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 2015 (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 model work health and safety laws (model WHS laws), comprising the model work health and safety act, model work health and safety regulations (model WHS Regulations) and the model codes of practice, were developed under the Inter-governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety ('IGA'). The IGA requires each jurisdiction to enact or otherwise give effect to their own laws that mirror the model WHS laws as far as possible.

The Work Health and Safety Act 2011 (WHS Act) and the Work Health and Safety Regulations 2011 (WHS Regulations), give effect to the model WHS laws in the Commonwealth jurisdiction.

The WHS Act provides the primary duties of care in relation to work health and safety of persons conducting a business or undertaking, officers and workers, as well as obligations in relation to incident notification, consultation, representation and participation, rights of entry and enforcement. The duties under the Act are enforced by criminal penalties.

The WHS Regulations provide a detailed system of subordinate obligations and duties which inform the standard required by the duties under the Act, either generally or in relation to specific circumstances or work types. The duties under the Regulations are also enforced by criminal penalties.

The Legislative Instrument makes amendments to the WHS Regulations to implement, in the Commonwealth jurisdiction, a number of changes to the model WHS Regulations agreed by Safe Work Australia and endorsed by the Select Council on Workplace Relations on 11 April 2014. Most of the amendments are technical in nature and either clarify or correct the operation of the model WHS Regulations without any change in the intended policy. Two of these technical changes do involve substantive changes in the operation of the WHS Regulations:

*                exempting the operation of plant for the purposes of loading or unloading plant from a vehicle or equipment used to move the plant within the workplace from the requirement to hold a license for high risk work; and

*                disapplying certain requirements in Part 8.3 in relation to domestic premises used for residential purposes.

The amendments also implement the following substantive policy changes which reduce the level of prescription in the current work health and safety regulation:

*                recognising an additional Australian Standard for diving work competencies;

*                removing existing requirements for protective structures on earth moving machinery; and

*                removing external verification requirements for in-house plant design.

The overarching legitimate objectives of the amendments are to clarify the operation of the WHS regulations and removing unnecessary prescription, while maintaining the same high standards of work health and safety protections. Further, the Commonwealth is required to implement these changes to the WHS Regulations in order to comply with its commitments under the IGA.

Human Rights Implications

A human right engaged by this Instrument is the right to just and favourable conditions of work contained in Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR). The right to enjoy just and favourable working conditions has various components that require states to establish a minimum standard for working conditions for all workers and develop appropriate enforcement measures. One of the components of Article 7 is the right to safe and healthy working conditions. In relation to this right, the Committee on Economic, Social and Cultural Rights has stated that 'people must be afforded minimum conditions of occupational health and safety, and States parties are responsible for adopting policies and laws to that end'.[1]

The right to safe and healthy working conditions is primarily underpinned in Australia by work health and safety legislation at the Commonwealth, state and territory levels. At the Commonwealth level, this includes the WHS Act and the WHS Regulations. The WHS Act places high level duties on a range of entities which can influence work health and safety that are designed to ensure safe and health working conditions. It is supported by the WHS Regulations which provides more detailed and prescriptive obligations.

Operation of plant when being moved within the workplace

Part 4.5 of the WHS Regulations require workers carrying out high risk work to be licensed, subject to the exceptions provided in regulation 82.

Included in the categories of high risk work which requires a high risk work licence is the use of certain plant, such as a reach stacker or forklift truck. To use such a plant, a worker must have the appropriate high risk work licence. However, regulation 82 creates an exception for workers who are, among other things, moving the plant within the workplace when the plant is not carrying any additional load. The intention of this exemption is it would be excessive to impose licensing requirements intended for the use of a plant on workers who are merely moving an unloaded plant within the workplace.

Currently, this exemption does not include operating the plant to load or unload it from a vehicle or equipment used to move the plant. The Instrument amends this to provide that operating plant to load or unload it does not require a high risk work licence. In practice this means that, for example, a worker who drives an unloaded forklift into the back of a truck, who would currently be required to hold a high risk work licence, will no longer be required to hold that licence.

As the Regulation exempts an activity that was previously required to be licenced, this amendment may be seen as a reduction in work health and safety standards. However, the exception is narrow in scope, and consistent with the existing broader exception that applies in relation to movement of plant at the workplace. As such, any limitation is reasonable, necessary and proportionate to the legitimate objective of removing unnecessary prescription, while maintaining the same high standards of work health and safety protections.

Moreover, the exception does not alter the general duties that are owed by persons conducting a business or undertaking to workers under the WHS Act or the other duties contained in the WHS Act that underpin the right to healthy and safe working conditions. In particular, a person conducting a business or undertaking with management or control of plant will still be required by the WHS Act to ensure, so far as reasonably practicable that the plant are without risks to health and safety (section 22 of the WHS Act).

Recognition of an additional Australian Standard for diving work competencies

Regulation 171, which specifies the competencies for general diving work, currently requires a person carrying out general diving work to be certified against AS/NZS 4005.2:2000 (Training and certification of recreational divers - Recreational SUBA dive supervisor).

The Regulation amends this requirement by enabling a person to be certified against either AS/NZS 4005.2:2000 or AS/NZS 2815 (Training and certification of occupational divers), depending on which is relevant to the type of diving work the person is carrying out.

As the requirements of AS/NZS 2815 are less onerous than those of AS/NZS 4005.2.2000 this amendment may be seen as a reduction in work health and safety standards. However, any limitation is considered compatible with the right to safe and healthy working conditions for a number of reasons.

First, the Regulation retains certification requirements for persons carrying out general diving work while recognising that different competencies may be applicable to different types of general diving work. In particular, it recognises that competencies relating to dive supervision may not be relevant to all general diving work. By removing the requirement to demonstrate competencies that are not relevant, the Instrument removes unnecessary prescription while maintaining the same standard of work health and safety protections.

Second, the option to comply with the less onerous requirements of AS/NZ 2815 does not alter the general duties that are owed by persons conducting a business or undertaking to workers under the WHS Act or the other duties contained in the WHS Act that underpin the right to healthy and safe working conditions. In particular, the WHS Act requires a person conducting a business or undertaking to ensure, so far as reasonably practicable, the provision of any information, training, instruction or supervision that is necessary to protect all persons from risk to their health and safety arising from work carried out as part of the business or undertaking.

Removal of existing requirements for protective structures on earth moving machinery

Regulation 217 requires a person with management or control of earthmoving machinery above a certain weight at a workplace to ensure that the machinery is not used unless it is securely fitted with a protective structure.

The Regulations repeal regulation 217.

As the Regulation removes an existing safety requirement, this amendment may be viewed as a reduction in work health and safety standards. However, this regulation had unintended consequences and workability issues particularly where there may be little or no relevant risks posed to operators of certain kinds of earthmoving machinery, such as pavers. The risks associated with earthmoving machinery are more appropriately addressed through general duties relating to plant and by guidance material.

 

Moreover, the removal of this requirement does not alter the general duties that are owed by persons conducting a business or undertaking to workers under the WHS Act or the other duties contained in the WHS Act that underpin the right to healthy and safe working conditions. In particular, under the WHS Act, persons with management or control of plant, including earthmoving equipment, will still have a duty to ensure, so far as is reasonably practicable, that the plant is without risks to the health and safety of any person. This duty addresses the same risks to health and safety, but in a more flexible manner that is appropriate for different risks associated with different types of earthmoving equipment.

As such any limitation on the right to safe and healthy working conditions is reasonable, necessary and proportionate to the Instrument's legitimate objective of removing unnecessary prescription, while maintaining the same high standards of work health and safety protections.

Removal of external verification requirements for in-house plant design

Regulation 252 of the WHS Regulations specifies who can, and who cannot, be a design verifier for the purposes of the design verification process. Regulation 252 currently prohibits a person involved in the production of the design, or a person engaged by the person that produced the design, from verifying the design.

The Regulation removes the latter requirement--thereby permitting in-house verification of designs--but retains the prohibition on a person who was involved in the production of the design being the design verifier.

As the Regulation removes an existing limitation on who can verify a design, this amendment may be seen as a reduction in work health and safety standards. However, this limitation is reasonable and proportionate, as the overarching protections of the design verification process is being retained, as is the prohibition on a person involved in the production of the design being the verifier. Further, the duty in the WHS Act on designers to ensure, so far as reasonably practicable, that plant are without risk to health and safety will continue to apply. Any limitation is also necessary to achieve the legitimate objective of removing unnecessary prescription, while maintaining the same high standards of work health and safety protections.

Disapply certain requirements in Part 8.3

Part 8.3 of the WHS regulations sets out the requirements for duty holders to manage the risk associated with any asbestos (other than naturally occurring asbestos) at a workplace.  These requirements include maintaining asbestos registers and asbestos management plans for workplaces.

The Regulation amends regulation 421 to provide that the requirements relating to asbestos registers and management plans do not apply in relation any part of a domestic premise that is used only for residential purposes.

As the Regulation reduces the scope of the application of Part 8.3, this amendment may be seen as a reduction in the conditions of occupational health and safety. However, the amendment is necessary to achieve the intention of not applying onerous and intrusive requirements to residential premises. Further, as the amendment only affects workplaces that are also domestic premises used for solely residential purposes, any reduction in work health and safety conditions is reasonable and proportionate to this legitimate objective.

Conclusion

This Legislative Instrument is compatible with human rights. It clarifies the operation of the WHS regulations and removes unnecessary prescription, while maintaining the same high standards of work health and safety protections. It is also necessary to comply with the Commonwealth's obligations under the IGA. To the extent that it impacts on rights, it does so in a manner that is necessary to achieve this legitimate objective and that is reasonable and proportionate, because it is targeted at unnecessary prescription and does not derogate from the general duties work health and safety duties set out in the WHS Act.

The Hon. Luke Hartsuyker MP, Assistant Minister for Employment

 

Details of the Work Health and Safety Amendment Regulation 2015 (No. 1)

Section 1 - Name of Regulation

This section sets out the name of the regulation as the Work Health and Safety Amendment Regulation 2015 (No. 1).

Section 2 - Commencement

This section provides that the regulation commences on the day after it is registered.

Section 3 - Authority

This section provides that the regulation is made under the Work Health and Safety Act (WHS Act).

Section 4 - Schedules

This section provides that Schedule 1 to the Regulation amends the Work Health and Safety Regulations 2011 (WHS Regulations).

Schedule 1 - Amendments

Work Health and Safety Regulations 2011

Item [1] - Subregulation 5(1) (definition of airborne contaminant)

This item corrects a typographical error by inserting a hyphen into the term 'micro-organisms'.

Item [2] - Subregulation 5(1) (definition of amusement device)

This item amends the definition of 'amusement device' to clarify that the term includes devices where users other than passengers travel or move on, around or along the equipment.

Item [3] - Subregulation 5(1) (definition of appropriate training in underwater medicine)

This item repeals the definition of 'appropriate training in underwater medicine'.

This definition referred to knowledge of the matters set out in clause M3 of Appendix M to AS/NZS 2299.1:2007 (Occupational diving operations -- Standard operational practice). This level of specification was considered to be inappropriate for the regulations and to be more appropriate for guidance material.

Item [4] - Subregulation 5(1) (subparagraph (d)(ii) of the definition of boiler)

Item [5] - Subregulation 5(1) (at the end of paragraph (d) of the definition of boiler)

These items add a reference to Parts 3 and 4 of the Australian Miniature Boiler Safety Committee's safety codes, which were unintentionally omitted from the original definition.

Item [6] - Subregulation 5(1) (paragraph (e) of the definition of boiler)

This item amends the definition of boiler so that the definition of the term provided in paragraph (e) applies in both Schedules 3 and 4 of the WHS Regulations. This corrects the unintentional omission of a reference to Schedule 4.

Item [7] - Subregulation 5(1)

This item inserts a definition of 'combustible dust'. This term is used in the amended definition of 'hazardous area' (see item 12).

Item [8] - Subregulation 5(1) (definition of combustible liquid)

This item repeals the definition of 'combustible liquid'. This definition was considered confusing and inconsistent with how the term 'combustible liquid' is used in the Globally Harmonised System of Classification and Labelling of Chemicals.

Item [9] - Subregulation 5(1) (paragraphs (c) and (d) of the definition of competent person)

This item repeals and replaces paragraphs (c) and (d) of the definition of 'competent person'.

These definitions are signpost definitions only, with the substantive definitions contained in regulations 235 and 241. The changes to these signpost definitions are consequential on the amendments made to these regulations by items 58 and 59, respectively.

Item [10] - Subregulation 5(1) (definition of concrete placement unit with delivery boom)

This item repeals the definition of 'concrete placement unit with delivery boom'.

This amendment is intended to avoid the unintentional exclusion of fixed units from registration requirements in Schedule 5 of the WHS Regulations.

These units will instead be captured under the broader existing definition of 'concrete placing boom'.

Item [11] - Subregulation 5(1) (paragraph (a) of the definition of gantry crane)

This item amends the definition of 'gantry crane' so that it covers both 'two legged' gantry cranes and also 'one legged' or semi-gantry cranes.

Item [12] - Subregulation 5(1) (definition of hazardous area)

This item repeals and replaces the definition of 'hazardous area' to provide a self-contained definition, rather than one which relies on external standards.

The definition provides that a hazardous area is an area in which either:

*         an explosive gas is present in the atmosphere in a quantity that requires special precautions to be taken for the construction, installation and use of plant; or

*         a combustible dust is present, or could reasonably be expected to be present, in the atmosphere in a quantity that requires special precautions to be taken for the construction, installation and use of plant.

A definition of 'combustible dust' is inserted by item 7.

Item [13] - Subregulation 5(1) (paragraph (b) of the definition of incidental diving work)

Item [14] - Subregulation 5(1) (paragraph (c) of the definition of incidental diving work)

These items repeal paragraph (c) of the definition of 'incidental diving work'.

Paragraph (c) provided that diving work was only incidental diving work if it was being carried out and supervised in the water by a person with certain qualifications. Rather than including it as part of the definition, this requirement has been moved to regulation 172 in Part 4.8 (see item 52), which sets out the substantive duties in relation to diving work. This ensures that the requirements in relation to diving work are located in a single part of the WHS Regulations.

Item [15] - Subregulation 5(1)

This item inserts new definitions of 'inflatable device (continuously blown)', 'platform height' and 'passenger ropeway'.

'Inflatable device (continuously blown)' and 'platform height'

The new definition of 'inflatable device (continuously blown)' will apply to an 'amusement device' that is inflatable and relies on a continuous supply of air pressure to maintain its shape.

The new term 'platform height' is used to classify amusement devices in the 'inflatable device (continuously blown)' category, by reference to the highest part of the device designed to support persons using it -- measured from the ground (or other supporting surface) to the top of the platform.

The terms are used by amended regulation 241 to specify who is a competent person to inspect inflatable devices below a certain size (see item 59), and in Schedule 5 to exempt inflatable devices below a certain size from registration requirements (see items 92 and 95).

'Passenger ropeway'

The new definition of 'passenger ropeway' will apply to powered ropeways used for transporting passengers in a carrier that is attached or supported by a moving rope. The definition also captures the prime mover, transmission machinery and any supporting structure and equipment. The definition does not apply to:

*         cog railways;

*         cable cars running on rails;

*         flying foxes or similar devices; or

*         elevating systems for vehicles or boat style carriers associated with amusement devices.

The note to the definition provides readers with an example of an elevating system for vehicles or boat style carriers associated with amusement devices.

Item 59 amends regulations 238-241, which provide specific control measures in relation to amusement devices, so that these also apply to 'passenger ropeways'. Item 87 amends Schedule 5 to provide that plant design registration obligations apply in relation to 'passenger ropeways'.

Item [16] - Subregulation 5(1)

Item [17] - Subregulation 5(1) (definition of primary emergency services organisation)

This item repeals and replaces the definition to change the defined term from 'primary emergency services organisation' to 'primary emergency service organisation'.

Item [18] - Subregulation 5(1) (definition of safe oxygen level)

This item amends the definition of 'safe oxygen level' to correct a typographical error.

Item [19] - Subregulation 5(1) (paragraph (b) of the definition of specified VET course)

This item amends the definition of 'specified VET course' in relation to Class A asbestos removal work. The definition currently specifies two courses: 'remove non-friable asbestos' and 'remove friable asbestos'. The course 'remove friable asbestos' covers the removal of both friable and non-friable asbestos. As such, the definition has been changed to specify only the course 'remove friable asbestos'.

Item [20] - Subregulation 5(1) (at the end of the definition of specified VET course)

This item inserts a new paragraph into the definition of 'specified VET course' to refer to the list of relevant VET courses for high risk work licences in Schedule 4 of the WHS Regulations. This corrects an inadvertent omission.

Item [21] - Subregulation 21(2)

This item amends subregulation 21(2) to clarify that the regulator may have regard to 'any', rather than 'all', relevant matters when approving a course of training in work health and safety for health and safety representatives.

Item [22] - At the end of paragraph 21(2)(a)

This item adds the word 'and' between paragraphs (a) and (b) to clarify that the regulator may have regard to matters including:

(a)    the content and quality of the curriculum; and

(b)   the qualifications, knowledge and experience of the person who is to provide the course.

Item [23] - Subregulation 25(3)

This item amends subregulation 25(3) to provide that the regulator 'may' have regard to 'any' relevant matters, rather than 'must' have regard to 'all', when approving training for work health and safety entry permit holders.

Item [24] - At the end of paragraph 25(3)(a)

This item adds the word 'and' between paragraphs (a) and (b) to clarify that in approving a work health and safety entry permit course, the regulator may have regard to matters including:

(a)    the content and quality of the curriculum; and

(b)   the qualifications, knowledge and experience of the person who is to provide the training.

Item [25] - Subregulation 43(3)

This item makes a technical change by replacing the word 'consider' with the phrase 'have regard to'.

Item [26] - Subregulation 82(1)

This item repeals and replaces subregulation 82(1) and inserts new subregulations 82(1A) (1B) in order to clarify when an individual can conduct high risk work while undergoing the process of applying and being assessed for a high risk work licence.

Currently, paragraph 82(1)(b) provides that a person who is awaiting a decision on their licence application is exempted from the requirement to be licensed.

This is replaced by new subregulation 82(1A) which provides that an exemption applies for 60 days after the person receives the relevant certification for the licence. A further exemption applies if the person applies for a high risk work licence within this time. This exemption applies until the person is either granted the licence (at which point the exemption is unnecessary) or until 28 days after the person receives notice that their licence application was refused. This 28 day period would be in addition to the minimum 28 day notice period the regulator must give the applicant if it proposes to refuse a high risk work licence application before finalising the decision (see regulation 91).

New subregulation 82(1B) provides that a person is not required to be licenced to carry out high risk work while they are being assessed for their competency in relation to that work.

Item [27] - Subregulation 82(3)

This item clarifies that a person operating plant in order to load the plant onto, or unload it from, a vehicle or equipment to move it (such as a truck) is exempted from the requirement to hold a high risk work licence to operate the plant.

Item [28] - Subregulation 84(1)

Item [29] - Subregulation 84(1)

These items change a reference to paragraph 82(1)(a) to subregulation 82(1) and clarify that the subregulation refers to the circumstances in subregulation 84(2). This is consequential on the amendments in item 26.

Item [30] - Subregulation 85(2)

Item [31] - After subregulation 85(2)

These items make amendments to regulation 85 that are consequential on the changes to regulation 82 made by item 26.

Amended regulation 85(2) and new regulation 85(2A) create offences for a person conducting a business or undertaking to direct or allow a worker to carry out high risk work without a licence in the situations set out in subregulations 82(1) and (1A) without seeing written evidence that an exemption created by those subregulations apply.

Item [32] - Subregulation 85(3)

This item changes a reference to paragraph 82(1)(a) to subregulation 82(1). This is consequential on the amendments in item 26.

Item [33] - Subregulation 85(4)

This item amends subregulation 85(4), which creates a record keeping obligation, supported by an offence, in relation to the evidence provided under regulation 85.

The amendment clarifies that this obligation does not require the person conducting the business or undertaking to keep the licence document (or other evidence) itself, only a record of the licence document (or other evidence).

Item [34] - Paragraph 87(2)(b)

Regulation 87 sets out the requirements for an application for a high risk work licence. This item removes the specification that the photograph included in the application must be 'recent' and instead allows the regulator to require the photograph to be in a particular form.

The intention of this amendment is to remove the non-specific requirement for the photograph to be 'recent' and instead enable the regulator to specify more precise requirements. The regulator has a general power in subregulation 87(1) to specify the manner and form of the application, in addition to the specific power to specify the form of the photograph in amended paragraph 87(1)(b).

Item 37 makes an equivalent amendment to regulation 93, which sets out the requirements of the licence document.

Item [35] - Subparagraph 87(2)(f)(i)

This item replaces a reference to the VET courses in Schedule 4 to the WHS Regulations with a reference to the defined term 'specified VET course'. This is a technical amendment which reflects the introduction of a definition of 'specified VET course' in relation to this paragraph by item 20. The amendment does not alter the practical operation of this provision.

Item [36] - After regulation 91

This item inserts a new regulation 91A.

New regulation 91A provides the regulator with an express power to impose conditions on a high risk work licence. The regulator can impose conditions on a licence when granting the licence or when renewing the licence (see paragraph 104(1)(b), as amended by item 39).

New subregulation 91A(2) provide two specific examples of what conditions can relate to. These are:

*         the control measures that must be implemented in relation to the carrying out of work or activities under the licence

*         the circumstances in which work or activities authorised by the licence may be carried out.

New subregulation 91A(3) provides that the regulator must give the licence holder written notice of any conditions imposed on the licence.

Notes to the new regulation will inform readers that:

*         section 45 of the WHS Act requires a person to comply with conditions imposed on a licence

*         a decision to impose a condition on a licence is a reviewable decision (see regulation 676, as amended by item 78)

Item [37] - Paragraph 93(2)(b)

Regulation 93 sets out the requirements for the licence document for a high risk work licence.

This item removes the requirement that the photograph in the licence document must be 'recent'. In place of this requirement, the regulator will be able to determine requirements for the photograph as part of determining the 'form' of the licence document under subregulation 93(1).

Item 34 makes an equivalent amendment to regulation 87, which sets out the requirements for an application for a high risk work licence.

Item [38] - Paragraphs 101(2)(b) and (c)

Regulation 101 sets out the requirements for an application for the renewal of a high risk work licence.

This item amends subregulation 101(2) to replace the specific requirement for a licence application to include evidence of the applicant's identity and a recent photograph with a more general power for the regulator to require a photograph in a particular form and additional evidence of identity.

Item [39] - Paragraph 104(1)(b)

Regulation 104 provides for the modified application of certain regulations that set out the process for licence applications to licence renewals.

This item amends paragraph 104(1)(b) so that regulations 89 (except subregulation (5)), 90, 91A and 92 apply as if a reference to the grant of a licence were a reference to the renewal of a licence. This has the effect that:

*         Regulation 89 sets out the requirements for a decision on the renewal of the licence, but without the deemed rejection provision in subregulation 89(5);

*         Regulation 90 sets out that the matters which the regulator must have regard to includes any refusal to renew an equivalent licence

*         Regulation 91A allows the regulator to impose conditions on the licence when it renews it

*         Regulation 92 provides that the licence takes effect on the day it is renewed and, unless cancelled earlier, expires 5 years after that day.

Item [40] - After paragraph 106(1)(a)

Regulation 106 sets out grounds on which the regulator may suspend or cancel a high risk work licence.

This item inserts a new paragraph to provide the regulator may suspend or cancel a licence if satisfied that the licence holder has failed to comply with a condition of the licence.

Item [41] - After subregulation 106(1) (before the note)

Item [42] - Regulation 106 (note)

Item [43] - At the end of regulation 106 (after the note)

These items insert two new subregulations into regulation 106 to enable the regulator to vary the conditions on a high risk work licence when the regulator suspends the licence.

New subregulation 106(3) provides that if the regulator suspends a licence, the regulator may vary the conditions of the licence. This can include imposing new or different conditions on the licence.

New subregulation 106(4) provides that a variation of conditions takes effect when the suspension of the licence ends.

A new note to the regulation will inform readers that a variation of licence conditions is a reviewable decision (see regulation 676, as amended by item 80).

Item [44] - Regulation 108

Regulation 108 ensures procedural fairness for licence holders where the regulator is considering suspending or cancelling their licence. The regulation provides that before taking action against a high risk work licence holder, the regulator must give the licence holder written notice of the proposed action, set out the basis for the proposed action, and advise the licence holder they have (at a minimum) 28 days to make a submission in relation to the proposed action.

This item repeals and replaces regulation 108. New regulation 108 also applies these procedural fairness protections to any proposed variation of licence conditions under new subregulation 106(3) (see item 41).

Item [45] - At the end of paragraph 109(2)(b)

Regulation 109 sets out notice requirements where the regulator suspends or cancels a high risk work licence.

This item inserts new subparagraphs in paragraph 109(2)(b) to provide that this notice must include any variation of the licence conditions, and that such a variation takes effect from the end of the suspension.

Item [46] - Regulation 152

Regulation 152 provides an exception to the application of Division 4 of Part 4.7 of the WHS Regulations. This item amends regulation 152 to omit the word 'generate'. This is to clarify that this exception only applies to the supply of electricity, and not to the generation.

Item [47] - Subregulation 158(2) (note)

This item inserts the words 'in relation to' into the note to subregulation 158(2) to correct an inadvertent omission.

Item [48] - Subparagraph 161(4)(a)(ii)

Subregulation 161(4) sets out the required competencies of a safety observer for electrical work being carried out on energised electrical equipment.

This item amends the subregulation to provide that, in addition to being competent to rescue the worker, the safety observer must be competent to resuscitate the worker. This corrects an inadvertent omission.

Item [49] - Regulation 167

This item corrects a typographical error by replacing the phrase 'carrying out' with 'conducting'.

Item [50] - Paragraph 169(a)

This item removes the word 'appropriate' from paragraph 169(a). This reflects the repeal of the definition of 'appropriate training in underwater medicine' by item 3.

Item [51] - Regulation 171

This item repeals regulation 171 and replaces it with new regulations 171 and 171A.

The intention of this amendment is to divide regulation 171 into two separate regulations in order to clarify its operation and improve readability.

            Regulation 171

New regulation 171 sets out the required competencies for carrying out 'general diving work' by reference to Australian/New Zealand Standards 4005:2:2000 (Training and certification of recreational divers) and 2815 (Training and certification of occupational divers).

New subregulation 171(1) provides that a person must not carry out general diving work unless the person holds a certificate that demonstrates that the person has acquired the relevant competencies for that type of general diving work. New subregulation 171(2) clarifies that this does not apply to limited scientific diving work or incidental diving work.

Although subregulation 171(1) is not an offence provision, a note to regulation 171 directs readers to section 44 of the WHS Act. Where the regulations require work to be carried out by a person who has prescribed qualifications or experience, section 44 makes it an offence for:

*         A person who does not have those qualifications or experience to carry out that work; or

*         A person who conducts a business or undertaking to direct or allow a worker without those qualifications or experience to carry out that work.

New subregulation 171(3) provides that the 'relevant competencies' referred to by subregulation 171(1) are the competencies specified in AS/NZS 4005:2:2000 or AS/NZ 2815 that relevant to that type of general diving work.

            Regulation 171A

In addition to the requirements of regulation 171, new regulation 171A sets out required knowledge and skill that a person must have acquired through training, qualification or experience before carrying out general diving work. New subregulation 171A(2) provides that these requirements do not apply to incidental diving work or limited scientific diving work.

Although subregulation 171A(1) is not an offence provision, a note to the subregulation directs readers to section 44 of the WHS Act. Where the regulations require work to be carried out by a person who has prescribed qualifications or experience, section 44 makes it an offence for:

*         A person who does not have those qualifications or experience to carry out that work; or

*         A person who conducts a business or undertaking to direct or allow a worker without those qualifications or experience to carry out that work.

Item [52] - Subregulation 172(1)

Regulation 172 sets out the competency requirements for a worker carrying out incidental diving work. This item amends subregulation 172(1) to:

*         Replace a reference to paragraph 171(b) with a reference to regulation 171A (consequential on the amendments made by item 51).

*         Move a requirement to be supervised by an appropriate qualified individual from the definition of 'incidental diving work' to regulation 172 (see items 13 and 14).

New paragraph 172(1)(c) provides that a person must not carry out incidental diving work unless the person is accompanied and supervised in the water by a person who has the competencies referred to in regulation 171. This ensures that the person who supervises incidental diving work has the appropriate competencies for supervising diving as specified in AS/NZS 4005.2:2000 or AS/NZS 2815.

Although subregulation 172(1) is not an offence provision, a note to the subregulation directs readers to section 44 of the WHS Act. Where the regulations require work to be carried out by a person who has prescribed qualifications or experience, section 44 makes it an offence for:

*         A person who does not have those qualifications or experience to carry out that work; or

*         A person who conducts a business or undertaking to direct or allow a worker without those qualifications or experience to carry out that work.

Additionally, where the regulations require work to be carried out under the supervision of a person who has prescribed qualifications, section 44 makes it an offence for:

*         A person to carry out that work without the supervision of a person with those qualifications or experience; or

*         A person who conducts a business or undertaking to direct or allow a worker without those qualifications to carry out that work without the supervision of a person with those qualifications or experience.

Item [53] - Paragraph 173(1)(a)

This item changes a reference to paragraph 171(b) to regulation 171A. This is consequential on amendments made by item 51.

Item [54] - Paragraph 174(a)

This item changes a reference to paragraph 171(a) to regulation 171. This is consequential on amendments made by item 51.

Item [55] - Subregulation 175(2)

This item corrects a typographical error in subregulation 175(2).

Item [56] - Subregulation 215(1)

This item omits the words 'conducting a business or undertaking' from subregulation 215(1), so that the regulation uses the established term 'person with management or control'.

Item [57] - Regulation 217

This item repeals regulation 217. Regulation 217 requires a person with management or control of earthmoving machinery above a certain weight at a workplace to ensure that the machinery is not used unless it is securely fitted with a protective structure.

It was considered that this regulation had unintended consequences and workability issues, and that the risks associated with earthmoving machinery were better addressed through general duties relating to plant and by guidance material.

Item [58] - Subregulations 235(2) to (5)

Regulation 235 sets out duties of a person with management or control of a mobile crane or tower crane to inspect the crane.

This item repeals and replaces subregulations 235(2) to (5) with new subregulations 235(2) to (6) to:

*         introduce the term 'major inspection' to more precisely set out what is required for each inspection;

*         provide that a major inspection can either be carried out by, or under the supervision of, a competent person;

*         restructure the provision to improve readability; and

*         provide that a major inspection carried out under equivalent provisions of other work health and safety laws can satisfy the duty created by the regulation.

New subregulation 235(2) provides that a person must ensure that a 'major inspection' of the crane is carried out by, or under the supervision of, a competent person and when the inspection must be carried out. The time periods are the same as applied under the old subregulation 235(3).

New subregulation 235(3) provides that a 'major inspection' of a crane carried out in accordance with an equivalent provision of a corresponding work health and safety law is taken to be a major inspection for the purposes of regulation 235. This means that a person will not be required to carry out additional major inspections due to jurisdictional overlap of work health and safety acts or regulations.

New subregulation 235(4) defines who is a 'competent person' for the purposes of conducting a major inspection under regulation 235.

New subregulation 235(5) (which is substantively the same as previous subregulation 235(5)) allow the regulator to determine a person to be a 'competent person' in exceptional circumstances.

New subregulation 235(6) defines what must be done to satisfy the requirements to conduct a 'major inspection'.

Item [59] - Regulations 238 to 241

Regulations 238 to 241 set out specific control measures in relation to amusement devices.

This item repeals and replaces these regulations to apply these regulations to passenger ropeways as well as amusement devices. Except where noted, the new regulations have the same substantive operation and, except for their expansion to passenger ropeways, are expressed in the same terms.

New subregulation 241(5) has been changed to provide that, for the purposes of an annual inspection, a person who is not registered as a professional engineer can inspect an inflatable device (continuously blown) with a platform height of less than 9 metres. (These are defined terms introduced by item 15.)

New subregulation 241(6) provides that an 'annual inspection' carried out in accordance with an equivalent provision of a corresponding work health and safety law is taken to be an annual inspection for the purposes of regulation 241. This means that a person will not be required to carry out additional annual inspections due to jurisdictional overlap of work health and safety acts or regulations.

Item [60] - Regulation 242 (heading)

This item repeals and replaces the heading to regulation 242 to correct a typographical error.

Item [61] - At the end of regulation 244

This item inserts a new subregulation 244(3), which creates an exemption to the duty to register altered plan designs for site-specific alterations to crane foundations or ties. This does not affect the duty to register the underlying design of the crane.

New subregulation 244(3) provides that regulation 244 does not apply in relation to a tower or gantry crane where:

*         the crane is relocated to a different workplace; and

*         the design of the supporting structure or foundations of the crane are altered in accordance with a site-specific design prepared for the purpose of the safe operation of the crane at the new location; and

*         the design of the crane is not otherwise altered.

Item [62] - Subregulations 252(2) and (3)

Regulation 252 sets out who can be a design verifier for the purposes of the design verification process. This item repeals and replaces subregulations 252(2) and (3) with new subregulation 252(2) to remove the requirement for the design verifier to be external to the business or undertaking. The prohibition on a person who was involved in the production of the design being the design verifier is retained.

Item [63] - Paragraph 266(2)(f)

Regulation 266 sets out the requirements for an application for registration of an item of plant. This item repeals paragraph 226(2)(f) to remove the requirement for the application to include the date on which the plant was first commissioned or registered.

Item [64] - At the end of Part 5.3

This item inserts a new Division 6 into Part 5.3, comprising new regulations 288A to 288D. This new division will set out a process for the cancellation of registration of plant designs and items of plant. Providing for this process in the regulations introduces important requirements of procedural fairness and allows for rights of review under the regulations.

New regulation 288A is an application provision. The regulation states that Division 6 of Part 5.3 applies to the registration of designs of items of plant and to the registration of items of plant.

New regulation 288B provides that the regulator can cancel registration, and sets out the grounds on which registration can be cancelled. These grounds are:

*         that the registration holder gave false or misleading information when applying for the registration;

*         that the registration holder failed to give material information that should have been given when applying for the registration;

*         that the plant design, or the item of plant, is unsafe.

New regulation 288C sets out the process for cancellation. In order to cancel a registration, the regulator must:

*         Provide the registration holder with written notice that it proposes to cancel the registration and the reasons for this proposal. The notice must inform the registration holder that they can make submissions to the regulator in relation to the proposed cancellation within a specified period, which must be at least 28 days from when the notice is received.

*         After the expiry of the (minimum) 28 day period, consider any submissions that have been made by the registration holder.

*         Decide whether to cancel the registration.

*         Within 14 days of making the decision, provide written notice of the decision to the registration holder. This written notice must state:

o   whether the registration was cancelled;

o   if the registration was cancelled and the registration holder had made a submission, the reasons for cancelling the registration;

o   if the registration was cancelled, the date the cancellation takes effect.

Notes to regulations 288B and 288C informs readers that the decision to cancel registration under regulation 288C is a reviewable decision (see regulation 676, as amended by item 81).

New regulation 288D provides that a registration holder who receives a notice that their registration has been cancelled under paragraph 288C(2)(c) must, at the written request of the regulator, return the licence document. Failure to comply with this regulation is an offence.

Item [65] - Regulation 318

Regulation 318 provides for the recognition of general construction induction training cards issued under other work health and safety jurisdictions. This item repeals and replaces the regulation to:

*         provide that this recognition applies throughout Part 6.5 (other than Division 2)

*         provide that the recognition is not subject to whether the card is being used in accordance with its terms and conditions;

*         provide that the recognition is not subject to whether the card is suspended or has expired.

Item [66] - Paragraph 319(5)(b)

This item replaces a reference to subparagraph (2)(b)(ii) with a reference to subparagraph (3)(b)(ii) to correct a typographical error.

Item [67] - At the end of subregulation 342(2)

This item amends subregulation 342(2) to insert penalty provisions. These penalty provisions are consistent with the other subregulations in regulation 342.

Item [68] - Paragraph 348(2)(b)

Item [69] - Paragraph 348(2)(c)

These items repeal paragraph 348(2)(c), which duplicated the obligation contained in subregulation 348(4).

Item [70] - Paragraph 359(1)(b)

This item amends paragraph 359(1)(b) to remove the 's' from the end of 'services'. This reflects the change in the defined term 'primary emergency service organisation' made by item 17.

Item [71] - Subregulation 416(2)

This item inserts the words 'monitoring within 7 days after the day the worker' into subregulation 416(2) to correct an inadvertent omission in the WHS Regulations' adoption of the model regulations.

Item [72] - At the end of subregulations 418(1) and (2)

Item [73] - Subregulation 418(3) (penalty)

Item [74] - Subregulation 481(3) (note)

These items remove the penalty provisions at the end of regulation 418 and instead inserts equivalent penalty provisions for subregulations 418(1) and (2). This reflects that the substantive obligations in regulation 418 are in subregulations 418(1) and (2).

Item [75] - Regulation 421

Item [76] - At the end of Regulation 421

These items insert a new subregulation into regulation 421 to provide regulations 425 to 430 of Part 8.3 of the WHS Regulations do not apply in relation any part of a domestic premise that is used only for residential purposes.

These regulations create obligations for a person with management or control of a workplace to:

*         prepare and keep an asbestos register at the workplace

*         review the register as necessary

*         ensure the register is accessible

*         transfer the register when relinquishing management or control of the workplace

*         if asbestos is identified at the workplace -- prepare an asbestos management plan

*         review and revise the asbestos management plan in certain circumstances.

Item [77] - Paragraph 547(1)(c)

Part 9.2 of the WHS Regulations establish obligations for operators of facilities to notify the regulator if the quantity of Schedule 15 chemicals present, or likely to be present, at a facility exceeds certain levels. On notification, the regulator can conduct an inquiry and may determine that the facility is a 'major hazard facility'. Additional duties apply to the operator of a 'major hazard facility'.

This item repeals and replaces paragraph 547(1)(c) to clarify when the operator of a facility is required to re-notify the regulator of an increase in the presence of Schedule 15 chemicals present or likely to be present at the facility.

New paragraph 547(1)(c) provides that the obligation to renotify applies where the regulator either:

*         has not conducted an inquiry; or

*         has conducted an inquiry but has not determined the facility to be a major hazard facility.

The intention of this amendment is to clarify that the obligation to renotify on an increase in quantities of Schedule 15 chemicals applies so long as the facility has not been determined to be a major hazard facility.

Item [78] - Subregulation 676(1) (after table item 2)

Item [79] - Subregulation 676(1) (table item 3, column headed "Eligible person in relation to reviewable decision")

Item [80] - Subregulation 676(1) (after table item 7)

Item [81] - Subregulation 676(1) (after table item 27)

Item [82] - Subregulation 676(1) (table item 41, column headed "Eligible person in relation to reviewable decision")

The table in subregulation 676(1) sets out all of the decisions made by the regulator under the WHS Regulations which are reviewable and who can apply for a review.

These items amend the table to list the new decisions introduced into the WHS Regulations which are reviewable and to specify who can apply for a review. These decisions are:

*         A decision to impose conditions on a high risk work licence on granting or renewal (see items 36 and 39). The licence holder can apply for a review of this decision.

*         A decision to vary conditions on a high risk work licence (see items 41 to 43). The licence holder can apply for a review of this decision.

*         A decision to cancel plant design or plant item registration (see item 64). The registration holder or the person with management or control of the plant can apply for a review of this decision.

These items also amend items 3 and 41 of the table so that the licence holder can apply for a review of a decision to refuse to issue a replacement licence document, rather than the applicant.

Item [83] - Subregulation 689(2)

This item replaces a reference to paragraph (1)(c) with a reference to paragraph (1)(d) to correct a typographical error.

Item [84] - Paragraph 700(a)

This item amends paragraph 700(a) to omit a reference to the size of the photograph to be included on inspector's identity cards. This will allow the regulator to more generally determine the form of the photograph, including the size.

Item [85] - Table 3.1 in Schedule 3 (table items 15 to 18)

Table 3.1 sets out the types of high risk work that are within the scope of each type of high risk work licence.

This item repeals and replaces item 15 to 18 of the table. These items relate to high risk work licences for the operation of a slewing mobile crane of varying capacities.

The new table items will provide that, in addition to the operation of a slewing mobile crane up to the relevant capacity, these high risk work licences also licence the worker to:

*         use a vehicle loading crane with a capacity of ten metre tonnes or more, excluding the application of load estimation and slinging techniques to move a load;

*         use a non-slewing mobile crane with a capacity exceeding three tonnes; and

*         use a reach stacker.

This reflects the position under the pre-harmonised work health and safety laws, where 'higher' high risk licences encompassed the classes of work covered by certain 'lower' high risk work licences.

Item [86] - Subclause 1.2 of Schedule 5

Item [87] - After subclause 1.8 of Schedule 5

Item [88] - Subclause 1.9 of Schedule 5

Item [89] - Subclause 1.10 of Schedule 5

Clause 1 of Schedule 5 to the WHS Regulations lists the items of plant which require registration of design. These items make amendments to this clause to:

*         change a reference to Section 1.1 of AS 2030.1:2009 to Section 1, correcting a typographical error;

*         inserts a reference to passenger ropeways (see item 15)

*         Change the reference to 'concrete placement units with delivery booms' to the more general category of 'concrete placing booms' (see item 10); and

*         Omit a reference to prefabricated formwork, to address workability issues in design registration of this type of plant.

Item [90] - After paragraph 2.1(a) of Schedule 5

Item [91] - After paragraph 2.1(b) of Schedule 5

Subclause 2.1 sets out a list of exceptions from the list of items of plant which require registration of design in clause 1 of Schedule 5 to the WHS Regulations. These items insert new paragraphs into subclause 2.1 to provide exceptions for:

*         Pressure equipment (other than gas cylinders) excluded from the scope of AS 1200:200

*         Reach stackers

This clarifies that designs of these items of plant are not required to be registered under the WHS Regulations. Exceptions for gas cylinders are dealt with elsewhere in the WHS Regulations (see clause 1.2 of Part 1 of Schedule 5, as amended by item 86).

Item [92] - Paragraphs 2.2(e) and (f) of Schedule 5

Subclause 2.2 of Schedule 5 to the WHS Regulations sets out a list of exceptions from the list of items of plant which are captured by subclause 1.8 (amusement devices covered by Section 2.1 of AS 3533.1:2009), and so require design registration.

This item repeals and replaces paragraphs (e) and (f) with new paragraph (e) to provide that inflatable devices (continuously blown) with a platform height of 3 metres or more are exempted from the design registration requirement. Definitions of these terms are introduced by item 15).

Item [93] - Subclause 3.7 of Schedule 5

Clause 3 of Schedule 5 to the WHS Regulations sets out a list of items of plant which require registration. This item amends subclause 3.7 to change the reference to 'concrete placement units with delivery booms' to the more general category of 'concrete placing booms' (see item 10).

Item [94]

Subclause 4.1 of Schedule 5 to the WHS Regulations sets out exceptions from the list of items of plant which require registration in clause 3. This item repeals and replaces the subclause to add exceptions for:

*         Pressure equipment (other than gas cylinders) excluded from the scope of AS 1200:200;

*         Cranes and hoists that are manually powers; and

*         Reach stackers.

This clarifies that designs of these items of plant are not required to be registered under the WHS Regulations. Exceptions for gas cylinders are dealt with in clause 3.2 of Schedule 5 to the WHS Regulations.

Item [95] - Paragraphs 4.2(e) and (f) of Schedule 5

Subclause 4.2 of Schedule 5 to the WHS Regulations sets out a list of exceptions from the list of items of plant which are captured by subclause 3.6 (amusement devices covered by Section 2.1 of AS 3533.1:2009), and so require registration.

This item repeals and replaces paragraphs (e) and (f) with new paragraph (e) to provide that inflatable devices (continuously blown) with a platform height of 3 metres or more are exempted from the registration. Definitions of these terms are introduced by item 15).

Item [96] - Table 6.1 in Schedule 6 (table, subheading "Skin sensitiser")

Item [97] - Table 6.1 in Schedule 6 (table, subheading "Respiratory sensitiser")

These items insert the phrase 'Category 1" into the subheadings in table 6.1 of Schedule 6 to the WHS Regulations to correct an inadvertent omission.

Item [98] - Table 10.3 in Schedule 10 (cell at table item 10, column headed "Restricted use")

This item makes amendments to the restricted use of free silica (crystalline silicon dioxide) so that the restricted use provisions in the WHS Regulations:

*         apply for abrasive blasting at a concentration of greater than 1% (as opposed to 0.1%); and

*         do not apply for spray painting.

The change in concentration is bring the threshold in line with the best practice standards under pre-harmonised work health and safety laws. The removal spray painting from the restricted use corrects an inadvertent inclusion.

Item [99] - Clause 1 of Schedule 15 (definitions of LD₅₀ (median lethal dose) for acute toxicity, LD₅₀ for acute dermal toxicity and LC₅₀ for acute toxicity on inhalation)

This item repeals the definitions of these terms. The WHS Regulations will instead use the widely accepted and understood meanings of these terms, such as the scientifically accepted definitions of LD₅₀ and LC₅₀ in the Globally Harmonised System of Classification and labelling of Chemicals 3^rd Revised Edition.

Item [100] - Subclause 5(1) of Schedule 15

This item inserts the phrase 'in table 15.1' into subclause 5(1) of Schedule 15 to the WHS Regulations to correct an inadvertent omission.

Item [101] - Table 15.3 in Schedule 15

This item repeals and replaces table 15.3 in Schedule 15 to the WHS Regulations to change the value of the cell for 'very toxic' 'Inhalation Toxicity LC₅₀ (mg/L)' to LC≤0.5.

Item [102] - Amendments of listed provisions--emergency service organisations

This item repeals and replaces the term 'emergency services' with 'emergency service organisation; throughout schedule 16 in order to match the defined term 'primary emergency service organisation' (see items 16 and 17).