Regulatory guide - General exemptions

Comcare may grant exemptions from compliance with any of the WHS Regulations, under Part 11.2 of the Work Health and Safety Regulations 2011 (WHS Regulations).^[1]

There are four different types of exemptions, the granting of each of which require Comcare to consider different matters. However the common criteria is that an exemption must not be granted if standards of health and safety may be compromised.

The four types of exemptions include:

• an engineered stone prohibition exemption under Regulation 529D;
• a general exemption power to grant exemptions under Regulation 684;
• a high risk work licence exemption under Regulation 686; and
• a major hazard facility exemption under Regulation 688 of the WHS Regulations.

1. Scope of general exemptions

Under Division 1 of Part 11.2 of the WHS Regulations, Comcare may exempt a person from compliance with any of the Regulations (other than the regulations which are dealt with under Divisions 2 and 3 of Part 11.2, being an exemption from the requirement to have a high risk work licence or an exemption from an operator of a major hazard facility or proposed major hazard facility from the Regulations relating to that facility).

Comcare may also grant a general exemption to a class of persons.^[2]

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.

2. Application process

A general exemption may be granted on Comcare’s own initiative or on the written application of one or more persons.^[3]

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

• General Exemption application form (PDF, 113.4 KB)

An application for exemption will often raise unusual and complex factors. It is therefore difficult to predict how long it will take to consider a particular application.

If you would like to discuss your matter before finalising and submitting an application, please email WHSexemptions@comcare.gov.au with a brief description of the circumstances. Comcare will then contact you by phone or email to discuss the matter.

In addition, Comcare may grant a general exemption on its own initiative without receiving an application.^[4] This might arise, for example, if:

• in considering the duties or obligations owed by one person under the WHS Regulations, it becomes apparent that there are related duties or obligations owed by other persons, or
• Comcare becomes aware of an anomalous or unintended application of a regulation that affects a class or persons.

3. Matters to be considered

The WHS Regulations do not contain any express criteria that must be satisfied before Comcare may grant a general exemption. It would be difficult to articulate specific criteria that could apply across the extremely broad subject matter covered by the WHS Regulations.

However, Comcare must consider ‘all relevant matters’ in deciding whether or not to grant a general exemption. A non-exhaustive list of matters to which Comcare must have regard to includes:

• whether the granting of the exemption will result in a standard of health and safety at the relevant workplace, or in relation to the relevant undertaking, that is at least equivalent to the standard that would be achieved by compliance with the relevant regulations
• whether that standard of health and safety can be achieved if the exemption is granted with conditions (and those conditions are complied with)
• whether exceptional circumstances justify the grant of the exemption
• if the proposed exemption relates to a particular thing—whether Comcare is satisfied that the risk associated with the thing is not significant if the exemption is granted
• whether the applicant has carried out consultation in relation to the proposed exemption with workers and other duty holders.^[5]

In having regard to these matters, Comcare is mindful of the guiding principle of the regulatory regime, that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.^[6] As such, Comcare is unlikely to grant a general exemption unless satisfied that the standard of health and safety under the exemption, whether with or without conditions, will be at least equivalent to the standard that would be achieved through compliance with the provisions of the WHS Regulations.

In addition, Comcare is mindful that the WHS Regulations are part of a national framework for work health and safety and that granting exemptions tends to detract from a consistent national approach to work health and safety.^[7] Therefore, Comcare is unlikely to grant a general exemption unless satisfied that exceptional circumstances do exist to justify the grant of the exemption. In addition, for any exemption that is granted, Comcare is likely to limit its operation to what is truly required to allow a particular activity to occur that would otherwise constitute a contravention of the WHS Regulations.

4. Comcare's decision

4.1 Obtaining information

Comcare may specify requirements for how an application is made, which may include requirements for the applicant to provide specific information.^[8]

4.2 Granting an exemption

If Comcare decides to grant an exemption, whether in response to an application or on its own initiative, it must prepare an exemption document that states the details of the exemption, including the name of the applicant, the person or class of persons to whom  the exemption will apply, the work to which the exemption will relate, the circumstances in which the exemption will apply, the provision of the WHS Regulations to which the exemption applies, the date the exemption takes effect, the duration of the exemption and any conditions on the exemption.^[9]

If the exemption is granted in response to an application, Comcare must give a copy of the exemption document to the applicant. If Comcare has granted the exemption on its own initiative, it must give a copy of the exemption document to each person to whom the exemption will apply.^[10]

Comcare may impose any conditions it considers appropriate when granting an exemption.^[11] This applies whether the exemption is granted in response to an application or on Comcare’s own initiative. In some cases, imposing conditions may be the only way an equivalent standard of health and safety can be achieved despite the grant of the exemption.

Conditions could relate to matters such as monitoring risks and/or the health of specified persons, record keeping, reporting , using a specified system of work or giving notice of the exemption to certain persons who may be affected by the exemption.^[12]

A person to whom an exemption is granted with conditions must comply with the conditions and also ensure that any person under their management or control complies with the conditions.^[13] A decision to impose conditions is a reviewable decision, so an applicant who is dissatisfied with the imposition of certain conditions may seek external review in the Administrative Appeals Tribunal (AAT).^[14]

4.3 Refusing an exemption

If a person has applied for an exemption and Comcare refuses to grant the exemption, Comcare must give the applicant notice of the refusal and state its reasons for refusing the application.^[15] The decision to refuse to grant an exemption is a reviewable decision.^[16]Applicants who are dissatisfied with a refusal can seek external review in the AAT.^[17]

5. Amendment or cancellation

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.^[18]If the exemption was granted in response to an application, Comcare must give written notice of amendment or cancellation to the applicant. If Comcare granted the exemption on its own initiative, it must give written notice to each person to whom the exemption applies.^[19]

6. Special steps for exemptions for a class of persons

If an exemption granted by Comcare exempts a class of persons, the exemption document is a legislative instrument.^[20] Likewise, if Comcare decides to amend or cancel an exemption relating to a class of persons, the notice of that decision is a legislative instrument.^[21] This means, amongst other things, that the documents must be registered on the Federal Register of Legislation and are not enforceable until they are registered.^[22]

An exemption document or a notice of amendment or cancellation that affects only one person is not a legislative instrument,^[23] so it is not necessary to go through the additional procedures.