Commonwealth Numbered Regulations - Explanatory Statements

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OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) (NATIONAL STANDARDS) REGULATIONS (AMENDMENT) 1995 NO. 53

Statutory Rules 1995 No. 53

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 (Amendment)

Subsection 82(1) of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act) provides that the Governor-Genera 1 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 agreements with the States and Territories, regulatory occupational health and safety schemes are currently being established which are standard across the Commonwealth and the States and Territories,

The regulatory schemes being adopted 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.

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, it is necessary to provide for these national standards and codes on a legislative basis. A number of these national standards have been put on a legislative basis by making the Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations (the Regulations).

The Regulations, which were made in late 1994, comprise the first in a series of packages of regulations being developed. Part 2 of the Regulations, which commenced on 31 March 1995 implement, for the Commonwealth public sector, the Commission's National Occupational Health and Safety Certification Standard for Users and Operators of Industrial Equipment. Part 2 ensures 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.

It has been necessary to make a number of amendments to the Part 2 of the Regulations.

Regulation 2.06 and regulation 2.07 form the basis of the certification scheme. Regulation 2.06 prohibits an employee or contractor who does not hold an appropriate State or Territory certificate of competency issued by an authority of a State or Territory, or a pre-existing Commonwealth Class A or Class B certificate from performing work of any of the occupations which are prescribed in the Part (the "prescribed occupations"). Regulation 2.07 obliges a Commonwealth employer to ensure that only persons holding such a certificate performs the prescribed occupations.

A number of States and the Australian Capital Territory did not have their own certification legislation and consequent administrative processes in place to commence on 31 March 1995 and, for this reason, it was necessary to put into place transitional provisions to cover the period until the requisite legislative and administrative schemes are in place.

Regulation 2.07A allows employees who, at the commencement of the Regulations did not hold an existing State, Territory or Commonwealth certificate of competency, and who are working in a State or Territory for which Comcare is satisfied that the existing certificate of competency does not meet the requirements of the National Standard, to continue to perform working without the requisite certificate. Dates are set for the end of operation of these transitional provisions for South Australia and Victoria.

The Regulations did not allow a person to work while under training. Regulation 2.07B now enables an employee to work in the prescribed occupations, without holding a certificate of competency, while under direct supervision during a training period. Regulation 2.07D makes a similar general provision for contractors.

Penalties are provided for contravention of regulation 2.07B.

Regulation 2.07C allows an employee to work in a prescribed occupation for a maximum period of 60 days, following advice from a certificate assessor that the employee is competent at the prescribed occupation, but while awaiting the issue of a certificate of competency. Regulation 2.07E makes the same provisions for contractors.

Paragraph 2.06(1)(b) and paragraph 2.06(2)(b) of the Regulations provide for the certifying authority of a State or Territory to exempt an employee and a contractor, respectively, from the requirement to hold a certificate of competency.

Regulation 2.07F enables Comcare to similarly exempt an employee or a contractor from the requirement to hold a certificate of competency or a Commonwealth Class A or Class B certificate.

A penalty is provided for contravention of the regulation.

Regulation 2.13 has been amended to provide that an appeal, against a decision made by Comcare under regulation 2.07F, can be made to the Administrative Appeals Tribunal.

The amending Regulations commenced on 31 March 1995.