Part 2 Competency requirements and certification standards for users and operators of industrial equipment

The object of this Part is:

(a) to minimise the incidence and severity of injuries associated with performing the work of an occupation referred to in regulation 2.03 by requiring employees and contractors performing the work to have a particular standard of competency; and

(b) to make arrangements for the possession and use of certificates that state that a person has the particular standard of competency.

Note The regulations in this Part should be read with the National Occupational Health and Safety Certification Standard for Users and Operators of Industrial Equipment (NOHSC:1006(1992)), declared by the National Occupational Health and Safety Commission and as in force on 31 March 1995.

2.02 Interpretation of Part 2

In this Part, unless the contrary intention appears:

boiler:

(a) means a vessel, or an arrangement of vessels, and interconnecting parts, in which:

(i) steam or other vapour is generated; or

(ii) water or other liquid is heated at a pressure greater than atmospheric pressure;

by the use of fire, the products of combustion, electrical power or other similar means; and

(b) includes a superheater, reheater, economiser, boiler piping support, mounting, valve, gauge, fitting, control, setting or other equipment directly associated with a boiler; and

(c) does not include a fully flooded or pressurised system where water or other liquid is heated to a temperature lower than the normal atmospheric boiling temperature of the liquid.

certificate of competency means a document described in regulation 2.04.

certifying authority means an authority referred to in paragraph 2.04 (b).

Class A Commonwealth certificate means a document described in subregulation 2.05 (1).

Class B Commonwealth certificate means a document described in subregulation 2.05 (2).

Commonwealth certificate means a Class A Commonwealth certificate or a Class B Commonwealth certificate.

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.

Equivalence and Translation Tables means the document entitled Equivalence and Translation Tables:

(a) published by the Safety Rehabilitation and Compensation Commission; and

(b) as in force on the day on which this Regulation commences.

National Standard means the document entitled National Occupational Health and Safety Certification Standard for Users and Operators of Industrial Equipment:

(a) declared by NOHSC under paragraph 8 (1) (f) of the National Occupational Health and Safety Commission Act 1985; and

(b) as in force on the day on which this Regulation commences.

pressure equipment operation means the operation of:

(a) a boiler; or

(b) a turbine; or

regulation 2.03 occupation means an occupation referred to in regulation 2.03.

2.03 What occupations are covered by Part 2?

This Part applies to the work of a person involved in performing work or a task that is:

(a) in any of the following occupations:

(i) scaffolding;

(ii) dogging;

(iii) rigging;

(iv) crane and hoist operation;

(v) pressure equipment operation; and

(b) referred to in the National Standard.

2.04 What is a certificate of competency?

A certificate of competency is a document that:

(a) identifies the competency of the person to whom it is issued; and

(b) is issued by an authority of a State or a Territory that has the power, under a law of the State or Territory, to issue a certificate that relates to the performance of the work of a regulation 2.03 occupation.

Note The States and Territories that implement the National Standard will issue certificates that comply with clause 5.4 of that Standard.

2.05 What are Class A and Class B Commonwealth certificates?

(1) A Class A Commonwealth certificate is a document:

(a) that is issued by an employer before the day on which this Regulation commences; and

(b) that is described, in the Equivalence and Translation Tables, as being equivalent to a particular certificate of competency; and

(c) that states that the person to whom the document is given has achieved a particular competency in an occupation that, after the day on which this Regulation commences, is a regulation 2.03 occupation.

(2) A Class B Commonwealth certificate is a document:

(a) that is issued by an employer before the day on which this Regulation commences; and

(b) that is not referred to in the Equivalence and Translation Tables; and

Division 2 Duties relating to the performance of work

2.05A Qualified employees and qualified contractors

(1) For this Division, an employee is qualified for an occupation if:

(a) the employee holds a valid certificate of competency for the class of occupation; or

(b) the certifying authority in the State or Territory has exempted the employee from holding a certificate of competency for the class of occupation; or

(d) the employee holds a valid Class B Commonwealth certificate:

(i) for the class of occupation; and

(ii) in relation to the employer who controls the performance of the work; 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.

(2) For this Division, a contractor is qualified for an occupation if:

(a) the contractor holds a valid certificate of competency for the class of occupation; or

(b) the certifying authority in the State or Territory has exempted the contractor from holding a certificate of competency for the class of occupation; or

(d) the contractor holds a valid Class B Commonwealth certificate:

(i) for the class of occupation; and

(ii) in relation to the employer who controls the performance of the work or who controls the workplace; 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.

2.06 Performing the work of a regulation 2.03 occupation

(1) An employee must not perform the work of a regulation 2.03 occupation if the employee is not qualified for the occupation.

Penalty: 10 penalty units.

(2) A contractor must not perform the work of a regulation 2.03 occupation at a workplace if the contractor is not qualified for the occupation.

Penalty: 10 penalty units.

(3) Strict liability applies in subregulations (1) and (2) to the physical element that the work is of a regulation 2.03 occupation.

Note For strict liability, see section 6.1 of the Criminal Code.

2.07 Allowing a person to perform the work of a regulation 2.03 occupation

(1) An employer must not allow an employee to perform the work of a regulation 2.03 occupation if the employee is not qualified for the occupation.

Penalty: 10 penalty units.

(2) An employer must not allow a contractor to perform the work of a regulation 2.03 occupation at a workplace if the contractor is not qualified for the occupation.

Penalty: 10 penalty units.

(3) Strict liability applies in subregulations (1) and (2) to the physical element that the work is of a regulation 2.03 occupation.

Note 1 For subregulation (3), for strict liability, see section 6.1 of the Criminal Code.

Note 2 Employers can use the translation tables in the Equivalence and Translation Tables to determine:

(a) the classes of occupational health and safety certificates of competency that were issued by State and Territory certifying authorities before the implementation of the National Standard; and

(b) the translation of those classes to classes in the National Standard.

2.07A Employee performing work without previously holding a certificate

(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 29 February 1996 in relation to an employee who performs the work of a regulation 2.03 occupation in Tasmania.

(4) Subregulation (1) applies until the end of 29 March 1996 in relation to an employee who performs the work of a regulation 2.03 occupation in New South Wales or the Australian Capital Territory.

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

2.07B Employee performing work while undergoing training

(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 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.

(2A) It is a defence to a prosecution for an offence against paragraph (2) (c) if the employer ensured as far as practicable that the trainee was given directions and demonstrations so as to ensure that the trainee was able to perform the work of the occupation in a manner that was safe and without risk to health and safety.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (2A) (see section 13.3 of the Criminal Code).

(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 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.

(4A) It is a defence to a prosecution for an offence against paragraph (4) (c) if the employer monitored the trainee’s performance of tasks as far as practicable so as to ensure that the trainee was able to perform the work of the occupation in a manner that was safe and without risk to health and safety.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (4A) (see section 13.3 of the Criminal Code).

(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.

(6) Strict liability applies in subregulations (1) and (2) to the physical element that the work performed by the trainee is a regulation 2.03 occupation.

Note For strict liability, see section 6.1 of the Criminal Code.

2.07C Employee performing work before being given a certificate of competency

(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.

2.07D Contractor performing work while undergoing training

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.

2.07E Contractor performing work before being given a certificate of competency

(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.

2.07F Exemption from holding certificates

(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.

(8) An offence against subregulation (7) is an offence of strict liability.

Note For strict liability, see section 6.1 of the Criminal Code.

2.08 Production of a certificate for inspection

(1) An investigator may ask an employee or a contractor who holds a certificate of competency, or a Commonwealth certificate, to produce the certificate to the investigator.

(2) The employee or contractor must show the certificate to the investigator within a reasonable period after being asked.

Penalty for a contravention of this subregulation: 1 penalty unit.

(3) An offence against subregulation (2) is an offence of strict liability.

Note For strict liability, see section 6.1 of the Criminal Code.

Division 3 Suspension and cancellation of certificates

2.09 Recommendation to a certifying authority for the suspension or cancellation of a certificate of competency

(1) Comcare may recommend the suspension or cancellation of a certificate of competency to the certifying authority that issued the certificate if Comcare has evidence that:

(a) the certificate was given to a person as a result of the provision of false or misleading information; or

(b) the person who holds the certificate is no longer competent to carry out the occupation to which the certificate relates without risk to:

(i) the person’s health or safety; or

(ii) the health or safety of another person; or

(c) the person who holds the certificate has contravened a requirement of the Act or these Regulations, or of a corresponding law of a State or Territory, applying to the person.

(2) If Comcare believes that one of the reasons set out in subregulation (1) exists, it must give a written notice to the person who holds the certificate:

(a) stating that Comcare is considering recommending to the certifying authority that the certificate be suspended or cancelled; and

(b) setting out the reason why Comcare believes that it may recommend that the certificate be suspended or cancelled, including any information in support of Comcare’s belief; and

(c) if Comcare is considering recommending that the certificate be suspended — stating the proposed period of the suspension; and

(d) inviting the person to give Comcare reasons why Comcare should not recommend that the certificate be suspended or cancelled; and

(e) stating the period in which the person is invited to give reasons, being a period ending at least 14 days after the day on which Comcare gives the notice to the person.

(3) If the notice given to the person states that Comcare is considering recommending that the certificate be suspended:

(a) Comcare may, after considering any reasons given by the person in the period stated in the notice, recommend that the certificate be suspended for a period no longer than the period stated in that notice; and

(b) Comcare may not recommend that the certificate be cancelled on the basis of that notice.

(4) If the notice given to the person states that Comcare is considering recommending that the certificate be cancelled, Comcare may, after considering any reasons given by the person in the period stated in the notice, recommend that the certificate be suspended or cancelled.

(5) Comcare must give reasons in writing to the certifying authority for a recommendation under this regulation.

(6) If Comcare recommends that a certificate be suspended or cancelled, it must give the holder of the certificate a written notice setting out its recommendation and its reasons for it.

2.10 Suspension or cancellation of a Commonwealth certificate on Comcare’s initiative

(1) Comcare may suspend or cancel a Commonwealth certificate in accordance with this regulation if:

(a) the certificate was given to an employee or a contractor as a result of the provision of false or misleading information; or

(b) the employee or contractor who holds the certificate is no longer competent to carry out the occupation to which the certificate relates without risk to:

(i) his or her health or safety; or

(ii) the health or safety of another person; or

(c) the employee or contractor who holds the certificate has contravened a requirement of the Act or these Regulations, or of a corresponding law of a State or Territory applying to the employee or contractor.

(2) If Comcare believes that one of the reasons set out in subregulation (1) exists, it must give a written notice to the employee or contractor who holds the certificate:

(a) stating that Comcare is considering suspending or cancelling the certificate; and

(b) setting out the reason why Comcare believes that it may suspend or cancel the certificate, including any information in support of Comcare’s belief; and

(d) inviting the employee or contractor to give Comcare reasons why Comcare should not suspend or cancel the certificate; and

(e) stating the period in which the employee or contractor is invited to give reasons, being a period ending at least 14 days after the day on which Comcare gives the notice to the employee or contractor.

(3) If the notice given to the employee or contractor states that Comcare is considering suspending the Commonwealth certificate:

(a) Comcare may, after considering any reasons given by the employee or contractor in the period stated in the notice, suspend the certificate for a period no longer than the period stated in that notice; and

(b) Comcare may not cancel the certificate on the basis of that notice.

(4) If the notice given to the employee or contractor states that Comcare is considering cancelling the certificate, Comcare may, after considering any reasons given by the employee or contractor in the period stated in the notice, suspend or cancel the certificate.

(5) If Comcare suspends or cancels a Commonwealth certificate:

(a) Comcare must give the relevant employee or contractor a written notice setting out its decision and its reasons for it; and

(b) the suspension or cancellation commences on the later of:

(i) the day on which Comcare gives the notice to the employee or contractor; or

(ii) the day (if any) stated in the notice.

2.11 Suspension or cancellation of a Commonwealth certificate on the recommendation of a certifying authority

(1) In spite of regulation 2.10, if a certifying authority:

(a) invites an employee or contractor who holds a Commonwealth certificate to give reasons why the Commonwealth certificate should not be suspended or cancelled; and

(b) conducts a hearing of the kind authorised by clause 5.33 of the National Standard; and

Comcare may suspend or cancel the certificate in accordance with the recommendation without inviting the employee or contractor to give reasons to Comcare.

(2) If Comcare suspends or cancels the Commonwealth certificate in accordance with the recommendation:

(a) Comcare must give the relevant employee or contractor a written notice setting out its decision and its reasons for it; and

(b) the suspension or cancellation commences on the later of:

(i) the day on which Comcare gives the notice to the employee or contractor; or

(ii) the day (if any) stated in the notice.

2.12 Return of a suspended or cancelled Commonwealth certificate

(1) An employee or contractor who holds a Commonwealth certificate that is suspended or cancelled must return the certificate to Comcare no later than:

(a) 14 days after receiving a notice under subregulation 2.10 (2) or 2.11 (2), as the case requires; or

(b) if the suspension or cancellation commences on a later day — that later day.

Penalty: 1 penalty unit.

(2) If Comcare suspends a Commonwealth certificate, it must return the certificate to the relevant employee or contractor as soon as practicable after the suspension ends.

(3) An offence against subregulation (1) is an offence of strict liability.

Note For strict liability, see section 6.1 of the Criminal Code.

2.13 Review of decisions

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;

Part 3 Occupational noise

3.01 Object of Part 3

The object of this Part is to ensure that:

(a) all reasonably practicable steps are taken to ensure that employees and contractors at work are not subjected to noise in excess of the exposure standard set out in regulation 3.03; and

(b) appropriate personal protective measures are implemented if the taking of all reasonably practicable steps does not reduce noise to or below the exposure standard set out in regulation 3.03.

Note The regulations in this Part should be read with the National Standard for Occupational Noise [NOHSC:1007 (2000)] and the National Code of Practice for Noise Management and Protection of Hearing at Work [NOHSC:2009 (2000)].

3.02 Interpretation of Part 3

In this Part, unless the contrary intention appears:

administrative noise control means a measure (not including the use of a personal hearing protector) that reduces the noise to which an employee or contractor is exposed at work by means of work arrangements, and includes:

(a) the scheduling of work; and

(b) job rotation; and

(d) the observance of quiet work practices.

engineering noise control means a measure (not including the use of a personal hearing protector) that reduces the noise to which an employee or contractor is exposed, by the design or modification of plant or the physical working environment, including design or a modification for the purposes of:

(a) eliminating noisy plant; or

(b) replacing noisy plant by quieter plant; or

(d) isolating or enclosing noisy plant; or

(e) the acoustical treatment of the plant.

exposure standard means the exposure standard for noise set out in subregulation 3.03 (1).

noise assessment means an assessment, by a person with suitable qualifications and experience, of the noise to which an employee or a contractor is exposed at work:

(a) to establish whether the noise to which the employee or contractor is exposed exceeds, or is likely to exceed, the exposure standard; and

(b) to provide information, about the noise to which the employee or contractor may be exposed, that will assist the relevant employer to comply with these Regulations.

relevant plant means plant:

(a) that may emit hazardous levels of noise; and

(b) whose manufacturer, supplier or installer ought reasonably to expect will be used by employees, or contractors, at work.

3.03 The exposure standard for noise

(1) For the purposes of this Part, the exposure standard for noise is:

(a) an eight-hour equivalent continuous A-weighted sound pressure level, LAeq.8h of 85 dB(A) referenced to 20 micropascals; or

(b) a C-weighted peak sound pressure level LC, peak of 140 dB.

(2) The sound pressure level is the noise level determined at the employee’s ear position:

(a) in accordance with the requirements of Australian Standard AS 1269 (Acoustics-Hearing Conservation):

(i) published by Standards Australia; and

(ii) as in force on the day on which this Regulation commences; and

(b) without taking into account any protection that may be provided by a personal hearing protector.

(3) The value of LC, peak must be determined by using sound-measuring equipment with a peak detector-indicator characteristic that complies with the requirements of Australian Standard AS 1259 (“Sound Level Meters, Part 1: Non-integrating”):

(a) published by Standards Australia; and

(b) as in force on the day on which this Regulation commences.

3.04 Duties of manufacturer of relevant plant

(1) The manufacturer of relevant plant must take all reasonably practicable steps to ensure that the plant is designed and constructed in a manner that, when the plant is properly installed, reduces the noise emitted by the plant to a level that:

(a) is safe for employees and contractors; and

(b) represents no risk to their health.

Penalty: 10 penalty units.

(2) The manufacturer of relevant plant must take all reasonably practicable steps to make available to an employer information about:

(a) the noise emitted by the plant; and

(b) ways to keep the noise emitted by the plant to the lowest level that is reasonably practicable to achieve.

Penalty: 10 penalty units.

(3) The manufacturer of relevant plant must take all reasonably practicable steps to give an employer, at the employer’s request, the information described in subregulation (2).

Penalty for a contravention of this subregulation: 10 penalty units.

3.05 Duties of supplier of relevant plant

(1) The supplier of relevant plant must take all reasonably practicable steps to ensure that the plant is supplied for use by an employee or a contractor in a condition that, when the plant is properly installed and used,:

(a) is safe for employees and contractors; and

(b) represents no risk to their health.

Penalty: 10 penalty units.

(2) The supplier of relevant plant must take all reasonably practicable steps to make available to an employer information about:

(a) the noise emitted by the plant; and

(b) ways to keep the noise emitted by the plant to the lowest level that is reasonably practicable to achieve.

Penalty: 10 penalty units.

(3) The supplier of relevant plant must take all reasonably practicable steps to give an employer, at the employer’s request, the information described in subregulation (2).

Penalty for a contravention of this subregulation: 10 penalty units.

3.06 Duties of installer of relevant plant

(1) The installer of relevant plant must take all reasonably practicable steps to ensure that the plant is erected or installed for use by an employee or a contractor in a manner that:

(a) is in accordance with any specific instructions issued by the manufacturer of the plant for its erection or installation; and

(b) when the plant is properly installed, reduces the noise emitted by the plant to the lowest level that is reasonably practicable.

Penalty: 10 penalty units.

(2) The installer of relevant plant must take all reasonably practicable steps to ensure that the plant is not erected or installed in a manner that:

(a) makes the plant unsafe for employees or contractors who use it; or

(b) represents a risk to the health of employees or contractors because of excessive noise emission as a result of erecting or installing the plant.

Penalty for a contravention of this subregulation: 10 penalty units.

3.07 Duties of an employer — risk assessment

(1) If a risk exists of an employee or a contractor being exposed at work to noise that exceeds the exposure standard, the relevant employer must arrange for a noise assessment of the noise to which employees or contractors are exposed to be carried out.

Penalty: 10 penalty units.

(2) If a noise assessment is carried out under subregulation (1), the relevant employer must arrange for another noise assessment to be carried out no later than 5 years after the day on which the first‑mentioned noise assessment is completed.

Penalty: 10 penalty units.

(3) In spite of subregulation (2), if:

(a) a noise assessment is carried out; and

(b) the practices or the administration of the place at which the work is carried out change in a manner that may cause a significant increase in the noise to which an employee or a contractor is exposed;

the relevant employer must revise the noise assessment, or arrange for a new noise assessment to be carried out, to take account of the change.

Penalty for a contravention of this subregulation: 10 penalty units.

3.08 Duties of an employer — risk control

(1) An employer must provide and maintain:

(a) the place at which an employee performs work; and

(b) plant and systems of work;

in a manner that ensures that the employee is not exposed to noise, at or near the place, that exceeds the exposure standard.

Penalty: 10 penalty units.

(1A) It is a defence to a prosecution for an offence against subregulation (1) if the employer complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1A) (see section 13.3 of the Criminal Code).

(2) An employer must provide and maintain:

(a) a workplace at which a contractor performs work; and

(b) plant and systems of work;

in a manner that ensures that the contractor is not exposed to noise, at or near the workplace, that exceeds the exposure standard.

Penalty: 10 penalty units.

(2A) It is a defence to a prosecution for an offence against subregulation (2) if the employer complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (2A) (see section 13.3 of the Criminal Code).

(3) If the employer is required to take action to ensure that an employee or a contractor is not exposed to noise that exceeds the exposure standard, the employer must carry out the following steps:

STEP 1: The employer must implement engineering noise controls to reduce the noise to which the employee or contractor is exposed.

STEP 2: If the engineering noise controls implemented under step 1 do not reduce the noise to which the employee or contractor is exposed to a level that is less than, or equal to, the exposure standard, the employer must implement administrative noise controls to reduce the noise to which the employee or contractor is exposed.

Penalty: 10 penalty units.

(3A) It is a defence to a prosecution for an offence against subregulation (3) if the employer:

(a) implemented engineering noise controls in accordance with STEP 1; and

(b) implemented administrative noise controls in accordance with STEP 2;

as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (3A) (see section 13.3 of the Criminal Code).

(4) Until the engineering noise controls implemented under step 1 and the administrative noise controls implemented under step 2 reduce the noise to which the employee or contractor is exposed to a level that is less than, or equal to, the exposure standard, the employer must give the employee or contractor an appropriate personal hearing protector:

(a) that complies with the requirements of Australian Standard AS 1270 (Acoustics — Hearing Protectors):

(i) published by Standards Australia; and

(ii) as in force on the day on which this Regulation commences; and

(b) selected by the employer in accordance with the requirements of Australian Standard AS 1269 (Acoustics — Hearing Conservation):

(i) published by Standards Australia; and

(ii) as in force on the day on which this Regulation commences.

Penalty: 10 penalty units.

(4A) Strict liability applies to the physical element in paragraph (4) (a) that the appropriate personal hearing protector complies with the requirements of Australian Standard AS 1270 (Acoustics — Hearing Protectors).

Note For strict liability, see section 6.1 of the Criminal Code.

(4B) Strict liability applies to the physical element in paragraph (4) (b) that the appropriate personal hearing protector is in accordance with the requirements of Australian Standard AS 1269 (Acoustics — Hearing Conservation).

Note For strict liability, see section 6.1 of the Criminal Code.

(5) In addition to carrying out the steps referred to in subregulation (3), the employer must:

(a) ensure that noise control measures are properly maintained at the workplace; and

(b) give an employee or a contractor information and training about the use of a personal hearing protector that the employee or contractor is given in accordance with subregulation (4); and

Penalty for a contravention of this subregulation: 10 penalty units.

Note Further advice and guidance on noise assessment and control can be found in the National Code of Practice for Occupational Noise.

3.09 Duties of an employee

(1) An employee at work must:

(a) comply with any noise control measure implemented in accordance with this Part; and

(b) tell his or her employer, as soon as practicable, of any defect of which the employee is aware in any noise control equipment located at the place at which the employee carries out the work.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in paragraph (1) (a) that the noise control measure is implemented in accordance with this Part.

Note For strict liability, see section 6.1 of the Criminal Code.

(1B) It is a defence to a prosecution for an offence against subregulation (1) if the employee complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code).

(2) If an employee is given a personal hearing protector, the employee must:

(a) use the protector; and

(b) tell his or her employer, as soon as practicable, of any defect of which the employee is aware in the protector.

Penalty: 10 penalty units.

(3) To avoid doubt, subregulations (1) and (2) do not affect any existing or future right at common law that would, but for this subregulation, be affected by those subregulations.

3.10 Duties of a contractor

(1) A contractor at a workplace must:

(a) comply with any noise control measure implemented in accordance with this Part; and

(b) tell the employer, as soon as practicable, of any defect of which the contractor is aware in any noise control equipment located at the workplace.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in paragraph (1) (a) that the noise control measure is implemented in accordance with this Part.

Note For strict liability, see section 6.1 of the Criminal Code.

(1B) It is a defence to a prosecution for an offence against subregulation (1) if the contractor complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code).

(2) If a contractor is given a personal hearing protector, the contractor must:

(a) use the protector; and

(b) tell the employer, as soon as practicable, of any defect of which the contractor is aware in the protector.

Penalty: 10 penalty units.

(3) To avoid doubt, subregulations (1) and (2) do not affect any existing or future right at common law that would, but for this subregulation, be affected by those subregulations.

Part 4 Plant

Division 1 Introduction

4.01 Objects of Part 4

The object of this Part is to protect the health and safety of:

(a) employees; and

(b) contractors of an employer for the purposes of subsection 16 (4) of the Act; and

from hazards arising from plant, and systems of work associated with plant, by:

(d) ensuring that:

(i) hazards associated with the use of plant at work or at a workplace are identified; and

(ii) risks to health and safety are assessed and controlled; and

(e) eliminating risks to health and safety, or, if that is not reasonably practicable, minimising them; and

(f) specifying requirements relating to the design, manufacture, testing, installation, commissioning, use, repair, storage and disposal of plant; and

(g) requiring the provision of relevant information and training; and

(h) requiring that:

(i) certain plant not be operated unless the employer is licensed to operate the plant; and

(ii) certain plant not be operated unless the design of plant has been:

(A) notified to the Commission under regulation 4.50; or

(B) registered by the Commission under paragraph 4.52 (1) (a).

Note Plant is defined in subsection 5 (1) of the Act to include any machinery, equipment or tool, and any component thereof.

4.02 Application of Part 4

(1) This Part applies to the manufacture of plant that begins only after this Regulation commences.

(2) This Part applies to the design of plant that begins only after this Regulation commences.

(3) This Part applies:

(a) to the supply of plant that is manufactured after this Regulation commences; and

(b) as far as is reasonably practicable, to the supply of plant that is manufactured before this Regulation commences.

(4) This Part applies to importers of plant who order new or used plant, for importation, after this Regulation commences.

(5) This Part applies to the installation or commissioning of plant that begins only after this Regulation commences.

(6) The provisions of this Part relating to the reinstallation or recommissioning of plant apply:

(a) to the reinstallation or recommissioning of plant that is manufactured after this Regulation commences; and

(b) as far as is reasonably practicable, to the reinstallation or recommissioning of plant that is manufactured before this Regulation commences.

(7) Unless the contrary intention appears, this Part applies to:

(a) the use, repair or disposal of plant, whether manufactured before or after the commencement of this Part; and

(b) hazard identification, risk assessment and the control of risk in relation to plant, whether manufactured before or after the commencement of this Part.

4.03 Relevant persons

In this Part, a reference to a relevant person is a reference to any of the following persons:

(a) an employee;

(b) a contractor of an employer for the purposes of subsection 16 (4) of the Act;

Division 2 Duties of a manufacturer of plant

Notes

1. The effect of subsection 18 (1) of the Act is that a manufacturer of plant may, in certain circumstances, have duties in relation to the design of the plant.

2. The effect of subsection 18 (3) of the Act is that if:

(a) plant is imported into Australia by a person who is not the manufacturer of the plant; and

(b) at the time of the importation, the manufacturer of the plant does not have a place of business in Australia;

the person importing the plant (who may be an employer or supplier) is taken to the manufacturer of the plant.

4.04 Hazard identification and risk assessment

(1) A manufacturer of plant that the manufacturer knows, or ought reasonably to expect, will be used by employees at work must take all reasonably practicable steps to ensure that hazards:

(a) arising from the design of the plant; and

(b) that are identified during the manufacture of the plant;

are identified in accordance with Division 7.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in subregulation (1) that the hazards are identified in accordance with Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) If a hazard is identified under subregulation (1), the manufacturer must ensure that the risks associated with the hazard are assessed in accordance with subregulation (3) and Division 7.

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical element in subregulation (2) that the risks are assessed in accordance with subregulation (3) and Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(3) In carrying out an assessment required by subregulation (2) in relation to the design of the plant, the manufacturer must ensure that the following are assessed:

(a) the impact of the plant on the work environment in which it is designed to operate;

(b) the range of environmental and operational conditions in which the plant is intended to be manufactured, transported, installed, erected and used;

(d) the need for safe access and egress for persons who install, erect or use the plant.

Penalty: 10 penalty units.

4.05 Elimination or control of risk

(1) If a risk assessment conducted by a manufacturer of plant for the purposes of regulation 4.04 identifies a risk to health and safety, the manufacturer must take all reasonably practicable steps to ensure that:

(a) the risk is eliminated; or

(b) if it is not reasonably practicable to eliminate the risk — the risk is minimised in accordance with Division 7 and subregulation (2).

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in subregulation (1) that:

(a) the risk assessment is conducted for the purposes of regulation 4.04; and

(b) the risk is minimised in accordance with Division 7 and subregulation (2).

Note For strict liability, see section 6.1 of the Criminal Code.

(2) For the purpose of minimising a risk in relation to design, the manufacturer must apply as many of the following measures as are appropriate:

(a) the use of designs which minimise the risks to health and safety associated with the use of the plant;

(b) the use of designs which have regard to ergonomic principles;

(c) the use of designs which enable components to be accessed for maintenance, repair or cleaning purposes with minimised risks to health and safety;

(d) ensuring that plant is designed according to all relevant standards referred to in Schedule 5;

(e) ensuring that powered mobile plant is designed to minimise the risk of the plant overturning, or of objects falling on an operator of the plant;

(f) if the risk assessment for powered mobile plant has identified a risk of:

(i) the plant overturning; or

(ii) objects falling on an operator of the plant; or

(iii) an operator of the plant being ejected from the seat;

the use of an appropriate combination of operator protective devices to minimise the risk;

(g) if a particular system of work or operator competency is a factor in the control of the risk — the specification of that system or competency;

(h) if the risk assessment has identified an increased risk due to the build up of unwanted substances or materials, the use of designs that minimise that build up.

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical element in paragraph (2) (d) that a standard referred to in Schedule 5 is relevant.

Note For strict liability, see section 6.1 of the Criminal Code.

(3) Subject to subregulation (4), a manufacturer of plant that the manufacturer knows, or ought reasonably to expect, will be used by employees at work must take all reasonably practicable steps to ensure that the plant is:

(a) manufactured having regard to the designer’s specification; and

(b) inspected having regard to the designer’s specification; and

Penalty: 10 penalty units.

(4) If a fault in the design of plant that may affect health and safety is identified during the manufacture of the plant, the manufacturer must take all reasonably practicable steps to ensure that:

(a) the fault is not incorporated into the plant; and

(b) the designer of the plant is consulted on how to rectify the fault.

Penalty: 10 penalty units.

(5) If a manufacturer knows, or ought reasonably to expect, that, after being manufactured, plant has a fault that may affect the health and safety of employees at work, the manufacturer must take all reasonably practicable steps to ensure that the person to whom the plant was supplied is notified of the fault and of the steps required to rectify it.

Penalty: 10 penalty units.

4.06 Provision of information

A manufacturer of plant that the manufacturer knows, or ought reasonably to expect, will be used by employees at work, must take all reasonably practicable steps to make available to the employer information concerning:

(a) the systems of work necessary for the safe use of the plant; and

(b) the knowledge, training or skill needed by a person inspecting or testing the plant; and

Notes

1. See paragraph 18 (1) (c) of the Act for requirements relating to the provision of information about plant by manufacturers to employers in relation to the use of plant by employees at work.

2. The effect of subsection 22 (3) of the Act is that a manufacturer is taken to have complied with regulation 4.05 and with section 18 of the Act if the manufacturer relied on research, testing and examination carried out by another person or organisation and it was reasonable for the manufacturer to rely on that research, testing or examination.

Division 3 Duties of a supplier of plant

4.07 Elimination or control of risk

(1) If a supplier of plant that the supplier knows, or ought reasonably to expect, will be used by employees at work, identifies a risk to health and safety arising from the use of the plant, the supplier must take all reasonably practicable steps to ensure that, at the time of supply:

(a) the risk to health and safety arising from the use of the plant is eliminated; or

(b) if it is not reasonably practicable to eliminate the risk — the risk to health and safety from the use of the plant is minimised in accordance with Division 7.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in paragraph (1) (b) that the risk is minimised in accordance with Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) A supplier of plant that is intended to be used at work for scrap or spare parts must, before supplying the plant, tell the employer, in writing or by marking the plant:

(a) the purposes for which the plant may be safely used; and

(b) that the plant must not be placed in service in the form in which it is supplied.

Penalty: 10 penalty units.

(2A) It is a defence to a prosecution for an offence against subregulation (2) if the supplier complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (2A) (see section 13.3 of the Criminal Code).

(3) If a supplier hires or leases plant to an employer, being plant that the supplier knows, or ought reasonably to expect, will be used by employees at work, the supplier must take all reasonably practicable steps to ensure that:

(a) any risk to the health and safety of the employees arising from the use of plant that is hired or leased is minimised; and

(b) the plant is inspected between each hire or leasing to identify and, if necessary, minimise any risk to health and safety of employees from the use of the plant at work; and

(i) the need for testing the plant to establish whether new or increased risks to health and safety have developed; and

(ii) the times at which testing of that kind is to be carried out; and

(d) testing is carried out for the purposes of paragraph (b) and the results of the testing are recorded; and

(e) the records of testing are kept for the period in which the supplier hires or leases the plant to employers.

Penalty: 10 penalty units.

4.08 Provision of information

(1) A supplier of used plant to an employer, being plant that the supplier knows, or ought reasonably to expect, will be used by employees at work, must take all reasonably practicable steps to ensure that, at the time at which the plant is supplied to the employer, any record relating to the plant kept for the purposes of these Regulations by the previous owner of the plant is made available to the employer.

Penalty: 10 penalty units.

Notes

1. The duties of a supplier in relation to the provision of information about new plant are set out in paragraph 19 (1) (c) of the Act.

2. The effect of subsection 22 (3) of the Act is that a supplier is taken to have complied with regulation 4.08 and with section 19 of the Act if the supplier relied on research, testing and examination carried out by another person or organisation and it was reasonable for the manufacturer to rely on that research, testing or examination.

(2) Strict liability applies to the physical element in subregulation (1) that the record is kept for the purposes of these Regulations.

Note For strict liability, see section 6.1 of the Criminal Code.

Division 4 Duties of an erector or installer of plant

4.09 Hazard identification and risk assessment

(1) A person who erects or installs plant at a workplace must take all reasonably practicable steps to ensure that hazards associated with the plant:

(a) after it has been erected or installed; and

(b) when it is used by employees at work;

are identified in accordance with Division 7 before and during the erection or installation of the plant.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in subregulation (1) that the hazards are identified in accordance with Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) If a hazard is identified under subregulation (1), the erector or installer must ensure that the risks associated with the hazard are assessed in accordance with Division 7.

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical element in subregulation (2) that the risks are assessed in accordance with Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(3) An erector or installer may carry out a risk assessment under subregulation (2) on individual items of plant.

(4) Subject to subregulation (5), if more than 1 item of plant of the same design is to be used under conditions that are the same for all practicable purposes, an erector or installer may carry out a risk assessment on a representative sample of the plant.

(5) If a risk to health and safety may vary from operator to operator, the erector or installer must carry out a separate risk assessment on each item of plant that is to be erected or installed.

Penalty: 10 penalty units.

4.10 Elimination or control of risk

(1) If a risk assessment conducted by an erector or installer of plant for the purposes of subregulation 4.09 (2) or (5) identifies a risk to health and safety, the erector or installer must take all reasonably practicable steps to ensure that:

(a) the risk to health and safety arising from the use of the plant is eliminated; or

(b) if it is not reasonably practicable to eliminate the risk — the risk to health and safety from the use of the plant is minimised in accordance with Division 7.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical elements in subregulation (1) that:

(a) the risks assessment is conducted for the purposes of subregulation 4.09 (2) or (5); and

(b) the risk is minimised in accordance with Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) The erector or installer must take all reasonably practicable steps to ensure that:

(a) if the plant is designed to be operated in a fixed position — the plant is positioned on and, if necessary, fixed to, a secure base in order to prevent unintentional movement of the plant when power is applied, or while the plant is in operation; and

(b) the electrical installations associated with the plant are installed to minimise the risk to the health and safety of an employee, after being installed.

Penalty: 10 penalty units.

Note The effect of subsection 22 (2) of the Act is that an erector or installer is taken to have complied with this Division and section 20 of the Act if the erector or installer reasonably relied on information from the manufacturer or the supplier of the plant, relating to the erection or installation of the plant.

Division 5 Duties of an employer

Subdivision A General duties

Notes

1. An employer’s duty under these Regulations may arise because the employer is a manufacturer of plant, an erector of plant, an installer of plant, or acts in another capacity referred to in this Part.

2. If it is necessary for an employer to have work carried out by a competent person, then a certificate permitting the person to carry out the work may be required: see Part 2 of these Regulations.

4.11 Hazard identification and risk assessment

(1) An employer must take all reasonably practicable steps to ensure that hazards relating to plant at work are identified in accordance with Division 7:

(a) before and during the introduction of the plant to a workplace; and

(b) before and during:

(i) a change in the way that the plant is used that is likely to involve a risk to the health and safety of a relevant person; and

(ii) a change in a system of work associated with the plant that is likely to involve a risk to the health and safety of a relevant person; and

(iii) if relevant — a change in the location of the plant that is likely to involve a risk to the health and safety of a relevant person; and

(c) when new or additional health and safety information relating to the plant, or a system of work associated with the plant, becomes available to the employer.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in subregulation (1) that the hazards are identified in accordance with Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) For plant that is in use before the commencement of this Regulation, the employer must take all reasonably practicable steps to ensure that hazards are identified in accordance with Division 7 no later than 18 months after the day on which this Regulation commences.

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical elements in subregulation (2) that:

(a) the plant was in use before the commencement of subregulation (2); and

(b) the hazards were identified in accordance with Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(3) If a hazard is identified, the employer must ensure that the risks associated with the hazard are assessed in accordance with Division 7 and subregulation (4).

Penalty: 10 penalty units.

(3A) Strict liability applies to the physical element in subregulation (3) that the risks associated with the hazard are assessed in accordance with Division 7 and subregulation (4).

Note For strict liability, see section 6.1 of the Criminal Code.

(4) In carrying out a risk assessment, the employer must take all reasonably practicable steps to:

(a) assess the risk arising from:

(i) any system of work associated with the plant; and

(ii) the layout and condition of the work environment in which the plant is to be used; and

(iii) the capability, skill and experience of the operator ordinarily using the plant; and

(iv) any reasonably foreseeable abnormal condition that is likely to affect the plant; and

(b) identify:

(i) items of plant that require records to be kept to minimise the risk to the health and safety of a relevant person; and

(ii) the kind of records that should be kept; and

(iii) the length of time for which the records should be kept.

(5) An employer may carry out a risk assessment under subregulation (3) on individual items of plant.

(6) Subject to subregulation (7), if more than 1 item of plant of the same design is to be installed and used under conditions that are the same for all practicable purposes, an employer may carry out a risk assessment on a representative sample of the plant.

(7) If a risk to health and safety may vary from operator to operator, the employer must carry out a separate risk assessment on each item of plant to determine the risk to each operator of the plant.

Penalty: 10 penalty units.

4.12 Elimination or control of risk

(1) If a risk assessment conducted by an employer for the purposes of subregulation 4.11 (3) or (7) identifies a risk to health and safety in relation to plant at work, the employer must take all reasonably practicable steps to ensure that:

(a) the risk is eliminated; or

(b) if it is not reasonably practicable to eliminate the risk — the risk is minimised in accordance with Division 7 and subregulation (2).

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in subregulation (1) that:

(a) the risk assessment is conducted for the purposes of subregulation 4.11 (3) or (7); and

(b) the risk is minimised in accordance with Division 7 and subregulation (2).

Note For strict liability, see section 6.1 of the Criminal Code.

(2) The employer must take all reasonably practicable steps to ensure that:

(a) control measures are maintained, and supervised effectively, to minimise any risk to the health and safety of a relevant person; and

(b) systems of work are implemented and effectively supervised to minimise any risk to the health and safety of a relevant person; and

(c) if personal protective equipment is required — the equipment is provided and maintained in a manner that minimises the risk to the health and safety of a relevant person; and

(d) if a hazardous situation is reported — a relevant person is not placed at risk until the hazardous situation is rectified.

Penalty: 10 penalty units.

4.13 Design of plant

If an employer engages a person to design plant for use by employees at work, the employer must ensure that the person is provided with relevant information about matters relating to the plant that may affect the health and safety of a relevant person.

Penalty: 10 penalty units.

4.14 Installation and commissioning of plant

(1) If an employer knows, or ought reasonably to know, of any risk to the health and safety of a relevant person occurring during the installation, erection or commissioning of plant that is to be used at work, the employer must take all reasonably practicable steps to ensure that the risk is:

(a) eliminated; or

(b) if it is not reasonably practicable to eliminate the risk — minimised in accordance with Division 7 and subregulation (2).

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in paragraph (1) (b) that the risk is minimised in accordance with Division 7 and subregulation (2).

Note For strict liability, see section 6.1 of the Criminal Code.

(2) The employer must take all reasonably practicable steps to ensure that:

(a) the installation, erection and commissioning of the plant are undertaken by a competent person; and

(b) the person undertaking the installation, erection or commissioning is given the information that is necessary to allow the plant to be installed, erected and commissioned in a manner that minimises the risk to the health and safety of a relevant person; and

(i) the task to be carried out using the plant; and

(ii) the kind of plant; and

(d) there is sufficient space surrounding the plant to allow the plant to be used, and repaired, in a manner that minimises the risk to the health and safety of a relevant person; and

(e) the layout of the workplace is appropriate for the operation of the plant; and

(f) the workplace includes a safe means of access and egress; and

(g) if the final means of safeguarding the plant is not in place during the testing or start-up of the plant — an appropriate interim safeguard is used; and

(h) as far as can be determined by commissioning the plant — the plant is in a suitable condition to be operated.

Penalty: 10 penalty units.

4.15 Use of plant

(1) An employer must take all reasonably practicable steps to ensure that a risk to the health and safety of a relevant person arising from plant used by employees at work, or the associated systems of work, under the employer’s control is:

(a) eliminated; or

(b) if it is not reasonably practicable to eliminate the risk — minimised in accordance with Division 7.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in paragraph (1) (b) that the risk is minimised in accordance with Division 7.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) Without limiting subregulation (1), the employer must take all reasonably practicable steps to ensure that:

(a) if the plant is operated by an employee at work, or a contractor of the employer — the employee or contractor:

(i) receives necessary information and training in the operation of the plant; and

(ii) is supervised to the extent necessary to minimise the risk to health and safety; and

(b) the plant is subject to appropriate checks, tests and inspections that are necessary to minimise the risk to the health and safety of an employee or a contractor of the employer; and

(d) measures are provided to prevent any unauthorised interference to, or use of, the plant that is capable of making the plant a risk to the health and safety of a relevant person; and

(e) if safety features or warning devices are incorporated into the plant, they are used in a proper manner; and

(f) a person is not allowed to work between the fixed and traversing parts of the plant if there is a risk to the health and safety of a relevant person; and

(g) facilities and systems of work are provided and maintained to minimise the risk to the health and safety of a person who maintains, inspects or cleans the plant; and

(h) inspections, maintenance and cleaning are carried out having regard to procedures:

(i) recommended for the plant by its designer or manufacturer; or

(ii) developed for the plant by a competent person; and

(i) if access to the plant is required for the purpose of maintenance, cleaning or repair, the plant is stopped and 1 or more of the following items is used to minimise the risk to the health and safety of a relevant person:

(i) a lockout or isolation device;

(ii) a permit to work system;

(iii) another appropriate control measure; and

(j) if danger tags are used on plant that is stopped for the purpose of maintenance, cleaning or repair, the tags are used in conjunction with 1 of the items referred to in paragraph (i); and

(k) if it is not reasonably practicable to carry out cleaning or maintenance while the plant is stopped:

(i) operational controls that permit controlled movement of the plant are fitted; and

(ii) a safe system of work is used; and

(l) each safety feature or warning device used with the plant is maintained, and tested, on a regular basis.

Penalty: 10 penalty units.

(2A) It is a defence to a prosecution for an offence against paragraph (2) (c) if the employer determined, and a competent person assessed, that a change in the purpose for which the plant is used does not present an increased risk to the health and safety of a relevant person.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (2A) (see section 13.3 of the Criminal Code).

(3) An employer is not required to comply with paragraph (2) (a) in relation to plant that is intended to be operated by the public in general.

(4) The employer must ensure that plant at work is not available for use if:

(a) the function or condition of the plant is impaired or damaged; and

(b) the impairment or damage creates an immediate risk to the health and safety of an employee or a contractor of the employer.

Penalty: 10 penalty units.

(5) It is a defence to a prosecution for an offence against subregulation (4) if the employer:

(a) controlled the risk in accordance with this Division; or

(b) repaired the plant in accordance with regulation 4.16.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (5) (see section 13.3 of the Criminal Code).

4.16 Repair of plant

If the function or condition of plant at work is impaired or damaged to an extent that increases the risk to the health and safety of a relevant person, the employer must take all reasonably practicable steps to ensure that:

(a) a competent person assesses the damage and advises the employer of:

(i) the nature of the damage; and

(ii) whether the plant can be repaired; and

(iii) if the plant can be repaired — the repairs that must be carried out to minimise the risk to health and safety; and

(b) a competent person carries out any repairs, inspection or testing that is required; and

Penalty: 10 penalty units.

4.17 Storage and disposal of plant

(1) If plant at work is to be stored, the employer must take all reasonably practicable steps to ensure that a competent person stores the plant in a manner that involves no risk to the health and safety of employees at work.

Penalty: 10 penalty units.

(2) If plant at work:

(a) is to be disposed of; and

(b) contains materials that present a risk to the health and safety of employees at work;

the employer must take all reasonably practicable steps to ensure that the disposal is carried out by a competent person and in a manner that minimises any risk to the health and safety of employees at work.

Penalty: 10 penalty units.

4.18 Training, information, instruction and supervision

Note The effect of regulation 4.03 is that each of the following persons is a relevant person:

(a) an employee;

(b) a contractor of an employer for the purposes of subsection 16 (4) of the Act;

(1) If a hazard that relates to plant at work, or a system of work associated with the plant, is identified and assessed to be a risk that must be minimised, the employer must ensure that:

(a) a relevant person who is likely to be exposed to the risk, and a person supervising that person, are, if relevant, appropriately trained in relation to:

(i) the nature of the hazard and the processes used for the identification, assessment and control of any risk; and

(ii) the safety procedures associated with the plant; and

(iii) the need for, and proper use and maintenance of, control measures; and

(iv) the use, fitting, testing and storage of personal protective equipment; and

(v) the availability and use of specific information relevant to the plant; and

(b) the persons referred to in paragraph (a) are, if relevant, provided with information and instruction relating to the matters referred to in that paragraph; and

(c) before a person uses the plant, the person is given the information and instruction that is necessary to enable the person to use the plant in a manner that minimises any risk to the health and safety of a relevant person; and

(d) a person who uses the plant is given the training and supervision that is necessary to enable the person to use the plant in a manner that minimises any risk to the health and safety of a relevant person; and

(e) relevant health and safety information is provided to a person involved in:

(i) the installation, erection or commissioning of the plant; or

(ii) the use of the plant; or

(iii) the testing of the plant; or

(iv) the decommissioning or disposal of the plant; and

(f) if relevant — information on emergency procedures relating to the plant is displayed in a manner that may be observed readily by a person who is, or is likely to be, affected by the operation of the plant.

Penalty: 10 penalty units.

(2) An employer is not required to comply with paragraph (1) (d) in relation to a member of the public who uses an amusement structure that is under the employer’s control.

4.19 Record keeping

(1) An employer must ensure that records are made and kept concerning relevant tests, maintenance, inspection and commissioning of plant referred to in subregulation (2) while it is operable at work.

Penalty: 5 penalty units.

(1A) Strict liability applies to the physical element in subregulation (1) that the plant is the plant referred to subregulation (2).

Note For strict liability, see section 6.1 of the Criminal Code.

(2) The following plant is specified for the purposes of subregulation (1):

(a) plant listed in column 2 of an item in Part 2 of Schedule 6 the design of which must be notified under regulation 4.50;

(b) any of the following items of plant:

(i) concrete placing units;

(ii) industrial lift trucks;

(iii) mobile cranes;

(iv) hoists, with a platform movement in excess of 2.4 metres, designed to lift people;

(v) boom-type elevating work platforms;

(vi) presence sensing safeguarding systems;

(vii) vehicle hoists;

(viii) gantry cranes greater than 5 tonnes, bridge cranes greater than 10 tonnes, or any gantry crane or bridge crane designed to handle molten metal or dangerous goods;

(ix) mast climbing work platforms;

(c) plant in relation to which records are to be prepared on the basis of a risk assessment carried out in accordance with this Part.

(3) If a document exists that records the results of a risk assessment in relation to the plant, the employer must ensure that the document is kept for the length of time identified by the employer under subparagraph 4.11 (4) (b) (iii).

Penalty: 5 penalty units.

(3A) Strict liability applies to the physical element in subregulation (3) that the length of time is the length of time identified by the employer under subparagraph 4.11 (4) (b) (iii).

Note For strict liability, see section 6.1 of the Criminal Code.

(4) The employer must give health and safety records concerning the plant to a person who purchases or otherwise acquires the plant from the employer.

Penalty: 10 penalty units.

Note The effect of subsection 22 (1) of the Act is that an employer is taken to have complied with this Division and sections 16 and 17 of the Act if the employer reasonably relied on information relating to the use of the plant supplied by the manufacturer or the supplier of the plant.

(5) It is a defence to a prosecution for an offence against subregulation (4) if the employer sold the plant for scrap or as spare parts for other plant.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (5) (see section 13.3 of the Criminal Code).

Subdivision B Specific duties for control of risk

Notes

1. The duties in regulations 4.20 to 4.29 are additional requirements to those in regulation 4.12.

2. The effect of subsection 5 (3) and section 16 of the Act is that an employer is taken to have control over plant if the plant is used by employees at work or at a workplace under the employer’s control.

4.20 Plant under pressure

(1) Subject to subregulation (5), if pressure equipment, other than a gas cylinder:

(a) is referred to in AS 1200 (SAA Boiler Code); and

(b) is in use at work;

the employer must take all reasonably practicable steps to ensure that the equipment is inspected in accordance with AS 3788 (Boiler and Pressure Vessels — In-service Inspection).

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical elements in subregulation (1) that:

(a) the pressure equipment is the equipment referred to in AS 1200 (SAA Boiler Code); and

(b) the inspection is in accordance with AS 3788 (Boiler and Pressure Vessels — In‑Service Inspection).

Note For strict liability, see section 6.1 of the Criminal Code.

(2) An employer must take all reasonably practicable steps to ensure that a gas cylinder at work is inspected in accordance with AS 2030 (SAA Gas Cylinders Code).

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical element in subregulation (2) that the inspection is in accordance with AS 2030 (SAA Gas Cylinders Code).

Note For strict liability, see section 6.1 of the Criminal Code.

(3) If an employer that operates a gas cylinder test station is given a gas cylinder to be inspected and tested, the employer must take all reasonably practicable steps to ensure that the cylinder is inspected and tested in accordance with:

(a) AS 2030 (SAA Gas Cylinders Code); and

(b) AS 2337 (Gas Cylinder Test Stations).

Penalty: 10 penalty units.

(3A) Strict liability applies to the physical element in subregulation (3) that the inspection and testing is in accordance with AS 2030 (SAA Gas Cylinders Code) and AS 2337 (Gas Cylinder Test Stations).

Note For strict liability, see section 6.1 of the Criminal Code.

(4) If an employer that operates a gas cylinder test station is given a gas cylinder to be filled, the employer must take all reasonably practicable steps to ensure that:

(a) the cylinder is only filled if it bears a current inspection mark in accordance with AS 2030 (SAA Gas Cylinders Code); and

(b) the cylinder is in good condition when being filled; and

(d) the fluid with which the cylinder is intended to be filled is compatible with the cylinder; and

(e) the cylinder is filled in a manner that is not a risk to the health and safety of a relevant person.

Penalty: 10 penalty units.

(4A) Strict liability applies to the physical elements in subregulation (4) that the cylinder:

(a) bears a current inspection mark in accordance with AS 2030 (SAA Gas Cylinders Code); and

(b) is filled in accordance with AS 2030 (SAA Gas Cylinders Code).

Note For strict liability, see section 6.1 of the Criminal Code.

(5) If an employer is licensed under paragraph 4.43 (1) (a) to operate pressure equipment of the kind referred to in subregulation (1), the employer is not required to comply with subregulation (1) until 1 July 1997.

4.21 Plant with moving parts

(1) If a risk assessment identifies a risk to health and safety arising from the moving parts of plant used at work, the employer must take all reasonably practicable steps to ensure that:

(a) the plant is not cleaned, maintained or repaired while the plant is operating; and

(b) if the guarding of a moving part does not completely eliminate the risk of entanglement, a person does not operate, or pass in close proximity to, the plant.

Penalty: 10 penalty units.

(2) It is a defence to a prosecution for an offence against paragraph (1) (a) if there was no other reasonably practicable approach.

(3) It is a defence to a prosecution for an offence against paragraph (1) (b) if a safe system of work was introduced, enforced and maintained to minimise the risk of entanglement.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulations (2) and (3) (see section 13.3 of the Criminal Code).

4.22 Powered mobile plant

(1) An employer must take all reasonably practicable steps to ensure that powered mobile plant at work is used in a manner that minimises any risk to the health and safety of a relevant person.

Penalty: 10 penalty units.

(2) If, after an employer minimises the risk to health and safety relating to powered mobile plant at work:

(a) there remains a risk of:

(i) an item of powered mobile plant overturning; or

(ii) objects falling on the operator of the powered mobile plant; or

(iii) the operator of the powered mobile plant being ejected from the seat; and

(b) the risk needs to be controlled;

the employer must take all reasonably practicable steps to ensure that an appropriate combination of operator protective devices is provided, maintained and used as appropriate.

Penalty: 10 penalty units.

(3) In addition to the requirements in subregulation (2), an employer must take all reasonably practicable steps to ensure that appropriate controls are implemented to eliminate or minimise the risk of that plant colliding with other powered mobile plant.

Penalty: 10 penalty units.

(4) If a tractor at work is of a kind to which the testing requirements of AS 1636 (Agricultural Wheeled Tractors Roll-Over Protective Structures Criterion and Tests) apply, the employer must take all reasonably practicable steps to ensure that the tractor is securely fitted with a rollover protective structure no later than 12 months after the day on which this Regulation commences.

Penalty: 10 penalty units.

(4A) It is a defence to a prosecution for an offence against subregulation (4) if the tractor:

(a) was manufactured, or imported into Australia, before 1 January 1981, and was not operated by an employee; or

(b) was installed in a fixed position, and in a manner, that no longer allowed it to be used as powered mobile plant.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (4A) (see section 13.3 of the Criminal Code).

(4B) Strict liability applies to the physical element in subregulation (4) that the tractor is of a kind to which the testing requirements of AS 1636 (Agricultural Wheeled Tractors — Roll-Over Protective Structures Criterion and Tests) apply.

Note For strict liability, see section 6.1 of the Criminal Code.

(5) If a tractor is used at work under a tree, or in any other place, that is too low to allow the tractor to work while it is fitted with a rollover protective structure, the structure may be lowered or removed while the tractor is used in that situation.

(6) An employer must take all reasonably practicable steps to ensure that earthmoving machinery at work of a kind referred to in AS 2294 (Protective Structures for Earthmoving Machines) (other than earthmoving machinery that was manufactured, or imported into Australia, before 1 January 1989) is securely fitted with a suitable combination of operator protective devices to minimise the risk to the health and safety of employees at work, no later than 12 months after the commencement of this Regulation.

Penalty: 10 penalty units.

(6A) Strict liability applies to the physical element in subregulation (6) that the machinery is of a kind referred to in AS 2294 (Protective Structures for Earthmoving Machines).

Note For strict liability, see section 6.1 of the Criminal Code.

(7) An employer must take all reasonably practicable steps to ensure that:

(a) a protective structure that is fitted to powered mobile plant at work complies with:

(i) AS 1636 (Agricultural Wheeled Tractors — Roll‑Over Protective Structures Criterion and Tests); or

(ii) AS 2294 (Protective Structures for Earthmoving Machines); or

(b) if a protective structure, or an associated structural attachment, of a kind referred to in paragraph (a) is not available — another protective structure is designed by a suitably qualified engineer in accordance with the following requirements:

(i) the performance requirements of AS 2294 (Protective Structures for Earthmoving Machines) must be used as the design criteria for a rollover or falling object protective structure;

(ii) the engineer is permitted to use calculated deformations if the engineer is satisfied that deformation testing is not required;

(iii) the protective structure must be identified with the information required by AS 2294 (Protective Structures for Earthmoving Machines), as appropriate.

Penalty: 10 penalty units.

(7A) Strict liability applies to the following physical elements:

(a) in paragraph (7) (a) — that the structure complies with AS 1636 (Agricultural Wheeled Tractors — Roll-Over Protective Structures Criterion and Tests) or AS 2294 (Protective Structures for Earthmoving Machines);

(b) in subparagraph (7) (b) (i) — that the protective structure is designed in accordance with the performance requirements of AS 2294 (Protective Structures for Earthmoving Machines);

(c) in subparagraph (7) (b) (iii) — that the information is required by AS 2294 (Protective Structures for Earthmoving Machines).

Note For strict liability, see section 6.1 of the Criminal Code.

(8) An employer must take all reasonably practicable steps to ensure that, to minimise any risk to the health and safety of employees at work, powered mobile plant used by those employees is fitted with suitable operator restraining devices if:

(a) the plant is fitted with a rollover protective structure or a falling object protective structure; and

(b) attaching points for operator restraining devices have been incorporated in the original design of the plant.

Penalty: 10 penalty units.

4.23 Plant with hot or cold parts

An employer must take all reasonably practicable steps to ensure that:

(a) if a relevant person is exposed to the hot or cold parts of plant — the exposure is monitored and suitably managed to minimise any risk to the health and safety of the relevant person; and

(b) if molten metal is transported at work — arrangements are made to prevent access to the path along which it is transported while the transportation occurs; and

(c) pipes and other parts of plant that are associated with hot or cold plant at work are adequately guarded or insulated to minimise any risk to the health and safety of a relevant person.

Penalty: 10 penalty units.

4.24 Electrical plant and plant that is exposed to electrical hazards

(1) An employer must take all reasonably practicable steps to minimise any risk from the use of plant at work to the health and safety of a relevant person and, in particular, to ensure that:

(a) if damage to plant at work has created an electrical hazard:

(i) the plant is disconnected from the electricity supply; and

(ii) the plant is not used until the damaged part is repaired or replaced; and

(b) plant at work is not used under conditions that are likely to give rise to electrical hazards; and

(c) if plant at work has been isolated, but not physically disconnected, from an electrical supply, appropriate work systems are provided to avoid accidentally energising the plant; and

(d) only a competent person is permitted to carry out electrical work on plant at work; and

(e) if excavations are to be carried out, all relevant available information relating to the position of underground cables is obtained; and

(f) if plant at work is operated near overhead electrical power lines, control options for the plant comply with the requirements of the relevant electrical supply authority, as in force on 31 March 1995.

Penalty: 10 penalty units.

(2) Strict liability applies to the physical element in paragraph (1) (f) that the requirements are those of the relevant electrical supply authority, as in force on 31 March 1995.

Note For strict liability, see section 6.1 of the Criminal Code.

4.25 Plant designed to lift or move

(1) An employer must take all reasonably practicable steps to minimise any risk to the health and safety of a relevant person from plant at work that is designed to lift or move people, equipment or materials, and, in particular, to ensure that:

(a) no load is suspended over, or travels over, a relevant person; and

(b) for plant that is not specifically designed for the lifting or suspending of individuals — individuals are not lifted or suspended by the plant, or an attachment to the plant; and

(c) if the plant is used for lifting or moving a load that may become unstable, the load is appropriately restrained; and

(d) a crane or hoist is not used as an amusement structure; and

(e) a crane, hoist or building maintenance unit is operated and maintained to minimise any risk to health and safety, having regard to instructions:

(i) recommended for the plant by its designer or manufacturer; or

(ii) developed for the plant by a competent person; and

(f) for plant other than a crane or hoist — the plant is not used to suspend a load; and

(g) no load is lifted simultaneously by more than one item of plant; and

(h) for an industrial lift truck — the truck is:

(i) fitted with a warning device that effectively warns individuals who are at risk from the movement of the truck; and

(ii) used in a way that minimises the exposure of the operator to risks arising from work practices or systems, and

(iii) used in a way that minimises the exposure of the operator to risks arising from the particular environment in which the truck is used; and

(iv) equipped with suitable lifting attachments specifically designed for the load to be lifted or moved; and

(i) for an industrial life truck or tractor — no individual other than the operator is permitted to ride on the truck or tractor.

Penalty: 10 penalty units.

(2) It is a defence to a prosecution for an offence against paragraph (1) (b) if:

(a) the use of another method was not practicable; and

(b) a suitable and adequate personnel box or carrier, designed for the purpose, was used and securely attached to the plant; and

(c) the plant was fitted with a means by which the personnel box or carrier may be safely lowered in the event of an emergency or the failure of the power supply; and

(d) the plant was suitably stabilised at all times while the personnel box or carrier is in use; and

(e) a suitable safety harness, securely attached to a suitable point, was provided to and worn by all individuals who are in a suspended personnel box or carrier, unless the personnel box or carrier is fully enclosed.

(3) It is a defence to a prosecution for an offence against paragraph (1) (f) if:

(a) the use of a crane or hoist was not practicable; and

(b) the load was only travelled with the lifting arm of the plant fully retracted; and

(d) relevant persons were not permitted to be under the load; and

(e) a welded lug was used as the lifting point; and

(f) if a bucket operated by a trip-type catch was used — the catch was bolted or otherwise positively engaged; and

(g) an appropriate load chart was provided and all lifting was carried out within the safe working load limits of the plant; and

(h) safe working load limits were displayed clearly on the plant; and

(i) a load was lifted using attachments suitable to the task to be performed.

(4) It is a defence to a prosecution against paragraph (1) (i) if:

(a) the individual was seated in a seat specifically designed for carrying a passenger; and

(b) the seat was fitted with suitable seat restraints; and

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulations (2), (3) and (4) (see section 13.3 of the Criminal Code).

4.26 Industrial robots and other remotely or automatically energised equipment

(1) An employer must take all reasonably practicable steps to ensure that an employee is not permitted to work in the immediate vicinity of an industrial robot or other remotely or automatically energised equipment.

Penalty: 10 penalty units.

(1A) It is a defence to a prosecution for an offence against subregulation (1) if suitable controls and systems of work were in place for the control of risk in relation to the robot or equipment.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (1A) (see section 13.3 of the Criminal Code).

(2) If an industrial robot at work can be remotely or automatically energised to create a risk to the health and safety of a relevant person, the employer must take all reasonably practicable steps to ensure that:

(a) access to the area immediately surrounding the robot is restricted; and

(b) access to that area is controlled by:

(i) the isolation of the area; or

(ii) the provision of interlocked guards; or

(iii) the use of presence sensing devices; and

Penalty: 10 penalty units.

4.27 Lasers and laser products

(1) An employer must take all reasonably practicable steps to ensure that:

(a) a laser or laser product is not operated at work if it has not been classified and labelled in accordance with AS 2211; and

(b) a Class 3B or Class 4 laser or laser product, for the purposes of AS 2211, is not used at work in a building or construction operation; and

(c) the use of a laser or laser product at work in a building or construction operation, other than a laser or laser product referred to in paragraph (b), is in accordance with AS 2397 (Guide to the Safe Use of Lasers in the Construction Industry).

Penalty: 10 penalty units.

Note The Approved Code of Practice on Non Ionising Radiation incorporates the following Australian Standards:

(a) AS 2772.1-1990 (Radiofrequency Part 1 Maximum Exposure Levels — 100 kHz to 300 GHz);

(b) AS 2211-1990 (Laser Safety);

(2) Strict liability applies to the following physical elements:

(a) in paragraph 4.27 (1) (a) — that the laser or laser product has been classified and labelled in accordance with AS 2211 (Laser Safety);

(b) in paragraph 4.27 (1) (b) — that the laser or laser product is for the purposes of AS 2211 (Laser Safety);

(c) in paragraph 4.27 (1) (c) — that the use of the laser or laser product is in accordance with AS 2397 (Guide to the Safe Use of Lasers in the Construction Industry).

Note For strict liability, see section 6.1 of the Criminal Code.

4.28 Scaffolds

(1) An employer must take all reasonably practicable steps to ensure that no work is carried out from:

(a) a suspended scaffold; or

(b) a cantilevered scaffold; or

(d) a hung scaffold; or

(e) another scaffold from which a person or an object could fall more than four metres.

Penalty: 10 penalty units.

(1A) It is a defence to a prosecution for an offence against subregulation (1) if the employer obtained written confirmation from a competent person that the scaffold, or the relevant part or portion of the scaffold, is complete.

Note A defendant bears an evidential burden in relation to the matters mentioned in subregulation (1A) (see section 13.3 of the Criminal Code).

(2) If a scaffold of a kind referred to in subregulation (1) is used at work, the employer must take all reasonably practicable steps to ensure that the scaffold, and its supporting structure, are inspected by a competent person, to determine whether they comply with these Regulations:

(a) before the scaffold is used for the first time; and

(b) after the scaffold is used for the first time — at intervals not exceeding 30 days; and

(c) if an event occurs that can reasonably be expected to affect the stability or adequacy of the scaffold (for example, severe storm conditions or an earthquake):

(i) as soon as practicable after the event occurs; and

(ii) before the scaffold is used again; and

(d) before the scaffold is used for the first time following repairs.

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical element in subregulation (2) that the scaffold is of a kind referred to in subregulation (1).

Note For strict liability, see section 6.1 of the Criminal Code.

(3) If any scaffold, or its supporting structure, used at work:

(a) is inspected; and

(b) is found to be in an unsafe condition;

the employer must take all reasonably practicable steps to ensure that suitable repairs, alterations and additions (as required) are carried out before the scaffold is used again.

Penalty: 10 penalty units.

(4) If any scaffold used at work is incomplete, and left unattended, the employer must take all reasonably practicable steps to ensure that suitable controls are used (including the use of danger tags or warning signs) to prevent unauthorised access to the scaffold.

Penalty: 10 penalty units.

4.29 Amusement rides

If an amusement ride is used at work, the employer must take all reasonably practicable steps to ensure that:

(a) the ride is operated in a manner that minimises the risk to the health and safety of a relevant person, having regard to instructions:

(i) recommended for the ride by its designer or manufacturer; or

(ii) developed for the ride by a competent person; and

(b) records relating to the ride are kept in accordance with instructions:

(i) recommended for the ride by its designer or manufacturer; or

(ii) developed for the ride by a competent person.

Penalty: 10 penalty units.

Notes

1. Amusement ride is described in the definition of amusement structure in subregulation 10.01 (1).

2. The effect of subsection 22 (1) of the Act is that an employer is taken to have taken all reasonably practicable steps to control risks in relation to plant under the employer’s control if:

(a) the employer has taken all reasonably practicable steps to ensure that the use of the plant was in accordance with the information supplied by the manufacturer or the supplier of the plant, relating to health and safety in the use of the plant; and

(b) it is reasonable for the employer to rely on that information.

Division 6 Duties of an employee

4.30 Duties

(1) An employee at work must take all reasonably practicable steps to:

(a) comply with any requirement relating to plant implemented in accordance with this Part; and

(b) tell his or her employer, as soon as practicable, of any defect of which the employee is aware in any plant located at the place at which the employee carries out the work.

Penalty: 10 penalty units.

(2) Strict liability applies to the physical element in paragraph (1) (a) that the requirement relating to plant was implemented in accordance with this Part.

Note For strict liability, see section 6.1 of the Criminal Code.

Division 7 General requirements for hazard identification, risk assessment and risk control

4.31 Hazard identification

(1) A person who is required to identify any hazard to health and safety associated with plant, or a system of work associated with plant, must identify all reasonably foreseeable hazards.

Penalty: 10 penalty units.

(2) Without limiting the operation of subregulation (1), the person must identify hazards arising from the following matters to the extent that they are relevant to the design, manufacture, erection, installation, commissioning, or use of plant:

(a) the suitability of the kind of plant for the task that is to be carried out;

(b) the actual and intended use of the plant;

(d) any foreseeable abnormal situation, misuse or change in operating conditions that may affect the plant;

(e) the potential for injury caused by entanglement, crushing, trapping, cutting, stabbing, puncturing, shearing, abrasion, tearing or stretching;

(f) the creation of hazardous conditions because of the pressurised contents of the plant, electricity, noise, radiation, friction, vibration, fire, explosion, temperature, moisture, vapour, gas, dust, ice or hot or cold parts;

(g) the failure of the plant involving the loss of the contents of the plant, the loss of a load, unintended ejection of workpieces, explosion, fragmentation or the collapse of parts;

(h) the capability of the plant to lift and move persons, equipment or materials, including the suitability of any secondary backup system to support the load being lifted or moved;

(i) any control systems relating to the plant, including, for example, guarding and communications systems;

(j) the potential for objects to fall;

(k) the potential for the plant to roll over;

(l) the suitability of the materials used for the plant;

(m) the suitability and condition of accessories used for the plant;

(n) any ergonomic requirements relating to the installation and use of the plant;

(o) the possibility that a task may need to be carried out without the use of the plant;

(p) the location of the plant and its effect on the design or layout of a place at which work is carried out;

(q) the suitability and stability of the plant and its supports;

(r) the presence of persons and other plant in the vicinity of the plant;

(s) the potential for inadvertent movement or operation of the plant;

(t) systems of work associated with the plant;

(u) the need for, and the adequacy of, access and egress associated with the plant;

(v) the competency of an operator of the plant.

4.32 Risk assessment

A person who is required to assess a risk arising from a hazard to health and safety must:

(a) determine a method of assessment that adequately addresses the hazards identified; and

(b) carry out one or more of the following activities:

(i) a visual inspection of the plant and its associated environment;

(ii) an audit of the consequences of the hazard;

(iii) a test of the plant;

(iv) a technical or scientific evaluation of the plant;

(v) a technical or scientific evaluation of the hazard;

(vi) an analysis of data relating to injuries and near misses;

(vii) discussions with persons involved in the design, manufacture, supply, and importation of plant, and employers, employees, contractors or other relevant parties;

(viii) a quantitative hazard analysis.

Penalty: 10 penalty units.

4.33 Risk control

(1) If a risk assessment identifies a requirement to control a risk to health and safety relating to plant, the person who is required to control the risk must take all reasonably practicable steps to eliminate or minimise the risk.

Penalty: 10 penalty units.

(2) For the purpose of subregulation (1), one or more of the following controls may be implemented:

(a) the substitution of plant or a part of plant;

(b) the isolation of the plant;

(d) the design and implementation of appropriate guarding devices.

(3) If the controls implemented under subregulation (2) do not eliminate or minimise the risk, the person must take all reasonably practicable steps to apply administrative controls, including the introduction of safe working practices.

(4) Until the controls implemented under subregulation (2) and the administrative controls (if any) applied under subregulation (3) eliminate or minimise the risk, the person must give employees and contractors appropriate personal protective equipment to use at work.

Note Regulations 4.34 to 4.38 apply in addition to the requirements in regulation 4.33.

4.34 Access and egress

(1) A person who is required to control a risk relating to plant must take all reasonably practicable steps to ensure that there is sufficient access and egress to:

(a) parts of plant that require cleaning and maintenance; and

(b) the workstation of the operator of the plant.

Penalty: 10 penalty units.

(2) If:

(a) access to plant at work is required as part of its normal operation; and

(b) a person accessing the plant may be trapped and exposed to an increased risk caused by heat, cold or a lack of oxygen;

the person who is required to control the risk must take all reasonably practicable steps to ensure that emergency lighting, safety doors and alarm systems are provided for use with the plant.

Penalty: 10 penalty units.

4.35 Dangerous parts

If a risk assessment identifies a risk of exposure to a dangerous part during:

(a) the operation of plant at work; or

(b) the examination of plant at work; or

(d) the adjustment of plant at work; or

(e) the maintenance of plant at work;

the person who is required to control the risk must take all reasonably practicable steps to ensure that:

(f) the risk is eliminated; or

(g) if it is not reasonably practicable to eliminate the risk — the risk is minimised.

4.36 Guarding

(1) If guarding is used as a control measure in relation to plant at work, the person who is required to control the relevant risk must take all reasonably practicable steps to ensure that the guard provided for the plant is:

(a) if no person requires access to the area to be guarded during the normal operation, maintenance or cleaning of the plant — a permanently fixed physical barrier; or

(b) if a person requires access to the area to be guarded during the normal operation of the plant — an interlocked physical barrier; or

(i) is securely fixed in position by a fastener or another suitable device; and

(ii) ensures that the guard cannot be altered or detached without using a tool or a key; or

(d) if the provision of a barrier described in paragraph (a), (b) or (c) is not practicable — a presence sensing safeguarding system.

Penalty: 10 penalty units.

(2) A guard provided in accordance with subregulation (1) must be:

(a) designed in a manner that does not create a risk to the health and safety of a relevant person; and

(b) designed and constructed to make by-passing it or defeating it, deliberately or by accident, as difficult as is reasonably possible; and

(d) securely mounted to enable it to resist impact and shock; and

(e) regularly maintained.

(3) If:

(a) a part of plant used at work is designed to move at high speed; and

(b) either:

(i) the part may break or disintegrate; or

(ii) a workpiece may be ejected from the plant;

a guard that is provided in accordance with subregulation (1) must be adequate to effectively contain the fragments or the workpiece.

(4) If the risk of jamming or blockage of moving parts of plant at work cannot be eliminated, the person must take all reasonably practicable steps to ensure that:

(a) work procedures are implemented to ensure that the plant can be cleared in a manner that minimises the risk; and

(b) devices and tools are available for use by employees to ensure that the plant can be cleared in a manner that minimises the risk to the health and safety of the employees.

Penalty: 10 penalty units.

4.37 Operational controls of plant

(1) A person who is required to control a risk relating to plant must take all reasonably practicable steps to ensure that the operational controls of the plant are:

(a) suitably identified on plant in a manner that shows the nature and function of the controls; and

(b) able to be readily and conveniently operated by each person operating the plant; and

(d) able to be locked in the off position to enable the disconnection of all motive power and forces.

Penalty: 10 penalty units.

(2) If it is not reasonably practicable to eliminate the need for plant used at work to be operated while it is being maintained or cleaned, the person who is required to control a risk relating to the plant must take all reasonably practicable steps to ensure that the operational controls of the plant permit controlled operation of the plant.

Penalty: 10 penalty units.

(3) Subregulation (4) applies if:

(a) plant used at work is designed to be operated or attended by 2 or more persons; and

(b) the plant is fitted with 2 or more operational controls for this purpose.

(4) A person who is required to control a risk relating to plant mentioned in subregulation (3) must take all reasonably practicable steps to ensure that:

(a) the operational controls are of the kind commonly known as stop and lock-off; and

(b) the plant cannot be restarted after a stop control has been used until each stop control has been reset.

Penalty: 10 penalty units.

4.38 Emergency stops and warning devices

(1) A person who is required to control a risk relating to plant must take all reasonably practicable steps to ensure that each emergency stop device of the plant:

(a) is prominent; and

(b) is clearly and durably marked; and

(d) has handles, bars or push buttons that are coloured red; and

(e) is of a kind the operation of which cannot be affected by an electrical malfunction or the malfunction of an electronic circuit.

(2) If a risk assessment identifies a need to have an emergency warning device fitted to plant, a person who is required to control a risk must take all reasonably practicable steps to ensure that the device is installed in a position that enables its purpose to be achieved easily and effectively.

Division 8 Licence to operate plant

4.39 Employing authority

For the purposes of this Division, the relevant employing authority in relation to an employer is:

(a) for an employer that is a Commonwealth authority — the principal officer of the authority; and

(b) in any other case — the Secretary of the Department.

Notes

1. The effect of section 10 of the Act is that an employer is required to act through the employing authority.

2. Employing authority is defined in section 5 of the Act and in regulation 4 of the Occupational Health and Safety (Commonwealth Employment) Regulations.

4.40 Licence to operate certain plant

(1) Subject to subregulation (2), an employer must not use plant at work, or allow plant to be used, if:

(a) the plant:

(i) is to be operated at work; and

(ii) is specified in column 2 of an item in Part 2 of Schedule 6; and

(b) the employer is not:

(i) licensed to operate the plant; or

(ii) exempted under paragraph 4.40A (4) (a).

Penalty: 10 penalty units.

(1A) Strict liability applies in subregulation (1) to the following physical elements:

(a) in subparagraph (1) (a) (ii) — that the plant is specified in column 2 of an item in Part 2 of Schedule 6;

(b) in subparagraph (1) (b) (ii) — that the employer is not exempted under paragraph 4.40A (4) (a).

Note For strict liability, see section 6.1 of the Criminal Code.

(2) Subregulation (1) applies to an employer on and after 1 January 1997.

4.40A Exemption from licensing

(1) Regulation 4.40 does not apply to an employer if the Commission exempts the employer from the application of the regulation.

(2) The Commission may only exempt an employer in accordance with this Regulation and regulations 4.40B and 4.40C.

(3) An employer that wants an exemption must:

(a) apply to the Commission in writing, using the application form (if any) approved by the Commission; and

(b) include with the application evidence that:

(i) the employer is required, by a law of a State or Territory, to be licensed to operate the plant; and

(ii) the employer holds the appropriate licence under the law.

(4) On receipt of an application, the Commission may, in writing:

(a) give the employer the exemption; or

(b) refuse to give the exemption; or

(c) ask the employer to give it, through the relevant employing authority, further information relating to the application.

(5) Before giving an employer an exemption, the Commission must be satisfied that:

(a) the employer is required, by a law of a State or Territory, to be licensed to operate the plant; and

(b) the law imposes requirements that are substantially the same as those in this Part; and

(d) there are no circumstances suggesting that granting the exemption would be inconsistent with the objects of this Part.

(6) If the Commission refuses to give an exemption, it must give the employer a written notice setting out the reasons for the refusal.

4.40B Conditions of an exemption

(1) An exemption given under paragraph 4.40A (4) (a) is subject to the conditions (if any) that the Commission states in the exemption.

(2) The Commission may only impose conditions to promote the objects of this Part.

(3) The Commission may:

(a) add a condition to an exemption, or vary a condition, to promote the objects of this Part; or

(b) revoke a condition.

(4) If the Commission adds, varies or revokes a condition, it must give the employer that holds the exemption a written notice setting out:

(a) the terms of the decision; and

(b) the time when it commences.

4.40C Operation of an exemption

(1) An exemption given under paragraph 4.40A (4) (a) commences on:

(a) the day on which it is granted; or

(b) a later date stated in the exemption.

(2) The Commission must cancel an exemption if:

(a) it is satisfied that the employer is no longer required, by a law of a State or Territory, to be licensed to operate the plant; or

(b) it is satisfied that the law no longer imposes requirements that are substantially the same as those in this Part; or

(d) it is satisfied that continuing the exemption would be inconsistent with the objects of this Part; or

(e) the employer that holds the exemption asks the Commission to cancel it.

(3) The Commission is not required to consult the employer that holds an exemption before cancelling it.

(4) If the Commission cancels an exemption under paragraph (2) (a), (b), (c) or (d), it must give the employer a written notice setting out:

(a) the reasons for cancelling it; and

(b) the time from which it is cancelled.

(5) An exemption ceases on the earlier of:

(a) the end of the day (if any) stated in the exemption as the day when it ceases; and

(b) the time (if any) when it is cancelled.

4.41 Application for a licence

(1) An employer that wishes to operate plant referred to in subregulation 4.40 (1) must apply to the Commission for a licence to operate the plant.

(2) The application must:

(a) be in writing, using the form (if any) approved by the Commission; and

(b) include:

(i) sufficient information to identify clearly the item or items of plant; and

(ii) if the design of any of the plant requires registration under regulation 4.49 — a notification of the design registration number of the plant; and

(iii) a statement that each item of plant has been inspected by a competent person and is safe to operate.

4.42 Application for renewal of a licence

If an employer to whom a licence is granted under paragraph 4.43 (1) (a) wishes to continue operating the plant to which the licence relates, the employer must apply for a renewal of the licence, using the form (if any) approved by the Commission, before the licence expires.

4.43 Grant and renewal of a licence

(1) On receipt of an application made under subregulation 4.41 (1), the Commission may:

(a) grant a licence to the employer, in the name of the employing authority, that:

(i) identifies the items of plant that the employing authority is licensed to operate; and

(ii) identifies the employer who applied for the licence; and

(iii) states the day on which the licence comes into force; and

(iv) states that the licence is effective for a period of 4 years from the day on which the licence comes into force; and

(v) sets out the conditions to which the licence is subject under subregulation 4.45 (1); and

(vi) is accompanied by a notice stating the amount of the licence fee to be paid and stating that:

(A) half of the amount is payable no later than 14 days after the day on which the employer was given the notice; and

(B) the remaining half is payable on the second anniversary of the issue of the licence; or

(b) refuse to grant a licence; or

(c) ask the employer to give it additional information that is necessary to assist the Commission to decide whether or not to grant a licence to operate an item of plant.

(2) On receipt of an application made under regulation 4.42, the Commission may:

(a) renew a licence granted to the licensee under subregulation (1) by giving the licensee a written notice that:

(i) states the day on which the renewal of the licence comes into force; and

(ii) states that the licence is effective for a period of 4 years from the day on which the licence is renewed; or

(b) refuse to renew a licence; or

(c) ask the employer to give it additional information that is necessary to assist the Commission to decide whether or not to renew a licence to operate an item of plant.

(3) For the purposes of subparagraph (1) (a) (vi), the amount of the licence fee is the amount that the Commission estimates to be the cost of:

(b) issuing the licence to the employer; and

(4) If the Commission asks an employer to give the Commission information, it must not grant or renew, or refuse to grant or renew, the licence until it has received the information.

(5) If the Commission refuses to grant or renew a licence, the Commission must give the applicant a written notice setting out the reasons for refusing to grant or renew the licence.

4.44 Commencement of a licence

A licence granted under paragraph 4.43 (1) (a) comes into force on the day on which it is granted.

4.45 Conditions of a licence

(1) A licence to operate plant is subject to the following conditions:

(a) the employer to whom the licence is granted must comply with the requirements set out in this Division;

(b) the employer must ensure that evidence of the licence is displayed on or near the plant to which the licence relates;

(c) if the licence is renewed, the application for renewal must be accompanied by a statement, in writing, to the effect that each item of plant referred to in the licence has been maintained in a safe condition and is safe to operate;

(d) the employer must pay the fee set out in the notice under subparagraph 4.43 (1) (a) (vi) by the time stated in the notice.

(2) An employer must not contravene a condition to which the licence is subject.

(3) If an employer contravenes a condition to which the licence is subject, the Commission may, by written notice given to the relevant employing authority:

(a) cancel the licence; or

(b) suspend the licence for a period not exceeding 12 months; or

(4) The notice must include the reasons for the Commission’s decision.

4.46 Variation of a licence

(1) If:

(a) plant that an employer is licensed to operate is altered; or

(b) in the case of plant that is normally fixed in one location — the plant is relocated; or

(d) the name of the employer is changed;

the employer must, no later than 21 days after becoming aware of the alteration, relocation or change, apply to the Commission in writing, using the form (if any) approved by the Commission, for a variation of the licence relating to that plant.

Penalty: 10 penalty units.

(2) On receipt of an application made under subregulation (1), the Commission may:

(a) vary the licence to reflect the alteration, relocation or change; or

(b) refuse to vary the licence; or

(c) ask the employer to give the Commission additional information that is necessary to assist it to decide whether or not to vary the licence.

(3) If the Commission asks the employer to give it information, the Commission must not vary, or refuse to vary, the licence until it has received the information.

(4) If the Commission refuses to vary the licence, the Commission must give the relevant employing authority a written notice setting out the reasons for refusing to vary the licence.

4.47 Maintenance of plant

(1) An employer that is licensed to operate an item of plant specified in column 2 of an item in Part 2 of Schedule 6 (other than a tower crane) must carry out a maintenance inspection on the plant once a year.

(2) An employer that is licensed to operate a tower crane must carry out a maintenance inspection on the tower crane:

(a) at least once every 3 years; and

(b) in addition to paragraph (a) — each time the tower crane is relocated.

4.48 Notification of maintenance

(1) An employer that is required to carry out a maintenance inspection on an item of plant under regulation 4.47 must give the Commission information about the maintenance of the plant as soon as practicable after the inspection is completed.

(2) The information:

(a) must be given using the form (if any) approved by the Commission; and

(b) must include:

(i) the licence number of the employer’s licence; and

(ii) a statement to the effect that each item of plant referred to in the licence has been maintained in a safe condition and is safe to operate.

4.49 Certain plant design to be registered

(1) Subject to subregulation (2), an employer must not use plant, or allow employees at work to use plant, if the plant:

(a) is specified in column 2 of an item in Part 1 of Schedule 6; and

(b) does not have a current design registration number issued by the Commission under this Division.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in paragraph (1) (a) that the plant is specified in column 2 of an item in Part 1 of Schedule 6.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) Subregulation (1) applies to an employer on and after 1 January 1997.

4.50 Notification of plant design

(1) If an employer has registered a plant design with an authority administering a law of a State or Territory that corresponds to the Act or these Regulations, the employer must notify the Commission of that registration, using the form (if any) approved by the Commission.

Penalty: 5 penalty units.

(2) An offence against subregulation (1) is an offence of strict liability.

Note For strict liability, see section 6.1 of the Criminal Code.

4.51 Application for registration

(1) An employer may apply to the Commission, in the name of the relevant employing authority, for the registration of the design of plant that is specified in column 2 of an item in Part 1 of Schedule 6.

(2) The employer is not required to apply to the Commission if the plant design has been registered by a person administering a law of a State or Territory that corresponds to the Act or these Regulations.

(3) The application must:

(a) be in writing, using the form (if any) approved by the Commission; and

(b) include a representational drawing of the plant design; and

(c) include a statement, signed by or for the manufacturer of the plant, to the effect that the design of the plant complies with the provisions of this Part, relating to the design of plant, that apply to manufacturers of plant; and

(d) include a statement, signed by a design verifier:

(i) to the effect that the design of the plant has been verified in accordance with subregulation (4); and

(ii) that sets out the name, business address and qualifications of the design verifier; and

(iii) if the design verifier is employed by a person — that sets out the name, business address and qualifications of the employer of the design verifier.

(4) An employer that wishes to apply to the Commission for registration of a plant design must ensure that:

(a) for pressure equipment — the design of the equipment has been verified in accordance with AS 3920 Part 1 (Pressure Equipment Manufacture — Assurance of Product Quality); and

(b) for other plant — the design of the plant has been verified by a design verifier as complying with each standard, specified in column 2 of an item in Schedule 5, that applies to the plant.

(5) For the purposes of this regulation, a design verifier is a competent person who:

(a) is responsible for advising a person whether the design of plant complies with the provisions of this Part; and

(b) is not a person who has had any involvement in the design of the plant; and

(c) is not employed or engaged by the employer who owns the plant, unless the employer uses a quality system, to undertake the design of items of plant, that has been certified by a body accredited or approved by the Joint Accreditation System of Australia and New Zealand (also known as JAS — ANZ).

4.52 Registration of plant design

(1) On receipt of an application for the registration of a plant design, the Commission may:

(a) register the design; or

(b) refuse to register the design; or

(i) detailed drawings of the plant design;

(ii) calculations made for the purposes of the design;

(iii) details of operating instructions;

(iv) diagrams of the control systems associated with the plant, including the sequence for operating the controls;

(v) details of maintenance requirements for the plant;

(vi) a statement of limitations of the use of the plant.

(2) If the Commission registers a plant design, it must:

(a) give the employer a written notice stating that the Commission has registered the design; and

(b) set out, in writing at the time of registration, the conditions to which the registration is subject, including any variations to an existing licence to operate certain plant; and

(i) a copy of the conditions to which the registration is subject; and

(ii) a design registration number for the design.

(3) If the Commission refuses to register a design, the Commission must give the employer a written notice setting out the reasons for the refusal.

(4) If the Commission asks an employer under paragraph (1) (c) to give it information, the Commission must not register, or refuse to register, the plant design until it has received the information.

4.53 Conditions for registration of plant design

(1) The registration of the design of plant is subject to the following conditions:

(a) the employer must comply with the requirements of this Division;

(b) the employer must ensure that evidence of the design registration is displayed on or near the plant to which the design registration relates;

(c) the employer must give the design registration number referred to in subparagraph 4.52 (2) (c) (ii) to any person who deals with the employer in relation to the plant;

(d) any other conditions determined by the Commission, and set out in the registration, for the purpose of:

(i) protecting the health and safety of relevant persons; or

(ii) assisting the administration of this Division.

(2) The employer must not contravene a condition to which the registration is subject.

(3) If the employer contravenes a condition to which the registration is subject, the Commission may, by written notice given to the relevant employing authority, vary the conditions of the design registration given to the employing authority.

(4) A notice under subregulation (3) must include the reasons for the Commission’s decision.

4.54 Alteration of plant design

(1) Subject to subregulation (2), an employer must not use plant, or allow employees to use plant, if:

(a) the Commission registers the design of the plant; and

(b) the design is subsequently altered by an employer in control of the plant; and

Penalty: 10 penalty units.

(2) An employer is not required to comply with subregulation (1) if the alteration has been registered by a person administering a law of a State or Territory that corresponds to the Act or these Regulations.

4.55 Exemption — Department of Defence and the Australian Defence Force

If the Department of Defence and the Australian Defence Force are granted a special licence under paragraph 4.58 (1) (a), regulations 4.41 to 4.54 (inclusive) do not apply to the Department or to the Australian Defence Force.

4.56 Application for a special licence

(1) If the Department of Defence and the Australian Defence Force wish to operate, jointly, plant listed in column 2 of an item in Part 2 of Schedule 6:

(a) the Department and the Australian Defence Force may each apply for a licence; and

(b) the Department and the Australian Defence Force must consult with the involved unions of their employees before applying to the Commission for a licence to operate the plant.

(2) The application must:

(a) be in writing, using the form (if any) approved by the Commission; and

(b) include:

(i) a list of each type of plant to be licensed; and

(ii) the number of each type of plant to be licensed.

4.57 Application for renewal of a special licence

(1) If the joint licensees to whom a special licence is granted under paragraph 4.58 (1) (a) wish to continue operating the plant to which the special licence relates, each of the joint licensees must apply for a renewal of the special licence, using the form (if any) approved by the Commission, before the special licence expires.

(2) If the joint licensees do not apply for a renewal of the special licence, each of the joint licensees must apply for a licence under regulation 4.41 in order to operate plant referred to in subregulation 4.40 (1).

4.58 Grant and renewal of a special licence

(1) On receipt of an application made under subregulation 4.56 (1), the Commission may:

(a) grant a licence (the special licence) to the Department of Defence and the Australian Defence Force, in the names of the Secretary of the Department of Defence and the Chief of the Defence Force (the joint licensees), that:

(i) identifies the types of plant that the joint licensees are licensed to operate; and

(ii) states that the special licence applies only to the Department and the Australian Defence Force; and

(iii) states the day on which the special licence comes into force; and

(iv) states that the special licence is effective for a period of 4 years from the day on which the licence comes into force; and

(v) sets out the conditions to which the special licence is subject under regulation 4.60; and

(vi) is accompanied by a notice stating the amount of the special licence fee to be paid and stating that:

(A) half of the amount is payable no later than 14 days after the day on which the Department and the Australian Defence Force were given the notice; and

(B) the remaining half is payable on the second anniversary of the issue of the special licence; or

(b) refuse to grant a special licence; or

(c) ask the employing authority in relation to the Department, or in relation to the Australian Defence Force, to give it additional information that is necessary to assist the Commission to decide whether or not to grant a special licence to operate plant.

(2) On receipt of an application made under subregulation 4.57 (1), the Commission may:

(a) renew a special licence granted to the joint licensees under subregulation (1) by giving the joint licensees a written notice that:

(i) states the day on which the renewal of the special licence comes into force; and

(ii) states that the special licence is effective for a period of 4 years from the day on which the licence is renewed; or

(b) refuse to renew a special licence; or

(3) For the purposes of subparagraph (1) (a) (vi), the amount of the special licence fee is the amount that the Commission estimates to be the cost of:

(a) issuing the special licence; and

(b) monitoring the performance of the Department’s, and the Australian Defence Force’s, obligations under the special licence.

(4) If the Commission asks the employing authority in relation to the Department, or in relation to the Australian Defence Force, to give it information, the Commission must not grant or renew, or refuse to grant or renew, the special licence until it has received the information.

(5) If the Commission refuses to grant or renew a special licence, the Commission must give the employing authority in relation to the Department and in relation to the Australian Defence Force a written notice setting out the reasons for refusing to grant or renew the licence.

(6) If an employing authority receives a notice from the Commission under subregulation (5), he or she may:

(a) apply again for a special licence or for renewal of a special licence; or

(b) apply for a licence under subregulation 4.41 (1).

4.59 Commencement of a special licence

A special licence granted under paragraph 4.58 (1) (a) comes into force on:

(a) the day on which it is granted; or

(b) a later date determined by the Commission and stated in the special licence.

4.60 Conditions of a special licence

(1) A special licence granted under paragraph 4.58 (1) (a) to operate plant under the control of the Department of Defence and the Australian Defence Force is subject to the following conditions:

(a) the Department and the Australian Defence Force must carry out a maintenance inspection on plant to which the special licence relates once a year;

(b) the Department and the Australian Defence Force must keep a record of maintenance inspections carried out on plant to which the special licence relates, including a statement to the effect that each item of plant has been maintained in a safe condition and is safe to operate;

(c) the Department and the Australian Defence Force must establish and maintain a system for registering plant designs that is consistent with the procedure for registration in regulations 4.49, 4.50, 4.51, 4.52, 4.53 and 4.54;

(d) the Department and the Australian Defence Force must keep a register recording how each item of plant to which the special licence relates is used;

(e) the system of registration of plant design established under paragraph (c) must be audited by the Department and the Australian Defence Force from time to time;

(f) the system of registration of plant design established under paragraph (c) may be audited by the Commission at a time agreed by Commission, the Department and the Australian Defence Force;

(g) if the special licence is renewed, the application for renewal must include the list of plant controlled by the Department and the Australian Defence Force at the time of renewal;

(h) the Department and the Australian Defence Force must pay the fee set out in the notice under subparagraph 4.58 (1) (a) (vi) by the times stated in the notice.

(2) The joint licensees must not contravene a condition to which the special licence is subject.

(3) If the Department or the Australian Defence Force contravenes a condition to which the special licence is subject, the Commission may, by written notice given to each joint licensee:

(a) cancel the special licence; or

(b) suspend the special licence for a period not exceeding 12 months; or

4.61 Cancellation or suspension of a special licence

If the Commission cancels or suspends a special licence, each of the joint licensees must apply for a licence under regulation 4.41 in order to operate plant referred to in subregulation 4.40 (1).

4.62 Variation of a special licence

(1) If:

(a) plant that the Department of Defence and the Australian Defence Force is licensed to operate is altered; or

(b) in the case of plant that is normally fixed in one position — the plant is relocated; or

(d) the name of the Department of Defence or the Australian Defence Force is changed;

each of the joint licensees must, no later than 21 days after becoming aware of the alteration, relocation or change, apply to the Commission in writing, using the form (if any) approved by the Commission, for a variation of the special licence.

(2) On receipt of an application made under subregulation (1), the Commission may:

(a) vary the special licence to reflect the alteration, relocation or change; or

(b) refuse to vary the special licence; or

(3) If the Commission asks the employing authority in relation to the Department or in relation to the Australian Defence Force to give it information, the Commission must not vary, or refuse to vary, the special licence until it has received the information.

(4) If the Commission refuses to vary the licence, the Commission must give each joint licensee a written notice setting out the reasons for refusing to vary the licence.

Division 9 Review of decisions

4.63 Review of decisions

Application under the Administrative Appeals Tribunal Act 1975 may be made to the Administrative Appeals Tribunal for review of the following decisions of the Commission:

(a) a decision under paragraph 4.40A (4) (a) not to give an exemption to an employer;

(b) a decision under subregulation 4.40B (1) to make an exemption given under paragraph 4.40A (4) (a) subject to a condition;

(c) a decision under paragraph 4.40B (3) (a) to add or vary a condition to an exemption given under paragraph 4.40A (4) (a);

(d) a decision under paragraph 4.40B (3) (b) to revoke a condition to an exemption given under paragraph 4.40A (4) (a);

(e) a decision under paragraph 4.40C (2) (a), (b), (c) or (d) to cancel an exemption;

(f) a decision under paragraph 4.43 (1) (b) to refuse to grant a licence;

(g) a decision under paragraph 4.43 (2) (b) to refuse to renew a licence;

(h) a decision under subregulation 4.45 (3) to cancel, suspend or vary a licence;

(i) a decision under paragraph 4.46 (2) (b) to refuse to vary a licence;

(j) a decision under paragraph 4.52 (1) (b) to refuse to register a plant design;

(k) a decision under subregulation 4.53 (3) to vary the conditions of a licence as a consequence of a breach of a condition of a design registration.

Division 10 Miscellaneous

4.64 Annual report of the Commission

The Commission must include in its annual report to the Minister, under section 75 of the Act, particulars of any licence granted by the Commission under Division 8 during the financial year to which the annual report relates.

4.65 Record-keeping by the Commission

In relation to the exercise of the Commission’s powers under Division 8, the Commission must keep records of:

(a) applications made for the grant of licences; and

(b) refusals of applications; and

(d) conditions to which licences are subject; and

(e) expiration of licences; and

(f) suspension of licences; and

(g) cancellation of licences.

Part 5 Manual handling

Division 1 Introduction

5.01 Object of Part 5

The object of this Part is:

(a) to prevent the occurrence of injury, and reduce the severity of injuries, resulting from manual handling tasks; and

(b) to require employers to identify, assess and control risks relating to manual handling tasks.

Note The regulations in this Part should be read with:

(a) the Approved Code of Practice for Manual Handling as in force on 30 September 1995; and

(b) the Approved Code of Practice for the Prevention of Occupational Overuse Syndrome as in force on 30 September 1995.

Division 2 Duties of an employer

5.02 Duties of an employer — general

Employees and other persons at a workplace

(1) An employer that controls a workplace must ensure that:

(a) the plant and the containers used at the workplace are designed, constructed and maintained to be without risk to health and safety when manually handled; and

(b) the work systems involving manual handling carried out at the workplace are designed to be without risk to health and safety for the purposes of manual handling; and

Penalty: 10 penalty units.

Notes

Subregulation 5.02 (1) addresses an employer’s duties in relation to employees, contractors and other persons at a workplace within the meaning of subsection 5 (1) of the Act. Subregulation 5.02 (2) addresses an employer’s duties relating to employees who are at work within the meaning of subsection 5 (3) of the Act.

Plant is defined in subsection 5 (1) of the Act to include any machinery, equipment or tool, and any component thereof.

Employees at work

(2) An employer under whose control an employee performs work must ensure that:

(a) the plant and the containers used by the employee are designed, constructed and maintained to be without risk to health and safety when manually handled; and

(b) the work systems involving manual handling carried out by the employee are designed to be without risk to health and safety for the purposes of manual handling; and

(c) the working environment of a place at which the employee performs work is designed to allow the safe performance of manual handling tasks.

Penalty: 10 penalty units.

(3) It is a defence to a prosecution for an offence against subregulation (1) or (2) if the employer complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (3) (see section 13.3 of the Criminal Code).

5.03 Duties of an employer — risk assessment

(1) An employer must ensure that:

(a) a manual handling task that is likely to be a risk to health and safety is examined; and

(b) the risk is assessed in accordance with subregulation (2).

Penalty: 10 penalty units.

(2) The employer must take into account as many of the following matters as are relevant in assessing a risk:

(a) the actions and movements involved in the task;

(b) the layout of:

(i) the workplace at which the task is carried out; or

(ii) the place, other than a workplace, at which the task is carried out;

(d) the posture and position that must be taken by each individual involved in carrying out the task;

(e) the duration of the task;

(f) the frequency with which the task is carried out;

(g) the location of each load involved in the task;

(h) the distance that a load is moved as part of the task;

(i) the weight involved in the task;

(j) the force required to carry out the task;

(k) the characteristics of each load involved in the task;

(l) the characteristics of any plant that is used in the course of carrying out the task;

(m) the organisation of work at:

(i) the workplace at which the task is carried out; or

(ii) the place, other than a workplace, at which the task is carried out;

(n) the work environment of:

(i) the workplace at which the task is carried out; or

(ii) the place, other than a workplace, at which the task is carried out;

(o) the skills and experience of each individual involved in carrying out the task;

(p) the age of each individual involved in carrying out the task;

(q) the clothing worn by each individual involved in carrying out the task;

(r) the special needs of each individual involved in carrying out the task;

(s) any other matter that is considered relevant following consultations required under the Act or these Regulations.

Penalty: 10 penalty units.

(3) Strict liability applies to the physical element in paragraph (2) (s) that the consultations are required under the Act or these Regulations.

Note For strict liability, see section 6.1 of the Criminal Code.

5.04 Duties of an employer — risk control

(1) An employer must ensure that all risks to health and safety relating to carrying out a manual handling task are controlled in accordance with this regulation.

Penalty: 10 penalty units.

(1A) It is a defence to a prosecution for an offence against subregulation (1) if the employer complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1A) (see section 13.3 of the Criminal Code).

(2) The employer must:

(a) subject to subregulation (4) — redesign the task:

(i) to eliminate or minimise the risk associated with each risk factor assessed under regulation 5.03; or

(ii) if it is not practicable to eliminate or minimise an assessed risk factor — to control the risk factor; and

(b) provide appropriate training to employees involved in carrying out the task, including training in safe manual handling techniques.

Penalty: 10 penalty units.

(3) If the redesign of a task is reasonably practicable, but cannot be implemented within a reasonable time after a risk is identified, the employer must, as soon as practicable after identifying the risk, and until the task has been redesigned:

(a) implement as many of the following measures as are appropriate to control the risk factors:

(i) the provision of mechanical aids to manual handling;

(ii) the provision of personal protective equipment; and

(iii) manual handling by team lifting; and

(b) provide appropriate training to employees to give effect to each measure implemented under paragraph (a).

Penalty: 10 penalty units.

(4) If it is not reasonably practicable for an employer to redesign a task, the employer must undertake the actions referred to in paragraphs (3) (a) and (b).

Penalty: 10 penalty units.

Division 3 Duties of an employee

5.05 Duties of an employee — use of training

(1) An employee who has been given training in safe manual handling techniques in accordance with paragraph 5.04 (2) (b) must carry out manual handling tasks in accordance with the training.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in subregulation (1) that the training in safe manual handling techniques is in accordance with paragraph 5.04 (2) (b).

Note For strict liability, see section 6.1 of the Criminal Code.

(1B) It is a defence to a prosecution for an offence against subregulation (1) if the employee complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code).

(2) An employee who has been given training to give effect to a measure implemented under subregulation 5.04 (3) or (4) must carry out manual handling tasks in accordance with the training.

Penalty: 10 penalty units.

(3) Strict liability applies to the physical element in subregulation (2) that the training is to give effect to a measure implemented under subregulation 5.04 (3) or (4).

Note For strict liability, see section 6.1 of the Criminal Code.

(4) It is a defence to a prosecution for an offence against subregulation (2) if the employer complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (4) (see section 13.3 of the Criminal Code).

Part 6 Hazardous substances

Division 1 Introduction

6.01 Objects of Part

The object of this Part is to minimise the risk to the health of persons due to exposure to hazardous substances:

(a) by ensuring that hazardous substances used at work are supplied to a person with:

(i) labels; and

(ii) Material Safety Data Sheets; and

(b) by providing for:

(i) the assessment of the risk of exposure to hazardous substances; and

(ii) the control of exposure to hazardous substances; and

(iii) the training of employees who could be exposed to hazardous substances at work on the nature of the hazard and the level of risk posed by the hazardous substance, and the means of assessing and controlling exposure to the substance; and

(ba) by limiting the circumstances under which the use of chrysotile may be exempted; and

(bc) by encouraging research into, and development of, alternatives to the use of chrysotile; and

(c) by ensuring that emergency services and Comcare have access to relevant information about hazardous substances used at work; and

(d) by ensuring that relevant information included in NICNAS summary reports is given to employers.

Notes

Hazardous substance is defined in regulation 6.03.

The Approved Code of Practice for the Control of Workplace Hazardous Substances incorporates the following national codes that are relevant to the subject-matter of this Part:

(a) The National Code of Practice for the Control of Workplace Hazardous Substances [NOHSC:2007 (1994)];

(b) the National Code of Practice for the Preparation of Material Safety Data Sheets [NOHSC:2011 (1994)];

The following codes of practice are relevant to the provisions in this Part for scheduled carcinogenic substances and inorganic lead:

(a) the Approved Code of Practice on the Control and Safe Use of Inorganic Lead in Commonwealth Employment, approved by the Minister on 3 March 1999;

(b) the Approved Code of Practice on the Control of Scheduled Carcinogenic Substances in Commonwealth Employment, approved by the Minister on 3 March 1999.

The following additional guidance material is published by NOHSC on the subject:

(a) the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)];

(b) the List of Designated Hazardous Substances [NOHSC:10005 (1999)];

(c) the Guidance Note for the Assessment of Health Risks Arising From the Use of Hazardous Substances in the Workplace [NOHSC:3017 (1994)];

(d) the Guidance Note For the Control of Workplace Hazardous Substances in the Retail Sector [NOHSC:3018 (1994)];

(e) the Exposure Standards for Atmospheric Contaminants in the Occupational Environment [NOHSC:1003 (1995)];

(d) the Guidelines for Health Surveillance [NOHSC:7039 (1995)].

6.02 Application of Part

(1) Subject to subregulations (2), (3) and (4), this Part applies:

(a) to all hazardous substances; and

(b) to all workplaces at which hazardous substances are used; and

(2) This Part does not apply to the following substances:

(a) a prescribed substance within the meaning of the Environment Protection (Nuclear Codes) Act 1978;

(b) an infectious substance.

(3) This Part does not apply to the following substances if the substances are used in circumstances that are not related to carrying out a work process:

(a) cosmetics;

(b) food within the meaning of the Food Standards Australia New Zealand Act 1991;

(d) tobacco and substances made from tobacco;

(e) toilet products;

(f) toiletries.

(4) This Part does not apply to a substance that is being transported in accordance with the requirements set out in any of the following documents:

(a) the ADG Code; or

(b) the International Maritime Dangerous Goods Code, published by the International Maritime Organization;

(c) the Technical Instructions for the Safe Transport of Dangerous Goods, published by the International Civil Aviation Authority;

(d) the Dangerous Goods Regulations, published by the International Air Transport Association.

6.03 Definitions for Part

In this Part, unless the contrary intention appears:

ADG Code means Australian Code for the Transport of Dangerous Goods by Road and Rail, 6th edition, published by the Federal Office of Road Safety in 1998.

article means a solid object:

(a) that is produced with a specific shape, design or surface; and

(b) that is used for a purpose that depends, wholly or partly, on that shape, design or surface; and

(i) do not change when the object is used for that purpose; or

(ii) change only when the object is used for that purpose.

asbestos means any of the following fibrous forms of mineral silicates belonging to the serpentine and amphibole groups of rock-forming minerals:

(a) actinolite asbestos;

(b) amosite (brown asbestos);

(d) chrysotile (white asbestos);

(e) crocidolite (blue asbestos);

(f) tremolite asbestos.

biological monitoring means the measurement and evaluation of a hazardous substance, or its metabolites, in the body tissue, fluids or exhaled air of an employee.

blood-lead level means the concentration of lead in whole blood expressed in micromoles per litre (µmol / L) or micrograms per decilitre (µg / dL).

bona fide research:

(a) means a systematic, investigative or experimental activity conducted for the purpose of:

(i) acquiring new knowledge; or

(ii) creating new or improved materials, products, devices, processes or services; or

(iii) analysis to identify the kind or quantities of ingredients in a substance; and

(b) in relation to asbestos — includes an activity conducted for the purpose of preparing an item containing asbestos for display in a museum or other historical displays.

chemical name, in relation to a substance, means the recognised chemical name of the substance that is used generally in scientific and technical texts.

consumer package means a package that is intended for retail display and sale, and includes a package that:

(a) is intended for retail sale and display; and

(b) is transported and distributed in a group of identical packages that form a larger package.

container:

(a) means an object in, or by which, a substance is, or has been, wholly or partly contained or packed, whether or not the object is empty, partly filled or completely filled; and

(b) does not include a tank or a bulk storage container within the meaning of the ADG Code.

generic name, in relation to a substance, means a name that describes the category or group of chemicals that includes the substance.

hazardous substance means a substance:

(a) that is described in the List of Designated Hazardous Substances [NOHSC:10005 (1999)]; or

(b) that has been determined to be a hazardous substance by its manufacturer, in writing and in accordance with the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)]; or

health surveillance means the monitoring of an employee, including the use of biological monitoring, to identify changes (if any) in the employee’s health due to exposure to a hazardous substance, but does not include the monitoring of atmospheric contaminants.

ingredient means a component of a substance that is a mixture or a combination, and includes an impurity in the substance.

inorganic lead substance means:

(a) lead metal; or

(b) an inorganic lead compound; or

in situ, in relation to a product that contains asbestos, means that, at the time the use of the form of asbestos in the product is prohibited under regulation 6.16, the product is fixed or installed:

(a) in:

(i) a building or any other structure that forms a workplace; or

(ii) a plant, a vehicle or any other thing that is for use at a workplace; and

(b) in a way that does not constitute a risk to users until the asbestos contained in the product is disturbed.

lead-risk job means a work activity or sequence of work activities in which the blood-lead level of an employee might reasonably be expected to rise, or does rise, above the lower of the following blood lead levels:

(a) 1.45 µmol / L (30 µg / dL);

(b) the removal level prescribed in relation to the employee.

MSDS means a Material Safety Data Sheet.

NICNAS summary report means a summary report within the meaning of the Industrial Chemicals (Notification and Assessment) Act 1989.

product name, in relation to a hazardous substance, means the brand name, trade name, code name or code number given to the substance by the supplier of the substance.

removal level has the same meaning as in the Approved Code of Practice on the Control and Safe Use of Inorganic Lead in Commonwealth Employment, as approved by the Minister on 3 March 1999 and as in force on 7 May 1999.

retailer means a person who sells goods to persons who are not engaged in the resale of the goods.

retail warehouse operator means a person who operates a warehouse in which unopened packaged goods that are intended for retail sale are held.

risk phrase means a word, or series of words:

(a) that describes the hazards of a substance; and

(b) that is set out in the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)].

risk to health means the likelihood that a substance will cause harm to health in the circumstances of its use.

safety phrase means a word, or series of words:

(a) that describes the procedures for the safe handling, storage or use of personal protective equipment in connection with a substance; and

(b) that is set out in the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)].

scheduled carcinogenic substance means a substance mentioned in column 2 of Schedule 1A.

substance:

(a) includes a chemical entity, composite material, mixture or formulation; and

(b) other than in relation to an article that contains asbestos — does not include an article.

substance name means:

(a) for a substance that is referred to in the ADG Code, the shipping name, assigned to the substance in the ADG Code, that meets the classification criteria described in the ADG Code; and

(b) for a substance referred to in the Standard for the Uniform Scheduling of Drugs and Poisons (also known as SUSDP), published by the National Health and Medical Research Council — the name given to the substance in that document; and

type I ingredient, in relation to a hazardous substance, means an ingredient:

(a) that:

(i) is referred to, in the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)], as:

(A) carcinogenic; or

(B) mutagenic; or

(D) a skin or respiratory sensitiser; or

(E) corrosive; or

(F) toxic; or

(G) very toxic; or

(H) a harmful substance that can cause irreversible effects after acute exposure; or

(I) a harmful substance that can cause serious damage to health after repeated or prolonged exposure; or

(ii) is referred to in the Exposure Standards for Atmospheric Contaminants in the Occupational Environment [NOHSC:1003 (1995)]; and

(b) that is present in the hazardous substance in a quantity that exceeds the lowest relevant concentration cut-off level set out in the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)].

type II ingredient, in relation to a hazardous substance, means an ingredient:

(a) that is referred to, in the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)], as a harmful substance without any of the additional descriptions referred to in subparagraph (a) (i) of the definition of type I ingredient; and

(b) that is present in the hazardous substance in a quantity that exceeds the lowest relevant concentration cut-off level set out in that document.

type III ingredient, in relation to a hazardous substance, means an ingredient other than a type I ingredient or a type II ingredient.

use, in relation to a substance at a workplace, means to produce, handle, store, transport or dispose of the substance at the workplace.

Division 2 Duties of a manufacturer, and a supplier, of a hazardous substance for the Commonwealth

Note The effect of subsection 18 (3) of the Act is that a person who imports a substance that the person has not manufactured must, if the manufacturer does not have a place of business in Australia at the time of the importation, be taken to be the manufacturer of the substance.

6.04 Determination that a substance is a hazardous substance

(1) If a manufacturer of a substance knows, or ought reasonably to expect, that the substance will be used by employees at work, the manufacturer must determine, in writing and as soon as practicable after commencing to manufacture the substance:

(a) whether the substance is included in the List of Designated Hazardous Substances [NOHSC:10005 (1999)]; and

(b) if the substance is not included in that List — whether the substance is a hazardous substance in accordance with the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)].

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in paragraph (1) (a) that the substance is included in the List of Designated Hazardous Substances [NOHSC:10005 (1999)].

(1B) Strict liability applies to the physical element in paragraph (1) (b) that the substance is a hazardous substance in accordance with the Approved Criteria for Classifying Hazardous Substances [NOHSC:1008 (1999)].

Note For strict liability, see section 6.1 of the Criminal Code.

(2) The manufacturer must keep a determination for the period during which the manufacturer manufactures the relevant substance.

Penalty: 5 penalty units.

(3) An offence under subregulation (2) is an offence of strict liability.

Note For strict liability, see section 6.1 of the Criminal Code.

6.05 Material Safety Data Sheets: Manufacturer’s duties

(1) A manufacturer of a hazardous substance that the manufacturer knows, or ought reasonably to expect, will be used by employees at work must prepare an MSDS for the substance before the substance is supplied to the employer of the employees.

Penalty: 10 penalty units.

Note The purpose of an MSDS is to provide the information needed to allow the safe handling of hazardous substances used at work. The MSDS for a substance describes its identity, relevant health hazard information, precautions for use and safe handling information. Guidance on the preparation and use of a MSDS can be obtained from the National Code of Practice for the Control of Workplace Hazardous Substances [NOHSC:2007 (1994)] and the National Code of Practice for the Preparation of Material Safety Data Sheets [NOHSC:2011 (1994)].

(2) An MSDS must:

(a) set out the name, and Australian address and telephone numbers (including an emergency number), of the manufacturer or importer; and

(b) for the hazardous substance to which it relates:

(i) clearly identify the substance in accordance with the National Code of Practice for the Preparation of Material Safety Data Sheets [NOHSC:2011 (1994)]; and

(ii) set out its recommended uses; and

(iii) describe its chemical and physical properties; and

(iv) disclose information relating to each ingredient to the extent prescribed by regulation 6.08; and

(v) set out the substance’s risk and safety phrases and any relevant health hazard information about the substance that is reasonably practicable for the manufacturer to provide; and

(vi) set out information concerning the precautions to be followed in relation to its safe use and handling.

(3) The manufacturer must:

(a) review an MSDS as often as is necessary to ensure that the Sheet contains current information and is accurate in all material respects; and

(b) revise the MSDS if necessary.

Penalty: 10 penalty units.

(4) In spite of subregulation (3), the manufacturer must review an MSDS:

(a) at least once in the period of 5 years commencing on the day on which the substance is supplied to the employer; and

(b) at least once in each subsequent period of 5 years;

to ensure that the MSDS contains current information and is accurate in all material respects.

Penalty: 10 penalty units.

6.06 Material Safety Data Sheets: Supplier’s duties

(1) Subject to subregulation (2), a supplier of a hazardous substance that the supplier knows, or ought reasonably to expect, will be used by employees at work must give a copy of the current MSDS for the substance to the employer of the employees on the first occasion that the substance is supplied, and at any later time on request.

Penalty: 10 penalty units.

(2) Subregulation (1) does not apply if:

(a) the supplier supplies the hazardous substance to an employer that is a retailer, or a retail warehouse operator, in a consumer package that holds:

(i) less than 30 kilograms of the substance; or

(ii) less than 30 litres of the substance; and

(b) the supplier knows, or ought reasonably to expect, that the consumer package is intended by the employer to be for retail sale; and

(c) the supplier knows, or ought reasonably to expect, that the employer does not intend to open the consumer package on the employer’s premises.

6.07 Labelling of hazardous substances

(1) A supplier of a hazardous substance that the supplier knows, or ought reasonably to expect, will be used by employees at work must ensure that, at the time of supply:

(a) each container in which the hazardous substance is supplied is appropriately labelled in accordance with the National Code of Practice for the Labelling of Workplace Hazardous Substances [NOHSC:2012 (1994)]; and

(b) the label:

(i) clearly identifies the hazardous substance; and

(ii) provides details of the Australian supplier; and

(iii) discloses information relating to each ingredient to the extent prescribed by regulation 6.08; and

(iv) provides the substance’s risk and safety phrases and any relevant health and safety information about the substance that is reasonably practicable for the supplier to provide.

Penalty: 10 penalty units.

Note The manner in which a container is to be labelled is set out in the National Code of Practice for the Labelling of Workplace Hazardous Substances [NOHSC:2012 (1994)].

(2) Strict liability applies to the physical element in paragraph (1) (a) that the container is labelled in accordance with the National Code of Practice for the Labelling of Workplace Hazardous Substances [NOHSC:2012 (1994)].

(3) Strict liability applies to the physical element in subparagraph (1) (b) (iii) that the information on the label is disclosed to the extent prescribed by regulation 6.08.

Note For strict liability, see section 6.1 of the Criminal Code.

6.08 Ingredient disclosure: MSDS and labels

(1) An MSDS must set out:

(a) for each type I ingredient included in the substance — its chemical name; and

(b) for each type II and type III ingredient:

(i) its chemical name; or

(ii) if the identity of the ingredient is commercially confidential — its generic name.

(2) If a manufacturer considers that compliance with subparagraph (1) (b) (ii) would not provide sufficient commercial protection for a type III ingredient, other than an ingredient which has a known synergistic effect or which is a hazardous substance, the MSDS may indicate this by the use of the phrase “Other ingredients determined not to be hazardous” in place of the chemical or generic name of the ingredient.

(3) A label that relates to a hazardous substance must set out:

(a) for each type I ingredient included in the substance — its chemical name; and

(b) for each type II ingredient:

(i) its chemical name; or

(ii) if the identity of the ingredient is commercially confidential — its generic name.

6.09 Disclosure by manufacturer of chemical identity of an ingredient — general

(1) Subject to subregulation (4), if:

(a) an MSDS, or a label, relating to a hazardous substance used at work does not disclose the name of a particular ingredient of the substance in accordance with regulation 6.08; and

(b) an employer, or a person authorised by the employer, asks the manufacturer to tell the employer the name of the ingredient because the information is necessary to provide for, or to protect, the health of a person who could be exposed to the hazardous substance; and

the manufacturer of the substance must tell the employer the chemical name of the ingredient, in accordance with this regulation, no later than 30 days after the day on which the employer made the request.

Penalty: 10 penalty units.

(2) Before the manufacturer tells the employer the chemical name of the ingredient, the manufacturer may ask the employer:

(a) to make the request in writing; and

(b) to set out, in writing, the reason for making the request.

(3) Before the manufacturer tells the employer the chemical name of the ingredient, the manufacturer may tell the employer that it is a condition of telling the employer the name of the ingredient that the employer gives the manufacturer an undertaking, in writing, that the employer will use the information only for the purpose for which it was provided.

(4) The manufacturer is not required to tell the employer the chemical name of the ingredient if:

(a) the manufacturer is not satisfied that the employer needs the chemical name of the ingredient to give an employee adequate protection against exposure to the relevant substance; and

(b) the disclosure of the chemical name of the ingredient would result in significant commercial harm to the manufacturer; and

(c) if the manufacturer asks the employer to comply with subregulation (2) or (3) — the employer does not comply with the request.

(5) If the employer gives the manufacturer an undertaking that the employer will use the information only for the purpose for which it was provided, the employer must not use the information for any other purpose.

Penalty: 10 penalty units.

(6) If the manufacturer refuses the employer’s request, the manufacturer must, no later than 30 days after the employer made the request:

(a) give the employer, in writing, the reasons for the refusal; and

(b) give the employer as much information as is necessary to provide for, or to protect, the health of an employee, or a person at or near a workplace, who could be exposed to the hazardous substance without disclosing the chemical identity of the substance.

Penalty: 10 penalty units.

6.10 Disclosure by manufacturer of chemical identity of an ingredient — emergency

If:

(a) a medical emergency exists involving the use of a hazardous substance at work; and

(b) an employer asks the manufacturer of the ingredient for the chemical name of an ingredient of the substance for the purpose of providing proper emergency or first aid treatment;

the manufacturer must tell the employer, or a person authorised by the employer, the chemical name of the ingredient.

Penalty: 10 penalty units.

6.11 Provision of information by a supplier

A supplier of a hazardous substance that the supplier knows, or ought reasonably to expect, will be used by employees at work must provide to an employer, on request:

(a) a NICNAS summary report that relates to the condition of the relevant hazardous substance at the time of supply; and

(b) information concerning the condition of the substance at the time of supply that will assist in the safe use of the relevant hazardous substance, being information additional to the information contained in an MSDS relating to the substance.

Penalty: 10 penalty units.

Division 3 Duties of an employer in relation to the use of hazardous substances

Notes

An employer’s duty may arise because the employer is a manufacturer or supplier of hazardous substances or acts in another capacity referred to in this Part.

Hazardous substances produced by employers, such as by-products, wastes, emissions and manufactured substances, are covered by the requirements of this Division. They must be recorded in the register and as part of risk assessments, training, risk control, atmospheric monitoring and health surveillance carried out under the Division. It is not mandatory for an employer to produce an MSDS for these substances unless it is intended that they are to be supplied outside the employer’s workplace. Employers should make other relevant information available to employees for these substances.

6.12 Use of Material Safety Data Sheets

Note The use of MSDS will allow assessment of the risks of hazardous substances and enable any necessary controls to be established. Further guidance on the use of MSDS can be found in the National Code of Practice for the Control of Workplace Hazardous Substances [NOHSC:2007 (1994)].

(1) Subject to subregulation (3), if a hazardous substance is to be supplied to an employer, the employer must obtain an MSDS for the substance from the supplier no later than the time at which the substance is first supplied to the employer.

Penalty: 10 penalty units.

(2) Subject to subregulation (3), if an MSDS for a hazardous substance is given to an employer by a supplier, the employer must ensure that the MSDS is readily accessible to each employee who could be exposed to the hazardous substance.

Penalty: 10 penalty units.

(3) The employer is not required to comply with subregulations (1) and (2) if:

(a) the hazardous substance is supplied to an employer that is a retailer, or a retail warehouse operator, in a consumer package that holds:

(i) less than 30 kilograms of the substance; or

(ii) less than 30 litres of the substance; and

(b) the employer intends the consumer package to be for retail sale; and

(4) Subject to subregulation (5), if an MSDS for a hazardous substance is given to an employer by a supplier, the employer must ensure that the information in each copy of the MSDS under the employer’s control is not altered.

Penalty: 10 penalty units.

(4A) It is a defence to a prosecution for an offence against subregulation (4) if the employer complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (4A) (see section 13.3 of the Criminal Code).

(5) The employer may change the appearance of an MSDS for the following purposes only:

(a) to make the format of the MSDS consistent with the format described in the National Code of Practice for the Preparation of Material Safety Data Sheets [NOHSC:2011 (1994)];

(b) to allow the MSDS to be prepared for dissemination by electronic means;

(c) to allow the employer to attach to the MSDS additional information that is marked clearly as not forming part of the information given by the supplier;

(d) to translate the MSDS into a language other than the language in which the MSDS was given to the employer.

6.13 Use of labels

Note The purpose of labels is to ensure that the contents of a container used for hazardous substances can be readily identified by product name and to draw the attention of a person who is handling the substance to any significant hazards involved.

(1) An employer must:

(a) ensure that each container which holds a hazardous substance used at work, including a container supplied to or produced at a workplace, is appropriately labelled in accordance with regulation 6.07; and

(b) ensure that a person does not remove, deface, modify or alter the label.

Penalty: 10 penalty units

(1A) Strict liability applies to the physical element in paragraph (1) (a) that the container is labelled in accordance with regulation 6.07.

Note For strict liability, see section 6.1 of the Criminal Code.

(1B) It is a defence to a prosecution for an offence against subregulation (1) if the employer complied with the subregulation as far as reasonably practicable.

Note A defendant bears an evidential burden in relation to the matter mentioned in subregulation (1B) (see section 13.3 of the Criminal Code).

(2) If a hazardous substance is decanted, and is not used immediately, the employer must ensure that the container into which the substance is decanted is labelled with the substance’s product name and the appropriate risk and safety phrases.

Penalty: 10 penalty units.

(3) Subject to subregulation (4), an employer must ensure that a container that contains a hazardous substance is labelled correctly for the purposes of these Regulations until:

(a) the substance is removed from the container; and

(b) the container is cleaned to the extent that it no longer contains the hazardous substance.

Penalty: 10 penalty units.

(3A) Strict liability applies to the physical element in subregulation (3) that the container is labelled correctly for the purposes of these Regulations.

Note For strict liability, see section 6.1 of the Criminal Code.

(4) If:

(a) a hazardous substance is decanted into a container; and

(b) the hazardous substance is used immediately after being decanted; and

the employer is not required to comply with subregulation (3).

6.14 Register of hazardous substances

Note A register provides, at a minimum, a listing of all hazardous substances used at work together with their MSDS. It may also include notations on the completion of assessments, assessment reports, monitoring results and details of instruction and training.

A register is a source of information and a tool to manage substances at work.

(1) An employer must ensure that a register is kept and maintained, at each workplace, for hazardous substances that are used at work.

Penalty: 10 penalty units.

(2) Subject to subregulation (3), the employer must ensure that the register includes at least the following information:

(a) a list of all hazardous substances used at the workplace;

(b) a copy of the MSDS required, under these Regulations, for each hazardous substance.

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical element in paragraph (2) (b) that the copy of the MSDS is required under these Regulations.

Note For strict liability, see section 6.1 of the Criminal Code.

(3) The employer is not required to comply with subregulation (2) in relation to a hazardous substance if:

(a) the hazardous substance is supplied to an employer that is a retailer, or a retail warehouse operator, in a consumer package that holds:

(i) less than 30 kilograms of the substance; or

(ii) less than 30 litres of the substance; and

(b) the employer intends the consumer package to be for retail sale; and

(4) The employer must ensure that the register is readily accessible by all persons who could be exposed to a hazardous substance.

Penalty: 10 penalty units.

6.15 Provision of information about enclosed hazardous substances

If a hazardous substance is contained in an enclosed system (including, for example, a pipe, a piping system, a process vessel or a reactor vessel), the employer that controls the enclosed system must ensure that:

(a) the existence of the hazardous substance is disclosed to all persons who could be exposed to the hazardous substance; and

(b) the hazardous substance is identified clearly to those persons.

Penalty: 10 penalty units.

6.16 Prohibition on uses of certain hazardous substances

An employer must ensure that a hazardous substance referred to in column 2 of an item in Schedule 1 is not used at work in any circumstance other than a circumstance specified in column 3 of the item.

Penalty: 10 penalty units.

6.16A Exemption from regulation 6.16

(1) Regulation 6.16 does not apply to an employer in relation to a hazardous substance mentioned in Part 2 of Schedule 1 (other than chrysotile) if the Commission exempts the employer from the application of the regulation in relation to the substance.

(2) Regulation 6.16 does not apply to an employer in relation to a use of chrysotile if the Commission exempts the employer from the application of the regulation in relation to that use.

(3) An employer seeking an exemption must apply for the exemption in accordance with Schedule 1B.

(4) The Commission may exempt an employer only in accordance with Schedule 1B.

Note For further information about the exemption process, see Guidance on the application, assessment and approval process for exemptions from prohibitions on hazardous substances with carcinogenic properties, published by the Commission.

6.16D Review of decisions

Application under the Administrative Appeals Tribunal Act 1975 may be made to the Administrative Appeals Tribunal for review of the following decisions of the Commission:

(a) a decision, under any of the following provisions of Schedule 1B, to refuse to grant an exemption:

(i) paragraph 2.02 (1) (b);

(ii) paragraph 3.04 (1) (b);

(iii) paragraph 3.08 (1) (b);

(b) a decision, under subparagraph 3.08 (1) (a) (ii) of Schedule 1B, to grant a partial exemption;

(i) subclause 2.03 (1);

(ii) subclause 3.05 (2);

(iii) subclause 3.09 (2);

(d) a decision, under any of the following provisions of Schedule 1B, to add a condition to, or vary or revoke a condition of, an exemption:

(i) subclause 2.03 (2);

(ii) subclause 3.05 (3);

(iii) subclause 3.09 (3);

(e) a decision, under any of the following provisions of Schedule 1B, to cancel an exemption:

(i) paragraph 2.04 (2) (a);

(ii) paragraph 3.06 (2) (a);

(iii) paragraph 3.10 (2) (a).

6.17 Risk assessment for hazardous substances

Note The purpose of an assessment is to enable decisions to be made about appropriate control measures, induction and training, monitoring and health surveillance commensurate with the level of risk that arises from use of a hazardous substance at work. Guidance on assessments can be found in the National Code of Practice for the Control of Workplace Hazardous Substances [NOHSC:2007(1994)] and the Guidance Note for the Assessment of Health Risks Arising From the Use of Hazardous Substances in the Workplace [NOHSC:3017 (1994)].

(1) An employer must ensure that an assessment is made, in accordance with this regulation, of the risks to health caused by work that involves potential exposure to a hazardous substance.

Penalty: 10 penalty units.

(2) An assessment must include:

(a) the identification of each hazardous substance that is used in the course of work; and

(aa) if a job involves the use of an inorganic lead substance — a determination of whether the job is a lead-risk job; and

(b) an examination of the MSDS required, under these Regulations, for each hazardous substance; and

(c) if an MSDS cannot reasonably be obtained for examination — an examination of information, equivalent to the information that is required to be included in an MSDS, relating to:

(i) any hazard to health relating to the hazardous substance; and

(ii) the precautions to be followed in relation to the safe use and handling of the hazardous substance; and

(d) if the hazardous substance is kept in an unopened consumer package — an examination of each label that appears on the package; and

(e) the identification of any risk to health, arising from exposure to each hazardous substance that is identified, of which the employer knows, or that the employer ought reasonably to expect.

(3) The employer may undertake a generic risk assessment of risks to health if:

(a) the risk assessment is carried out only in relation to work:

(i) that is performed using the hazardous substance; and

(ii) for which the risk factors are identical in all cases; and

(b) the risk assessment is designed to identify any differences in the nature of work performed using the hazardous substance that could result in a change to the risk factors associated with the performance of the work; and

(c) it is not practicable for the employer to undertake a separate risk assessment for each workplace at which the hazardous substance is used.

(4) If the employer decides there is not a significant risk to health from the use of a hazardous substance at work, the employer must ensure that:

(a) the hazardous substance is included in the register referred to in subregulation 6.14 (1); and

(b) the register is noted to indicate compliance with the requirements referred to in subregulation (2).

Penalty: 10 penalty units.

(5) If an employer decides that there is a significant risk to health from the use of a particular hazardous substance at work, the employer must ensure that:

(a) regulations 6.19, 6.20 and 6.21 are complied with; and

(b) a report on the assessment is prepared; and

Penalty: 10 penalty units.

Note Assessment reports should reflect the detail of the assessment including sufficient information to show why decisions about risks and precautions were made. Further guidance on deciding if the risk is significant can be found in the National Code of Practice for the Control of Workplace Hazardous Substances [NOHSC:2007 (1994)] and the Guidance Note for the Assessment of Health Risks Arising from the Use of Hazardous Substances in the Workplace [NOHSC:3017 (1994)].

(6) An employer must revise a risk assessment if:

(a) the employer knows, or ought reasonably to be expected to know, of evidence that the assessment is no longer valid; or

(b) there has been a significant change in the work to which the assessment relates.

Penalty: 10 penalty units.

(7) In addition to subregulation (6), an employer must review a risk assessment:

(a) at least once in the period of 5 years commencing on the day on which the assessment is completed; and

(b) at least once in each subsequent period of 5 years.

Penalty: 10 penalty units.

(8) An employer must ensure that a report prepared under this Regulation is readily accessible to an employee who could be exposed to a hazardous substance to which the report relates.

Penalty: 10 penalty units.

6.17A Exposure to scheduled carcinogenic substances

(1) Subregulation (2) applies to an employee if, in the course of the employee’s employment, the employee has been, or the employer reasonably suspects that the employee has been, exposed to a scheduled carcinogenic substance in, or in connection with, a circumstance mentioned in column 3 of Schedule 1A in relation to that substance.

(1A) Strict liability applies to the following physical elements in subregulation (1):

(a) that the carcinogenic substance is a scheduled carcinogenic substance;

(b) that the circumstance in relation to that substance is the circumstance mentioned in the relevant item in column 3 of Schedule 1A.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) On the termination of the employee’s employment, the employer must provide the employee with a written statement that includes the following information:

(a) the name of each scheduled carcinogenic substance to which the employee was, or was likely to have been, exposed;

(b) the period of known exposure to the substance;

(d) a copy of any relevant assessment report;

(e) details of how and where the employee can obtain any relevant additional records;

(f) the advisability of having periodic health assessments and the types of tests that are relevant.

Penalty: 10 penalty units.

(3) If an employer reasonably suspects that an employee has been accidentally exposed to a scheduled carcinogenic substance, the employer must, as soon as practicable, notify the employee of that exposure.

Penalty: 10 penalty units.

(4) Strict liability applies to the physical element in subregulation (3) that the carcinogenic substance is a scheduled carcinogenic substance.

Note For strict liability, see section 6.1 of the Criminal Code.

6.18 Instruction and training

An employer must ensure that:

(a) employees who are likely to be exposed to a hazardous substance, and anyone supervising the employees, are trained and provided with information and instruction in:

(i) the nature of the hazard associated with the substance, the process of risk assessment and the level of risk; and

(ii) the control procedures associated with the use of the hazardous substance; and

(iii) the need for, and proper use and maintenance of, measures to control risk; and

(iv) the use, fit, testing and storage of personal protective equipment, if personal protective equipment forms a part of the measures to control risk; and

(b) the instruction and training are commensurate with the level of risk to health, caused by the hazardous substance, that is assessed.

Penalty: 10 penalty units.

Note Guidance on the key elements of an induction and training program can be found in the National Code of Practice for the Control of Workplace Hazardous Substances [NOHSC:2007 (1994)].

6.19 Risk control

Note Risk control should be carried out using the hierarchy of control measures listed in priority order in the National Code of Practice for Control of Workplace Hazardous Substances [NOHSC:2007 (1994)].

(1) An employer must ensure that no employee at work is exposed to an airborne concentration of a hazardous substance, in the breathing zone of the employee, at a level that exceeds the appropriate exposure standard for the relevant period of time.

Penalty: 10 penalty units.

(2) An employer must ensure, on the basis of a risk assessment carried out under regulation 6.17, that exposure to a hazardous substance is:

(a) prevented; or

(b) if it is not reasonably practicable to prevent the exposure — adequately controlled in order to minimise the risks to health caused by the substance

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical element in subregulation (2) that the risk assessment is carried out under regulation 6.17.

Note For strict liability, see section 6.1 of the Criminal Code.

(3) An employer must take all reasonably practicable steps to prevent or control exposure to a hazardous substance by measures other than the provision of personal protective equipment.

Penalty: 10 penalty units.

(4) If measures undertaken in accordance with subregulation (3) do not prevent, or provide adequate control of, exposure of an employee to a hazardous substance, the employer must, in addition to taking the measures, make available to the employee suitable personal protective equipment that will adequately control the employee’s exposure to the hazardous substance.

Penalty: 10 penalty units.

(5) An employer must ensure that engineering controls, safe work practices and personal protective equipment that are used to prevent or control exposure to a hazardous substance are properly maintained and used.

Penalty: 10 penalty units.

6.20 Atmospheric monitoring

Note Monitoring involves the use of valid and suitable techniques to derive a quantitative estimate of the exposure of employees to hazardous substances. It may also be used to determine the effectiveness of control measures. Further guidance on monitoring can be found in the National Code of Practice for Control of Workplace Hazardous Substances [NOHSC:2007 (1994)].

(1) If a risk assessment carried out under regulation 6.17 indicates that atmospheric monitoring should be undertaken, the employer to whom the assessment relates must undertake appropriate monitoring in accordance with a suitable procedure.

Penalty: 10 penalty units.

(1A) Strict liability applies to the physical element in subregulation (1) that the risk assessment is carried out under regulation 6.17.

Note For strict liability, see section 6.1 of the Criminal Code.

(2) The employer must ensure that the results of the atmospheric monitoring are recorded in the register referred to in subregulation 6.14 (1).

Penalty: 10 penalty units.

(2A) Strict liability applies to the physical element in subregulation (2) that the register is referred to in subregulation 6.14 (1).

Note For strict liability, see section 6.1 of the Criminal Code.

(3) The employer must ensure that:

(a) an employee who has been, or could be, exposed to a hazardous substance that is subject to atmospheric monitoring is given the results of the monitoring; and

(b) the records of atmospheric monitoring are readily accessible to that employee at all reasonable times.

Penalty: 10 penalty units.

6.21 Health surveillance

Note Health surveillance can assist in minimising the risk to health from hazardous substances by confirming that the absorbed dose is below the acceptable level, by indicating biological effects requiring reduction of exposure and by collecting data to evaluate the effects of exposure. Further guidance on health surveillance can be found in the National Code of Practice for Control of Workplace Hazardous Substances [NOHSC:2007 (1994)] and in the Guidelines for Health Surveillance [NOHSC:7039 (1995)].

(1) An employer must provide health surveillance of an employee who has been identified, during a risk assessment, as being exposed to a hazardous substance if:

(a) there is a significant risk to the health of the employee from a hazardous substance listed in Schedule 2; or

(b) the employer believes, or ought reasonably to believe, that:

(i) the exposure of the employee to the substance has the effect that an identifiable disease or other effect on health may be related to the exposure; and

(ii) there is a reasonable likelihood that the disease or other effect on health may occur under the particular conditions of work; and

(iii) there are valid techniques for detecting an indication of the disease or other effect on health; or

(c) there is a valid biological monitoring procedure available and a reasonable likelihood that accepted values might be exceeded.

Penalty: