Commonwealth Numbered Regulations - Explanatory Statements

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OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) (NATIONAL STANDARDS) AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 286

The Occupational Health and Safety (Commonwealth Employment) Act 1991 (the OHS (CE) Act) establishes a statutory framework to secure the health and safety of Commonwealth Government employees (including employees of Commonwealth agencies, statutory authorities and Government Business Enterprises) while at work.

Subsection 82(1) of the OHS (CE) Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Subsection 23(1) of the OHS (CE) Act provides that the regulations may make provision relating to any matter affecting, or likely to affect, the occupational health and safety of employees or contractors, or other persons at or near a workplace.

The National Occupational Health and Safety Commission (NOHSC), established under section 6 of the National Occupational Health and Safety Commission Act 1985 (the NOHSC Act), develops National Standards and Codes of Practice to promote uniformity in Australian occupational health and safety schemes. These National Standards and Codes of Practice do not have legislative force of themselves; they are given legislative force by relevant State, Territory or Commonwealth occupational health and safety legislation.

The Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations 1994 (the Principal Regulations) give legislative force to various National Standards declared by NOHSC to the extent that they are capable of relating to Commonwealth employment. Regulations have been made implementing National Standards in relation to occupational noise, plant, manual handling, hazardous substances, safe working in confined spaces and certification standards for users and operators of industrial equipment.

Part 6 of the Principal Regulations incorporates the NOHSC National Standard titled National Occupational Health and Safety Commission National Model Regulations for Hazardous Substances (National Model Regulations) relating to the control of hazardous substances in the workplace. NOHSC declared, under Section 38 of the NOHSC Act, an amendment to Schedule 2 of the National Model Regulations to prohibit the use of chrysotile, actinolite, anthophyllite, and tremolite asbestos. The declaration was gazetted on 18 June 2003.

The Regulations amend Part 6 of the Principal Regulations to adopt, and give legislative force to, the changes NOHSC has made to the National Model Regulations. The Regulations insert provisions that:

•       prohibit the use of chrysotile, actinolite, anthophyllite and tremolite forms of asbestos in Commonwealth workplaces, except when used in permitted circumstances specified in the Regulations; and

•       provide a method to enable employers to be granted an exemption from the prohibition on using chrysotile asbestos at work if the use of chrysotile is specified in the Regulations.

Details of the Regulations are set out in the attachment.

The Regulations commence on 31 December 2003.

Authority: Subsection 82(1) of the Occupational Health and Safety (Commonwealth Employment) Act 1991

ATTACHMENT

OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) (NATIONAL STANDARDS) AMENDMENT REGULATIONS 2003 (NO. 1)

Regulation 1 - Name of Regulations

This is a formal provision that provides for the name of the Regulations.

Regulation 2 - Commencement

This regulation provides that the Regulations commence on 31 December 2003.

A note is inserted to refer to section 4 of the Acts Interpretation Act 1901 which enables things to be done between gazettal and commencement of the Regulations to ensure that arrangements are in place for the scheme to operate from 31 December 2003.

Regulation 3 - Amendment of Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations 1994

Regulation 3 is a formal provision which provides that the Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.

Regulation 4 - Transitional

Subregulations (1) and (2) ensures that decisions by the Safety, Rehabilitation and Compensation Commission (the Commission) to grant or refuse to grant an exemption to an employer from the prohibition on handling hazardous substances at work made before the commencement of the Regulations remain valid after commencement.

Subregulations (3) and (4) ensures that an application made by an employer for an exemption from the prohibition to handle hazardous substances before these Regulations commence will continue to be a valid application.

Schedule 1 - Amendments

Item 1 - After paragraph 6.01 (b)

This item inserts additional objects into Part 6 of the Principal Regulations to align with the purpose of the Regulations.

Item 2 - Regulation 6.01, notes

This item replaces an obsolete reference to 'Worksafe Australia' with the appropriate reference to the National Occupational Health and Safety Commission (NOHSC).

Item 3 - Paragraph 6.02 (1) (b)

This item removes the words 'or produced' from paragraph 6.02 (1) (b). These words are superfluous, as the definition of 'use' in regulation 6.03 encompasses 'to produce'.

Item 4 - Paragraph 6.02 (4) (b)

This item replaces the Australian spelling of 'Organisation' in the name 'International Maritime Organization' with its internationally recognised spelling.

Item 5 - Regulation 6.03, after definition of article

This item inserts a definition of asbestos. To effectively prohibit the use of all forms of asbestos, a definition of asbestos is required.

Item 6 - Regulation 6.03, definition of bona fide research

This item expands the definition of bona fide research in relation to asbestos to allow for the display of items containing asbestos in a museum or other historical displays.

Item 7 - Regulation 6.03, after definition of inorganic lead substance

This item provides a definition of in situ. The definition of in situ is relevant to the amendment to prohibit the use of chrysotile asbestos at work. The prohibition does not apply to chrysotile products that are in situ as they do not pose a risk to users until the chrysotile product is replaced or disturbed. However, once the product has been disturbed or replaced, the prohibition applies.

Item 8 - Regulation 6.03, definition of substance, paragraph (b)

This item amends the definition of substance to make clear that an article containing asbestos is a substance.

Item 9 - Regulation 6.03, definition of substance name, paragraph (c)

This item removes superfluous words from paragraph (c) of the definition that do not assist interpretation.

Item 10 - Subparagraph 6.05 (2) (b) (iv)

This item rectifies an incorrect cross-reference in current subparagraph 6.05 (2) (b) (iv).

Item 11 - Subregulation 6.13 (2)

This item replaces the undefined term 'name of substance' with the defined term 'product name'.

Item 12 - Subregulation 6.14 (1)

Item 13 - Subregulation 6.14 (2) (a)

These items remove the superfluous words 'or produced' from subregulations 6.14 (1) and 6.14 (2) (a). The definition of 'use' in regulation 6.03 encompasses 'to produce'.

Item 14 - Regulation 6.16, heading

This item replaces the heading to clarify that the prohibition covers uses that are not specified in Schedule 1.

Item 15 - Regulation 6.16

This item replaces the term 'handled' with 'used' in regulation 6.16. The definition of 'use' in regulation 6.03 encompasses 'to handle'. This amendment more clearly reflects the scope of the prohibition contained in the National Model Regulations.

Item 16 - Regulation 6.16, at the foot

This item reinserts the penalty into regulation 6.16. The penalty was inadvertently removed by the Occupational Health and Safety (Commonwealth Employment) (National Standards) Amendment Regulations 1999 (SR 1999 No. 66).

Item 17 - Regulation 6.16A (1)

This amendment is consequential to the inclusion of the prohibition on the use of chrysotile into Part 6 of the Principal Regulations.

Item 18 - Subregulations 6.16A (2) to (6)

This item inserts subregulations to provide that the prohibition contained in regulation 6.16 does not apply to a use of chrysotile if the Commission exempts the employer from the application of the Principal Regulations.

The item also removes provisions contained in subregulations (2) to (6) that set out the process by which an employer may seek an exemption from the prohibition on handling hazardous substances at work. These provisions are now in a schedule to the Principal Regulations.

Item 19 - Regulations 6.16B and 6.16C

This item removes regulations 6.16B and 6.16C. These provisions are now placed in a schedule to the Principal Regulations. This improves the structure of the Principal Regulations by placing all the provisions relating to the application, and the granting, operation and conditions of an exemption from the prohibition on using chrysotile asbestos and other hazardous substances, together.

Item 20 - Paragraphs 6.16D (a) to (d)

Regulation 6.16D provides for review by the Administrative Appeals Tribunal (AAT) of a number of decisions by the Commission in relation to exemptions from prohibitions on the workplace use of hazardous substances.

This item provides that merits review by the AAT will be available in relation to a decision by the Commission to:

•       refuse to grant an exemption for the use of chrysotile (subclause 3.04 (1) (b));

•       make an exemption for the use of chrysotile subject to conditions that promote the objects of Part 6 of the Principal Regulations (subclause 3.05 (2));

•       to add a condition to, or vary or revoke a condition of, an exemption for the use of chrysotile (subclause 3.05 (3));

•       cancel an exemption for the use of chrysotile if the Commission is satisfied that continuing the exemption would be inconsistent with the objects of Part 6 of the Principal Regulations (subparagraph 3.06 (2) (a));

•       refuse to grant an exemption for the use of chrysotile for defence mission-critical purposes (subparagraph 3.08 (1) (b));

•       make an exemption for the use chrysotile for defence mission-critical purposes subject to conditions that promote the objects of Part 6 of the Principal Regulations (subclause 3.09 (2));

•       add a condition to, or vary or revoke a condition of, an exemption for the use of chrysotile for defence mission-critical purposes (subclause 3.09 (3));

•       cancel an exemption for the use of chrysotile for defence mission-critical purposes if the Commission is satisfied that continuing the exemption would be inconsistent with the objects of Part 6 of the Principal Regulations (subparagraph 3.10 (2) (a));

In addition, this item makes other changes consequential to the removal of provisions contained in regulations 6.16A, 6.16B and 6.16C to Schedule 1B to the Principal Regulations.

Item 21 - Paragraph 6.17 (2) (a)

This item removes the superfluous words 'or produced' from paragraph 6.17 (2) (a). The definition of 'use' contained in regulation 6.03 encompasses 'to produce'.

Item 22 - Schedule 1A, column 2, heading

This item rectifies a minor drafting error by amending the heading of column 2 of Schedule 1A.

Item 23 - Schedule 1A, item 14

Regulation 6.17A imposes certain duties on an employer who suspects that an employee has been exposed to a carcinogenic substance mentioned in Schedule 1A.

This item inserts chrysotile asbestos in column 2 of Schedule 1A. If an employer suspects that the employee has been or likely to have been exposed to chrysotile, the employer is required to notify the employee of that exposure. On the termination of the employee's employment, the employer is required to provide a written statement to the employee of the exposure in all circumstances other than those listed in column 3 of Schedule 1A.

Item 24 - Schedule 1A, after item 25

This item inserts actinolite, anthophyllite and tremolite asbestos in column 2 of Schedule 1A. If an employer suspects that an employee has been or likely to have been exposed to these substances, the employer is required to notify the employee of that exposure. On the termination of the employee's employment, the employer is required to provide a written statement to the employee of the exposure in all circumstances other than those listed in column 3 of current Schedule 1A.

Item 25 - Schedule 1, Part 1, heading

This item makes changes consequential to the replacement of the term 'handled' with 'used' by item 15.

Item 26 - Schedule 1, Part 1, column 2, heading

This item rectifies a minor drafting error by amending the heading of column 2 of Schedule 1.

Item 27 - Schedule 1, Part 1, item 101, column 3, paragraph 1

This item achieves consistency with the amendments outlined in item 33 below by including other permitted circumstances associated with removal or disposal of Polychlorinated biphenyls.

Item 28 - Schedule 1, Part 2, heading

This item makes changes consequential to the replacement of the term 'handled' with 'used' by item 15.

Item 29 - Schedule 1, Part 2, column 2, heading

This item rectifies a minor drafting error by amending the heading of column 2 of Schedule 1.

Item 30 - Schedule 1, Part 2, item 204, column 3, paragraph 2

Item 31 - Schedule 1, Part 2, item 208, column 3, paragraph 2

These items achieve consistency with the amendments outlined in item 33 below by including other permitted circumstances associated with the removal or disposal of amosite and crocidolite.

Item 32 - Schedule 1, Part 2, after item 211

Regulation 6.16 contains a prohibition on handling the hazardous substances mentioned in Schedule 1, except in circumstances specified in that Schedule. As noted above, item 15 replaces the term 'handled' with 'used' in regulation 6.16.

This item implements the prohibition on the workplace use of chrysotile, actinolite, anthophyllite and tremolite asbestos by including these substances in column 2 of Schedule 1. Column 3 of Schedule 1 sets out the permitted circumstances in which these forms of asbestos can be used.

Item 33 - After Schedule 1

The provisions which set out the process by which an employer can apply for an exemption from regulation 6.16 for the handling of hazardous substances and the granting, operation and conditions of an exemption are contained within the Principal Regulations themselves. Item 15, changes the prohibition from the handling of hazardous substances to the use of hazardous substances at work.

This item inserts a Schedule into the Principal Regulations. Schedule 1B contains provisions of subregulations 6.16A (3), (4), (5), (6) and regulations 6.16B and 6.16C. The provisions of subregulations 6.16A (3), (4), (5), (6) and regulations 6.16B and 6.16C are consequentially amended to ensure consistency with current drafting practice and the amendment in item 15.

Schedule 1B also contains clauses setting out the process by which an employer can seek an exemption from the prohibition on using chrysotile at work. Provisions of regulation 6.16A providing for the Commission to exempt an employer from the prohibition contained in regulation 6.16 remain in the Principal Regulations themselves.

Part 1 - General

Part 1 of Schedule 1B contains definitions relating to the issuing of an exemption from the prohibition contained in regulation 6.16 for hazardous substances other than chrysotile.

Clause 1.01 - Definition

Clause 1.01 inserts a definition of relevant employing authority. This definition is necessary as the Principal Regulations are premised on an employing authority seeking and being granted an exemption.

Part 2 - Hazardous substances other than chrysotile

Part 2 of Schedule 1B contains provisions setting out a process by which an employing authority may seek an exemption from the prohibition on using hazardous substances at work other than chrysotile.

Clause 2.01 - Application for exemption

Clause 2.01 contains provisions located in subregulation 6.16A (3). These provisions allow an employing authority to apply to the Commission for an exemption from the prohibition on using hazardous substances at work other than chrysotile.

Clause 2.02 - Grant or refusal of exemption

Clause 2.02 contains provisions located in subregulations 6.16A (4), (5) and (6) setting out the circumstances in which the Commission can exempt an employing authority from the prohibition on using hazardous substances at work other than chrysotile.

Clause 2.03 - Conditions of an exemption

Clause 2.03 contains provisions located in regulation 6.16B. These provisions allow the Commission to impose conditions on its grant of an exemption from the prohibition on using hazardous substances at work other than chrysotile.

Clause 2.04 - Operation of an exemption

Clause 2.04 contains provisions located in regulation 6.16C relating to the commencement, cancellation and cessation of an exemption.

Part 3 - Chrysotile

Part 3 of Schedule 1B establishes a process by which an employing authority may seek an exemption from the prohibition on using chrysotile at work. The Part consists of three Divisions. Division 3.1 contains interpretations and a table containing four exemptions from the prohibition on using chrysotile at work. Division 3.2 contains provisions relating to exemptions for employers generally. Division 3.3 contains provisions relating solely to exemptions for the Department of Defence and the Australian Defence Force.

Division 3.1 - General

Clause 3.01 - Interpretation

Subclause (1) contains definitions for defence employing authority, list of exemptions, Australian Defence Organisation and mission-critical.

The term Australian Defence Organsiation refers to employees of both the Department of Defence and the Australian Defence Force, whereas the term defence employing authority refers to the employing bodies. The Regulations allow for either the Secretary of the Department of Defence or the Chief of the Australian Defence Force to apply for an exemption from the prohibition on using chrysotile at work where the use is mission-critical.

Clause 3.02 - List of exemptions

Clause 3.02 provides that Commission may only grant exemptions for the workplace use of chrysotile if the use is listed in one of the four items in the table at subclause (2). The first three exemptions listed in column two of the table relate to the use of products and components containing chrysotile. The fourth exemption relates to the use of chrysotile parts and components which the Australian Defence Organisation considers to be mission-critical. The four exemptions are time limited and cease on specified dates.

The four exemptions in the table are those contained in the National List of Exemptions developed by NOHSC. The National List of Exemptions was developed by NOHSC because alternative materials are not available for some chrysotile uses and certain items require an exemption to allow manufacturers time to develop more reliable alternatives and to enable users to gain the necessary expertise to install the alternative materials safely. On 8 November 2002, the Workplace Relations Ministers' Council agreed to the list of time limited exemptions.

Division 3.2 - Exemption for uses other than defence mission-critical uses

Clause 3.03 - Applications for exemption

Clause 3.03 provides that an employing authority can apply to the Commission for an exemption to use a chrysotile item, if the item is contained in items 1 to 3 of the table in clause 3.02. The employing authority must state in its application the use for which the exemption is sought and include evidence that the use of chrysotile is essential to the operation of its business. The employing authority is also required to include with its application a statement of the controls it will adopt to ensure the safe use of the chrysotile item and a statement of action it will take to find alternatives to the use of chrysotile, including undertaking and/or contributing to research and development of replacement or alternatives to the exempted chrysotile item.

Subclauses (2) and (3) apply where an employing authority applies for an exemption before
31 December 2003, being the date the prohibition comes into effect. The exemption sought in the application will be taken to be granted until the Commission grants an exemption in relation to that item, or provides the employing authority with written notice of its refusal to grant an exemption or if the application is taken to have been withdrawn because the employer has not provided the Commission with requested information about the application within a specified period.

Clause 3.04 - Grant or refusal of exemption

Subclause (1) allows the Commission to grant an exemption, refuse to grant an exemption, or ask the employing authority for more information concerning its application.

Subclause (2) provides that an application is taken to have been withdrawn if the employer has not provided the Commission with requested information within a time period specified.

Subclause (3) allows the Commission to exempt an employer from the prohibition on using chrysotile at work if it is satisfied the application meets the specified criteria listed in the subclause.

If the Commission refuses to grant an exemption, subclause (4) requires it to provide written notice of its decision and the reasons for it.

Clause 3.05 - Conditions of an exemption

Clause 3.05 provides that an exemption may be subject to conditions that promote the objects of Part 6 of the Principal Regulations. Subclause (3) empowers the Commission to vary, add or revoke a condition of an exemption. Subclause (4) requires the Commission to provide a written notice containing reasons for the addition, variation or revocation of a condition to an exemption. The notice will also specify the time when an addition, variation or revocation takes effect.

Clause 3.06 - Operation of an exemption

Clause 3.06 provides for the commencement, cancellation and cessation of an exemption for the prohibition on using chrysotile at work. Subclause (2) provides that the Commission must cancel an exemption if it is no longer consistent with the objects of Part 6 or the employing authority asks for the exemption to be cancelled.

As the exemption relates to the use of a hazardous substance that can be harmful if controls are not adopted to ensure its safe use, the Commission is able to cancel an exemption without consulting the relevant employing authority. However, as a matter of good administrative practice, the Commission may consult the employing authority prior to cancelling the exemption. If an exemption is cancelled because the continued use of the chrysotile item is inconsistent with Part 6, the Commission is required to notify the employing authority in writing the reasons for the cancellation.

As the exemptions contained in items 1 to 3 of the table in clause 3.02 are time limited subclause (5) provides that an exemption expires at the end of the day stated in the table relevant to the exempted item or at the end of any earlier day that may be stated in the exemption.

Division 3.3 - Exemption for defence mission-critical uses

Division 3.3 contains clauses that provide for the Commission to grant an exemption for the Australian Defence Organisation (ADO) to use chrysotile parts and components which the ADO considers to be mission-critical.

Clause 3.07 - Applications for exemption

Clause 3.07 provides that the defence employing authority can apply to the Commission for an exemption for a use of chrysotile for the purpose and in the circumstances mentioned in column 2 of item 4 of the table in clause 3.02.

The defence employing authority is able to submit a single application for multiple components or products but must include in its application a list that identifies each type of parts and components for which it is seeking an exemption together with a unique identifier for each item of that type for which it is seeking an exemption.

The defence employing authority is required to include in its application a statement certifying that each item for which it is seeking an exemption is mission-critical. The statement will be treated by the Commission as conclusive evidence that the item is mission-critical. The application also requires a statement of the measures the defence employing authority will adopt to ensure the safe use of the items which the exemption is sought.

The defence employing authority is also required to provide with its application details of plans to find alternatives to the use of chrysotile including undertaking and/or contributing to research and development of replacement or alternatives to the exempted chrysotile item and evidence that there is no reasonable alternative to the use of chrysotile.

Subclauses (3) and (4) apply where the defence employing authority applies for an exemption within 18 days after the Regulations are gazetted. The exemption sought in the application will be taken to be granted until the Commission grants an exemption in relation to that item, or provides the defence employing authority with written notice of its refusal to grant an exemption or if the application is taken to have been withdrawn because the defence employing authority has not provided the Commission with further information about the application within the specified period.

Clause 3.08 - Grant or refusal of exemption

Subclause (1) allows the Commission to grant an exemption, grant a partial exemption, refuse to grant an exemption, or ask the defence employing authority for more information concerning its application. The exemption is to be granted in the joint names of the Secretary of the Department of Defence and the Chief of the Defence Force.

Subclause (2) provides that an application is taken to have been withdrawn if the defence employing authority has not provided the Commission with the requested information within a specified period.

Subclause (3) allows the Commission to exempt the defence employing authority from the prohibition on using chrysotile at work if it is satisfied the application meets the specified criteria listed in subclause (3). One of these criteria is that the item is mission-critical.

Subclause (4) requires the Commission to treat a statement provided by the defence employing authority certifying that an item is mission-critical as conclusive evidence that the item is mission-critical. However the Commission is able to refuse to grant an exemption, or alternatively grant only a partial exemption if it is not satisfied the application meets the other specified criteria in subclause (3). These include: there is no reasonable alternative to the use of chrysotile; the defence employing authority has in place appropriate measures to deal with any risk that might arise from the use of the chrysotile item; the defence employing authority will take reasonable steps to find alternatives to the use of the chrysotile item; and the granting of the exemption would not be inconsistent with the objects of the Part.

Subclause (5) requires the Commission to provide a written notice to the defence employing authority if it refuses to grant an exemption or decides to grant a partial exemption. The notice must set out the reasons for the decision.

Clause 3.09 - Conditions of an exemption

Subclause (1) provides that an exemption is subject to the condition that the defence employing authority takes reasonable steps to find suitable non-chrysotile alternatives for the items covered by the exemption. The defence employing authority is also under subparagraph (1) (b) required to inform the Commission if it becomes aware of a suitable non-chrysotile alternative for an exempted item or if any items covered by the exemption are no longer mission-critical. If the Commission is informed by the defence employing authority that either of these circumstances exists, in relation to an exempted item, the Commission is required to cancel the exemption for that item.

Subclause (2) allows the Commission to grant an exemption subject to conditions that promote the objects of Part 6 of the Principal Regulations. Subclause (3) empowers the Commission to vary, add or revoke a condition. Subclause (4) requires the Commission to provide a written notice to the defence employing authority which sets out the reasons for the addition, variation or revocation of a condition to an exemption. The notice must also specify the time when an addition, variation or revocation takes effect.

Clause 3.10 - Operation of an exemption

Clause 3.10 provides for the commencement, cancellation and cessation of an exemption to the defence employing authority for the prohibition on using chrysotile at work. Subclause (2) requires the Commission to cancel an exemption if it is no longer consistent with the objects of Part 6 or the defence employing authority asks for the exemption to be cancelled.

As the exemption relates to the use of a hazardous substance which can be harmful if controls are not deployed, the Commission may cancel an exemption without consulting the defence employing authority. However, as the defence employing authority is granted exemptions on the basis that items are mission-critical, the Commission will consult the defence employing authority before cancelling the exemption if it is practicable to do so.

Subclause (4) requires the Commission to provide a written notice to the defence employing authority of its decision to cancel an exemption. The notice must set out the reasons for the decision and specify the time from which it is cancelled.

Subclause (5) provides that the first exemption for an item is for 12 months or at the end of any earlier day stated in the table relevant to the exempted item. If the defence employing authority reapplies for an exemption for that item, the exemption will expire at the end of the day stated in the table relevant to the exempted item, or at the end of any earlier day that may be stated in the exemption.