Commonwealth Numbered Regulations - Explanatory Statements
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WORK HEALTH AND SAFETY AMENDMENT REGULATION 2012 (NO. 1) (SLI NO 291 OF 2012)
Select Legislative Instrument 2012 No. 291
Issued by the authority of the Minister for Employment and Workplace Relations
Subject - Work Health and Safety Act 2011
Work Health and Safety Amendment Regulation 2012 (No. 1)
Section 276 of the Work Health and Safety Act 2011 (the WHS Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The WHS Act and Work Health and Safety Regulations 2011 (the WHS Regulations) commenced on 1 January 2012 and implement the Model Work Health and Safety Act and Regulations (the Model WHS legislation) within the Commonwealth jurisdiction. The Model WHS legislation has been developed in accordance with the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety and is intended to be mirrored in all jurisdictions as part of a harmonised scheme of work health and safety (WHS) laws.
The Work Health and Safety Amendment Regulation 2012 (No. 1) (the Regulation) makes amendments to the WHS Regulations to:
* repeal subregulation 727(2) of the WHS Regulations to extend the transitional period for obtaining a high risk work licence for the operation of a reach stacker
* amend Schedule 2 to the WHS Regulations to include a new fee for the issue of a general construction induction card, and
* correct a minor drafting error in Schedule 2.
Extension of transitional period for High Risk Work licence for reach stackers
Regulation 81 of the WHS Regulations requires a person to hold a high risk work licence (HRW licence) to carry out high risk work. Item 23 of Schedule 3 and item 24 of Schedule 4 to the WHS Regulations specify the Vocational Education and Training (VET) course which must be completed to obtain a HRW licence for the operation of a reach stacker. Subregulation 727(2) is a transitional provision which provides that the requirement to hold this HRW licence commences on 1 January 2013. However, the units of training competency in the VET course for this licence are still under development and are proposed to be finalised in early 2013.
The Commonwealth WHS Regulations operate concurrently with state and territory work health safety (WHS) laws and provide for mutual recognition of licences obtained under a corresponding state law. With respect to HRW licences for reach stacker operations, the Commonwealth proposes to rely on the exemption arrangements in the relevant state or territory where work is being undertaken until the relevant VET course has been finalised. This will mean that the transitional period for obtaining the new class of reach stacker licence will be extended until the mirror requirements come into effect in the states or territories. The transitional arrangements will expire on 1 July 2014.
The Regulation repeals subregulation 727(2) of the WHS Regulations to enable the Commonwealth jurisdiction to rely on the exemption arrangements for HRW licences for reach stacker operations in the relevant state or territory where work is being undertaken until 1 July 2014.
The Regulation also replaces a reference to 'corresponding jurisdiction' in subregulation 727(1)(c) with a reference to 'state' for the avoidance of any doubt. 'Corresponding jurisdiction' is currently not defined in the WHS Act or WHS Regulations. Section 4 of the WHS Act defines a 'State' to include a Territory.
Fee for the issue of General Construction Induction Training Cards
Subregulation 319(1) of the WHS Regulations provides that a person who has successfully completed general construction induction training may apply to the regulator for a general construction induction training card. Subregulation 319(4) of the WHS Regulations provides that the application must be accompanied by the relevant fee. The Regulation amends Table 2.1 of Schedule 2 to the WHS Regulations to prescribe a fee of $30 for an application for a general construction induction training card.
The duty of persons conducting a business or undertaking to ensure that workers undertaking construction work are provided general construction induction training applies from 1 January 2013 (by virtue of transitional arrangements provided by regulation 749).
Correction of minor error
The Regulation also amends Table 2.1 of Schedule 2 to the WHS Regulations to correctly refer to subsection 72(1) of the WHS Act, rather than regulation 72 of the WHS Regulations. In addition, the Regulation amends the structure of Table 2.1 to more clearly set out the provisions of the WHS Act and the WHS Regulations under which fees are payable.
Comcare and Safe Work Australia have been consulted in relation to the amendment.
The WHS Act does not impose any conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required.
The Regulation commences the day after it is registered on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Work Health and Safety Amendment Regulation 2012 (No. 1)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Work Health and Safety Amendment Regulation 2012 (No. 1) (the Regulation) makes amendments to Schedule 2 to the Work Health and Safety Regulations 2011 (the WHS Regulations) which provides for fees to be determined for specified matters.
In particular, the Regulation amends the WHS Regulations to:
* repeal subregulation 727(2) of the WHS Regulations to extend the transitional period for obtaining a high risk work licence for the operation of a reach stacker
* amend Schedule 2 to the WHS Regulations to include a new fee for the issue of a general construction induction card, and
* correct a minor drafting error in Schedule 2.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
William Richard Shorten, Minister for Employment and Workplace Relations
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