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.