Commonwealth Numbered Regulations - Explanatory Statements

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OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) (NATIONAL STANDARDS) REGULATIONS 1994 NO. 414

Statutory Rules 1994 No. 414

Issued by the Authority of the Assistant Minister for Industrial Relations

Occupational Health and Safety (Commonwealth Employment) Act 1991

Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations

Subsection 82(1) of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.

The Act provides for the health and safety of Commonwealth employees and others at work and establishes a framework within which Commonwealth employers, employees and involved unions may co-operate to address health and safety issues.

Subsection 23(1) of the Act provides that the regulations may make provisions relating to any matter affecting, or likely to affect the occupational health and safety of employees or contractors.

Under agreement with the States and Territories, regulatory occupational health and safety schemes are being established which are standard across the Commonwealth and the States and Territories.

The regulatory schemes are based on national standards and codes of practice developed by the National Occupational Health and Safety Commission (the Commission). Subsection 38(1) of the National Occupational Health and Safety Commission Act 1985 (the NOHSC Act) provides that the Commission may declare national standards and codes of practice relating to occupational health and safety matters.

However, subsection 38(2) of the NOHSC Act provides in part that, except as otherwise provided by a law other than that Act, a national standard or code of practice is of advisory character.

For this reason, has been necessary to make provision for these national standards and codes on a legislative basis, as the Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations (the Regulations).

The Regulations comprise the first in a series of packages of regulations being developed. The Regulations implement, for the Commonwealth public sector, the Commission's National Occupational Health and Safety Certification Standard for Users and Operators of Industrial Equipment, and the Commission's National Standard for Occupational Noise.

Part 2 of the Regulations will ensure that only appropriately trained and certified employees work in a range of occupations which are set out in that Part. Provision is made for the recognition of certificates issued before the commencement of the Regulations, by a number of Commonwealth agencies.

Part 3 of the Regulations will ensure that Commonwealth employers take all reasonably practicable steps to ensure that persons at work are not exposed to noise in excess of a prescribed exposure standard. Part 3 also set out duties, in relation to occupational noise, of Commonwealth employers and of manufacturers, suppliers and installers of plant.

Details of the Regulations are attached.

The Regulations will commence on 31 March 1995.

ATTACHMENT

Details of the Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations

PART 1 - INTRODUCTION

Regulation 1.01 provides the title of the Regulations.

Regulation 1.02 provides that the Regulations are to commence on 31 March 1995.

Regulation 1.03 provides that the definitions of certain expressions used in the regulations are located in Part 10 of the Regulations (common definitions).

Regulation 1.04 provides a general defence for a person who can provide evidence that an offence against the Regulations arises out of circumstances over which he or she did not have control.

PART 2 - COMPETENCY REQUIREMENTS AND CERTIFICATION STANDARDS FOR USERS AND OPERATORS OF INDUSTRIAL EQUIPMENT

Division 1 - Introduction

Regulation 2.01 defines the object of Part 2, which is to minimise the incidence and severity of injuries associated with performing the work of occupations covered by the Part, by requiring employees and contractors to have a particular standard of competency; and to arrange for the possession and use of certificates that state that a person has a particular standard of competency.

Regulation 2.02 defines a number of the terms used that are specific to this Part, including "certifying authority" and "National Standard".

Regulation 2.03 prescribes the range of occupations that are applicable to this Part.

Regulation 2.04 defines a certificate of competency as a document that defines the competency of the person to whom it has been issued by an authority of a State or Territory (a certifying authority), under the relevant law of the State or Territory concerned. Under the Regulations, to perform the work of any of the described occupations, Commonwealth employees must hold either a State or Territory certificate of competency or a pre-existing Class A or Class B Commonwealth certificate. Commonwealth certificates will not be recognised under State or Territory laws.

Regulation 2.05 defines these two classes of Commonwealth certificates (Class A and Class B), which provide for the recognition of existing certificates issued by some Commonwealth agencies to employees who have undertaken some form of "in-house' competency based training in the work of the occupations described in the Part. Class A certificates cover those certificates which are comparable with the requirements of the National Standard. These are identified by reference to tables setting out a range of comparable State, Territory and overseas qualifications, defined in regulation 2.02 as the "Equivalence and Translation Tables". Class B certificates are those existing certificates which do not meet the requirements of the National Standard. They will continue to be recognised only within the Commonwealth organisation in which they were issued. The incidence of these certificates is understood to be very small.

Only Commonwealth certificates issued prior to the commencement of the Regulations will be recognised in this way. After this time, State or Territory certificates of competency will be required.

Division 2 - Duties relating to the performance of work

Regulation 2.06 describes the certification requirements necessary to perform the work of the occupations described in this Part.

A penalty is provided for contravention of the regulation.

Regulation 2.07 prescribes the obligation of a Commonwealth employer to ensure that only persons with appropriate certificates carry out the work of the prescribed occupations.

Penalties are provided for contravention of the regulation.

Regulation 2.08 requires an employee or contractor, who holds a certificate, to show the certificate to an investigator appointed under the Act, if required to do so.

A penalty is provided for contravention of the regulation.

Division 3 - Suspension and cancellation of certificates

Regulation 2.09 prescribes the circumstances in which, and process by which, Comcare may recommend to a certifying authority, that a certificate of competency issued by that State or Territory be suspended or cancelled. Reasons are to be given by Comcare for such a recommendation.

The provision would require Comcare to provide, to the person holding the certificate, written notice that it is considering recommending to the relevant certifying authority that the certificate be suspended or cancelled and giving the person an opportunity to submit why the recommendation should not be made. Comcare would also be required to give the person concerned written notice of its recommendation.

Administrative appeals procedures in the relevant State or Territory will apply.

Regulation 2.10 allows Comcare to suspend or cancel a Commonwealth certificate where evidence suggests such action is warranted. The circumstances in which a certificate may be cancelled and the procedures to be followed by Comcare are similar to those outlined in subregulation 2.09, in relation to a certificate issued by a certifying authority.

Regulation 2.13 provides that appeals, against a decision of Comcare made under regulation 2.10 and under regulation 2.11, can be made to the Administrative Appeals Tribunal.

Regulation 2.11 allows Comcare to consider and act on the recommendation of a certifying authority, in respect of the suspension or cancellation of a Commonwealth certificate.

Regulation 2.12 sets out the time within which Commonwealth certificates, that have been suspended or cancelled, are to be returned to Comcare. Comcare is to return a certificate to the holder as soon as practicable after the suspension ends.

A penalty is provided for contravention of this provision.

PART 3 - OCCUPATIONAL NOISE

Regulation 3.01 defines the object of Part 3, being to ensure that persons at work are not exposed to noise in excess of the exposure standard, which has been prescribed. Part 3 of the Regulations also aims to ensure that Commonwealth employers implement appropriate personal protective measures where necessary.

Regulation 3.02 defines a number of the terms used that are specific to this Part, including "noise assessment" and "relevant plant".

Regulation 3.03 defines the occupational noise exposure standard to be adopted under this Part, in accordance with relevant Australian Standards.

Regulation 3.04 prescribes the specific duties, in relation to design and construction of relevant plant, of manufacturers of this plant for the purposes of Part 3 of the Regulations. Regulation 3.04 also requires the manufacturer of relevant plant to provide information to the employer about noise emitted by the plant.

Penalties are prescribed for contraventions of regulation 3.04.

Regulation 3.05 prescribes the duties of suppliers of relevant plant, which are in relation to ensuring the safe use of the plant and the provision, to an employer, of information about the noise emitted from the plant, ways to keep this at the lowest level that is reasonably practicable to achieve.

Penalties are prescribed for contraventions of regulation 3.05.

Regulation 3.06 similarly prescribes the duties of installers of relevant plant.

Penalties are prescribed for contraventions of regulation 3.06.

Regulation 3.07 places an obligation on employers to have noise assessments conducted if a risk exists of an employee or a contractor being exposed to noise in excess of the exposure standard. The regulation also provides that a further assessment be conducted after a specified period of time and when workplace engineering or administrative changes may result in a significant increase in the noise to which employees or contractors are exposed.

Penalties are prescribed for contraventions of regulation 3.07.

Regulation 3.08 requires an employer to provide and maintain a work environment that does not expose employees or contractors to noise in excess of the exposure standard. A step-bystep procedure for the control of noise is prescribed, including the provision to an employee or a contractor of a personal hearing protector which complies with the relevant Australian Standard. An employer is required to ensure that personal hearing protection is properly used and maintained.

Penalties are prescribed for contraventions of regulation 3.08.

Regulations 3.09 and 3.10 requires an employee and a contractor, respectively, to comply with any noise control measure implemented in accordance with Part 3 of the Regulations, to advise the employer of any noise control equipment known to be defective and to *use any personal hearing protection which has been provided.

Penalties are prescribed for contraventions of regulations 3.09 and 3.10.

PART 10

Regulation 10.01 defines a number of words and terms used commonly in the Regulations.