Regulatory guide - Major hazard facility 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 major hazard facility exemptions

Part 9.1 of the WHS Regulations concerns facilities or proposed facilities where any of the chemicals specified in Schedule 15 to the WHS Regulations are present or likely to be present. A facility is required to be licensed if:

• the quantity of the chemical exceeds the threshold for that chemical shown in schedule 15^[2]
• the quantity of the schedule 15 chemical exceeds 10% of the threshold quantity but does not exceed the threshold, and Comcare has determined that the facility is a major hazard facility because of the potential for a major incident to occur at the facility.^[3]

The licensing process for a major hazard facility is set out in Part 9.7 of the WHS Regulations. Once a major hazard facility is licensed, Part 9.4 requires its operator to comply with various requirements to control risks related to the occurrence of a major incident.

Division 3 of Part 11.2 of the WHS Regulations allows Comcare to exempt the operator of a major hazard facility or proposed major hazard facility from compliance with any of the WHS Regulations relating to that facility.^[4]

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 major hazard facility exemption may be granted on the written application of the operator.^[5]

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

• Major Hazard Facility Exemptions application form (PDF, 135.6 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

Despite the power to grant a major hazard facility exemption, the exemption is available only where:

• a schedule 15 chemical is present or likely to be present at the facility, and
• the quantity of the schedule 15 chemical periodically exceeds the threshold quantity for that chemical because it is solely the subject of intermediate temporary storage, and
• the schedule 15 chemical is in containers whose individual capacities do not exceed 500 kilograms, and
• 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.^[6]

In other words, the exemption is limited to situations involving temporary storage of Schedule 15 chemicals which takes the quantity at a facility above the Schedule 15 threshold for that chemical. If the quantity does not cross the threshold, Comcare can address a facility’s need to comply with requirements such as those in Part 9.4 of the WHS Regulations by making a determination as to whether or not it is a major hazard facility.

If the criteria about crossing the threshold because of temporary storage are satisfied, Comcare may grant the exemption if satisfied as to the facility’s standards of health and safety. More specifically, Comcare must not grant a major hazard facility exemption unless satisfied that the exemption 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.^[7]

In forming the view that granting the exemption 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, Comcare must have regard to ‘all relevant matters’. A non-exhaustive list of matters which Comcare must have regard to includes whether:

• the applicant is complying with the WHS Regulations and the Work Health and Safety Act 2011 (WHS Act)
• the applicant has processes and procedures in place which will keep the quantity of the schedule 15 chemical or chemicals present or likely to be present at or below the threshold quantity for the schedule 15 chemical or chemicals as often as practicable
• the applicant has implemented adequate control measures to minimise the risk of a major incident occurring.^[8]

4. Comcare's decision

4.1 Obtaining information

Comcare may specify requirements as to the manner and form of an application for a major hazard facility exemption, which may include requirements for the applicant to provide specific information.^[9]

4.2 Granting an exemption

If Comcare decides to grant a major hazard facility 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.^[10]

Comcare must give a copy of the exemption document to the applicant.^[11]

Comcare may impose any conditions it considers appropriate when granting a major hazard facility exemption.^[12] 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.^[13]

A person to whom a major hazard facility 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.^[14]A decision to impose conditions is a reviewable decision, therefore, the operator of a facility who is dissatisfied with the imposition of certain conditions may seek external review in the Administrative Appeals Tribunal (AAT).^[15]

4.3 Refusing an exemption

If Comcare refuses to grant a major hazard facility exemption, Comcare must give the applicant notice of the refusal and state its reasons for refusing the application.^[16] The decision to refuse to grant a major hazard facility exemption is a reviewable decision.^[17] The operator of a facility who is dissatisfied with a refusal may seek external review in the AAT.^[18]

5. Amendment or cancellation

Comcare may obtain information about the operation of a major hazard facility 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 a major hazard facility 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
• 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 major hazard facility exemption.^[19] Comcare must give written notice of amendment or cancellation to the applicant for the exemption.^[20]