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SR 1995 No. 53 Regulations as made
These Regulations amend the Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations.
Administered by: DEWR
General Comments: This instrument was backcaptured in accordance with Section 36 of the Legislative Instruments Act 2003
Registered 01 Jan 2005
Tabling HistoryDate
Tabled HR09-May-1995
Tabled Senate09-May-1995
Gazetted 29 Mar 1995
Date of repeal 01 Jan 2012
Repealed by Other
Repealing Comments Enabling legislation repealed by Work Health and Safety (Transitional and Consequential Provisions) Act 2011 (Act No. 146 of 2011)

Statutory Rules 1995   No. 531

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Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations2 (Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Occupational Health and Safety (Commonwealth Employment) Act 1991.

Dated 22 March 1995.

 

                                                                                    BILL HAYDEN

                                                                                   Governor-General

By His Excellency’s Command,

 

GARY JOHNS

Assistant Minister for Industrial Relations

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1.   Commencement

1.1   These Regulations commence on 31 March 1995.

2.   Amendment

2.1   The Occupational Health and Safety (Commonwealth Employment) (National Standards) Regulations are amended as set out in these Regulations.

3.   Regulation 2.02 (Interpretation of Part 2)

3.1   After the definition of “Commonwealth certificate”, insert:

               “ ‘certificate assessor’ means a person who is authorised, by a certifying authority, to assess the competency of another person for the purposes of the certifying authority;”.

4.   Regulation 2.06 (Performing the work of a regulation 2.03 occupation)

4.1   Subregulation 2.06 (1):

Add at the end:

   “;  or   (e)    the employee is allowed, under regulation 2.07A, 2.07B, 2.07C or 2.07F, to perform the work without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate.”.

4.2   Subregulation 2.06 (2):

Add at the end:

   “;  or   (e)    the contractor is allowed, under regulation 2.07D, 2.07E or 2.07F, to perform the work without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate.”.


5.   Regulation 2.07 (Allowing a person to perform the work of a regulation 2.03 occupation)

5.1   Subregulation 2.07 (1):

Add at the end:

   “;  or   (e)    the employee is allowed, under regulation 2.07A, 2.07B, 2.07C or 2.07F, to perform the work without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate.”.

5.2   Subregulation 2.07 (2):

Add at the end:

   “;  or   (e)    the contractor is allowed, under regulation 2.07D, 2.07E or 2.07F, to perform the work without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate.”.

6.   New regulations 2.07A to 2.07F (inclusive)

7.1   After regulation 2.07, insert:

Employee performing work without previously holding a certificate

“2.07A.  (1)    If:

               (a)    an employer considers that an employee has performed competently the work of a regulation 2.03 occupation, as an employee, before 31 March 1995, without holding any of the following certificates in relation to the work:

                        (i)    a certificate of competency that is issued by a certifying authority in accordance with the requirements of the National Standard;

                       (ii)    a certificate of competency that is issued by a certifying authority otherwise than in accordance with the requirements of the National Standard;


                      (iii)    a Class A Commonwealth certificate;

                      (iv)    a Class B Commonwealth certificate; and

               (b)    the employee performs the work of the regulation 2.03 occupation in a State or Territory on or after 31 March 1995; and

               (c)    the employer considers that the employee is competent to perform the work of the occupation when the employee first performs the work on or after 31 March 1995; and

               (d)    Comcare is satisfied, on 31 March 1995, that the certificate of competency for the work that is issued by the certifying authority in the State or Territory in which the employee performs the work is not issued in accordance with the requirements of the National Standard;

               the employee may perform the work of the occupation, without holding a certificate of competency.

“(2)       Subregulation (1) applies until the end of 2 October 1995 in relation to an employee who performs the work of a regulation 2.03 occupation in South Australia.

“(3)       Subregulation (1) applies until the end of 31 December 1995 in relation to an employee who performs the work of a regulation 2.03 occupation in Victoria.

“(4)       Subregulation (1) applies until the end of 31 December 1995 in relation to an employee who performs the work of a regulation 2.03 occupation in a State or Territory other than South Australia or Victoria.

 

 

NOTE

     Queensland, Western Australia and the Northern Territory have implemented arrangements for the issuing of certificates of competency in accordance with the National Standard.

 

Employee performing work while undergoing training

“2.07B.  (1)    An employee (in this regulation called ‘a trainee’) may perform the work of a regulation 2.03 occupation, without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate for the work, if:

               (a)    the trainee is undertaking training in the work; and

               (b)    the employer of the trainee complies with subregulations (2), (3), (4) and (5).

“(2)       The employer of the trainee must ensure that the trainee is given directions and demonstrations relating to the work of the regulation 2.03 occupation that:

               (a)    are appropriate to the tasks assigned to the trainee; and

               (b)    are appropriate to the competence of the trainee; and

               (c)    ensure, as far as practicable, that the trainee is able to perform the work of the occupation in a manner that is safe and without risk to health and safety.

               Penalty:  10 penalty units.

“(3)       The employer of the trainee must ensure that:

               (a)    the trainee is under the direct supervision of:

                        (i)    a person who holds a certificate of competency in relation to carrying out the supervision of the trainee; or

                       (ii)    if no person referred to in subparagraph (i) is able to supervise the trainee—a person who has qualifications equivalent to the person referred to in subparagraph (i); or

               (b)    if the circumstances of a particular task make the direct supervision of the trainee impracticable or unnecessary—the trainee is under supervision of a kind that does not place the trainee, or another person, at risk; or


               (c)    if the competency of the employee makes direct supervision unnecessary—the employee is under supervision of a kind that does not place the trainee, or another person, at risk.

               Penalty:  10 penalty units.

“(4)       The employer of the trainee must ensure that the trainee’s performance of tasks is monitored to the extent that:

               (a)    is appropriate to the nature of the tasks; and

               (b)    is appropriate to the competence of the trainee; and

               (c)    ensures, as far as practicable, that the trainee is able to perform the work of the occupation in a manner that is safe and without risk to health and safety.

               Penalty:  10 penalty units.

“(5)       The employer of the trainee must ensure that arrangements exist so that if an emergency involving the trainee arises, action can be taken to rectify immediately any dangerous situation.

               Penalty:  10 penalty units.

Employee performing work before being given a certificate of competency

“2.07C.  (1)    Subject to subregulation (2), an employee may perform the work of a regulation 2.03 occupation in a State or Territory, without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate for the work, if a certificate assessor in the State or Territory gives the employee a document, or other advice, to the effect that the employee has successfully demonstrated competence in the work.

“(2)       The employee may perform the work of the occupation, without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate, until the end of a period commencing on the day on which the employee is given the document or advice and ending on the latest of:

               (a)    the end of 60 days after the day on which the employee is given the document or advice; or

               (b)    if, before the end of 60 days after that day, the employee applies to be given a certificate of competency and:

                        (i)    the employee is given the certificate of competency—the day on which the employee is given the certificate of competency; or

                       (ii)    the employee is refused the certificate of competency—the end of 14 days after the day on which the employee is refused the certificate of competency.

Contractor performing work while undergoing training

“2.07D.  A contractor may perform the work of a regulation 2.03 occupation at a workplace, without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate for the work, if the contractor is undertaking training in the work.

Contractor performing work before being given a certificate of competency

“2.07E.  (1)    Subject to subregulation (2), a contractor may perform the work of a regulation 2.03 occupation at a workplace in a State or Territory, without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate for the work, if a certificate assessor in the State or Territory gives the contractor a document, or other advice, to the effect that the contractor has successfully demonstrated competence in the work.


“(2)       The contractor may perform the work of the occupation, without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate, until the end of a period commencing on the day on which the contractor is given the document or advice and ending on the latest of:

               (a)    the end of 60 days after the day on which the contractor is given the document or advice; or

               (b)    if, before the end of 60 days after that day, the contractor applies to be given a certificate of competency for the work and:

                        (i)    the contractor is given the certificate of competency—the day on which the contractor is given the certificate of competency; or

                       (ii)    the contractor is refused the certificate of competency—the end of 14 days after the day on which the contractor is refused the certificate of competency.

Exemption from holding certificates

“2.07F.  (1)    An employee may perform the work of a regulation 2.03 occupation, without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate for the work, if:

               (a)    the employee applies to Comcare, in writing, to be exempted from holding the certificates; and

               (b)    Comcare grants the exemption.

“(2)       A contractor may perform the work of a regulation 2.03 occupation at a workplace, without holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate for the work, if:

               (a)    the contractor applies to Comcare, in writing, to be exempted from holding the certificates; and

               (b)    Comcare grants the exemption.


“(3)       If an employee or contractor applies to Comcare to be exempted, Comcare must consider the application and:

               (a)    grant the exemption; or

               (b)    refuse to grant the exemption.

“(4)       If Comcare grants the exemption, it must, as soon as practicable, give the applicant a written notice of exemption from holding the certificates.

“(5)       If Comcare refuses to grant the exemption, it must, as soon as practicable, give the applicant the reasons, in writing, for the refusal.

“(6)       Comcare may grant an exemption on the condition that any person to whom the permission applies must be trained in the performance of the work of the occupation by a person approved by Comcare.

“(7)       If Comcare grants an employee or contractor an exemption that is subject to the condition referred to in subregulation (6), the employee or contractor must comply with the condition.

               Penalty for a contravention of this subregulation:  5 penalty units.”.

7.   Regulation 2.13 (Review of decisions)

7.1   Omit the regulation, substitute:

Review of decisions

“2.13.     Application may be made to the Administrative Appeals Tribunal for review of the following decisions:

               (a)    a decision of Comcare under paragraph 2.07F (3) (b) to refuse to grant an exemption from holding a certificate of competency, a Class A Commonwealth Certificate or a Class B Commonwealth Certificate for the work of a regulation 2.03 occupation;

               (b)    a decision of Comcare under paragraph 2.10 (3) (a), subregulation 2.10 (4) or subregulation 2.11 (1) to suspend a Commonwealth certificate;

               (c)    a decision of Comcare under subregulation 2.10 (4) or 2.11 (1) to cancel a Commonwealth certificate.”.

____________________________________________________________

NOTES

1.   Notified in the Commonwealth of Australia Gazette on 29 March  1995.

2.   Statutory Rules 1994 No. 414.