Chapter 6 Hazardous substances

Note. This Chapter imposes obligations on an employer. Employer, for the purposes of this Chapter, includes self-employed persons (see clause 3).

Part 6.1 Preliminary

145   Definitions

(1)  In this Chapter:

analysis means a process used for the purpose of identifying the kind or quantities of ingredients in a substance.

biological monitoring means the measurement and evaluation of hazardous substances or their metabolites in the body tissues, fluids or exhaled air of a person.

chemical name of a substance means a recognised chemical name of the substance that is generally used in scientific or technical texts.

consumer package means a container that is intended for retail display and sale, and includes a container that is transported and distributed as part of a larger consolidated container that consists of a number of identical consumer packages.

container means anything in or by which substances are or have been wholly or partly encased, covered, enclosed, contained or packed (whether empty, partially full or completely full), but does not include a bulk container, namely:

(a)  in the case of a container designed to hold gas—a container that has a capacity of more than 500 litres, or

(b)  in the case of a container designed to hold either solids or liquids—a container that has either a net mass of more than 400 kilograms or a capacity of more than 450 litres.

exposure—see clause 146 (2).

generic name of a substance means a name that describes the category or group of chemicals to which the substance belongs (for example, azo dyes or halogenated aromatic amines).

health practitioner means a health practitioner within the meaning of the Health Care Complaints Act 1993.

health surveillance means the monitoring of persons to identify changes (if any) in their health due to exposure to a hazardous substance, and includes biological monitoring, but does not include the monitoring of atmospheric contaminants.

ingredient means any component of a substance, and includes any impurity that is mixed in with the substance.

MSDS means a material safety data sheet referred to in clause 150.

product name of a hazardous substance means the brand name, trade name, code name or code number specified by the supplier of the substance.

research means systematic investigative or experimental activities that are carried out for the purpose of:

(a)  acquiring new knowledge (whether or not that knowledge will have a specific practical application), or

(b)  creating new or improved materials, products, devices, processes or services.

retail warehouse operator means a person who operates a warehouse at which unopened packaged goods intended for retail sale are held, but does not include a retailer.

retailer means a person who sells goods to members of the public who are not themselves engaged in any further resale of those goods.

risk phrase, in relation to a substance, means a phrase that describes the hazards of the substance, as referred to in the document entitled “National Code of Practice for the Labelling of Workplace Substances [NOHSC: 2012 (1994)]” published by the NOHS Commission.

risk to health, in relation to a substance, means the likelihood that the substance will cause harm to health in the circumstances of its use.

safety phrase, in relation to a substance, means a phrase that describes the procedures for the safe handling or storage of the substance, or the use of personal protective equipment in conjunction with the substance, as referred to in the document entitled “National Code of Practice for the Labelling of Workplace Substances [NOHSC: 2012 (1994)]” published by the NOHS Commission.

type I ingredient means an ingredient present in a particular hazardous substance in a quantity that exceeds the lowest relevant concentration cut-off level specified for the hazard classification of the substance in the document entitled “Approved Criteria for Classifying Hazardous Substances [NOHSC: 1008 (1999)]” published by the NOHS Commission, being an ingredient that:

(a)  is a substance that is, according to that document:

(i)  carcinogenic, mutagenic or teratogenic, or

(ii)  a skin or respiratory sensitiser, or

(iii)  corrosive, toxic or very toxic, or

(iv)  a harmful substance that can cause irreversible effects after acute exposure, or

(v)  a harmful substance that can cause serious damage to health after repeated or prolonged exposure, or

(vi)  toxic to reproduction, or

(b)  is a substance for which an exposure standard is listed in the document entitled “Adopted National Exposure Standards for Atmospheric Contaminants in the Occupational Environments [NOHSC: 1003]” published by the NOHS Commission, as in force from time to time.

type II ingredient means an ingredient present in a particular hazardous substance in a quantity that exceeds the lowest relevant concentration cut-off level specified for the hazard classification of the substance in the document entitled “Approved Criteria for Classifying Hazardous Substances [NOHSC: 1008 (1999)]” published by the NOHS Commission, being an ingredient that:

(a)  is a harmful substance according to that document, and

(b)  is not a type I ingredient.

type III ingredient means an ingredient present in a particular hazardous substance that is not a type I ingredient or a type II ingredient.

use of a substance, means the use, production, handling, storage, transport or disposal of the substance.

(2)  A reference in this Chapter to a document prepared or published by any body or authority is to be taken as a reference to that document, as in force from time to time, and (if the document is revoked and remade, with or without modifications) includes a reference to the new document, as in force from time to time.

146   Application

(1)  This Chapter applies (subject to clause 147) to all hazardous substances, to all places of work in which hazardous substances are used, and to all persons who have been, are or may become exposed to hazardous substances in those places of work.

(2)  For the purposes of this Chapter, exposure of a person to a hazardous substance includes the absorption, or potential absorption, by the person of the substance by ingestion or inhalation or through the skin or mucous membrane or by any other means.

147   Exclusion of certain substances

(1)  This Chapter does not apply to the following substances if their use is not related to a work activity:

(a)  food (within the meaning of the Food Act 1989),

(b)  therapeutic agents,

(c)  cosmetics,

(d)  tobacco and tobacco products,

(e)  toiletries and toilet products.

(2)  This Chapter does not apply to:

(a)  any radioactive substance to which the Radiation Control Act 1990 applies, or

(b)  any infectious substance (that is, any viable micro-organism, such as a bacterium, virus, rickettsia, parasite, fungus, recombinant, hybrid or mutant, that is known or reasonably believed to cause disease in humans or animals).

(3)  This Chapter does not apply to a hazardous substance while it is being transported in accordance with any of the following:

(a)  the Road and Rail Transport (Dangerous Goods) Act 1997 and the regulations under that Act,

(b)  the document entitled “International Maritime Dangerous Goods Code” published by the International Maritime Organization, copies of which are available for inspection at the offices of WorkCover,

(c)  the document entitled “Technical Instructions for the Safe Transport of Dangerous Goods by Air” published by the International Civil Aviation Organization, copies of which are available for inspection at the offices of WorkCover,

(d)  the document entitled “Dangerous Goods Regulations” published by the International Air Transport Association, copies of which are available for inspection at the offices of WorkCover.

Part 6.2 Manufacture of hazardous substances

Note. See clause 7 (2) as to the extent of a manufacturer’s duties under this Part.

148   Application

(1)  This Part applies to hazardous substances manufactured for use at work.

(2)  A person who imports a substance manufactured outside New South Wales for supply to others or for the person’s own use must ensure that the responsibilities of a manufacturer under this Part are met in relation to the substance.

149   Manufacturer to identify hazardous substances

(1)  A manufacturer of a substance must, before the substance is used or supplied to another person for use at work, determine whether the substance is a hazardous substance:

(a)  by ascertaining whether it is listed in the document entitled “List of Designated Hazardous Substances [NOHSC: 10005 (1999)]” published by the NOHS Commission, or

(b)  by ascertaining whether it fits the criteria for hazardous substances set out in the document entitled “Approved Criteria for Classifying Hazardous Substances [NOHSC: 1008 (1999)]” published by the NOHS Commission.

Maximum penalty: Level 4.

(2)  If:

(a)  a manufacturer determines that a substance is a hazardous substance on the basis of the document entitled “Approved Criteria for Classifying Hazardous Substances [NOHSC: 1008 (1999)]” published by the NOHS Commission, and

(b)  the substance is a natural or artificial entity (and not any composite material, mixture or formulation), and

(c)  the substance is not listed on the document entitled “List of Designated Hazardous Substances [NOHSC: 10005 (1999)]” published by the NOHS Commission,

      the manufacturer must, by notice in writing, inform the NOHS Commission of the determination.

Maximum penalty (subclause (2)): Level 3.

150   Manufacturer to prepare material safety data sheet

(1)  A manufacturer of a hazardous substance must prepare a material safety data sheet (MSDS) for the substance before the hazardous substance is supplied to another person for use at work.

Maximum penalty: Level 4.

(2)  The MSDS:

(a)  must clearly identify each hazardous substance to which it relates, and

(b)  must set out the following information in relation to a hazardous substance to which it relates:

(i)  its recommended uses,

(ii)  its chemical and physical properties,

(iii)  information relating to each of its ingredients, to the extent required by subclause (3),

(iv)  any relevant health-hazard information,

(v)  information concerning the precautions to be followed in relation to its safe use and handling, and

(c)  must set out the name, and Australian address and telephone numbers (including an emergency number), of the manufacturer.

(3)  The following information must be disclosed by an MSDS about the ingredients of the hazardous substance to which it relates:

(a)  for each type I ingredient, its chemical name,

(b)  for each type II ingredient:

(i)  its chemical name, or

(ii)  if the identity of the ingredient is commercially confidential, its generic name,

(c)  for each type III ingredient:

(i)  its chemical name, or

(ii)  its generic name.

(4)  If a generic name is used to identify a type II ingredient under subclause (3) (b) (ii), the manufacturer must notify the NOHS Commission of the use of the generic name in a manner and form determined by the Commission.

Maximum penalty: Level 1.

(5)  If the manufacturer considers that compliance with subclause (3) (c) would not provide sufficient commercial protection for a type III ingredient, other than an ingredient that has a known synergistic effect or is a hazardous substance, the MSDS may indicate that the ingredient has been determined not to be hazardous by the use of the phrase “OTHER INGREDIENTS DETERMINED NOT TO BE HAZARDOUS”.

(6)  The manufacturer must review and revise the MSDS as often as is reasonably necessary to keep it up to date and, in any event, at intervals not exceeding 5 years.

Maximum penalty (subclause (6)): Level 4.

151   Manufacturer to provide MSDS

A manufacturer of a hazardous substance must provide a copy of a current MSDS for that hazardous substance:

(a)  to any person who supplies the hazardous substance for use at work, and

(b)  to any person who claims to be associated with the use of the hazardous substance at work and who asks to be provided with a copy of the MSDS, and

(c)  to any medical practitioner or health practitioner who requires it for the purpose of providing emergency medical treatment.

Maximum penalty: Level 3.

152   Manufacturer to disclose ingredients to medical practitioner

(1)  If an MSDS or label does not disclose the chemical name of an ingredient of a hazardous substance, the manufacturer of the hazardous substance must disclose the chemical identity of the ingredient to any medical practitioner or health practitioner who applies to the manufacturer for the disclosure of that information for the purpose of emergency medical treatment.

(2)  The manufacturer must immediately respond to the application but, on or after supplying any information, may require the medical practitioner or health practitioner concerned to sign a written undertaking that he or she will only use the information for the purpose for which it has been provided.

Maximum penalty: Level 3.

153   Manufacturer to disclose ingredients to other persons

(1)  An application may be made to the manufacturer of a hazardous substance for the disclosure of the chemical identity of any ingredient of the substance that is not disclosed by the MSDS or label for the substance.

(2)  The manufacturer may require the application to be made in writing and to set out details of the grounds on which it is made.

(3)  The manufacturer must respond to the application within 30 days after it is received.

Maximum penalty: Level 2.

(4)  The manufacturer may make it a condition of the provision of any information in response to an application (other than an application by an authorised official within the meaning of section 137 of the Act) that the applicant sign a written undertaking that he or she will only use the information for the purpose for which it has been provided.

(5)  In the case of an application made by WorkCover, an employer or an employee or by a representative of an employer or employee, the manufacturer must disclose the chemical identity of the ingredient to the applicant if the application is made for the express purpose of protecting the health of persons who may be exposed to the hazardous substance through its use at work. However, if a condition has been imposed under subclause (4) in connection with the disclosure, the manufacturer may refuse the application if the applicant has not signed a written undertaking in accordance with the condition.

Maximum penalty: Level 3.

(6)  In any other case, the manufacturer may either disclose the chemical identity of the ingredient or else reject the application.

(7)  If the manufacturer rejects the application, the manufacturer:

(a)  must provide the applicant with written reasons for the rejection, and

(b)  must provide such information as is necessary to satisfy the grounds on which the application is made without disclosing the chemical identity of the ingredient.

Maximum penalty (subclause (7)): Level 2.

Note. Section 137 of the Act prohibits the disclosure by authorised officials of information obtained in connection with the administration or execution of the Act. “Authorised official” is defined in the section and includes such persons as WorkCover inspectors and authorised representatives of industrial organisations.

Part 6.3 Supply of hazardous substances

Note. See clause 7 (2) as to the extent of a supplier’s duties under this Part.

Division 1 Preliminary

154   Application

This Part applies to the supply of hazardous substances for use at work.

Division 2 Supply of hazardous substances generally

155   Supplier to provide MSDS

(1)  A person who supplies a hazardous substance to an employer for use at work must ensure, in relation to each hazardous substance supplied, that a current MSDS prepared by the manufacturer is provided:

(a)  on the first occasion the hazardous substance is supplied to the employer, and

(b)  at any other time, to any person who claims to be associated with the use of the hazardous substance at work and who asks to be provided with a copy of the MSDS, and

(c)  to any medical practitioner or health practitioner who requires it for the purpose of providing emergency medical treatment.

Maximum penalty: Level 4.

(2)  Subclause (1) (a) does not apply to a hazardous substance that is supplied to a retailer or a retail warehouse operator in a consumer package holding less than 30 kilograms or 30 litres of the hazardous substance, that is intended for retail sale and that is not intended to be opened on the premises of the retailer or operator.

156   Supplier to ensure hazardous substances are labelled

(1)  A person who supplies a hazardous substance for use at work must ensure that any container of the hazardous substance is appropriately labelled.

(2)  Without limiting subclause (1), the person must ensure that any such label:

(a)  clearly identifies the hazardous substance, and

(b)  sets out the name, and Australian address and telephone numbers (including an emergency number), of the person, and

(c)  discloses the chemical name of each type I ingredient, and

(d)  discloses the chemical name of each type II ingredient or, if the identity of the ingredient is commercially confidential, its generic name, and

(e)  provides basic health and safety information about the substance, including any relevant risk phrases and safety phrases.

(3)  If the container to be labelled is so small that it is not practicable to include all the particulars referred to in subclause (2), it is sufficient if the label complies with paragraphs (a) and (b) of that subclause.

Maximum penalty: Level 3.

157   Supplier to provide other information

A person who supplies a hazardous substance to an employer for use at work must provide to the employer, on request:

(a)  any summary report (within the meaning of the Industrial Chemicals (Notification and Assessment) Act 1989 of the Commonwealth) that relates to the hazardous substance, and

(b)  any other relevant information (in addition to the information contained in an MSDS) that will assist in the safe use of the hazardous substance.

Maximum penalty: Level 2.

Division 3 Supply of carcinogenic substances—particular provisions

158   Definitions

In this Division:

notifiable carcinogenic substance means a substance of the following kind:

Substance Name [Chemical Abstract Number]

Acrylonitrile [107-13-1]
Benzene [71-43-2]—when used as a feedstock containing more than 50% of benzene by volume
Chrysotile [12001-29-5] (white asbestos)—when used for the manufacture of asbestos products
Cyclophosphamide [50-18-0] (cytotoxic drug)—when used in preparations for therapeutic use in hospitals and oncological treatment facilities, and in manufacturing operations
3,3′-Dichlorobenzidine [91-94-1] and its salts (including 3,3′-Dichlorobenzidine dihydrochloride [612-83-9])
Diethyl sulfate [64-67-5]
Dimethyl sulfate [77-78-1]
Ethylene dibromide [106-93-4]—when used as a fumigant
4,4′-Methylene bis(2-chloroaniline) [101-14-4]—MOCA
2-Propiolactone [57-57-8]
o-Toluidine [95-53-4] and o-Toluidine hydrochloride [636-21-5]
Vinyl chloride monomer [75-01-4]

prohibited carcinogenic substance means a substance of the following kind:

Substance Name [Chemical Abstract Number]

2-Acetylaminofluorene [53-96-3]

Aflatoxins—except in foods where specifically permitted under the Food Act 1989

4-Aminodiphenyl [92-67-1]

Amosite [12172-73-5] (brown asbestos)—except for removal, disposal, maintenance, encapsulation and enclosure purposes and situations where amosite occurs naturally and is not used for any new application

Benzidine [92-87-5] and its salts (including benzidine dihydrochloride [531-85-1])

bis(Chloromethyl) ether [542-88-1]

Chloromethyl methyl ether [107-30-2] (technical grade which contains bis(chloromethyl) ether)

Crocidolite [12001-28-4] (blue asbestos)—except for removal, disposal, maintenance, encapsulation and enclosure purposes and situations where crocidolite occurs naturally and is not used for any new application

4-Dimethylaminoazobenzene [60-11-7]

2-Naphthylamine [91-59-8] and its salts

4-Nitrodiphenyl [92-93-3]

159   Supply of carcinogenic substances

(1)  A person must not supply a prohibited carcinogenic substance unless:

(a)  the substance is to be used for the purpose of research or analysis, and

(b)  the person to whom the substance is to be supplied provides evidence that WorkCover has been notified, in accordance with Part 12.3, of the intention of that person to use the same type of carcinogenic substance.

(2)  A person must not supply a notifiable carcinogenic substance unless the person to whom the substance is to be supplied provides evidence that WorkCover has been notified, in accordance with Part 12.3, of the intention of that person to use the same type of carcinogenic substance.

Maximum penalty: Level 4.

160   Supplier to keep records of supply of carcinogenic substances

(1)  A person who supplies a prohibited or notifiable carcinogenic substance for use at work must keep a record containing the following information:

(a)  the name of the person to whom the carcinogenic substance has been supplied,

(b)  the name and quantity of the carcinogenic substance supplied.

This clause does not apply to the supply of a prohibited or notifiable carcinogenic substance within the period of 12 months after commencement of the clause.

(2)  The record must be retained for at least 5 years.

Maximum penalty: Level 3.

Part 6.4 Use of hazardous substances

161   Application

This Part applies to the use of hazardous substances at work.

Note. See clause 51 (Atmospheric contaminants—particular risk control measures) for prohibition of exposure to atmospheric contaminants above specified exposure levels.

162   Employer to obtain MSDS

(1)  For each hazardous substance supplied to an employer’s place of work, the employer:

(a)  must obtain from the supplier an MSDS for the substance before or on the first occasion on which it is supplied, and

(b)  must ensure that the MSDS is readily accessible to an employee who could be exposed to the substance, and

(c)  must ensure that the MSDS is not altered, otherwise than where it is appropriate that an overseas MSDS be reformatted by the employer.

(2)  The provisions of subclause (1) (a) and (b) do not apply to a hazardous substance that is supplied to a retailer or retail warehouse operator in a consumer package holding less than 30 kilograms or 30 litres of the substance, that is intended for retail sale and that is not intended to be opened on the premises of the retailer or operator.

Maximum penalty: Level 4.

163   Employer to ensure containers are labelled

(1)  An employer must ensure that a container that holds a hazardous substance used at work, including one supplied to or produced within the employer’s place of work, is appropriately labelled and that the label is not removed, defaced or altered.

(2)  Without limiting subclause (1), an employer must ensure that the label:

(a)  clearly identifies the hazardous substance, and

(b)  provides basic health and safety information about the substance, including any relevant risk phrases and safety phrases.

(3)  However:

(a)  a container into which a hazardous substance is decanted for use within the next 12 hours need only be labelled with the product name and the relevant risk phrases and safety phrases, and

(b)  a container into which a hazardous substance is decanted for immediate use need not be labelled, so long as it is cleaned immediately after it has been emptied of the substance.

Maximum penalty: Level 4.

164   Use of hazardous substances

(1)  An employer must ensure that a hazardous substance of the kind set out in the Table to this subclause is not used for a purpose referred to in respect of that hazardous substance.

Table

Hazardous substance	Prohibited use
Arsenic or its compounds	Spray painting
Asbestos in the form of crocidolite, amosite, fibrous anthophyllite, tremolite or actinolite	All uses, except for the purpose of sampling or analysis, maintenance, removal, disposal, encapsulation or enclosure
Benzene (benzol), if the substance contains more than 1% by volume	Spray painting
Carbon disulphide (carbon bisulphide)	Spray painting
Crystalline silicon dioxide (sand)	An abrasive in abrasive blasting A constituent of steel casting moulds, when sufficient quantities of suitable alternative non-siliceous materials are available A constituent in parting powders and facing powders used in foundry work A constituent in paints used on the surface of moulds or cores
Methanol (methyl alcohol), if the substance contains more than 1% by volume	Spray painting
Tetrachloroethane	Spray painting
Tetrachloromethane (carbon tetrachloride)	Spray painting

(2)  An employer must not use a prohibited carcinogenic substance (as defined in clause 158) unless:

(a)  the use is for the purpose of research or analysis, and

(b)  the employer has notified WorkCover of the intention to use the substance in accordance with Part 12.3.

(3)  An employer must not use a notifiable carcinogenic substance (as defined in clause 158) unless the employer has notified WorkCover of the intention to use the substance in accordance with Part 12.3.

Maximum penalty: Level 4.

165   Employer to provide health surveillance

(1)  An employer must provide health surveillance for each employee who is exposed to a hazardous substance if there is a risk to the health of the employee as a result of that exposure, and:

(a)  the hazardous substance is referred to in Column 1 of the Table to this clause, or

(b)  the exposure to any other hazardous substance is such that:

(i)  an identifiable disease or other effect on health may be related to the exposure, and

(ii)  there is a reasonable likelihood that the disease or other effect on health may occur under the particular conditions of work, and

(iii)  there is available an effective technique for detecting indications of the disease or other effect on health.

An employer is not required to provide health surveillance within the period of 12 months after commencement of this clause in the case of exposure of an employee to benzene, chromium (inorganic), creosote or pentachlorophenol (PCP).

(2)  An employer must provide biological monitoring for an employee if there is a reasonable likelihood that the employee could be exposed to levels of a hazardous substance that could be a risk to health and an effective procedure for the biological monitoring of those levels is available.

(3)  The employer must ensure that:

(a)  the health surveillance is performed under the supervision of an authorised medical practitioner, and

(b)  if there is a significant risk to the health of an employee from a hazardous substance referred to in the Table to this clause, the health surveillance includes the carrying out of the procedures specified in Column 2 of the Table in relation to that substance.

(4)  The selection of the authorised medical practitioner to supervise the surveillance must be undertaken by the employer after consultation with the relevant employees.

(5)  The health surveillance must be undertaken at the expense of the employer.

Maximum penalty: Level 4.

Table

Column 1	Column 2
Hazardous substance	Type of health surveillance
Acrylonitrile	Occupational and medical history Demographic data Records of personal exposure
Arsenic (inorganic)	Demographic, medical and occupational history Exposure record Physical examination with emphasis on the peripheral nervous system and skin Urinary inorganic arsenic
Asbestos	Occupational and demographic data Medical interview Records of personal exposure
Benzene	Occupational and medical history Demographic data Exposure record Baseline blood sample for haematological profile
Cadmium	Demographic, medical and occupational history Exposure record Physical examination with emphasis on the respiratory system Standard respiratory questionnaire to be completed Standard respiratory function tests including for example, FEV1, FVC and FEV1/FVC Urinary cadmium and β2-microglobulin
Chromium (inorganic)	Demographic, occupational and medical history Physical examination with emphasis on the respiratory system and skin Weekly skin inspection of hands and forearms by a competent person
Creosote	Demographic, occupational and medical history Health advice, including recognition of photosensitivity and skin changes Physical examination with emphasis on the neurological system and skin, noting any abnormal lesions and evidence of skin sensitisation Exposure record, including photosensitivity
Crystalline Silica	Completion of a standardised respiratory questionnaire Standard respiratory function test, such as FEV1, FVC and FEV1/FVC Chest X-ray, full size PA view
Isocyanates	Occupational and medical history Completion of a standardised respiratory questionnaire Physical examination of the respiratory system and skin Standard respiratory function test, such as FEV1, FVC and FEV1/FVC
Lead (inorganic)	Medical and occupational history Physical examination
Mercury (inorganic)	Demographic, medical and occupational history Physical examination with emphasis on dermatological, gastrointestinal, neurological and renal systems Urinary inorganic mercury
MOCA (4,4-Methylenebis (2-chloroaniline))	Urinary total MOCA Dipstick analysis of urine for haematuria Urine cytology
Organophosphate pesticides	Occupational and medical history Physical examination Baseline estimation of red cell and plasma cholinesterase activity levels by the Ellman or equivalent method Estimation of red cell and plasma cholinesterase activity towards the end of the working day
Pentachlorophenol (PCP)	Demographic, occupational and medical history Physical examination with emphasis on the skin, noting any abnormal lesions or effects of irritancy Urinary total pentachlorophenol Dipstick urinalysis for haematuria and proteinuria Records of personal exposure
Polycyclic aromatic hydrocarbons	Exposure record, including photochemical skin burns Demographic, medical and occupational history Physical examination
Thallium	Demographic, medical and occupational history Physical examination Urinary thallium
Vinyl Chloride	Occupational and demographic data Record of personal exposure

Note. See Part 7.6 for additional requirements for health surveillance and biological monitoring in the case of lead risk work.

166   Medical practitioner to notify results of health surveillance

(1)  As soon as practicable after an employee undergoes health surveillance in accordance with this Part, the medical practitioner must ensure that:

(a)  the employee is notified of the results of the surveillance, and given any necessary explanation of those results, and

(b)  the employer is notified of the general outcome of the surveillance, and advised on any necessary preventive or remedial action, and

(c)  WorkCover is notified of any adverse result detected in the surveillance that is consistent with exposure to a hazardous substance referred to in the Table to clause 165.

Maximum penalty: Level 3.

(2)  The employer must ensure that results of health surveillance obtained by the employer are kept confidential.

Maximum penalty (subclause (2)): Level 1.

167   Employer to keep register of hazardous substances

(1)  An employer must ensure that a register is kept and maintained for all hazardous substances used at the employer’s place of work.

(2)  The employer must ensure that the register includes:

(a)  a list of all hazardous substances used at the employer’s place of work, and

(b)  the relevant MSDS (if any) for each of those hazardous substances, and

(c)  any notations required under clause 168.

(3)  The employer must ensure that the register is readily accessible to all employees who may be exposed to a hazardous substance while at the employer’s place of work.

(4)  This clause does not apply to a hazardous substance that is supplied to a retailer or retail warehouse operator in a consumer package holding less than 30 kilograms or 30 litres of the hazardous substance, that is intended for retail sale and that is not intended to be opened on the premises of the retailer or operator.

Maximum penalty: Level 1.

Note. A principal contractor is required by clause 228 to keep a register of hazardous substances at a place of work at which construction work is carried out.

168   Employer to record risk assessments

(1)  An employer must record the results of a risk assessment relating to the use of a hazardous substance by:

(a)  making a notation in the register of hazardous substances kept under clause 167 if no specific measures are necessary to control the risks associated with exposure to the hazardous substance, or

(b)  preparing a report on the risk assessment if specific measures are necessary to control the risks associated with exposure to the hazardous substance.

Maximum penalty: Level 3.

(2)  The employer must ensure that any risk assessment report prepared in relation to a hazardous substance that is used at the employer’s place of work is readily accessible to any employee or other person working at the employer’s place of work who could be exposed to the hazardous substance.

Maximum penalty (subclause (2)): Level 1.

169   Employer to keep record of employees exposed to carcinogenic substances

An employer must keep a record in respect of each employee who has been or is likely to be exposed to a prohibited or notifiable carcinogenic substance (as defined in clause 158), including the following details:

(a)  the full name and date of birth of the employee,

(b)  the address of the employee while employed by the employer.

An employer is not required to keep such a record within the period of 12 months after commencement of this clause.

Maximum penalty: Level 3.

170   Employer to provide statement to employees exposed to carcinogenic substances

(1)  An employer must provide an employee who has been or is likely to have been exposed to a prohibited or notifiable carcinogenic substance (as defined in clause 158), on the termination of the employee’s employment, with a written statement that includes the following:

(a)  the name of the carcinogenic substance or substances involved,

(b)  the period of exposure or potential exposure,

(c)  details of how and where records of the exposure or potential exposure can be obtained,

(d)  a recommendation as to the advisability of having periodic health assessments and details of the types of health tests that are relevant in the circumstances.

Maximum penalty: Level 3.

(2)  Subclause (1) does not apply to an exposure or likely exposure that occurred before, or within 12 months after, the commencement of this clause.

171   Employer to retain certain material as record

(1)  An employer must retain the following, as a record, in a suitable form for the periods specified:

(a)  all risk assessment reports indicating a need for atmospheric monitoring or health surveillance, and records of the results of any atmospheric monitoring or health surveillance—for at least 30 years after the date of the last entry in them,

(b)  a record of all induction or other training required by clause 13 to be provided to employees who are likely to be exposed to a hazardous substance at the employer’s place of work—for at least 5 years after the date of creation of the record,

(c)  all records required to be kept under clause 169—for at least 30 years after the date of the last entry in them,

(d)  a copy of each notification to WorkCover by an employer of an intention to carry out work that involves the use of a carcinogenic substance or lead risk work, as required by Part 12.3—for at least 30 years after the date on which the notification is given,

(e)  all risk assessment reports indicating that atmospheric monitoring or health surveillance is not required—for at least 5 years after the date of the last entry in them,

(f)  all records required to be kept under clause 203 (4) (as to an employee ceasing to carry out lead risk work)—for at least 5 years after the date of the last entry in them.

(2)  If the employer ceases to carry on business in New South Wales, the employer must offer the records referred to in subclause (1) (a) to WorkCover.

Maximum penalty: Level 1.

172   Medical practitioner to retain records

(1)  A medical practitioner must ensure that medical records obtained as a result of health surveillance for an employee are retained as confidential records and, if the medical practitioner has examined or treated the employee for any other purpose, that the records are clearly identified as being for the purpose of health surveillance under this Regulation.

(2)  The medical practitioner must ensure that the informed consent of the employee is obtained, in writing, before any medical records that have been obtained as a result of health surveillance, and that identify the employee, are provided to any person who is not bound to observe principles of professional confidentiality.

(3)  If the medical practitioner ceases to practise in New South Wales, the medical practitioner must offer the records to WorkCover.

Maximum penalty: Level 1.

173   Employer to identify hazardous substances in enclosed systems

An employer must ensure that the identity of any hazardous substance contained in an enclosed system at the employer’s place of work (such as a pipe or piping system, or a process or reactor vessel) is notified to a person who could be exposed to the substance.

Maximum penalty: Level 1.

174   Employer to provide information to WorkCover and emergency services

(1)  An employer must ensure that all records on hazardous substances that are required to be kept by this Regulation are kept at the employer’s place of work and are made available on request to WorkCover and any emergency service.

Maximum penalty: Level 1.

(2)  In this clause:

emergency service includes any of the following:

(a)  the Ambulance Service of New South Wales,

(b)  New South Wales Fire Brigades,

(c)  the NSW Rural Fire Service,

(d)  the Police Service,

(e)  the Roads and Traffic Authority,

(f)  the State Emergency Service,

(g)  the Environment Protection Authority,

(h)  the New South Wales Volunteer Rescue Association Incorporated.