Regulatory guide - Engineered stone prohibition exemption

Scope

Under the Work Health and Safety Regulations 2011 (WHS Regulations), the work health and safety regulator, Comcare, has a general power to grant an exemption from compliance with any regulation of the WHS Regulations.

Division 3A of Part 11.2 of the WHS Regulations, allows Comcare to exempt a type of engineered stone from regulation 529D (Work involving engineered stone benchtops, panels or slabs – prohibition).

A person conducting a business or undertaking will be exempt from compliance with regulation 529D if the work involves a type of engineered stone that is the subject of an exemption under subregulation 689A(1) or a corresponding WHS law that is equivalent to subregulation 689A(1).

An exemption from regulation 529D granted in one jurisdiction will also apply in all other corresponding jurisdictions, except Victoria – in effect, there will be mutual recognition of exemption decisions.

An exemption granted under Part 11.2 of the WHS Regulations does not exempt the person or class of persons from having to comply with any other provisions of the WHS Regulations or Work Health and Safety Act 2011 (WHS Act) that are not specified as exemptions in the exemption instrument.

Note: The exemption applies to a type of engineered stone. Once a type of engineered stone is exempted, any PCBU will be able to work with that type of engineered stone so long as they can satisfy any conditions imposed on the exemption.

Application for exemption

A person with an interest in having an exemption granted may apply to Comcare for an exemption.¹

In the Commonwealth, only a PCBU subject to the WHS Act (for example, the Commonwealth, a Commonwealth public authority or a non-Commonwealth licensee) can make an application to Comcare (PDF, 150.7 KB). Other PCBUs will be required to apply to the relevant state and/or territory regulator for an exemption.

Before the person can apply for an exemption, the person must give each Safe Work Australia (SWA) Member social partner a written notice:

• stating that they intend to apply to Comcare for an exemption
• inviting the social partner to give the person submissions for Comcare, about the application (within a reasonable period of time), and
• informing the social partner that the person must provide the submission to Comcare as part of the person’s application.²

The PCBU must also provide a copy of the proposed application for the exemption to each social partner.

The social partners that PCBUs will need to contact for the purposes of an exemption application are the two SWA members that represent the interests of workers and the two SWA members that represent the interests of employers:

• Australian Chamber of Commerce and Industry (ACCI) - acciesnotice@acci.com.au
• Australian Council of Trade Unions (ACTU) - whs@actu.org.au
• Australian Industry Group (AI Group) - Tracey.Browne@aigroup.com.au.

On the Safe Work Australia website, you can download a flowchart of the process PCBUs must follow to apply for an exemption of an engineered stone product.

Notification requirements

Upon receiving an application, Comcare must provide the application and supporting documentation to each corresponding WHS regulator.³

Comcare may also choose to provide the application and supporting documentation to the following persons, and invite them to make a submission in respect of the exemption application:

• employer organisations that include employers who engage in work involving engineered stone
• unions representing employees whose work involves engineered stone, or
• persons who have qualifications, knowledge, skills and experience relating to engineered stone.⁴

Comcare has prepared a written application form to assist applicants to provide relevant information for Comcare’s consideration.

Matters to be considered

Comcare must not grant an exemption unless it is satisfied that granting the exemption would result in a standard of health and safety that is at least equivalent to the standard that would have been achieved without that exemption.⁵

When deciding this matter, Comcare must have regard to all relevant matters including:

• any submissions received by the WHS regulator from the corresponding WHS regulators, employee groups, employer groups and technical experts
• any submissions made by SWA social partners and provided by the applicant with the application, and
• the Engineered Stone Prohibition common decision-making criteria published on the SWA website under the National Exemption Framework.

Comcare's decision

If Comcare decides to grant an exemption, Comcare must prepare an exemption document that states:

• the name of the applicant for the exemption
• the person or class of persons to whom the exemption will apply (if applicable)
• the work or thing to which the exemption relates
• the circumstances in which the exemption will apply
• the provisions of the WHS Regulations to which the exemption applies
• any conditions on the exemption
• the date on which the exemption takes effect, and
• the duration of the exemption.⁶

Comcare may impose any conditions it considers appropriate when granting an exemption. Conditions could relate to the monitoring of risks and/or the health of specified persons, record keeping, using a specified system of work, reporting certain matters to Comcare, or giving notice of the exemption to certain persons who may be affected by the exemption.

If the exemption is granted, Comcare must give the applicant a copy of the exemption document within 14 days after making the decision to grant the exemption. Comcare must also notify each corresponding regulator that the exemption is granted and publish on Comcare’s website the reasons for the decision, within 14 days after the day the exemption is granted.⁷

An exemption granted under regulation 689A(1) is a legislative instrument and is required to be registered on the Federal Register of Legislation.⁸

Once granted, exemptions will be recognised automatically in all jurisdictions with a corresponding WHS law for granting an exemption from the engineered stone prohibition. PCBUs should not apply for the same exemption in multiple jurisdictions.

Please note, Victoria’s Occupational Health and Safety Regulations (OHS Regulations) do not provide for automatic mutual recognition of exemptions granted by other jurisdictions. For more information about exemptions under the OHS Regulations, please refer to WorkSafe Victoria.

If Comcare refuses to grant the exemption, Comcare must give the applicant written notice of the refusal within 14 days after making the decision, and the notice must state the reasons for the refusal.

A decision to refuse to grant an exemption is a reviewable decision.⁹

Amendment of cancellation

Comcare may at any time cancel or amend an exemption. Comcare may obtain information about the operation of an exemption from sources such as:

• a complaint from a worker about the exemption, or
• a communication from the person to whom the exemption was granted, or
• information provided in accordance with conditions imposed upon the grant of the exemption, or
• general monitoring activities.

Based on information obtained by Comcare after an exemption has been granted, Comcare might form the view that the exemption is no longer appropriate, or is no longer appropriate in its existing form. More specifically, Comcare might form the view, for instance, that:

• the duration of an exemption should be extended or shortened, or
• the class of persons to whom the exemption applies should be broadened or narrowed, or
• conditions imposed upon the grant of the exemption should be varied because of changes in work practices or technology, or
• the person to whom the exemption was granted is not complying with conditions imposed upon the grant of the exemption, or
• an exemption would not be granted if a fresh application were made.

In circumstances of this kind, Comcare may decide to amend or cancel an exemption.¹⁰ Comcare must give the applicant written notice of the amendment or cancellation within 14 days after making the decision.

A decision to amend or cancel an exemption is a reviewable decision.⁹

More information

Safe Work Australia has developed resources to support the prohibition on engineered stone.

• Engineered stone prohibition: Guidance for PCBUs
• Working with silica and silica containing products guidance material
• Guide for Applicants for Exemptions – National Framework document
• Exemption from the engineered stone ban – Flowchart
• Key terms used in Engineered stone prohibition: Guidance for PCBUs – Infographic
• Definition of engineered stone – Infographic
• What is controlled processing of engineered stone? - Infographic
• Exemptions from engineered stone ban – Infographic
• Need more information in the engineered stone ban? – Infographic
• Fact sheet – Summary of Engineered stone prohibition: Guidance for PCBUs

References

[1] WHS Regulations, regulation 689B

[2] WHS Regulations, regulation 689B(2)

[3] WHS Regulations, regulation 689C

[4] WHS Regulations, regulation 689C(2)

[5] WHS Regulations, 689D

[6] WHS Regulations, regulation 692

[7] WHS Regulations, regulation 694

[8] Legislation Act 2003, section 12

[9] WHS Regulations. Regulation 676

[10] WHS Regulations, regulation 697