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23 Dec 11
NSW releases WHS Regulations

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The release of the Work Health and Safety Regulation 2011 (NSW) (WHS Regs) on 16 December 2011 has given businesses less than three weeks to understand and implement the requirements under the new regulations.  Workplace health and safety specialist, Partner, Jeremy Kennedy summarises the new regulations and accompanying Codes of Practice.

The WHS Regs were made under the Work Health and Safety Act 2011 (NSW) (WHS Act) in New South Wales and are set to commence on 1 January 2012.  The NSW Finance Minister Greg Pearce has also confirmed that the WHS Act will also commence on 1 January 2012, along with 11 Codes of Practice.  The Codes of Practice that will commence on 1 January 2012 include:

  • How to manage work health and safety risks
  • Work Health and Safety Consultation, Cooperation and Coordination
  • Managing the work environment and facilities;
  • Managing noise and preventing hearing loss at work
  • Hazardous manual tasks
  • Confined spaces
  • How to prevent falls at the workplace
  • Labelling of workplace hazardous materials
  • Preparation of safety data sheets for hazardous chemicals
  • How to manage and control asbestos in the workplace, and
  • How to safely remove asbestos.

The provisions of the WHS Regs are substantially the same as the Model Work Health and Safety Regulation 2011 (Model WHS Regs) released by Safe Work Australia.  According to a report released by WorkCover NSW the main changes between the Occupational Health and Safety Regulation 2001 (NSW) and Model WHS Regs are:

  • the introduction of the health and safety representative (HSR) and procedural requirements surrounding that role
  • notice requirements for some WHS entry permit holders to enter a workplace
  • the introduction of generic risk management provisions, including a hierarchy of controls
  • new requirements surrounding licensing of asbestos assessors and removal licence holders
  • the introduction of a new licence class for reach stackers
  • notification of certain demolition work to the regulator
  • any major overhaul and outage works for fixed plant carried out by five or more Persons Conducting a Business or Undertaking (PCBU) will now be subject to the construction requirements
  • the provisions relating to chemicals will now be based on the globally harmonised system for classification of chemicals, including chemicals that are dangerous goods
  • PCBUs will be required to provide audiometric testing for workers
  • notification of Schedule 11 hazardous chemicals will only be required for chemicals that exceed the manifest quantity, and
  • items of plant will only be required to be registered every five years, rather than annually.

Chapter 10 of the WHS Regs states that the equivalent Chapter 10 of the Model WHS Regs will not be adopted in New South Wales and that the MHSA and CMHSA should be referred to instead.

As clarified by the release of the WHS Regs, the position in New South Wales will not adopt the Model WHS Regs on mining.  The CMHSA and MHSA will continue to govern health and safety for mining in New South Wales.

The WHS Regs will also repeal the Work Health and Safety (Savings and Transitional) Regulation 2011 (NSW) which was to commence on 1 January 2012.  In New South Wales, the savings and transitional provisions are now set out in Schedule 18B of the WHS Regs.  Briefly, some of the main transitional arrangements PCBUs and officers should be aware of include:

  • proceedings for OHS offences alleged to have been committed prior to 1 January 2012 being dealt with as if the OHS Act still applied, unless otherwise stated in the WHS Regs
  • the duties concerning structures, plant and equipment for a PCBU will be subject to the transition periods set out in Schedule 18B of the WHS Regs
  • deeming provisions put in place for workgroups, HSRs and OHS Committees elected prior to the commencement of the WHS Act, specifically:
    • a worker who was represented as an OHS Representative or an elected member of an OHS committee two years prior to 1 January 2012 will be deemed to be a HSR under the WHS Act
    • a workgroup in existence under the OHS Act immediately before the repeal of the OHS Act will be deemed to be a work group under the WHS Act, and
    • an OHS Committee established under the OHS Act immediately before the OHS Act’s repeal will be deemed to have been established as a HSC under the WHS Act.
  • certain provisions, as specified in Schedule 18B of the WHS Regs not commencing on 1 January 2012, for example, the duty to prepare, maintain and implement an emergency management plan as set out in clause 43 of the WHS Regs will not apply for 12 months after the commencement of the WHS Regs
  • OHS management plans prepared in compliance with clause 226 of the OHS Regs will be deemed to have been prepared as a WHS management plan for the purposes of complying with clause 309 of the WHS Regs but only for 12 months after the commencement of the WHS Act
  • a number of the provisions concerning construction will also be deemed to be in accordance with the WHS Act, for example, an OHS construction induction training card issued under the OHS Regs will be deemed to have been issued under the WHS Regs, and
  • policies or procedures that have effect for the purposes of a provision of the OHS laws are for a period of 12 months to have effect for the equivalent provision of the WHS Act.

We suggest that all PCBUs and officers take the time to read Schedule 18B of the WHS Regs so that they gain a thorough understanding of which transitional provisions are relevant for their organisation’s circumstances.

The Codes of Practice will be available from 1 January 2012 on the WorkCover New South Wales website: http://www.workcover.nsw.gov.au/newlegislation2012/WHSlawandpolicy/Pages/Workhealthandsafetycodesofpractice.aspx.

The Model Draft Codes of Practice (on which the NSW Codes of Practice are based) can be accessed at the Safe Work Australia website: http://www.safeworkaustralia.gov.au/Legislation/AdministrativeRegulations/Pages/Model%20work%20health%20and%20safety%20Regulations.aspx.

The WHS Regs are available on the NSW government legislation website: http://www.legislation.nsw.gov.au/maintop/epub.

For up to the hour updates on developments in relation to the work health and safety law, link in with Jeremy Kennedy on LinkedIn, subscribe to Workplace Health & Safety Lawyer discussion group on LinkedIn or follow Jeremy on Twitter @WHSLawyer.

 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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