Regulatory guide - High risk work licence 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 high risk work licence exemptions

Certain classes of ‘high risk work’ may only be carried out by a person who holds a high risk work licence that relates to the relevant class, under Part 4.5 of the WHS Regulations.^[2] The classes of high risk work and the types of licences that can be granted appear in Schedule 3 to the WHS Regulations.

Comcare may exempt a person from compliance with any of the regulations requiring the person to hold a high risk work licence, under Division 2 of Part 11.2 of the WHS Regulations. Comcare may also grant a high risk work licence exemption in relation to a class of persons.^[3]

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 high risk work licence exemption may be granted on the written application of any person concerned.^[4]

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

• High Risk Work Licence Exemption application form (PDF, 113.5 KB) (PDF, 136.5 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.

3. Matters to be considered

Comcare must not grant a high risk work licence exemption unless satisfied that doing so will result in a standard of health and safety that is at least equivalent to the standard that would be achieved by compliance with the relevant regulations.^[5]

Comcare must have regard to ‘all relevant matters’. A non-exhaustive list of matters includes whether:

• the obtaining of the high risk work licence would be impractical
• the competencies of the person to be exempted exceed those required for a high risk work licence
• any plant used by the person can be modified in a way that reduces the risk associated with using that plant.^[6]

While ‘all relevant matters’ is broad, the scope of what is relevant is limited by the subject matter of high risk work licensing requirements. Essentially, Comcare will be considering whether an equivalent standard of health and safety can be achieved through practical adjustments or alterations to the requirements of Part 4.5 of the WHS Regulations.

4. Comcare's decision

4.1 Obtaining information

Comcare may specify requirements as to the manner and form of an application for a high risk work licence exemption, which may include requirements for the applicant to provide specific information.^[7]

4.2 Granting an exemption

If Comcare decides to grant a high risk work licence exemption, 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.^[8]

Comcare must give a copy of the exemption document to the applicant.^[9]

Comcare may impose any conditions it considers appropriate when granting a high risk work licence exemption.^[10]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.^[11]

A person to whom a high risk work licence 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.^[12]A decision to impose conditions is a reviewable decision, therefore, an applicant who is dissatisfied with the imposition of certain conditions may seek external review in the Administrative Appeals Tribunal (AAT).^[13]

4.3 Refusing an exemption

If Comcare refuses to grant a high risk work licence exemption, Comcare must give the applicant notice of the refusal and state its reasons for refusing the application.^[14] The decision to refuse to grant an exemption is a reviewable decision.^[15] Applicants who are dissatisfied with a refusal may seek external review in the AAT.^[16]

5. Amendment or cancellation

Comcare may obtain information about the operation of a high risk work licence 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 a high risk work licence exemption.^[17]Comcare must give written notice of amendment or cancellation to the applicant for the exemption.^[18]

6. Special steps for exemptions for a class of persons

If a high risk work licence exemption granted by Comcare exempts a class of persons, the exemption document is a legislative instrument.^[19] Likewise, if Comcare decides to amend or cancel a high risk work licence exemption relating to a class of persons, the notice of that decision is a legislative instrument.^[20]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.^[21]

An exemption document or a notice of amendment or cancellation that affects only one person is not a legislative instrument,^[22] so it is not necessary to go through the additional procedures.