Chapter 1 Preliminary

1   Name of Regulation

This Regulation is the Occupational Health and Safety Regulation 2001.

2   Commencement

This Regulation commences on the commencement of the Act.

Editorial note. Date of commencement: 1.9.2001—see Gazette No 129 of 24.8.2001, page 6186.

3   Definitions

(1)  In this Regulation:

ADG Code means the Australian Code for the Transport of Dangerous Goods by Road and Rail approved by the Ministerial Council for Road Transport and published by the Australian Government from time to time.

approved form means the form approved for the time being for the purposes of the provision in which the expression is used:

(a)  by WorkCover—in relation to a place of work that is not a mining workplace or a coal workplace, or

(b)  by the Department Head (Mining)—in relation to a place of work that is a mining workplace or a coal workplace.

authorised medical practitioner means a medical practitioner authorised by WorkCover, or authorised by another body or under a scheme approved by WorkCover, to perform health surveillance for the purposes of this Regulation.

building includes a structure, and includes part of a building or structure.

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

competent person for any task means a person who has acquired through training, qualification or experience, or a combination of them, the knowledge and skills to carry out that task.

construction work means any of the following:

(a)  building, including the construction (including the manufacturing of prefabricated elements of a building at the place of work concerned), alteration, renovation, repair, maintenance and demolition of all types of buildings,

(b)  civil engineering, including the construction, structural alteration, repair, maintenance and demolition of, for example, airports, docks, harbours, inland waterways, dams, river and avalanche and sea defence works, roads and highways, railways, bridges and tunnels, viaducts, and works related to the provision of services such as communications, drainage, sewerage, water and energy supplies,

(c)  excavation conducted for the purposes of building or civil engineering, including the excavation or filling of trenches, ditches, shafts, wells, tunnels and pier holes, and the use of caissons and cofferdams, but not excavation work at a coal workplace or mining workplace for the purposes of extracting minerals or quarry product.

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.

dangerous goods, except in Chapter 6A, has the same meaning as in the ADG Code.

Department Head (Mining) means the Director-General of the Department of Primary Industries.

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 NSW Police Force,

(e)  the State Emergency Service,

(f)  the New South Wales Volunteer Rescue Association Incorporated,

(g)  an accredited rescue unit within the meaning of the State Emergency and Rescue Management Act 1989.

employer includes self-employed person in Chapters 2, 4, 5, 6, 6A, 7 and 8.

former Act means the Occupational Health and Safety Act 1983.

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).

hazard means anything (including work practices or procedures) that has the potential to harm the health or safety of a person.

hazardous substance means a substance that:

(a)  is listed in the document entitled “List of Designated Hazardous Substances [NOHSC: 10005 (1999)]” published by the NOHS Commission, as in force from time to time, or

(b)  fits the criteria for a hazardous substance set out in the document entitled “Approved Criteria for Classifying Hazardous Substances [NOHSC: 1008 (1999)]” published by the NOHS Commission, as in force from time to time.

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

height of a building means the height measured from ground level to its highest part.

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

LEL (lower explosive limit) means the concentration of flammable gas or vapour in air below which the gas atmosphere is not explosive.

mine means a place of work that is a mine within the meaning of the Mine Health and Safety Act 2004.

NOHS Commission means the National Occupational Health and Safety Commission of the Commonwealth.

penalty levels—see subclause (2).

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

public place means a public road or any other place to which the public, whether on payment of a fee or otherwise, ordinarily has access.

record includes any form in which information is stored on a permanent basis or from which information may be reproduced.

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 List of Designated Hazardous Substances [NOHSC: 10005 (1999)] published by the NOHS Commission, as in force from time to time.

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 List of Designated Hazardous Substances [NOHSC: 10005 (1999)] published by the NOHS Commission, as in force from time to time.

substance means any natural or artificial entity, composite material, mixture or formulation, other than something (that is not a fluid or particle) that:

(a)  is formed during production to a specific shape or design, or to have a specific surface, and

(b)  has an end use that depends in whole or in part on its shape, design or surface, and

(c)  undergoes no change in chemical composition or physical state during its end use, except as an intrinsic aspect of that end use.

Note. 

In a number of publications relating to hazardous substances the things that are excluded from the definition of substance are called “articles”.

the Act means the Occupational Health and Safety Act 2000.

WorkCover means the WorkCover Authority constituted under the Workplace Injury Management and Workers Compensation Act 1998.

Note. Other relevant definitions are contained in the Act and the Interpretation Act 1987. They include the following:

coal workplace means a place of work to which the Coal Mine Health and Safety Act 2002 applies.

employee means an individual who works under a contract of employment or apprenticeship.

employer means a person who employs persons under contracts of employment or apprenticeship.

mining workplace means a place of work:

(a)  that is a mine within the meaning of the Mine Health and Safety Act 2004, or

(b)  at which activities under the Petroleum (Onshore) Act 1991 or the Petroleum (Submerged Lands) Act 1982 are carried out.

occupier of premises includes:

(a)  a person who, for the time being, has (or appears to have) the charge, management or control of the premises, or

(b)  a person who, for the time being, is in charge (or appears to be in charge) of any operation being conducted on the premises.

place of work means premises where persons work.

plant includes any machinery, equipment or appliance.

premises includes any place, and in particular includes:

(a)  any land, building or part of any building, or

(b)  any vehicle, vessel or aircraft, or

(c)  any installation on land, on the bed of any waters or floating on any waters, or

(d)  any tent or movable structure.

self-employed person means a person who works for gain or reward otherwise than under a contract of employment or apprenticeship, whether or not employing others.

work means work as an employee or as a self-employed person.

The Interpretation Act 1987 also provides that expressions defined for the purposes of this Regulation apply except in so far as the context or subject-matter otherwise indicates or requires.

(2)  The following levels of penalty apply for the purposes of determining the maximum penalty for an offence against a provision of this Regulation, and references in this Regulation to those levels are to be construed accordingly:

(a)  Level 1—20 penalty units,

(b)  Level 2—30 penalty units,

(c)  Level 3—100 penalty units,

(d)  Level 4—250 penalty units.

Note. At the time of making this Regulation, each penalty unit was $110—see section 17 of the Crimes (Sentencing Procedure) Act 1999.

(3)  In this Regulation, a reference to an Australian Standard is a reference to an Australian Standard (AS) or an Australian/New Zealand Standard (AS/NZS) published by Standards Australia in the year referred to in the citation of the Standard, as in force from time to time.

(4)  If WorkCover has indicated, by notice in writing, that it is satisfied that another standard provides an equivalent standard of safety to an Australian Standard or an Australian/New Zealand Standard, that other standard may be applied instead for the purposes of the relevant provision of this Regulation, but only to the extent that it applies to a place of work that is not a mining workplace or a coal workplace.

(4A)  If the Department Head (Mining) has indicated, by notice in writing, that he or she is satisfied that another standard provides an equivalent standard of safety to an Australian Standard or an Australian/New Zealand Standard, that other standard may be applied instead for the purposes of the relevant provision of this Regulation, but only to the extent that it applies to a place of work that is a mining workplace or a coal workplace.

(5)  If there is an inconsistency between a provision of this Regulation and a provision of an Australian Standard or another standard referred to in this Regulation, the provision of this Regulation prevails.

4   Application of Regulation

(1)  This Regulation applies to all places of work (including all mining workplaces and coal workplaces), except as provided by this Regulation.

(2)  Chapter 5 applies to plant affecting public safety, whether or not the plant is at a place of work or for use at work.

(3), (4)  (Repealed)

Note. Part 2 of the Act imposes general obligations on employers and other persons and creates offences for breaches of those obligations. This Regulation imposes additional obligations on those persons and on others. Section 29 of the Act provides that compliance with the regulations is not in itself a defence in any proceedings for an offence against Part 2 of the Act (subject to any regulations that modify Part 2), but also provides that a relevant contravention of the regulations is admissible in evidence in any proceedings for an offence against Part 2.

This Regulation applies to all mining workplaces and coal workplaces, except where specific provisions are expressed to not apply or to apply with modifications. In accordance with section 133 of the Act, clause 358 provides that references in certain provisions of the Act to WorkCover, in connection with the application of the provisions to a mining workplace or a coal workplace, are taken to be references to the Department of Primary Industries, the Director-General of that Department (called the “Department Head (Mining)” in this Regulation or certain inspectors appointed in connection with mining workplaces or coal workplaces.

5   Meaning of “control” of risks

(1)  For the purposes of this Regulation, an obligation to control a risk to health or safety (in any case in which the elimination of the risk is not reasonably practicable) is an obligation to take the following measures (in the order specified) to minimise the risk to the lowest level reasonably practicable:

(a)  firstly, substituting the hazard giving rise to the risk with a hazard that gives rise to a lesser risk,

(b)  secondly, isolating the hazard from the person put at risk,

(c)  thirdly, minimising the risk by engineering means,

(d)  fourthly, minimising the risk by administrative means (for example, by adopting safe working practices or providing appropriate training, instruction or information),

(e)  fifthly, using personal protective equipment.

(2)  A combination of the above measures is required to be taken to minimise the risk to the lowest level reasonably practicable if no single measure is sufficient for that purpose.

(3)  Any obligation in this Regulation to control a risk by taking specific risk control measures, or by taking specific risk control measures in a particular order, is in addition to the obligations referred to in subclauses (1) and (2).

Note. For an example in which the above clause applies, see clause 11 (general obligation of employers and self-employed persons to eliminate risks or, if not reasonably practicable to do so, to control the risk).

6   Application of provisions providing for alternative duties if primary duty not reasonably practicable

(1)  This clause applies to any provision of this Regulation that imposes a duty, such as a duty to eliminate a risk, on a person (the primary duty), but provides that if it is not reasonably practicable to comply with that duty, the person is required to comply with another duty, such as a duty to control the risk (the alternative duty).

Note. See duties to eliminate risks or, if that is not reasonably practicable, to control the risk (clause 11). See also particular alternative control measures in clause 5.

(2)  For the purposes of this Regulation, the primary duty of a person is not replaced by the alternative duty unless the person can establish that it is not reasonably practicable to comply with the primary duty.

Note. Section 28 of the Act provides a defence if the person can establish that it is not reasonably practicable to comply with the alternative duty.

7   Application of provisions of Part 2 of the Act (relating to general duties of certain persons) to persons having duties under this Regulation

(1)  Section 10 (3) and (4) of the Act apply to the duties under this Regulation of a person who has control of premises used by people as a place of work.

Note. The effect of subclause (1) is to provide that the duties under this Regulation of a person who has control of premises used by people as a place of work:

(a)  do not apply to premises used only by employees of the controller, and (For the duties of an employer who is also the controller of the premises, see section 8 of the Act and the provisions of this Regulation imposing duties on employers.)

(b)  do not apply to premises occupied only as a private dwelling, and

(c)  end to the means of access to or exit from a place of work, and

(d)  apply only if the premises are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the controller.

If a controller of premises:

(a)  has only limited control of the premises, any duty under this Regulation applies only to the matters over which the controller has control, or

(b)  is a controller by virtue of having, under a contract or lease, an obligation to maintain or repair the premises, any duty under this Regulation applies only to the matters covered by the contract or lease.

(2)  Section 11 (2) and (3) of the Act apply to the duties under this Regulation of designers, manufacturers and suppliers of plant and substances for use by people at work (other than plant affecting public safety).

Note. The principal effect of subclause (2) is to provide that the duties under this Regulation of designers, manufacturers and suppliers of plant and substances for use by people at work (other than plant affecting public safety):

(a)  apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and

(b)  apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by people at work.

8   Responsibilities held by more than one responsible person

If more than one person has a responsibility with respect to a particular occupational health and safety matter under this Regulation:

(a)  each such person retains responsibility for the matter, and

(b)  the responsibility is to be discharged in a co-ordinated manner.

Chapter 2 Places of work—risk management and other matters

Note. This Chapter imposes obligations on an employer to identify foreseeable hazards that may arise from the conduct of the employer’s undertaking, to assess the risks of those hazards and to eliminate the risks or, if not reasonably practicable to do so, to control the risks.

Division 2 of Part 2 of the Act requires an employer to consult with employees to enable them to contribute to the making of decisions affecting their health, safety and welfare at work. Among other things, the Division requires such consultation when risks to health and safety arising from work are assessed and when decisions are made about the measures to be taken to eliminate or control risks. (See Chapter 3 of this Regulation for further provisions regarding the machinery of consultation.)

This Chapter also applies to self-employed persons (see definition of employer in clause 3).

Additional requirements for risk management in relation to specified hazards at mining workplaces or coal workplaces are provided in the legislation applying to mining workplaces and coal workplaces (that is, the Mine Health and Safety Act 2004 and the Coal Mine Health and Safety Act 2002, respectively).

9   Employer to identify hazards

(1)  An employer must take reasonable care to identify any foreseeable hazard that may arise from the conduct of the employer’s undertaking and that has the potential to harm the health or safety of:

(a)  any employee of the employer, or

(b)  any other person legally at the employer’s place of work,

      or both.

(2)  In particular (and without limiting the generality of subclause (1)), the employer must take reasonable care to identify hazards arising from:

(a)  the work premises, and

(b)  work practices, work systems and shift working arrangements (including hazardous processes, psychological hazards and fatigue related hazards), and

(c)  plant (including the transport, installation, erection, commissioning, use, repair, maintenance, dismantling, storage or disposal of plant), and

(c1)  dangerous goods (including the storage or handling of dangerous goods), and

(d)  hazardous substances (including the production, handling, use, storage, transport or disposal of hazardous substances), and

(e)  the presence of asbestos installed in a place of work, and

(f)  manual handling (including the potential for occupational overuse injuries), and

(g)  the layout and condition of a place of work (including lighting conditions and workstation design), and

(h)  biological organisms, products or substances, and

(i)  the physical working environment (including the potential for any one or more of the following:

(i)  electrocution,

(ii)  drowning,

(iii)  fire or explosion,

(iv)  people slipping, tripping or falling,

(v)  contact with moving or stationary objects,

(vi)  exposure to noise, heat, cold, vibration, radiation, static electricity or a contaminated atmosphere,

(vii)  the presence of a confined space), and

(j)  the potential for workplace violence.

(3)  An employer must ensure that effective procedures are in place, and are implemented, to identify hazards:

(a)  immediately prior to using premises for the first time as a place of work, and

(b)  before and during the installation, erection, commissioning or alteration of plant in a place of work, and

(c)  before changes to work practices and systems of work are introduced, and

(d)  before hazardous substances are introduced into a place of work, and

(e)  while work is being carried out, and

(f)  when new or additional information from an authoritative source relevant to the health or safety of the employees of the employer becomes available.

(4), (5)  (Repealed)

Maximum penalty: Level 4.

Note. Other provisions of this Regulation (for example, in Chapters 4 and 5) impose specific hazard identification requirements on particular persons such as controllers of places of work, designers and manufacturers of plant and so on.

10   Employer to assess risks

(1)  An employer must assess the risk of harm to the health or safety of the following persons arising from any hazard identified in accordance with this Chapter:

(a)  any employee of the employer, or

(b)  any other person legally at the employer’s place of work,

      or both.

Note. Also see clauses 78, 168 and 207 which require employers to keep and maintain risk assessment reports in relation to confined spaces, record results of risk assessments in relation to hazardous substances and prepare written risk assessments in respect of electrical work on electrical installations.

(2), (3)  (Repealed)

Maximum penalty: Level 4.

Note. Other provisions of this Regulation (for example, in Chapters 4 and 5) impose more specific risk assessment requirements on particular persons such as controllers of places of work, designers and manufacturers of plant and so on.

11   Employer to eliminate or control risks

(1)  Subject to subclause (2), an employer must eliminate any reasonably foreseeable risk to the health or safety of:

(a)  any employee of the employer, or

(b)  any other person legally at the employer’s place of work,

      or both, that arises from the conduct of the employer’s undertaking.

(2)  If it is not reasonably practicable to eliminate the risk, the employer must control the risk.

(3)  An employer must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health and safety are properly used and maintained.

(4), (5)  (Repealed)

Maximum penalty: Level 4.

Note. An employer must also comply with any specific risk control measures required by this Regulation. In particular see Parts 4.3, 4.4, 5.4 and 6.4 and Chapters 7 and 8. The Regulation (for example, in Part 4.2 and in Chapter 5) also imposes risk control requirements on other persons, such as controllers of places of work, designers and manufacturers of plant and so on. Clause 5 sets out the order of control measures to be taken if it is not reasonably practicable to eliminate a risk.

12   Employer to review risk assessments and control measures

An employer must review a risk assessment, and any measures adopted to control the risk, whenever:

(a)  there is evidence that the risk assessment is no longer valid, or

(b)  injury or illness results from exposure to a hazard to which the risk assessment relates, or

(c)  a significant change is proposed in the place of work or in work practices or procedures to which the risk assessment relates.

Maximum penalty: Level 4.

13   Employer to provide instruction, training and information

(1)  An employer must ensure that each new employee receives induction training that covers the following:

(a)  arrangements at the place of work for the management of occupational health and safety, including arrangements for reporting hazards to management,

(b)  health and safety procedures at the place of work relevant to the employee, including the use and maintenance of risk control measures,

(c)  how employees can access any health and safety information that the employer is required by this Regulation to make available to employees,

(d)  any other matter that this Regulation specifies should be the subject of induction training and that is relevant to the place of work concerned having regard to the competence, experience and age of the new employee.

Maximum penalty: Level 3.

(2)  An employer must ensure that any person who may be exposed to a risk to health and safety at the employer’s place of work:

(a)  is informed of the risk, and

(b)  is provided with any information, instruction and training necessary to ensure the person’s health and safety.

The information, instruction and training (and the timing of its provision) must be commensurate with the risk to health and safety concerned.

Maximum penalty: Level 3.

(3)  An employer must provide persons who have responsibilities with respect to the following under this Regulation with all available information necessary to enable them to fulfil those responsibilities:

(a)  identifying hazards,

(b)  assessing risks arising from those hazards,

(c)  eliminating or controlling those risks,

(d)  monitoring or reviewing risk control measures,

(e)  providing information.

Maximum penalty: Level 4.

(4)  Nothing in this clause requires an employer to train or instruct members of the public in the use of lifts or amusement devices.

Note. Specific requirements as to the provision of information relating to plant and hazardous substances are set out in Chapters 5 and 6.

See Part 8.2 in relation to occupational health and safety induction training for construction work.

Clause 171 requires employers to retain records of induction or other training provided to employees who are likely to be exposed to hazardous substances.

14   Employer to provide supervision

(1)  An employer must ensure that the employer’s employees are provided with reasonable supervision necessary to ensure the health and safety of the employees and any other persons at the employer’s place of work.

(2)  The employer must ensure that the supervision is undertaken by a competent person.

(3)  In determining the nature and extent of necessary supervision, the employer must have regard to the competence, experience and age of each employee.

Maximum penalty: Level 3.

Note. Specific requirements for supervision in relation to excavation work are imposed on employers by Chapter 8.

15   Provision by an employer of personal protective equipment

(1)  If measures taken by an employer under clause 11 (2) to control a risk include the use of personal protective equipment, the employer must provide each person at risk with personal protective equipment and ensure that:

(a)  the equipment provided is appropriate for the person and controls the risk for that person, and

(b)  the person is informed of any limitations of the equipment, and

(c)  the person is provided with the instruction and training necessary to ensure that the equipment controls the risk for the person, and

(d)  the equipment is properly maintained and is repaired or replaced as frequently as is necessary to control the risk for the person, and

(e)  the equipment is provided in a clean and hygienic condition to the person, and

(f)  the equipment is stored in a place provided by the employer for the purpose, and

(g)  areas in places of work where personal protective equipment must be used are clearly identified.

Maximum penalty: Level 3.

(2)  In this clause, personal protective equipment includes any substance used to protect health (such as a sun protection cream) and any self-rescue respiratory device for use by a person working in the underground parts of a mining workplace or a coal workplace.

Note. Reference should also be made to any relevant Australian Standards relating to the provision and use of personal protective equipment.

16   Employer to obtain information

(1)  An employer must obtain such information as is necessary to enable the employer to fulfil the employer’s responsibilities under this Regulation with respect to the following:

(a)  identifying hazards,

(b)  assessing risks arising from those hazards,

(c)  eliminating or controlling those risks,

(d)  providing information.

Maximum penalty: Level 4.

(2)  For the purposes of subclause (1), the information is to be reasonably available information from an authoritative source.

17   Employer to provide for emergencies

(1)  An employer must ensure that, in the event of an emergency at any place of work at which the employer’s undertaking is conducted, arrangements have been made for:

(a)  the safe and rapid evacuation of persons from the place of work, and

(b)  emergency communications, and

(c)  appropriate medical treatment of injured persons.

If the employer does not have control, or has only limited control, of the place of work, the duty under this subclause applies only to the matters over which the employer has control.

(2)  In making arrangements for the purposes of this clause, an employer must take the following into account:

(a)  the nature of the hazards at the place of work,

(b)  the size and location of the place of work,

(c)  the number, mobility and capability of persons at the place of work.

(3)  If employees work at a fixed place of work, the employer must ensure that:

(a)  adequate arrangements are made for the shutting down and evacuation of the place of work in the event of an emergency, and

(b)  details of the arrangements for any such evacuation are kept on display in an appropriate location or locations at the place of work, and

(c)  one or more persons are appointed and appropriately trained to oversee any such evacuation and, if appropriate, in the use of on-site fire fighting equipment.

Maximum penalty: Level 4.

Note. Also see clause 13 (2) (b) which requires an employer to provide any person who may be exposed to a risk to health and safety at the employer’s place of work with any information, instruction and training necessary to ensure the person’s health and safety.

18   Employer to provide amenities

(1)  An employer must ensure that appropriate amenities are available for all of the employer’s employees while they are at work.

(2)  The appropriateness of amenities is to be determined having regard to all of the circumstances of the case, including the following:

(a)  the nature of the work undertaken at the place of work,

(b)  the size and location of the place of work,

(c)  the number of men and of women at the place of work.

Note. Also see Part 4 of the Act (Industry codes of practice). Failure by an employer to observe any industry code of practice relevant to the provision of amenities may be used in evidence in any prosecution under this clause or clause 19. Industry codes of practice are prepared by WorkCover (in relation to places of work that are not mining workplaces or coal workplaces) or the Department Head (Mining) (in relation to places of work that are mining workplaces or coal workplaces) and approved by the Minister.

(3)  In this clause, amenities means facilities provided for the welfare or personal hygiene needs of persons and includes toilets, rest rooms, shelter sheds, seating, dining rooms, change rooms, provision of drinking water, lockers and washing facilities.

Maximum penalty: Level 3.

19   Maintenance of amenities and accommodation

(1)  An employer must ensure that:

(a)  any amenities provided in accordance with clause 18, and

(b)  any accommodation provided by the employer for the welfare of employees because of the circumstances of their work,

      are maintained in a safe and healthy condition.

(2)  If the employer does not have control, or has only limited control, of the amenities or accommodation, the duty under subclause (1) applies only to the matters over which the employer has control.

Maximum penalty: Level 3.

20   Employer to provide first aid facilities and personnel

(1)  In this clause:

construction site means the site of construction work.

trained first aid personnel means:

(a)  a person who holds a current first aid certificate issued after successful completion of a WorkCover approved first aid course, or

(b)  a person who holds a current occupational first aid certificate issued after successful completion of a WorkCover approved occupational first aid course, or

(c)  a level 3 or greater New South Wales ambulance officer, or

(d)  a registered nurse, or

(e)  a medical practitioner.

(2)  An employer must provide at each place of work:

(a)  first aid facilities that are adequate for the immediate treatment of injuries and illnesses that may arise at the place of work, and

(b)  if more than 25 persons are employed at a place of work—trained first aid personnel.

(3)  An employer must have regard to the location of the place of work, the number of employees at a particular location and the type of work being undertaken in determining the nature, number and location of the first aid facilities and the number of trained first aid personnel that are required. Subclauses (4)–(7) prescribe the minimum facilities and personnel that are required at various sites or places of work.

Note. See clause 194 as to additional first aid requirements in relation to the treatment of cyanide poisoning.

(4)  An employer must ensure that the first aid facilities at the following sites or places include a first aid kit of the type specified opposite the description of the site or place:

Construction sites at which 25 or more persons work or other places of work at which 100 or more persons work	First Aid Kit A
Construction sites at which fewer than 25 persons work or other places of work at which fewer than 100 and more than 10 persons work	First Aid Kit B
Places of work (other than construction sites) at which 10 or fewer persons work	First Aid Kit C

(5)  In subclause (4), First Aid Kit A, First Aid Kit B and First Aid Kit C mean a first aid kit containing the following items in the quantity (if any) specified in columns A, B and C, respectively:

	A	B	C
Adhesive plastic dressing strips, sterile, packets of 50	2	1	1
Adhesive dressing tape, 2.5 cm 5 cm	1	1	—
Bags, plastic, for amputated parts:
Small	2	1	1
Medium	2	1	1
Large	2	1	—
Dressings, non-adherent, sterile, 7.5 cm 7.5 cm	5	2	—
Eye pads, sterile	5	2	—
Gauze bandages:
5 cm	3	1	1
10 cm	3	1	—
Gloves, disposable, single	10	4	2
Rescue blanket, silver space	1	1	—
Safety pins, packets	1	1	1
Scissors, blunt/short nosed, minimum length 12.5 cm	1	1	—
Splinter forceps	1	1	—
Sterile eyewash solution, 10 ml single use ampules or sachets	12	6	—
Swabs, prepacked, antiseptic, packs of 10	1	1	—
Triangular bandages, minimum 90 cm	8	4	1
Wound dressings, sterile, non-medicated, large	10	3	1
First-aid pamphlet as approved by WorkCover	1	1	1

(6)  An employer must ensure that the first aid kit at any place of work at which more than 25 persons are employed is under the control of trained first aid personnel.

(7)  An employer must ensure that the first aid facilities at a place of work at which more than 200 persons work, or at a construction site at which more than 100 persons work, include a first aid room that:

(a)  is under the control of a person described in paragraph (b), (c), (d) or (e) of the definition of trained first aid personnel in subclause (1), and

(b)  is located so that it is readily accessible during working hours to persons working at the place of work or site, and

(c)  is situated at a convenient distance from:

(i)  toilets, and

(ii)  a sink or a wash basin equipped with suitable drainage and a supply of clean hot and cold running water, and

(iii)  a means of boiling water, and

(d)  has an access door that is wide enough to allow the entry and exit of a patient on a stretcher, and

(e)  is well lit and well ventilated, and

(f)  contains the following:

(i)  a work bench or a dressing trolley,

(ii)  a cupboard for storage,

(iii)  a suitable container fitted with a disposable bag or liner for soiled dressings,

(iv)  a suitable container for the safe disposal of needles or other sharp implements,

(v)  an electric power point,

(vi)  a couch with blankets and pillows,

(vii)  a telephone,

(viii)  a stretcher, lifting frame or similar device for transporting patients,

(ix)  a sufficient supply of soap and disposable towels,

(x)  a copy of the current edition of an occupational first aid handbook approved by WorkCover,

(xi)  the items specified in subclause (5) in relation to First Aid Kit A, in quantities not less than those so specified,

(xii)  a portable first aid kit for use outside the first aid room, being a kit that contains the items specified in subclause (5) in relation to First Aid Kit B, in quantities not less than those so specified,

(xiii)  such special appliances, requisites and equipment for first aid as are otherwise required by law or as are necessary or appropriate having regard to the nature of the work undertaken at the place of work or site, and

(g)  does not contain anything except equipment, requisites or appliances for first aid or occupational health purposes, and

(h)  is not used for any purpose other than for first aid or occupational health purposes.

Maximum penalty: Level 4.

Note. A register of injuries is required to be kept under the Workplace Injury Management and Workers Compensation Act 1998.

Chapter 3 Workplace consultation

Note. This Chapter makes provision with respect to the duty of the employer to consult employees under Division 2 of Part 2 of the Act. The relevant provisions of the Act are as follows:

(a)  Section 13—provides that the employer must consult with the employees of the employer to enable those employees to contribute to the making of decisions affecting their health, safety and welfare at work.

(b)  Section 14—defines the nature of consultation as the sharing of relevant information, the opportunity for employees to express their views and the taking into account of those views by the employer. (Relevant information to be shared would include matters that affect or may affect the health, safety or welfare at work of employees covered by particular consultative arrangements.)

(c)  Section 15—sets out when consultation is to be undertaken (including when assessments are made of risks to health and safety, when decisions are made on measures to control or eliminate those risks, when changes are made to premises, systems or methods of work, or to plant or substances used for work, that may affect health, safety or welfare at work and when decisions are made about the consultation arrangements).

(d)  Section 16—provides that consultation is to be undertaken by means of an OHS committee, an OHS representative or other agreed arrangements, or a combination of those means.

(e)  Section 17—requires the establishment of an OHS committee if the employer employs 20 or more persons and a majority of the employees so requests or WorkCover so directs, and requires an OHS representative to be elected if at least one of the employees so requests or WorkCover so directs. A site check inspector for a mining workplace must be a member of any OHS committee for that place of work. A site check inspector and the electrical check inspector for a coal workplace must be members of any OHS Committee for that place of work. Other consultative arrangements require agreement between the employer and employees.

(f)  Section 18—sets out the functions and powers of OHS committees and OHS representatives.

A reference to WorkCover in certain provisions of the Act, in connection with the application of the provisions to a mining workplace or a coal workplace, is taken to be a reference to the Department Head (Mining), by virtue of clause 358 (3).

21   Definitions

In this Chapter:

OHS consultation arrangements means the requirements imposed by sections 16 and 17 of the Act with respect to the establishment of an OHS committee, the election of an OHS representative or the establishment of other agreed consultation arrangements.

workgroup means the group of employees that is represented by a particular OHS committee or OHS representative.

22   Setting up consultation arrangements (section 15 (f) of the Act)

(1)  The employer must, in accordance with section 15 (f) of the Act, consult on the procedures for consultation, that is, whether consultation is to be undertaken by means of an OHS committee, an OHS representative or other agreed arrangements, or a combination of those means.

(2)  If the proposed OHS consultation arrangements provide for an OHS committee or OHS representative, the employer must consult on the following:

(a)  the composition of the relevant workgroups under the arrangements,

(b)  the relationship between an OHS committee and an OHS representative if both are to be provided under the arrangements,

(c)  the number of employee representatives and of employer representatives on any OHS committee,

(d)  the arrangements for electing any OHS representative or employee representatives on any OHS committee (including arrangements for dealing with absences, the removal of members or other casual vacancies),

(e)  the arrangements for meetings of any OHS committee and meetings between the employer and any OHS representative (including the frequency of ordinary meetings and the calling of special meetings),

(f)  the procedures for any such meeting (including whether meetings may be held by electronic communication or the circulation of papers),

(g)  the arrangements for communications between the persons elected by the employees in a workgroup and those employees (including procedures for enabling the employees in the workgroup to raise issues and make complaints about occupational health and safety matters),

(h)  the arrangements for the training of members of any OHS committee or any OHS representative,

(i)  the relationship between representatives of the workgroup of an employer and the representatives of the workgroup of another employer.

(3)  If the proposed OHS consultation arrangements provide for other agreed arrangements, the employer must consult on arrangements with respect to meetings with the employer, communication with the employees, the functions and training of the persons involved, the procedures for resolving occupational health and safety issues, the role of any relevant industrial organisation of employees and other relevant matters.

(4)  OHS consultation arrangements are to be reviewed as occasion requires. Consultation on new arrangements is to be undertaken if a majority of the employees in the workgroup so request or if there has been a significant change in the composition of the workgroup that is not reflected in the existing arrangements.

(5)  A Federal or State industrial organisation of employees may represent, for the purposes of consultation on OHS consultative arrangements, any of those employees who request the organisation to represent them.

23   Workgroups represented by OHS committees or OHS representatives

(1)  The relevant workgroups to be represented by OHS committees or OHS representatives are to be determined in a manner that ensures that they are able to represent effectively the employees in each workgroup and, in particular, in a manner that enables them to undertake regular meaningful communication with the employees in each workgroup.

(2)  The diversity of the employees and their work must be taken into account when determining the relevant workgroups. In particular, the following must be taken into account:

(a)  the hours of work of employees (including the representation of employees on shift work),

(b)  the pattern of work of employees (including the representation of part-time, seasonal or short term employees),

(c)  the number and grouping of employees,

(d)  the geographic location where the employees work (including the representation of employees in dispersed locations such as those in the transport industry or working from home),

(e)  the different types of work performed by employees and the different levels of responsibility,

(f)  the attributes of employees (including gender, ethnicity, age and special needs),

(g)  the nature of the occupational health and safety hazards at the place of work,

(h)  the interaction of the employees with the employees of other employers.

(3)  It is not necessary to establish separate workgroups for different categories of employees, places of work or other matters referred to above.

(4)  OHS consultation arrangements that include both an OHS committee and an OHS representative for a workgroup must ensure that the committee is the principal mechanism for consultation for that workgroup.

24   Minimum requirements for OHS committees

The procedures with respect to the establishment and composition of OHS committees must comply with the following requirements:

(a)  the employee representatives on a committee must be elected by and from the employees in the relevant workgroup the committee represents,

(b)  an election for those representatives must be conducted in a manner that is consistent with recognised democratic principles,

(c)  an election may be conducted by a Federal or State industrial organisation of employees if a majority of the employees concerned request the organisation to conduct the election,

(d)  the number of employer representatives on a committee must not exceed the number of elected employee representatives on the committee,

(e)  the chairperson of a committee is not to be an employer representative,

(f)  a person who is elected as an OHS representative for a workgroup may be an employee representative on a committee that relates to the workgroup without further election if it is provided for in the OHS consultation arrangements,

(g)  a person who is elected as an employee representative on a committee may be an employee representative on another related committee without further election if it is provided for in the OHS consultation arrangements,

(h)  an employee representative on a committee is to be elected for a maximum period of 2 years (but the term of office may be shortened in connection with a change in OHS consultation arrangements),

(i)  a person elected as an employee representative on a committee is eligible for re-election,

(j)  a person is not eligible to be an employer representative on a committee unless the person has authority to act on behalf of the employer in occupational health and safety matters at the place of work.

Note. Section 17 (6) of the Act requires that, in the case of a coal workplace, a site check inspector and the electrical check inspector for that coal workplace must be members of any OHS committee for that place of work. Section 17 (7) of the Act requires that, in the case of a mining workplace, a site check inspector for the mining workplace must be a member of any OHS committee for that place of work. The election of site check inspectors for mining workplaces or coal workplaces is determined by the Mine Health and Safety Act 2004 or the Coal Mine Health and Safety Act 2002, respectively.

25   Minimum requirements for election of OHS representatives

The procedures with respect to the election of OHS representatives (as required by section 16 (b) of the Act) must comply with the following requirements:

(a)  the OHS representative must be elected by and from the employees in the relevant workgroup the person represents,

(b)  the election must be conducted in a manner that is consistent with recognised democratic principles,

(c)  the election may be conducted by a Federal or State industrial organisation of employees if a majority of the employees concerned request the organisation to conduct the election,

(d)  an OHS representative is to be elected for a maximum period of 2 years (but the term of office may be shortened in connection with a change in OHS consultation arrangements),

(e)  a person elected as an OHS representative is eligible for re-election.

26   Other agreed arrangements (sections 16 (c) and 17 (3) of the Act)

(1)  This clause applies to other agreed arrangements for consultation referred to in section 17 (3) of the Act.

(2)  The functions of persons under other agreed arrangements are those that are derived from the agreement.

(3)  Other agreed arrangements may comprise arrangements negotiated at an industry level. Any such arrangements may be used by a particular employer in the industry if the arrangements are agreed to by a majority of the employees and, in their application to that employer, comply with the requirements for consultation of the Act and this Regulation.

Note. Section 17 (3) of the Act provides that a Federal or State industrial organisation of employees may, on request, represent employees for the purposes of consultation on occupational health, safety and welfare under other agreed arrangements.

27   Related obligations of employer with respect to duty to consult

(1)  An employer has the following obligations in connection with OHS consultation arrangements of the employer:

(a)  to record those arrangements,

(b)  to publicise those arrangements among existing and new employees to whom they relate,

(c)  to provide members of OHS committees or OHS representatives with reasonable access to the employees they represent during working hours for the purposes of communication,

(d)  to provide reasonable facilities, and access during working hours to the workplace, for the purposes of OHS consultation arrangements (including for the purposes of conducting or holding elections, meetings and inspections),

(e)  to ensure that employer representatives on an OHS committee participate in the work of the committee on a regular basis,

(f)  to ensure that employees participating in consultation (and in training for consultation) in accordance with OHS consultation arrangements are paid as if they were engaged in the duties of their employment (whether they participate as representatives of employees or of the employer),

(g)  to pay the costs reasonably and necessarily incurred by employees in connection with their participation in that consultation or training,

(h)  to facilitate the OHS consultation arrangements of another employer where employees of that other employer are working at the employer’s place of work.

(2)  An employer who fails to comply with an obligation under this clause is guilty of an offence.

Maximum penalty: Level 3.

(3)  This clause does not affect the duty of an employer to consult under section 13 of the Act and the maximum penalty provided for contravening that section.

28   Employees to disclose certain matters

(1)  An employee must take reasonable steps to prevent risks to health and safety at work by notifying the employee’s employer or supervisor of any matter that, to the knowledge of the employee, may affect the capacity of the employer to comply with the requirements of this Regulation.

Maximum penalty: Level 2.

(2)  An employee may discharge the obligation under subclause (1) by notifying the matter in accordance with OHS consultation arrangements to the relevant OHS representative or member of the relevant OHS committee.

Note. For other obligations of employees, or that may relate to employees, see the following sections of the Act:

(a)  Section 20 (1)—requires an employee to take reasonable care for the health and safety of people who are at the employer’s place of work and who may be affected by the employee’s acts or omissions at work.

(b)  Section 20 (2)—requires an employee to co-operate with the employer or other persons so far as is necessary to enable compliance with OHS duties of the employer or other person.

(c)  Section 21—prohibits a person interfering with or misusing anything provided in the interests of occupational health, safety and welfare.

(d)  Section 23—prohibits an employer dismissing or victimising an employee because of an OHS-related complaint, membership of an OHS committee or election as an OHS representative or the exercise of any other functions under the consultative arrangements made by the Act.

(e)  Section 25—prohibits a person, without reasonable excuse, deliberately creating a risk (or appearance of a risk) to health or safety of people at work with the intention of causing a disruption of work.

29   Procedure for resolving matter that may be risk to health and safety

(1)  This clause applies to the function of an OHS committee or an OHS representative under section 18 (c) of the Act to attempt to resolve a matter that may be a risk to health and safety at the place of work but, if unable to do so, to request an investigation by an inspector to resolve the matter.

(2)  For the purpose of resolving the matter:

(a)  the applicable OHS consultative arrangements are to be used, and

(b)  the matter must be formally referred to the employer, and

(c)  the employer is to consider the matter and respond in a timely manner.

(3)  If the matter is not resolved after the employer has been given a reasonable opportunity to consider and respond to the matter, the OHS committee or OHS representative may request an investigation of the matter by an inspector.

(4)  Such a request by an OHS committee is to be made through the chairperson of the committee. The committee may make arrangements for the making of such requests by the chairperson without a formal meeting of the committee being convened to authorise the making of each particular request.

(5)  This clause does not limit any other power with respect to the inspection of places of work or of disputes arising at places of work.

30   Additional functions of OHS committees and OHS representatives (section 18 (d) of the Act)

(1)  An OHS committee and an OHS representative have the following additional functions:

(a)  to make a request to accompany an inspector as an observer on an inspection under section 69 (b) of the Act that affects the workgroup that the committee or representative represents,

(b)  to be an observer during any formal report by an inspector to the employer in connection with any occupational health and safety matter concerning the workgroup that the committee or representative represents,

(c)  to accompany an employee of the workgroup that the committee or representative represents, at the request of the employee, during any interview by the employer on any occupational health and safety issue,

(d)  to be an observer during any formal in-house investigation of an incident at the relevant place of work that is required to be notified to WorkCover, or the Department Head (Mining), under Division 4 of Part 5 of the Act,

(e)  to assist in the development of arrangements for recording workplace hazards and accidents to promote improved workplace health and safety,

(f)  to make recommendations on the training of members of OHS committees and of OHS representatives,

(g)  to make recommendations on the training of employees in relation to occupational health and safety.

(2)  An observer under subclause (1) (a), (b) or (d) must be an employee member of the OHS committee or the OHS representative and only one person may act as such an observer at any particular time.

Note. Section 18 of the Act provides that an OHS committee or OHS representative has the following functions:

(a)  to keep under review the measures taken to ensure the health, safety and welfare of persons at the place of work,

(b)  to investigate any matter that may be a risk to health and safety at the place of work,

(c)  to attempt to resolve the matter but, if unable to do so, to request an investigation by an inspector for that purpose,

(d)  the additional functions prescribed above.

Functions under the Act and this Regulation includes “powers” and “duties”.

Section 144 of the Mine Health and Safety Act 2004 sets out the functions of site check inspectors for a mining workplace. Section 164 of the Coal Mine Health and Safety Act 2002 sets out the functions of site check inspectors for a coal workplace.

31   Training to be undertaken by members of OHS committees and OHS representatives

(1)  An employer must ensure that each member of an OHS committee and each OHS representative undertakes a course of training in accordance with this clause.

Maximum penalty: Level 2.

(2)  The course of training must be undertaken as soon as practicable after the person is first appointed as a member of the committee or first elected as a representative (unless the person has previously undertaken an approved course of training).

(3)  The course of training must be provided by:

(a)  a trainer who is accredited by WorkCover to provide that course of training, or

(b)  a registered training organisation (within the meaning of the Vocational Education and Training Act 2005) whose registration extends to providing a course of OHS consultation training.

(4)  An application by an individual to be accredited as a trainer:

(a)  is to be in the form, and accompanied by the particulars, approved by WorkCover, and

(b)  is to be accompanied by such application fee as WorkCover determines to cover the expenses in dealing with the application.

WorkCover may approve an application for accreditation (with or without conditions) or may refuse the application.

Note. See clause 351 as to the review by the Administrative Decisions Tribunal of a decision by WorkCover to refuse to accredit a person as a trainer under this clause.

(5)  A course of training undertaken under this clause must include all the topics of OHS consultation training listed in the Table to this clause (undertaken over the period specified in guidelines issued by WorkCover for the purpose).

(6)  The trainer who provides a course of training under this clause must ensure that:

(a)  the training complies with the requirements of this Chapter, and

(b)  a statement of training is provided to each person who completes one or more topics of OHS consultation training and a copy of the statement is provided to the employer, and

(c)  the trainer makes a record of the training provided and retains the record for at least 6 years.

The statement of training must be in a form approved by WorkCover and record the topics of OHS consultation training completed, the date of completion and other particulars required by the approved form.

Maximum penalty: Level 2.

(7)  An employer must keep a record of the training undertaken by a person under this clause until at least 3 years after the person ceases to be an employee of, or associated with, the employer.

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

(8)  This clause does not apply to a person who is a member of an OHS committee by virtue of being a site check inspector in relation to a coal workplace.

Note. Section 145 of the Mine Health and Safety Act 2004 makes provision regarding the training of site check inspectors appointed under that Act.

Table   OHS consultation training topics

Topics	Learning aim
Topic 1
Workplace health and safety	Explains the requirements for effective management of health and safety and the importance of OHS consultation
Topic 2
The role of OHS consultation in the workplace	Details the requirements for consultation under the Occupational Health and Safety Act 2000 Describes the mechanisms for consultation including workplace committees and OHS representatives
Topic 3
Effective OHS consultation in the workplace	Outlines effective communication techniques Describes how these are essential in the consultative process
Topic 4
Systematic management of health and safety	Details the requirements for effective OHS Management Systems, their development, implementation, audit and review
Topic 5
Action learning exercise	Practical application of risk management through work based activity
Topic 6
Continuous improvement of OHS systems	Highlights the need for continuous improvement in OHS through consultation and provides the means for implementation, monitoring and evaluation of this process
Topic 7
Summary and conclusion	Summarises and concludes the course, including assessment and evaluation

32   Savings and transitional arrangements

(1)  The OHS consultation arrangements must be implemented within 12 months after the commencement of the Act, except as provided by subclause (2).

(2)  (Repealed)

(3)  Any course of training of a member of an OHS committee or an OHS representative that was undertaken for the purposes of and in accordance with the regulations under the former Act is taken to have been undertaken for the purposes of and in accordance with this Regulation.

(4)  (Repealed)

(5)  A trainer accredited by WorkCover in accordance with the regulation referred to in subclause (4) is taken to have been accredited by WorkCover under clause 31.

Chapter 4 Work premises and working environment

Note. This Chapter is divided into 5 Parts. Part 4.1 deals with preliminary matters. Part 4.2 deals with the responsibilities of controllers of premises as to hazard identification, risk assessment, risk control and provision of information generally and as to fall prevention, electricity and asbestos installed in the workplace in particular. Part 4.3 deals with the use of places of work and the responsibilities of employers as to working space, lighting, heat and cold, noise management, atmosphere, working at heights, fire prevention, electricity and working in confined spaces. Part 4.4 deals with manual handling. Part 4.5 deals with long distance truck driver fatigue.

Part 4.1 Preliminary

33   Definitions

(1)  In this Chapter:

anchorage point means:

(a)  a secure point of attachment on a structure to which a fall arrest device or anchorage line may be secured, or

(b)  a secure point on a fall arrest device to which a lanyard may be secured.

brittle or fragile roofing material means any roof covering material that would be liable to fail if the weight of a person likely to pass across the material, and anything carried by or on the person, were applied to it.

controller of premises means a person who has control of premises used by people as a place of work, including:

(a)  a person who has only limited control of the premises, and

(b)  a person who has, under any contract or lease, an obligation to maintain or repair the premises.

electrical article has the same meaning as it has in the Electricity (Consumer Safety) Act 2004.

electrical installation has the same meaning as it has in the Electricity (Consumer Safety) Act 2004, except that it extends to electrical equipment in or about a mining workplace or coal workplace.

electricity supply authority has the same meaning as it has in the Electricity (Consumer Safety) Act 2004.

fall arrest device means a self-locking device with the function of arresting a fall.

monitor means to survey regularly all measures used to control atmospheric contaminants in a place of work.

place of work, in relation to premises, means a place of work at those premises.

(2)  (Repealed)

Part 4.2 Work premises

Note. Section 10 of the Act contains a general requirement for controllers of premises to ensure that the premises are safe and without risks to health. This Part sets out particular duties.

Also see clause 7 (1) as to the extent of the duties of a controller of premises under this Part.

Division 1 General duties of controllers of premises

34   Controller of premises to identify hazards

(1)  A controller of premises must identify any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises.

(2)  Without limiting the generality of subclause (1), the controller must identify hazards arising from:

(a)  the layout and condition of the premises, including the presence of a confined space, and

(b)  the physical working environment, including the potential for:

(i)  people slipping, tripping or falling, and

(ii)  objects or structures falling on people, and

(c)  the presence of material containing asbestos.

(3)  A controller of premises must ensure that hazards are identified:

(a)  during any design of the premises, and

(b)  before the premises are provided for use as a place of work.

Maximum penalty: Level 4.

35   Controller of premises to assess risks

(1)  A controller of premises must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division.

(2)  When assessing those risks, the controller must:

(a)  evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and

(b)  review available health and safety information relevant to a particular hazard, and

(c)  identify the actions necessary to eliminate or control the risk, and

(d)  identify records that it is necessary to keep to ensure that risks are controlled (including the length of time for which records are to be kept).

(3)  A risk assessment may relate to more than one place of work or hazard so long as it takes account of the particular circumstances of each place of work or hazard.

Maximum penalty: Level 4.

36   Controller of premises to eliminate or control risks

(1)  A controller of premises must eliminate any risk, arising from the premises, to the health or safety of any person accessing, using or egressing from the premises.

(2)  If it is not reasonably practicable to eliminate the risk, the controller of the premises must control the risk.

(3)  A controller of premises must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health or safety are properly used and maintained.

Maximum penalty: Level 4.

Note. This Part also contains specific risk control requirements with which the controller must comply.

37   Controller of premises to review risk assessments and control measures

A controller of premises must review a risk assessment, and any measures adopted to control the risk, whenever:

(a)  there is evidence that the risk assessment is no longer valid, or

(b)  injury or illness results from exposure to a hazard to which the risk assessment relates, or

(c)  there is a significant change in the premises or place of work to which the risk assessment relates.

Maximum penalty: Level 4.

38   Controller of premises to provide information

(1)  A controller of premises must provide other persons who have responsibilities under this Regulation with all available information that is necessary to enable the other persons to fulfil their responsibilities with respect to the following:

(a)  identifying hazards,

(b)  assessing risks arising from those hazards,

(c)  eliminating or controlling those risks,

(d)  providing information.

(2)  Without limiting the generality of subclause (1), the controller must provide any employer who uses the premises concerned as a place of work with information about:

(a)  any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises, and

(b)  an assessment of any risk arising from the premises that has not been eliminated by the controller, and

(c)  the measures taken by the controller to control any such risk, and

(d)  any measures (including use and maintenance of procedures and equipment) that the employer may need to adopt to control any such risk.

Maximum penalty: Level 4.

Division 2 Fall prevention

39   Fall prevention—particular risk control measures

A controller of premises must ensure that:

(a)  safe access is provided to all parts of a place of work to which a person may require access and from which the person may fall, and

(b)  if the whole or any part of the roof of a building or structure comprises or includes any brittle or fragile roofing material, warning signs are provided that:

(i)  contain the words “DANGER—BRITTLE ROOF”, and

(ii)  are affixed to each individual slope, curve or section of the roof and to all other places from which access to the roof may be obtained, and

(c)  walkways are provided and maintained over roofs that are wholly or partly covered by brittle or fragile roofing material, and

(d)  if windows are designed to be cleaned from the outside, anchorage points for fall arrest devices are provided on each window or other safe means for cleaning every window of the building or structure are provided, and

(e)  floors are designed to be safe without risks of slips, trips or falls, with adequate drainage (if necessary) and appropriate floor coverings (if necessary).

Maximum penalty: Level 4.

Division 3 Electricity

40   Application

In the event of an inconsistency between the requirements of this Division and the Electricity (Consumer Safety) Regulation 2006, the requirements of that Regulation prevail.

Note. The Electricity (Consumer Safety) Regulation 2006 requires all electrical installation work (within the meaning of the Electricity (Consumer Safety) Act 2004) to be carried out in accordance with AS/NZS 3000:2000 Electrical installations (known as the Australian/New Zealand Wiring Rules).

41   Electricity—particular risk control measures

(1)  A controller of premises must ensure that:

(a)  any electrical installation at the premises:

(i)  is safe at the time it is made available for use by an employer, or

(ii)  if not safe, is disconnected from the electricity supply and secured and the employer is informed that it is not safe, and

(b)  electrical installations containing live electrical components (such as control panels, switchrooms, switchyards and substations) are suitably secured to prevent inadvertent access, and

(c)  persons entering an area in which such electrical installations are situated are appropriately trained in issues such as safe entry, emergency procedures and safe use of electrical plant and equipment.

(2)  A controller of premises must ensure that:

(a)  any electrical article provided for use at, or in connection with any electrical installation at, a place of work is safe at the time the place of work is made available for use by an employer, or

(b)  if not safe, the article is disconnected from the electricity supply and secured and the employer is informed that it is not safe.

(3)  A controller of premises must ensure that any such electrical installation or electrical article that is connected to the electricity supply is, to the extent that the owner retains control over the installation or article, maintained in a safe condition.

(4)  A controller of premises must ensure that persons working in, or undertaking maintenance on, the premises (apart from those undertaking electrical work) are prevented from coming within an unsafe distance from any overhead electrical power lines or live electrical installations unless a risk assessment determines otherwise.

(5)  A controller of premises must obtain documentation of any significant modifications made to electrical circuits at the premises from the person doing the work and ensure that the documentation is maintained and kept readily accessible for persons undertaking further electrical work.

Maximum penalty: Level 4.

Division 4 Asbestos

42   Definitions

Words and expressions used in this Division have the same meanings as they have in Part 8.7 (Asbestos—particular provisions).

43   Asbestos—risk assessment and control

A controller of premises that contains asbestos or asbestos-containing material must ensure that risk assessment and control measures are carried out in accordance with the document entitled Code of Practice for the Management and Control of Asbestos in the Workplace [NOHSC: 2018 (2005)] published by the NOHS Commission, as in force from time to time.

Maximum penalty: Level 4.

Note. See clause 34 for obligation of controller to identify presence of asbestos material.

44   Record keeping—register of asbestos

A controller of premises must ensure that:

(a)  a register, in which the type, condition and location of all asbestos and asbestos-containing material in any place of work is recorded, is prepared and maintained, and

(b)  any action taken to control asbestos and asbestos-containing material in the place of work or in plant at the place of work is recorded in the register, including details of:

(i)  any assessment concerning the asbestos that took place before the work was carried out, and

(ii)  if the work was carried out by a contractor rather than by an employee of the controller, the name of the person who carried out the work, and

(iii)  the date on which the work was carried out, and

(c)  all occupiers of the place of work are provided with a copy of the register and all updates to it.

Maximum penalty: Level 3.

Part 4.3 Use of places of work

Note. Section 8 of the Act contains a general requirement for employers to ensure the health, safety and welfare at work of their employees. That requirement extends to:

(a)  ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, and

(b)  ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, and

(c)  ensuring that systems of work and the working environment of the employees are safe and without risks to health, and

(d)  providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work, and

(e)  providing adequate facilities for the welfare of the employees at work.

Section 8 also requires an employer to ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

Chapter 2 of this Regulation also contains general obligations of employers to control risks. This Part sets out particular risk control measures to be undertaken by employers. Employer, for the purposes of this Part, includes self-employed persons (see clause 3).

Section 9 of the Act contains a general requirement for a self-employed person to ensure that people (other than employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person’s undertaking while they are at the person’s place of work.

Division 1 Working space

45   Working space—particular risk control measures

An employer must ensure that:

(a)  sufficient working space is provided to allow persons to work safely, and

(b)  floors and surfaces are constructed and maintained to minimise the possibility of slips, trips and falls, and

(c)  persons are unhindered and able to move safely around a place of work.

Maximum penalty: Level 4.

Note. See also Division 9 (Working in confined spaces).

Division 2 Lighting

46   Lighting—particular risk control measures

An employer must ensure that lighting is provided that:

(a)  is adequate to allow employees to work safely, and

(b)  does not create excessive glare or reflection, and

(c)  is adequate to allow persons who are not employees to move safely within the place of work, and

(d)  facilitates safe access to and egress from the place of work, including emergency exits.

Maximum penalty: Level 4.

Division 3 Heat and cold

47   Hot working environments—particular risk control measures

An employer must ensure that:

(a)  adequate ventilation and air movement is provided in indoor environments that may become hot, and

(b)  appropriate work and rest regimes relative to the physical fitness, general health, medication taken and body weight of each employee exposed to heat are implemented.

Maximum penalty: Level 4.

48   Cold working environments—particular risk control measures

An employer must ensure that:

(a)  employees exposed to cold have adequate access to heated or sheltered work areas and warm clothing or other personal protective equipment, and

(b)  appropriate work and rest regimes relative to the physical fitness, general health, medication taken and body weight of each employee exposed to cold are implemented.

Maximum penalty: Level 4.

Division 4 Noise management

49   Noise management—particular risk control measures

(1)  An employer must ensure that appropriate control measures are taken if a person is exposed to noise levels that:

(a)  exceed an 8-hour noise level equivalent of 85 dB(A), or

(b)  peak at more than 140 dB(C).

Maximum penalty: Level 4.

(2)  For the purposes of subclause (1):

(a)  the measurement is to be made in accordance with AS/NZS 1269.1:1998 Occupational noise management Part 1: Measurement and assessment of noise imission and exposure, and

(b)  exposure to noise is taken to be measured at the position of the ears of a person, or at an equivalent of that position, and

(c)  the measurement is to be made on the assumption that the person is not wearing any device to protect himself or herself from noise.

Division 5 Atmosphere

49A   Application to mining workplaces that are mines and to coal workplaces

This Division does not apply to the atmosphere of a mining workplace that is a mine, or to the atmosphere of a coal workplace, to the extent that more exacting standards are created by or under another Act in relation to that atmosphere than are made by this Division.

50   Definitions

In this Division:

atmospheric contaminant means:

(a)  a hazardous substance that occurs in the form of a fume, mist, gas, dust or vapour, or

(b)  an asphyxiant, or

(c)  nuisance dust,

to which persons may be exposed in the working environment.

inspirable dust means those airborne particles of dust that can be taken in through the nose or mouth during breathing.

respirable fibre means a fibrous particle with a diameter of less than 3 micrometres and a length of greater than 5 micrometres, with a length to width ratio of greater than 3:1, that can reach the deepest part of a lung.

safe oxygen level means a minimum oxygen content in air of 19.5% by volume under normal atmospheric pressure and a maximum oxygen content in air of 23.5% by volume under normal atmospheric pressure.

synthetic mineral fibre means any manufactured mineral fibre, including mineral woolrock (rockwool and slagwool), glasswool (including superfine glassfibre) and ceramic fibres.

synthetic mineral fibre dust means dust arising from a synthetic mineral fibre.

TWA (time-weighted average) means the average airborne concentration of a particular substance when calculated over a normal 8-hour working day for a 5-day working week.

51   Atmospheric contaminants—particular risk control measures

(1)  An employer must ensure that no person at a place of work is exposed to an airborne concentration of an atmospheric contaminant that exceeds or breaches a standard referred to in or determined under subclause (2).

Maximum penalty: Level 4.

(2)  For the purposes of subclause (1), the standard is as follows:

(a)  for atmospheric contaminants other than synthetic mineral fibre dust—as determined in accordance with the documents entitled “Guidance Note on the Interpretation of Exposure Standards for Atmospheric Contaminants in the Occupational Environment [NOHSC: 3008]” and “Adopted National Exposure Standards for Atmospheric Contaminants in the Occupational Environment [NOHSC: 1003]”, as amended from time to time by amendments published in the Chemical Gazette of the Commonwealth of Australia,

(b)  (Repealed)

(c)  for synthetic mineral fibre dust if almost all the airborne mineral is fibrous—in addition to a respirable standard determined under paragraph (a), an exposure standard of 2 mg/m³ (TWA) of inspirable dust, but where the inspirable standard is not to take precedence over the respirable standard,

(d)  for dusts not otherwise classified—10mg/m³ (TWA) inspirable dust exposure standard applies.

52   Unsafe levels of oxygen—risk control measures

An employer must ensure that appropriate risk control measures are taken when atmospheres in a place of work contain an unsafe oxygen level.

Maximum penalty: Level 4.

53   Ventilation—particular risk control measures

(1)  An employer must ensure that:

(a)  mechanical ventilation appropriate for the work being carried out is used to control atmospheric contaminants and that the ventilation is maintained regularly, and

(b)  if a mechanical ventilation system is used to control exposure to a contaminant, the system:

(i)  is located as close as is practicable to the source of the contaminant to minimise the risk of inhalation by a person at work, and

(ii)  is used for as long as the contaminant is present, and

(iii)  is kept free from accumulations of dust, fibre and other waste materials and is maintained regularly, and

(iv)  if the system is provided to control contaminants arising from flammable or combustible substances—is designed and constructed so as to prevent the occurrence of fire or explosion, and

(c)  if a ducted ventilation system is used, an inspection point is fitted at any place where blockages in the ventilation system are likely to occur.

(2)  This clause does not apply to the underground parts of a mining workplace or a coal workplace.

Maximum penalty: Level 4.

54   Entry protection—contaminated atmosphere or unsafe levels of oxygen

An employer must ensure that any place of work at which there is a risk of exposure to atmospheric contaminants or unsafe levels of oxygen is isolated and that appropriate warning signs are provided at the place.

Maximum penalty: Level 4.

55   Atmospheric monitoring

If a risk assessment under Chapter 2 indicates that monitoring of atmospheric contaminants should be undertaken at an employer’s place of work, the employer must ensure that:

(a)  appropriate monitoring is undertaken in accordance with a suitable procedure, and

(b)  the results of the monitoring are recorded, and

(c)  any employee or other person working at the employer’s place of work who may be or may have been exposed to an atmospheric contaminant that has been monitored is provided with the results of the monitoring, and

(d)  the monitoring records are readily accessible to any such employee or person.

Maximum penalty: Level 3.

Division 6 Working at heights

56   Prevention of falls from heights—particular risk control measures

(1)  An employer must ensure that risks associated with falls from a height are controlled by use of the following measures:

(a)  provision and maintenance of:

(i)  a stable and securely fenced work platform (such as scaffolding or other form of portable work platform), or

(ii)  if compliance with subparagraph (i) is not reasonably practicable—secure perimeter screens, fencing, handrails or other forms of physical barriers that are capable of preventing the fall of a person, or

(iii)  if compliance with subparagraph (ii) is not reasonably practicable—other forms of physical restraints that are capable of arresting the fall of a person from a height of more than 2 metres,

(b)  provision of a safe means of movement between different levels at the place of work.

(2)  If a fall arrest device is provided for use by persons at work, the employer must ensure that:

(a)  all anchorage points for the device are inspected by a competent person before their first use and then on a regular basis so they are capable of supporting the design loads, and

(b)  if the load-bearing capacity of an anchorage point is impaired, the anchorage is immediately made inoperable so as to prevent its use, and

(c)  any harness, safety line or other component of the device that shows wear or weakness to the extent it may cause the device to fail is not used, and

(d)  all persons using the device have received training in the selection, assembly and use of the system, and

(e)  adequate provision is made for the rescue of a person whose fall is arrested by a fall arrest device.

Maximum penalty: Level 4.

57   Falling objects—particular risk control measures

An employer must ensure that risks associated with falling objects are controlled by use of the following measures:

(a)  provision of safe means of raising and lowering plant, materials and debris in the place of work,

(b)  provision of a secure physical barrier to prevent objects falling freely from buildings or structures in or in the vicinity of the place of work,

(c)  if it is not possible to provide a secure physical barrier, provision of measures to arrest the fall of objects,

(d)  provision of appropriate personal protective equipment.

Maximum penalty: Level 4.

58   Scaffolding—particular risk control measures

An employer must ensure that:

(a)  a scaffold from which a person or object could fall more than 4 metres, and its supporting structure, is inspected by a competent person for compliance with this Regulation:

(i)  before its first use, and

(ii)  as soon as practicable, and before its next use, after an occurrence that might reasonably be expected to affect the stability or adequacy of the scaffold or its supporting structure, such as a severe storm or earthquake, and

(iii)  before its use following repairs, and

(iv)  at intervals not exceeding 30 days, and

(b)  if an inspection of a scaffold or its supporting structure indicates an unsafe condition, appropriate repairs, alterations or additions are carried out and the scaffold and its supporting structure are re-inspected by a competent person before further use of the scaffold, and

(c)  if a scaffold is incomplete and left unattended, appropriate controls, including the use of danger tags or warning signs, are used to prevent unauthorised access to it, and

(d)  the erection and dismantling of:

(i)  scaffolds, and

(ii)  temporarily erected structures, intended or used to support sheetings, hoardings, guard rails, means of access or egress and entertainment equipment,

      is carried out in compliance with AS/NZS 1576.1:1995 Scaffolding Part 1: General requirements.

Maximum penalty: Level 4.

59   Lifts—particular risk control measures

An employer must ensure that, if a person is working in a lift well, adequate provision is made for the protection of the person from objects falling on the person or movement of the lift car, including provision of the following:

(a)  a means of isolating the lift car to prevent movement,

(b)  a safe working platform,

(c)  adequate protection decking,

(d)  suitable access to the lift well, working platform and protection decking.

Maximum penalty: Level 4.

60   Brittle or fragile roofs—particular risk control measures

An employer must ensure that the risk of falls associated with persons working on or passing across roofs that are wholly or partly covered by brittle or fragile roofing material are controlled by use of the following measures:

(a)  permanent walkways,

(b)  if this is not practicable, adequately secured temporary walkways or other means to prevent the fall of persons working on or passing across the roof.

Maximum penalty: Level 4.

61   Building maintenance—particular risk control measures

An employer must ensure that risks of falls associated with building maintenance, including window cleaning, from outside or through windows are controlled by:

(a)  the provision of adequate safe access to the work area, or

(b)  if compliance with paragraph (a) is not reasonably practicable, the use of appropriate fall arrest devices.

Maximum penalty: Level 4.

Division 7 Fire and explosion

62   Fire and explosion—particular risk control measures

(1)  An employer must ensure that risks associated with fire or explosion at a place of work are controlled by:

(a)  eliminating activities that have the potential to generate flammable or explosive atmospheres from the work process or, if elimination is not possible, minimising the potential for flammable or explosive atmospheres by providing adequate ventilation, and

(b)  eliminating potential ignition sources, including naked flame, hot work and electrical equipment, and sources of static electricity, including friction, welding and slipping belts, from proximity to flammable substances, combustible dusts or waste materials, and

(c)  enclosing work areas containing flammable or explosive atmospheres, and

(d)  removing waste materials and accumulated dust on a regular basis, and

(e)  providing for adequate storage, transportation and disposal of flammable substances, and

(f)  any other measures necessary to control the risks.

(2)  If flammable substances, combustible dusts or waste materials are present at a place of work, an employer must monitor the place regularly to ensure:

(a)  the removal, on a regular basis, of waste material, including dust, that could pose a fire or explosion hazard, and

(b)  the continued effectiveness of control measures taken with respect to potential ignition sources.

(3)  This clause does not apply to a mining workplace that is a mine, or to a coal workplace, to the extent that more exacting standards are created by or under another Act in relation to risks associated with fire or explosion at that mining workplace or coal workplace than are made by this clause.

Maximum penalty: Level 4.

Division 8 Electricity

63   Application

In the event of an inconsistency between the requirements of this Division and the regulations under the Electricity (Consumer Safety) Act 2004, the requirements of those regulations prevail.

64   Electricity—particular risk control measures

(1)  An employer must ensure that any risk of injury from electricity at a place of work is eliminated or, if elimination is not reasonably practicable, the risk is controlled.

(2)  An employer must ensure that:

(a)  Electrical installations at places of work
all electrical installations at a place of work are inspected and tested, after they are installed and prior to their energising for normal use, by a competent person to ensure they are safe for use, and

(a1)  all electrical installations at a place of work are maintained by a competent person to ensure they remain safe for use, and

(a2)  Electrical articles used in construction work
all electrical articles that are used in construction work are regularly inspected, tested and maintained by a competent person to ensure they are safe for use if the articles are supplied with electricity through an electrical outlet socket, and

(a3)  Electrical articles that may be affected by hostile environment
all electrical articles that are supplied with electricity through an electrical outlet socket that are at a place of work where the safe operation of the electrical article could be affected by a hostile operating environment are regularly inspected, tested and maintained by a competent person to ensure they are safe for use, and

(a4)  Electrical installations and articles found to be unsafe
all electrical installations and electrical articles at a place of work that are found to be unsafe are disconnected from the electricity supply and are repaired, replaced or permanently removed from use, and

(b)  plant is not used in conditions likely to give rise to electrical hazards, and

(c)  appropriate work systems are provided to prevent inadvertent energising of plant connected to the electricity supply, and

(d)  if excavation work is to be carried out at a place of work, all available information concerning the position of underground electrical cables is obtained and disseminated to persons at the place, and

(e)  persons at work, their plant, tools or other equipment and any materials used in or arising from the work do not come into close proximity with overhead electrical power lines (except if the work is done in accordance with a written risk assessment and safe system of work and the requirements of the relevant electricity supply authority), and

(f)  any electrical cord extension sets, flexible cables or fittings:

(i)  are located where they are not likely to be damaged (including damage by liquids) or are protected against any damage, and

(ii)  are not laid across passageways or accessways unless they are suitably protected, and

(g)  adequate signs to warn of the hazards, and (if necessary) restrict access, are provided at or near any area in which there is a risk of exposure of persons to hazards arising from electricity.

(3)  In this clause, hostile operating environment means an operating environment at a place of work where an electrical article is in its normal use subjected to operating conditions that are likely to result in damage to the article, and, for example, includes an operating environment that may:

(a)  cause mechanical damage to the article, or

(b)  expose the article to moisture, heat, vibration, corrosive substances or dust that is likely to result in damage to the article.

Maximum penalty: Level 4.

65   Maintenance of records—electricity

(1)  An employer must ensure that a record is made and kept of all inspections and tests made and maintenance carried out on electrical articles and electrical installations required by this Part.

(2)  In particular, the following information is to be recorded:

(a)  the name of the person who made the inspection or carried out the test or maintenance,

(b)  the date on which, or dates over which, the inspection was made or the test or maintenance was carried out,

(c)  the result or outcome of the inspection, test or maintenance,

(d)  the date by which the next inspection and test must be carried out.

Maximum penalty: Level 2.

Division 9 Working in confined spaces

65A   No application to underground parts of mining workplaces or coal workplaces

This Division does not apply to the underground parts of a mining workplace or coal workplace.

66   Definitions

In this Division:

confined space, in relation to a place of work, means an enclosed or partially enclosed space that:

(a)  is not intended or designed primarily as a place of work, and

(b)  is at atmospheric pressure while persons are in it, and

(c)  may have an atmosphere with potentially harmful contaminants, an unsafe level of oxygen or stored substances that may cause engulfment, and

(d)  may (but need not) have restricted means of entry and exit.

Examples of confined spaces are as follows:

(a)  storage tanks, tank cars, process vessels, boilers, pressure vessels, silos and other tank-like compartments,

(b)  open-topped spaces such as pits or degreasers,

(c)  pipes, sewers, shafts, ducts and similar structures,

(d)  shipboard spaces entered through a small hatchway or access point, cargo tanks, cellular double bottom tanks, duct keels, ballast and oil tanks and void spaces (but not including dry cargo holds).

safe oxygen level means a minimum oxygen content in air of 19.5% by volume under normal atmospheric pressure and a maximum oxygen content in air of 23.5% by volume under normal atmospheric pressure.

67   Application

This Division applies to work in a confined space at any place of work.

68   Entry to or work in or on confined space—particular risk control measures

An employer must ensure that no person enters a confined space or that work is not carried out inside or on the outside of a confined space if:

(a)  there is a risk to the health and safety of a person entering, occupying or working on the surface of the confined space, or

(b)  there is a risk of fire or explosion,

and the risk has not been controlled as required by this Regulation.

Maximum penalty: Level 4.

69   Isolation or control of potentially hazardous services—particular risk control measures

An employer must ensure that no person enters a confined space unless all potentially hazardous services that are normally connected to the confined space are isolated or otherwise controlled so as to prevent:

(a)  the introduction of any materials, contaminants, agents or conditions that may be harmful to a person occupying the confined space, or

(b)  the activation or energising in any way of equipment or services that may pose a risk to the health or safety of a person inside the confined space.

Maximum penalty: Level 4.

70   Purging before entry—particular risk control measures

(1)  An employer must ensure that, if appropriate, a confined space is cleared of all contaminants by use of a suitable purging agent by which contaminants are displaced from the confined space before a person enters the confined space.

(2)  An employer must ensure that pure oxygen or a gas mixture in a concentration of more than 21% of oxygen by volume is not used for the purging or ventilation of a confined space.

Maximum penalty: Level 4.

71   Safety of atmosphere—particular risk control measures

(1)  Subject to subclause (4), an employer must ensure that no person enters a confined space unless:

(a)  the confined space contains a safe oxygen level, and

(b)  any atmospheric contaminants in the confined space are reduced below the appropriate exposure standards referred to in clause 51 (Atmospheric contaminants—particular risk control measures), and

(c)  the confined space is free from extremes of temperature, and

(d)  the concentration of any flammable contaminant in the atmosphere of the confined space is below 5% of its LEL.

(2)  An employer must ensure that, if a concentration of flammable contaminant in the atmosphere of a confined space is found to be more than 5% of its LEL and less than 10% of its LEL, all persons leave the confined space unless a continuous monitoring, suitably calibrated flammable contaminant detector is used in the confined space at all times while persons are present in it.

(3)  An employer must ensure that, if a concentration of flammable contaminant in the atmosphere of a confined space is found to be 10% of its LEL or more, all persons leave the confined space.

(4)  If a safe oxygen level cannot be provided or atmospheric contaminants cannot be reduced to safe levels in a confined space, persons may enter the space if equipped with suitable personal protective equipment including air supplied respiratory protective equipment.

(5)  If an atmospheric contaminant is present in a confined space, or a confined space contains less than 19.5% oxygen, an employer must provide warning signs.

Maximum penalty: Level 4.

72   Entry permits—particular risk control measures

(1)  An employer must ensure that no person enters or works in or on a confined space unless authorised by an entry permit given by the employer.

(2)  An entry permit must:

(a)  be in writing, and

(b)  identify the confined space, and

(c)  clearly describe the work to be carried out in or on the confined space, and

(d)  set out risk control measures to be taken, and

(e)  record the names of all persons who may enter or work in or on the confined space, and

(f)  record the dates and times when the persons may enter or be in or on the confined space to carry out the work.

(3)  The entry permit must be provided to the person responsible for direct control of the work to be carried out in or on the confined space.

(4)  The employer must ensure that the persons who are to carry out the work are informed of and comply with the requirements of the entry permit.

(5)  The employer must ensure that, before authorisation is given for the confined space to be returned to service, the person in direct control of the work in the confined space acknowledges, in writing, that:

(a)  the work in or on the confined space has been completed, and

(b)  all persons involved in the carrying out of the work have left the confined space.

Maximum penalty: Level 4.

73   Stand-by persons—particular risk control measures

(1)  An employer must ensure that one or more stand-by persons are present outside a confined space when any person is inside the confined space.

Maximum penalty: Level 4.

(2)  In this clause, stand-by person means a competent person who:

(a)  is assigned to remain on the outside of, and in close proximity to, the confined space, and

(b)  is capable of being in continuous communication with and, if practicable, able to observe persons inside the confined space, and

(c)  is capable of operating monitoring equipment used to ensure safety during entry to and work in the confined space, and

(d)  is capable of initiating emergency procedures (including rescue procedures), if necessary.

74   Emergencies—particular risk control measures

(1)  An employer must, when persons are inside a confined space, ensure that emergency equipment (including rescue and first aid equipment) appropriate for the particular circumstances in which the persons are inside the space is provided.

(2)  An employer must ensure that emergency procedures are planned, established and rehearsed in relation to the presence of persons in a confined space.

(3)  An employer must ensure that:

(a)  openings for entry to and egress from a confined space are of adequate size to permit the rescue of all persons who may be in the space, and

(b)  openings are not obstructed by fittings or equipment that could impede the rescue of persons or, alternatively, if this cannot be done, that another suitable means of rescue is provided.

Maximum penalty: Level 4.

75   Entry protection—particular risk control measures

An employer must ensure that appropriate signs are displayed and protective barriers are erected to prevent the entry into a confined space of persons who are not authorised by an entry permit referred to in clause 72.

Maximum penalty: Level 4.

76   Atmospheric testing and monitoring—particular risk control measures

An employer must ensure that appropriate atmospheric testing and monitoring is carried out if a confined space has or may:

(a)  become contaminated with an atmospheric contaminant, or

(b)  become contaminated with a flammable contaminant, or

(c)  have an oxygen level that is not a safe oxygen level.

Maximum penalty: Level 4.

77   Training

(1)  An employer must provide training for all persons who are required to work in or on a confined space in all relevant activities relating to entering and working in or on the confined space.

Maximum penalty: Level 4.

(2)  The training program must include instruction in the following:

(a)  the hazards of confined spaces,

(b)  risk assessment procedures,

(c)  risk control measures,

(d)  emergency procedures,

(e)  selection, use, fitting and maintenance of safety equipment.

Maximum penalty: Level 4.

(3)  Training must also be provided for persons who:

(a)  perform assessments in relation to the safety of confined spaces, and

(b)  issue entry permits for work in confined spaces, and

(c)  design and fix the layout of work places, and

(d)  manage or supervise (or both) persons working in or near confined spaces, including any contractor, and

(e)  maintain equipment used for and during entry to confined spaces, and

(f)  purchase, distribute, fit, wear or maintain personal protective equipment used in relation to the carrying out of work in confined spaces, and

(g)  are on stand-by in relation to work in confined spaces, and

(h)  are involved in rescue and first aid procedures in relation to work in confined spaces.

Maximum penalty: Level 4.

(4)  An employer must make a written record of:

(a)  the training provided, and

(b)  the persons to whom the training is provided.

Maximum penalty (subclause (4)): Level 3.

78   Record keeping

(1)  An employer must keep and maintain:

(a)  entry permits in relation to work in confined spaces for a period of one month after return of the confined spaces to service, and

(b)  risk assessment reports in relation to work in confined spaces for 5 years after the date of preparation, and

(c)  records of training in relation to work in confined spaces for the terms of employment of persons to whom the training has been provided.

(2)  Despite subclause (1), the documents referred to in that subclause are to be kept for such period as is appropriate in cases where continued surveillance of the health of employees or other continued monitoring is required.

Note. See also clause 171 (Employer to retain certain material as record) as to the responsibilities of employers as to record keeping.

(3)  All records kept in accordance with this clause are to be made available to regulatory authority inspectors and employees (in relation to their own personal circumstances) on request.

Maximum penalty: Level 1.

Part 4.4 Manual handling

Note. Employer, for the purposes of this Part, includes self-employed persons (see clause 3).

79   Definition

In this Part:

manual handling means any activity requiring the use of force exerted by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any animate or inanimate object.

80   Employer to control risks

(1)  An employer must ensure that:

(a)  all objects are, where appropriate and as far as reasonably practicable, designed, constructed and maintained so as to eliminate risks arising from the manual handling of the objects, and

(b)  work practices used in a place of work are designed so as to eliminate risks arising from manual handling, and

(c)  the working environment is designed to be, as far as reasonably practicable and to the extent that it is within the employer’s control, consistent with the safe handling of objects.

(2)  If it is not reasonably practicable to eliminate a risk arising from manual handling, an employer must design the work activity involving manual handling to control the risk and, if necessary, must:

(a)  modify the design of the objects to be handled or the work environment (to the extent that it is under the employer’s control), taking into account work design and work practices, and

(b)  provide mechanical aids or, subject to subclause (3), make arrangements for team lifting, or both, and

(c)  ensure that the persons carrying out the activity are trained in manual handling techniques, correct use of mechanical aids and team lifting procedures appropriate to the activity.

(3)  An employer must, as far as reasonably practicable, achieve risk control by means other than team lifting.

Maximum penalty: Level 4.

81   Assessment of risks

An employer, in carrying out a risk assessment in accordance with Chapter 2 in relation to manual handling, must take into consideration (where relevant) the following factors:

(a)  actions and movements (including repetitive actions and movements),

(b)  workplace and workstation layout,

(c)  working posture and position,

(d)  duration and frequency of manual handling,

(e)  location of loads and distances moved,

(f)  weights and forces,

(g)  characteristics of loads and equipment,

(h)  work organisation,

(i)  work environment,

(j)  skills and experience,

(k)  age,

(l)  clothing,

(m)  special needs (temporary or permanent),

(n)  any other factors considered relevant by the employer, the employees or their representatives on health and safety issues.

Part 4.5 Long distance truck driver fatigue

81A   Definitions

In this Part:

activities of a person include anything done or omitted to be done by the person, anything done or omitted to be done under the terms of a contract to which the person is a party, anything done or omitted to be done by the person’s employee or agent in the course of his or her employment or agency and anything done or omitted to be done in accordance with a work practice over which the person has control.

carrier means a person who in the course of the person’s business (including a business carried on under a franchise or other arrangement) transports freight for another person by means of a motor vehicle.

combination means a group of vehicles consisting of a motor vehicle connected to one or more vehicles.

consignee means a person to whom a consignment of freight is to be delivered, being a person who carries on business of which a substantial part is prescribed business.

consignor means a person from whom a consignment of freight is to be delivered, being a person who carries on business of which a substantial part is prescribed business.

contract includes a series of contracts.

driver fatigue management plan means a plan that sets out how the person required to prepare the plan will meet its obligations under the Act and this Regulation in relation to any risk associated with the fatigue of drivers that transport freight long distance.

freight includes goods, materials, livestock or any other things, but does not include persons.

GVM has the same meaning as in the Road Transport (Vehicle Registration) Act 1997.

head carrier means a carrier other than a self employed carrier.

heavy truck means:

(a)  a motor vehicle with a GVM over 4.5 tonnes, or

(b)  a motor vehicle forming part of a combination if the total of the GVMs of the vehicles in the combination is over 4.5 tonnes.

motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

prescribed business means business that falls within one or more of the following Divisions recognised in the Australian and New Zealand Standard Industrial Classification (ANZSIC), 1993 edition (Australian Bureau of Statistics publication, Catalogue No 1292.0):

(a)  Agriculture, Forestry and Fishing (Division A),

(b)  Mining (Division B),

(c)  Manufacturing (Division C),

(d)  Construction (Division E),

(e)  Wholesale Trade (Division F),

(f)  Retail Trade (Division G),

(g)  Accommodation, Cafes and Restaurants (Division H),

(h)  Transport and Storage (Division I),

(i)  Communication Services (Division J),

(j)  Property and Business Services (Division L),

(k)  Cultural and Recreational Services (Division P).

self-employed carrier means:

(a)  a partnership that carries on business as a carrier, being a business in which any heavy truck used for the transport of freight is driven only by a partner of the business, or

(b)  a body corporate that carries on business as a carrier, being a business in which any heavy truck used for the transport of freight is driven only by:

(i)  a director of the body corporate or a member of the family of a director of the body corporate, or

(ii)  a person who, together with the members of his or her family, has a controlling interest in the body corporate, or

(iii)  a member of the family of a person who, together with the members of his or her family, has a controlling interest in the body corporate, or

(c)  an individual who carries on business as a carrier, being a business in which any heavy truck used for the transport of freight is driven only by the individual.

Note. The classes of persons that are taken to be self-employed carriers for the purposes of this Part are based on those specified in section 309 of the Industrial Relations Act 1996.

transport freight long distance means transport freight by means of a heavy truck (whether by means of a single journey or a series of journeys) more than 500 kilometres, including any part of the journey or journeys where no freight is transported because the heavy truck is being driven to collect freight or to return to base after transporting freight.

81B   Duty to assess and manage fatigue of drivers

(1)  An employer must not cause or permit any of its employees to transport freight long distance unless:

(a)  the employer has assessed the risk of harm from fatigue to the employee’s health or safety in doing so, and

(b)  to the extent to which the employer’s activities contribute to that risk:

(i)  the employer has eliminated the risk, or

(ii)  if elimination of the risk is not reasonably practicable, the employer has controlled the risk.

Maximum penalty: Level 4.

Note. Employers of drivers are also covered by clauses 10 and 11 of this Regulation. Clause 11 provides that an employer must eliminate any reasonably foreseeable risk to the health or safety of any employee of the employer or if it is not reasonably practicable to eliminate the risk, then the employer must control the risk.

(2)  A head carrier must not enter into a contract with a self-employed carrier under which the self-employed carrier undertakes to transport freight long distance unless:

(a)  the head carrier has assessed the risk of harm from fatigue to the health or safety of any driver who transports freight long distance under the contract, and

(b)  to the extent to which the head carrier’s activities contribute to that risk:

(i)  the head carrier has eliminated the risk, or

(ii)  if elimination of the risk is not reasonably practicable, the head carrier has controlled the risk.

Maximum penalty: Level 4.

(3)  A consignor or consignee must not enter into a contract with a self-employed carrier under which the self-employed carrier undertakes to transport freight long distance unless:

(a)  the consignor or consignee has assessed the risk of harm from fatigue to the health or safety of any driver that transports freight long distance under the contract, and

(b)  to the extent to which the consignor or consignee’s activities contribute to that risk:

(i)  the consignor or consignee has eliminated the risk, or

(ii)  if elimination of the risk is not reasonably practicable, the consignor or consignee has controlled the risk.

Maximum penalty: Level 4.

81C   Duty of consignors and consignees to make inquiries as to likely fatigue of drivers

A consignor or consignee must not enter a contract with a head carrier for the transport of freight long distance unless the consignor or consignee has satisfied itself on reasonable grounds:

(a)  that any delivery timetable is reasonable as regards the fatigue of any driver transporting freight long distance under the contract, taking into account industry knowledge of a reasonable time for the making of such a trip (including loading, unloading and queuing times), and

(b)  that each driver who will transport freight long distance under the contract is covered by a driver fatigue management plan.

Maximum penalty: Level 4.

81D   Driver fatigue management plans

(1)  An employer (other than a self-employed carrier) must prepare a driver fatigue management plan for all its employees who are drivers who, in the course of their employment, transport freight long distance.

Maximum penalty: Level 3.

(2)  A head carrier that enters into a contract with a self-employed carrier under which the self-employed carrier undertakes to transport freight long distance must prepare a driver fatigue management plan for all drivers who transport freight long distance under the contract.

Maximum penalty: Level 3.

(3)  A consignor or consignee that enters into a contract with a self-employed carrier under which the self-employed carrier undertakes to transport freight long distance must prepare a driver fatigue management plan for all drivers who transport freight long distance under the contract.

Maximum penalty: Level 3.

(4)  A driver fatigue management plan prepared under this clause must address each of the following matters to the extent to which they may affect driver fatigue:

(a)  trip schedules and driver rosters, taking into account the following:

(i)  times required to perform tasks safely,

(ii)  times actually taken to perform tasks,

(iii)  rest periods required to recover from the fatigue effects of work,

(iv)  the cumulative effects of fatigue over more than one day,

(v)  the effect of the time of day or night on fatigue,

(b)  management practices, including the following:

(i)  methods for assessing the suitability of drivers,

(ii)  systems for reporting hazards and incidents,

(iii)  systems for monitoring driver’s health and safety,

(c)  work environment and amenities,

(d)  training and information about fatigue that is provided to drivers,

(e)  loading and unloading schedules, practices and systems, including queuing practices and systems,

(f)  accidents or mechanical failures.

(5)  A person who is required to prepare a driver fatigue management plan may amend or replace the plan at any time.

(6)  A person who is required to prepare a driver fatigue management plan:

(a)  must consult in accordance with Division 2 of Part 2 of the Act during the preparation of the plan and at each time the person proposes to amend or replace the plan (except if the proposed amendment or replacement would only change the effect of the plan in a minor way), and

(b)  must ensure that the person’s activities are consistent with that plan, and

(c)  must make a copy of the plan available to each driver covered by the plan.

Maximum penalty: Level 1.

81E   Application of Part to consignors and consignees and their agents

(1)  Clauses 81B (3), 81C and 81D (3) apply to an agent or other person acting on behalf of a consignor or consignee in the same way as they apply to a consignor or consignee.

(2)  If an offence under clause 81B (3), 81C or 81D (3) is committed by an agent or other person acting on behalf of a consignor or consignee, the consignor or consignee is also guilty of the offence.

(3)  Clauses 81B (3), 81C and 81D (3) do not apply to or in respect of either of the following:

(a)  a consignor or consignee that employs fewer than 200 employees (including persons carrying out work for the consignor or consignee under labour hire arrangements),

(b)  an agent or other person acting on behalf of a consignor or consignee referred to in paragraph (a).

81F   Records

(1)  A person who is required to prepare a driver fatigue management plan is to keep the following documents:

(a)  all driver fatigue management plans prepared by the person,

(b)  all contracts entered into in the course of the person’s business (including any contracts of employment) that relate to the transportation of freight long distance,

(c)  all trip schedules, delivery timetables and driver rosters prepared by or on behalf of the person or to which the person has access, but only for those drivers for whom the person was required to prepare a driver fatigue management plan,

(d)  any risk assessments made by or on behalf of the person that relate to the fatigue of drivers of heavy trucks.

Maximum penalty: Level 1.

(2)  A person who is required to be satisfied of the matters set out in clause 81C is to keep all documents that the person relied on to be satisfied of those matters including the relevant contract and any relevant trip schedules, delivery timetables and driver rosters to which the person has access.

Maximum penalty: Level 1.

(3)  Despite subclauses (1) and (2), a person:

(a)  is not required to keep a driver fatigue management plan or a contract for more than 5 years after the plan or contract ceases to have effect, and

(b)  is not required to keep a trip schedule, delivery timetable or driver roster for more than 5 years after the end of the period covered by the schedule, timetable or roster, and

(c)  is not required to keep a risk assessment for more than 5 years after the assessment is made, and

(d)  is not required to keep any document that is required to be kept under subclause (2) for more than 5 years after the relevant contract ceases to have effect.

(4)  For the purposes of this clause, if a document is amended in a material way, each version of the document as amended is to be dealt with as a separate document.

(5)  A person who is required to keep documents under this clause must make those documents available for inspection by an inspector or an authorised representative in accordance with a request by the inspector or authorised representative and, in any event, no later than 7 days after the date of the request.

Maximum penalty: Level 1.

(6)  In this clause:

authorised representative means an authorised representative within the meaning of Division 3 of Part 5 of the Act who is exercising functions under that Division.

Chapter 5 Plant

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

Part 5.1 Preliminary

82   Definitions

In this Chapter:

alter, in relation to plant, means change the design of, add to or take away from the plant if the change may affect health or safety, but does not include routine maintenance, repair or replacement.

AMBSC Code—Part 1: Copper Boilers means the Australian Miniature Boiler Safety Committee Code Part 1, Issue 6—1994, Copper Boilers, published by the Australian Miniature Boiler Safety Committee.

AMBSC Code—Part 2: Steel Boilers means the Australian Miniature Boiler Safety Committee Code Part 2, Issue 4—1995, Steel Boilers, published by the Australian Miniature Boiler Safety Committee.

amusement device means equipment operated for hire or reward that provides entertainment, sightseeing or amusement through movement of the equipment, or part of the equipment, or when passengers travel on, around or along the equipment but does not include any of the following:

(a)  a crane, conveyor, escalator, hoist, lift or moving walk,

(b)  a railway to which the Rail Safety Act 1993 applies,

(c)  a vehicle that is required to be registered under the Road Transport (Vehicle Registration) Act 1997,

(d)  a vessel to which the Commercial Vessels Act 1979 applies,

(e)  an aircraft to which the Air Navigation Act 1938 applies.

boiler means a vessel or an arrangement of vessels and interconnecting parts, in which steam or other vapour is generated, or water or other liquid is heated at a pressure above that of the atmosphere, by the application of fire, the products of combustion, electrical power or similar high temperature means, including superheaters, reheaters, economisers, boiler piping, supports, mountings, valves, gauges, fittings, controls, the boiler setting and directly associated equipment but does not include a fully flooded or pressurised system in which water or other liquid is heated to a temperature lower than the normal atmospheric boiling temperature of the liquid.

boom-type elevating work platform means a powered telescoping device, hinged device or articulated device, or any combination of these devices, used to support a platform that can be propelled horizontally as well as vertically and on which personnel, equipment or materials can be elevated, being a platform that can be projected laterally outside its wheelbase.

bridge crane means a crane comprising a bridge beam mounted at each end on an end carriage, capable of travelling along elevated runways and having one or more hoisting mechanisms arranged to traverse across the bridge.

building maintenance equipment means a suspended platform and associated equipment, including a building maintenance unit or a swing stage, that incorporates permanently installed overhead supports to provide access to the faces of a building for maintenance, but does not include a suspended scaffold.

building maintenance unit means a power operated suspended platform and associated equipment on a building specifically designed to provide permanent access to the faces of the building for maintenance.

coin operated amusement device means a power operated device that:

(a)  is intended to be ridden, at the one time, by no more than 4 children below the age of 10 years, and

(b)  is usually located in a shopping centre or similar public location, and

(c)  does not necessarily have an operator.

commissioning of plant means performing the necessary adjustments, tests and inspections to ensure plant is in full working order to specified requirements before the plant is used, and includes recommissioning.

concrete placing unit means mobile truck-mounted plant incorporating a knuckle boom that is capable of power operated slewing and luffing to place concrete by way of pumping through a pipeline attached to, or forming part of, the boom of the plant.

conveyor means an apparatus or equipment operated by any power other than manual power, by which loads are raised, lowered or transported or capable of being raised, lowered, transported or continuously driven by:

(a)  an endless belt, rope or chain or other similar means, or

(b)  buckets, trays or other containers or fittings moved by an endless belt, rope, chain or other similar means, or

(c)  a rotating screw, or

(d)  rollers,

and includes the supporting structure and auxiliary equipment and used in connection with the conveyor.

crane means an appliance intended for raising or lowering a load and moving it horizontally and includes the supporting structure of the crane and its foundations, but does not include industrial lift trucks, earthmoving machinery, amusement devices, tractors, industrial robots, conveyors, building maintenance equipment, suspended scaffolds or lifts.

designer of plant includes an employer or self-employed person who designs plant for his, her or its own use at work.

earthmoving machinery means an operator controlled item of plant used to excavate, load, transport, compact or spread earth, overburden, rubble, spoil, aggregate or similar material but does not include a tractor or industrial lift truck.

elevating work platform means a telescoping device, scissor device or articulating device, or any combination of those devices, used to move personnel, equipment or materials to and from work locations above the support surface.

erect includes altering the structure of plant.

ergonomic, in relation to the functioning of plant and systems of work associated with plant, means optimised by adaptation to human capacity or need.

fault means a break or defect that may cause plant to present an increased risk to health and safety and, in the case of a fault in the design of plant, means an aspect of the design that may cause the plant to be a risk to health and safety if manufactured in accordance with the design specifications.

fired heater means a pressure vessel in which a liquid is heated below its atmospheric boiling temperature or a process fluid is heated in tubes above or below its atmospheric boiling temperature by the application of fire, the products of combustion or electric power or similar high temperature means.

gantry crane means a crane comprising a bridge beam, supported at each end by legs mounted on end carriages, capable of travelling on supporting surfaces or deck levels, whether fixed or not and that has a crab with one or more hoisting units arranged to travel across the bridge.

gas cylinder means a particular rigid pressure vessel, exceeding 0.1 kg but not exceeding 3,000 kg water capacity, without openings or integral attachments on the shell other than at the ends, designed for the storage and transport of gas under pressure.

guard means a device that prevents or reduces access to a danger point or area.

hoist means an appliance intended for raising or lowering a load or persons, or both, and includes a scissor type elevating work platform, mast-climbing work platform, personnel and materials hoist, scaffolding hoist and serial hoist but does not include a lift, a building maintenance unit or a powered winding system.

industrial lift truck means powered mobile plant, designed to move goods, materials or equipment, equipped with an elevating load carriage and, normally, a load-holding attachment but does not include a mobile crane or earthmoving machinery.

industrial robot means a multi-functional manipulator and its controllers, capable of handling materials, parts, tools, or specialised devices, through variable programmed motions for the performance of a variety of tasks.

lift means any permanent plant (or plant intended to be permanent) that is in or attached to a building or structure and by means of which persons, goods or materials may be raised or lowered within or on a car, cage or platform and the movement of which is restricted by a guide or guides and includes an apparatus in the nature of a stairway chair lift, escalator or moving walk, and any supporting structure, machinery, equipment, gear, lift well, enclosures and entrances.

log book for an amusement device means a permanent written record of the details required to be kept under this Chapter in respect of the amusement device so as to form a comprehensive history in respect of it.

manufacturer of plant includes an employer or self-employed person who manufactures plant for his, her or its own use at work.

mast-climbing work platform means a hoist having a working platform used for temporary purposes to raise personnel and materials to the working position by means of a drive system mounted on an extendable mast that may be tied to a building.

mobile crane means a crane capable of travelling over a supporting surface without the need for fixed runways (including railway tracks) and relying only on gravity for stability, that is, with no vertical restraining connection between itself and the supporting surface and no horizontal restraining connection (other than frictional forces at supporting-surface level) that may act as an aid to stability.

operator protective devices include roll over protective structures, falling object protective structures, operator restraining devices and seat belts.

plant includes any machinery, equipment or appliance.

plant affecting public safety has the meaning set out in clause 83.

powered winding system means any lifting plant used to carry people for the purposes of allowing access to the underground workings of a mining workplace or a coal workplace or for the purposes of inspecting and maintaining the system or the mine shaft, but does not include manually operated plant or light portable winches.

prefabricated scaffolding means an integrated system of prefabricated components manufactured in such a way that the geometry of assembled scaffolds is pre-determined.

pressure equipment means boilers, pressure vessels and pressure piping specifically covered by AS/NZS 1200:2000 Pressure equipment (not being equipment or plant under pressure referred to in clause A4 of Appendix A to that Standard) and categorised as being of hazard level A, B, C or D according to the criteria identified in AS 4343—1999 Pressure equipment—Hazard levels.

pressure piping means an assembly of pipes, pipe fittings, valves and pipe accessories subject to internal or external pressure and used to contain or convey fluid or to transmit fluid pressure, including distribution headers, bolting, gaskets, pipe supports and pressure retaining accessories but does not include a boiler or pressure vessel or any pipeline covered by the Gas Supply Act 1996, the Petroleum (Offshore) Act 1982 or the Pipelines Act 1967 or a pipeline within the meaning of clause 3 of Schedule 3 to this Regulation.

pressure vessel means a vessel subject to internal or external pressure, including interconnected parts and components, valves, gauges and other fittings up to the first point of connection to connecting piping, and fired heaters and gas cylinders, but does not include a boiler or pressure piping or any pipeline covered by the Gas Supply Act 1996, the Petroleum (Offshore) Act 1982 or the Pipelines Act 1967.

qualified electrical engineer means:

(a)  an electrical engineer who is a charter member of the Australian Institution of Engineers, or

(b)  a person belonging to a class of persons recognised as being qualified electrical engineers for the purposes of this Chapter by WorkCover (in relation to places of work that are not mining workplaces or coal workplaces) or by the Department Head (Mining) (in relation to places of work that are mining workplaces or coal workplaces).

qualified engineer means:

(a)  a mechanical or structural engineer who is a charter member of the Australian Institution of Engineers, or

(b)  a person who is recognised as being competent to exercise the functions of a qualified engineer for the purposes of this Chapter by WorkCover (in relation to places of work that are not mining workplaces or coal workplaces) or by the Department Head (Mining) (in relation to places of work that are mining workplaces or coal workplaces).

repair means to restore plant to an operating condition, but does not include routine maintenance, replacement or alteration.

scaffold means a temporary structure, specifically erected to support access or working platforms.

scaffolding equipment means any component, assembly or machine used or intended to be used in the construction of a scaffold.

suspended scaffold means a scaffold incorporating a suspended platform that is capable of being raised or lowered when in use and includes a boatswain’s chair.

tower crane means a boom or jib crane mounted on a tower structure that is demountable or permanent and includes horizontal and luffing jib types.

tractor means a motor vehicle, whether wheeled or track mounted, designed to provide power and movement of any attached machine or implement by a transmission shaft, belt or linkage system but does not include earthmoving machinery.

use plant means work from, operate, maintain, inspect or clean plant.

vehicle hoist means a vehicle-hoisting device, the purpose of which is to provide access for convenient under-chassis examination or service.

work box means a personnel carrying device, designed to be suspended from a crane, to provide a working area for persons conveyed by and working from the box.

workpiece means material, offcut or scrap (in any form) on which an item of plant is doing work, or any material, offcut or scrap (in any form) produced by an item of plant but does not include a load being lifted or moved by the plant.

83   Plant affecting public safety

For the purposes of section 135 of the Act, plant of the following kinds is prescribed as plant affecting public safety, whether or not the plant is at a place of work or for use at work:

(a)  boilers categorised as being of hazard level A, B or C according to the criteria in AS 4343—1999 Pressure equipment—Hazard levels,

(b)  boilers covered by the AMBSC Code—Part 1: Copper Boilers or the AMBSC Code–Part 2: Steel Boilers,

(c)  pressure vessels categorised as being of hazard level A, B or C according to the criteria in AS 4343—1999 except the following:

(i)  (Repealed)

(ii)  serially produced pressure vessels covered by AS 2971—1987 Serially produced pressure vessels,

(iii)  pressure vessels that do not require periodic internal inspection in accordance with the criteria in Table 4.1 in AS/NZS 3788:1996 Pressure equipment—In-service inspection,

(d)  lifts (including escalators and moving walkways) as defined in AS 1735.1—1999 Lifts, escalators and moving walks Part 1: General requirements,

(e)  amusement devices (other than coin operated amusement devices),

(f)  gas cylinders.

Part 5.2 Design, manufacture and registration of plant

Division 1 Design of plant

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

84   Application

(1)  This Division applies to the design of:

(a)  plant for use at work, and

(b)  plant affecting public safety.

(2)  This Division applies to:

(a)  plant designs, and

(b)  unless the context otherwise requires—alterations to plant designs,

      that are commenced after the prescribed date.

(3)  In this clause:

prescribed date means:

(a)  in relation to a workplace that is not a mining workplace or a coal workplace—1 September 2001, or

(b)  in relation to a mining workplace that is not a mine—1 September 2001, or

(c)  in relation to a mining workplace that is a mine—1 September 2008, or

(d)  in relation to a coal workplace—23 December 2006.

85   Manufacturers and importers of plant designed outside the State to ensure that designer’s responsibilities are met

A person who:

(a)  manufactures in New South Wales plant designed outside the State, or

(b)  imports plant designed outside the State for supply to others or for the person’s own use,

must ensure that the responsibilities of a designer under this Division are met in relation to the plant.

Maximum penalty: Level 4.

86   Designer to identify hazards

A designer of plant must identify any foreseeable hazard that may arise from the design of the plant and that has the potential to harm the health or safety of any person during the manufacture, installation, erection, commissioning, use, repair, dismantling, storage or disposal of the plant at a place of work or, in the case of plant affecting public safety, at any other place at which the plant is located.

Maximum penalty: Level 4.

87   Designer to assess risks

(1)  A designer of plant must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division and, in particular, must:

(a)  evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and

(b)  identify the design requirements and any other actions necessary to eliminate or control the risk.

(2)  In carrying out risk assessment for the purposes of this clause, a designer of plant must take into account the following:

(a)  the impact of the plant on the work environment in which it is designed to operate,

(b)  the range of environmental and operational conditions in which the plant is intended to be manufactured, transported, installed and used,

(c)  the ergonomic needs of persons who may install, erect, use or dismantle the plant,

(d)  the need for safe access and egress for persons who install, erect, use or dismantle the plant,

(e)  any specific risk control measures required by this Regulation (including as to manual handling, hazardous substances, dangerous goods, and the working environment).

Maximum penalty: Level 4.

88   Designer to review risk assessment

A designer must review the risk assessment of plant whenever:

(a)  there is evidence that the risk assessment relating to the plant is no longer valid, or

(b)  an employer, manufacturer, supplier or owner of the plant provides the designer with information about a design fault that has the potential to harm the health or safety of any person.

Maximum penalty: Level 4.

89   Designer to control risks

(1)  A designer must design plant so that risks associated with the manufacture, installation, erection, commissioning, use, repair, dismantling, storage and disposal of the plant are eliminated or, if this is not reasonably practicable, are controlled.

(2)  In controlling risks, the designer must ensure that the plant is designed:

(a)  having regard to ergonomic principles, and

(b)  so that safe access can be gained to the various components for purposes of maintenance, adjustment, repair and cleaning, and

(c)  so that the build up of unwanted substances or materials that create a risk is minimised, and

(d)  in the case of plant designed to work near electrical conductors, having regard to such safety requirements as insulation, earthing and appropriate access to controls.

Maximum penalty: Level 4.

90   Guarding—particular risk control measures

(1)  A designer of plant must ensure that any device that prevents or reduces access to a danger point or area:

(a)  is designed to be a permanently fixed physical barrier or, if access to the danger point or area is required during normal operation, maintenance or cleaning:

(i)  is designed to be an interlocking type physical barrier, or

(ii)  is a presence sensing safeguarding system, and

(b)  is designed to make by-passing or defeating it, whether deliberately or by accident, as difficult as is reasonably possible, and

(c)  is designed to be of solid construction and securely mounted so as to resist impact and shock, and

(d)  is designed so as not to cause a risk itself.

(2)  In subclause (1), a presence sensing safeguarding system, in relation to plant, means a presence sensing safeguarding system that includes:

(a)  a sensing system that employs one or more forms of radiation, either self-generated or generated by pressure, and

(b)  an interface between the final switching devices of the system and the plant’s primary control elements, and

(c)  plant stopping capabilities,

      whereby the presence of a person or part of a person within a sensing field will cause the dangerous parts of the plant to be brought to a safe state.

(3)  The designer must ensure that any guards intended to provide protection from parts of the plant or work pieces that may break, disintegrate or be ejected are designed to contain effectively the parts, work pieces or any fragments of them.

(4)  The designer must specify the work procedures, devices or tools that are necessary to clear safely any jamming or blockage of moving parts that may occur.

Maximum penalty: Level 4.

91   Operational controls—particular risk control measures

(1)  A designer of plant must ensure that operational controls are:

(a)  suitably identified on the plant so that their nature and function is clear, and

(b)  located so as to be operated readily and conveniently by each person using the plant, and

(c)  located or guarded to prevent unintentional activation, and

(d)  able to be locked in the “off” position (or include an alternative method of power isolation) to enable disconnection of all motive power and forces.

(2)  A designer must ensure that, if it is not reasonably practicable for the plant to be stopped during maintenance and cleaning, operational controls that permit safe controlled operation are provided.

(3)  A designer must ensure that, if:

(a)  plant is designed to be operated or attended by more than one person, and

(b)  more than one control is fitted to the plant,

      the controls are of the “stop and lock-off” type so that the plant cannot be restarted after a stop control has been used unless each stop control is reset.

Maximum penalty: Level 4.

92   Emergency stops and warning devices—particular risk control measures

(1)  A designer of plant must ensure that, if warning devices are necessary to secure safety, they are placed in a position that serves that purpose.

(2)  A designer must ensure that emergency stop devices:

(a)  are prominent, clearly and durably marked and immediately accessible to each operator of the plant, and

(b)  have handles, bars or push buttons that are coloured red, and

(c)  are not able to be affected by electrical or electronic circuit malfunction.

Maximum penalty: Level 4.

93   Design of powered mobile plant—particular risk control measures

(1)  A designer of powered mobile plant must ensure that the plant is designed to minimise the risk of unintended overturning or a falling object coming into contact with the operator.

(2)  A designer must ensure that powered mobile plant is designed to incorporate an appropriate combination of operator protective devices if there is a risk of the plant overturning, objects falling on the operator or the operator being ejected.

(3)  A designer of powered mobile plant must ensure that:

(a)  a tractor designed to have a mass of 560 kg or more, but less than 15,000 kg, is designed to include a protective structure that conforms with AS 1636.1—1996, AS 1636.2—1996 and AS 1636.3—1996 Tractors—Roll-over protective structures—Criteria and tests, as appropriate to the type of tractor involved, and

(b)  earth moving machinery designed to have a mass of 700 kg or more, but less than 100,000 kg, is designed to include a protective structure that conforms with AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997 Earth-moving machinery—Protective structures.

(3A)  Subclause (3) does not apply to powered mobile plant intended for use in the underground parts of a mining workplace or a coal workplace.

(3B)  Despite subclause (3A), a person who designs powered mobile plant intended for use in the underground parts of a mining workplace or a coal workplace, in controlling risks, must ensure that the plant is designed having regard to the safety requirements specified in subclause (3) when determining measures to control the risk of overturning or of a falling object coming into contact with the operator.

(4)  A designer of powered mobile plant must ensure that the plant is designed to incorporate warning devices that are appropriate to warn effectively persons who are at risk from the movement of the plant.

Maximum penalty: Level 4.

94   Mandatory design standards—particular risk control measures

A designer of plant must ensure that the design of:

(a)  boilers and pressure equipment, and

(b)  cranes (including hoists and winches), and

(c)  scaffolding, and

(d)  lifts, escalators and moving walks, and

(e)  gas cylinders, and

(f)  amusement devices,

complies with relevant standards listed in Schedule 1 (Standards covering design and manufacture of plant).

Maximum penalty: Level 4.

95   Specifying work systems and operator competencies—particular risk control measures

A designer of plant must specify systems of work or operator competencies if they are necessary for the safe manufacture, installation, erection, commissioning, use, repair, maintenance, dismantling or disposal of plant.

Maximum penalty: Level 4.

96   Designer to provide information

(1)  A designer of plant must provide other persons who have responsibilities under this Regulation with all available information about the plant that is necessary to enable the other persons to fulfil their responsibilities with respect to the following:

(a)  identifying hazards,

(b)  assessing risks arising from these hazards,

(c)  eliminating or controlling those risks,

(d)  providing information.

(2)  Without limiting subclause (1), a designer of plant must ensure that a person who manufactures the plant is provided with sufficient information to enable the plant to be manufactured in accordance with the design specifications and, as far as practicable, with information relating to the following:

(a)  the purpose for which the plant is designed,

(b)  testing or inspections to be carried out on the plant,

(c)  installation, commissioning, operation, maintenance, inspection, cleaning, transport, storage and, if the plant is capable of being dismantled, dismantling of the plant,

(d)  systems of work necessary for the safe use of the plant,

(e)  knowledge, training or skill necessary for persons undertaking inspection and testing of the plant,

(f)  emergency procedures.

(3)  A designer of plant who manufactures the plant must ensure that the information specified in subclause (2) (a) to (f) inclusive is provided to any person who obtains the plant for the person’s own use or who supplies the plant to others.

Maximum penalty: Level 4.

97   Designer to obtain information

(1)  A designer of plant must obtain such available information as is necessary to enable the designer to fulfil the designer’s responsibilities under this Regulation with respect to the following:

(a)  identifying hazards,

(b)  assessing risks arising from those hazards,

(c)  eliminating or controlling those risks,

(d)  providing information.

(2)  If a designer has a contract with an employer to design a specific item of plant, the designer must obtain from the employer any relevant information about matters with respect to the plant that may affect health and safety at the place of work.

Maximum penalty: Level 4.

Division 2 Manufacture of plant

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

98   Application

(1)  This Division applies to the manufacture of:

(a)  plant for use at work, and

(b)  plant affecting public safety.

(2)  This Division applies to plant manufactured after 1 September 2001.

(3)  A manufacturer is not required to comply with clauses 100–103 within the period of 12 months after the prescribed date.

(4)  In this clause:

prescribed date means:

(a)  in relation to a workplace that is not a mining workplace or a coal workplace—1 September 2001, or

(b)  in relation to a mining workplace that is not a mine—1 September 2001, or

(c)  in relation to a mining workplace that is a mine—1 September 2008, or

(d)  in relation to a coal workplace—23 December 2006.

99   Importers of plant manufactured outside the State to ensure that manufacturer’s responsibilities are met

A person who imports plant 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 Division are met in relation to the plant.

Maximum penalty: Level 4.

100   Manufacturer to identify hazards

A manufacturer of plant must identify any foreseeable hazard that may be incorporated into the plant during the manufacturing process and that has the potential to harm the health or safety of any person during the installation, erection, commissioning, use, repair, dismantling, storage or disposal of the plant at a place of work or, in the case of plant affecting public safety, at any other place at which the plant is located.

Maximum penalty: Level 4.

101   Manufacturer to assess risks

A manufacturer of plant must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division and, in particular, must:

(a)  evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and

(b)  as far as practicable, consult with the designer of the plant with respect to actions necessary to eliminate or control the risk, and

(c)  identify any actions necessary to eliminate or control the risk, taking into account any specific risk control measures required by this Regulation (including as to manual handling, hazardous substances, dangerous goods, and the working environment).

Maximum penalty: Level 4.

102   Manufacturer to review risk assessment

A manufacturer of plant must review the risk assessment of plant whenever:

(a)  there is evidence that the risk assessment of the plant is no longer valid, or

(b)  the manufacturer is provided with information about a design or manufacturing fault that has the potential to harm the health or safety of any person.

Maximum penalty: Level 4.

103   Manufacturer to control risks

(1)  A manufacturer of plant must not incorporate any risk into the plant during the manufacturing process or, if this is not reasonably practicable, must control the risk.

(2)  Any such control of risks must, so far as is reasonably practicable, be achieved by means other than through the use of personal protective equipment.

(3)  In controlling risks, a manufacturer must ensure in relation to the manufacture of plant that:

(a)  if any fault in the design of the plant that may affect health or safety is identified during the manufacturing process:

(i)  the fault is not incorporated into the plant, and

(ii)  as far as is reasonably practicable, the designer of the plant is consulted regarding the rectification of the fault and, if possible, arrangements are made with the designer for the alteration of the design to eliminate or control the risk, and

Note. Division 1 of this Part applies with respect to the alteration of designs. A manufacturer who alters a design to eliminate a risk must comply with the design requirements of Division 1 in relation to the alteration.

(b)  subject to paragraph (a)—plant specified in clause 94 (Mandatory design standards—particular risk control measures) and designed after the prescribed date is manufactured and inspected, and tested (if required), according to the relevant Standards set out in Schedule 1 (Standards covering design and manufacture of plant), having regard to the designer’s specifications, and

(c)  subject to paragraph (a) and so far as is reasonably practicable—plant specified in clause 94 and designed before the prescribed date is manufactured and inspected, and tested (if required), according to relevant Standards set out in Schedule 1, having regard to the designer’s specifications.

(4)  In this clause:

prescribed date means:

(a)  in relation to a workplace that is not a mining workplace or a coal workplace—1 September 2001, or

(b)  in relation to a mining workplace that is not a mine—1 September 2001, or

(c)  in relation to a mining workplace that is a mine—1 September 2008, or

(d)  in relation to a coal workplace—23 December 2006.

Maximum penalty: Level 4.

104   Manufacture of powered mobile plant—particular risk control measures

(1)  A manufacturer of powered mobile plant must ensure that:

(a)  a tractor designed to have a mass of 560 kg or more, but less than 15,000 kg, is manufactured to include a protective structure that conforms with AS 1636.1—1996, AS 1636.2—1996 and AS 1636.3—1996 Tractors—Roll-over protective structures—Criteria and tests, as appropriate to the type of tractor involved, and

(b)  earth moving machinery designed to have a mass of 700 kg or more, but less than 100,000 kg, is designed to include a protective structure that conforms with AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997 Earth-moving machinery—Protective structures.

(2)  Subclause (1) does not apply to the manufacturer of powered mobile plant intended for use in the underground parts of a mining workplace or a coal workplace.

(3)  Despite subclause (2), a person who manufactures powered mobile plant intended for use in the underground parts of a mining workplace or a coal workplace, in controlling risks, must ensure that the plant is designed having regard to:

(a)  the control measures provided by the designer in compliance with clause 93 (1) and (2), and

(b)  the safety requirements specified in subclause (1) of this clause,

      when determining measures to control the risk of overturning or of a falling object coming into contact with the operator.

Maximum penalty: Level 4.

105   Manufacturer to provide information

(1)  A manufacturer of plant must provide other persons who have responsibilities under this Regulation with all available information about the plant that is necessary to enable the other persons to fulfil their responsibilities with respect to the following:

(a)  identifying hazards,

(b)  assessing risks arising from those hazards,

(c)  eliminating or controlling those risks,

(d)  providing information.

(2)  In particular, a manufacturer of plant must ensure that a person supplying plant for use at work or plant affecting public safety is provided with:

(a)  the information provided to the manufacturer by the designer of the plant relating to the following:

(i)  the purpose for which the plant is designed,

(ii)  testing or inspections to be carried out on the plant,

(iii)  installation, commissioning, operation, maintenance, inspection, cleaning, transport, storage and, if the plant is capable of being dismantled, dismantling of the plant,

(iv)  systems of work necessary for the safe use of the plant,

(v)  knowledge, training or skill necessary for persons undertaking testing and inspection of the plant,

(vi)  emergency procedures, and

(b)  any document relating to the testing and inspection of the plant.

(3)  A manufacturer of plant who supplies plant for use at work or plant affecting public safety must ensure that the information specified in subclause (2) is provided to the owner or purchaser of the plant.

(4)  If, after the supply of a particular item of plant, a fault is found in plant of the same kind that may affect health or safety, the manufacturer must take all reasonable steps to advise the owner of the particular item of plant of the fault and provide the owner with details as to what steps are required to rectify the fault.

Maximum penalty: Level 4.

106   Manufacturer to obtain information

(1)  A manufacturer of plant must obtain such available information as is necessary to enable the manufacturer to fulfil the manufacturer’s responsibilities under this Regulation with respect to the following:

(a)  identifying hazards,

(b)  assessing risks arising from those hazards,

(c)  eliminating or controlling those risks,

(d)  providing information.

(2)  A manufacturer must obtain the information that a designer is required to provide to the manufacturer under clause 96 (2).

Maximum penalty: Level 4.

Division 3 Registration of plant

Note. Clause 127 (2) (c) and (d) in Part 5.3 (Supply of plant) prohibits the hire or lease of certain items of plant unless they have a current design registration number or a current item registration number and clause 136 (1) in Part 5.4 (Working with plant) prohibits the use of certain items of plant unless similar requirements are met.

Subdivision 1 Registration of plant design

107   Application for registration of plant design

(1)  A person may apply:

(a)  to WorkCover to register the design of plant specified in Part 1 of the Table to this clause, or

(b)  to the Department Head (Mining) to register the design of plant specified in Part 2 of the Table to this clause.

(2)  A person who applies for registration of a plant design must ensure that:

(a)  a competent person verifies and records in writing that:

(i)  in the case of plant specified in Part 1 of the Table to this clause—the design complies with relevant standards listed in Schedule 1 (Standards covering design and manufacture of plant), or

(ii)  in the case of plant specified in Part 2 of the Table to this clause—the design complies with the design and performance standards published in the Gazette by the Department Head (Mining), and

(b)  the design verifier does not have any involvement in the design being verified, and

(c)  the designer and the design verifier are not employed or engaged by the same person unless that person uses a quality system to undertake the design of items of plant that:

(i)  meets the requirements of AS/NZS/ISO 9001:1994 Quality systems—Model for quality assurance in design, development, production, installation and servicing, and

(ii)  has been certified by a body accredited or approved by the Joint Accreditation System of Australia and New Zealand.

(3)  The application for registration of a plant design must be accompanied by the following:

(a)  a compliance statement, signed by the designer of the plant, stating that the designer has complied with the matters, specified in this Regulation, for which a designer of plant is responsible (unless the plant is listed under Part 2 of the Table to this clause and was manufactured before 23 December 2006, in the case of a coal workplace or was manufactured before 1 September 2008 in the case of a mining workplace that is a mine),

(b)  a verification statement for the purposes of subclause (2) that includes the name, business address and qualifications of the design verifier of the plant and, if applicable, the name and business address of any person employing the design verifier,

(c)  representational drawings of the plant design,

(d)  a fee in such amount as WorkCover or the Department Head (Mining), as the case requires, may determine as the appropriate amount to cover expenses in connection with the processing of applications for registration of plant designs,

(e)  any relevant statement of limitations of use.

Table

Part 1   General plant

Boilers and pressure vessels categorised as being of hazard level A, B, C or D according to the criteria in AS 4343—1999

Gas cylinders

Tower cranes

Gantry cranes with a rated capacity greater than 5 tonnes

Bridge cranes with a rated capacity greater than 10 tonnes

Gantry cranes and bridge cranes designed to handle molten metal or dangerous goods (within the meaning of the ADG Code)

Mobile cranes with a rated capacity greater than 10 tonnes

Boom-type elevating work platforms

Lifts (including escalators and moving walkways)

Building maintenance units

Hoists, with a platform movement in excess of 2.4 metres, designed to lift people

Work boxes suspended from cranes

Prefabricated scaffolding

Mast climbing work platforms

Vehicle hoists

Amusement devices (other than coin operated amusement devices) that are, or may be, operated otherwise than by manual power

Part 2   Mining specific plant

Diesel engine systems used in underground mines at a coal workplace

Powered winding systems used in a mining workplace or coal workplace

Booster fans used in underground mines at a coal workplace

Braking systems on plant used in underground transport in underground mines at a coal workplace

Canopies on continuous miners used in underground mines at a coal workplace

Portable or hand-held plant or items used to determine or monitor the presence of gases for the purposes of the Coal Mine Health and Safety Act 2002 and used in underground mines at a coal workplace

Breathing apparatus to assist escape from the underground parts of the coal operation (including self-rescuers) used in underground mines at a coal workplace

Shotfiring apparatus used in underground mines at a coal workplace

Detonators used in underground mines at a coal workplace

Explosive-powered tools used in underground mines at a coal workplace

Refuge chambers used in underground mines at a coal workplace

Conveyor belts used in underground mines at a coal workplace

108   Further information may be requested

On request from WorkCover or the Department Head (Mining), as the case requires, the applicant for registration of a plant design must provide, at any reasonable time required by WorkCover or the Department Head (Mining), any one or more of the following as specified in the request:

(a)  detailed drawings of the plant design,

(b)  design calculations,

(c)  details of operating instructions,

(d)  diagrams of control systems, including the sequence of operating the controls,

(e)  details of maintenance requirements,

(f)  a statement of limitations of use.

Note. An applicant for registration of a plant design commits an offence under clause 356 if the applicant makes a false or misleading statement in the application.

109   Processing of application

(1)  On receipt of the application for registration of a plant design, WorkCover or the Department Head (Mining), as the case requires, must, subject to being provided with any further information that WorkCover or the Department Head (Mining) requires under this Subdivision for the purposes of the application:

(a)  register the plant design (with or without conditions, including any limitations of use) and issue a design registration number, or

(b)  refuse to register the plant design.

Note. See clause 351 as to the review by the Administrative Decisions Tribunal of a decision by WorkCover or the Department Head (Mining) to refuse to register a plant design under this clause.

(2)  A design registration applies only to a design as described and verified in the application for registration of the design.

110   Cancellation of design registration in certain circumstances

(1)  WorkCover may cancel the registration of a plant design registered by WorkCover if satisfied that:

(a)  the applicant for registration of the plant design made a statement or furnished information, in or in connection with the application for the plant design, that the applicant knew, when the statement was made or the information was provided, to be false or misleading in a material particular, or

(b)  on the basis of information received by WorkCover, the design is unsafe.

(1A)  The Department Head (Mining) may cancel the registration of a plant design registered by the Department Head (Mining) if satisfied that:

(a)  the applicant for registration of the plant design made a statement or furnished information, in or in connection with the application for the plant design, that the applicant knew, when the statement was made or the information was provided, to be false or misleading in a material particular, or

(b)  on the basis of information received by the Department Head (Mining), the design is unsafe.

(2)  Before cancelling the registration, WorkCover or the Department Head (Mining), as the case requires:

(a)  must cause notice of the proposed cancellation to be given to the person to whom the plant design registration number was issued, and

(b)  must give the person a reasonable opportunity to make representations to WorkCover or the Department Head (Mining), as the case requires, in relation to the proposed cancellation, and

(c)  must have regard to any representations so made.

(3)  The cancellation of a plant design takes effect on the date on which notice of the cancellation is given to the person to whom the plant design registration number was issued or on such later date as may be specified in the notice.

111   Design registration number to be provided to certain persons

(1)  A person who is issued with a design registration number under this Subdivision must provide the number to any person who proposes to manufacture plant to the design to which the number relates or who proposes to sell or transfer plant manufactured to the design to which the number relates.

(2)  A person who sells or transfers plant that has been manufactured to a design for which a design registration number has been issued must provide the number to any person who owns the plant or who has control of the plant.

Maximum penalty: Level 1.

112   Registration under equivalent law

A design is taken to be registered under and for the purposes of this Regulation if a design registration number has been issued for it by a statutory authority under a law that imposes registration requirements that are reasonably equivalent to the registration requirements imposed by this Subdivision.

112A   Savings concerning coal workplaces

(1)  An item of plant design referred to in Part 2 of the Table to clause 107 that was approved, or taken to be approved, under clause 70 of the Coal Mines (General) Regulation 1999, and any plant design that is in the opinion of the Chief Inspector equivalent to such an approved plant design:

(a)  if the approval was given less than 20 years before 23 December 2006—is, until 23 December 2008, taken to be registered under this Chapter subject to the same conditions as to which it was approved, or

(b)  if the approval was given 20 years or more before 23 December 2006—is, until 23 December 2007, taken to be registered under this Chapter subject to the same conditions as to which it was approved.

(2)  The registration of a plant design referred to in subclause (1) may be varied, suspended or cancelled in accordance with this Chapter.

(3)  In this clause:

Chief Inspector means the Chief Inspector appointed under the Coal Mine Health and Safety Act 2002.

Subdivision 2 Registration of items of plant

113   Application for registration of item of plant

(1)  In this clause:

person who has control in relation to an item of plant, includes the owner or a lessee of the plant.

(2)  A person:

(a)  who has control of an item of plant specified in Part 1 of the Table to this clause may apply to WorkCover to register the plant, or

(b)  who has control of an item of plant specified in Part 2 of the Table to this clause may apply to the Department Head (Mining) to register the plant.

(3)  A person who applies for the registration of an item of plant must provide the following at the time of making the application:

(a)  sufficient information to identify the item of plant clearly,

(b)  if the design of the plant is required to be registered, notification of:

(i)  the design registration number, and

(ii)  the name of the statutory authority with which the plant design is registered,

(c)  a statement that the plant has been inspected by a competent person and is safe to operate,

(d)  a fee in such amount as WorkCover or the Department Head (Mining), as the case requires, may determine as the appropriate amount to cover expenses in connection with the processing of applications for registration of an item of plant.

(4)  A person who applies for the registration of an item of plant must provide WorkCover or the Department Head (Mining), as the case requires, with any additional information concerning the plant that WorkCover or the Department Head (Mining) reasonably requires at the time of the making of the application or at any reasonable time after that time.

Note. An applicant for registration of an item of plant commits an offence under clause 356 if the applicant makes a false or misleading statement in the application.

Table

Part 1   General plant

Boilers categorised as being of hazard level A, B or C according to the criteria in AS 4343—1999

Pressure vessels categorised as being of hazard level A, B or C according to the criteria in AS 4343—1999 except the following:

(a)  LP gas fuel vessels for automotive use covered by AS/NZS 3509:1996,

(b)  serially produced pressure vessels covered by AS 2971—1987,

(c)  pressure vessels that do not require periodic internal inspection in accordance with the criteria in Table 4.1 in AS/NZS 3788:1996

Lifts (including escalators and moving walkways) as defined in AS 1735 Parts 1 to 17 (as listed in Schedule 1)

Amusement devices (other than coin operated amusement devices) that are, or may be, operated otherwise than by manual power

Tower cranes

Building maintenance units

Concrete placing units (truck mounted with boom)

Mobile cranes with a safe working load greater than 10 tonnes

Part 2   Mining specific plant

Booster fans used in underground mines at a coal workplace

Diesel engine systems used in underground mines at a coal workplace

Powered winding systems used in a coal workplace or mining workplace.

114   Additional requirements for application to register amusement device

An owner of an amusement device who wishes to apply to WorkCover to register an amusement device referred to in the Table to clause 113 must, in addition to complying with clause 113, provide the following at the time of making the application:

(a)  2 photographs of the amusement device,

(b)  a certificate of a qualified engineer certifying that:

(i)  the engineer has, within 3 months before the date of the application, inspected the amusement device (including an inspection of the amusement device assembled and in operation without passengers), and

(ii)  in the engineer’s opinion, the amusement device is mechanically and structurally capable, under the conditions of use specified in the application, of safely supporting, at any one time, the number of persons or the load stated in the application to be the maximum number of persons or the maximum load to be supported by the amusement device, and

(iii)  the engineer has checked that all necessary maintenance of, and repairs to, the amusement device have been carried out, that details of the maintenance and repairs have been accurately recorded in the log book for the amusement device by a competent person and that the operating and maintenance manuals for the amusement device are kept with it, and

(iv)  if the amusement device was manufactured on or after 5 December 1997, it complies with such of the provisions of AS 3533.1—1997 Amusement rides and devices Part 1: Design and construction as are applicable to it,

(c)  if the amusement device includes any electrical installation, a certificate of a qualified electrical engineer, issued within 3 months before the date of the application, certifying that the engineer has inspected the electrical installation and that, in the engineer’s opinion, the electrical installation:

(i)  complies with the provisions of AS/NZS 3000:2000 Electrical installations (known as Australian/New Zealand Wiring Rules) and AS 3002—1985 Electrical installations—Shows and carnivals that are applicable to it and that were so applicable at the time of its initial manufacture, or

(ii)  if manufactured on or after 5 December 1997, complies with such of the provisions of AS 3533.1—1997 that are applicable to it.

115   Processing of application

On receipt of the application for registration of an item of plant, WorkCover or the Department Head (Mining), as the case requires, must, subject to clause 113 (4):

(a)  register the plant (with or without conditions) and issue evidence, in accordance with this Subdivision, that the plant is currently registered, or

(b)  refuse to register the plant.

Note. See clause 351 as to the review by the Administrative Decisions Tribunal of a decision by WorkCover or the Department Head (Mining) to refuse to register an item of plant or to impose a condition on registration of an item of plant under this clause.

116   Cancellation of registration of item of plant in certain circumstances

(1)  WorkCover may cancel the registration of an item of plant registered by WorkCover if:

(a)  satisfied that the applicant for registration of the plant made a statement or furnished information, in or in connection with the application for registration, that the applicant knew, when the statement was made or the information was provided, to be false or misleading in a material particular, or

(b)  the registration of the plant design for plant of the kind concerned has been cancelled under clause 110.

(1A)  The Department Head (Mining) may cancel the registration of an item of plant registered by the Department Head (Mining) if:

(a)  satisfied that the applicant for registration of the plant made a statement or furnished information, in or in connection with the application for registration, that the applicant knew, when the statement was made or the information was provided, to be false or misleading in a material particular, or

(b)  the registration of the plant design for plant of the kind concerned has been cancelled under clause 110.

(2)  Before cancelling the registration, WorkCover or the Department Head (Mining), as the case requires:

(a)  must cause notice of the proposed cancellation to be given to the person by whom the item of plant was registered, and

(b)  must give the person a reasonable opportunity to make representations to WorkCover or the Department Head (Mining), as the case requires, in relation to the proposed cancellation, and

(c)  must have regard to any representations so made.

(3)  The cancellation of the registration of an item of plant takes effect on the date on which notice of the cancellation is given to the person who registered the plant or on such later date as may be specified in the notice.

117   Automatic cancellation of registration

The registration of an item of plant is cancelled by the operation of this clause if:

(a)  the plant is altered, or

(b)  in the case of plant that is normally fixed in position, the plant is relocated and the person who registered the item of plant (that is, WorkCover or the Department Head (Mining)) is not notified of the relocation within 14 days of its occurrence, or

(c)  there is a change of the person in control of the plant (including a change of owner or lessee) and the person who registered the item of plant (that is, WorkCover or the Department Head (Mining)) is not notified of the change within 14 days of its occurrence, or

(d)  there is a breach of a condition subject to which the plant was registered under clause 115 (a).

Note. See clause 351 as to the review by the Administrative Decisions Tribunal of a decision by WorkCover or the Department Head (Mining) to cancel the registration of an item of plant under this clause.

118   Renewal of registration

(1)  In this clause:

person who has control, in relation to plant that is an amusement device, includes the owner or a lessee of the amusement device.

(2)  A person who has control of plant that is registered by WorkCover or the Department Head (Mining), as the case requires, under this Subdivision must provide WorkCover, at the intervals specified in guidelines issued by WorkCover or the Department Head (Mining) from time to time in relation to such plant, with such information concerning compliance with requirements relating to maintenance of the plant as WorkCover or the Department Head (Mining) may specify.

Maximum penalty: Level 1.

(3)  A notification under this clause must comply with the guidelines referred to in subclause (2) and must be accompanied by:

(a)  a statement, by the person who has control of the plant, that the plant has been maintained and is safe to operate, and

(b)  a fee in such amount as WorkCover or the Department Head (Mining), as the case requires, may determine as the appropriate amount to cover the administrative costs of WorkCover or the Department Head (Mining) in connection with the renewal of the registration of items of plant.

(4)  A notification under this clause in respect of an amusement device must also be accompanied by:

(a)  a certificate of a qualified engineer as referred to in clause 114 (b) (certificate to be lodged with an application to register an amusement device), and

(b)  if the amusement device includes any electrical installation, a certificate of a qualified electrical engineer, issued within 3 months before the date of the notification, certifying that the engineer has inspected the electrical installation and that, in the engineer’s opinion, the electrical installation complies with such of the provisions of AS 3533.1—1997 Amusement Rides and Devices Part 1: Design and Construction as are applicable to it.

(5)  On receipt of a notification under this clause, WorkCover or the Department Head (Mining), as the case requires, must:

(a)  issue evidence that the plant is currently registered, or

(b)  seek additional information concerning the plant.

(6)  If a notification under this clause is not received by WorkCover or the Department Head (Mining), as the case requires, by the date on which it is due, or if the information in the notification is not satisfactory to WorkCover or the Department Head (Mining), WorkCover or the Department Head (Mining) may discontinue the registration of an item of plant.

Note. See clause 351 as to the review by the Administrative Decisions Tribunal of a decision by WorkCover or the Department Head (Mining) to discontinue the registration of an item of plant under this clause.

(7)  WorkCover or the Department Head (Mining), as the case requires, may accept a late notification under this clause.

119   Registration under equivalent law

An item of plant (other than an amusement device or plant normally fixed in position) is taken to be registered under and for the purposes of this Regulation if the item has been registered by a statutory authority under a law that imposes registration requirements that are reasonably equivalent to the registration requirements imposed by this Subdivision.

119A   Savings concerning coal workplaces

(1)  An item of plant referred to in Part 2 of the Table to clause 113 that was approved, or taken to be approved, under clause 70 of the Coal Mines (General) Regulation 1999, and any item that is in the opinion of the Chief Inspector equivalent to such an approved item:

(a)  if the approval was given less than 20 years before 23 December 2006—is, until 23 December 2008, taken to be registered under this Chapter subject to the same conditions as to which it was approved, or

(b)  if the approval was given 20 years or more before 23 December 2006—is, until 23 December 2007, taken to be registered under this Chapter subject to the same conditions as to which it was approved.

(2)  The registration of an item referred to in subclause (1) may be varied, suspended or cancelled in accordance with this Chapter.

(3)  In this clause:

Chief Inspector means the Chief Inspector appointed under the Coal Mine Health and Safety Act 2002.

Part 5.3 Supply of plant

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

Division 1 Preliminary

120   Application

(1)  This Part applies to the sale, transfer, lease and hire of plant for use at work and plant affecting public safety.

(2)  In addition to applying to plant of the kinds referred to in subclause (1), Division 3 also applies to the hire or lease of the following plant in a place of work that is not under the management or control of an employer:

(a)  plant under pressure,

(b)  plant designed to lift or move people, equipment or materials including escalators, moving walks and lifts.

(3)  This Part applies to plant supplied after the prescribed date.

(4), (5)  (Repealed)

(6)  In this clause:

prescribed date means:

(a)  in relation to a workplace that is not a mining workplace or a coal workplace—1 September 2001, or

(b)  in relation to a mining workplace that is not a mine—1 September 2001, or

(c)  in relation to a mining workplace that is a mine—1 September 2008, or

(d)  in relation to a coal workplace—23 December 2006.

Note. See clauses 85 and 99 as to compliance with the requirements of this Chapter relating to plant designed or manufactured outside New South Wales and imported for supply in the State.

Division 2 Sale or transfer of plant

121   Seller or transferor to control risks

(1)  A person who sells or transfers new plant must ensure that risks arising from the condition of the plant are eliminated or, if this is not reasonably practicable, controlled.

(2)  A person selling or transferring used plant (other than plant for use as scrap or as spare parts for other plant) must advise the purchaser or intended owner of the plant in writing (before the sale or transfer) of any faults detected in the plant and, if appropriate, that the plant is not to be used until the faults are rectified.

(3)  Without limiting subclause (1), the person selling or transferring the plant must ensure that the plant complies with relevant risk control measures specified in clauses 89–95.

Maximum penalty: Level 4.

122   Seller or transferor to provide information

(1)  A person who sells or transfers plant must ensure that:

(a)  in respect of new plant—the purchaser or new owner of the plant is provided with all available information concerning health and safety about the plant received by the person from the manufacturer, and

(b)  in respect of used plant—the purchaser or new owner of the plant is provided with:

(i)  all available information concerning health and safety about the plant received by the person from the designer and manufacturer, and

(ii)  if available, any record kept by the previous owner of the plant in accordance with the requirements of this Regulation, and

(c)  the purchaser or new owner of the plant is provided with any information, data or certificate provided or kept in accordance with the standards specified in Schedule 1 (Standards covering design and manufacture of plant).

(2)  If plant is suitable only for use as scrap or for spare parts for other plant, the person who is selling or transferring it must advise the purchaser or new owner of the plant in writing or by marking on the plant, before it is sold or transferred, that:

(a)  the plant is sold or transferred for use as scrap or for spare parts for other plant only, and

(b)  the plant in its current state must not to be used for work but may be used only as scrap or for spare parts.

Maximum penalty: Level 4.

123   Seller or transferor to obtain information

(1)  A person who sells or transfers plant must obtain such information as is necessary to enable the person to fulfil the person’s responsibilities with respect to the following:

(a)  eliminating or controlling risks in respect of the plant,

(b)  providing information.

(2)  A person who sells or transfers plant must obtain the information that a manufacturer is required to provide to the person under clause 105 (Manufacturer to provide information).

Maximum penalty: Level 4.

Division 3 Hiring or leasing plant

Note. Clause 120 (1) and (2) applies this Division to plant for use at work, plant affecting public safety and certain other plant (plant under pressure and plant designed to lift or move people, equipment or materials including escalators, moving walks and lifts) that is not under the management or control of an employer but is the responsibility of the owner of the plant.

124   Hirer or lessor to identify hazards

(1)  A person who hires or leases plant to another person must identify any foreseeable hazard that may arise from the condition of the plant and that has the potential to harm the health or safety of any person during the installation, erection, commissioning, use, repair, dismantling, storage or disposal of the plant at a place of work or, in the case of plant affecting public safety, at any other place at which the plant is located.

(2)  Without limiting subclause (1), the person hiring or leasing the plant must ensure that:

(a)  the plant is inspected regularly and, at a minimum, once between each hiring and leasing, and

(b)  inspections of the plant are carried out having regard to procedures:

(i)  recommended by the designer and manufacturer, or

(ii)  developed by a competent person.

Maximum penalty: Level 4.

125   Hirer or lessor to assess risks

(1)  A person who hires or leases plant to another person must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division and, in particular, must:

(a)  evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and

(b)  identify any actions necessary to eliminate or control the risk, taking into account any specific risk control measures required by this Regulation (including as to manual handling, hazardous substances, dangerous goods, and the working environment), and

(c)  identify the records that it is necessary to keep to ensure that risks are eliminated or controlled and determine the length of time for which the records are to be kept.

(2)  A person who hires or leases plant to another person must ensure that:

(a)  an assessment is carried out to determine:

(i)  whether the plant should be tested to check if new or increased risks to health or safety have developed, and

(ii)  if so, the frequency at which the testing should occur, and

(b)  if the need for testing is identified, the testing is carried out and recorded and the records of the testing are maintained for the operating life of the plant.

(3)  The assessment may be carried out:

(a)  on individual items of plant, or

(b)  if multiple items of plant of the same design are installed and used under conditions that are the same for all practical purposes—on a representative sample of the items.

Maximum penalty: Level 4.

126   Hirer or lessor to review risk assessment

A person who hires or leases plant to another person must review a risk assessment whenever:

(a)  there is evidence that the risk assessment of the plant is no longer valid, or

(b)  the designer or manufacturer of the plant or a person who has hired or leased the plant or similar plant provides information about a fault in the plant or similar plant that has the potential to harm the health or safety of any person.

Maximum penalty: Level 4.

127   Hirer or lessor to control risks

(1)  A person who hires or leases plant to another person must ensure that risks arising from the condition of the plant are eliminated or, if this is not practicable, controlled.

(2)  Without limiting subclause (1), the person hiring or leasing the plant to another person must not hire or lease:

(a)  plant designed or manufactured before the prescribed date unless the plant complies with relevant control measures specified in clauses 89–93 inclusive, and

(b)  plant designed and manufactured after the prescribed date unless the plant complies with relevant control measures specified in clauses 89–94 inclusive, and

(c)  plant of a kind specified in the Table to clause 107 (Plant for which designs are to be registered) unless the plant has a current design registration number issued under clause 109 (Processing of application by WorkCover) and evidence of the registration is provided with the plant, and

(d)  plant of a kind specified in the Table to clause 113 (Items of plant required to be registered) unless the plant has a current item registration number issued under clause 115 or 118 (or under the Construction Safety Regulations 1950) and evidence of the registration is provided with the plant.

(3)  A person who hires or leases plant referred to in subclause (2) (c) to another person must inform that other person of any limitations of use provided in the design registration conditions.

(4)  (Repealed)

(5)  In this clause:

prescribed date means:

(a)  in relation to a workplace that is not a mining workplace or a coal workplace—1 September 2001, or

(b)  in relation to a mining workplace that is not a mine—1 September 2001, or

(c)  in relation to a mining workplace that is a mine—1 September 2008, or

(d)  in relation to a coal workplace—23 December 2006.

Maximum penalty: Level 4.

Note. Division 1 of Part 5.2 relating to the design of plant also applies to alterations to plant designs. A supplier who alters a design to eliminate or control a risk must comply with the design requirements of that Division. (See clause 84 (2) (b) and see also the definition of alter in clause 82 (1).)

128   Maintenance, repair, testing and cleaning of plant—particular risk control measures

(1)  A person who hires or leases plant to another person must ensure that:

(a)  maintenance and cleaning are carried out having regard to procedures:

(i)  recommended by the designer and manufacturer, or

(ii)  developed by a competent person, and

(b)  all safety features of the plant (including, in the case of plant intended to be used on or near electrical conductors, all insulation, earthing and controls) and all warning devices for the plant are maintained and tested, and

(c)  if plant has been damaged or worn to the extent that its function or condition is likely to be impaired and the risk to health or safety is likely to be increased, a competent person assesses the damage or wear and advises the hirer or lessor as to:

(i)  the nature and extent of the damage or wear, and

(ii)  whether or not the function or condition of the plant has been impaired owing to the damage or wear, and

(iii)  whether or not any such impairment has produced an increase in risk to health or safety, and

(iv)  whether the plant is able to be repaired and, if so, what repairs must be carried out to minimise risks to health and safety, and

(d)  maintenance, repair, cleaning and, if necessary, testing is carried out by a competent person, and

(e)  repairs to the plant are carried out so as to retain the plant within its design limits.

Maximum penalty: Level 4.

(2)  In the case of plant that is an amusement device, the reference in subclause (1) (c) to a competent person is to be read as a reference to a qualified engineer.

129   Plant under pressure—particular risk control measures

A person who hires or leases plant under pressure to another person must ensure:

(a)  pressure equipment (excluding gas cylinders) is inspected and maintained in accordance with AS/NZS 3788:1996 Pressure equipment—in-service inspection so far as it is relevant to the pressure equipment concerned, and

(b)  gas cylinders comply with AS 2030 Parts 1, 2 and 4 (as listed in Schedule 1) and are inspected and maintained in accordance with that Australian Standard.

Maximum penalty: Level 4.

130   Powered mobile plant—particular risk control measures

(1)  A person must not hire or lease to another person a tractor designed to have a mass of 560 kg or more, but less than 15,000 kg, unless:

(a)  if the tractor was manufactured, imported or originally purchased after 1981, it is securely fitted with a protective structure that conforms with AS 1636.1—1996, AS 1636.2—1996 and AS 1636.3—1996 Tractors—Roll-over protective structures—Criteria and tests, or

(b)  if the tractor was manufactured, imported or originally purchased during or before 1981, it is securely fitted with:

(i)  a roll-over protective structure that conforms with AS 1636.1—1996, AS 1636.2—1996 and AS 1636.3—1996 Tractors—Roll-over protective structures—Criteria and tests, or

(ii)  if such a structure is not available, an alternative roll-over protective structure designed by a suitably qualified engineer having regard to the performance requirements of AS 1636.1—1996.

(2)  A person must not hire or lease to another person earthmoving machinery designed to have a mass of 700 kg or more, but less than 100,000 kg, unless:

(a)  if the machinery was manufactured, imported or originally purchased after 1989, it is securely fitted with a protective structure that conforms with AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997 Earth-moving machinery—Protective structures, or

(b)  if the machinery was manufactured, imported or originally purchased during or before 1989, it is securely fitted with:

(i)  a protective structure that conforms with AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997, or

(ii)  if such a structure is not available, an alternative protective structure designed by a suitably qualified engineer having regard to the performance requirements of AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997.

(3)  In designing an alternative structure for the purposes of this clause, an engineer may, if satisfied that deformation testing is not required, substitute calculated deformations.

(4)  Such a structure must be identified with the information required by:

(a)  AS 1636.1—1996, or

(b)  AS 2294.1—1997, AS 2294.2—1997 or AS 2294.3—1997,

      whichever is appropriate.

(5)  Subclauses (1)–(4) do not apply to powered mobile plant intended for use in the underground parts of a mining workplace or a coal workplace.

(6)  Despite subclause (5), a person who hires powered mobile plant intended for use in the underground parts of a mining workplace or a coal workplace, in controlling risks, must ensure that the plant is a designed having regard to the safety requirements specified in subclauses (1)–(4) when determining measures to control the risk of overturning or a falling object coming into contact with the operator.

Maximum penalty: Level 4.

131   Hirer or lessor to keep records

A person who hires or leases plant of a kind specified in the Table to this clause to another person must make and keep records of any tests, maintenance, inspections, commissioning or alteration of plant relevant to controlling risks arising from the plant.

Maximum penalty: Level 3.

Table   Plant for which records are to be kept

Boilers categorised as being of hazard level A, B or C according to the criteria in AS 4343—1999

Pressure vessels categorised as being of hazard level A, B or C according to the criteria in AS 4343:1999 except the following:

(a)  LP gas fuel vessels for automotive use covered by AS/NZS 3509:1996,

(b)  serially produced pressure vessels covered by AS 2971—1987,

(c)  pressure vessels that do not require periodic internal inspection in accordance with the criteria in Table 4.1 in AS/NZS 3788:1996

Tower cranes

Lifts (including escalators and moving walkways)

Building maintenance units

Concrete placing units (truck mounted with boom)

Personnel and materials hoists

Concrete placing units

Industrial lift trucks

Mobile cranes

Gantry cranes with a rated capacity greater than 5 tonnes

Bridge cranes with a rated capacity greater than 10 tonnes

Gantry cranes and bridge cranes designed to handle molten metal or dangerous goods (within the meaning of the ADG Code)

Boom-type elevating work platforms

Hoists, with a platform movement in excess of 2.4 metres, designed to lift or support people

Mast climbing work platforms

Vehicle hoists

Amusement devices

Powered winding systems used in underground mines at a mining workplace or a coal workplace

Conveyors in a mining workplace

Earth moving machinery in a mining workplace

132   Hirer or lessor to provide information

(1)  A person who hires or leases plant to another person must provide other persons who have responsibilities under this Regulation with all available information about the plant that is necessary to enable the other persons to fulfil their responsibilities with respect to the following:

(a)  identifying hazards,

(b)  assessing risks arising from those hazards,

(c)  eliminating or controlling those risks,

(d)  providing information.

(2)  Without limiting subclause (1), a person who hires or leases plant to another person must ensure that the person is provided with relevant health and safety information about the plant including, if appropriate, information about the commissioning, installation, use, testing, de-commissioning and dismantling of the plant.

(3)  Without limiting subclause (1), a person who hires or leases an amusement device to another person must ensure that the person hiring or leasing the amusement device is provided with:

(a)  the log book for the amusement device in which details of all tests, maintenance, inspections, commissioning, alteration or repair of the amusement device have been accurately recorded by a competent person, and

(b)  the operating and maintenance manuals for the amusement device.

Maximum penalty: Level 4.

133   Hirer or lessor to obtain information

(1)  A person who hires or leases plant to another person must obtain such information as is necessary to enable the person to fulfil the person’s responsibilities with respect to the following:

(a)  identifying hazards,

(b)  assessing risks arising from those hazards,

(c)  eliminating or controlling those risks,

(d)  providing information.

(2)  Without limiting subclause (1), a person who hires or leases plant must obtain the information that a manufacturer is required to provide to the person under clause 105 (Manufacturer to provide information).

Maximum penalty: Level 4.

Part 5.4 Working with plant

Note. See note at beginning of this Chapter as to employer including self-employed person.

134   Application

(1)  This Part deals with the installation, erection, commissioning, use, maintenance, repair, dismantling, storage and disposal of plant for use at work and plant affecting public safety.

(2)  The requirements of this Part as to the installation, erection and commissioning of plant apply to plant installed, erected and commissioned:

(a)  in relation to workplaces that are not coal workplaces or mining workplaces, after 1 September 2001, or

(b)  in relation to mining workplaces that are not mines, after 1 September 2001, or

(c)  in relation to coal workplaces, after 23 December 2006, or

(d)  in relation to mining workplaces that are mines, after 1 September 2008.

(3)  The requirements of this Part as to the use, maintenance, repair, dismantling, storage and disposal of plant apply to all plant to which this Part applies, whether manufactured before or after 1 September 2001.

(4)  For the purposes of this Regulation, a lift or an amusement device registered under the Construction Safety Regulations 1950 immediately before 1 September 2001 is taken to be plant registered under Subdivision 2 of Division 3 of Part 5.2.

135   Installation, erection and commissioning of plant—particular risk control measures

An employer must ensure, in complying with the requirements of clause 11 (Employer to eliminate or control risks) as to the control of risks arising from the installation, erection or commissioning of plant that:

(a)  the plant is erected, installed or commissioned having regard to the instructions of the designer and manufacturer, or to instructions developed by a competent person, in so far as they relate to health and safety, and

(b)  a competent person undertakes the installation, erection or commissioning and is provided with all information necessary to enable plant to be installed and commissioned so as to eliminate risks to health and safety or, if this is not practicable, to control them, and

(c)  the plant is installed, erected and commissioned in a location that is suitable for the operation being undertaken and the type of plant being used, and

(d)  plant that is designed to be operated in a fixed position is positioned on and, if necessary, fixed to, a secure base in order to prevent inadvertent movement when power is applied or while the plant is in operation, and

(e)  there is sufficient clear space around the plant to allow the plant to be used and repaired, and

(f)  there is sufficient space for access to and egress from parts of the plant that require cleaning and maintenance, and

(g)  emergency lighting, safety doors and alarm systems are provided if access to plant is required as part of normal operation and persons may be trapped and exposed to increased risk due to heat, cold or lack of oxygen, and

(h)  interim safeguards are used during testing, if the final means of safeguarding are not in place, and

(i)  as far as can be determined by commissioning, the plant is safe for transfer into active service, and

(j)  if the plant is an amusement device, details of the erection of the amusement device are recorded in the log book for the amusement device on each occasion on which it is erected.

Maximum penalty: Level 4.

Note. Division 1 of Part 5.2 relating to the design of plant also applies to alterations to plant designs. A supplier who alters a design to eliminate or control a risk must comply with the design requirements of that Division. (See clause 84 (2) (b) and see also the definition of alter in clause 82 (1).)

136   Use of plant—registration requirements

(1)  An employer must ensure that any plant used at a place of work (other than a mining workplace that is a mine, or a coal workplace) that is of a kind specified in Part 1 of the Table to clause 107 and that was designed after the prescribed date is not used unless:

(a)  the plant has a current design registration number issued under Subdivision 1 of Division 3 of Part 5.2, and

(b)  evidence of the registration (including any conditions of registration and limitations of use) is readily accessible.

Maximum penalty: Level 3.

(2)  An employer must ensure that any plant used at a place of work (other than a mining workplace that is a mine or a coal workplace) that is of a kind specified in Part 1 of the Table to clause 113 is not used unless:

(a)  the plant has a current item registration issued under Subdivision 2 of Division 3 of Part 5.2 (or under the Construction Safety Regulations 1950), and

(b)  evidence of the registration (including any conditions of registration and limitations of use) is displayed on or near the plant.

Maximum penalty: Level 3.

(3)  An employer must ensure that any plant used at a mining workplace that is a mine, or a coal workplace, that is of a kind specified in Part 1 of the Table to clause 107 and that was designed after the prescribed date is not used unless:

(a)  the plant has a current design registration number issued under Subdivision 1 of Division 3 of Part 5.2, and

(b)  evidence of the registration (including any conditions of registration and limitations of use) is readily accessible.

Maximum penalty: Level 3.

(4)  An employer must ensure that any plant used at a mining workplace that is a mine, or a coal workplace, that is of a kind specified in Part 1 of the Table to clause 113 is not used unless:

(a)  the plant has a current item registration issued under Subdivision 2 of Division 3 of Part 5.2 (or under the Construction Safety Regulations 1950), and

(b)  evidence of the registration (including any conditions of registration and limitations of use) is displayed on or near the plant.

Maximum penalty: Level 3.

(5)  An employer must ensure that any plant used at a mining workplace that is a mine, or a coal workplace, that is of a kind specified in Part 2 of the Table to clause 107 is not used unless:

(a)  the plant has a current design registration number issued under Subdivision 1 of Division 3 of Part 5.2, and

(b)  evidence of the registration (including any conditions of registration and limitations of use) is readily accessible.

Maximum penalty: Level 3.

(6)  An employer must ensure that any plant used at a mining workplace that is a mine, or a coal workplace, that is of a kind specified in Part 2 of the Table to clause 113 is not used unless:

(a)  the plant has a current item registration issued under Subdivision 2 of Division 3 of Part 5.2 (or under the Construction Safety Regulations 1950), and

(b)  evidence of the registration (including any conditions of registration and limitations of use) is displayed on or near the plant.

Maximum penalty: Level 3.

(7)  In the case of:

(a)  plant used at a mining workplace that is a mine:

(i)  subclauses (3) and (4) do not apply until 1 September 2009, and

(ii)  subclauses (5) and (6) do not apply until 1 September 2010, and

(b)  plant used at a coal workplace, subclauses (3), (4), (5) and (6) do not apply until 23 December 2007.

(8)  An employer must ensure that plant to which this clause refers is used only in accordance with any conditions of registration including any limitations of use provided in the design registration.

Maximum penalty: Level 3.

(9)  A reference in this clause to an employer extends to an owner of plant affecting public safety.

(10)  In this clause:

prescribed date means:

(a)  in the case of plant used at a workplace that is not a mining workplace or a coal workplace—1 September 2001, or

(b)  in the case of plant used at a mining workplace that is a mine, that is plant referred to in Part 1 of the Table to clause 107—1 September 2008, or

(c)  in the case of plant used at a mining workplace that is not a mine, that is plant referred to in Part 1 of the Table to clause 107—1 September 2001, or

(d)  in the case of plant used at a coal workplace that is plant referred to in Part 1 of the Table to clause 107—23 December 2006.

136A   Use of plant—particular risk control measures

(1)  An employer must ensure in relation to use of plant that:

(a)  plant (with the exception of lifts that are operated by members of the public and coin-operated amusement devices) is not operated by a person unless the person has received adequate information and training and is supervised to the extent necessary to minimise the risks to health and safety, and

(b)  plant is used only for the purpose for which it was designed unless a competent person has made an assessment that the change in use does not present an increased risk to health or safety, and

(c)  if safety features or warning devices are incorporated into plant, the features or devices are used as intended, and

(d)  if it is not possible to eliminate the risk of entanglement in plant with moving parts, persons do not operate, or pass in close proximity to, the plant unless the risk of entanglement is controlled by guarding that meets the requirements of clause 90 (1) or the use of a safe system of work, and

(e)  if it is not possible to eliminate the risk of parts or work pieces breaking, disintegrating or being ejected from plant, persons do not operate, or pass in close proximity to, the plant unless the risk is controlled by guarding that meets the requirements of clause 90 (3), and

(f)  an employee does not work between fixed and traversing parts of plant if there is a risk to health or safety, and

(g)  if plant can be remotely or automatically energised and become a risk to health and safety:

(i)  the immediate operating area of the plant is designated as a restricted space and access to it is controlled at all times, and

(ii)  an employee does not work in the immediate operating area of the plant unless appropriate controls and systems of work are used, and

(h)  if plant could start without warning and cause hazards, an employee is not permitted to work in the immediate vicinity of the plant unless appropriate controls and systems of work are in place, and

(i)  pipes and other parts of plant that may become hot are adequately guarded or insulated, and

(j)  pipes and other parts of plant that may become cold are adequately guarded or insulated, and

(k)  fixed sources of heat, such as furnaces, coke ovens and cooling racks, are ventilated, and

(l)  measures are provided to prevent, as far as practicable, unauthorised interference with or alteration or use of plant that may make the plant a risk to health or safety, and

(m)  plant is subject to appropriate checks, tests and inspections necessary to minimise risks to health and safety, and

(n)  if the operation or condition of plant presents an immediate risk to health or safety, the plant is withdrawn from operation until the risk is eliminated or, if this is not practicable, controlled.

Maximum penalty: Level 4.

(2)  A reference in this clause to an employer extends to an owner of plant affecting public safety.

137   Maintenance and repair of plant—particular risk control measures

(1)  An employer must ensure in relation to the maintenance and repair of plant that:

(a)  the necessary facilities and systems of work are provided and maintained so as to minimise risks to health and safety of persons maintaining, inspecting, altering, repairing or cleaning the plant, and

(b)  inspections, maintenance and cleaning are carried out having regard to procedures recommended by the designer or manufacturer or designer and manufacturer, or developed by a competent person, and

(c)  all safety features and warning devices of plant are maintained and tested, and

(d)  if plant has been damaged to the extent that its operation or condition is impaired and the risk to health or safety is increased, a competent person assesses the damage and provides advice on:

(i)  the nature of the damage, and

(ii)  whether the plant is able to be repaired and, if so, what repairs must be carried out to minimise risks to health and safety, and

(e)  repair, inspection and, if necessary, testing is carried out by a competent person, and

(f)  repairs to the plant are carried out so as to keep the plant within its design limits.

(2)  An employer must ensure that:

(a)  if access to plant is required for the purpose of maintenance, cleaning or repair, the plant is stopped and one or more of the following measures is used so as to control risks to health and safety:

(i)  lockout or isolation devices,

(ii)  danger tags,

(iii)  permit to work systems,

(iv)  other control measures, and

(b)  if it is not practicable to carry out cleaning or maintenance with the plant stopped, operational controls that permit controlled movement of the plant are fitted and safe systems of work are used.

(3)  In this clause:

(a)  a reference to an employer extends to an owner of plant affecting public safety, and

(b)  in the case of an amusement device—a reference to a competent person is to be read as a reference to a qualified engineer.

Maximum penalty: Level 4.

138   Dismantling, storage and disposal of plant—particular risk control measures

An employer must ensure in relation to dismantling, storage and disposal of plant that:

(a)  if plant is dismantled, the dismantling is carried out by a competent person, and

(b)  all available information provided by the designer or manufacturer to the employer that is relevant to the dismantling is made available to the competent person, and

(c)  if plant, including plant that is dismantled, is to be stored, storage is carried out by a competent person, and

(d)  if plant contains materials that present a risk to health or safety and the plant is to be disposed of, the disposal is carried out by a competent person.

Maximum penalty: Level 4.

139   Use of amusement devices—particular risk control measures

(1)  An employer must ensure that an amusement device (other than a coin operated amusement device) is operated only by a person who is competent to operate it and, if that person is not the owner of the amusement device, that the person operating the amusement device:

(a)  checks the amusement device before it is operated on each day on which it is to be operated, and

(b)  operates the amusement device without passengers before operating it with passengers on each day on which the amusement device is to be operated, and

(c)  ensures that each daily check and operation of the amusement device without passengers is properly and accurately recorded in the log book for the amusement device.

(2)  An employer must ensure in relation to the maintenance and repair of an amusement device that maintenance, repair, inspection and, if necessary, testing is carried out by a competent person and:

(a)  in accordance with the requirements of AS 3533.2—1997 Amusement rides and devices Part 2: Operation and maintenance, including as to the recording of details of all work carried out in the log book for the amusement device, and

(b)  in accordance with:

(i)  the recommendations of the designer or manufacturer or designer and manufacturer, or

(ii)  if a maintenance manual for the amusement device has been prepared by a competent person, the requirements of the maintenance manual.

(3)  A reference in this clause to an employer extends to the owner of the amusement device concerned.

Maximum penalty: Level 4.

140   Plant under pressure—particular risk control measures

(1)  An employer must ensure in relation to plant under pressure that:

(a)  pressure equipment (excluding gas cylinders and miniature boilers) is inspected in accordance with AS/NZS 3788:1996 Pressure equipment—in-service inspection, and

(b)  miniature copper boilers (falling within the definition of pressure equipment) are inspected, operated and maintained in accordance with AMBSC Code—Part 1: Copper Boilers, and

(c)  miniature steel boilers (falling within the definition of pressure equipment) are inspected, operated and maintained in accordance with AMBSC Code—Part 2: Steel Boilers.

(2)  An employer must ensure that a gas cylinder complies with AS 2030 Parts 1, 2 and 4 (as listed in Schedule 1) and is inspected and maintained as required by that Standard.

Maximum penalty: Level 4.

141   Powered mobile plant—particular risk control measures

(1)  An employer must ensure that powered mobile plant is used so as to minimise the risk of overturning or a falling object coming into contact with the operator.

(2)  An employer must ensure that an appropriate combination of operator protective devices are provided, used and maintained if there is a risk of:

(a)  powered mobile plant overturning, or

(b)  an object falling on the operator, or

(c)  an operator being ejected from the seat.

(3)  An employer must ensure that appropriate controls are implemented to eliminate or minimise the risk of the powered mobile plant colliding with pedestrians or other powered mobile plant.

(4)  An employer must ensure that a tractor designed to have a mass of 560 kg or more, but less than 15,000 kg, is not used unless:

(a)  if the tractor was manufactured, imported or originally purchased after 1981, it is securely fitted with a protective structure that conforms with AS 1636.1—1996, AS 1636.2—1996 and AS 1636.3—1996 Tractors—Roll-over protective structures—Criteria and tests—Conventional tractors, or

(b)  if the tractor was manufactured, imported or originally purchased during or before 1981, it is securely fitted with:

(i)  a roll-over protective structure that conforms with AS 1636.1—1996, AS 1636.2—1996 and AS 1636.3—1996 Tractors—Roll-over protective structures—Criteria and tests, or

(ii)  if such a structure is not available, an alternative roll-over protective structure designed by a suitably qualified engineer having regard to the performance requirements of AS 1636.1—1996.

(5)  If a tractor is used in a place that is too low for the tractor to work while it is fitted with a roll-over protective structure, the structure may be lowered or removed for the period during which the tractor is used in such a situation (but only if other measures to minimise the risk of roll-over or harm from falling objects are in place).

(6)  An employer must ensure that earthmoving machinery designed to have a mass of 700 kg or more, but less than 100,000 kg, is not used unless:

(a)  if the machinery was manufactured, imported or originally purchased after 1989, it is securely fitted with a protective structure that conforms with AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997 Earth-moving machinery—Protective structures, or

(b)  if the machinery was manufactured, imported or originally purchased during or before 1989, it is securely fitted with:

(i)  a protective structure that conforms with AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997, or

(ii)  if such a structure is not available, an alternative protective structure designed by a suitably qualified engineer having regard to the performance requirements of AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997.

(7)  In designing an alternative structure for the purposes of this clause, an engineer may, if satisfied that deformation testing is not required, substitute calculated deformations.

(8)  Such a structure must be identified with the information required by:

(a)  AS 1636.1—1996, or

(b)  AS 2294.1—1997, AS 2294.2—1997 and AS 2294.3—1997,

      whichever is appropriate.

(9)  An employer must ensure that powered mobile plant is fitted with appropriate seat restraints if:

(a)  the plant is fitted with a rollover protective structure or a falling object protective structure, and

(b)  attachment points for the seat restraints have been incorporated in the original design of the plant.

(10)  An employer must ensure that powered mobile plant:

(a)  is fitted with warning devices that are appropriate to effectively warn persons who are at risk from movement of the plant, and

(b)  is not used to carry, lift or lower a person other than the operator unless:

(i)  the plant was specifically designed to carry persons, and

(ii)  if the plant includes a specifically designed seat for carrying a passenger, the person is seated in the seat, and

(iii)  the seat is fitted with appropriate seat restraints, and

(iv)  the seat is located within a zone of protection afforded by operator protective devices.

(11)  An employer must ensure that industrial lift trucks:

(a)  are equipped with appropriate lifting attachments specifically designed for the load to be lifted or moved, and

(b)  are used in a way that minimises exposure of the operator to risks arising from work practices or systems and the particular environment in which the industrial lift truck is used.

(12)  This clause does not apply to powered mobile plant that:

(a)  is not operated by a person, or

(b)  is installed in a fixed position in a manner that does not permit its use as powered mobile plant.

(13)  Subclauses (4) and (7) do not apply to powered mobile plant intended for use in the underground parts of a mine at a mining workplace or a coal workplace.

(14)  Despite subclause (13), an employer must, in controlling risks, ensure that powered mobile plant intended for use in the underground parts of a mine at a mining workplace or a coal workplace is designed having regard to the safety requirements specified in subclauses (4) and (7) when determining measures to control risks.

Maximum penalty: Level 4.

142   Plant designed to lift or move—particular risk control measures

(1)  An employer must ensure that a clearly legible notice is affixed, in a conspicuous place, on a lift or any lifting machinery, specifying the rated capacity of the plant in appropriate metric units or maximum number of persons to be lifted, as may be appropriate.

Maximum penalty: Level 3.

(2)  A reference in subclause (1) to an employer extends to an owner of plant affecting public safety.

(3)  An employer must ensure that, in relation to plant designed to lift or move people, equipment or materials:

(a)  as far as practicable, no loads are suspended or travel over a person, and

(b)  plant that is not specifically designed for lifting or suspending loads is not used for those tasks unless the plant provides at least an equal level of safety to that of plant that is specifically designed for those tasks, and

(c)  all lifting or suspending is done within the rated capacity of the plant, and

(d)  persons are not lifted or suspended by plant or an attachment to plant (other than plant specifically designed for lifting or suspending persons) unless:

(i)  use of another method of lifting or suspending is not reasonably practicable, and

(ii)  a suitable and adequate personnel box or carrier, designed for the purpose, is used and is securely attached to the plant, and

(iii)  means are provided by which persons being lifted or suspended can have safe egress from the personnel box, carrier or plant in the event of a failure in the normal operation of the plant, and

(iv)  the plant is suitably stabilised, and can be maintained by the operator in that state, at all times during which the personnel box or carrier is in use, and

(v)  a suitable fall arrest device is provided to and worn by all persons who are suspended in a personnel box or carrier unless the box or carrier is fully enclosed, and

(vi)  in the case of a crane, the crane has drive-up and drive-down controls on both the hoisting and luffing motions and these controls are used by the operator in the lifting and suspending operations.

Maximum penalty (subclause (3)): Level 4.

143   Employer to keep records

(1)  An employer who has control of any plant of a kind specified in the Table to clause 131 (Plant for which records are to be kept) must make and keep for the operating life of the plant records of any tests, maintenance, inspections, commissioning or alteration of plant relevant to controlling risks arising from the plant.

(2)  An employer must ensure in relation to an amusement device that:

(a)  details of all tests, maintenance, inspections, commissioning, alteration or repair of the amusement device are accurately recorded in the log book for the amusement device by a competent person, and

(b)  the log book and operating and maintenance manuals for the amusement device are kept with the amusement device.

(3)  A reference in this clause to an employer extends to an owner of plant affecting public safety.

Maximum penalty: Level 3.

144   Employer to provide information

(1)  An employer must provide persons involved in the commissioning, installation, use and testing, and the de-commissioning, dismantling and disposal, of plant with all available information concerning health and safety about the plant.

(2)  An employer must ensure that all relevant information on emergency procedures relating to plant is displayed in a manner that can be readily observed by persons who may be exposed to risks arising from the operation of the plant.

(3)  An employer who contracts out the design of plant for use at work must ensure that the person who is engaged to design the plant is provided with all relevant information about matters relating to the plant that may affect health and safety.

(4)  An employer must ensure that persons involved in the commissioning, installation, use and testing, and the de-commissioning, dismantling and disposal, of an amusement device are provided with:

(a)  the log book for the amusement device in which details concerning erection, operation, maintenance and repair of the amusement device are recorded, and

(b)  the operating and maintenance manuals for the amusement device.

(5)  A reference in this clause to an employer extends to an owner of plant affecting public safety.

Maximum penalty: Level 3.

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.

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).

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.

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

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.

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.

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:

(a1)  must be in English, and

(a2)  must contain the date on which it was last reviewed or, if it has not been reviewed, the date of its preparation, and

(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.

(7)  If a hazardous substance manufactured by a manufacturer is also dangerous goods, the MSDS prepared for the substance for the purposes of this clause:

(a)  may be a single MSDS that complies with both clause 174J and this clause if it is prepared before 1 September 2006, or

(b)  must be a single MSDS that complies with both clause 174J and this clause if it is prepared on or after 1 September 2006.

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 person

(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, the Department Head (Mining), 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 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

(a1)  on the first occasion the hazardous substance is supplied following a revision of the MSDS, 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
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)

Chrysotile [12001-29-5] (white asbestos)—except when:

(a)  used for the purpose of research or analysis, or

(b)  being removed or disposed of, or being handled for storage or stored awaiting disposal, or

(c)  encountered during non-asbestos mining, or

(d)  comprising or included in an item being used for the purpose of a historical or educational display.

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

(1AA)  In this clause, a reference to a prohibited carcinogenic substance includes a reference to an item that contains any form of asbestos that is a prohibited carcinogenic substance.

(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 or the Department Head (Mining), as the case requires, has been notified, in accordance with Part 12.3, of the intention of that person to use the same type of carcinogenic substance.

(1A)  In addition, supplying chrysotile (white asbestos) does not contravene subclause (1) if the only purpose of the supply is:

(a)  so that it may be removed or disposed of, or

(b)  so that it may be stored awaiting disposal, or

(c)  so that it may be used for the purpose of a historical or educational display.

(1B)  Subclause (1) does not apply to a supply of chrysotile (white asbestos) encountered during non-asbestos mining.

(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 or the Department Head (Mining), as the case requires, 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.

(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

(1AA)  In this clause, a reference to a hazardous substance includes a reference to an item that contains any form of asbestos that is a hazardous substance.

(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 chrysotile	All purposes, including the purpose of replacing an item including chrysotile with another item including chrysotile, but not for the purpose of: (a)  research or analysis, or (b)  being removed or disposed of, or being handled for storage or stored awaiting disposal, or (c)  a historical or educational display of an item consisting of or including chrysotile.
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

(1A)  Subclause (1) does not apply to a use of chrysotile (white asbestos) encountered during non-asbestos mining at a mining workplace or coal workplace.

(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 or the Department Head (Mining), as the case requires, 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 or the Department Head (Mining), as the case requires, 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.

(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 or the Department Head (Mining), as the case requires, 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.

(3)  A notification of the results of health surveillance under clause 54 (4) of the Mines Inspection General Rule 2000, as in force immediately before the commencement of this subclause, is taken to be a notification made under this clause.

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.

(3A)  The employer may keep and maintain a single register both for the purposes of this clause and for the purposes of clause 174ZW (Employer to keep register of dangerous goods).

(4)  Subclauses (1)–(3) 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 hazardous substance, that is intended for retail sale and that is not intended to be opened on the premises of the retailer or operator.

(5)  A register compiled in accordance with clause 55 (2) and (3) of the Mines Inspection General Rule 2000, as in force immediately before the commencement of this subclause, is taken to have been compiled under this clause.

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.

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)  (Repealed)

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 or the Department Head (Mining) 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):

(a)  to WorkCover, in relation to atmospheric monitoring or health surveillance at places of work that are not mining workplaces or coal workplaces, or

(b)  to the Department Head (Mining), in relation to atmospheric monitoring or health surveillance at places of work that are mining workplaces or coal workplaces.

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:

(a)  to WorkCover, in relation to records of health surveillance of persons employed at places of work that are not mining workplaces or coal workplaces, or

(b)  to the Department Head (Mining), in relation to records of health surveillance of persons employed at places of work that are mining workplaces or coal workplaces.

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

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 any of the following:

(a)  to WorkCover, in relation to records relating to places of work that are not mining workplaces or coal workplaces,

(b)  to the Department Head (Mining), in relation to records relating to places of work that are mining workplaces or coal workplaces,

(c)  to any emergency services.

Maximum penalty: Level 1.

Chapter 6A Dangerous goods

Note. Chapter 5 (Plant) of this Regulation, at clauses 87 and 101, also contains provisions that require designers and manufactures of plant to have regard to the risks posed by dangerous goods.

Part 6A.1 Preliminary

174A   Meaning of “dangerous goods”

In this Chapter, dangerous goods means the following (whether or not they are packaged for transport or under pressure):

(a)  substances or articles that under the ADG Code are listed or described as:

(i)  dangerous goods of Class 2, 3, 4, 5, 6.1, 8 or 9, or

(ii)  goods too dangerous to be transported,

(b)  C1 combustible liquids.

174B   Definitions

(1)  In this Chapter:

AS 1940 means AS 1940—2004, The storage and handling of flammable and combustible liquids.

bulk means:

(a)  a quantity of dangerous goods in a container that has a capacity greater than the maximum container size specified for packaged dangerous goods of that type, or

(b)  solid dangerous goods that are not in a container in an undivided quantity exceeding 400 kg.

Class means the Class allocated to dangerous goods under the ADG Code.

Class label, for a Class, means the label specified in the ADG Code for the Class of dangerous goods.

C1 combustible liquid means a combustible liquid within the meaning of AS 1940 that has a flashpoint of greater than 60.5 degrees Celsius but not greater than 150 degrees Celsius.

compatible, in relation to 2 or more substances, means that if the substances interact with, or react to, each other, they will not cause, or substantially increase the likelihood of, a serious incident (within the meaning of section 87 of the Act).

container means anything in or by which dangerous goods are or have been wholly or partly encased, covered, enclosed, contained or packed (whether empty, partially full or completely full) and includes any components or materials necessary for the container to perform its containment function.

corresponding legislation means the legislation of the Commonwealth or another State or Territory that assigns a UN Number, Class, Subsidiary Risk and Packing Group to dangerous goods for their transport by road, rai