regulation 186 – Application of Part 5.1 to structures
Regulation 186 provides
that this Part applies to structures.
Division 2 – Duties of persons conducting businesses or
undertakings that design plant
Regulation 187 – Provision of information to manufacturer
Regulation 187 requires
a designer of plant to ensure that, when a design is made available to the
manufacturer, the manufacturer is provided with information to enable the plant
to be manufactured in accordance with the design specifications. This regulation
also lists other information about the plant that must be made available to the
manufacturer, if applicable, and notes that a designer also has duties under
section 22 of the WHS Act.
Regulation 188 – Hazard identified in design during
manufacture
Regulation 188 provides
that, if a manufacturer of plant advises the designer of the plant that there
is a hazard in the design for which there is no control measure, the designer
must revise the information originally supplied to the manufacturer to
eliminate or minimise the risk, or notify the manufacturer in writing if the
designer considers that it is unnecessary to revise the information. This regulation
notes that a designer also has duties under section 22 of the WHS Act.
Note: Regulation 730 provides that the duties imposed on a
designer of plant under regulation 188 only apply in relation to the plant if
the manufacturer of the plant advises the designer of the plant, on or after 1
January 2012, that there is a hazard in the design of the plant.
Regulation 189 – Guarding
Regulation 189 provides
that, if a designer of plant uses guarding to control risk, the designer must
ensure, as far as reasonably practicable, that the guarding prevents access to
the danger point or area of the plant, by designing the guarding as specified
in the regulation. This regulation also requires the designer to ensure that
guarding would withstand impact or shock, that it is difficult to bypass or
disable, and that, if the plant contains moving parts that may break or be
ejected, guarding would control any risks.
Subregulation 189(6) requires the designer to ensure that
guarding can be removed for repair, servicing and maintenance when the plant is
not in normal operation, and that the plant cannot be restarted unless the
guarding is replaced.
Note: Regulation 731 provides for the phasing in of the duties in
regulation 189.
Regulation 190 – Operational controls
Regulation 190 lists
requirements for the design of operator’s controls for plant. If the need to
operate plant during maintenance or cleaning cannot be eliminated, the designer
is required to design operator’s controls that cannot be operated by anyone
other than the person maintaining or cleaning the plant, and that the plant can
be operated without risk, or with minimal risk, during maintenance or cleaning.
Note: Regulation 731 provides for the phasing in of the duties in
regulation 190.
Regulation 191 – Emergency stop controls
Regulation 191 requires
that for plant that is designed to be operated or attended by more than one
person, and with more than one emergency stop control, the designer must ensure
that the design provides for stop controls of the ‘stop and lock off’ type so
that the plant cannot be restarted unless they are reset after use. This regulation
also lists additional requirements for the design of emergency stop controls.
Note: Regulation 731 provides for the phasing in of the duties in
regulation 191.
Regulation 192 – Warning devices
Regulation 192 provides
that, if the design of plant includes an emergency warning device, the designer
must ensure that it is positioned to work to best effect.
Note: Regulation 731 provides for the phasing in of the duties in
regulation 192.
Division 3 – Duties of persons conducting businesses or
undertakings that manufacture plant
Regulation 193 – Control of risk
Regulation 193 requires
a manufacturer of plant to ensure that the plant is manufactured, inspected and
tested, if required, in accordance with the information provided by the
designer of the plant under the WHS Act and these Regulations. This regulation
also sets out the steps a manufacturer must take when a hazard is identified in
the design of the plant during the manufacturing process for which the designer
has not provided a control measure.
Note: Regulation 732 provides
that the duties imposed on a manufacturer of plant under regulation 193 only
apply in relation to any process associated with the manufacture of the plant
that is undertaken on or after 1 January 2012.
Regulation 194 – Guarding
Regulation 194 requires
a manufacturer of plant to ensure that guarding used to control risk would
withstand impact or shock. This regulation also requires a manufacturer to
ensure that guarding is removable to allow repair, servicing and maintenance
when the plant is not in normal operation, and that the plant cannot be restarted
unless the guarding is replaced.
Note: Regulation 733 provides for the phasing in of the duties in
regulation 194.
Regulation 195 – Information must be obtained and provided
Regulation 195 requires
a manufacturer of plant to take all reasonable steps to obtain the information
the designer of plant is required to provide under section 22(4)(a) and (c) of the
WHS Act and regulations 187 and 188. This regulation also requires the
manufacturer to provide a person to whom the manufacturer supplies the plant,
the information supplied by the designer under section 22(4) of the WHS Act and
regulation 187. If the manufacturer identifies a hazard during the
manufacturing process, the manufacturer must ensure that the person to whom the
plant is supplied receives the information the designer is required to provide
under section 22(4) of the WHS Act and regulation 188.
Note: Regulation 733 provides for the phasing in of the duties in
regulation 195.
Division 4 – Duties of persons conducting businesses or undertakings
that import plant
Regulation 196 – Information to be obtained and provided
by importer
Regulation 196 requires
an importer of plant to take all reasonable steps to obtain the information to
be provided by a manufacturer, and the information to be provided by the
designer of the plant to the manufacturer, and give that information to any
person to whom the importer supplies the plant.
Note: Regulation 734 provides for the phasing in of the duties in
regulation 196.
Regulation 197 – Control of risk
Regulation 197 requires
an importer of plant to ensure that the plant is inspected, having regard to
the information provided by the manufacturer, and if that information requires
the plant to be tested, that it is tested in accordance with the information.
This regulation also provides that, if any hazards are
identified, the importer must not supply the plant until the risks have been
eliminated. If it is not reasonably practicable to eliminate the risks, the
importer must advise the person to whom the plant is supplied of the risks and
take all reasonable steps to ensure that the designer and manufacturer are
consulted regarding any alteration made to the plant to control the risk.
Note: Regulation 734 provides for the phasing in of the duties in
regulation 197.
Division 5 – Duties of persons conducting businesses or
undertakings that supply plant
Regulation 198 – Information to be obtained and provided
by supplier
Regulation 198 requires
a supplier of plant to take all reasonable steps to obtain the information to
be provided by the manufacturer, and to ensure that the person to whom the
plant is supplied is given the information when the plant is supplied.
Note: Regulation 735 provides for the phasing in of the duties in
regulation 198.
Regulation 199 – Supply of second-hand plant – duties of
supplier
Regulation 199 requires
a supplier of second-hand plant to ensure, as far as reasonably practicable,
that any faults in the plant are identified. The supplier must ensure that
written notice is provided to the person to whom the plant is to be supplied,
before the plant is supplied, advising of the condition of the plant, of any
faults identified, and if appropriate, that the plant should not be used until
the faults are rectified. This requirement does not apply to plant to be used
as scrap or spare parts.
Note: Regulation 735 provides for the phasing in of the duties in
regulation 199.
Regulation 200 – Second-hand plant to be used for scrap or
spare parts
Regulation 200 requires
a supplier of plant to be used for scrap or spare parts to inform the person to
whom the plant is supplied, either in writing or by marking the plant, that the
plant is being supplied for that purpose and in its current form is not to be
used as plant.
Note: Regulation 735 provides for the phasing in of the duties in
regulation 200.
Division 6 – Duties of persons conducting businesses or
undertakings that install, construct or commission plant
Regulation 201 – Duties of persons conducting businesses
or undertakings that install, construct or commission plant
Regulation 201 requires
a PCBU that installs, constructs or commissions plant to be used, or expected
to be used, as or at, a workplace, to ensure that the plant is installed,
constructed or commissioned having regard to the information provided by the
designer or manufacturer under the WHS Act and these Regulations, or
instructions provided by a competent person, to the extent that these
instructions relate to health and safety.
Note: Regulation 736
provides that the duties imposed on a PCBU that installs, constructs or
commissions plant under regulation 201 do not apply in relation to any plant or
structure if the person started or completed any process associated with the
installation, construction or commissioning of the plant or structure before 1
January 2012.
Regulation 202 – Duties of persons conducting businesses
or undertakings that install, construct or commission structures
Regulation
202 requires a PCBU that installs, constructs or commissions a structure
to be used, or expected to be used, as or at, a workplace, to ensure that the
structure is installed, constructed or commissioned having regard to the
information provided by the designer or manufacturer under the WHS Act and
these Regulations, or instructions provided by a competent person, to the
extent that these instructions relate to health and safety.
Note: Regulation 736
provides that the duties imposed on a PCBU that installs, constructs or commissions
plant under regulation 202 do not apply in relation to any plant or structure
if the person started or completed any process associated with the
installation, construction or commissioning of the plant or structure before 1
January 2012.
Division 7 – General duties of persons conducting a business
or undertaking involving the management or control of plant
A note to Division 7 states that a person with management or
control of plant at a workplace is the PCBU at the workplace to the extent that
the business or undertaking involves the management or control of plant in
whole or in part at the workplace.
Subdivision 1 – Management of risks
Regulation 203 – Management of risks to health and safety
Regulation
203 requires a person with management or control of plant to manage
risks to health and safety associated with plant.
Subdivision 2 – Additional control measures for general
plant
Regulation 204 – Control of risks arising from
installation or commissioning
Regulation
204 provides that a person with management or control of plant at a
workplace must not commission the plant unless the person has established, so
far as is reasonably practicable, that the plant is without risks to health and
safety. The person must not decommission or dismantle the plant unless this
can be carried out, so far as is reasonably practicable, without risks to
health and safety.
A person with management or
control of plant at the workplace must ensure that a person who installs,
assembles, constructs, commissions or decommissions or dismantles the plant is
a competent person, and that the person is provided with the information
available for eliminating or minimising risks to health or safety. The
processes for the installation, construction, commissioning, decommissioning
and dismantling must include inspections that ensure, so far as is reasonably
practicable, that risks are monitored.
Regulation 205 – Preventing unauthorised alterations to or
interference with plant
Regulation
205 requires the person with management or control of plant at a
workplace to, so far as is reasonably practicable, prevent alterations to or
interference with the plant that are not authorised by the person
Regulation 206 – Proper use of plant and controls
Regulation
206 requires the person with management or control of plant at a
workplace to take reasonable steps to ensure that plant is used only for the
purpose for which it was designed, unless the person has determined that the
proposed use does not increase the risk to health or safety. In making that
determination, the person must ensure that the risk is assessed by a competent
person. The person must take reasonable steps to ensure that health and safety
features and warning devices are used in accordance with the instructions and
information provided under regulation 39.
Regulation 207 – Plant not in use
Regulation
207 requires the person with management or control of plant to ensure,
so far as is reasonably practicable, that plant not in use does not create a
risk to health or safety.
Regulation 208 – Guarding
Regulation 208 provides
that, if guarding is used to control risk associated with plant at a workplace,
a person with management or control of the plant must ensure, as far as
reasonably practicable, that the guarding prevents access to the area of the
plant requiring guarding, by using the guarding specified in the regulation for
particular circumstances.
The guarding must withstand impact or shock, difficult to
bypass or disable, does not create risks in itself and is reasonably
maintained. If the plant contains moving parts that may break or be ejected,
the guarding must control any risk, as far as is reasonably practicable.
Subregulation 208(5) requires the person with management or
control of the plant to ensure that guarding can be removed for maintenance and
cleaning when the plant is not in normal operation, and that the plant cannot
be restarted unless the guarding is replaced.
Regulation 209 – Guarding and insulation from heat and
cold
Regulation 209 requires
the person with management or control of plant at a workplace to ensure, so far
as is reasonably practicable, that any pipe or other part of the plant
associated with heat or cold is guarded or insulated so that the plant is
without risks to health and safety.
Regulation 210 – Operational controls
Regulation
210 lists requirements for operator’s controls on plant at a workplace.
If the need to operate plant during maintenance or cleaning cannot be
eliminated, the person with management or control of the plant at a workplace
must ensure that the operator’s controls cannot be operated by anyone other
than the person maintaining or cleaning the plant, or a person authorised by
the person with management or control, and that the plant can be operated
without risk, or with minimal risk, during maintenance or cleaning.
Regulation 211 – Emergency stops
Regulation 211 requires
that if plant at a workplace is designed to be operated or attended by more than
one person and more than one emergency stop control is fitted, the person with
management or control of the plant must ensure that the emergency stop controls
are of the ‘stop and lock-off’ type so that the plant cannot be restarted
unless they are reset after use. This regulation also lists additional
requirements for the emergency stop controls.
Regulation 212 – Warning devices
Regulation 212 requires
that, if plant includes an emergency warning device, it is positioned on the
plant to work to best effect.
Regulation 213 – Maintenance and inspection of plant
Regulation
213 requires the person with management or control of plant to ensure
that the maintenance, repair, inspection and, if necessary, testing of the
plant is carried out by:
·
a competent person, in accordance with the manufacturer’s
instructions;
·
if there are no manufacturer’s instructions, in accordance with
the recommendations of a competent person; or
·
in relation to inspection, if it is not reasonably practicable to
carry out the inspection in accordance with the manufacturer’s instructions or
in accordance with the recommendations of a competent person, annually.
Subdivision 3 – Additional control measures for certain
plant
Regulation 214 – Powered mobile plant – general control of
risk
Regulation
214 provides that the person with management or control of powered
mobile plant must, as far as is reasonably practicable, manage the risks to
health and safety of:
·
the plant overturning;
·
things falling on the operator of the plant;
·
the operator being ejected from the plant;
·
the plant colliding with any person or thing; or
·
mechanical failure of pressurised elements of plant that may
release fluids that pose a risk to health and safety.
Regulation 215 – Powered mobile plant – specific control
measures
Regulation
215 requires a PCBU with management or control of powered mobile plant
at a workplace to ensure, as far as reasonably practicable, that a suitable combination
of operator protective devices for the plant is provided, maintained and used.
The PCBU must ensure, as far as is reasonably practicable, that no one other
than the operator rides on the plant unless they are provided with a level of
protection equivalent to that provided to the operator. The PCBU must also
ensure that the plant does not collide with pedestrians or other powered mobile
plant.
Subregulation 215(5) provides
that, if there is a possibility of the plant colliding with pedestrians or
other powered mobile plant, it must have a warning device that will warn
persons who may be at risk from the movement of the plant.
Regulation 216 – Roll-over protection on tractors
Regulation
216 requires a person with management or control of a tractor at a
workplace to ensure that the tractor is not used, unless it is securely fitted
with a rollover protective structure. Subregulation 216(2) provides that, if a
tractor is used in a place that is too low for the tractor to work while it is
fitted with a roll-over protective structure, the structure may be lowered or
removed while the tractor is used in such a situation (but only if other
measures to minimise the risk of roll-over are in place).
Subregulation 216(3) states that
this regulation does not apply if the tractor is:
·
installed in a fixed position, and in a manner which would no
longer permit it to be used as powered mobile plant;
·
less than 560 kilograms or 15,000 kilograms or more in mass; or
·
being used for a historical purpose or activity.
This regulation includes
definitions of ‘roll-over protective structure’ and ‘historical purpose or
activity’, and notes that regulations 214 and 215 also applies to a
tractor.
Regulation 217 – Protective structures on earthmoving
machinery
Regulation
217 requires a person with management or control of earthmoving
machinery at a workplace to ensure that the machinery is not used unless it is
securely fitted with a protective structure.
Subregulation 217(2) clarifies
that this provision does not apply to earthmoving machinery that has a weight
of less than 1,500 kilograms (not including attachments to the machinery) and
is not designed to have a seated operator.
This regulation includes a
definition of ‘protective structure’ and notes that regulations 214 and 215
also apply to earthmoving machinery.
Regulation 218 – Industrial lift trucks
Regulation
218 provides that a person with management or control of an industrial
lift truck at a workplace must ensure that it is equipped with lifting
attachments suitable for the load to be lifted or moved; and that it is
operated in a manner that ensures that the risks to the operator of the truck
and other persons are eliminated or minimised as far as is reasonably practicable.
This regulation also requires
the person with management or control to ensure that the industrial lift truck
is not used to carry a passenger unless it is designed to do so, and that the
passenger seat complies with the requirements specified in the regulation.
Regulation 219 – Plant that lifts or suspends loads
Regulation
219 requires the person with management or control of plant used to lift
or suspend persons or things at the workplace to ensure, as far as reasonably
practicable, that the plant used is specifically designed to lift or suspend
the load.
Subregulation 219(3) provides
that, if it is not reasonably practicable to use plant specifically designed to
lift or suspend the load, the person must ensure that:
·
the plant used does not cause a greater risk than if specifically
designed plant were used; and
·
if the plant is lifting or suspending persons, the use of the
plant complies with regulation 220.
Subregulations 219(4) to (7) specify
how the person must ensure lifting and suspension are carried out.
Regulation 220 – Exception – Plant not specifically
designed to lift or suspend a person
Regulation
220 provides an exception to the requirement in regulation 219 for a
person with management or control of plant at a workplace to ensure that plant
not specifically designed to lift or suspend persons, or things, does not cause
a greater risk than if specifically designed plant were used. The exception
applies to plant that is not specifically designed to lift or suspend a person.
This regulation provides that
the person with management or control of this type of plant at a workplace must
ensure that:
·
the persons are lifted or suspended in a work box that is securely
attached to the plant;
·
the persons in the work box remain substantially within the work
box while they are being lifted or suspended;
·
if there is a risk of a person falling from a height, a safety
harness is provided and worn by the person in order to prevent, so far as is
reasonably practicable, injury as a result of the fall; and
·
means are provided to enable the persons being lifted or
suspended to safely exit from the plant if it fails in its normal operation.
Regulation 220(2) provides that
this regulation does not apply to plant used in connection with stunt work,
acrobatics or theatrical performances, which are governed by Part 4.4.
Regulation 221 – Plant used in connection with tree
lopping
Regulation
221 includes an exception to the requirements in regulation 220 in
relation to work boxes used to lift or suspend people that are used in
connection with tree lopping. Further detail in relation to carrying out tree
lopping will be included in a Code of Practice.
Note: Regulation 737 provides that duties imposed under regulation
221 do not apply until a code of practice for the use of plant in connection
with tree lopping takes effect.
Regulation 222 – Industrial robots
Regulation
222 requires a person with management or control of an industrial robot
or other remotely or automatically energised plant at a workplace not to allow
or direct a worker to work in the immediate vicinity of the plant if it could
start without warning and cause a hazard, unless suitable control measures are
in place to control the risks to health and safety.
Subregulation 222(3) provides that,
if the remote or automatic energising of the plant could lead to risks to
health and safety, the person must ensure that access to the area in the
immediate vicinity of the plant is controlled at all times as specified in the regulation.
Regulation 223 – Lasers
Regulation
223 requires a person with management or control at a workplace of laser
equipment that may create a risk to health and safety to ensure that laser
equipment intended for use on plant is designed, constructed and installed so
as to prevent accidental irradiation.
This regulation requires the
person to ensure laser equipment on plant is protected so that any operator of
the plant or other person is not exposed to the radiation specified in the regulation.
In addition, the person must ensure that the visual equipment used for the
observation or adjustment of laser equipment on plant causes no risk to health
or safety from laser rays. Furthermore, the person must ensure that the
workers operating the laser equipment are trained in the proper operation of
the equipment.
Subregulation 223(6) requires
the person to ensure that Class 3B and Class 4 lasers (within the meaning of Australian
Standard 2397: “Safe Use of Lasers in the Building and Construction Industry”)
are not used in construction work.
Regulation 224 – Pressure equipment
Regulation
224 requires a person with management or control of pressure equipment
at a workplace to ensure the equipment is inspected regularly by a competent
person, and that any gas cylinder inspected is marked with a current inspection
mark to show the most recent inspection.
Subregulation 224(2) provides
that the person with management or control of gas cylinders at a workplace that
is a gas cylinder filling station must ensure that:
·
a gas cylinder is not filled with gas unless it bears a current
inspection mark; and
·
each gas cylinder is only filled with gas for which that cylinder
is designed.
This regulation refers to the term ‘gas cylinder’, which is
defined in regulation 5.
This regulation refers to the term ‘pressure equipment’,
which is defined in regulation 5 to mean boilers, pressure vessels and pressure
piping.
Regulation 225 – Scaffolds
Regulation
225 applies to:
·
a suspended scaffold;
·
a cantilevered scaffold;
·
a spur scaffold;
·
a hung scaffold; and
·
any other scaffold from which a person or thing could fall more
than 4 metres.
Subregulation 225(2) provides
that the person with management or control of a scaffold at a workplace must
ensure that the scaffold is not used unless the person receives written
confirmation from a competent person that construction of the scaffold has been
completed.
Subregulation 225(3) provides
that the person with management or control of a scaffold at a workplace must
ensure that the scaffold and its supporting structure are inspected by a
competent person at the times specified in the subregulation.
Subregulation 225(4) states
that, if an inspection indicates that a scaffold at a workplace, or its
supporting structure, creates a risk to health or safety, the person with
management or control of the scaffold must ensure that any necessary work is
carried out, and that the scaffold and its supporting structure are inspected
by a competent person before the scaffold is used again.
Subregulation 225(5) requires
the person with management or control of a scaffold at a workplace to
prevent authorised access to the scaffold while it is incomplete or unattended,
for example, by danger tags.
Regulation 226 – Plant with presence sensing safeguarding
system – records
Regulation
226 requires a person with management or control of plant with a
presence sensing safeguarding system at a workplace to keep a record of safety
integrity tests, inspections, maintenance, commissioning, decommissioning,
dismantling and alterations of the plant for the periods specified in the regulation.
The records must be available for inspection under the WHS Act and made
available to any person when the person with management or control of the plant
relinquishes control.
Part 5.2 – Additional duties relating to
registered plant and plant designs
The note to Part 5.2 clarifies
that a person with management or control of plant at a workplace is the PCBU to
the extent that the business or undertaking involves the management or control
of plant in whole or in part at the workplace. The note also clarifies that Part
5.2 applies in addition to Part 5.1, and specifies that, in this Part, ‘plant’
includes a structure, as per the definition of ‘plant’ in subregulation 5(1).
Division 1 – Application of Part 5.2
Regulation 227 – Application of Part 5.2
Regulation
227 states that Part 5.2 applies to plant that is required to be
registered under Part 5.3 or plant the design of which is required to be
registered under Part 5.3.
Division 2 – Duty of persons conducting a business or
undertaking who design plant to record plant design
Regulation 228 – Records and information
Regulation
228 states that, if the design of plant requires registration under Part
5.3, the designer of the plant must make a record containing the method used to
determine the control measures for the plant, and the control measures
resulting from that determination, and copies of the information that is
provided to a manufacturer:
·
under section 22 of the WHS Act;
·
under regulation 187; and
·
under regulation 188.
Note: Regulation 738 provides for the phasing in of the duties in
regulation 229.
Regulation 229 – Record of standards or engineering
principles used
Regulation
229 states that, if the design of the plant is required to be registered
under Part 5.3, the designer of the plant must record any published
technical standard used to design the plant, or if none was used, any
engineering principles used to design the plant.
Note: Regulation 738 provides for the phasing in of the duties in
regulation 229.
Regulation 230 – Records to be available for inspection
Regulation
230 requires a designer of plant to keep the records made under regulations
228 and 229 available for inspection under the WHS Act, for the design
life of the plant.
Division 3 – Duties of persons conducting a business or
undertaking
Regulation 231 – Duty of persons conducting businesses or
undertakings that manufacture plant
Regulation
231 provides that a manufacturer must not supply plant specified in Part
1 of Schedule 5 unless the design of that plant is registered under Part 5.3.
Regulation 232 – Duty of persons conducting businesses or
undertakings that import plant
Regulation
232 states that an importer must not supply plant specified in Part 1 of
Schedule 5 unless the design of that plant is registered under Part 5.3.
Regulation 233 – Duty of persons conducting businesses or
undertakings that supply plant
Regulation
233 states that a supplier must not supply plant specified in Part 1 of
Schedule 5 unless the design of that plant is registered under Part 5.
Regulation 234 – Duty of persons conducting businesses or
undertakings that commission plant
Regulation
234 states that a PCBU that commissions plant must not commission an
item of plant that is specified in Part 2 of Schedule 5 for use in a workplace
unless that item of plant is registered under Part 5.3.
Subregulation 234(3) clarifies
that this regulation does not prevent a PCBU that commissions plant from
performing any necessary adjustments, tests and inspections as part of the
commissioning process before the plant is commissioned at a workplace.
Division 4 – Duties of persons conducting a business or
undertaking involving the management or control of plant
Subdivision 1 – Control measures for registered plant
Regulation 235 – Major inspection of registered mobile
cranes and tower cranes
Regulation
235 requires a person with management or control of a registered mobile
crane or tower crane at a workplace to ensure that a competent person carries
out the maintenance, repair, inspection and, if necessary testing of the
crane. This regulation requires that the crane must be inspected:
·
at the end of the design life recommended by the manufacturer for
the crane;
·
if there are no manufacturer's recommendations, in accordance
with the recommendations of a competent person; or
·
if it is not reasonably practicable to inspect the crane at the
end of its design life, or in accordance with the recommendations of a
competent person, then every 10 years from the date that the crane was first
commissioned or first registered, whichever occurs first.
Subregulation 235(4) defines
‘competent person’ for the purposes of regulation 235.
Regulation 236 – Lifts
Regulation
236 provides that a person with management or control of a lift at a
workplace (including maintenance of a lift) must ensure, if there is a risk
that people could fall down the lift well, that secure barriers are in place to
prevent people falling, and secure working platforms or equivalent arrangements
are provided to prevent a person working in the lift well from falling.
This regulation requires the
person with management or control of a lift to ensure that there is a safe
means of entry to and exit from the base of the lift well. In addition, the
person with management or control of a lift must ensure a sign is fixed
prominently in the lift stating the safe working load specified in the design
of the lift.
Regulation 237 – Records of plant
Regulation
237 applies to plant that is required to be registered under Part 5.3.
This regulation requires the person with management or control of the plant at
the workplace to keep a record of all tests, inspections, maintenance,
commissioning, decommissioning, dismantling and alterations of the plant for
the period specified in the regulation. This regulation specifies that the
person must keep the record available for inspection and make it available to
any person to whom the person relinquishes control of the plant.
Subdivision 2 – Control measures for amusement devices
This subdivision refers to the term ‘amusement device’,
which is defined in regulation 5.
Regulation 238 – Operation of amusement devices
Regulation
238 requires a person with management or control of an amusement device
at a workplace to ensure that the amusement device is operated only by a person
who has been provided with instruction and training in the proper operation of
the device.
Subregulation 238(2) requires
the person to ensure that:
·
the amusement device is checked on the day, before it is
operated;
·
the amusement device is tested without passengers, before being
operated with passengers; and
·
the daily checks and operation of the amusement device without
passengers are properly and accurately recorded in the log book for the
amusement device.
Regulation 239 – Storage of amusement devices
Regulation
239 requires a person with management or control of an amusement device
at a workplace to ensure that the device is stored without risk to health and
safety and that the person who stores the device is a competent person or
supervised by a competent person.
Regulation 240 – Maintenance, inspection and testing of
amusement device
Regulation
240 provides that a person with management or control of an amusement
device at a workplace must ensure that a competent person carries out the
maintenance, inspection and, if necessary, testing of the amusement device in
accordance with the designer’s and/or the manufacturer’s recommendations, or in
accordance with the maintenance manual if a competent person has prepared a
manual for the amusement device.
Subregulation 240(2) states that
a person is not competent to carry out a detailed inspection of an amusement
device that includes an electrical installation unless the person is qualified,
or is assisted by a person who is qualified, to inspect electrical
installations.
Regulation 241 – Annual inspection of amusement device
Regulation
241 requires the person with management or control of an amusement
device at a workplace to ensure that a detailed inspection of the
device is carried out at least once every 12 months by a competent person. This
regulation lists the checks that must be carried out at the annual inspection,
and includes a requirement for a detailed inspection of the amusement device to
ensure compliance with the WHS Act and these Regulations.
Subregulation 241(3) provides
that the regulator may extend the date for an inspection for up to 35 days if
an inspection is scheduled to coincide with the same event each year. If the
date is extended, under subregulation 241(4) the new date is the date from
which future annual inspections are determined.
Subregulation 241(5) defines
‘competent person’ for the purpose of this regulation.
Regulation 242 – Log book and manuals for amusement device
Regulation
242 provides that the person with management or control of an amusement
device at a workplace must, in addition to keeping records as required under regulation
237, record the dates and details of the erection or storage of the
amusement device in the log book for the amusement device, and ensure the log
book and operating and maintenance manuals are kept with the amusement device.
Regulation 242(2) requires the
person with management or control of an amusement device at a workplace to
provide people involved in the commissioning, use, storage and testing,
de-commissioning, dismantling and disposal, of an amusement device with the log
book and the operating and maintenance manuals for the amusement device.
Part 5.3 – Registration of plant designs
and items of plant
The note to Part 5.3 states
that, in this Part, ‘plant’ includes a structure.
Note: Regulation 743 provides that the duties imposed under Part
5.3 of the WHS Regulations to register plant or the design of plant do not
apply to the Australian Defence Organisation (ADO) if a special licence
mentioned in subregulation 743(1) is in force.
Division 1 – Plant designs to be registered
Regulation 243 – Plant design to be registered
Regulation
243 states that the design of plant specified in Part 1 of Schedule 5
must be registered under this Part.
Regulation 244 – Altered plant designs to be registered
Regulation
244 states that if the design of plant specified in Part 1 of Schedule 5
and registered under this Part is altered, the altered design must be
registered under this Part. Section 42 of the WHS Act refers to the
requirements to authorise plant design. This regulation notes that a reference
to the alteration of a design means an alteration that may affect health or
safety.
Regulation 245 – Recognition of designs registered by
corresponding regulator
Regulation
245 relates to the recognition of designs registered elsewhere in
Australia. It specifies that a design of plant, or an altered design of plant,
registered by a corresponding regulator under a corresponding WHS law, is not
required to be registered under this Part.
Note: Regulation 739 provides for the phasing in of the duties in
Part 5.3 in relation to the designs of concrete placement units with delivery
booms and prefabricated formwork. Regulation 740 provides that the duties
imposed on a person under Part 5.3 do not apply in relation to lifts (including
escalators and moving walkways) until 1 January 2013.
Division 2 – Items of plant to be registered
Regulation 246 – Items of plant to be registered
Regulation
246 states that the items of plant specified in Part 2 of Schedule 5
must be registered under this Part. The purpose of registering an item
of plant is to ensure that it is inspected by a competent person and is safe to
operate.
Regulation 247 – Recognition of plant registered by
corresponding regulator
Regulation
247 states that an item of plant registered by a corresponding regulator
under a corresponding WHS law is not required to be registered under this Part.
Note: Regulation 741 provides for the preservation of existing
registrations of plant and plant design under the OHS Regulations.
Division 3 – Registration process for plant designs
Regulation 248 – Application of Division 3
Regulation
248 states that this Division applies to the registration of a plant
design specified in Part 1 of Schedule 5 as requiring registration.
Regulation 249 – Who can apply to register a plant design
Regulation
249 provides that a PCBU that designs plant may apply to the regulator
for the registration of a design of plant. This regulation also provides that
a person with management or control of an item of plant may apply to the
regulator for the registration of that item of plant.
Regulation 250 – Application for registration
Regulation
250 sets out requirements for how an application for registration of a
plant design must be made and the information required. This regulation also
provides that the application must be accompanied by the relevant fee.
Regulation 251 – Design verification statement
Regulation
251 specifies the content and the inclusions required in the design
verification statement for a design of plant, such as the name, business
address and qualifications of the applicant.
Regulation 252 – Who can be the design verifier
Regulation
252 specifies who is eligible to be a design verifier for a design of
plant. This regulation states that a person is not eligible to be the design
verifier if the person was involved in the production of the design, or engaged
by the PCBU that produced the design at the time the design was produced,
unless the PCBU uses the quality system specified in subregulation 252(3).
Regulation 253 – Duty of design verifier
Regulation
253 states that a design verifier of a design of plant specified in Part
1 of Schedule 5 must document the design verification process and the results
of that process.
Regulation 254 – Design verification statements not to be
made in certain circumstances
Regulation
254 specifies that a person must not make design verification statements
for a design of plant specified in Part 1 of Schedule 5 if the person is not
eligible to be a design verifier for that design, or if the person has not
carried out a verification of the design.
Regulation 255 – Additional information
Regulation
255 enables the regulator to ask an applicant to provide additional
information so that the regulator can make a decision on whether or not to
grant the registration. This regulation also provides that if the applicant
did not provide the additional information by the date specified, the
application is taken to be withdrawn.
Regulation 256 – Decision on application
Regulation
256 specifies the circumstances in which the regulator must grant or
refuse to grant the registration. This regulation also provides that if the
regulator did not make a decision within 120 days after receiving the
application or additional information requested under regulation 255, the
regulator is taken to have refused the application.
A note provides that a refusal
to grant a registration under this regulation is a reviewable decision under
regulation 676.
Regulation 257 – Refusal of registration – process
Regulation
257 sets out the process the regulator must follow if an application for
registration is to be refused.
A note provides that a refusal
to grant a registration under this regulation is a reviewable decision under
regulation 676.
Regulation 258 – Conditions of registration
Regulation
258 enables the regulator to impose conditions on the registration of
plant design when granting the registration.
A note states that a person must
comply with the conditions of registration, and provides that a decision to
impose a condition on a registration is a reviewable decision under regulation
676.
Regulation 259 – Duration of registration of plant design
Regulation
259 provides that a registration of a plant design is granted for an
unlimited duration.
Regulation 260 – Plant design registration number
Regulation
260 sets out the obligations to be met relating to the plant design
registration number issued by the regulator if the regulator registers a plant
design. These obligations are on the regulator, the person to whom the plant
design registration number is issued, and the person with management and
control of the workplace.
Regulation 261 – Registration document
Regulation
261 sets out the requirements for the content of the registration
document issued by the regulator when registering plant design.
Regulation 262 – Registration document to be available
Regulation
262 requires a registration holder to keep the registration document
available for inspection under the WHS Act, other than when the registration
document is not in the registration holder’s possession as provided for under regulation
287.
Regulation 263 – Disclosure of design information
Regulation
263 prohibits the regulator from disclosing to any person any
confidential information provided by an applicant for registration of a design
of an item of plant, except in the circumstances set out in this regulation. This
regulation also provides that the regulator may provide a copy of the design
verification statement to the people specified in the regulation.
Subregulation 263(4) provides
that, if the registration holder for the design of the plant cannot be located
or no longer exists, the regulator may provide the person with management or
control of plant with the minimum information about the plant design necessary
for the safe operation of the plant.
Division 4 – Registration process for an item of plant
Regulation 264 – Application of Division 4
Regulation
264 provides that this Division applies to the registration of an item
of plant specified in Part 2 of Schedule 5 as requiring registration.
Regulation 265 – Who can apply to register an item of
plant
Regulation
265 provides that a person with management or control of an item of
plant may apply to the regulator for the registration of that item of plant.
Regulation 266 – Application for registration
Regulation
266 sets out the requirements for an application for registration of an
item of plant. This regulation also provides that the application must be
accompanied by the relevant fee.
Regulation 267 – When is a person competent to inspect
plant
Regulation
267 sets out the qualifications required for a person to be competent to
inspect an item of plant.
Regulation 268 – Additional information
Regulation
268 enables the regulator to ask an applicant to provide additional
information so that the regulator can make a decision on whether or not to
grant the registration. This regulation also provides that if the applicant
does not provide the additional information by the date specified, the
application is taken to be withdrawn.
Regulation 269 – Decision on application
Regulation
269 specifies the circumstances in which the regulator must grant or
refuse to grant the registration. This regulation requires the regulator to
refuse to grant a registration if the regulator is satisfied that the applicant
has given information that is false or misleading in a material particular, or
failed to give any material information. If the regulator decides to grant the
registration, it must notify the applicant within 14 days after making the
decision.
This regulation also provides
that if the regulator does not make a decision within 120 days after receiving
the application, or additional information requested under regulation 268, the
regulator is taken to have refused the application.
A note provides that a refusal
to register an item of plant under this regulation is a reviewable decision
under regulation 676.
Regulation 270 – Refusal of registration – process
Regulation
270 sets out the process the regulator must follow if the regulator
proposes to refuse to grant an application for registration.
A note provides that a refusal
to register an item of plant under this regulation is a reviewable decision
under regulation 676.
Regulation 271 – Conditions of registration
Regulation
271 enables the regulator to impose conditions on the registration of an
item of plant. The person must comply with the conditions of registration.
A note provides that the
imposition of a condition when renewing registration of an item of plant under
this regulation is a reviewable decision under regulation 676.
Regulation 272 – Duration of registration
Regulation
272 provides that a registration of an item of plant takes effect on the
day it is granted and expires 5 years after that day.
Regulation 273 – Plant registration number
Regulation
273 provides that, if the regulator registers an item of plant, the
regulator must issue a plant registration number to the registration holder
within 14 days after the registration, to give to the person with management or
control of the plant at a workplace. The person with management or control of
the plant must ensure that the registration number is marked on the item of
plant.
Regulation 274 – Registration document
Regulation
274 sets out the contents required in the registration document to be
issued by the regulator if the regulator registers an item of plant. This
regulation provides that the registration document must be issued to the
applicant within 14 days after the regulator makes the decision.
Regulation 275 – Registration document to be available
Regulation
275 requires a registration holder of an item of plant to keep the registration
document available for inspection under the WHS Act, except when the
registration document is not in the registration holder’s possession, in the
circumstances set out in regulations 287 or 288.
Regulation 276 – Regulator may renew registration
Regulation
276 enables the regulator to renew the registration of an item of plant.
Regulation 277 – Application for renewal
Regulation
277 sets out how an application for renewal of registration of an item
of plant must be made and the information required. This regulation also
provides that the application must be accompanied by the relevant fee.
Regulation 278 – Registration continues in force until
application is decided
Regulation
278 states that, if a registration holder applies under regulation 277
for the renewal of a registration, the registration is taken to continue in
force from the day it has ended until the registration holder is given notice
of the decision on the application.
Regulation 279 – Decision on application
Regulation
279 requires the regulator to renew the registration of an item of
plant, provided the regulator is satisfied that the application for renewal has
been made in accordance with this Division and the plant has been maintained
and inspected in accordance with regulation 213.
A note provides that refusal to
renew registration of an item of plant under this regulation is a reviewable
decision under regulation 676.
Regulation 280 – Status of registration during review
Regulation
280 provides that if the regulator gives a registration holder written
notice before the plant registration expires, that it proposes to refuse to
renew the registration, and the registration holder seeks a review, the
registration continues to have effect in accordance with this regulation.
Note: Regulation 742 provides for the preservation of pending
applications for registration of plant and plant designs under the OHS
Regulations.
Division 5 – Changes to registration and registration
documents
Regulation 281 – Application of Division
Regulation
281 provides that this Division applies to the registration of a plant
design and the registration of an item of plant.
Regulation 282 – Changes to information
Regulation
282 requires a registration holder to give the regulator written notice
of any change to specified information the registration holder has given to
the regulator within 14 days after the registration holder became aware of the
change. This regulation also requires a registration holder of an item of
plant to give written notice to the regulator if the item of plant is altered
such that the plant requires new control measures; or if the plant is usually
fixed and is relocated; or if the registration holder no longer has management
or control of the item of plant.
Regulation 283 – Amendment of registration imposed by
regulator
Regulation
283 enables the regulator, on its own initiative, to amend a
registration, including by varying or deleting a condition, or imposing a new
condition on the registration. This regulation also specifies the process to
be followed by the regulator before amending a registration.
A note provides that an
amendment of registration on the regulator’s initiative under this regulation is
a reviewable decision under regulation 676.
Regulation 284 – Amendment on application by registration
holder
Regulation
284 enables the regulator to amend a registration at the request of the
registration holder. This regulation also specifies the process the regulator
must follow if the regulator proposes to refuse to amend the registration.
A note provides that a refusal
to amend registration on application, or a decision to make a different
amendment, under this regulation is a reviewable decision under regulation 676.
Regulation 285 – Minor corrections to registration
Regulation
285 enables the regulator to make minor amendments to a registration,
including correcting an obvious error or changing an address.
Regulation 286 – Regulator to give amended registration
document
Regulation
286 requires the regulator, if it amends a registration and considers
that the registration document requires amendment, to give the registration
holder an amended registration document within 14 days of making the decision.
Regulation 287 – Registration holder to return
registration document
Regulation
287 requires a registration holder to return the registration document
to the regulator for amendment at the written request of the regulator within
the time specified in the request.
Regulation 288 – Replacement registration document
Regulation
288 requires a registration holder to give written notice to the regulator
if the registration document is lost, stolen or destroyed. This regulation sets
out the application requirements for a replacement document, and provides that
the regulator may issue a replacement registration document if the regulator is
satisfied that it has been lost, stolen, or destroyed. If the regulator
refuses to issue a replacement document, it must give the registration holder
written notice of the decision, with reasons, within 14 days of making the
decision.
A note provides that a refusal
to issue a replacement registration document under this regulation is a
reviewable decision under regulation 676.
This Chapter imposes duties on persons in relation to
construction work as defined in regulation 6.1.1 and high risk construction
work as defined in the regulation 6.1.2.
This Chapter requires PCBUs that commission construction
work in relation to a structure to consult with the designer and requires
designers of structures to provide a written report regarding health and
safety.
This Chapter also requires PCBUs to control risks associated
with construction work and high risk construction work and imposes duties in
respect of safe work method statements, excavation work and trenches. It also
imposes duties upon principal contractors, including a duty to prepare a
written WHS management plan, signage obligations and obligations to ensure
compliance with other regulations at the workplace.
This Chapter sets out the requirements for general induction
training and the requirement that workers undertaking construction work hold a
general construction induction training card.
Duty holders under this Chapter may also have health and
safety duties under sections 19, 20, 21, 22, 26, 28 or 29 of the WHS Act, and
duties under Part 5 Division 1 and Division 2 of the WHS Act to consult with
other duty holders and workers about matters in this Chapter. This Chapter
prescribes required qualifications for section 44 of the WHS Act. Section 27
of the WHS Act applies to officers in respect of this Chapter.
There are additional regulations in other Chapters which may
apply to construction work, including:
- Part
3 – General risk and workplace management;
- duties
on designers in Part 4.3 – Confined spaces and on designers and PCBUs who
commission a structure in Chapter 5 – Plant and Structures;
- Part
4.3 – Confined spaces;
- Part
4.4 – Falls;
- Part
4.7 – General electrical safety in workplaces and energised electrical
work;
- Part
4.8 – Diving work;
- Chapter
5 – Plant and structures;
- Part
7.1 – Hazardous chemicals; and
- Chapter
7A – Asbestos.
Defined terms in Chapter 1 which
are relevant to this Chapter include:
- airborne
contaminant
- asbestos
- card
holder
- confined
space
- contaminant
- control
measure
- designer
- essential
services
- excavation
- excavation
work
- general
construction induction training
- general
construction induction training card
- general
construction induction training certification
- person
with management or control of a workplace
- pipeline
- powered
mobile plant
- registered
training organisation (RTO)
- relevant
fee
- safe
work method statement
- shaft
- specified
VET course
- trench
- tunnel,
and
- WHS
management plan.
Part 6.1 – Preliminary
Part 6.1 sets out the meaning of terms used in this part.
Terms defined include construction work, structure, high risk construction
work, construction project, and principal contractor.
This Part refers to the term ‘excavation’, which is defined
in regulation 5.
Regulation 289 – Meaning of construction work
Regulation 289 sets out the meaning of construction
work. Subregulation 289(3) states what construction work does not include.
This includes activities such as the manufacture of plant, the construction or
assembly of a structure that once constructed or assembled is intended to be
transported to another place, testing of a minor nature carried out in relation
to a structure, or mining in the exploration for or extraction of minerals.
Regulation 290 – Meaning of structure
Regulation 290 states that the meaning of structure
in Chapter 6 has the same meaning as it has in the WHS Act. However,
subregulation 290(2) provides that Chapter 6 does not apply to plant unless the
plant is of a kind listed in subparagraph (a), work on the plant is carried out
in connection with construction work, or the plant is fixed and work on the
plant may involve 5 or more PCBUs at any point in time.
Regulation 291 – Meaning of high risk construction work
Regulation 291 sets out what kind of work is ‘high
risk construction work’ for the purposes of Chapter 6. Examples of high risk
construction work include construction work that involves a risk of a person
falling more than 2 metres, work carried out on a telecommunication tower, or
construction work that involves the demolition of an element of a structure
that is load-bearing or otherwise related to the physical integrity of the structure.
This regulation refers to the term ‘trench’, which is
defined in regulation 5.
Regulation 292 – Meaning of construction project
Regulation 292 provides that for the purposes of
Chapter 6, a ‘construction project’ is a project that involves construction
work where the cost of the construction work is $250,000 or more.
Regulation 293 – Meaning of principal contractor
Regulation 293 provides that for the purposes of
Chapter 6 the ‘principal contractor’ for a construction project is:
- the
PCBU that commissions the construction project, or
- a
person engaged by the PCBU to have management or control of the workplace
and to discharge the duties of a principal contractor.
Subregulation 293(3) also states that the principal
contractor for a construction project in relation to residential premises is
the PCBU directly or indirectly engaged by the owner of the premises to
undertake a construction project and who has management or control of the
workplace.
Subregulation 293(4) clarifies that there is only one
principal contractor for a construction project at any specific time.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Part 6.2 – Duties of designer of
structure and person who commissions construction work
Part 6.2 sets out the duties placed on designers of
structures, and the duties that apply to a PCBU who commissions construction
work in relation to a structure.
Regulation 294 – Person who commissions work must consult
with designer
Regulation 294 provides that a PCBU who commissions
construction work in relation to a structure, or part of the structure, must
consult with the designer of the structure so far as is reasonably practicable
about how to ensure that risks to health and safety arising from the design
during construction are eliminated so far as is reasonably practicable, or if
this is not possible, minimised so far as is reasonably practicable.
Subregulation 294(2) states that consultation must include
any information that the person who commissions the construction work has in
relation to the hazards and risks at the workplace where the construction work
is to be carried out.
Note: Regulation 744 provides that the duties imposed on a person
under regulation 294 do not apply until 1 January 2013.
Regulation 295 – Designer must give safety report to
person who commissions design
Regulation 295 requires the designer of a structure
or any part of a structure that is to be constructed to give a written report
to the PCBU who commissioned the design. The report must address the matters
specified in the regulation.
Subregulation 295(2) provides that if the PCBU who
commissions a construction project did not commission the design of the
project, the PCBU must take all reasonable steps to obtain a copy of the
written report in relation to that design.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Note: Regulation 744 provides that the duties imposed on a person
under regulation 295 do not apply until 1 January 2013.
Regulation 296 – Person who commissions project must give
information to principal contractor
Regulation 296 provides that if a PCBU who commissions
a construction project engages a principal contractor for the construction
project, the PCBU must give the principal contractor any relevant information
that the person has about hazards and risks at or in the vicinity of the
workplace where the construction work is to be carried out.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Note: Regulation 744 provides that the duties imposed on a person
under regulation 296 do not apply until 1 January 2013.
Part 6.3 – Duties of Person Conducting
Business or Undertaking
Part 6.3 sets out the duties of a PCBU carrying out
construction work. As a principal contractor is also a PCBU, this part also
applies to a principal contractor. It sets out general requirements relating
to managing risks and security of the workplace, as well as requirements
related to safe work method statements for high risk construction work and
requirements associated with excavation work.
Division 1 – General
Regulation 297 – Management of risks to health and safety
Regulation 297 requires a PCBU to manage risks
associated with carrying out construction work in accordance with Part 3.1 of
the regulations.
Regulation 298 – Security of workplace
Regulation 298 provides that a person with management
or control of a workplace at which construction work is carried out must ensure
so far as is reasonably practicable that the workplace is secured from
unauthorised access. Subregulation 298(2) sets out the matters the PCBU must
have regard to when complying with this duty.
Note: Regulation 745 provides that the duties imposed on a person
under regulation 298 do not apply until 1 January 2013.
Division 2 – High risk construction work – safe work method
statements
Regulation 299 – Safe work method statement required for
high risk construction work
Regulation 299 applies to a PCBU whose business or
undertaking involves high risk construction work. The PCBU must prepare, or
ensure that another person has prepared, a safe work method statement for the
high risk construction work before the work is carried out. Subregulation
299(2) and (3) require the safe work method statement to state certain
information prescribed in the regulation, and be written in a way that can be
accessed and understood by the people who will use it.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Regulation 300 – Compliance with safe work method
statement
Regulation 300 states that a PCBU whose business or
undertaking involves high risk construction work must have arrangements in
place to ensure that the high risk construction work is carried out in
accordance with the relevant safe work method statement.
Subregulation 300(2) also specifies that the PCBU must
ensure that the work is stopped immediately or as soon as it is safe to do so
and is resumed only in accordance with the statement if the high risk
construction work is not being carried out in accordance with the safe work
method statement.
Regulation 301 – Safe work method statement – copy to be
given to principal contractor
Regulation 301 applies to a PCBU whose business or
undertaking involves high risk construction work. The PCBU must, before the
work commences, ensure that a copy of the relevant safe work method statement
is given to the principal contractor.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Regulation 302 – Review of safe work method statement
Regulation 302 provides that a PCBU must ensure a
safe work method statement is reviewed and revised as necessary if relevant
control measures under regulation 38 are revised.
Regulation 303 – Safe work method statement must be kept
Regulation 303 states that a PCBU must keep a copy of
the safe work method statement until the high risk construction work to which
it relates is completed. However, subregulation 303(2) provides that the PCBU
must keep the statement for a period of 2 years if a notifiable incident occurs
in connection with the high risk construction work to which the statement
relates.
Subregulations 303(3) and (4) provide that a copy of the
statement must be readily accessible to any worker engaged by the PCBU to carry
out the high risk construction work and be kept available for inspection under
the WHS Act.
Division 3 – Excavation work
This Division refers to the term ‘excavation’, which is
defined in regulation 5.
Regulation 304 – Excavation work – underground essential
services information
Regulation 304 applies to a part of a workplace where
excavation work is being carried out and any adjacent areas. Subregulation
304(2)and (3) set out what a person with management or control of the workplace
must do in relation to obtaining and providing to other people current
underground essential services information before directing or allowing
excavation work to start.
Subregulation 304(4) applies to both a person with
management or control of the workplace, and a PCBU who has been given essential
services information, and sets out how the information is to be used.
Subregulations 304(5) and (6) provide that a person with
management or control of the workplace must ensure that the information is
available for inspection under the WHS Act, and specify how long it must be
kept available.
This regulation also defines ‘underground essential
services’ and ‘underground essential services information’ for the purposes of
the regulation.
This regulation refers to the term ‘essential services’,
which is defined in regulation 5.
Regulation 305 – Management of risk to health and safety
associated with excavation work
Subregulation 305(1) provides that a PCBU must manage risks
to health and safety associated with excavation work in accordance with Part
3.1.
Subregulation 305(2) sets out some examples of the kind of
risks that are associated with excavation work, such as the risk that a person
may fall into an excavation or become trapped by the collapse of an excavation.
Subregulation 305(3) specifies some of the matters that a
PCBU must consider when managing risks to health and safety associated with
excavation work. Matters include the nature of the excavation, the range of
possible methods of carrying out the work, and the means of entry into and exit
from the excavation, if applicable.
This regulation refers to the term ‘airborne contaminant’,
which is defined in regulation 5 to mean a contaminant in the form of a fume,
mist, gas, vapour or dust, and includes microorganisms.
Regulation 306 – Additional controls – trenches
Regulation 306 applies to a PCBU who proposes to
excavate a trench at least 1.5m deep. Subregulation 306(1) provides that the
PCBU must ensure so far as is reasonably practicable that the work area is
secured to prevent unauthorised access. Subregulation 306(2) sets out the
matters a PCBU must have regard to when complying with this obligation.
Subregulation 306(3) requires a PCBU to ensure all sides of
the trench are adequately supported by shoring, benching or battering to
minimise the risk to any person from the collapse of the trench. Subregulations
306(4) and (5) however provide an exception to this subregulation 306(3) does
not apply if a geotechnical engineer has provided written advice that all sides
of the trench are safe from collapse.
This regulation refers to the term ‘trench’, which is
defined in regulation 5.
Note: Regulation 746 provides that the duties imposed on a person
under regulation 306 do not apply until 1 January 2013.
Part 6.4 – Additional Duties of Principal
Contractor
Part 6.4 imposes additional duties on a principal contractor
for a construction project. These duties are in addition to those imposed by
the WHS Act and the Regulations on a person with management or control of a
workplace, or a PCBU generally.
Regulation 307 – Application of Part 6.4
Regulation 307 provides that Part 6.4 applies in
relation to a construction project and imposes duties on the principal
contractor for the project that are additional to the duties imposed under Part
6.3.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Regulation 308 – Specific control measure – signage
identifying principal contractor
Regulation 308 provides that the principal contractor
for a construction project must install signs that are clearly visible from
outside the workplace and display certain information about the principal
contractor.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Note: Regulation 747 provides that the duties imposed on a person
under regulation 308 do not apply until 1 January 2013.
Regulation 309 – WHS management plan – preparation
Regulation 309 requires the principal contractor for
a construction project to prepare a written WHS management plan for the
workplace before work on the project starts.
The WHS management plan must include the specific
information prescribed in subregulation 309(2), such as arrangements for
consultation and cooperation between PCBUs and any site specific health and
safety rules.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Note: Regulation 748 provides for the phasing in of the duties in
regulation 309.
Regulation 310 – WHS management plan – duty to inform
Regulation 310 provides that the principal contractor
for a construction project must ensure so far as reasonably practicable that
each person who will carry out construction work is made aware of the content
of the WHS management plan and the person’s right to inspect the WHS plan under
regulation 313.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Note: Regulation 748 provides for the phasing in of the duties in
regulation 310.
Regulation 311 – WHS management plan – review
Regulation 311 provides that a principal contractor
for a construction project must review and revise the WHS management plan when
necessary, and ensure that each person carrying out construction work for the
project is made aware of the changes.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Note: Regulation 748 provides for the phasing in of the duties in
regulation 311.
Regulation 312 – High risk construction work – safe work
method statements
Regulation 312 requires the principal contractor of a
construction project to take all reasonable steps to obtain a copy of the safe
work method statement relating to high risk construction work before the work
commences.
A note to this regulation alerts the reader to regulation
309 which requires that a WHS management plan contain arrangements for
cooperation between PCBUs at the construction project workplace, including in
relation to the preparation of SWMS.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Note: Regulation 748 provides for the phasing in of the duties in
regulation 312.
Regulation 313 – Copy of WHS management plan must be kept
subregulation 313(1) provides that a principal
contractor keep a copy of the WHS management plant until the project to which
it relates is completed. Subregulation 313(2) provides an exception to this,
and requires that if a notifiable incident occurs in connection with the
construction project to which the plan relates, the plan must be kept for 2
years. Subregulation 313(3) and subregulation 131(4) provide that a copy of
the plan must be readily accessible to any person who is to carry out
construction work in connection with the project, and must be available for
inspection under the WHS Act.
Subregulation 313(5) clarifies, by including a definition of
WHS management plan for the purpose of this regulation, that both the initial
plan and all revised plans must be kept
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Note: Regulation 748 provides for the phasing in of the duties in
regulations 313.
Regulation 314 – Further health and safety duties –
specific regulations
Regulation 314 provides that the principal contractor
for a construction project must put in place arrangements for ensuring compliance
at the workplace with the following provisions:
- general
working environment (Division 2 of Part 3.2)
- provision
of first aid (Division 3 of Part 3.2)
- preparation
and implementation of emergency plans (Division 4 of Part 3.2)
- provision
and use of personal protective equipment (Division 5 of Part 3.2)
- managing
risks from airborne contaminants (Division 7 of Part 3.2)
- managing
risks from hazardous atmospheres (Division 8 of Part 3.2)
- storage
of flammable or combustible substances (Division 9 of Part 3.2)
- falling
objects (Division 10 of Part 3.2)
- falls
(Part 4.4)
This regulation refers to the term
‘construction project’, which is defined in regulation 292.
Note: Regulation 748 provides for the phasing in of the duties in
regulations 314.
Regulation 315 – Further health and safety duties –
specific risks
Regulation 315 provides that the principal contractor
for a construction project must, in accordance with Part 3.1, manage risks to
health and safety in relation to waste at the workplace, storage of plant that
is not in use, traffic in the vicinity of the workplace that may be affected by
the work, and essential services. This regulation refers to the term
‘essential services’, which is defined in regulation 5.
This regulation refers to the term ‘construction project’,
which is defined in regulation 292.
Part 6.5 – General Construction Induction
Training
Part 6.5 sets out the requirements for general construction
induction training.
Division 1 – General construction induction training
requirements
Regulation 316 – Duty to provide general construction
induction training
Regulation 316 places an obligation on a PCBU to
ensure that general construction induction training is provided to a worker
engaged by the person who is to carry out construction work. The obligation
arises if the worker has not successfully completed general construction
induction training, or has successfully completed general construction
induction training more than 2 years previously and has not carried out
construction work in the preceding 2 years.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 316 do not apply until 1 January 2013.
Regulation 317 – Duty to ensure worker has been trained
Subregulation 317 prohibits a PCBU from allowing or directing
a worker to carry out construction work unless the worker is appropriately
trained. A worker must have successfully completed general construction
induction training and, if the training was completed more than 2 years
previously, have carried out construction work since that time.
Subregulation 317(2) requires a PCBU to ensure that the
worker holds a general construction induction training card or the appropriate
certification that was issued within the preceding 60 days.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 317 do not apply until 1 January 2013.
Regulation 318 – Recognition of general construction
induction training cards issued in other jurisdictions
Regulation 318 provides for the mutual recognition of
construction induction training cards in different jurisdictions.
Subregulation 318(1) provides that a reference in Division 1 to a general
construction induction card includes a reference to a card issued under a
corresponding WHS law that is being use in accordance with any relevant terms
and conditions. This means, for example, that if a worker holds a current
general construction induction card, a PCBU does not need to provide general
construction induction training, regardless of which jurisdiction the card was
issued in. Subregulation 318(2) ensures that this regulation, and mutual
recognition, does not apply to a card that is suspended or cancelled or has
expired in the corresponding jurisdiction.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 318 do not apply until 1 January 2013.
Division 2 – General construction induction training cards
Regulation 319 – Issue of card
Regulation 319 sets out how a person who has
successfully completed general construction induction training may apply to the
regulator for a general construction induction card. Subregulations 319(2) (3)
and (4) set out specific information that must be included in an application,
and the manner and form in which the application must be made.
Subregulations 319(6) to (8) set out how a decision is to be
made by the regulator. The regulator must issue a general construction
induction training card to the applicant if the regulator is satisfied with
certain things. If the regulator has not made a decision on the application
within 60 days then the applicant is taken to hold a general construction
induction training card until a decision is made.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 319 do not apply until 1 January 2013.
Regulation 320 – Content of card
Regulation 320 sets out the information that must be
included on a general construction induction training card.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 320 do not apply until 1 January 2013.
Regulation 321 – Replacement card
Regulation 321 sets out how a card holder may apply
to the regulator for a replacement general construction induction training card
if the original card is lost, stolen or destroyed.
Subregulation 321(4) provides that if the regulator is
satisfied that the card was lost, stolen or destroyed; the regulator may issue
a replacement card.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 321 do not apply until 1 January 2013.
Regulation 322 – Refusal to issue or replace card
Regulation 322 sets out the circumstances in which
the regulator may refuse to issue a general construction induction training
card or a replacement general construction induction training card.
A note provides guidance for the
reader that a refusal to issue a general construction induction training card
or a replacement general construction induction training card under this
regulation is a reviewable decision under regulation 676.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 322 do not apply until 1 January 2013.
Regulation 323 – Cancellation of card – grounds
Regulation 323 sets out the grounds on which the
regulator may cancel a general construction induction training card that was
issued by the regulator.
A note provides guidance for the
reader a decision to cancel a general construction induction training card under
this regulation is a reviewable decision under regulation 676.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 323 do not apply until 1 January 2013.
Regulation 324 – Cancellation of card – process
Regulation 324 sets out the process that the
regulator must follow before cancelling a general construction induction
training card.
Subregulation 324(2) sets out the information that must be
provided to the card holder in writing if the regulator has made a decision to
cancel a general construction induction training card.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 324 do not apply until 1 January 2013.
Regulation 325 – RTO may enter agreement to issue cards
Regulation 325 permits the regulator to enter into an
agreement with an RTO to exercise the powers of the regulator under regulations
318, 319, 320 and 321.
Subregulation 325(3) provides that under such an agreement,
the exercise of the powers and functions by an RTO have the same effect as if
they had been exercised by the regulator.
Subregulation 325(4) clarifies that nothing in an agreement
made under the regulation prevents the regulator from exercising its functions
and powers under Division 2.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 325 do not apply until 1 January 2013.
Division 3 – Duties of workers
Regulation 326 – Duties of workers
Regulation 326 provides that workers carrying out
construction work must:
- keep
general construction induction training cards or the appropriate
certification as set out in regulation 319(5) available for inspection
under the WHS Act; and
- return
the general construction induction training card to the regulator on
receiving a cancellation notice under regulation 324(2).
Note: Regulation 749 provides that the duties imposed on a person
under regulations 326 do not apply until 1 January 2013.
Regulation 327 – Alteration of general construction
induction training card
Regulation 327 provides that a person who holds a
general construction induction training card must not intentionally or
recklessly alter the card.
Note: Regulation 749 provides that the duties imposed on a person
under regulations 327 do not apply until 1 January 2013.
This Chapter imposes duties upon importers and manufacturers
of hazardous chemicals in relation to the classification, packing and
labelling, safety data sheets and disclosure of chemical identities. It
imposes complementary duties upon suppliers of hazardous chemicals about
packing, labelling and safety data sheets and prohibits supply of certain
carcinogenic substances. It imposes duties upon PCBUs at a workplace about the
use, handling and storage of hazardous chemicals, control of risk and
information, training and supervision for workers. It requires health
monitoring by a PCBU in respect of workers carrying out specified work for the
business or undertaking. It imposes duties upon owners, builders and operators
of certain pipelines.
Duty holders under this Part may also have health and safety
duties under sections 19, 20, 21, 22, 23, 24, 25 or 26 of the WHS Act, and
duties under Part 5 Division 1 and Division 2 of the WHS Act to consult with
other duty holders and workers about matters in this Part. This Part
prescribes requirements for authorisation of work for section 43 of the WHS Act.
Section 27 of the WHS Act applies to officers in respect of this Part.
Schedules 7 – 14 of the Regulations applies to this Part.
There are additional Regulations about:
·
managing risk in Part 3.1 – Managing risks to health and
safety,
·
provision of information in Part 3.2 – General Workplace
Management,
·
construction work which may involve hazardous chemicals in Chapter
6 – Construction work and
·
hazardous chemicals in Chapter 8 – Major hazard facilities.
Defined terms in Chapter 1 which are relevant to this
Chapter include:
·
ADG code
·
article
·
bulk
·
capacity
·
chemical identity
·
class label
·
consumer product
·
control measure
·
correct classification
·
emergency service organisation
·
emergency service worker
·
exposure standard
·
fire risk hazardous chemical
·
flammable gas
·
flammable liquid
·
genuine research
·
GHS
·
hazard category
·
hazard class
·
hazard pictogram
·
hazard statement
·
hazardous area
·
hazardous chemical
·
Hazchem Code
·
health monitoring
·
ignition source
·
importer
·
intermediate bulk container (IBC)
·
in transit
·
lead
·
manifest
·
manifest quantity
·
manufacturer
·
mixture
·
packaged hazardous chemicals
·
pipeline
·
pipe work
·
placard
·
placard quantity
·
personal protective equipment
·
precautionary statement
·
primary emergency services organisation
·
product identifier
·
prohibited carcinogen
·
quantity
·
registered medical practitioner
·
research chemical
·
restricted carcinogen
·
retailer
·
safety data sheet
·
Schedule 11 hazardous chemical
·
signal word
·
substance
·
supplier
·
technical name
·
UN number
Regulation 759 provides for the phase in of
the requirements of the GHS over a period of 5 years. When a regulation makes
provision for a matter by reference to compliance with the GHS, a person will
be taken to comply with the provision if the person complies with either the
GHS or a ‘transitional standard’ to the extent that the standard is relevant. The
transitional standards include the current NOHSC standards for the
classification and labelling of hazardous substances, the AGD Code, the Code of
Practice for Labelling Agricultural Chemical Products, and the Code of Practice
for Labelling Veterinary Chemical Products.
On the 1 January 2017, all duty holders must comply with the
GHS where a provision of these regulations requires them to do so.
Part 7.1 – Hazardous Chemicals
This Part refers to the term ‘mixture’, which is defined in
regulation 5 to mean a combination of, or a solution composed of, two or more
substances that do not react with each other.
This Part refers to the term ‘substance’, which is defined
in regulation 5.
Division 1 – Application of Part 7.1
Regulation 328 – Application of Part 7.1
Regulation 328 sets
out the application of Part 7.1 to the use, handling, storage and generation of
hazardous chemicals at a workplace. The application of Part 7.1 also extends
to pipelines which convey hazardous chemicals, but does not apply to a pipeline
which is regulated under a relevant law of a State specified in a corresponding
WHS law, or for which no relevant law of a State is specified in a
corresponding WHS law.
This regulation also sets out the other areas which are
exempt from the application of Part 7.1.
This regulation refers to the term ‘consumer product’, which
is defined in regulation 5.
Division 2 – Obligations relating to safety data sheets and
other matters
This
Division imposes duties upon importers and manufacturers of hazardous chemicals
about classification, packing and labelling, safety data sheets and disclosure
of chemical identities. Duties are imposed on suppliers of hazardous chemicals
regarding the safety data sheets and the supply of hazardous chemicals. This
division also imposes obligations on PCBUs in respect of labelling and safety
data sheets.
This
division refers to the term ‘article’, which is defined in regulation 5.
Subdivision 1 – Obligations of manufacturers and importers
Regulation 329 – Classification of hazardous chemicals
Regulation
329 requires a manufacturer or importer to determine whether a
substance, mixture or article manufactured or imported was a hazardous chemical
and, if so, to correctly classify the hazardous chemical as required under Part
1 of Schedule 9 before supplying it to a workplace.
Regulation 330 – Manufacturer or importer to prepare and
provide safety data sheets
Regulation
330 provides that a manufacturer or importer of a hazardous chemical
must prepare a safety data sheet before manufacturing or importing the
hazardous chemical for the first time. If that is not practicable, the
manufacturer or importer must prepare the safety data sheet as soon as
practicable after manufacturing or importing the hazardous chemical and before
supplying it to a workplace for the first time. The safety data sheet is
required to include the information outlined in clause 1 of Schedule 7 unless
the hazardous chemical is a research chemical, waste product or sample for
analysis to which regulation 331 applies.
The manufacturer or importer is
responsible for reviewing the safety data sheet every 5 years and amending it
as required under this regulation. They must also provide the safety data
sheet to any person who is likely to be affected by the hazardous chemical and
asks for the data sheet. However, these two requirements do not apply to a
manufacturer or importer who has not manufactured or imported the hazardous
chemical in the past 5 years.
Regulation 331 – Safety data sheets – research chemical,
waste product or sample for analysis
Regulation
331 requires the manufacturer or importer of a hazardous chemical which
is a research chemical, waste product or sample for analysis to prepare a
safety data sheet that complies with clause 2 of Schedule 7, if it is not
reasonably practicable to comply with clause 1 of Schedule 7.
This regulation refers to the
term ‘research chemical’, which is defined in regulation 5.
Regulation 332 – Emergency disclosure of chemical
identities to registered medical practitioner
Regulation
332 places a responsibility on the manufacturer or importer of a
hazardous chemical to provide the chemical identity of an ingredient of the
hazardous chemical as soon as practicable to a registered medical practitioner
who has requested the information if the medical practitioner reasonably
believes that knowing the chemical identity may help to treat a patient. Such
a medical practitioner must give undertakings to the manufacturer or importer
that the chemical identity of the ingredient will be used only to help treat
the patient and that the medical practitioner will give a written statement to
the manufacturer or importer as soon as practicable about the need to obtain
the information.
This regulation refers to the term ‘chemical identity’,
which is defined in regulation 5 to mean a name, in accordance with the
nomenclature systems of the International Union of Pure and Applied Chemistry
or the Chemical Abstracts Service, or a technical name, that gives a chemical a
unique identity.
Regulation 333 – Emergency disclosure of chemical
identities to emergency service worker
Regulation
333 requires the manufacturer or importer of a hazardous chemical to
provide the chemical identity of an ingredient of the hazardous chemical to an
emergency service worker as soon as practicable after the worker requests it.
Schedule 8 on the disclosure of
ingredients does not apply to this regulation.
This regulation refers to the
term ‘chemical identity’, which is defined in regulation 5 to mean a name, in
accordance with the nomenclature systems of the International Union of Pure and
Applied Chemistry or the Chemical Abstracts Service, or a technical name, that
gives a chemical a unique identity.
Regulation 334 – Packing hazardous chemicals
Regulation
334 provides that the manufacturer or importer of a hazardous chemical
must ensure that it is correctly packed in accordance with Part 2 of Schedule 9
as soon as practicable after manufacturing or importing the hazardous chemical.
Regulation 335 – Labelling hazardous chemicals
Regulation
335 requires the manufacturer or importer of a hazardous chemical to
ensure that the hazardous chemical is correctly labelled in accordance with the
GHS and in compliance with Part 3 of Schedule 9 as soon as practicable after
manufacturing or importing the hazardous chemical.
This regulation does not apply to hazardous chemicals which
are:
·
consumer products and labelled in accordance with the Standard
for the Uniform Scheduling of Medicines and Poisons 2011 and which also comply
with the requirements set out in subregulation 335(3);
·
in transit; or
·
a therapeutic goods under the Therapeutic Goods Act 1989
and intended for human consumption, or for the administration to or use by a
person, or use by a person for therapeutic purposes and are labelled according
to that Act.
This regulation refers to the terms ‘consumer product’ and
‘in transit’, which are defined in regulation 5.
Subdivision 2 – Obligations of suppliers
Regulation 336 – Restriction on age of person who can
supply hazardous chemicals
Regulation
336 prohibits a PCBU from directing or allowing a worker to supply a hazardous
chemical that is a flammable gas or flammable liquid to another person into any
container or vehicle provided by that other person (for example, in situations
such as refuelling a car or decanting fuel into a fuel container) unless the
worker is at least 16 years of age.
This regulation refers to the
term ‘flammable gas’, which has the same meaning as it has in the GHS.
Regulation 337 – Retailer or supplier packing hazardous
chemicals
Regulation
337 prevents a supplier of a hazardous chemical from supplying that
chemical to another workplace if the supplier knows or ought reasonably to know
that the hazardous chemical is not correctly packed. This regulation also
requires that a retailer who supplies a hazardous chemical in a container
provided by a person must ensure that the hazardous chemical is correctly
packed.
Regulation 338 – Supplier labelling hazardous chemicals
Regulation
338 prevents a supplier of a hazardous chemical from supplying that
chemical to another workplace if the supplier knows or ought reasonably to
know that the hazardous chemical is not correctly labelled in accordance with
regulation 335.
Regulation 339 – Supplier to provide safety data sheets
Regulation
339 requires that the supplier of a hazardous chemical to a workplace ensure
that the current safety data sheet for the hazardous chemical is provided at
the time the hazardous chemical is first supplied to the workplace. If the
safety data sheet is amended, the amended version must be provided at the time
when the hazardous chemical is first supplied to the workplace after the
amendment.
A hazardous chemical is taken to
be first supplied to a workplace if the supply is the first supply of the
hazardous chemical for 5 years. In addition, a supplier of a hazardous
chemical must provide a current safety data sheet to a person at the workplace
on request. A supplier of a hazardous chemical is exempt from this regulation
if the hazardous chemical is a consumer product or the supplier is a retailer.
This regulation refers to the
term ‘consumer product’, which is defined in regulation 5.
Regulation 340 – Supply of prohibited and restricted
carcinogens
Regulation
340 deals with the supply of prohibited and restricted carcinogens.
Subregulation 340(1) prevents
supplier of a prohibited carcinogenic substance (set out in table 10 of Schedule
10) from supplying the substance unless evidence is provided that the person
has been authorised by the regulator to use, handle or store the substance for
genuine research or analysis (see regulation 384) or the person has received an
exemption under Part 11.2 by the regulator for this purpose.
Subregulation 340(2) prevents
the supplier of a restricted carcinogenic substance (set out in column 2 of
table 10.2 of Schedule 10) from supplying the substance for a use under column
3 of table 10.2 of Schedule 10, unless evidence is provided that the person
has been authorised by the regulator to use, handle or store the substance
under regulation 384 or the regulator has granted an exemption to the person
under Part 11.2 for this purpose.
This regulation requires the
supplier under subregulations 340(1) and (2) to keep a record of the name of
the person supplied and the name and quantity of the substance supplied for a
period of 5 years after the substance was supplied.
This regulation refers to the
term ‘genuine research’, which is defined in regulation 5.
Subdivision 3 – Obligations of persons conducting
businesses or undertakings
Regulation 341 – Labelling hazardous chemicals – general
requirement
Regulation
341 requires the PCBU to ensure that a hazardous chemical used, stored
or handled at the workplace is correctly labelled as required under regulation
335.
Regulation 342 – Labelling hazardous chemicals –
containers
Regulation
342 provides that a PCBU at a workplace must ensure that a hazardous
chemical is correctly labelled if the hazardous chemical is manufactured at the
workplace or transferred or decanted from its original container at the
workplace. The hazardous chemical container must be correctly labelled and
provided only for the use, handling or storage of the hazardous chemical.
However this regulation does not apply if the hazardous chemical in the
container is used immediately after it is put into the container and the
container is thoroughly cleaned immediately after use to remove any trace of
the hazardous chemical.
Regulation 343 – Labelling hazardous chemicals – pipe work
Regulation
343 requires a PCBU at a workplace to ensure that a hazardous chemical
in pipe work is identified as far as is reasonably practicable by a label, sign
or by another method on or near the pipe work.
Note: Regulation 750 provides that the duties imposed on a person
under regulation 343 do not apply until 1 January 2013.
Regulation 344 – Person conducting business or undertaking
to obtain and give access to safety data sheets
Regulation
344 provides that a PCBU must obtain the current safety data sheet for a
hazardous chemical prepared by an Australian manufacturer, importer or supplier
of the hazardous chemical when or before the hazardous chemical is first
supplied to the workplace or as soon as practicable after the hazardous
chemical has been supplied but before it is used in the workplace. If the
safety data sheet has been amended, it must be obtained when or before the
hazardous chemical is first supplied to the workplace after the amendment. A
hazardous chemical is considered to be first supplied to a workplace where it
is the first supply for 5 years.
Subregulation 344(3) requires a
current safety data sheet for a hazardous chemical to be accessible to a worker
involved in using, handling or storing a hazardous chemical at a workplace and
an emergency service worker or anyone else who is likely to be exposed to the
hazardous chemical at the workplace.
This regulation does not apply
to a hazardous chemical in transit or where the PCBU is a retailer and the
hazardous chemical is a consumer product intended for supply to other premises
only or to be used in the workplace in quantities and methods that are
consistent with domestic use. In this case, information about the safe use,
handling and storage of the hazardous chemical including the current safety
data sheet must be accessible to a worker in the workplace and to an emergency
service worker or anyone likely to be exposed to the hazardous chemical in the
workplace.
This regulation refers to the
terms ‘consumer product’ and ‘in transit’, which are defined in regulation 5.
Regulation 345 – Changes to safety data sheets
Regulation
345 prevents a PCBU from changing a safety data sheet for a hazardous
chemical unless the person is an importer or manufacturer and amends the safety
data sheet as allowed under regulation 330. This regulation also allows for a
translation of the safety data sheet to be attached, if it is clearly stated
that the translation is not part of the original safety data sheet.
Division 3 – Register and manifest of hazardous chemicals
Subdivision 1 – Hazardous chemicals register
Regulation 346 – Hazardous chemicals register
Regulation
346 requires a PCBU to prepare, keep and update a register of hazardous
chemicals used, handled or stored at the workplace. The register must include
the current safety data sheet for each hazardous chemical listed and be made
available to a worker involved in using, handling or storing a hazardous
chemical and to anyone else likely to be affected by a hazardous chemical at
the workplace.
Subregulation 346(4) exempts
hazardous chemicals from this regulation if they are in transit or if the
hazardous chemical is a consumer product and the PCBU is not required to obtain
a safety data sheet under regulation 344.
This regulation refers to the terms ‘consumer product’ and
‘in transit’, which are defined in regulation 5.
Subdivision 2 – Manifest of Schedule 11 hazardous
chemicals
Regulation 347 – Manifest of hazardous chemicals
Regulation
347 states that a PCBU must prepare a manifest of hazardous chemicals if
the hazardous chemicals used, handled or stored at the workplace are identified
as Schedule 11 chemicals or group of chemicals that exceed the manifest
quantity threshold in Schedule 11. The manifest must be amended to reflect any
change in the type or quantity of Schedule 11 chemicals and must comply with
Schedule 12 and be available for inspection and kept in a place acceptable to
the emergency service organisation for ready access.
Regulation 348 – Regulator must be notified if manifest
quantities to be exceeded
Regulation
348 requires the PCBU to provide the regulator with a written notice if
the quantity of a Schedule 11 hazardous chemical or group of chemicals used,
handled or stored at the workplace exceeds the manifest quantity threshold in
Schedule 11.
Written notice must be given to
the regulator immediately after it is first known that a Schedule 11 chemical
or group of chemicals will be used, handled or stored at the workplace or at
least 14 days before Schedule 11 chemicals are first used. In addition, notice
must be given immediately after it is known that there is a significant change
in the risk of using, handling or storing Schedule 11 chemicals at a workplace
or at least 14 days before the change takes effect.
This regulation requires notice to be given as soon as
practicable if a Schedule 11 chemical or group of chemicals is no longer used,
handled or stored at the workplace and is unlikely to be used, handled or
stored at the workplace in the future. This regulation also outlines the
details required for written notice regulation 347 and requires the PCBU to
provide further information to the regulator on request.
Division 4 – Placards
Regulation 349 – Outer warning placards – requirement to
display
Regulation
349 states that a PCBU must ensure that an outer warning placard is
displayed prominently at a workplace if the total quantity of a Schedule 11
chemical or group of chemicals exceeds the placard quantity for Schedule 11
hazardous chemicals. The outer warning placard must comply with Schedule 13
placard requirements. However, this regulation does not apply to a workplace
that is a retail outlet and where Schedule 11 hazardous chemicals are used to
refuel vehicles and is either a flammable gas or flammable liquid.
This regulation refers to the
terms ‘flammable gas’ and ‘flammable liquid’, which have the same meaning as
they have in the GHS.
Regulation 350 – Placard – requirement to display
Regulation
350 requires a PCBU to ensure that a placard is displayed prominently at
a workplace if the total quantity of a Schedule 11 chemical or group of
chemicals would exceed the placard quantity for Schedule 11 hazardous
chemicals. The placard must comply with Schedule 13 placard requirements.
This regulation does not apply where Schedule 11 hazardous chemicals are in
bulk and in a container intended for transport, or where a Schedule 11
hazardous chemical is a flammable liquid stored in an underground tank at a
retail outlet and used to refuel a vehicle.
This regulation refers to the
terms ‘flammable gas’ and ‘flammable liquid’, which have the same meaning as
they have in the GHS.
Division 5 – Control of risk – obligations of persons
conducting businesses or undertakings
Subdivision 1 – General obligations relating to management
of risk
Regulation 351 – Management of risks to health and safety
Regulation
351 requires a PCBU to manage the risks to health and safety associated
with using, handling, generating or storing a hazardous chemical at a
workplace. In managing risks, a PCBU must take account of the hazardous
properties of the chemicals, any potential chemical or physical reaction
between the chemical and another substance or mixture, the nature of the work
to be carried out with the hazardous chemical and any structure, plant or
system of work that is used in the use, handling, generation or storage of the
hazardous chemical or that could interact with the hazardous chemical at the
workplace.
Regulation 352 – Review of control measures
Regulation
352 states that a PCBU must ensure that measures implemented to control
risks in relation to hazardous chemicals in the workplace are reviewed and, as
necessary, revised as required under regulation 38.
Control measures should be
reviewed and revised in response to the circumstances set out in this
regulation. Control measures should also be reviewed and revised if monitoring
carried out under regulation 50 determines that the airborne concentration of
hazardous chemicals at the workplace exceeds the relevant exposure standard.
Otherwise control measures should be reviewed and revised every 5 years.
Regulation 353 – Safety signs
Regulation
353 requires a PCBU to display a safety sign at a workplace to warn of a
particular hazard associated with hazardous chemicals at the workplace or to
indicate the responsibilities of a particular person in relation to the
hazardous chemicals. The safety sign must be located next to the hazard and
clearly visible to a person approaching the hazard. A safety sign does not
include a placard.
Regulation 354 – Identification of risk of physical or
chemical reaction
Regulation
354 states that a PCBU must identify any risk of a physical or chemical
reaction in relation to hazardous chemicals used, handled, generated or stored
at the workplace. This does not apply where the hazardous chemical undergoes a
physical or chemical reaction due to a manufacturing process or as part of a
deliberate process or activity at the workplace.
Subregulation 354(3) requires a PCBU to take reasonable
steps to ensure that a hazardous chemical is used, stored or handled to prevent
contamination of food, food packaging or personal use products such as
cosmetics or face washer. However, this regulation does not apply if the use
of hazardous chemicals is for agricultural purposes in accordance with a
relevant law of a state or territory which is specified in a corresponding WHS
law, or for which no relevant law of a State is specified in a corresponding
WHS law.
Regulation 355 – Specific control – fire and explosion
Regulation
355 provides that where there is a possibility of fire or explosion in a
hazardous area caused by an ignition source being introduced into the area, a
PCBU at a workplace must exclude the ignition source from the area either
outside or within the space.
This regulation refers to the
term ‘hazardous area’, which is defined in regulation 5.
Regulation 356 – Keeping hazardous chemicals stable
Regulation
356 requires a PCBU at a workplace to ensure as far as is reasonably
practicable that a hazardous chemical does not become unstable, decompose or
change in a way which would create a hazard that is different from the hazard
originally created by the hazardous chemical, or significantly increase the
risk associated with any hazard in relation to the hazardous chemical as
outlined in this regulation.
Subregulation 356(2) provides that where the stability of a
hazardous chemical at a workplace is dependent on the maintenance of the
proportions of ingredients of the hazardous chemical, the PCBU must maintain
the proportions as stated in the safety data sheet or by the manufacturer of
the hazardous chemical. Where a hazardous chemical is known to be unstable
above a particular temperature, the PCBU must ensure that the hazardous
chemical is used, handled or stored at the workplace below that temperature. However,
this regulation does not apply if the hazardous chemical is allowed to change
or become unstable without risk to health and safety as part of a deliberate
process or activity at the workplace or undergoes a chemical reaction in a
manufacturing process.
Subdivision 2 – Spills and damage
Regulation 357 – Containing and managing spills
Regulation
357 provides that where there is a risk of a spill or leak of a
hazardous chemical in a solid or liquid form, the PCBU must ensure, as far as
is reasonably practicable, that a spill containment system is provided to
contain the spills or leaks within the workplace including any resulting
effluent as outlined in this regulation. In addition, the PCBU must ensure
that the spill containment system provides for the cleanup and disposal of a
hazardous chemical that spills or leaks and any resulting effluent. The spill
containment system provided by the PCBU must not create a hazard by bringing
together incompatible hazardous chemicals to cause a fire, explosion, harmful
reaction or flammable, toxic or corrosive vapour.
Regulation 358 – Protecting hazardous chemicals from
damage
Regulation
358 states that a PCBU must ensure that containers of hazardous
chemicals and any associated pipe work or attachments are protected against
damage caused by an impact or excessive load, as far as is reasonably
practicable.
Subdivision 3 – Emergency plans and safety equipment
Regulation 359 – Fire protection and firefighting
equipment
Regulation
359 requires a PCBU to ensure that the workplace is provided with a
sufficient quantity of fire protection and firefighting equipment designed and
built for the types of hazardous chemicals at the workplace. The fire
protection and firefighting equipment must take account of the matters set out
in this regulation. Furthermore, the equipment must be properly installed,
tested and maintained with a dated record kept of the latest testing results
and maintenance.
Subregulation 359(2) states that, if a part of the
fire protection and firefighting equipment provided at the workplace becomes
unserviceable or inoperative, the PCBU must assess the implications, implement
alterative measures to manage the risks and ensure that the equipment is
returned to full operation as soon as practicable.
Regulation 360 – Emergency equipment
Regulation
360 requires a PCBU at a workplace that uses, handles, generates or
stores hazardous chemicals to ensure that equipment is always available at the
workplace for use in an emergency.
Regulation 361 – Emergency plans
Regulation
361 states that, where the quantity of a Schedule 11 hazardous chemical
at a workplace exceeds the manifest quantity, the PCBU must give a copy of an
emergency plan prepared under Division 4 of Part 3.2 to the primary emergency
services organisation and where there is a written recommendation from that
organisation about the content or effectiveness of the plan, revise the plan
accordingly.
Regulation 362 – Safety equipment
Regulation
362 means that, where safety equipment is required to control an
identified risk regarding using, handling, generating or storing hazardous
chemicals at a workplace, the PCBU must ensure that the safety equipment is
provided, maintained and readily accessible to persons at the workplace.
Subdivision 4 – Storage and handling systems
Regulation 363 – Control of risks from storage or handling
systems
Regulation
363 requires a PCBU to ensure that a system used at the workplace for
the handling, use or storage of hazardous chemicals is used only for the
purpose for which it was designed, manufactured, modified, supplied or
installed. Furthermore, the system must be operated, tested, maintained,
installed, repaired and decommissioned having regard to the health and safety
of workers and other people at the workplace. In addition, sufficient
information, training and instruction must be given to the person who operates,
tests, maintains or decommissions a system used for hazardous chemicals at a
workplace in order to ensure that the activity is carried out safely.
Regulation 364 – Containers for hazardous chemicals used,
handled or stored in bulk
Regulation
364 requires a PCBU to ensure that a container, in which a hazardous
chemical is used, handled or stored in bulk, and any associated pipe work or
attachments, have stable foundations and supports to which they are secured in
order to prevent any damage to the container, pipe work and attachments and
prevent a notifiable incident.
This regulation refers to the
term ‘bulk’, which is defined in regulation 5.
Regulation 365 – Stopping use and disposing of handling
systems
Regulation
365 provides that a PCBU intending to stop using or to dispose of a
system used for hazardous chemicals at a workplace must ensure, so far as is
reasonably practicable, that the system is free of the hazardous chemicals when
it is no longer being used or when it is disposed of. If it is not reasonably
practicable to remove the hazardous chemicals from the system, the PCBU must
correctly label the system.
Regulation 366 – Stopping use of underground storage and
handling systems
Regulation
366 applies where a PCBU is intending to stop using or to dispose of a
system used for hazardous chemicals underground must. The PCBU must ensure, so
far as is reasonably practicable, that the system is removed. If it is not
reasonably practicable to remove the underground system, the PCBU must ensure
that the system is without risk to health and safety.
Regulation 367 – Notification of abandoned tank
Regulation
367 states that a tank used to store flammable gases and flammable
liquids at a workplace, is deemed to be abandoned if the tank has not been used
for this purpose for 2 years or it is not intended that the tank be used in
this way again. The PCBU must notify the regulator of the abandonment of the
tank as soon as practicable. A tank includes fittings, closures and other
equipment attached to the container.
This regulation refers to the
term ‘bulk’, which is defined in regulation 5.
This regulation refers to the
terms ‘flammable gas’ and ‘flammable liquid’, which have the same meaning as
they have in the GHS.
Division 6 – Health monitoring
Regulation 368 – Duty to provide health monitoring
Regulation
368 requires a PCBU to ensure that health monitoring is provided to a
worker using, handling, generating or storing hazardous chemicals at a
workplace in the circumstances set out in this regulation.
Regulation 369 – Duty to inform of health monitoring
Regulation
369 states that a PCBU required to provide health monitoring to a worker
must give information about the health monitoring requirements to both a person
who is likely to be engaged to carry out work using, handling generating or
storing a hazardous chemical and a worker for the business or undertaking,
before the worker commences work with the hazardous chemical.
Regulation 370 – Duty to ensure that appropriate health
monitoring is provided
Regulation
370 states that a PCBU, who must provide health monitoring to a worker
under regulation 368, should adopt the type of health monitoring referred to in
column 3 of table 14.1 of Schedule 14 unless an equal or better type of health
monitoring procedure is available and recommended by a medical practitioner
with experience in health monitoring.
Regulation 371 – Duty to ensure health monitoring is
supervised by registered medical practitioner with experience
Regulation
371 requires a PCBU to ensure that the health monitoring of a worker
referred to in regulation 368 is carried out under the supervision of a
registered medical practitioner with experience in health monitoring. The PCBU
is required to consult the worker in relation to the selection of the medical
practitioner.
Regulation 372 – Duty to pay costs of health monitoring
Regulation
372 provides for the PCBU to pay all expenses related to health
monitoring referred to in regulation 368. This regulation also provides for an
agreement to be made about sharing costs where more than one PCBU has a duty to
provide health monitoring for a worker.
Regulation 373 – Information that must be provided to
registered medical practitioner
Regulation
373 states that a PCBU commissioning health monitoring for a worker must
provide the information outlined in this regulation to the registered medical
practitioner supervising the health monitoring.
Regulation 374 – Duty to obtain health monitoring report
Regulation
374 states that a PCBU who commissions health monitoring referred to in
regulation 368 is responsible for obtaining a health monitoring report from the
registered medical practitioner who supervised the monitoring as soon as
practicable after the monitoring has been carried out. This regulation also
specifies the information to be provided in the health monitoring report.
Regulation 375 – Duty to give health monitoring report to
worker
Regulation
375 requires the PCBU who commissions health monitoring to give a copy
of the health monitoring report to the worker as soon as practicable after the
PCBU obtains the report.
Regulation 376 – Duty to give health monitoring report to
regulator
Regulation
376 sets out the circumstances in which a PCBU who commissioned the
health monitoring for a worker, must give a copy of the health monitoring
report to the regulator.
Regulation 377 – Duty to give health monitoring report to
relevant persons conducting business or undertakings
Regulation
377 provides that a PCBU who commissions health monitoring for a worker
under regulation 368 must give a copy of the health monitoring report to all
other PCBUs who have a duty to provide health monitoring for the worker as soon
as practicable after obtaining the report.
Regulation 378 – Health monitoring records
Regulation 378
requires a PCBU to ensure that health monitoring reports in relation to a
worker are kept as a confidential record for at least 30 years after the record
is made and must not be disclosed to someone else without the worker’s written
consent.
An exception to this is set out in subregulation (3), which
provides that the requirement to obtain written consent does not apply if the
health monitoring record is disclosed to a person who must keep the record
confidential under a duty of professional confidentiality, such as a medical
practitioner.
The exception in subregulation (3) is intended to enable a
PCBU to obtain further medical advice from experts when required, although such
disclosure would be subject to professional confidentiality.
Health service providers, such as doctors, dentists, nurses,
physiotherapists and pharmacists, owe an ethical and legal duty of
confidentiality to health consumers to prevent the use of personal health
information for a purpose that is inconsistent with the purpose for which the
information was provided. A legal duty of confidentiality may arise in equity,
at common law or under contract. Health service providers are also often
subject to confidentiality provisions in professional codes of conduct, and may
be subject to secrecy provisions in Commonwealth, state and territory privacy
laws.
Health surveillance is an important control measure for
managing the risk to health from hazardous substances for which there are known
and acceptable health surveillance procedures.
Although the exception in subregulation (3) does not require
the express consent of the worker, the information provided to the worker under
regulation 369 will mean that consent will generally be able to be taken to be
implied.
Regulation 369 requires a PCBU to give information about the
health monitoring requirements in these regulations to a person before they
commence work using handling, generating or storing a hazardous chemical.
Disclosure of information under subregulation (3) would be
consistent with the purpose for which the information was collected, that is,
to evaluate the effects of exposure to a hazardous chemical.
Division 7 – Induction, information, training and supervision
Regulation 379 – Duty to provide supervision
Regulation
379 requires a PCBU to provide any necessary supervision to a worker to
protect them from risks to health and safety arising from circumstances set out
in this regulation. The PCBU must ensure that the supervision of the worker is
suitable and adequate in terms of the nature of the risks associated with the
hazardous chemical and that the information, training and instruction provided
is compliant with regulation 39 and paragraph 19(3)(f) of the WHS Act.
Division 8 – Prohibition, authorisation and restricted use
Note: Regulation 751 provides that the requirement to be
authorised under Division 8 of Part 7.1 by the regulator to use, handle or
store a prohibited or restricted carcinogen do not apply until 1 January 2013.
Regulation 380 – Using, handling and storing prohibited
carcinogens
Regulation
380 prevents a PCBU from using, handling or storing or directing or
allowing a worker to use, handle or store a prohibited carcinogen, referred to
in Schedule 10, in circumstances set out in this regulation. The prohibited
carcinogen is allowed if it is used handled or stored for genuine research and
analysis and the regulator has authorised the use, handling or storing of the
prohibited carcinogen under regulation 384. The note refers the reader to
section 43 of the WHS Act.
This regulation refers to the
term ‘genuine research’, which is defined in regulation 5.
Regulation 381 – Using, handling and storing restricted
carcinogens
Regulation
381 prevents a PCBU from using, handling or storing or directing or
allowing a worker to use, handle or store a prohibited carcinogen referred to
in Schedule 10 unless the prohibited carcinogen is used handled or stored for
genuine research and analysis and the regulator has authorised the use,
handling or storing of the prohibited carcinogen under regulation 384.
Regulation 382 – Using, handling and storing restricted
hazardous chemicals
Regulation
382 prevents a PCBU from using, handling or storing or directing or
allowing a worker to use, handle or store a restricted hazardous chemical
referred to in Schedule 10 for the purpose outlined in that Schedule.
Subregulation 382(2) prevents a
PCBU from using, handling or storing or directing or allowing a worker to use,
handle or store polychlorinated biphenyls unless the use, handling or storing
is in relation to specific circumstances set out in the subregulation.
This regulation refers to the
term ‘genuine research’, which is defined in regulation 5.
Regulation 383 – Application for authorisation to use,
handle or store prohibited and restricted carcinogens
Regulation
383 outlines the requirements for the PCBU when applying in writing to
the regulator for authorisation to use, handle or store a prohibited or
restricted carcinogen referred to in Schedule 10 at the workplace.
Regulation 384 – Authorisation to use, handle or store
prohibited and restricted carcinogens
Regulation
384 states that a regulator may grant an authorisation to a PCBU who
applies under regulation 383 to use, handle or store a prohibited or restricted
carcinogen at the workplace only if the carcinogen will be used, handled or
stored for genuine research or analysis. In addition the regulator may
authorise a PCBU to use, handle or store a restricted carcinogen at the
workplace if the carcinogen will be used for the purpose referred to in
Schedule 10.
Subregulations 384(2) and (5) allow the regulator to refuse
to authorise the use, handling or storage of the carcinogen for a use not
referred to in the regulation or to impose any conditions necessary to achieve
the objectives of the WHS Act or these Regulations.
A note provides that a refusal
to grant authorisation to use, handle or store a prohibited or restricted
carcinogen under this regulation is a reviewable decision under regulation 676.
This regulation refers to the term ‘genuine research’, which
is defined in regulation 5.
Regulation 385 – Changes to information in application to
be reported
Regulation
385 states that a PCBU applying under regulation 383 for authorisation
to use, handle or store a prohibited or restricted carcinogen must give the
regulator written notice of any change in information given in the application
as soon as practicable after the PCBU becomes aware of the change.
Regulation 386 – Regulator may cancel authorisation
Regulation 386 allows
the regulator to cancel an authorisation to use, handle or store a prohibited
or restricted carcinogen if the PCBU has not complied with a condition of the
authorisation or the risk to the health and safety of a worker from the
prohibited or restricted carcinogen has changed since the authorisation was
granted.
A note provides that the
cancellation of authorisation to use, handle or store a prohibited or
restricted carcinogen under this regulation is a reviewable decision under
regulation 676.
Regulation 387 – Statement of exposure to be given to
workers
Regulation 387
requires a PCBU, authorised under regulation 384 to use, handle or store a
prohibited or restricted carcinogen at the workplace, to provide the worker
using, handling or storing the carcinogen a written statement at the end of
their engagement containing the information required under this regulation.
Regulation 388 – Records to be kept
Regulation 388 states
that a PCBU, authorised under regulation 384, must record details of each
worker likely to be exposed to the carcinogen during the authorisation period
and must keep a copy of each authorisation including conditions imposed on the
authorisation. The PCBU must keep the records for 30 years after the
authorisation ends.
Division 9 – Pipelines
Regulation 389 – Management of risk by pipeline owner
Regulation 389
provides that the owner of a pipeline that is used to transfer hazardous
chemicals must manage risks associated with the transfer of the hazardous
chemicals through that pipeline and ensure that activities, structures,
equipment or substances that are not part of the pipeline do not affect the
hazardous chemicals or the pipeline in a way that would increase risk.
Regulation 390 – Pipeline builder’s duties
Regulation 390
provides that persons who intend to build pipelines must ensure that, at
various stages in the construction of the pipeline, the regulator is given the
necessary information about the proposed pipeline, such as its owner, the
pipeline specifications and the intended procedures for the operation,
maintenance, renewal and relaying of the pipeline.
Regulation 391 – Management of risks to health and safety
by pipeline operator
Regulation 391 requires
a PCBU who operates a pipeline used to transfer hazardous chemicals to manage
risks to health and safety arising from the activity as outlined under general
risk management requirements in part 3.1.
Subregulation 391(3) requires the PCBU operating the
pipeline to ensure that the hazardous chemical is identified by a label, sign or
another method on or near the pipeline.
Subregulation 391(3) states that the operator of the
pipeline that transfers a Schedule 11 hazardous chemical into a public place
must notify the regulator of the supplier and receiver of the hazardous
chemical and its correct classification.
A note directs the reader to section 19 of the WHS Act,
which sets out the primary duty of care owed by a PCBU.
Part 7.2 – Inorganic Lead
This Part applies where lead processes, within the meaning
of regulation 392, are carried out at a workplace.
This Part imposes duties upon a PCBU at a workplace to
provide information to workers about a lead process, to control risk of lead
contamination using specified measures, to identify and notify the regulator of
lead risk work, within the meaning of regulation 394, and provide health
monitoring of workers in respect of lead risk work.
Duty holders under this Part may also have health and safety
duties under sections 19, 20 or 21 of the WHS Act, or duties under Part 5
Division 2 of the WHS Act to consult with workers about matters in this Part.
Section 27 of the WHS Act applies to officers in respect of this Part.
Part 7.1 of the Regulations applies in addition to this
Part. Schedule 14 to the Regulations applies to this Part. There are
additional regulations about management of risk in Chapter 3 – General risk and
workplace management.
Defined terms in Chapter 1 which are relevant to this Part include:
·
abrasive blasting
·
biological monitoring
·
blood lead level
·
blood lead level monitoring
·
control measure
·
emergency service organisation
·
emergency service worker
·
female of reproductive capacity
·
health monitoring
·
lead
·
lead process area, and
·
personal protective equipment.
Division 1 – Lead process
This Division refers to the term ‘lead process’, which is
defined in regulation 392.
Regulation 392 – Meaning of lead process
Regulation
392 outlines the activities in a workplace which are defined as a lead process.
This regulation refers to the
term ‘abrasive blasting’, which is defined in regulation 5 to mean propelling a
stream of abrasive material at high speed against a surface using compressed
air, liquid, stream, centrifugal wheels or paddles to clean, abrade, etch or
otherwise change the original appearance or condition of the surface.
Regulation 393 – Regulator may decide lead process
Regulation
393 allows the regulator to decide that a process at a workplace is a
lead process if the regulator decides, on reasonable grounds, that the process
creates a risk to the health of a worker in relation to blood lead levels of
workers or airborne lead levels at the workplace.
A note provides that deciding a
process to be a lead process under this regulation is a reviewable decision
under regulation 676.
Regulation 394 – Meaning of lead risk work
Regulation
394 states that lead risk work means work carried out in a lead process
which is likely to cause the blood lead level of a worker to exceed the
thresholds outlined in this regulation.
Regulation 395 – Duty to give information about health
risks of lead process
Regulation
395 requires a PCBU carrying out a lead process to give information
about the lead process to a person before being engaged as a worker to carry
out the lead process or to a worker in the circumstances set out in this
regulation. The information must contain the health risks and toxic effects of
exposure to lead and the need for and details of health monitoring under
Division 4 of Part 7.2.
Division 2 – Control of risk
This Division refers to the term ‘lead process’, which is
defined in regulation 392.
Regulation 396 – Containment of lead contamination
Regulation
396 requires the PCBU to ensure, as far as is reasonably practicable,
that contamination by lead is confined to a lead process area at the workplace.
Regulation 397 – Cleaning methods
Regulation
397 states that the PCBU must ensure that a lead process area at the
workplace is kept clean and that the cleaning methods do not create a risk to
the health of persons in the immediate vicinity of the area and do not have the
potential to spread the contamination of lead.
Regulation 398 – Prohibition on eating, drinking and
smoking
Regulation
398 provides that a PCBU must take reasonable steps to ensure that a
person does not eat, drink, chew gum, smoke or carry materials used for smoking
in a lead process area at the workplace. The PCBU must provide workers with an
eating and drinking area that, so far as is reasonably practicable, cannot be
contaminated with lead from a lead process.
Regulation 399 – Provision of changing and washing
facilities
Regulation
399 requires a PCBU to provide and maintain changing rooms, washing,
showering and toilet facilities in good working order at the workplace to minimise
secondary lead exposure from contaminated clothing, to minimise the ingestion
of lead and to avoid the spread of lead contamination. The PCBU must ensure,
as far as is reasonably practicable, that workers remove clothing and equipment
contaminated with lead, and wash their hands and faces, before entering an
eating or drinking area at the workplace.
Regulation 400 – Laundering, disposal and removal of
personal protective equipment
Regulation
400 provides that a PCBU must ensure that personal protective equipment
likely to be contaminated with lead dust must be sealed in a container and
disposed of at the completion of the lead process work at a site equipped to
accept lead-contaminated equipment. If it is not reasonably practicable to
dispose of the personal protective equipment that is clothing, the clothing
should be laundered at a laundry equipped to launder lead-contaminated clothing
or be kept in a sealed container until it is re-used for lead process work. If
it is not reasonably practicable to dispose of the personal protective
equipment that is not clothing, such as work boots, the personal protective
equipment should be decontaminated before it is removed from the lead process
area or be kept in a sealed container until it is re-used for lead process
work.
Subregulation 400(2) states that
the PCBU must ensure that the sealed container referred to in subregulation
400(1) is decontaminated before being removed from the lead process area.
Under regulation 335, the container must also be labelled to indicate the
presence of lead. The PCBU must take all reasonable steps to ensure that
clothing contaminated with lead-dust is not removed from the workplace unless
it is to be laundered in accordance with this regulation or disposed of.
This regulation refers to the
term ‘personal protective equipment’, which is defined in regulation 5 to mean
anything used or worn by a person to minimise risk to the person’s health and
safety, including air supplied respiratory equipment.
Regulation 401 – Review of control measures
Regulation
401 requires a PCBU to review and, if necessary, revise any measures
implemented to control the health risks from exposure to lead at the workplace
in the circumstances set out in this regulation. A control measure should be revised
if it does not control the risks it was implemented to control and in response
to the situations described in this regulation. Otherwise a review of risk
control measures should occur every 5 years.
Subregulation 401(3) allows a
health and safety representative to request a review of a control measure if
they reasonably believe that any of the circumstances outlined in subregulation
401(1) affects or may affect the health and safety of a member of the work
group and the PCBU has not adequately reviewed the control measure in response
to the circumstance.
Division 3 – Lead risk work
This Division refers to the term ‘lead process’, which is
defined in regulation 392.
Regulation 402 – Identifying lead risk work
Regulation
402 states that a PCBU must assess each lead process carried out at the
workplace to determine whether lead risk work is carried out in the process.
The assessment of lead process must include the matters listed in this
regulation. The assessment of a lead process must not take into account the
effect of using personal protective equipment on the health and safety of
workers. If the PCBU is unable to determine whether lead risk work is carried
out, the process is taken to include lead risk work unless determined
otherwise.
This regulation refers to the
term ‘biological monitoring’, which is defined in regulation 5.
This regulation refers to the
term ‘personal protective equipment’, which is defined in regulation 5 to mean
anything used or worn by a person to minimise risk to the person’s health and
safety, including air supplied respiratory equipment.
Regulation 403 – Notification of lead risk work
Regulation
403 requires a PCBU who has determined that lead risk work is carried
out at the workplace must give the regulator written notice within 7 days of
the determination. The notice must state the type of lead process that
includes lead risk work. The PCBU must keep a copy of the notice given to the
regulator and ensure a copy is readily accessible to a worker likely to be exposed
to lead and to the worker’s health and safety representative.
If an emergency service
organisation, when rescuing or providing first aid to a person determines that
the work is lead risk work, subregulation 403(4) requires the emergency service
organisation to give notice to the regulator.
Note: Regulation 752 provides that the duties imposed on a person
under regulation 403 do not apply until 1 January 2013.
Regulation 404 – Changes to information in notification of
lead risk work
Regulation
404 states that a PCBU must give the regulator written notice of any
change in the information provided in the original notice under regulation 403
before the change or as soon as practicable after the PCBU is aware of the
change. The PCBU must keep a copy of the notice given to the regulator while
the lead risk work is carried out and ensure a copy is readily accessible to a
worker likely to be exposed to lead and to the worker’s health and safety
representative
Division 4 – Health monitoring
Regulation 405 – Duty to provide health monitoring before
first commencing lead risk work
Regulation
405 requires a PCBU to ensure that health monitoring is provided to a
worker before the worker first commences lead risk work with the PCBU and one
month after the worker commences work. If work is identified as lead risk work
after a worker commences work, the PCBU must ensure that health monitoring of
the worker is provided as soon as practicable after the lead risk work is
identified and one month after the first monitoring of the worker.
Regulation 406 – Duty to ensure that appropriate health
monitoring is provided
Regulation
406 means that a PCBU must ensure that health monitoring of a worker
includes health monitoring of the type referred to in table 14.2 of Schedule 14
unless an equal or better type of health monitoring is available and its use is
recommended by a registered medical practitioner with experience in health
monitoring.
Regulation 407 – Frequency of biological monitoring
Regulation
407 requires a PCBU to arrange biological monitoring of each worker
carrying out lead risk work over specific periods. The frequency of biological
monitoring and the measurement of blood lead threshold levels for different
categories of workers are outlined in this regulation. Subregulation 407(2)
states that the PCBU must increase the frequency of biological monitoring of a
worker who carries out lead risk work if that activity is likely to
significantly change the nature or increase the duration or frequency of the
worker’s lead exposure.
Subregulation 407(3)
allows the regulator to determine a different frequency for biological
monitoring of workers carrying out lead risk work under the circumstances set
out in this regulation. The regulator must give the PCBU written notice of this
determination under subregulation 407(3) within 14 days after making the
determination. The PCBU must arrange biological monitoring to be carried out
at the frequency stated in the regulator’s determination.
A note provides that determining
a different frequency for biological monitoring of workers at a workplace, or a
class of workers, carrying out lead risk work under this regulation is a
reviewable decision under regulation 676.
This regulation refers to the
term ‘biological monitoring’, which is defined in regulation 5.
Regulation 408 – Duty to ensure health monitoring is
supervised by registered medical practitioner with relevant experience
Regulation
408 requires the PCBU to ensure that the health monitoring of a worker
referred to in this Division is carried out under the supervision of a
registered medical practitioner with experience in health monitoring. The PCBU
must consult the worker in relation to the selection of the registered medical
practitioner.
Regulation 409 – Duty to pay costs of health monitoring
Regulation
409 provides for a PCBU to pay all expenses related to health monitoring
referred to in this Division. This regulation also provides for an agreement
to be made about sharing costs where more than one PCBU has a duty to provide
health monitoring for a worker.
Regulation 410 – Information that must be provided to
registered medical practitioner
Regulation
410 states that a PCBU commissioning health monitoring for a worker must
provide the information outlined in this regulation to the registered medical
practitioner supervising the health monitoring.
Regulation 411 – Duty to obtain health monitoring report
Regulation
411 states that a PCBU who commissioned health monitoring referred to in
this Division is responsible for obtaining a health monitoring report from the
registered medical practitioner who supervised the monitoring as soon as
practicable after the monitoring has been carried out. The information to be
included in the health monitoring report is outlined in this regulation.
This regulation refers to the
term ‘biological monitoring’, which is defined in regulation 5.
Regulation 412 – Duty to give health monitoring report to worker
Regulation
412 provides that the PCBU who commissioned the health monitoring report
must give a copy of the report to the worker as soon as practicable after the
PCBU obtains the report.
Regulation 413 – Duty to give health monitoring report to
regulator
Regulation
413 sets out the circumstances in which a PCBU who commissioned health
monitoring for a worker must give a copy of the health monitoring report to the
regulator.
Regulation 414 – Duty to give health monitoring report to
relevant persons conducting business or undertakings
Regulation
414 states that the PCBU commissioning the health monitoring
report under this Division must give a copy to all other PCBUs who have a duty
to provide health monitoring.
Regulation 415 – Removal of worker from lead risk work
Regulation
415 requires a PCBU to immediately remove a worker from carrying out
lead risk work if biological monitoring of the worker shows that the worker’s
blood lead level is at or more than:
·
for females not of reproductive capacity and males – 50μg/dL
(2.42μmol/L); or
·
for females of reproductive capacity – 20μg/dL (0.97μmol/L); or
·
for females who are pregnant or breastfeeding – 15μg/dL
(0.72μmol/L).
In addition, the PCBU must immediately remove the worker if
the registered medical practitioner recommends that the worker must be removed
from lead risk work or there is an indication that a risk control measure has
failed and the worker’s blood lead level is likely to reach the relevant level
for the worker identified in the regulation. The PCBU must notify the
regulator as soon as practicable if a worker is removed from carrying out lead
risk work under subregulation 415(1).
This regulation refers to the term ‘biological monitoring’,
which is defined in regulation 5.
Regulation 416 – Duty to ensure medical examination if
worker removed from lead risk work
Regulation
416 requires the PCBU to arrange for a worker who is removed from lead
risk work under regulation 415 to be medically examined by a registered medical
practitioner with experience in health monitoring. The PCBU must consult the
worker in the selection of the registered medical practitioner.
Regulation 417 – Return to lead risk work after removal
Regulation
417 states that a PCBU who expects a worker, removed from lead risk work
under regulation 415, to return to lead risk work must arrange for health
monitoring to take place by a registered medical practitioner with experience
in health monitoring. The frequency of health monitoring is decided by the
practitioner to determine whether the worker's blood lead level is low enough
for the worker to return to carrying out lead risk work.
Subregulation 417(3) prevents the PCBU from allowing the
working to return to lead risk work until the worker’s blood lead level is less
than:
·
for females not of reproductive capacity and males – 40μg/dL
(1.93μmol/L); or
·
for females of reproductive capacity – 10μg/dL (0.48μmol/L).
In addition, the registered medical practitioner with
experience in health monitoring must be satisfied that the worker is fit to
return to lead risk work.
Regulation 418 – Health monitoring records
Regulation 418
requires the PCBU to ensure that health monitoring reports in relation to a
worker were kept as a confidential record for at least 30 years after the
record is made and must not be disclosed to someone else without the worker’s
written consent except in the circumstances set out in the regulation.
The duties in this Chapter will commence on 1 January 2013
to provide PCBUs and other persons with a 12 month transition period.
This Chapter prohibits a PCBU from carrying out, directing,
or allowing a worker to carry out, work involving asbestos, other than in
circumstances permitted under the Regulations. It imposes a general duty upon
PCBUs at a workplace to eliminate exposure to airborne asbestos at the
workplace, so far as is reasonably practicable. It imposes duties upon a
person with management or control of a workplace to identify asbestos or
asbestos containing material (ACM) at the workplace, to prepare and keep an
asbestos register and an asbestos management plan and, prior to demolition or
refurbishment, to identify and remove asbestos and ensure emergency procedures
are developed. It imposes duties upon a PCBU about training workers and health
monitoring. It requires notification to the regulator and other persons of
asbestos removal work by the person with management or control of the
workplace, asbestos removalists and licensed removalists, and requires that
work to be licensed.
A licensed asbestos removalist is a person who is licensed
under a corresponding State or Territory law. The Commonwealth regulator will
rely on the states and territories to licence asbestos removalists and
assessors.
Duty holders under this Chapter may have health and safety
duties under sections 19, 20, 21 or 29 of the WHS Act, and duties under Part 5
Division 1 and Division 2 of the WHS Act to consult with other duty holders and
workers about matters under this Chapter. This Chapter prescribes requirements
for authorisation of work for section 43 of the WHS Act and required
qualifications for section 44 of the WHS Act.
Section 27 of the WHS Act applies to officers in respect of
this Chapter.
There are additional regulations about the management of
risks in Part 3.1 – Managing risks to health and safety, and about general
workplace management and provision of information about construction work that
involves or is likely to involve asbestos in Chapter 6 – Construction work.
Defined terms in Chapter 1 which are relevant to this
Chapter include:
·
asbestos
·
asbestos containing material (ACM)
·
asbestos-contaminated dust or debris (ACD)
·
asbestos-related work
·
asbestos removal licence
·
asbestos removal work
·
asbestos removalist
·
asbestos waste
·
certification
·
certified safety management system
·
class
·
Class A asbestos removal licence
·
Class A asbestos removal work
·
Class B asbestos removal licence
·
Class B asbestos removal work
·
competent person
·
control measure
·
exposure standard
·
external review
·
friable asbestos
·
genuine research
·
GHS
·
health monitoring
·
independent
·
in situ asbestos
·
licence holder
·
licensed asbestos assessor
·
licensed asbestos removalist
·
licensed asbestos removal work
·
membrane filter method
·
NATA
·
NATA-accredited laboratory
·
naturally occurring asbestos
·
non-friable asbestos
·
person with management or control of a workplace
·
personal protective equipment
·
registered medical practitioner
·
relevant fee
·
respirable asbestos fibre
·
specified VET course, and
·
VET course.
Part 8.1 – Prohibitions and authorised conduct
This Part gives effect to the
national prohibition on the use of asbestos or asbestos containing material
(ACM) unless it is in circumstances covered by one of the exceptions.
Regulation 419 – Work involving asbestos or ACM –
prohibitions and exceptions
Regulation 419 sets
out the prohibition on work involving asbestos and exceptions where the
prohibition does not apply. PCBUs and their workers must not carry out work
involving asbestos unless it is in circumstances which are permitted by one or
more of the exceptions. Examples of these exceptions include genuine research
and analysis, the transport and disposal of asbestos waste in accordance with
the relevant legislation, and laundering asbestos contaminated clothing in
accordance with the regulations.
This regulation refers to the
terms ‘bulk’ and ‘genuine research’, which are defined in regulation 5.
Part 8.2 – General duty
This Part provides a general duty to ensure that the
exposure standard for asbestos is not exceeded at a workplace.
Regulation 420 – Exposure to airborne asbestos at
workplace
Regulation 420
requires a PCBU to ensure that exposure of persons at a workplace to airborne
asbestos is eliminated or minimised, so far as is reasonably practicable. In
any case, the PCBU must ensure that the exposure standard for asbestos is not
exceeded at the workplace. The exposure standard is contained in the Workplace
Exposure Standard for Airborne Contaminants published by Safe Work
Australia and is available on its website.
Subregulation 420(3) provides for instances where this
regulation does not apply in relation to an asbestos removal area.
Part 8.3 – Management of asbestos and associated risks
This Part sets out the requirements for duty holders to
manage the risk associated with any asbestos at a workplace other than naturally
occurring asbestos. This Part has requirements for identifying asbestos,
indicating the presence of asbestos in the workplace, and maintaining asbestos
registers and asbestos management plans for workplaces.
Regulation 421 – Application of Part 8.3
Regulation 421
specifies that this Part does not apply to naturally occurring asbestos.
Specific provisions dealing with naturally occurring asbestos are contained in
Part 8.4.
Regulation 422 – Asbestos to be identified or assumed at
workplace
Regulation 422
requires a person with management or control of a workplace to ensure, so far
as is reasonably practicable, that all asbestos or ACM at the workplace is
identified by a competent person. In this provision, a ‘competent person’
means a person who has acquired through training, qualification or experience
the knowledge and skills to carry out the task.
This regulation also provides that if the material cannot be
identified but the competent person reasonably believes the material is
asbestos or ACM, the duty holder must assume the material is asbestos.
Inaccessible parts of the workplace likely to contain asbestos or ACM must also
be assumed to have asbestos present.
Subregulation 422(3) provides that the requirement to
identify asbestos set out in subregulation 422(1) does not apply if the person
with management or control of the workplace assumes that asbestos or ACM is
present or has reasonable grounds to believe that asbestos or ACM is not
present.
A ‘person with management or control of a workplace’ has the
same meaning as section 20 of the WHS Act.
Regulation 423 – Analysis of sample
Regulation 423
provides that asbestos may be identified by analysing a sample. Where a sample
is analysed, this can only be performed by laboratories specified in
subregulation 423(2).
Regulation 424 – Presence and location of asbestos to be
indicated
Regulation 424 sets
out the requirements needed to ensure that the presence and location of
asbestos at the workplace is clearly indicated, and, if it is reasonably practicable,
to indicate the presence and location of asbestos or ACM by a label.
Regulation 425 – Asbestos register
Regulation 425 sets
out the requirements for a person with management or control of a workplace to
prepare and keep up to date an asbestos register at the workplace. This
regulation also specifies what must be recorded in the asbestos register. The
duty holder is not required to prepare an asbestos register for a workplace if
a register has already been prepared for that workplace.
Subregulation 425(6) specifies that these requirements do
not apply to a workplace if:
(a) the workplace is a building
that was constructed after 31 December 2003, the date on which the national ban
of asbestos came into effect; and
(b) no asbestos has been
identified at the workplace; and
(c) no asbestos is likely to be
present at the workplace from time to time.
Note: Regulation 753 provides that the duties imposed on a person
under regulation 425 do not apply until 1 January 2013.
Regulation 426 – Review of asbestos register
Regulation 426
requires a person with management or control of a workplace where an asbestos
register is kept to ensure the register is reviewed and updated in specified
circumstances, including if further asbestos is identified at the workplace or
if asbestos is removed from, disturbed, sealed or enclosed at the workplace.
Note: Regulation 753 provides that the duties imposed on a
person under regulation 426 do not apply until 1 January 2013.
Regulation 427 – Access to asbestos register
Regulation 427
provides for a person with management or control of a workplace where an
asbestos register is kept to ensure that the register is readily accessible to
certain persons identified in subregulation 427(1). In addition, subregulation
427(2) requires the person with management or control of the workplace to give
a copy of the asbestos register to a PCBU carrying out, or intending to carry
out, work at the workplace that involves a risk of exposure to airborne
asbestos.
Note: Regulation 753 provides that the duties imposed on a person
under regulation 427 do not apply until 1 January 2013.
Regulation 428 – Transfer of asbestos register by person
relinquishing management or control
Regulation 428
requires that if a person with management or control of a workplace plans to
relinquish management or control, the person must ensure, so far as is
reasonably practicable, that the asbestos register is given to any new person
assuming management or control of the workplace.
Note: Regulation 753 provides that the duties imposed on a
person under regulation 428 do not apply until 1 January 2013.
Regulation 429 – Asbestos management plan
Regulation 429
specifies, when an asbestos management plan is required, what the person with
management or control of the workplace must ensure is included in the plan and
the persons who must have ready access to the plan.
Note: Regulation 753 provides that the duties imposed on a
person under regulation 429 do not apply until 1 January 2013.
Regulation 430 – Review of asbestos management plan
Regulation 430
requires a person with management or control of a workplace that has an
asbestos management plan to ensure that the plan is reviewed and updated in
specified circumstances, such as if there is a review of the asbestos register
or a control measure, if asbestos is removed or disturbed at the workplace, if
an HSR requests a review or once every 5 years.
Note: Regulation 753 provides that the duties imposed on a
person under regulation 430 do not apply until 1 January 2013.
Part 8.4 – Management of naturally occurring asbestos
This Part sets out the requirements for duty holders at
workplaces where naturally occurring asbestos is likely to be encountered.
This Part provides for asbestos management plans and training for workers in
these circumstances.
Regulation 431 – Naturally occurring asbestos
Regulation 431
requires a person with management or control of a workplace to manage the risks
associated with naturally occurring asbestos at the workplace.
‘Naturally occurring asbestos’ is defined in regulation 5.
Note: Subregulation 754(1) provides that the duties imposed on a
person under regulation 431 do not apply until 1 January 2013.
Regulation 432 – Asbestos management plan
Regulation 432
specifies the requirements for an asbestos management plan if naturally
occurring asbestos is identified at a workplace or is likely to be present at a
workplace. The person with management or control of the workplace must ensure
that the asbestos management plan is kept up to date, covers the matters outlined
in subregulation 432(3) and is readily accessible to persons specified in
subregulation 432(4).
Note: Subregulation 754(1) provides that the duties imposed on a
person under regulation 432 do not apply until 1 January 2013.
Regulation 433 – Review of asbestos management plan
Regulation 433
requires a person with management or control of a workplace to have an asbestos
management plan about naturally occurring asbestos and to ensure that the plan
is reviewed and revised if the plan is no longer adequate for managing
naturally occurring asbestos at the workplace.
Note: Subregulation 754(1) provides that the duties imposed on a
person under regulation 433 do not apply until 1 January 2013.
Regulation 434 – Training in relation to naturally
occurring asbestos
Regulation 434
provides that training required under regulation 445 includes training in the
hazards and risks associated with naturally occurring asbestos for workers who
carry out work where naturally occurring asbestos is likely to be found.
Note: Subregulation 754(2) provides that the duties imposed on a
person under regulation 434 do not apply until 1 July 2012.
Part 8.5 – Asbestos at the workplace
This Part sets out the requirements for duty holders in
relation to health monitoring for certain workers. This Part also provides for
training for workers who are performing asbestos removal work or
asbestos-related work not covered within training requirements for licensed
asbestos removal work. This part also places prohibitions and limitations on
the use of certain equipment on asbestos or ACM.
Division 1 – Health monitoring
Regulation 435 – Duty to provide health monitoring
Regulation 435
specifies the circumstances when a PCBU must ensure that health monitoring is
provided to certain workers carrying out licensed asbestos removal work, other
ongoing asbestos removal work or asbestos-related work. The PCBU is also
required to ensure the worker is informed of any health monitoring requirements
before the worker carries out any work that may expose the worker to asbestos.
Regulation 436 – Duty to ensure that appropriate health
monitoring is provided
Regulation 436 sets
out the matters that the PCBU must ensure are included in health monitoring
provided to the worker.
Regulation 437 – Duty to ensure health monitoring is
supervised by registered medical practitioner with relevant experience
Regulation 437 requires
the PCBU to ensure the health monitoring referred to in regulation 435 is
carried out under the supervision of a registered medical practitioner with
experience in health monitoring. This regulation also requires the PCBU to
consult the worker in relation to selecting the registered medical
practitioner.
Regulation 438 – Duty to pay costs of health monitoring
Regulation 438 requires
a PCBU to pay all expenses relating to health monitoring. This regulation also
provides for an agreement to be made about sharing costs where more than one
PCBU has a duty to provide health monitoring for a worker.
Regulation 439 – Information that must be provided to
registered medical practitioner
Regulation 439 requires
the PCBU commissioning health monitoring for a worker to provide certain
information to the registered medical practitioner supervising the health
monitoring, including the name and address of the PCBU, the name and date of
birth of the worker, the work that triggered the requirement for health
monitoring and how long the worker has been carrying out the work.
Regulation 440 – Duty to obtain health monitoring report
Regulation 440 provides
that the PCBU commissioning health monitoring for a worker must take all
reasonable steps to obtain a health monitoring report from the registered
medical practitioner as soon as practicable after the monitoring is carried
out. This regulation also specifies the information to be included in the
health monitoring report, including any advice that the test results indicate
that the worker may have contracted a disease, injury or illness; any
recommendation that the PCBU take remedial action; and whether medical counselling
is required for the worker.
Regulation 441 – Duty to give health monitoring report to
worker
Regulation 441 requires
the PCBU who commissioned the health monitoring for a worker to give a copy of
the health monitoring report to the worker as soon as practicable after the
person obtains the report.
Regulation 442 – Duty to give health monitoring report to
regulator
Regulation 442 sets
out the circumstances in which a PCBU who commissioned health monitoring for a
worker must give a copy of the health monitoring report to the regulator. This
includes when the test indicates the worker may have contracted a disease out
of the work that triggered the requirement for the report, or when any
recommendation is given for the PCBU to take remedial measures, including
whether the worker can continue to carry out the work referred to in regulation
435.
Regulation 443 – Duty to give health monitoring report to
relevant persons conducting businesses or undertakings
Regulation 443 requires
the PCBU who commissioned health monitoring for a worker to give a copy of the
health monitoring report to all other PCBUs who have a duty to provide health
monitoring for the worker as soon as practicable after obtaining the report.
Regulation 444 – Health monitoring records
Regulation 444 places
requirements on the PCBU in relation to confidentiality of health monitoring
reports and keeping records for at least 40 years after the record is made.
Subregulation 444(2) provides that the PCBU must ensure that
health monitoring reports or results of a worker are not disclosed to another
person without the worker’s written consent.
Division 2 – Training
Regulation 445 – Duty to train workers about asbestos
Regulation 445 places
specific requirements on PCBUs regarding training for certain workers about
identification, safe handling and suitable control measures for asbestos. This
training is required for workers who may be involved in asbestos removal work
or carrying out asbestos-related work outside the scope of licensed asbestos removal
work. Training requirements for workers carrying out licensed asbestos removal
work are specified in regulation 460.
Regulation 445 also specifies record keeping requirements in
relation to the training undertaken by the worker.
Note: Regulation 755 provides that the duties imposed on a
person under regulation 445 do not apply until 1 July 2012.
Division 3 – Control on use of certain equipment
Regulation 446 – Duty to limit use of equipment
Regulation 446 prohibits
PCBUs and their workers from using either high-pressure water spray or
compressed air on asbestos or ACM. This regulation also places limitations on
the use of power tools, brooms and other implements that cause the release of
airborne asbestos. A PCBU must not use, or direct or allow a worker to use
this equipment on asbestos or ACM, unless the equipment is controlled in a way
specified in subregulation 446(4).
Part 8.6 – Demolition and refurbishment
This Part sets out the requirements for duty holders in
relation to the demolition or refurbishment of pre-31 December 2003 structures
and plant at a workplace.
Regulation 447 – Application of Part 8.6
Regulation 447 provides
that this Part applies to the demolition or refurbishment of a structure or
plant constructed before 31 December 2003, the date on which the national ban
of asbestos took effect. It also specifies that ‘demolition or refurbishment’
does not include minor or routine maintenance work, or other minor work.
Regulation 448 – Review of asbestos register
Regulation 448 sets
out the requirements for the person with management or control of a workplace
to review and revise an asbestos register for the workplace before demolition
or refurbishment is carried out.
Regulation 449 – Duty to give asbestos register to person
conducting business or undertaking of demolition or refurbishment
Regulation 449 requires
the person with management or control of a workplace to ensure the PCBU who is
carrying out demolition or refurbishment is given a copy of the asbestos
register before demolition or refurbishment work starts.
Regulation 450 – Duty to obtain asbestos register
Regulation 450 requires
the PCBU who is carrying out demolition or refurbishment work at a workplace to
obtain a copy of the asbestos register before the work starts.
Regulation 451 – Determining presence of asbestos or ACM
Regulation 451
provides that where there is no asbestos register for a structure or plant to
be demolished or refurbished at a workplace, the demolition or refurbishment must
not start until the structure or plant has been inspected to determine whether
asbestos or ACM is fixed or installed in the structure or plant. If asbestos
is determined or assumed to be fixed or installed in the structure or plant,
the PCBU who is to carry out the demolition or refurbishment must inform the
person with management or control of the workplace. If the workplace is
domestic premises, the PCBU must inform both the occupier and the owner of the
domestic premises.
Regulation 452 – Identification and removal of asbestos
before demolition
Regulation 452 sets
out the requirements for identifying and, as far as reasonably practicable,
removing asbestos before demolition starts. This provision does not apply to
an emergency to which regulation 454 applies or demolition of domestic
premises, which is dealt with in regulations 453 and 455.
Regulation 453 – Identification and removal of asbestos
before demolition of domestic premises
Regulation 453 provides
that a PCBU carrying out demolition of domestic premises must ensure that
asbestos that is likely to be disturbed by the demolition is identified, and so
far as is reasonably practicable, removed before demolition starts.
Subregulations 453(2) and (3) set out the instances in which the regulation does
not apply.
Regulation 454 – Emergency procedure
Regulation 454 specifies
what must happen where a structure or plant is structurally unsound or its
collapse is imminent. This provision does not apply to domestic premises as
demolition of domestic premises in an emergency is dealt with in regulation
455.
Regulation 454 also specifies the responsibilities of the
person with management or control of the workplace, which includes notifying
the regulator before demolition starts.
Regulation 455 – Emergency procedure – domestic premises
Regulation 455 specifies
what must happen if a structure or plant at domestic premises is structurally
unsound or its collapse is imminent. This regulation sets out the
responsibilities of the PCBU who is to carry out the demolition, which includes
notifying the regulator before demolition starts.
Regulation 456 – Identification and removal of asbestos
before refurbishment
Regulation 456 sets
out the requirements for a person with management or control of a workplace, or
structure or plant, if the structure or plant is to be refurbished. The person
must ensure that all asbestos likely to be disturbed by the refurbishment is
identified, and so far as is reasonably practicable, removed before
refurbishment starts. This regulation does not apply to domestic premises,
which are dealt with in regulation 457.
Regulation 457 – Refurbishment of domestic premises
Regulation 457 requires
a PCBU who is to carry out refurbishment of domestic premises to ensure that
all asbestos likely to be disturbed by the refurbishment is identified, and so
far as is reasonably practicable, removed before refurbishment starts.
Part 8.7 – Asbestos removal work
This Part sets out the requirements for duty holders in
relation to carrying out asbestos removal work at a workplace.
A note informs the reader that some duties in this Part are
on licensed asbestos removalists and others apply to asbestos removalists
generally.
Regulation 458 – Duty to ensure asbestos removalist is
licensed
Regulation 458 sets
out the requirements for a PCBU commissioning the removal of asbestos to ensure
that certain asbestos removal work is carried out by a licensed asbestos removalist.
Where the asbestos is not required to be removed by a licensed asbestos
removalist, the PCBU must ensure the work is carried out by a competent person
who has been trained in accordance with the regulation.
Regulation 459 – Asbestos removal supervisor must be
present or readily available
Regulation 459 sets
out the requirements for a licensed asbestos removalist to ensure asbestos
removal work is supervised by a nominated asbestos removal supervisor. For
asbestos removal work requiring a Class A licence, the supervisor must be
present at the asbestos removal area whenever the asbestos removal work is
being carried out. For asbestos removal work requiring a Class B licence, the
supervisor must be readily available to a worker carrying out the asbestos
removal work whenever the work is being carried out.
Regulation 460 – Asbestos removal worker must be trained
Regulation 460 specifies
the requirements for licensed asbestos removalists to ensure workers do not
carry out licensed asbestos removal work unless the worker holds a
certification in relation to the specified VET course for asbestos removal
relevant to the class of licensed asbestos removal work being carried out. In
addition, this regulation requires a licensed asbestos removalist to provide appropriate
training to a worker carrying out licensed asbestos removal work to ensure it
is carried out in accordance with the asbestos removal control plan.
This regulation refers to the term ‘certification’, which is
defined in regulation 5.
Regulation 461 – Licensed asbestos removalist must keep
training records
Regulation 461 requires
a licensed asbestos removalist to keep records of a worker’s training and
ensure training records are readily accessible at the asbestos removal area.
The records must be kept for 5 years after the day the worker stopped carrying
out licensed asbestos removal work for the removalist.
Regulation 462 – Duty to give information about health
risks of licensed asbestos removal work
Regulation 462 provides
for licensed asbestos removalists to give information about health risks and
health monitoring to a person before the person is engaged to carry out
licensed asbestos removal work.
Regulation 463 – Asbestos removalist must obtain register
Regulation 463 requires
a licensed asbestos removalist to obtain a copy of an asbestos register for a
workplace before the removalist carries out asbestos removal work. This
regulation does not apply if the asbestos removal work is to be carried out at
domestic premises.
Regulation 464 – Asbestos removal control plan
Regulation 464 requires
a licensed asbestos removalist to prepare an asbestos removal control plan for
licensed asbestos removal work. This regulation sets out what an asbestos
control plan must include and also requires the licensed asbestos removalist to
give a copy of the plan to the person who commissioned the licensed asbestos
removal work.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Regulation 465 – Asbestos removal control plan to be kept
and available
Regulation 465 requires
a licensed asbestos removalist to ensure that a copy of the asbestos removal
control plan is kept and requires that it must be kept until the asbestos
removal work to which it relates is completed, or longer, if a notifiable
incident occurs in connection with the work to which the plan relates.
Regulation 465 also sets out to whom a copy of the plan must
be made readily accessible.
Regulation 466 – Regulator must be notified of asbestos
removal
Regulation 466 requires
licensed asbestos removalists to notify the regulator at least 5 days before
starting licensed asbestos removal work.
Licensed asbestos removal work can start immediately if
there is a sudden and unexpected event that may cause persons to be exposed to
respirable asbestos fibres or an unexpected breakdown of an essential service
that requires immediate rectification. If asbestos must be removed in either
of these circumstances, the licensed asbestos removalist must give notice to
the regulator immediately by telephone and in writing within 24 hours after
notification by telephone. This regulation specifies what information the
licensed asbestos removalist must provide when notifying the regulator of
licensed asbestos removal work.
This regulation refers to the term ‘clearance inspection’,
which is defined in regulation 473.
Regulation 467 – Licensed asbestos removalist must tell
certain persons about intended asbestos removal work
Regulation 467 identifies
the persons who must be informed about intended asbestos removal work by the
licensed asbestos removalist and the information that must be provided.
Regulation 468 – Person with management or control of
workplace must tell persons about asbestos removal work
Regulation 468 specifies
that if a person with management or control of a workplace has been informed
about intended asbestos removal work, the person must advise certain persons
about the asbestos removal work and when it will start. In addition, the
person must take reasonable steps to ensure the same information is provided to
anyone conducting a business or undertaking at, or in the immediate vicinity
of, the workplace or to anyone occupying premises in the immediate vicinity of
the workplace.
Regulation 469 – Signage and barricades for asbestos
removal work
Regulation 469 sets
out the responsibilities of an asbestos removalist in relation to signs and
barricades when asbestos removal work is being carried out.
Regulation 470 – Limiting access to asbestos removal area
Regulation 470 places
requirements on certain duty holders to ensure, so far as is reasonably
practicable, that only certain persons have access to an asbestos removal
area. This regulation also requires persons who have access to an asbestos
removal area to comply with directions by the licensed asbestos removalist
carrying out the licensed asbestos removal work.
Regulation 471 – Decontamination facilities
Regulation 471 places
requirements on an asbestos removalist to ensure facilities are available to
decontaminate the asbestos removal area, plant used in that area, workers
carrying out asbestos removal work and any other persons who have authorised
access to the asbestos removal area. This regulation also requires an asbestos
removalist to ensure that anything which is likely to be contaminated with
asbestos is not removed from the asbestos removal area unless it is
decontaminated first or properly sealed in a container that has been
decontaminated and labelled.
Regulation 472 – Disposing of asbestos waste and contaminated
personal protective equipment
Regulation 472 requires
an asbestos removalist to dispose of asbestos waste properly. It specifies
requirements in relation to the disposal of personal protective equipment, and
in certain circumstances, the storage of personal protective equipment in
sealed containers until it is re-used for asbestos removal work.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Regulation 473 – Clearance inspection
Regulation 473 sets
out the requirements for a clearance inspection of an asbestos removal area.
For licensed asbestos removal work at a workplace, responsibility for ensuring
a clearance inspection is carried out rests with the person who commissioned
the licensed asbestos removal work. However, for licensed asbestos removal
work at domestic premises, this responsibility is placed on the licensed
asbestos removalist.
For Class A asbestos removal work, the clearance inspection
must be carried out by an independent licensed asbestos assessor. For Class B
asbestos removal work, the clearance inspection must be carried out by an independent
competent person.
‘Independent’ and ‘competent person’ are defined terms. If
it is not reasonably practicable for the licensed asbestos assessor or
competent person to be independent, an application may be made to the regulator
for an exemption from the requirement that the assessor or competent person be
independent.
This regulation refers to the term ‘clearance inspection’,
which is defined in regulation 473.
Regulation 474 – Clearance certificates
Regulation 474 sets
out the requirements in relation to clearance certificates following a
clearance inspection carried out under regulation 473. These requirements are
placed on the licensed asbestos assessor or competent person who carried out
the clearance inspection.
This regulation refers to the term ‘clearance inspection’,
which is defined in regulation 473.
Part 8.8 – Asbestos removal requiring Class A licence
This Part has specific requirements for asbestos removal
work requiring a Class A asbestos removal licence. These includes air
monitoring requirements and the action that duty holders have to take if air
monitoring shows specified levels are exceeded.
Regulation 475 – Air monitoring – asbestos removal
requiring Class A licence
Regulation 475 specifies
the air monitoring requirements associated with asbestos removal work requiring
a Class A asbestos removal licence. This includes when air monitoring must be
carried out by a PCBU and to whom results of air monitoring must be given.
This regulation also specifies that the independent licensed assessor must
undertake air monitoring using the membrane filter method, which is defined.
Regulation 476 – Action if respirable asbestos fibre level
too high
Regulation 476 specifies
the action that must be taken by the licensed asbestos removalist if respirable
asbestos fibre levels exceed specified levels during asbestos removal work
requiring a Class A asbestos removal licence.
Regulation 477 – Removing friable asbestos
Regulation 477 provides
for a licensed asbestos removalist to take specific measures, so far as is
reasonably practicable, when removing friable asbestos. This regulation also
sets out requirements regarding any enclosures used in removing friable
asbestos.
Part 8.9 – Asbestos-related work
This Part sets out requirements for duty holders in relation
to asbestos-related work carried out at a workplace.
Regulation 478 – Application of Part 8.9
Regulation 478 provides
that this Part applies to asbestos-related work, which is defined.
Regulation 479 – Uncertainty as to presence of asbestos
Regulation 479 requires
a PCBU who is unsure whether work to be carried out is asbestos-related work to
assume either that asbestos is present or ensure a sample is analysed in order
to determine if asbestos is present.
Regulation 480 – Duty to give information about health
risks of asbestos-related work
Regulation 480 places
responsibilities on a PCBU to give information about health risks and health
monitoring to a person before the person is engaged to carry out
asbestos-related work for the business or undertaking.
Regulation 481 – Asbestos-related work to be in separate
area
Regulation 481 sets
out requirements for the PCBU involved in carrying out asbestos-related work to
ensure the asbestos-related work area is separated from other work areas, and
that signs and barricades are used to indicate where the asbestos-related work
is being carried out.
Regulation 482 – Air monitoring
Regulation 482 specifies
the requirements for air monitoring of an asbestos-related work area if there
is uncertainty as to whether the exposure standard is likely to be exceeded.
This regulation also provides for the PCBU to take action in providing specific
information to workers, and so far as is reasonably practicable, to other
persons who were in the work area at the time, if it is determined that the
exposure standard has been exceeded.
Regulation 483 – Decontamination facilities
Regulation 483 requires
a PCBU carrying out asbestos-related work to ensure facilities are available to
decontaminate the asbestos-related work area, the plant used in that area, and
workers carrying out asbestos-related work. This regulation also requires the
PCBU to ensure that anything likely to be contaminated with asbestos is not
removed from the asbestos-related work area unless it is decontaminated first
or properly sealed in a container that has been decontaminated and labelled.
Regulation 484 – Disposing of asbestos waste and
contaminated personal protective equipment
Regulation 484 sets
out the requirements for a PCBU, carrying out asbestos-related work, to dispose
of asbestos waste properly. It also specifies the requirements for the PCBU in
relation to the disposal of personal protective equipment, and, in certain
circumstances, the storage of personal protective equipment in sealed
containers until it is re-used for asbestos removal work.
This regulation refers to the term ‘personal protective
equipment’, which is defined in regulation 5 to mean anything used or worn by a
person to minimise risk to the person’s health and safety, including air
supplied respiratory equipment.
Part 8.10 – Licensing of asbestos removalists and asbestos
assessors
This Part requires a person to be licensed to carry out
certain asbestos removal work.
Division 1 – Asbestos removalists – requirement to be
licensed
Regulation 485 – Requirement to hold Class A asbestos
removal licence
Regulation 485
provides that a person must not carry out certain friable asbestos removal work
at a workplace unless they, or the person they work for, hold a Class A
asbestos removal licence. This regulation also provides that a PCBU must not
direct or allow a worker to carry out certain friable asbestos removal work
unless the PCBU holds a Class A asbestos removal licence.
Regulation 486 – Exception to requirement to hold a Class
A asbestos removal licence
Regulation 486
provides an exception permitting removal of asbestos-contaminated dust or
debris in specific circumstances without holding a Class A asbestos removal
licence.
Regulation 487 – Requirement to hold Class B asbestos
removal licence
Regulation 487
provides that a person must not carry out certain non-friable asbestos removal
work at a workplace unless they, or the person they work for, hold either a
Class A or Class B asbestos removal licence. This regulation also provides
that a PCBU must not direct or allow a worker to carry out certain non-friable
asbestos removal work unless the PCBU holds a Class A or Class B asbestos
removal licence.
Regulation 488 – Recognition of asbestos removal licences
in other jurisdictions
Regulation 488
defines an asbestos removal licence to mean an asbestos removal licence granted
under a corresponding WHS law that is being used in accordance with the terms
and conditions under which it was granted.
Division 2 – Asbestos assessors – requirement to be licensed
Regulation 489 – Requirement to hold asbestos assessor
licence
Regulation 489
provides that certain functions associated with Class A asbestos removal work
can only be carried out by a person who holds an asbestos assessor licence.
These functions are air monitoring, clearance inspections and issuing clearance
certificates in relation to Class A asbestos removal work.
This regulation refers to the term ‘clearance inspection’,
which is defined in regulation 473.
Regulation 490 – Recognition of asbestos assessor licences
in other jurisdictions
Regulation 490 specifies that an asbestos
assessor licence is a licence that is granted under a corresponding WHS law and
is being used in accordance with the terms and conditions under which it was
granted.
Regulation 529 – Work must be supervised by named
supervisor
Regulation 529
provides that a person who holds an asbestos removal licence must ensure that
asbestos removal work that is authorised by the licence is supervised by a
supervisor that is named to the regulator by the licence holder.
This Chapter regulates the operation of major hazard
facilities, as defined in the Regulations. A major hazard facility (MHF) is a
facility at which chemicals listed in Schedule 15 of the Regulations are
present or likely to be present in a quantity that exceeds the threshold
quantity listed in the Schedule, or that is determined by the regulator to be
an MHF.
This Chapter sets out how a workplace may be determined to
be an MHF, how a facility is licensed and what the obligations are for certain
persons such as the operator, once the facility is a licensed as an MHF.
Specifically, this Chapter:
- requires the operator of a workplace which
may be a facility to notify the regulator so that the workplace may be
assessed and an authorisation process may begin;
- imposes duties upon operators of a determined
MHF during the determination period to prepare a safety case outline,
undertake hazard identification and risk control and prepare and test an
emergency plan, and establish safety management systems in consultation
with workers;
- requires MHFs to be licensed, and provides
for the licensing of facilities; and
- imposes duties upon operators of a licensed
MHF to provide information to visitors, the local community and the local
authority.
Duty holders under this Chapter may have health and safety
duties under sections 19, 20 or 28 of the WHS Act, and duties under Divisions 1
and 2 of Part 5 of the WHS Act to consult with other PCBUs and workers about
matters in this Chapter. Section 27 of the WHS Act applies to officers in
respect of this Chapter. This Chapter prescribes requirements for
authorisation of workplaces for section 41 of the WHS Act.
Schedules 15 to 18 of the Regulations apply to this
Chapter. Regulations in other Parts which may be relevant to MHFs include:
- management of risk in Part 3.1 – Managing
risk to health and safety,
- provision of information in Part 3.2 – General
workplace management; and
- hazardous chemicals in Part 7.1 – Hazardous
Chemicals.
Defined terms in Chapter 1 which are relevant to this
Chapter include:
- control measure
- determined major hazard facility
- external review
- facility
- hazardous chemical
- licence holder
- licensed major hazard facility
- local authority
- local community
- major hazard facility
- major hazard facility licence
- major incident hazard
- pipeline
- proposed facility
- proposed major hazard facility
- relevant fee
- Schedule 15 chemical
- surrounding area; and
- threshold quantity.
The duties in this Chapter will commence on
1 January 2012.
Part 9.1 – Preliminary
Division 1 – Application and interpretation
Regulation 530 – This Chapter does not apply to certain
facilities
Regulation 530 provides a
note to inform the reader that section 12A of the WHS Act specifies that the
WHS Act does not apply in relation to a facility to which Schedule 3 to the Offshore
Petroleum and Greenhouse Gas Storage Act 2006 applies.
Regulation 531 – Meaning of major incident
Regulation 531 states that a ‘major incident’ at an
MHF is an occurrence that results from an uncontrolled event at the facility
involving, or potentially involving, Schedule 15 chemicals, and exposes a
person to a serious risk to health and safety emanating from an immediate or
imminent exposure to the occurrence.
Subregulation 531(2) describes an occurrence as including an
escape, spillage or leakage, or an implosion, explosion or fire. For example,
an occurrence may be initiated by equipment such as a furnace or boiler that of
itself does not involve Schedule 15 materials but could indirectly cause a loss
of containment of such materials from nearby equipment at the facility by fire
or explosion damage.
Regulation 532 – Meaning of hazardous chemicals that are present
or likely to be present
Regulation 532 provides
that a reference in the WHS Regulations to hazardous chemicals being ‘present
or likely to be present’ at a facility is a reference to the quantity of
hazardous chemicals that would, if present, meet the maximum capacity of the
facility. This regulation clarifies that hazardous chemicals include Schedule
15 chemicals.
Subregulation 532(3) exempts
Schedule 15 chemicals present or likely to be present in the tailings dam of a
mine from being considered in determining whether a mine is an MHF.
Regulation 533 – Meaning of operator of a facility
or proposed facility
Regulation 533 provides that the ‘operator’ of a
facility is the PCBU who has management or control of the facility and the
power to direct that the whole facility be shut down. The operator of a
proposed facility includes the operator of an existing workplace or the
operator of a facility being designed or constructed. If more than one person
is an operator of the facility, one operator must be nominated as the operator
of the facility for the purpose of this Chapter and their details must be given
to the regulator.
Subregulation 533(4) provides that the nominated person must
inform the regulator of their nomination, and may do so by including it in a
notification under regulation 536. Subregulation 533(6) provides that if a
nomination is not made, the operator of the facility is taken to be each
operator who is an individual and each officer of the body corporate where the
operator is a body corporate.
Regulation 534 – Meaning of modification of a
facility
Subregulation 534(1) provides that a ‘modification’ of an
MHF is a change or proposed change at the MHF that has or would have the effect
of creating a new major incident hazard, or significantly increasing the
likelihood, magnitude or severity of a major incident.
Subregulation 534(2) provides examples of changes or
proposed changes at an MHF for the purposes of subregulation 534(1) such as
changes to any plant, structure, process, chemical or other substance used in a
process and changes to the operation of the MHF.
Division 2 – Requirement to be licensed
Regulation 535 – A major hazard facility must be licensed
Regulation 535 requires a facility at which Schedule
15 chemicals are present or likely to be present in a quantity that exceeds
their threshold quantity to be licensed under Part 9.7. Subregulation 535(2)
provides that a facility that is determined to be an MHF under regulation 541
must be licensed under Part 9.7. Section 41 of the WHS Act does not
permit a workplace which must be licensed under the regulations to operate
without the licence. Subregulation 535(4) requires the operator of a licensed
MHF to hold the licence for the facility.
Subregulation 535(3) allows a determined MHF to operate
during the exemption period without a licence if the operator of the facility
is considered to be a suitable person to operate the facility under regulation
543 in Part 9.2. Subregulation 535(5) provides that the exemption period means
the period beginning on the determination of the facility as an MHF and ending
on whichever of the following that occurs first:
·
the revocation of the determination of the facility under
regulation 546;
·
the end of the period for applying for a licence given under
regulation 549, unless an application for a licence for the facility is made
within that period;
·
the grant of a licence for the facility under Part 9.7; or
·
if the regulator refuses to grant a licence for the facility – the
end of the period for applying for an external review of that decision (unless
an application for external review is made within that period) or the making of
the decision on the external review.
Part 9.2 – Determinations about major
hazard facilities
Regulation 536 – Operators of certain facilities must
notify regulator
Regulation 536 requires
the operator of a facility at which Schedule 15 chemicals are present or likely
to be present in a quantity that exceeds 10% of their threshold quantity to
notify the regulator of this circumstance.
Subregulation 536(2) states
that notification should be given as soon as practicable but no more than three
months after the operator becomes aware (or is reasonably expected to have
become aware) of the circumstances in which the regulator must be notified, or
a longer period determined by the regulator if the regulator is satisfied that
there is a reasonable excuse for the delayed notification.
Note: Subregulations 758(1) and (2) provide that where a
notification about the facility was given to the Commission before 1 January
2012, and the Commission has not decided whether to classify the facility as an
MHF, the notice is taken to have been given to the regulator under regulation
536.
Regulation 537 – Notification – proposed facilities
Regulation 537 allows the
operator of a proposed facility at which Schedule 15 chemicals are likely to be
present in a quantity that exceeds 10% of their threshold quantity to notify
the regulator of this circumstance. A ‘proposed facility’ is defined in
subregulation 5(1) and the meaning of ‘likely to be present’ is described in
regulation 532.
Subregulation 537(2) states that
a notification under this regulation must include information required by
regulation 538, with any necessary changes.
Regulation 538 – Content of notification
Regulation 538 provides information on the content of
the notification required under regulation 536. Subregulation 538(2) sets out
the type of information that must be contained in the notification, including
information about the facility, the operator of the facility, the Schedule 15
chemicals present or likely to be present at the facility and a contact person
with whom the regulator can communicate.
Subregulation 538(3) specifies the information that must be
given about the operator under subregulation 538(2) such as information about
the operator’s name, whether or not the operator is a body corporate and any
other evidence of the operator’s identity required by the regulator
Subregulation 538(5) provides that if the information
required to be included in a notification is information dealing with national
security, the operator may give the regulator a summary of that information, in
a form approved by the regulator, rather than the entire information.
Note: Subregulation 758(3) provides that if the notification
provided did not include the information mentioned in regulation 538, the
operator must give the information to the regulator within 3 months.
Regulation 539 – When regulator may conduct inquiry
Regulation 539 allows the
regulator to conduct an inquiry under this Division if notification under
regulation 536 or 537 discloses, or the regulator reasonably suspects, that the
quantity of Schedule 15 chemicals present or likely to be present at a facility
exceeds 10% of their threshold quantity, or the operator of the facility may
not be a suitable person to operate the facility.
Regulation 540 – Inquiry procedure
Regulation 540 sets out the procedure for the
regulator to conduct an inquiry.
Regulation 541 – Determination in relation to facility, on
inquiry
Regulation 541 sets out
the basis on which the regulator may determine a facility to be an MHF if an
inquiry discloses that the quantity of Schedule 15 chemicals present or likely
to be present at the facility or proposed facility exceeds 10% of their
threshold quantity.
Subregulation 541(2)
provides that a regulator may determine a facility or proposed facility to be
an MHF if the regulator considers there is potential for a major incident to
occur. This subregulation provides that the regulator may consider the
quantity or combination of Schedule 15 chemicals present or likely to be
present at the facility, the type of activity involving Schedule 15 chemicals,
and the land use and other activities in the surrounding area.
Note 1 provides that if an
inquiry discloses that the quantity of Schedule 15 chemicals present or likely
to be present at a facility exceeds their threshold quantity, then the facility
is an MHF.
Note 2 provides that a
determination under this regulation that a facility is an MHF, or that a
proposed facility is not an MHF, is a reviewable decision under regulation 676.
Regulation 542 – Determination in relation to
over-threshold facility
Regulation 542 requires
the regulator to make a determination that a facility or proposed facility is
an MHF if a notification under regulation 536 or 537 discloses that the
quantity of Schedule 15 chemicals present or likely to be present at the
facility exceeds their threshold quantity.
A note provides that a
determination that a facility is an MHF under this regulation is a reviewable
decision under regulation 676.
Regulation 543 – Suitability of facility operator
Regulation 543 allows the
regulator to determine that the operator of an MHF or proposed MHF is not a
suitable person to operate the MHF if the regulator is satisfied, on reasonable
grounds, that, after conducting an inquiry under regulation 540, the operator
is not a suitable person to operate the MHF or proposed MHF.
Subregulation 543(3) provides
that if no determination is made under this regulation, then the operator of the
MHF or proposed MHF is taken to be a suitable person to operate the MHF and to
apply for an MHF licence.
A note provides that a
determination that a person is not a suitable operator under this regulation is
a reviewable decision under regulation 676.
Regulation 544 – Conditions on determination of MHF
Regulation 544 allows the regulator to impose any
conditions it considers appropriate on a determination made under regulations
541 or 542. Subregulation 544(2) sets out the types of conditions that the regulator
may impose on a determined MHF. Examples of such conditions include the
implementation of additional control measures in relation to activities at the
determined MHF and the provision of additional information, training and
instruction to specified persons.
Subregulation 544(3) requires the operator of a determined
MHF to ensure that the conditions imposed by the regulator under this
regulation are complied with.
A note provides that a decision to impose a condition on a
determined MHF under this regulation is a reviewable decision under regulation
676.
Regulation 545 – Notice and effect of determinations
Regulation 545 provides that if the regulator makes a
determination under this Part, then the regulator must give the operator of the
determined MHF a written notice of the determination stating the reasons for
the determination, the date on which the determination takes effect and any
conditions imposed on the determination under regulation 544. Notice must be
given within 14 days of making the determination.
Subregulation 545(3) states that
the effect of a determination under regulation 543 is that the operator is not
taken to be a suitable person to operate the determined MHF and the exemption
provided by regulation 535(3) does not apply to the determined MHF.
A note provides that the effect
of a determination under regulations 541 or 542 is outlined in the definition
of ‘determined MHF’ in subregulation 5(1).
Subregulations 545(4) and (5)
provide that a determination takes effect on the date specified in the notice
and has an unlimited duration unless it is revoked.
Regulation 546 – When regulator may revoke a determination
Regulation 546 allows the
regulator to revoke a determination under this Part if, after consultation with
the MHF's contact person or operator, the regulator is satisfied that the
reasons for the determination no longer apply.
Regulation 547 – Re-notification if quantity of Schedule
15 chemicals increases
Subregulation 547(1) states that
this regulation applies to a facility or proposed facility which provided
notification under regulations 536 or 537 that Schedule 15 chemicals present or
likely to be present at the facility exceeded 10% of their threshold quantity,
and was determined not to be an MHF under regulation 541.
Subregulation 547(2) requires
the operator of the facility or proposed facility to re-notify the regulator if
the quantity of Schedule 15 chemicals present or likely to be present at the
facility increases, or is likely to increase, to a level that exceeds the level
previously notified to the regulator.
Regulation 548 – Notification by new operator
Subregulation 548(1) provides that this regulation applies
to a determined MHF that is proposed to be operated by a new operator,
regardless of whether a determination under regulation 543 was made in relation
to the operator. Subregulation 548(2) requires the proposed new operator to
provide the regulator with a notification that contains information specified
in regulation 538(2).
Regulation 549 – Time in which major hazard facility
licence must be applied for
Regulation 549 requires
the operator of a determined MHF to apply for an MHF licence within 24 months
after the determination of the facility. Subregulation 549(2) provides that
the regulator may extend the time in which an MHF license must be applied for
if the operator applies for an extension and the regulator is satisfied that
there has not been sufficient time to comply with Part 9.3.
A note provides that an
exemption under subregulation 535(3) from the requirement to be licensed
depends on an application for a licence being made within the timeframe
specified by this regulation.
Part 9.3 – Duties of Operators of
Determined Major Hazard Facilities
Note 1 provides that the
operator of a determined MHF is required to comply with this Part for a
specified period and to prepare a safety case in order to apply for an MHF
licence. Note 2 provides that the WHS Act and Chapter 7 (Hazardous chemicals)
of these Regulations would continue to apply to a determined MHF.
Division 1 – Application of Part 9.3
Regulation 550 – Application of Part 9.3
Regulation 550 provides
that Part 9.3 would cease to apply to a determined MHF at the end of the
exemption period applying to that facility under regulation 535.
Division 2 – Safety case outline
Regulation 551 – Safety case outline must be provided
Regulation 551 requires
the operator of a determined MHF to provide the regulator with a safety case
outline for the MHF within 3 months after the facility was determined to be an
MHF.
Regulation 552 – Content
Regulation 552 specifies the content that a safety
case outline must cover. Examples of the information that a safety case
outline must cover include a written plan for the preparation of the safety
case and a description of the consultation with workers that will occur in the
preparation of the safety case.
Regulation 553 – Alteration
Regulation 553 allows the
regulator to require the operator of a determined MHF to alter a safety case
outline if the regulator is not satisfied that the safety case outline would
lead to the development of a safety case that complies with regulation 561.
Subregulation 553(2) requires the regulator to give the
operator written notice if it proposes to require an operator to alter a safety
case outline. Subregulation 553(3) sets out the procedure for the regulator to
decide whether or not to require the operator to alter a safety case outline.
Subregulation 553(4) states that the operator must alter the
outline as required. Subregulation 553(5) requires the operator to give the
regulator a copy of the safety case outline which has either been altered under
this regulation or altered by the operator under the operator’s initiative.
Subregulation 553(6) provides that an altered safety case outline is taken to
be the safety case outline for the MHF.
Division 3 – Management of risk
Regulation 554 – Identification of major incidents and
major incident hazards
Subregulation 554(1) requires the operator of a determined
MHF to identify all major incidents that could occur during the operation of
the facility and all major incident hazards for the facility, including major
incident hazards relating to the security of the facility.
Subregulation 554(2) states
that, in complying with subregulation 554(1), the operator must take into
account any advice and recommendations given by the relevant emergency service
organisations and any government department or agency with a regulatory role in
relation to MHFs.
Subregulation 554(3) requires
the operator to document all identified major incidents and major incident
hazards, the criteria and methods used in identifying these incidents and
hazards, and any external conditions under which the major incident hazards
might give rise to the major incidents.
Regulation 555 – Safety assessment
Subregulation 555(1) requires the operator of a determined
MHF to conduct a safety assessment in relation to operation of the MHF.
Subregulation 555(2) requires a safety assessment to involve
a comprehensive and systematic investigation and analysis of all aspects of
risks to health and safety associated with all major incidents that could occur
at the MHF. This subregulation provides examples of the factors that may be
investigated and analysed in a safety assessment, such as the nature of each
major incident and major incident hazard and the range of control measures
considered.
Subregulation 555(3) provides that in conducting a safety
assessment, the operator must consider major incidents and major incident
hazards cumulatively as well as individually, and use assessment methods
(whether quantitative or qualitative, or both), that are suitable for the major
incidents and major incident hazards being considered.
Subregulations 555(4) and (5) require the operator to
document all aspects of the safety assessment (including the methods used in
the investigation and analysis and the reasons for deciding which control
measures to implement), and keep a copy of the safety assessment at the MHF.
Regulation 556 – Control of risk
Regulation 556 requires
the operator of a determined MHF to implement control measures that eliminate
the risk of a major incident occurring, as far as is reasonably practicable. If
it is not reasonably practicable to eliminate that risk, the operator must
minimise the risk as far as is reasonably practicable. In addition, the
operator must implement risk control measures designed to minimise, in the
event of a major incident occurring, its magnitude and the severity of its
consequences to persons both on-site and off-site.
Regulation 557 – Emergency plan
Subregulation 557(1) requires
the operator of a determined MHF to prepare an emergency plan that addresses
all health and safety consequences of a major incident occurring, includes all
matters specified in Schedule 16, and provides for the testing of emergency
procedures including the frequency of testing.
Subregulation 557(2) states
that, in preparing an emergency plan, the operator must consult with the
relevant emergency service organisations and the local authority specified in
state or territory occupational health and safety legislation in relation to
the off-site health and safety consequences of a major incident.
Subregulation 557(3) requires
the operator to ensure that the emergency plan addresses any recommendations
made by the emergency service organisations consulted under subregulation
557(2) in relation to the testing of the emergency plan and the incidents or
events at the MHF which should be notified to the emergency service
organisations. Subregulation 557(4) requires the operator to consider any
other recommendation or advice given by a person consulted under subregulation
555(2).
Subregulation 557(5) requires
the operator to keep a copy of the plan at the MHF and provide a copy to the
emergency service organisations consulted under subregulation 555(2) and any
other relevant emergency service organisations. Subregulation 557(6) requires
the operator to test the emergency plan in accordance with recommendations made
by the emergency service organisations before applying for a licence for the
MHF.
Subregulation 557(7) requires
the operator to immediately implement the emergency plan if a major incident
occurs during the operation of the MHF or an event occurs that could reasonably
be expected to lead to a major incident. Subregulation 555(8) requires the
operator to notify the emergency service organisations consulted under
subregulation 557(2) of the occurrence of an incident or event referred to
under subregulation 555(3).
A note provides that this
regulation applies in addition to regulation 43.
Regulation 558 – Safety management system
Subregulation 558(1) requires the
operator of a determined MHF to establish a safety management system for the
operation of the MHF, in accordance with this regulation. Subregulation 558(2)
requires the operator to implement the safety management system so far as is
reasonably practicable.
Subregulation 558(3) states
that the safety management system must provide a comprehensive and integrated
system for the management of all aspects of risk control in relation to the
occurrence and potential occurrence of major incidents at the MHF, and be
designed to be used by the operator as the primary means of ensuring the safe
operation of the MHF.
Subregulation 558(4) requires
the safety management system to be documented and to be accessible to those
using it. This subregulation specifies that the safety management system must
contain information about:
·
the operator’s safety policy (including the operator’s broad safety
objectives);
·
the operator’s specific safety objectives;
·
the systems and procedures that will be used to achieve those
objectives; and
·
any matters specified in Schedule 17.
Regulation 559 – Review of risk management
Regulation 559 requires
the operator of a determined MHF to review and, if necessary, revise the safety
assessment conducted under regulation 555 (to ensure the adequacy of control
measures), the emergency plan and the safety management system.
Subregulation 559(2) requires
the operator to conduct a review and revision in circumstances where:
- a modification to the MHF is proposed;
- a control measure implemented under regulation
556 does not minimise the relevant risk as much as is reasonably
practicable;
- a new major hazard risk is identified;
- the results of consultation by the operator
under Part 9.5 indicate that a review is necessary;
- a health and safety representative requests a
review under subregulation 559(4); or
- the regulator requires the review.
Subregulation 559(3) states
that, in reviewing and revising the emergency plan, the operator must consult
with the emergency service organisations with which the operator consulted
under subregulation 557(2) when the plan was being prepared.
Subregulation 559(4) allows a
health and safety representative to request a review if the representative
reasonably believes that a specified circumstance referred to in subregulation
559(2) would affect or may affect the health and safety of a member of the work
group represented by the health and safety representative, and the operator has
not adequately conducted a review in response to the circumstance.
Division 4 – Safety case
Regulation 560 – Safety case must be provided
Regulation 560 requires
the operator of a determined MHF to provide the regulator with a completed
safety case for the MHF within 24 months after the facility was determined to
be an MHF.
Regulation 561 – Content
Subregulation 561(1) requires the operator to prepare the
safety case in accordance with the safety case outline prepared or altered
under this Division. The information that must be contained in a safety case
is specified in subregulation 561(2).
Subregulation 561(3) requires
the safety case to include any further information that is necessary to ensure
that all information contained in the safety case is accurate and up to date.
Subregulation 561(4) requires a safety case to demonstrate that the MHF's
safety management system would, once implemented, control risks arising from
major incidents and major incident hazards, and be adequate to control risks
associated with the occurrence and potential occurrence of major incidents.
Subregulation 561(5) requires
the operator to provide a signed statement that:
·
the information is accurate and up-to-date;
·
the operator has acquired a detailed understanding of all aspects
of risk to health and safety as a result of conducting the safety assessment;
·
the control measures to be implemented by the operator will
eliminate or minimise the risk of a major incident occurring and, in the event
of a major incident occurring, will minimise the magnitude and severity of its
health and safety consequences; and
·
all persons to be involved in the implementation of the safety
management system have the necessary knowledge and skills to enable them to
carry out their role safely and competently.
Subregulation 561(6) provides
that, if the operator is a body corporate, then the safety case must be signed
by the most senior executive officer of the body corporate who resides in the
jurisdiction in which the facility is located.
Regulation 562 – Co-ordination for multiple facilities
Subregulation 562(1) allows the
regulator to require the operators of 2 or more MHFs to co-ordinate the
preparation of the safety cases for their MHFs if the regulator is satisfied on
reasonable grounds that such co-ordination is necessary for the safe operation
and effective safety management of any or all of those MHFs.
Subregulation 562(2) provides
that if the regulator requires the co-ordinated preparation of safety cases,
then each operator must provide the other operators with information about any
circumstances at the operator's facility that could constitute a major incident
hazard in relation to any of the other MHFs.
Subregulation 562(3) provides
that in complying with this regulation, the operator would not be required to
disclose information that could expose the MHF to a major incident hazard
relating to the security of the MHF.
Regulation 563 – Review
Regulation 563 requires
the operator of a determined MHF to review and, as necessary, revise the MHF's
safety case after any review is conducted under regulation 559.
Part 9.4 – Licensed major hazard
facilities – risk management
A note provides that this Part
applies to an MHF that is licensed under Part 9.7
Regulation 564 – Identification of major incidents and
major incident hazards
Subregulation 564(1) requires the operator of a licensed MHF
to identify all major incidents that could occur during the operation of the
MHF, and all major incident hazards for the MHF, including major incident
hazards relating to the security of the MHF.
Subregulation 564(2) provides
that, in complying with subregulation 564(1), the operator must consider any
advice and recommendations given by the relevant emergency service
organisations and any government department or agency with a regulatory role in
relation to MHFs.
Subregulation 564(3) requires
the operator to document:
·
all identified major incidents and major incident hazards;
·
the criteria and methods used in identifying the major incidents
and major incident hazards; and
·
any external conditions under which the major incident hazards
might give rise to the major incidents.
Subregulation 564(4) provides
that all major incidents and major incident hazards identified and documented
under regulation 554 in relation to the MHF are taken to have been identified
and documented under this regulation.
Regulation 565 – Safety assessment
Regulation 565 requires
the operator of a licensed MHF to keep, at the facility, a copy of the safety
assessment documented under regulation 555 as revised under Part 9.3 and this
Part.
Regulation 566 – Control of risk
Regulation 566 requires
the operator of a licensed MHF to implement risk control measures that
eliminate, as far as is reasonably practicable, the risk of a major incident
occurring or, if it is not reasonably practicable to eliminate that risk, to
minimise that risk. In addition, the operator of a licensed MHF must implement
risk control measures designed to minimise, in the event of a major incident
occurring, its magnitude and the severity of its consequences to persons both
on-site and off-site.
Regulation 567 – Emergency plan
Subregulation 567(1) requires the
operator of a licensed MHF to keep, at the facility, a copy of the MHF's
emergency plan prepared under regulation 557 as revised under Part 9.3 and this
Part.
Subregulation 567(2) requires
the operator to test the emergency plan in accordance with the recommendations
made by the emergency service organisations consulted under subregulation
557(2) when the plan being was prepared.
Subregulation 567(3) requires
the operator to immediately implement the emergency plan if a major incident
occurs during the operation of the MHF or an event occurs that could reasonably
be expected to lead to a major incident.
Subregulation 567(4) requires
the operator to notify the emergency service organisations consulted under
subregulation 557(2) of the occurrence of an incident or event referred to in
subregulation 557(3) as soon as possible after the incident or event.
Regulation 568 – Safety management system
Subregulation 568(1) requires
the operator of a licensed MHF to implement the MHF's safety management system
established under regulation 558 as revised under Part 9.3 and this Part.
Subregulation 568(2) requires
the operator to use the safety management system as the primary means of:
- ensuring the health
and safety of workers engaged by the operator, or workers whose activities
are influenced or directed by the operator, while the workers are at work
during the operation of the MHF; and
- ensuring the health
and safety of other persons is not put at risk from work carried out as
part of the operation of the MHF.
A note provides that the
operator of a licensed MHF is required to inform the regulator about any change
in relation to certain information about the licence under regulation 588.
Regulation 569 – Review of risk management
Subregulation 569(1) requires the
operator of a licensed MHF to review and, if necessary, revise the safety
assessment (to ensure the adequacy of control measures), the emergency plan and
the safety management system.
Subregulation 569(2) provides
that the operator must conduct a review and revision in the following
circumstances:
·
a modification to the MHF is proposed;
·
a control measure implemented under regulation 566 does not
minimise the relevant risk so far as is reasonably practicable;
·
a new major hazard risk is identified;
·
the results of consultation by the operator under Part 9.5
indicate that a review is necessary;
·
a health and safety representative requests a review under
subregulation 569(5);
·
the regulator requires the review; or
·
at least once every 5 years.
Subregulation 569(3) requires
the operator to comply with the requirements set out in subregulations 555(2)
to (4) when conducting the review and revision of the safety assessment.
Subregulation 569(4) provides
that, in reviewing and revising the emergency plan, the operator must consult
with the emergency service organisations with which the operator consulted
under subregulation 557(2) when the plan was being prepared.
Subregulation 569(5) allows the
health and safety representative to request a review if the representative
reasonably believes that the specified circumstances referred to in
subregulation 569(2) affect or may affect the health and safety of a member of
the work group represented by the health and safety representative, and the
operator has not adequately conducted a review in response to the circumstance.
Regulation 570 – Safety case – review
Regulation
570 requires the operator of a licensed MHF to review and, if
necessary, revise the safety case after any review is conducted under
regulation 569. Note 1 provides that the operator of a licensed MHF is
required to tell the regulator about any change in relation to certain
information about the licence under regulation 588.
Regulation 571 – Information for visitors
Regulation
571 requires the operator of a licensed MHF to ensure that a person who
enters the MHF, other than a worker, is informed about hazards at the MHF that
may affect the person, as soon as possible. This regulation also provides that
the person must be instructed in safety precautions, as well as the actions the
person should take if the emergency plan is implemented while the person is
on-site.
Regulation 572 – Information for local community and local
authority – general
Subregulation 572(1) sets out
the information that the operator of a licensed MHF must provide to the
community and the local authority. The kind of information that must be
provided includes the method by which the local community will be notified of a
major incident occurring and the actions that members of the local community
should take in such circumstances. The local authority is defined in
regulation 5 to mean the local authority for the area in which the facility and
the surrounding area are located.
Subregulation 572(2) requires
the information to be readily accessible and understandable to persons who are
not familiar with the operation of the MHF, reviewed and revised if any
modification is made to the MHF, and sent out in writing to any community or
public library serving the local community.
Subregulation 572(3), provides
that in complying with subregulation 572(1), the operator is not required to
disclose information that may expose the MHF to a major incident hazard in
relation to the security of the MHF.
Under sections 12C and 12D of
the WHS Act, the operator would not be required to disclose information that
could jeopardise Australia’s defence or national security.
Subregulation 572(4) provides
that if the operator of a licensed MHF receives a written request from a person
who reasonably believes that the occurrence of a major incident at the MHF may
adversely affect his or her health or safety, then the operator must provide
this person with a copy of the information provided to the local community
under this regulation.
Regulation 573 – Information for local community – major
incident
Regulation
573 provides that if a major incident occurs, the operator of an MHF
must, as soon as possible, take all reasonable steps to provide information
about the major incident to the local community (if a member of the local
community was affected by the major incident), the local authority, and any
government department or agency with a regulatory role in relation to MHFs.
Subregulation 573(1) sets out
the information that must be provided. An example of the kind of information
that must be provided is a description of the actions the operator has taken or
proposes to take to prevent the major incident from taking place again.
Under sections 12C and 12D of
the WHS Act, the operator would not be required to disclose information that
could jeopardise Australia’s defence or national security.
Part 9.5 – Consultation and Workers'
Safety role
Regulation 574 – Safety role for workers
Subregulation 574(1) requires the
operator of a determined MHF to implement, within the timeframe specified in
the safety case outline, a safety role for the workers at the MHF to enable
them to identify major incidents and major incident hazards, consider adequate
control measures and conduct a review of risk management.
Subregulation 574(2) requires
the operator of a licensed MHF to implement a safety role for workers at the
facility so that they can contribute to a review of risk management under
regulation 569.
Regulation 575 – Operator of major hazard facility must
consult with workers
Paragraph 49(f) of the WHS Act requires a PCBU to
consult with workers in relation to health and safety matters when carrying out
activities prescribed by the regulations. Regulation 575 specifies the
activities mentioned in paragraph 49(f) of the WHS Act and requires
the operator of a determined or licensed MHF to consult with workers at the MHF
in relation to these activities. Examples of circumstances where the operator
must consult with workers include the testing and implementation of the MHF’s
emergency plan and the implementation of the workers’ safety role under
regulation 574.
Subregulation 575(1) imposes the duty to consult with
workers at a determined MHF, whereas subregulation 575(2) imposes the duty to
consult with workers at a licensed MHF.
Part 9.6 – Duties of Workers at Licensed
Major Hazard Facilities
Regulation 576 – Duties
Subregulation 576(1) sets out the duties of a worker at a
licensed major hazard. The kinds of duties specified in this subregulation
include the duty to comply with any procedure in the emergency plan and the
duty to immediately inform the operator if the worker thinks a particular
circumstance could cause a major incident.
Subregulation 576(2) provides
that a worker does not have to comply with subregulation 576(1) if it would
risk the health or safety of the worker, another worker or another person.
Part 9.7 – Licensing of major hazard
facilities
Note: Subregulation 756(5) provides that the duties imposed under
Part 9.7 to make an application do not apply until the latter of 2 years after
the facility was classified as an MHF under Division 9.2 of the OHS
Regulations, or January 2012. Regulation 757 provides for the preservation of
existing MHF licences under the OHS Regulations.
Division 1 – Licensing process
Regulation 577 – Who may apply for a licence
Regulation
577 provides that only an operator of a determined MHF who is taken to
be a suitable operator under regulation 543 may apply for an MHF licence for
that facility.
Regulation 578 – Application for major hazard facility
licence
Regulation 578 sets
out the information required in an application for an MHF licence.
Regulation 579 – Additional information
Regulation
579 enables the regulator to request additional information from the
operator if the application for an MHF licence does not contain enough
information to enable the regulator to make a decision about whether or not to
grant a licence.
Subregulation 579(3) provides
that if the operator does not provide the additional information by the date
specified, the application is to be taken to have been withdrawn.
Subregulation 579(4) provides
that if the additional information requested by the regulator is national security
information, then the operator of the facility complies with this regulation by
giving the regulator a summary of that information in a form approved by the
regulator. Subregulation 579(6) clarifies that ‘national security information’
means information which, if disclosed, is likely to prejudice Australia’s
national security.
Regulation 580 – Decision on application
Subregulations 580(1) and (2) require
the regulator to grant an MHF licence if it is satisfied that the application
and safety case for the facility have been correctly prepared, the operator is
able to operate the MHF safely and competently, and the operator is able to
comply with any conditions that applies to the licence.
Subregulation 580(3) allows the
regulator to refuse to grant an MHF licence if it becomes aware of
circumstances in which the operator would not be a suitable person to exercise
management or control over the MHF.
Subregulation 580(4) requires
the regulator to refuse to grant an MHF licence if it is satisfied that the
operator has given false or misleading information in the application or failed
to give any required information.
Subregulation 580(5) requires
the regulator to notify the operator within 14 days after making decision to
grant the licence. Subregulation 580(6) provides that if the regulator does
not make a decision within 6 months after receiving the application or the
additional information requested under regulation 579, then the regulator is
taken to have refused to grant the licence.
A note provides that a refusal
to grant a licence under this regulation is a reviewable decision under
regulation 676.
Regulation 581 – Matters to be taken into account
Regulation 581
outlines the relevant matters that the regulator must take into account when
considering whether or not to refuse an MHF licence under subregulation 580(3).
Such matters include whether the operator has been convicted or found guilty of
an offence under legislation dealing with occupational health and safety, and
the details of an equivalent licence held by the operator under corresponding
WHS law.
Regulation 582 – When decision is to be made
Regulation
582 requires the regulator to make a decision in relation to an
application for an MHF licence within 6 months after receiving the application
or the additional information requested under regulation 579.
Regulation 583 – Refusal to grant major hazard facility
licence – process
Regulation 583
provides that if the regulator proposes to refuse to grant an MHF licence, it
must inform the operator of the reasons for the proposed refusal and advise
that the operator may make a submission to the regulator in relation to the
proposed refusal. In the event that the operator makes a submission in
response to the regulator’s decision, the regulator must consider the
submission, decide whether to grant or refuse the licence and provide written
notice of the decision and reasons for the decision within 14 days of making
the decision.
Regulation 584 – Conditions of licence
Regulation
584 allows the regulator to impose any conditions on an MHF which it
considers appropriate. Subregulation 584(2) provides examples of the types of
conditions that the regulator may impose, such as the implementation of
additional control measures and the provision of additional information,
training and instruction to specified persons.
Note 1 requires a person to
comply with the conditions of a licence under section 45 of the WHS Act.
Note 2 provides that a decision
to impose a condition on a licence is a reviewable decision under regulation
676.
Regulation 585 – Duration of licence
Regulation
585 provides that an MHF licence takes effect on the day it is granted
and, unless cancelled earlier, expires on the day determined by the regulator.
This regulation specifies that duration of the licence should not be more than
5 years after the day the licence was granted.
Regulation 586 – Licence document
Subregulation 586(1) requires the regulator to give the
operator a licence document if it grants an MHF licence. Subregulation 586(2)
specifies the information that must be contained in the licence document.
Regulation 587 – Licence document to be available
Regulation
587 requires the operator of the MHF to keep the licence document
available for inspection under the WHS Act, unless the licence document has
been returned to the regulator (under regulation 593) or the operator has not
received a replacement licence (under regulation 594).
Division 2 – Amendment of licence and licence document
Regulation 588 – Changes to information
Regulation
588 requires the operator of a licensed MHF to give the regulator
written notice of changes to information about the MHF, particularly any
information given by the operator in relation to the licence. This regulation
requires the notice to be provided within 14 days after the operator becomes
aware of the change. An example of a change that would require written notice
to be provided is a change to the content of the safety case, resulting from
the identification of a new major incident hazard and a modification of the
emergency plan.
Regulation 589 – Amendment imposed by regulator
Regulation
589 allows the regulator, on its own initiative, to amend an MHF licence,
by varying or deleting a condition or imposing a new condition on the licence.
Subregulation 589(2) requires
the regulator to give written notice outlining the proposed amendment and the
reasons for it, and advising that the operator may make a submission to the
regulator in relation to the proposed amendment.
Subregulation 589(3) provides
that, in the event that the operator makes a submission in response to the
regulator’s decision, the regulator must consider the submission, decide
whether to make the proposed amendment and provide written notice of the
decision and reasons for the decision within 14 days of making the decision.
A note provides that a decision
to amend a licence is a reviewable decision under regulation 676.
Regulation 590 – Amendment on application by operator
Regulation 590
provides that, on application by the operator of a licensed MHF, the regulator
may amend the MHF licence. This regulation sets out the procedure for the
regulator to either amend or refuse to amend the licence.
A note provides that a refusal
to amend a licence, or a decision to make a different amendment, is a
reviewable decision under regulation 676.
Regulation 591 – Minor corrections to major hazard
facility licence
Regulation 591 allows
the regulator to make minor amendments to an MHF licence, such as a correction
to an obvious error, a change of address or a change which does not impose a
significant burden on the operator.
Regulation 592 – Regulator to give amended licence
document to operator
Regulation
592 provides that, if the regulator amends an MHF licence and decides
that the licence document requires amendment, then the regulator must give the
operator an amended licence document within 14 days after making this decision.
Regulation 593 – Operator to return licence
Regulation
593 provides that if an MHF licence is amended, the operator of the
licensed MHF must return the licence document to the regulator when it receives
a written request from the regulator and within the time specified in the
request.
Regulation 594 – Replacement licence document
Subregulation 594(1) requires the operator of a licensed
MHF to give written notice to regulator as soon as possible after licence
document is lost, stolen or destroyed.
Subregulations 594(2) to (4) allow the operator to apply for
a replacement licence document and set out the procedure for making this
application.
Subregulation 594(5) requires the regulator to issue a
replacement licence document if satisfied that the original document was lost,
stolen or destroyed.
Subregulation 594(6) provides that if the regulator refuses
to issue a replacement licence document, it must give the operator written
notice of this decision and the reasons for the decision, within 14 days after
making the decision.
A note provides that a refusal
to issue a replacement licence document is a reviewable decision under
regulation 676.
Division 3 – Renewal of major hazard facility licence
Regulation 595 – Regulator may renew licence
Regulation
595 allows the regulator to renew an MHF licence if the operator makes
an application for renewal.
Regulation 596 – Application for renewal
Regulation
596 requires an application for renewal of an MHF licence to include a
copy of the safety case for the MHF, include the relevant fee and be made
within 6 months before the licence is due to expire.
Regulation 597 – Licence continues in force until
application is decided
Regulation
597 provides that, if the operator of a licensed MHF applies for the
renewal of an MHF licence, the licence is taken to continue in force from the
day it is due to expire until the operator is given notice of the decision
about the renewal application.
Regulation 598 – Provisions relating to renewal of licence
Regulation 598 provides
that regulations 579, 580 (except subregulation 6), 581, 583, 584 and 585
relating to an application for a licence also apply to this Division for an
application to renew a licence.
A note provides that a refusal
to renew a licence is a reviewable decision under regulation 676.
Regulation 599 – Status of major hazard facility licence
during review
Subregulation 599(1) provides that this
regulation applies if the regulator gives the operator written notice of its
decision to refuse to renew the licence.
Subregulation 599(2) provides that if
the operator does not apply for an external review, then the licence continues
to have effect until the expiry of the licence or the end of the period for
applying for an external review (whichever occurs last).
Subregulation 599(3) provides
that if the operator applies for an external review, then the licence continues
to have effect until the operator withdraws the application for review or the
AAT makes a decision on the review (whichever occurs first).
Subregulation 599(4) provides
that the licence continues to have effect under this regulation even if its
expiry date passes.
Division 4 – Transfer of major hazard facility licence
Regulation 600 – Transfer of major hazard facility licence
Subregulation 600(1) allows the
regulator, on the application of the operator of an MHF, to transfer an MHF
licence to another person who will become the operator of the MHF. The
regulator must be satisfied that the proposed operator would achieve an
equivalent or better standard of health and safety in the operation of the
facility to what the current operator has achieved.
Subregulations 600(2) and (3)
set out the process by which the regulator can transfer the licence.
Note 1 provides that a decision
to refuse to transfer a licence is a reviewable decision under regulation 676.
Division 5 – Suspension and cancellation of major hazard
facility licence
Regulation 601 – Cancellation of major hazard facility
licence – on operator's application
Subregulation 601(1) allows the operator of a licensed
MHF to apply to the regulator to cancel the licence.
Subregulations 601(2) and (3) set out the process by which
the regulator can transfer the licence. Subregulation 601(4) requires the
regulator to cancel an MHF licence if the quantity of Schedule 15 chemicals
present or likely to be present at the facility does not exceed their threshold
quantity, and it is unlikely that a major incident will occur at the facility.
Note 1 provides that a decision
to refuse to cancel a licence is a reviewable decision under regulation 676.
Regulation 602 – Suspension or cancellation of licence –
on regulator's initiative
Regulation
602 allows the regulator, on its own initiative, to suspend or cancel an
MHF licence on the grounds set out in subregulation 601(1).
Subregulation 602(2) provides
that if the regulator suspends or cancels an MHF licence, then the regulator
may disqualify the operator from applying for a further MHF licence.
A note provides that a decision
to suspend or cancel a licence, or disqualify the operator from applying for a
further licence, is a reviewable decision under regulation 676.
Regulation 603 – Matters to be taken into account
Regulation 603
outlines the matters that the regulator must take into account when considering
whether or not to suspend or cancel an MHF licence under regulation 602. Such
matters include whether the operator has been convicted or found guilty of an
offence under legislation dealing with occupational health and safety, and the
details of an equivalent licence held by the operator under corresponding WHS
law.
Regulation 604 – Notice to and submissions by operator
Regulation 604
provides that before suspending or cancelling an MHF licence, the regulator
must give the operator a written notice of the proposed suspension or
cancellation, and any proposed disqualification. This regulation specifies
that the notice must outline the relevant allegations, facts and circumstances
known to the regulator, and advise that the operator may make a submission to
the regulator in relation to the proposed suspension, cancellation or
disqualification.
Regulation 605 – Notice of decision
Regulation 605
requires the regulator to give the operator of an MHF written notice of a
decision to suspend or cancel the MHF licence under regulation 602 within 14
days after making the decision. This regulation sets out the information that
must be contained in the notice of decision.
Regulation 606 – Immediate suspension
Regulation 606 allows
the regulator to suspend an MHF licence on a ground referred to in regulation
602, without giving notice under regulation 604. For an immediate suspension
of an MHF licence, the regulator must be satisfied that a person may be exposed
to an imminent serious risk to his or her health or safety if the MHF licence
is not suspended, or a corresponding regulator has suspended an equivalent
licence held by the operator under an equivalent regulation in the corresponding
jurisdiction.
Subregulations 606(2) and (3) set out the process by which
the regulator must inform the operator of a decision to suspend the MHF
licence.
Regulation 607 – Operator to return licence document
Regulation
607 requires an operator, on receiving a notice under regulation 605, to
return the licence document to the regulator in accordance with the notice.
Regulation 608 – Regulator to return licence document
after suspension
Regulation
608 requires the regulator to return the licence document to the
operator within 14 days after the suspension ends.
This Chapter has intentionally been left blank.
Chapter 11 sets out the requirements for the processes of
internal review and external review of reviewable decisions. It outlines how
the regulator may exempt a person or a class of persons from complying with a
provision of the Regulations. It also prescribes the list of serious illnesses
requiring notification under section 36 of the WHS Act and the requirements for
inspectors’ identity cards for the purpose of section 157 of the WHS Act.
Defined terms in Chapter 1 which are relevant to this
Chapter include internal review and external review.
Part 11.1 – Review of Decisions under
these Regulations
Division 1 – Reviewable decisions
Regulation 676 – Which decisions under these Regulations
are reviewable
Regulation 676 sets
out all the decisions made under these Regulations that are reviewable and who
is eligible to apply for a review of each reviewable decision.
Division 2 – Internal review
Regulation 677 – Application
Regulation 677
provides that the internal review process does not apply to a reviewable
decision made under Chapter 9 (Major hazard facilities) or under Part 11.2
(Exemptions) of these Regulations. The application process for a major hazard
facility licence or an exemption is lengthy and involves close communication
between the applicant and the regulator. Internal review would further delay
resolution of the matter and would therefore not be suitable. Decisions under
Chapter 9 and Part 11.2 are subject to external review by the AAT.
Regulation 678 – Application for internal review
Regulation 678 sets
out the time limits in which an eligible person may apply for an internal
review of a reviewable decision. The application must be made in the manner
and form required by the regulator.
Regulation 679 – Internal reviewer
Regulation 679 allows
the regulator to appoint a person or a body to conduct internal reviews. It
provides that the person who made the reviewable decision cannot conduct an
internal review in relation to that decision.
Regulation 680 – Decision of internal reviewer
Regulation 680 provides
that the internal reviewer may confirm or vary the reviewable decision or set
aside the original decision and substitute another decision.
Regulation 680 also specifies the timeframes and
processes the internal reviewer must follow when reviewing a reviewable
decision. This includes reviewing the reviewable decision and making a
decision as soon as practicable and within 14 days after the application is
received.
The internal reviewer may ask the applicant to provide
additional information. The applicant must provide the information within the
time specified by the internal reviewer (which must not be less than 7 days).
Once the additional information is received, the internal reviewer must make a
decision as soon as practicable and within 14 days. If the additional
information is not provided by the applicant, the reviewable decision is taken
to have been confirmed at the end of the time period.
If the reviewable decision is not varied or set aside within
the 14 day time period, the reviewable decision is taken to have been confirmed
by the internal reviewer.
Regulation 681 – Decision on internal review
Regulation 681
provides that the internal reviewer must give written notice of the decision on
the internal review and the reasons for the decision to the applicant within 14
days of making the decision.
Regulation 682 – Internal review – reviewable decision
continues
Regulation 682 clarifies
that an application for an internal review does not affect the operation of the
reviewable decision or prevent the taking of any lawful action to implement or
enforce the decision, subject to any contrary provision.
Division 3 – External review
Regulation 683 – Application for external review
Regulation 683
provides that an eligible person may apply for an external review of a
reviewable decision made by the regulator under Chapter 9 (Major Hazard
Facilities) or under Part 11.2 (Exemptions) of the Regulations, or a decision
made in relation to an internal review.
Part 11.2 – Exemptions
This Part deals with granting exemptions and the
requirements for applying for an exemption.
Division 1 – General
Regulation 684 – General power to grant exemptions
Regulation 685 – Matters to be considered when granting
exemptions
Regulation 684
provides that the regulator may exempt a person or class of persons from
compliance with any of these Regulations, either on the regulator’s own
initiative or on the written application of one or more persons. The exemption
may be subject to certain limitations set out in this Part.
While this regulation may raise queries about the exercise
of executive power because it appears to be a ‘Henry VIII’ clause, it does not
operate in the context of that description. Rather, it merely allows for some
of the technical requirements imposed in the Regulations to be set aside where
the regulator is satisfied that there will not be an adverse outcome for work
health and safety.
Regulation 685 sets
out certain matters that the regulator must have regard to in deciding whether
or not to grant an exemption under regulation 684. These include whether the
granting of the exemption will result in a standard of health and safety at the
relevant workplace that is at least equivalent to the standard that would be
achieved by compliance with the relevant provision/s.
This power vested in the regulator cannot be exercised to
override a requirement in the WHS Act itself, but merely regulatory
obligations. Further, the power is subject to the overriding responsibilities
of the regulator under the WHS Act. Section 152 of the WHS Act sets out the
functions of the regulator. These include:
b)
to monitor and enforce compliance with this Act.
It would be inconsistent with the functions of the regulator
to provide an exemption that does not contribute to general compliance with the
WHS Act. At the same time, the exemption power allows for the detail of the
regulatory framework to be set aside in appropriate circumstances.
An exemption can be granted on the regulator’s own
initiative. This allows the regulator to take proactive action to overcome a
technical issue (and impose conditions in doing so if it sees fit) rather than
waiting for an application to be made.
The exemption-making power does not allow for exemption from
compliance with two significant risk-management areas, high risk work licences
and major hazard facility, exemptions for which are dealt with separately.
High risk work licence exemptions (regulation 687) and major hazard facilities
(regulation 688) requires the regulator to be satisfied that a relevant
equivalent standard of health and safety is achieved before the exemption can
be granted.
The making of a regulation that allows the regulator to
grant exemptions is expressly contemplated in the regulation-making power granted
in the WHS Act. Subsection 276(3) provides that regulations may be made to:
e) prescribe
exemptions from complying with any of the regulations on the terms and
conditions (if any) prescribed; and
f) allow the
regulator to provide exemptions from complying with any of the regulations on
the terms and conditions (if any) prescribed or, if the regulations allow, on
the terms and conditions (if any) determined by the regulator.
There are two additional protections from an abuse of
executive power, if that is a concern.
Firstly the regulations will be subject to disallowance
where the exemption exempts a class of persons (see regulation 692 (2) which
provides that “an exemption document that exempts a class of persons is a
legislative instrument”). An exemption for one person is not a legislative
instrument (subregulation 692(3)). These subregulations are intended to
clarify the application of the Legislative Instruments Act 2003 to the
regulation.
Secondly, decisions relating to conditions on exemptions are
subject to external review by the AAT, as per regulation 683.
Safe Work Australia have developed national guidance
material explaining how the exemption application and decision making process
is intended to operate and published this along with principles to guide
decision making on its website.
Division 2 – High risk work licences
Regulation 686 – High risk work licence – exemption
Regulation 686 provides
that the regulator may exempt a person or a class of persons from a requirement
to hold a high risk work licence. The exemption may be granted on the written
application of any person concerned.
A note provides that a refusal
to exempt a person from the requirement to hold a high risk work licence is a
reviewable decision under regulation 676.
Regulation 687 – High risk work licence – regulator to be
satisfied about certain matters
Regulation 687 provides
that the regulator must be satisfied about certain matters before granting an
exemption in relation to holding a high risk work licence under regulation 686.
Division 3 – Major hazard facilities
Regulation 688 – Major hazard facility – exemption
Regulation 688
provides that the regulator may exempt the operator of a major hazard facility
or proposed major hazard facility from any regulatory provision relating to
that facility. The exemption may be granted on the written application of the
operator of the major hazard facility or proposed major hazard facility.
A note provides that a refusal
to exempt an operator of a major hazard facility from compliance with any of
these Regulations, on application, is a reviewable decision under regulation
676.
Regulation 689 – Major hazard facility – regulator to be
satisfied about certain matters
Regulation 689
specifies the matters that the regulator must be satisfied about before
granting an exemption in relation to a major hazard facility or proposed major
hazard facility under regulation 688.
Division 4 – Exemption process
Regulation 690 – Application for exemption
Regulation 690
provides that an application for an exemption must be made in the manner and
form required by the regulator.
Regulation 691 – Conditions of exemption
Regulation 691 allows
the regulator to impose any conditions it considers appropriate on an exemption
granted under Part 11.2. The conditions imposed on the exemption may require
the applicant to do certain things as stated in this regulation.
A note provides that the imposing
of conditions on an exemption granted on application under Part 11.3 is a
reviewable decision under regulation 676.
Regulation 692 – Form of exemption document
Regulation 692
provides that an exemption must be in writing and lists the matters that it
must state.
Regulation 693 – Compliance with conditions of exemption
Regulation 693 specifies
that a person who is granted an exemption must comply with the conditions of
the exemption. The person must also ensure that any person under the
management or control of that person complies with the conditions of the
exemption.
Regulation 694 – Notice of decision in relation to
exemption
Regulation 694
requires the regulator to give the applicant a copy of the exemption within 14
days of making the decision to grant the exemption or, if the regulator made
the decision on its own motion, to each person to whom the exemption will
apply.
Regulation 696 – Notice of refusal of exemption
Regulation 696
requires that if the regulator refuses to grant an exemption, the regulator
must notify the applicant in writing about the refusal within 14 days after
making the decision. The notice must state the reasons for the refusal.
A note provides that a refusal
to grant an exemption under this regulation is a reviewable decision under
regulation 676.
Regulation 697 – Amendment or cancellation of exemption
Regulation 697
provides that the regulator may amend or cancel an exemption at any time.
A note provides that an
amendment or cancellation of an exemption granted on application under Part
11.2 is a reviewable decision under regulation 676.
Regulation 698 – Notice of amendment or cancellation
Regulation 698 sets
out what the regulator must do if it decides to amend or cancel an exemption.
The regulator must notify the applicant in writing about the
amendment or cancellation within 14 days after making the decision. The notice
must state the reasons for the amendment or cancellation. The amendment or
cancellation takes effect either on the giving of the notice to the applicant
or on a later date specified in the notice. A notice that affects one person
is not a legislative instrument.
If the exemption affects a class of persons, the notice is a
legislative instrument, and the amendment or cancellation takes effect in
accordance with the Legislative Instruments Act 2003.
Part 11.3 – Miscellaneous
Regulation 699 – Incident notification – prescribed
serious illnesses
Regulation 699
specifies certain conditions to be a serious illness for the purposes of
section 36 of the WHS Act.
Regulation 700 – Inspectors' identity cards
Regulation 700 lists
the matters that an identity card given by the regulator to an inspector for
the purposes of subsection 157(1) of the WHS Act must include.
Regulation 702 – Confidentiality of information –
exception relating to administration or enforcement of others laws
Regulation 702
provides that a corresponding WHS law is prescribed for subparagraph
271(3)(c)(ii) of the WHS Act.
Chapter 12 provides for the transition from the current OHS
Regulations to the new WHS laws. New or significantly modified duties, when
compared with the current OHS Regulations will be subject to a transitional
period, which will generally be 12 months. The duties to provide training to
workers in the hazards and risks associated with asbestos apply 6 months after
commencement.
This Chapter also provides for the phasing in of a duty
where an activity, such as the design of an item of plant, or a construction
project, may have started prior to commencement of the Regulations so as to
minimise any adverse impact from changes in the law mid activity.
This Chapter provides for the continued recognition of
registrations and licences granted under current OHS laws following commencement
of the new WHS laws and ‘saves’ pending applications.
Pending the development of new codes of practice, existing
parts of the current OHS Code of Practice 2008 are preserved and training
courses that are currently accredited under the OHS Act are recognised on a
transitional basis to ensure the continued availability of courses.
This Chapter also provides for the phasing in of the new
globally harmonised system for the classification and labelling of hazardous
chemicals over 5 years.
The provisions in this chapter are based on nationally
agreed transitional principles developed by Safe Work Australia to ensure a
smooth and nationally consistent transition to model WHS laws.
Part 3 – General risk and workplace management
Division 3.1 – Managing risks to health and safety
Regulation 716 – Lead in time for managing risks
Regulation 716
provides a PCBU with a transition period of 12 months to complete arrangements
to manage risks associated with remote or isolated work, including providing a
system of work that includes effective communication with a relevant worker.
Division 3.2 – General workplace management
Subdivision 4 – Emergency plans
Regulation 717 – Lead in time for emergency plan
Regulation 717
provides a PCBU with a 12 month transition period to prepare an emergency plan
for a workplace where one is not in place upon commencement of the regulations.
Part 4 – Hazardous Work
Division 4.1 – Noise
Regulation 718 – Particular provision for audiometric
testing
Regulation 718
provides for the phasing in of the duties in subregulation 58(2) and sets out
the requirements that apply instead.
Subregulation 58(2) requires a PCBU who
provides personal protective equipment to also provide audiometric testing for
the worker within 3 months of the worker commencing work and, in any event, at
least every 2 years.
Where a PCBU would be required to provide audiometric
testing for a worker under subregulation 58(2), the PCBU will have until 1
January 2013 to provide the first test to the worker. The PCBU must then
provide further testing at least every 2 years after the first test is
provided.
Subregulation 718(5) deems a contravention of subregulations
(3) or (4) to be a contravention of regulation 58.
Regulation 719 – Noise – duties of designers
Subregulation 719(1) provides that the duties imposed on a
designer of plant under regulation 59 do not apply to design activities if the
designer started or completed the design before 1 January 2012.
Regulation 59 sets out the duties of
designers, manufacturers, importers or suppliers of plant.
Subregulation 719(2) provides for the phasing in of the
duties under regulation 59. If a designer has the benefit of an exemption
because of subregulation 719(1), but has not completed the design by 1 January
2014, then the designer must comply with regulation 59.
Regulation 720 – Noise – duties of manufacturers
Regulation 720 sets
out the way that the duties placed on manufacturers in the OHS Regulations and
WHS regulations in relation to noise and plant will operate on and after
commencement.
Subregulation 720(1) provides that the duties imposed on a
manufacturer under regulation 59 do not apply in relation to the manufacture of
plant if the manufacturer started or completed any process associated with the
manufacture before 1 January 2012.
Regulation 59 sets out the duties of
designers, manufacturers, importers or suppliers of plant.
Subregulation 720(2) provides that where a process is exempt
from the operation of regulation 59 because it was started (or started and
completed) before 1 January 2012, then the duties imposed under regulation 3.04
of the OHS Regulations apply so as to avoid a regulatory gap.
Subregulation 720(3) clarifies that if a duty under the OHS
Regulations applies because of subregulation 720(2), then the OHS Act and
Regulations will apply in relation to any breach.
Subregulation 720(4) provides for the phasing in of the
duties in regulation 59. If a manufacturer has the benefit of an exemption
because of subregulation 720(2), but has not completed the manufacture by 1
January 2013, then the manufacturer must comply with regulation 59 after this
time.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to manufacturers
under the OHS Act will apply. Refer to Item 3 of Schedule 2 to the WHS
(T&C) Act for further information.
Regulation 721 – Noise – duties of importers
Subregulation 721(1) provides that the duties imposed on a
manufacturer under regulation 59 do not apply in relation to the importation of
plant if the importer started or completed any steps constituting the
importation before 1 January 2012.
Regulation 59 sets out the duties of
designers, manufacturers, importers or suppliers of plant.
Subregulation 721(2) provides for the phasing in of the
duties in regulation 59. If an importer has the benefit of an exemption
because of subregulation 721(1), but has not completed the importation activity
by 1 January 2013, then the manufacturer must comply with regulation 59.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to importers
under the OHS Act will apply. Refer to Item 4 of Schedule 2 to the WHS
(T&C) Act for further information.
Regulation 722 – Noise – duties of suppliers
Regulation 722 sets
out the way that duties placed on suppliers in the OHS Regulations and WHS
regulations in relation to noise and plant will operate on and after
commencement.
Subregulation 722(1) provides that the duties imposed on a
supplier under regulation 59 do not apply in relation to the supply of plant if
the supplier started or completed any process associated with the supply of
plant before 1 January 2012.
Regulation 59 sets out the duties of
designers, manufacturers, importers or suppliers of plant.
Subregulation 722(2) provides that where a process is exempt
from the operation of regulation 59 because it was started (or started and
completed) before 1 January 2012, then the duties imposed under regulation 3.05
of the OHS Regulations apply.
Subregulation 722(3) clarifies that if a duty under the OHS Regulations
applies because of subregulation 722(2), then the OHS Regulations will apply in
relation to any breach.
Subregulation 722(4) provides for the phasing in of the
duties in regulation 59. If a supplier has the benefit of an exemption because
of subregulation 722(2), but has not completed the supply by 1 January 2013,
then the supplier must comply with regulation 59.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to suppliers
under the OHS Act will apply. Refer to Item 5 of Schedule 2 to the WHS
(T&C) Act for further information.
Division 4.2 – Hazardous manual tasks
Regulation 723 – Hazardous manual tasks – duties of
designers
Subregulation 723(1) provides that the duties imposed on a
designer of plant under regulation 61 do not apply to design activities if the
designer started or completed the design before 1 January 2012.
Regulation 61 provides that a designer of
plant or structure must eliminate or, if it is not reasonably practicable to do
so, minimise the need for a hazardous manual task to be carried out in relation
to the plant or structure; and imposes duties on the designer to provide specified
information about the features of the plant or structure.
Subregulation 723(2) provides for the phasing in of the
duties under regulation 61. If a designer has the benefit of an exemption
because of subregulation 723(1), but has not completed the design by 1 January
2014, then the designer must comply with regulation 61.
Regulation 724 – Hazardous manual tasks – duties of
manufacturers
Subregulation 724(1) provides that the duties imposed on a
manufacturer under regulation 61 do not apply in relation to the manufacture of
plant if the manufacturer started or completed any process associated with the
manufacture before 1 January 2012.
Regulation 61 provides that a manufacturer
of plant or structure must eliminate or, if it is not reasonably practicable to
do so, minimise the need for a hazardous manual task to be carried out in
relation to the plant or structure; and requires the manufacturer to provide
specified information about the features of the plant or structure.
Subregulation 724(2) provides for the phasing in of the
duties in regulation 61. If a manufacturer has the benefit of an exemption
because of subregulation 724(2), but has not completed the manufacture by 1
January 2013, then the manufacturer must comply with regulation 61.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to manufacturers
under the OHS Act will apply. Refer to Item 3 of Schedule 2 to the WHS
(T&C) Act for further information.
Regulation 725 – Hazardous manual tasks – duties of
importers
Regulation 726 – Hazardous manual tasks – duties of
suppliers
Regulations 725 and 726 each provide that the duties imposed
on an importer and the duties placed on a supplier under regulation 61 do not
apply until 1 January 2013.
Regulation 61 provides that an importer or
supplier of plant or structure must take reasonable steps to obtain from the
designer and manufacturer information about the features of the plant or
structure.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to importers and
suppliers under the OHS Act will apply. Refer to Item 4 and Item 5 of Schedule
2 to the WHS (T&C) Act for further information.
Division 4.5 – High risk work
Regulation 727 – Licence to carry out high risk work
Subregulation 727(1) provides that regulation 81, which
provides a person must not carry out high risk work unless they hold the
relevant high risk work licence, does not apply to certain persons until 1 July
2014. The persons listed are members of the Defence Force, a person who has
been exempted by a corresponding regulator, and a person otherwise exempt by a
law of a corresponding jurisdiction.
Regulation 2.03 of the OHS Regulations currently preserve
the operation of State and Territory laws which relate to licensing for a class
of high risk work. Employees need to comply with the relevant State and
Territory OHS licensing regimes by obtaining a licence to perform high risk
work from the relevant State and Territory Regulator, with the exception of
members of the Defence Force.
A member of the Defence Force is not bound by any law of a
State or Territory that would require the member to have permission (e.g. a
licence) to do anything in the course of his or her duties as a member of the
Defence Force by virtue of section 123 of the Defence Act 1903. This
regulation would maintain that position for a transitional period following
commencement of the new laws.
Members of the Defence Force will continue to be exempt from
the duty to hold a high risk work licence until 1 July 2014.
To ensure consistent application of the Regulations where
Commonwealth and State WHS laws may apply concurrently, a person who is exempt
from the requirement to hold a licence to perform a class of high risk work
under a corresponding state or territory law, will also be exempt from the
requirement to hold a licence under these regulations.
Subregulation 727(2) provides that item 23 of Schedule 3 and
item 23 of Schedule 4 do not apply until 1 January 2013. The effect of this
subregulation is to delay the requirement to hold a reach stacker licence. This
class of licence is new.
Division 4.6 – Demolition work
Regulation 728 – Notice of demolition work
Regulation 728
provides that the duties imposed on a person under regulation 142 do not apply
until 1 January 2013.
Regulation 142 requires a PCBU, who
proposes to undertake specified types of demolition work, to give the regulator
written notice of the demolition work at least 5 days prior to the commencement
of the work.
Division 4.8 – Diving work
Regulation 729 – Duties
Regulation 729
provides that the duties imposed on a person under Part 4.8 do not apply until
1 January 2013.
Part 5 – Plant and structures
Division 5.1 – General duties for plant and structures
Subdivision 2 – Duties of persons conducting businesses or
undertakings that design plant
Regulation 730 – Hazard identified in design during
manufacture
Regulation 730
provides that the duties imposed on a designer of plant under regulation 188
only apply in relation to the plant if the manufacturer of the plant advises
the designer of the plant, on or after 1 January 2012, that there is a hazard
in the design of the plant.
Regulation 188 provides that, if a
manufacturer of plant advises the designer of the plant that there is a hazard
in the design for which there is no control measure, the designer must revise
the information originally supplied to the manufacturer to eliminate or
minimise the risk, or notify the manufacturer in writing if the designer
considers that it is unnecessary to revise the information.
Regulation 731 – Other duties
Subregulation 731(1) provides that the duties imposed on a
designer of plant under regulations 189 to 192 do not apply in relation to any
plant if the designer started or completed designing the plant before
1 January 2012.
Regulations 189 to 192 outline the duties
of a designer of plant in relation to guarding, operational controls, emergency
stop controls and warning devices.
Subregulation 731(2) provides for the phasing in of the
duties in regulations 189 to 192. If a designer has the benefit of an
exemption because of subregulation 731(1) but has not completed the design by 1
January 2014 then the designer must comply with regulations 189 to 192.
Subdivision 3 – Duties of persons
conducting businesses or undertakings that manufacture plant
Regulation 732 – Control of risk
Regulation 732
provides that the duties imposed on a manufacturer of plant under regulation
193 only apply in relation to any process associated with the manufacture of
the plant that is undertaken on or after 1 January 2012.
Regulation 193 requires a manufacturer of
plant to ensure that the plant is manufactured, inspected and tested, if
required, in accordance with the information provided by the designer of the
plant under the WHS Act and these Regulations. This regulation also sets out
the steps a manufacturer must take when a hazard is identified in the design of
the plant during the manufacturing process for which the designer has not
provided a control measure.
Regulation 733 – Other duties
Subregulation 733(1) provides that the duties imposed on a
manufacturer of plant under regulations 194 and 195 do not apply in relation to
any plant if the manufacturer started or completed any process associated with
the manufacture of the plant before 1 January 2012.
Regulation 194 imposes duties on a
manufacturer of plant where guarding is used to control risk.
Regulation 195 requires a manufacturer of
plant to take all reasonable steps to obtain specified information from the
designer of plant and to pass information on.
Subregulation 733(2) provides for the phasing in of the
duties in regulations 194 and 195. If a manufacturer has the benefit of an
exemption because of subregulation 733(1), but has not completed the
manufacture by 1 January 2013, then the manufacturer must comply with
regulations 194 and 195.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to manufacturers
under the OHS Act will apply. Refer to Item 3 of the WHS (T&C) Act for
further information.
Subdivision 4 – Duties of persons
conducting businesses or undertakings that import plant
Regulation 734 – Duties
Subregulation 734(1) provides that the duties imposed on an
importer under regulations 196 and 197 do not apply in relation to any plant if
the importer started or completed any steps constituting the importation of the
plant before 1 January 2012.
Regulation 196 requires an importer of
plant to take all reasonable steps to obtain specified information from a
manufacturer and designer of plant, and to give that information to any person
to whom the importer supplies the plant.
Regulation 197 requires an importer of plant
to ensure that the plant is inspected and tested, having regard to the
information provided. This regulation also provides that, if any hazards are
identified, the importer must not supply the plant until the risks have been
eliminated. If it is not reasonably practicable to eliminate the risks, the
importer must advise the person to whom the plant is supplied of the risks and
take all reasonable steps to ensure that the designer and manufacturer are
consulted regarding any alteration made to the plant to control the risk.
Subregulation 734(2) provides for the phasing in of the
duties in regulations 196 and 197. If an importer has the benefit of an
exemption because of subregulation 734(1), but has not completed the importing
by 1 January 2013, then the importer must comply with regulations 196 and 197.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to importers
under the OHS Act will apply. Refer to Item 4 of the WHS (T&C) Act for
further information.
Subdivision 5 – Duties of persons
conducting businesses or undertakings that supply plant
Regulation 735 – Duties
Subregulation 735(1) provides that the duties imposed on a
supplier under regulations 198 to 200 do not apply in relation to any plant if
the supplier started or completed any process associated with the supply of the
plant before 1 January 2012.
Regulation 198 requires a supplier of plant
to take all reasonable steps to obtain specified information and to ensure that
the person to whom the plant is supplied is given the information when the
plant is supplied.
Regulation 199 requires a supplier of
second-hand plant to ensure, as far as reasonably practicable, that any faults
in the plant are identified and to provide information about the condition of
the plant.
Regulation 200 requires a supplier of plant
to be used for scrap or spare parts to inform the person to whom the plant is
supplied that the plant is scrap and is not to be used as plant.
Subregulation 735(2) provides for the phasing in of the
duties in regulations 198 to 200. If a supplier has the benefit of an
exemption because of subregulation 735(1), but has not completed the supply by
1 January 2013, then the supplier must comply with regulations 198 to 200.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to suppliers
under the OHS Act will apply. Refer to Item 5 of the WHS (T&C) Act for
further information.
Subdivision 6 – Duties of persons
conducting businesses or undertakings that install, construct or commission
plant or structures
Regulation 736 – Duties
Regulation 736
provides that the duties imposed on a PCBU that installs, constructs or
commissions plant that is to be used, or could reasonably be expected to be
used, as, or at, a workplace under regulations 201 and 202 do not apply in
relation to any plant or structure if the person started or completed any
process associated with the installation, construction or commissioning of the
plant or structure before 1 January 2012.
Regulations 201 and 202 require a PCBU that
installs, constructs or commissions plant or a structure to have regard to the
information provided by the designer or manufacturer under the WHS Act and
these Regulations, or instructions provided by a competent person, to the
extent that these instructions relate to health and safety.
Note: the WHS (T&C) Act provides that where a process is
exempt from the operation of the WHS Act because it was started (or started and
completed) before commencement, the relevant duties that apply to OHS
installers under the OHS Act will apply. Refer to Item 6 of the WHS (T&C)
Act for further information.
Regulation 737 – Plant used in
connection with tree lopping — lead in time for application of regulation
221
Regulation 737 provides
that duties imposed under Regulation 221 do not apply until a code of practice
for the use of plant in connection with tree lopping takes effect.
Regulation 221 includes an exception to the requirements in
regulation 220 in relation to work boxes used to lift or suspend people where
the box is used in connection with tree lopping. Further detail in relation to
safe carrying out tree lopping will be included in a Code of Practice on Safe
Access in Tree Trimming and Arboriculture. Public consultation on a draft Code
ended on 16 December 2011 and it is anticipated that the Code of
Practice will be finalised in the first half of 2013.
Division 5.2 – Additional duties
relating to registered plant and plant designs
Subdivision 2 – Duties of persons
conducting businesses or undertakings who design plant
Regulation 738 – Duties
Subregulation 738(1) provides that the duties imposed on a
designer of plant under regulations 228 and 229 do not apply in relation to any
plant if the designer started or completed designing the plant before
1 January 2012.
Regulation 228 states that, if the design
of plant requires registration under Part 5.3, the designer of the plant must
make a record containing the method used to determine the control measures for
the plant, and the control measures resulting from that determination, and
copies of the information listed in regulation 228.
Regulation 229 states that, if the design
of the plant is required to be registered under Part 5.3, the designer of the
plant must record any published technical standard used to design the plant, or
if none was used, any engineering principles used to design the plant.
Subregulation 738(2) provides for the phasing in of the
duties in regulations 228 and 229. If a designer has the benefit of an
exemption because of subregulation 738(1), but has not completed the design by
1 January 2014, then the designer must comply with regulations 228 and 229.
Division 5.3 – Registration of plant
designs and items of plant
Regulation 739 – Registration of
design of concrete placement units and prefabricated formwork
Subregulation 739(1) provides that the designs of concrete
placement units with delivery booms and prefabricated formwork are not required
to be registered under Part 5.3 if the designer started or completed designing
the item before 1 January 2012.
Subregulation 739(2) provides for the phasing in of the
duties under Part 5.3 in relation to the items of plant mentioned in
subregulation 739(1). If the designer has the benefit of an exemption because
of subregulation 739(1), but has not completed the design by 1 January 2014,
then the manufacturer must comply with the requirements of Part 5.3 in relation
to the duties of a designer.
Regulation 740 – Registration of design of lifts
Regulation 740
provides that the duties imposed on a person under Part 5.3 do not apply in
relation to lifts (including escalators and moving walkways) until
1 January 2013.
Regulation 741 – Existing
registrations of plant and plant designs
Regulation 741
preserves existing registrations of plant and plant design under the OHS
Regulations. Subregulation 741(1) provides that this regulation applies to an
item or design of plant if it was registered under Division 8 of the OHS
Regulations before 1 January 2012, the registration is in force immediately
before the commencement, and the item or design of plant is required to be
registered under Part 5.3 on 1 January 2012.
Subregulation 741(2) provides that on 1 January 2012:
·
An item of plant is taken to be registered by the regulator as an
item of plant under Part 5.3 and the registration is valid until the date on
which it is expressed to expire unless the regulator revokes it earlier; and
·
The design of the item of plant is taken to be registered by the
regulator as the design of an item of plant under Part 5.3; and
·
Any existing conditions applying to the registration of the item
or design of plant continue to apply and the registration may be varied or
revoked by the regulator.
Subregulations 741(3) and (4) provide that a written notice
issued by the Commission under Division 8 of the OHS Regulations stating that
the Commission has registered the design or item of plant is taken to be a
registration document issued by the regulator under regulations 261 and 274
respectively for the design or item of plant.
Subregulations 741(5) and (6) provide that registration
numbers issued by the Commission under Division 8 of the OHS Regulations for an
item or design of plant are taken to be the plant registration number and
design registration number under regulations 273 and 260 respectively for the
item or design of plant.
Regulation 742 – Pending
applications for registration of plant and plant designs
Regulation 742
provides for the preservation of pending applications for registration of plant
and plant designs.
Subregulation 742(1) provides that this regulation applies
if:
·
before 1 January 2012, an application was made under Division 8
of the OHS Regulations to register the design of an item of plant or an item of
plant; and
·
immediately 1 January 2012, the application had not been decided;
and
·
the registration day (the day the design of the item of plant or
the item of plant is required to be registered under Part 5.3) is on 1
January 2012 or a later date required by this Part.
Subregulation 742(2) provides that on the registration day:
·
the application is taken to be an application made to the
regulator under Part 5.3 for the registration of the design or the item; and
·
the application is to be dealt with in accordance with
Part 5.3.
Regulation 743 – Registration of
plant and plant design by Defence Force
Regulation 743
provides that the duties imposed under Part 5.3 of the Regulations in relation
to the registration of plant and plant designs do not apply where the
Australian Defence Organisation (ADO) holds a ‘special licence’. Regulation
4.58 of the OHS Regulations previously enabled the Commission to grant the ADO
a special licence to operate specified types of plant. Where a special licence
was in force, the duties in Division 8 of Part 4 of the OHS Regulations did not
apply.
Subregulation 743(1) preserves the licence granted to the
ADO by the Commission in relation to the special registration of plant and
plant designs after commencement of the new WHS laws. The licence immediately
in force prior to commencement of the new WHS laws:
·
is taken to continue in force despite the repeal of the OHS
Regulations; and
·
is taken to be subject to the same conditions (if any) to which
it was subject immediately before 1 January 2012; and
·
may be varied or revoked by the regulator.
Part 6 – Construction work
Division 6.2 – Duties of designer of structure and person who
commissions construction work
Regulation 744 – Duties
Regulation 744
provides that the duties imposed on a person under regulations 294 to 296 do
not apply until 1 January 2013.
Regulation 294 imposes duties on PCBUs who
commission construction work, and designers to manage risks associated with the
construction of the design. Specifically, a PCBU who commissions construction
work, and the designers of structures are required to ensure that risks to
health and safety arising from construction are eliminated so far as is
reasonably practicable, or if this is not possible, minimised so far as is
reasonably practicable.
Regulation 295 requires a designer to give
a written safety report to the PCBU who commissioned the design.
Where a principal contractor is engaged for
a construction project commissioned by a PCBU regulation 296 requires the PCBU
to give the principal contractor relevant information about hazards and risks.
Division 6.3 – Duties of person conducting business or
undertaking
Subdivision 1 – General
Regulation 745 – Security of
workplace
Regulation 745
provides that the duties imposed on a person under regulation 298 do not apply
until 1 January 2013.
Regulation 298 provides that a person with
management or control of a workplace at which construction work is carried out
must have regard to certain matters to ensure, so far as is reasonably
practicable, that the workplace is secured from unauthorised access.
Subdivision 3 – Excavation work
Regulation 746– Additional
controls — trenches
Regulation 746
provides that the duties imposed on a person under regulation 306 do not apply
until 1 January 2013.
Regulation 306 specifies the additional
control measures that a PCBU who proposes to excavate a trench at least 1.5m
deep must put in place.
Division 6.4 – Additional duties of principal contractor
Regulation 747 – Specific control
measure – signage identifying principal contractor
Regulation 747
provides that the duties imposed on a person under regulation 308 do not apply
until 1 January 2013.
Regulation 308 provides that the principal
contractor for a construction project must install signs that are clearly
visible from outside the workplace and show certain information.
Regulation 748 – Duties – WHS
management plans
Subregulation 748(1) provides that if a construction project
started before 1 January 2012, then the duties imposed on a person under
regulations 309 to 314 do not apply in relation to the project until 1 January 2013.
Regulations 309 – 314 set out the duties
placed on principal contractors in relation to WHS management plans and safe
work method statements.
Subregulation 748(2) provides that if regulations 309 to 314
do not apply to a duty holder because the relevant project started before 1
January 2012, Division 12.4 and Division 12.5 of the OHS Regulations apply
until 1 January 2013.
Division 12.4 of the OHS Regulations
provides that where it is likely that 5 or more persons will be working on a
construction project at any one time the employer in control of the project on
must prepare an occupational health and safety management plan. An OHS
management plan is equivalent to a WHS management plan.
Division 12.5 provides that an employer in
control of a construction project that involves high risk construction work
must obtain relevant safe work method statements from persons engaged to
undertake the work. The employer is also required to ensure that the
statements are reviewed and changed as is necessary, and to take all reasonably
practicable steps to ensure that they are complied with.
Subregulation 748(3) clarifies that if the OHS Regulations
apply because of subregulation (2), then the OHS Act and Regulations apply in
relation to any breach.
Division 6.5 General construction induction training
Regulation 749 – Duties
Regulation 749
provides that the duties imposed on a person under regulations 317(2) and 326
do not apply until 1 January 2013.
Regulation 317(2) places an obligation on a
PCBU to ensure that a worker holds a general construction induction training
card, and Regulation 326 places a duty on a worker to keep their card available
for inspection while at work.
During this transitional period, the obligations placed on a
PCBU by Regulation 316 and Subregulation 317(1) to ensure that general
construction induction training is provided to a worker engaged to undertake
construction work will apply.
Part 7 – Hazardous chemicals
Division 7.1 – Hazardous chemicals
Subdivision 2 – Obligations relating to safety data sheets
and other matters
Regulation 750 – labelling hazardous chemicals – pipework
Regulation 750
provides that the duties imposed on a person under regulation 343 do not apply
until 1 January 2013.
Regulation 343 requires a PCBU at a
workplace to ensure that a hazardous chemical in pipe work is identified as far
as is reasonably practicable by a label, sign or by another method on or near
the pipe work.
Subdivision 8 Prohibition, authorisation and restricted
use
Regulation 751 – Authorisation to use, handle or store
prohibited carcinogens and restricted carcinogens
Regulation 751
provides that the requirement to be authorised under Division 8 of Part 7.1 by
the regulator to use, handle or store a prohibited or restricted carcinogen
does not apply until 1 January 2013.
Division 7.2 – Lead
Subdivision 3 – Lead risk work
Regulation 752 – Notification of lead risk work
Regulation 752
provides that the duties imposed on a person under regulation 403 do not apply
until 1 January 2013.
Regulation 403 requires a PCBU to give the
regulator written notice of lead risk work carried out at the workplace and
sets out requirements in relation to the content of the notice and record
keeping. An emergency services organisation must also notify the regulator of
lead risk work in certain circumstances.
Part 8 – Asbestos
Division 8.3 – Management of asbestos and associated risks
Regulation 753 – Duties
Regulation 753
provides that the duties imposed on a person under regulations 425 to 430 do
not apply until 1 January 2013.
|
Regulations 425 to 430 set out requirements relating to
asbestos registers and asbestos management plans and require:
·
Establishment of an asbestos register for a workplace;
·
Access to the register;
·
Transfer of the register by the person relinquishing management
or control of the workplace;
·
Development of an asbestos management plan; and
·
Review of an asbestos management plan.
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Division 8.4 – Management of naturally occurring asbestos
Regulation 754 – Duties
Subregulation 754(1) provides that the duties imposed on a
person under regulations 431 to 433 do not apply until 1 January 2013.
Regulations 431 to 433 set out the
requirements for duty holders at workplaces where naturally occurring asbestos
is likely to be encountered and provides for asbestos management plans and
training for workers in these circumstances.
Subregulation 754(2) provides that the duties imposed on a
person under regulation 434 do not apply until 1 July 2012.
Regulation 434 requires a PCBU to provide
training on hazards and risks associated with naturally occurring asbestos for
workers who carry out work where naturally occurring asbestos is likely to be
found.
Division 8.5 – Asbestos at the workplace
Subdivision 2 – Training
Regulation 755 – Duties
Regulation 755 provides
that the duties imposed on a person under regulation 445 do not apply until 1
July 2012.
Regulation 445 places specific requirements
on PCBUs regarding training for certain workers about identification, safe
handling and suitable control measures for asbestos. This training is required
for workers who may be involved in asbestos removal work or carrying out
asbestos-related work outside the scope of licensed asbestos removal work. Regulation
445 also specifies record keeping requirements in relation to the training
undertaken by the worker.
Part 9 – Major hazard facilities
Division 9.7 – Licensing of major hazard facilities
Regulation 756 – Existing major hazard facility
Regulation 756 deems
a facility that was classified as a major hazard facility under the OHS
Regulations to be a determined facility under the Regulations if the chemicals
listed in Schedule 15 are present or likely to be present at the facility in a
quantity that exceeds 10% of their threshold quantity.
A facility that was not licensed under the OHS Regulations,
would be required to continue the application process and must make an
application for a licence within 2 years of classification of the facility
under Division 9.2 of the OHS Regulations.
A facility that was licensed under the OHS Regulations
immediately before 1 January 2012, is required to make an application for a new
licence under the WHS Regulations by 1 January 2012. A licence will be taken
to be granted upon application (see regulation 757).
Regulation 757 – Existing licensed major hazard facility
Regulation 757
recognises existing major hazard facility licences granted under the OHS
Regulations following commencement of the new WHS laws. Regulation 757 provides
that a facility that immediately before 1 January 2012 was licensed under
regulation 9.20 of the OHS Regulations is taken to be licensed under Part 9.7
of the Regulations.
The licence will be subject to the conditions it was subject
to immediately before 1 January 2012 and the regulator may vary or delete a
condition, as well as impose a new condition.
Regulation 758 – Existing notification of facility
awaiting decision
Regulation 758
preserves a notification provided by an employer in control of a potential
major hazard facility that was provided under the OHS Regulations.
Subregulations 758(1) and 758(2) provide that where a
notification about the facility was given to the Commission before 1 January
2012, and the Commission has not decided whether to classify the facility as a
major hazard facility, the notice is taken to have been given to the regulator
under regulation 536.
Regulation 536 requires the operator of a
facility at which Schedule 15 chemicals are present or likely to be present, in
a quantity that exceeds 10% of their threshold quantity, to notify the
regulator.
Subregulation 758(3) provides that if the notification
provided did not include the information mentioned in regulation 538, the
operator must give the information to the regulator within 3 months.
Regulation 538 requires that the
notification must contain information about the facility and the operator of
the facility as outlined in the regulation and whether the operator is an
individual or a body corporate.
Part 12 – Other transitional matters
Division 1 – Globally Harmonised System of Classification and
Labelling of Chemicals
Regulation 759 – Introductory period for GHS
Regulation 759
provides for the phase in of the requirements of the GHS over a period of 5
years. When a regulation makes provision for a matter by reference to
compliance with the GHS, a person will be taken to comply with the provision if
the person complies with either the GHS or a ‘transitional standard’ to the
extent that the standard is relevant. The transitional standards include the
current NOHSC standards for the classification and labelling of hazardous
substances, the AGD Code, the Code of Practice for Labelling Agricultural
Chemical Products, and the Code of Practice for Labelling Veterinary Chemical
Products.
On the 1 January 2017, all duty holders must comply with the
GHS where a provision of these regulations requires them to do so.
Division 2 – Obligation to train health and safety
representatives – approved courses of training
Regulation 760 Courses accredited before 1 January 2012
Subregulation 760(1) deems a training course accredited by
or approved by the Commission immediately prior to the commencement of the WHS
Act to be approved by the regulator under paragraph 72(1)(a) of the WHS Act for
a transitional period of 12 months. Subregulation 760(2) further preserves the
conditions that applied to the approval and provides that the regulator may
vary or revoke the approval.
Division 3 – Codes of practice
Regulation 761 Preserved codes of practice
Regulation 761
preserves certain Parts of the Occupational Health and Safety Code of Practice
2008 as preserved codes for the purposes of subitem 23(1) of Schedule 2 to the
WHS (T&C) Act pending the development and approval of new codes of practice
on these topics.
Schedule 1 – Revocation of regulations
A note provides that some States and Territories will use
this schedule to repeal existing OHS regulations. This Schedule is left blank
in the Commonwealth WHS Regulations.
Schedule 2 – Fees
Clause 1 – Purpose of this Schedule
Clause 1 specifies
that the purpose of Schedule 2 is to set out the fees to be paid under these
Regulations and when they must be paid.
Table 2.1
Table 2.1 sets out
the fees to be paid under these Regulations, the specific regulation under
which the fee must be paid, the nature and amount of the fee, and when the fee
must be paid.
Schedule 3 – High risk work licences and
classes of high risk work
Table 3.1
Table 3.1 sets out
the high risk work licences and provides a description of each class of high
risk work that is within the scope of each licence.
Clause 1 – Boom-type elevating work platform
Clause 1 specifies
the length of a boom for the purposes of item 21 in table 3.1.
Schedule 4 – High risk work licences –
competency requirements
Clause 1 – Purpose of this Schedule
Clause 1 provides
that the purpose of Schedule 4 is to set out and identify the qualifications
needed for a high risk work licence.
Table 4.1
Table 4.1 sets out
the qualifications needed for a high risk work licence.
Schedule 5 – Registration of plant and
plant designs
Schedule 5 sets out
the items of plant requiring registration of design under regulation 243. It
also sets out the items of plant that are required to be registered under
regulation 246.
Part 1 – Plant requiring registration of design
Clause 1 – Items of plant requiring registration of design
Clause 1 identifies
the items of plant requiring registration of design under regulation 243.
Clause 2 – Exceptions
Clause 2 clarifies
that certain items of plant are not subject to the plant design registration
requirements under regulation 243, even though they are listed in clause 1.
The items of plant listed include heritage boilers and tow trucks.
Part 2 – Items of plant requiring registration
Clause 3 – Items of plant requiring registration
Clause 3 identifies
the items of plant that are required to be registered under regulation 246.
Clause 4 – Exceptions
Clause 4 clarifies
that certain items of plant are not subject to the plant item registration
requirements under regulation 246, even though they are listed in clause 3.
The items of plant listed include playground devices and inflatable devices
that are sealed.
Schedule 6 – Classification of mixtures
Clause 1 – Purpose of this Schedule
Clause 1 identifies
that the purpose of Schedule 6 is to replace the tables in the GHS with the
tables in the Schedule.
Table 6.1 – Classification of mixtures containing
respiratory or skin sensitisers
Table 6.1 sets out
the cut-off values/concentration limits of ingredients of a mixture classified
as either a respiratory sensitiser or a skin sensitiser, which would trigger
classification of the mixture.
Table 6.2 – Classification of mixtures containing
carcinogens
Table
6.2 sets out the cut-off values/concentration limits of ingredients of a
mixture classified as a carcinogen, which would trigger classification of the
mixture.
Table 6.3 – Classification of mixtures containing
reproductive toxicants
Table
6.3 sets out the cut-off values/concentration limits of ingredients of a
mixture classified as a reproductive toxicant, or for effects on or via
lactation, which would trigger classification of the mixture.
Table 6.4 – Classification of mixtures containing specific
target organ toxicants (single exposure)
Table
6.4 sets out the cut-off values/concentration limits of ingredients of a
mixture classified as a specific target organ toxicant, which would trigger
classification of the mixture (with single exposure).
Table 6.5 – Classification of mixtures containing specific
target organ toxicants (repeated exposure)
Table
6.5 sets out the cut-off values/concentration limits of ingredients of a
mixture classified as a specific target organ toxicant, which would trigger
classification of the mixture (with repeated exposure).
Schedule 7 – Safety data sheets
Clause 1 – Safety data sheets – content
Clause 1 outlines the
information to be contained in a safety data sheet. This clause:
·
specifies the general information that must be contained in a
safety data sheet;
·
specifies the particular information about the chemical that must
be included;
·
requires the safety data sheet to use the headings in subclause
1(2);
·
requires the safety data sheet to be structured in the order set
out in subclause 1(2); and
·
requires the safety data sheet to be written in English.
Clause 2 – Safety data sheets – research chemical, waste
product or sample for analysis
Clause
2 sets out the information that must be contained in a safety data sheet
for a hazardous chemical which is a research chemical, waste product or sample
for analysis for the purposes of regulation 331.
Schedule 8 – Disclosure of ingredients in
safety data sheet
Clause 1 – Purpose of this Schedule
Clause 1 provides
that the purpose of Schedule 8 is to set out the way in which the ingredients
of a hazardous chemical must be disclosed in section 3 of a safety data sheet.
Clause 2 – Identity of ingredients to be disclosed
Clause
2 applies if an ingredient in a hazardous chemical causes the correct
classification of the chemical to include a hazard class and hazard category
referred to in table 8.1. The identity of the ingredient must be given in
English on both the label and safety data sheet of the hazardous chemical.
Table 8.1
Table 8.1 sets out
the GHS hazard categories for different classes of GHS hazards.
Clause 3 – Generic names used to disclose identity of ingredients
Clause
3 applies if an ingredient in a hazardous chemical must be disclosed
under clause 2. This clause sets out the circumstances in which the ingredient
may be disclosed by its generic name.
Table 8.2
Table 8.2 sets out
the hazard categories of certain hazard classes.
Clause 4 – Disclosing proportions of ingredients
Clause 4 sets out the
circumstances in which the proportions of the ingredients of a hazardous
chemical must be disclosed.
Schedule 9 – Classification, packaging
and labelling requirements
Schedule 9 sets out
the requirements for the correct classification, packaging and labelling of
hazardous chemicals.
Part 1 – Correct classification
Clause 1 – Correct classification of a substance, mixture
or article
Clause
1 provides that a substance or mixture (other than a research chemical,
sample for analysis or waste product) is correctly classified if
a determination is made about whether the substance or mixture can be
classified into a hazard class under the GHS, including a mixture
classification referred to in Schedule 6.
Subclause 1(2) provides that a
substance or mixture that is a research chemical, sample for analysis or waste
product is correctly classified if, so far as is reasonably
practicable having regard to the known or suspected properties of the substance
or mixture, a determination is made about the identity of the substance or
mixture; and a determination is made about whether the substance or mixture can
be classified into a hazard class under the GHS.
Subclause 1(3) provides that an
article that contains a substance or mixture that may be released during the
use, handling or storage of the article is correctly classified if
the substance or mixture is correctly classified.
Part 2 – Correct packing
Clause 2 – Correctly packing hazardous chemicals
Clause 2 sets out the
requirements for a hazardous chemical to be correctly packed in a container.
Subclause 2(2) sets out additional requirements for the correct packing of a hazardous
chemical supplied by a retailer to a person, in a container provided by the
person.
Part 3 – Correct labelling
A note provides that more than one clause of this Part may
apply to a hazardous chemical depending on the nature of the hazardous
chemical, its container and other matters.
Clause 3 – Labelling hazardous chemicals – general
Clause 3 sets out the
requirements for a hazardous chemical to be correctly labelled, where the
chemical is packed in a container and has a label in English.
Clause 4 – Labelling hazardous chemicals – small container
Clause
4 sets out the requirements for a hazardous chemical to be correctly
labelled, where the chemical is packed in a container and has a label in
English, but the container is too small for a label attached to it to include
all the information referred to in subclause 3(1).
Clause 5 – Labelling hazardous chemicals – research
chemicals or samples for analysis
Clause
5 applies to a hazardous chemical that is a research chemical or
sample for analysis. The hazardous chemical is correctly labelled if
the chemical is packed in a container that has a label in English and the label
includes both the product identifier and a hazard pictogram or hazard statement
consistent with the correct classification of the chemical.
Clause 6 – Labelling hazardous chemicals – decanted or
transferred chemicals
Clause
6 applies to a hazardous chemical that is decanted or transferred from
the container in which it is packed, and either will not be used immediately or
is supplied to someone else. The hazardous chemical is correctly labelled
if the chemical is packed in a container that has a label in English
and the label includes both the product identifier and a hazard pictogram or
hazard statement consistent with the correct classification of the chemical.
Clause 7 – Labelling hazardous chemicals – known hazards
Clause
7 applies to a hazardous chemical where the chemical is not being
supplied to another workplace and the hazards relating to the chemical are
known to the workers involved in using, handling or storing the chemical. The
hazardous chemical is correctly labelled if the chemical is
packed in a container that has a label in English and the label includes both the
product identifier and a hazard pictogram or hazard statement consistent with
the correct classification of the chemical.
Clause 8 – Labelling hazardous chemicals – waste products
Clause
8 applies to a waste product if it is reasonably likely that the waste
product is a hazardous chemical. The waste product is correctly labelled
if it is packed in a container that has a label in English and the
label consists of the product identifier, the name, Australian address and
business telephone number of the manufacturer or importer, and a hazard
pictogram or hazard statement consistent with the correct classification of the
chemical.
Clause 9 – Labelling hazardous chemicals – explosives
Clause
9 sets out the requirements for a hazardous chemical to be
correctly labelled where the hazardous chemical may be classified in the
explosives hazard class.
Clause 10 – Labelling hazardous chemicals – agricultural
and veterinary chemicals
Clause 10 applies
to a hazardous chemical that is an agricultural or veterinary chemical. The
hazardous chemical is correctly labelled if the chemical is
labelled in accordance with the requirements of the Australian Pesticides and
Veterinary Medicines Authority, the label is in English, and the label includes
both a hazard statement and precautionary statement which are consistent with
the correct classification of the chemical.
Subclause 10(2) clarifies that an ‘agricultural or
veterinary chemical’ means an agricultural chemical product or
veterinary chemical product under the Agricultural and Veterinary Chemicals
Code Act 1994.
Schedule 10 – Prohibited and restricted
hazardous chemicals and carcinogens
A note provides that the prohibition of the use of
carcinogens listed in column 2 of table 10.1, and the restriction of the use of
carcinogens listed in column 2 of table 10.2, apply to the pure substance,
where the substance is present in a mixture at a concentration greater than
0·1%, unless otherwise specified.
Table 10.1 – Prohibited carcinogens
Table 10.1 sets out
the prohibited carcinogens.
Table 10.2 – Restricted carcinogens
Table 10.2 sets out
the restricted carcinogens and their restricted uses.
Table 10.3 – Restricted hazardous chemicals
Table 10.3 sets out
the restricted hazardous chemicals and their restricted uses.
A note provides that regulation 382 deals with
polychlorinated biphenyls (PCBs).
Schedule 11 – Placard and manifest
quantities
Table 11.1
Table 11.1 sets out
the descriptions, placard quantities and manifest quantities of various
hazardous chemicals.
Note 1 provides that in item 2, gases under
pressure with acute toxicity, category 4 only applies up to a LC50 of 5,000
ppmV. This is equivalent to dangerous goods of Division 2.3.
Note 2 provides that item 4, which relates to
flammables, includes flammable aerosols.
Clause 1 – Determination of classification of flammable
liquids
Clause 1 provides
that, for the purposes of table 11.1, if a flammable liquid category 4 is used,
handled or stored in the same spill compound as one or more flammable liquids
of categories 1, 2 or 3, then the total quantity of flammable liquids of categories
1, 2 or 3 must be determined as if the flammable liquid category 4 had the same
classification as the flammable liquid in the spill compound with the lowest
flash point.
The example illustrates the application of clause 1. It
clarifies that for placarding and manifest purposes, if a spill compound
contains 1,000L of flammable liquid category 1 and 1,000L of flammable
liquid category 4, then the spill compound is considered to contain 2,000L of
flammable liquid category 1.
Schedule 12 – Manifest requirements
Clause 1 – Manifest – general information
Clause 1 sets out the
general information required in a manifest of hazardous chemicals.
Clause 2 – Manifest – bulk storage and containers
Clause 2 sets out the
information required in a manifest of a hazardous chemical, where the hazardous
chemical is stored at a workplace either in bulk or in a container.
Clause 3 – Manifest – identification of hazardous chemical
Clause
3 sets out the information required in a manifest for:
·
a hazardous chemical (other than a flammable liquid category 4,
unstable explosive, organic peroxide type A or self-reactive substance type A);
·
a flammable liquid category 4; and
·
an unstable explosive, organic peroxide type A or self-reactive
substance type A.
Clause 4 – Manifest – storage area for packaged hazardous
chemicals
Clause 4 sets out the
information required in a manifest of hazardous chemicals, where:
·
a storage area contains, or is likely to contain, a packaged
hazardous chemical or a hazardous chemical in an intermediate bulk container;
·
the storage area is required to have a placard under these
regulations; and
·
the hazardous chemicals are dangerous goods under the ADG Code.
Subclause 4(3) sets out the chemicals which are considered
to be ‘specified hazardous chemicals’ for the purposes of clause 4.
Clause 5 – Manifest – hazardous chemicals being
manufactured
Clause 5 sets out the
information required in a manifest for an area where hazardous chemicals are
being manufactured.
Clause 6 – Manifest – hazardous chemicals in transit
Clause 6 provides
that if the hazardous chemicals at a workplace are dangerous goods under the
ADG Code, are in transit at the workplace, and are accompanied by dangerous
goods transport documents that comply with the ADG Code, then the PCBU at the
workplace is taken to comply with clauses 4 and 5 if the manifest includes a
compilation of the dangerous goods transport documents.
Clause 7 – Manifest – plan of workplace
Clause 7 requires a
manifest of hazardous chemicals at a workplace to contain a scale plan. This
clause sets out the requirements for the scale plan.
Schedule 13 – Placard requirements
Clause 1 – Displaying placards
Clause 1 applies if a
PCBU is required to display a placard at the workplace in relation to a
hazardous chemical. This clause sets out the requirements for the content and
location of the placard.
Clause 2 – Maintaining placards
Clause 2 sets the duties
imposed on a PCBU to maintain and amend the placard.
Clause 3 – Outer warning placards – requirements
Clause 3 applies to a
PCBU who is required to display an outer warning placard at the workplace in
relation to a hazardous chemical under regulation 349.
This clause requires the outer warning placard to comply
with the form and dimensions shown in figure 13.1, and display the word
‘HAZCHEM’ in red letters on a white or silver background.
Clause 4 – Placards for particular hazardous chemicals
stored in bulk
Clause 4 applies
to a PCBU who must display a placard at the workplace in relation to the
storage in bulk of any of the hazardous chemicals specified in subclause 4(1).
Subclauses 4(2) to (5) set out the requirements for this placard.
Clause 5 – Placards for unstable explosives, organic
peroxides type A or self-reactive substances type A in bulk
Clause
5 sets out the requirements for a placard displayed at a
workplace in relation to unstable explosives, organic peroxides type A or
self-reactive substances type A that are stored in bulk.
Clause 6 – Placards for packaged Schedule 11 hazardous
chemicals (other than flammable liquids category 4) and IBCs
Clause
6 sets out the requirements for a placard displayed at a
workplace in relation to packaged Schedule 11 hazardous chemicals (other than
flammable liquids category 4) or a Schedule 11 hazardous chemical stored in an intermediate
bulk container.
Clause 7 – Placards for flammable liquids category 4
packaged or in bulk
Clause 7 sets out the
requirements for a placard displayed at a workplace in relation to a packaged
flammable liquid category 4 or a flammable liquid category 4 in bulk.
Schedule 14 – Requirements for health
monitoring
Table 14.1 – Hazardous chemicals (other than lead)
requiring health monitoring
Table 14.1 sets out
the hazardous chemicals (other than lead) which require health monitoring and
the type of health monitoring required for each chemical.
Table 14.2 – Lead requiring health monitoring
Table 14.2 sets
out the type of health monitoring required for lead.
Schedule 15 – Hazardous chemicals at
major hazard facilities (and their threshold quantity)
Clause 1 – Definitions
Clause 1 sets
out the definitions for this Schedule.
Clause 2 – Relevant hazardous chemicals
Clause
2 provides that the hazardous chemicals that characterise a
workplace as a facility for the purposes of these Regulations are the chemicals
specifically referred to in table 15.1 and the chemicals that belong to the
types, classes and categories referred to in table 15.2.
Clause 3 – Threshold quantity of one hazardous chemical
Clause 3 sets out how
the threshold quantity of a hazardous chemical is determined under this
Schedule.
Clause 4 – Threshold quantity of more than one hazardous
chemical
Clause 4 specifies
the formula to be applied to calculate whether a threshold quantity of
chemicals exists, where there is more than one hazardous chemical.
Clause 5 – How table 15.1 must be used
Clause 5 provides
guidance about the interpretation and application of table 15.1, which
specifies the threshold quantity of a hazardous chemical.
Clause 6 – How table 15.2 must be used
Clause 6 provides
additional information about the threshold quantities and classification of the
explosives mentioned in table 15.2.
Table 15.1
Table 15.1 sets out
the names, UN numbers and threshold quantities of hazardous chemicals that
characterise a workplace as a facility for the purposes of these Regulations.
Table 15.2
Table 15.2 sets out
the types, classes, categories and threshold quantities of hazardous chemicals
that characterise a workplace as a facility for the purposes of these
Regulations.
Schedule 16 – Matters to be included in emergency
plan for major hazard facility
Schedule 16 sets out the matters that must be
included in an emergency plan for an MHF.
Clause 1 – Site and hazard detail
Clause 1 sets out the
information required about the site and hazard details. The kinds of information
required include a map identifying the locations of potentially hazardous
inventory and staging points for emergency services, and details about the
maximum number of persons that are likely to be present at the facility on a
normal working day.
Clause 2 – Command structure and site personnel
Clause 2 sets
out the information required about the command structure and site personnel.
The kinds of information required include details of the person who can clarify
the content of the emergency plan if necessary, and a list of 24 hour emergency
contacts.
Clause 3 – Notifications
Clause 3 sets out the
information required about the MHF’s procedures for notifying emergency
services, the local community and local authority in the event of a major
incident or an event that could lead to a major incident. The kinds of
information required include details of on-site and off-site warning systems
and on-site communication systems.
Clause 4 – Resources and equipment
Clause 4 sets out the
information required about the on-site and off-site emergency resources
available to the MHF.
Clause 5 – Procedures
Clause 5 sets
out the information required about procedures for safely evacuating and accounting
for all people on site, the control points for utilities, the control of
incidents involving Schedule 15 chemicals, and decontamination following an
incident involving Schedule 15 chemicals.
Schedule 17 – Additional matters to be
included in safety management system for major hazard facility
Schedule 17 sets out
the additional matters that must be included in a safety management system for
an MHF.
Clause 1 – Safety policy and safety objectives
Clause 1 requires the
safety management system to contain a safety policy and safety objectives.
This clause requires details of the method by which the safety policy and
objectives will be communicated to persons implementing the safety management
system, and an express commitment to the ongoing improvement of the system.
Clause 2 – Organisation and personnel
Clause 2 requires
the safety management system to provide information about:
·
the persons who will participate in the safety management system;
·
the command structure in which these persons work;
·
the tasks and responsibilities allocated to each person; and
·
the methods by which these persons have acquired and retained the
knowledge and skills necessary to carry out their allocated tasks and
responsibilities.
Clause 3 – Operational controls
Clause 3 specifies
the operational controls required at an MHF. Examples of operational controls
include an alarm system and an adequate method of access to the MHF for service
and maintenance.
Clause 4 – Duties of operators
Clause 4 requires
the safety management system to describe how an operator proposes to comply
with their duties under the WHS Act and the relevant parts of Chapter 9 of the
Regulations.
Clause 5 – Management of change
Clause 5 requires the
safety management system to outline the procedures in place for planning
modifications to the MHF.
Clause 6 – Principles and standards
Clause 6 requires the
safety management system to contain a statement about the design principles and
engineering standards that are being used at the MHF to ensure it operates
safely, and specify any technical standards which have been relied on in relation
to these design principles and engineering standards.
Clause 7 – Performance monitoring
Clause 7 sets
out how the performance of a safety management system must be monitored. This
clause requires performance standards for measuring the effectiveness of the
safety management system, a description of the way in which these performance
standards will be met, and performance indicators that evaluate the
effectiveness of any control measures implemented.
Clause 8 – Audit
Clause
8 requires an audit of the performance of a safety management
system against the performance standards. This clause provides that the
method, frequency and results of the audit process must be specified.
Schedule 18 – Additional matters to be
included in safety case for a major hazard facility
Schedule 18 sets out
the additional matters that must be included in a safety case for an MHF.
Part 1 – Facility description
Clause 1 – The facility
Clause 1 sets out the
information required in the facility description in the safety case. Examples
of information that must be provided include a description of the Schedule 15
chemicals and any other hazardous chemicals present or likely to be present at
the facility, and a drawing of the MHF’s layout illustrating the main process
units, main storage areas, major incident hazards and major incident initiators.
Clause 2 – The surrounding area
Clause 2 requires the
safety case to include a scaled plan of the facility and its surrounding area,
graphs containing demographic information for the local community (including
details of surrounding land uses permitted by the local authority), and meteorological
data relevant to the estimation of the effects of any major incident.
Part 2 – Safety Information
Clause 3 – Control measures to limit the consequences of
major incidents
Clause 3 specifies
the information required in the safety case about control measures designed to
limit the consequences of major incidents.
Clause 4 – Performance monitoring
Clause
4 requires the safety case to include a detailed description of the
performance standards and performance indicators, which are required to be
included in the safety management system under clause 7 of Schedule 17.
Clause 5 – Safety management system
Clause 5 provides
that where the safety case refers to a matter contained in the safety
management system, the safety case must clearly reference the relevant part of
the documented safety management system. This clause also requires the safety
case to contain a description of the parts of the documented safety management
system that address the ongoing implementation, review and revision of the
safety management system.
Clause 6 – Safety and reliability of facility structures
and plant
Clause
6 requires the safety case to contain a description of the steps
taken to ensure that safety and reliability are incorporated into the design
and construction of all aspects of the MHF itself.
Clause 7 – Major incident history
Clause
7 requires the safety case to contain a summary of the major incidents
that have occurred at the MHF over the previous 5 years.