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 by WorkCover for the purposes of the provision in which the expression is used.

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)  excavation, including the excavation or filling of trenches, ditches, shafts, wells, tunnels and pier holes, and the use of caissons and cofferdams,

(b)  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,

(c)  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.

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.

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.

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:

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.

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.

(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, 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)  This Regulation does not apply to a mine, except as specified in Schedule 4.

(4)  This Regulation does not apply to a coal workplace, except as specified in Schedule 4A.

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.

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).

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)  An employer who employs 20 or fewer employees is not required to comply with this clause within the period of 2 years after its commencement (except to the extent that the clause applies to hazards involving hazardous substances or manual handling).

(5)  An employer who employs more than 20 employees is not required to comply with this clause within the period of 12 months after its commencement (except to the extent that the clause applies to hazards involving hazardous substances or manual handling).

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)  An employer who employs 20 or fewer employees is not required to comply with this clause within the period of 2 years after its commencement (except to the extent that the clause applies to risks involving hazardous substances or manual handling).

(3)  An employer who employs more than 20 employees is not required to comply with this clause within the period of 12 months after its commencement (except to the extent that the clause applies to risks involving hazardous substances or manual handling).

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)  An employer who employs 20 or fewer employees is not required to comply with this clause within the period of 2 years after its commencement (except to the extent that the clause applies to risks involving hazardous substances or manual handling).

(5)  An employer who employs more than 20 employees is not required to comply with this clause within the period of 12 months after its commencement (except to the extent that the clause applies to risks involving hazardous substances or manual handling).

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).

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 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. 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.

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.

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 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”.

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.

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)  An OHS committee under the former Act may (but need not) be retained for the purposes of the OHS consultation arrangements. Replacement OHS consultation arrangements must be implemented:

(a)  within 3 months after the end of the terms of office of the members of the committee, or

(b)  within 2 years of the commencement of this Regulation, whichever first occurs.

Note. Clause 8 of Schedule 3 to the Act provides that OHS committees established under the former Act are taken to be established under the new Act and that the regulations may provide for the staged implementation of the duties of consultation imposed by the new Act.

(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)  Until the expiration of 3 months after the commencement of this Regulation, a course of training that complies with the Occupational Health and Safety (Committees in Workplaces) Regulation 1999 is taken to be a course of training for the purposes of clause 31.

(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 (and application of certain provisions)

(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.

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)  A controller of premises is not required to comply with Divisions 1 and 4 of Part 4.2 within the period of 12 months after their commencement.

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 Safety (Electrical Installations) Regulation 1998, the requirements of that Regulation prevail.

Note. The Electricity Safety (Electrical Installations) Regulation 1998 requires all electrical installation work (as defined in that Regulation) 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 “Guide to the Control of Asbestos Hazards in Buildings and Structures [NOHSC: 3002 (1988)]” 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

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

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.

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.

Maximum penalty: Level 4.

Division 8 Electricity

63   Application

In the event of an inconsistency between the requirements of this Division and the Electricity Safety (Electrical Installations) Regulation 1998, the requirements of that Regulation 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

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 or building maintenance equipment.

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.

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 (Submerged Lands) 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 (Submerged Lands) 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 by WorkCover as being qualified electrical engineers for the purposes of this Chapter.

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 by WorkCover as being competent to exercise the functions of a qualified engineer for the purposes of this Chapter.

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 date of commencement of this Regulation.

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.

(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 the date of commencement of this Regulation.

(3)  A manufacturer is not required to comply with clauses 100–103 within the period of 12 months after commencement of those clauses.

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 commencement of this Regulation 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 commencement of this Regulation is manufactured and inspected, and tested (if required), according to relevant Standards set out in Schedule 1, having regard to the designer’s specifications.

Maximum penalty: Level 4.

104   Manufacture of powered mobile plant—particular risk control measures

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.

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 to WorkCover to register the design of plant specified in 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 the design complies with relevant standards listed in Schedule 1 (Standards covering design and manufacture of plant), 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,

(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 may determine as the appropriate amount to cover expenses in connection with the processing of applications for registration of plant designs.

Table   Plant for which designs are to be registered

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 Australian Dangerous Goods 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

108   WorkCover may request further information

On request from WorkCover, the applicant for registration of a plant design must provide, at any reasonable time required by WorkCover, 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 by WorkCover

(1)  On receipt of the application for registration of a plant design, WorkCover must, subject to being provided with any further information that WorkCover requires under this Subdivision for the purposes of the application:

(a)  register the plant design (with or without conditions) 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 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 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.

(2)  Before cancelling the registration, WorkCover:

(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 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.

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 who has control of an item of plant specified in the Table to this clause may apply to WorkCover 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 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 with any additional information concerning the plant that WorkCover 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   Items of plant required to be registered

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

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 by WorkCover

On receipt of the application for registration of an item of plant, WorkCover 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 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 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:

(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 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 WorkCover 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 WorkCover 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 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 under this Subdivision must provide WorkCover, at the intervals specified in guidelines issued by WorkCover from time to time in relation to such plant, with such information concerning compliance with requirements relating to maintenance of the plant as WorkCover 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 may determine as the appropriate amount to cover the administrative costs of WorkCover 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 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 by the date on which it is due, or if the information in the notification is not satisfactory to WorkCover, WorkCover 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 to discontinue the registration of an item of plant under this clause.

(7)  WorkCover 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.

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 date of commencement of this Regulation.

(4)  A person who sells or transfers plant is not required to comply with Division 2 within the period of 12 months after its commencement.

(5)  A person who hires or leases plant to another person is not required to comply with clauses 124 and 125 of Division 3 within the period of 12 months after their commencement.

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 date of commencement of this Regulation unless the plant complies with relevant control measures specified in clauses 89–93 inclusive, and

(b)  plant designed and manufactured after the date of commencement of this Regulation 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 to another person is not required to comply with subclause (2) (c) within the period of 12 months after its commencement.

(4)  A person who hires or leases plant to another person is not required to comply with subclause (2) (d) within the period of 12 months after its commencement (except to the extent that subclause (2) (d) applies to lifts and amusement devices).

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.

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 Australian Dangerous Goods 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

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.

(A person who hires or leases plant to another person is not required to comply with this subclause within the period of 12 months after its commencement.)

(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.

(A person who hires or leases plant to another person is not required to comply with this subclause within the period of 12 months after its commencement.)

(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 after the date of commencement of this Regulation.

(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 the date of commencement of this Regulation.

(4)  For the purposes of this Regulation, a lift or an amusement device registered under the Construction Safety Regulations 1950 immediately before the commencement of this Part 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.

(An employer is not required to comply with paragraphs (a)–(i) within the period of 12 months after commencement of this clause.)

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 and particular risk control measures

(1)  An employer must ensure that plant that:

(a)  is designed and manufactured after the commencement of this Regulation, and

(b)  is of a kind specified in the Table to clause 107 (Plant for which designs are to be registered),

      is not used unless the plant has a current design registration number issued under Subdivision 1 of Division 3 of Part 5.2 and evidence of the registration is readily accessible. (An employer is not required to comply with this subclause within the period of 12 months after its commencement.)

Maximum penalty: Level 3.

(2)  An employer must ensure that plant of a kind specified in the Table to clause 113 (Items of plant required to be registered) is not used unless 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 evidence of the registration is displayed on or near the plant. (An employer is not required to comply with this subclause within the period of 12 months after its commencement (except to the extent that the subclause applies to lifts and amusement devices).)

Maximum penalty: Level 3.

(3)  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 of the plant or work pieces breaking, disintegrating or being ejected from the 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 the 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)  an employee is not permitted to work in the immediate vicinity of plant that could start without warning and cause hazards 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.

(4)  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.

(An employer is not required to comply with this clause within the period of 12 months after its commencement.)

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.

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 persons

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

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

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

Maximum penalty: Level 2.

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

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

Maximum penalty: Level 3.

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

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

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

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

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

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

Part 6.3 Supply of hazardous substances

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

Division 1 Preliminary

154   Application

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

Division 2 Supply of hazardous substances generally

155   Supplier to provide MSDS

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

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

(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 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 has been notified, in accordance with Part 12.3, of the intention of that person to use the same type of carcinogenic substance.

Maximum penalty: Level 4.

160   Supplier to keep records of supply of carcinogenic substances

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

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

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

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

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

Maximum penalty: Level 3.

Part 6.4 Use of hazardous substances

161   Application

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

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

162   Employer to obtain MSDS

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

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

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

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

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

Maximum penalty: Level 4.

163   Employer to ensure containers are labelled

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

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

(a)  clearly identifies the hazardous substance, and

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

(3)  However:

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

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

Maximum penalty: Level 4.

164   Use of hazardous substances

(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.

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

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

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

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

Maximum penalty: Level 4.

165   Employer to provide health surveillance

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

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

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

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

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

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

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

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

(3)  The employer must ensure that:

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

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

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

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

Maximum penalty: Level 4.

Table

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

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

166   Medical practitioner to notify results of health surveillance

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

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

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

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

Maximum penalty: Level 3.

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

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

167   Employer to keep register of hazardous substances

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

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

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

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

(c)  any notations required under clause 168.

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

(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.

Maximum penalty: Level 1.

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

168   Employer to record risk assessments

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

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

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

Maximum penalty: Level 3.

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

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

169   Employer to keep record of employees exposed to carcinogenic substances

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

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

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

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

Maximum penalty: Level 3.

170   Employer to provide statement to employees exposed to carcinogenic substances

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

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

(b)  the period of exposure or potential exposure,

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

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

Maximum penalty: Level 3.

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

171   Employer to retain certain material as record

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

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

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

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

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

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

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

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

Maximum penalty: Level 1.

172   Medical practitioner to retain records

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

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

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

Maximum penalty: Level 1.

173   Employer to identify hazardous substances in enclosed systems

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

Maximum penalty: Level 1.

174   Employer to provide information to WorkCover and emergency services

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

Maximum penalty: Level 1.

(2)  (Repealed)

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, rail, air or sea.

dangerous goods in transit means dangerous goods at premises that:

(a)  are part of a transport load that is in compliance with the relevant transport code, and

(b)  are loaded on a vehicle, vessel or aircraft or being transhipped from one vehicle, vessel or aircraft to another, and

(c)  are not intended to be at the premises for more than 5 consecutive days (not including public holidays) and have not been at the premises for more than 5 consecutive days (not including public holidays), and

(d)  are not intended to be consumed or processed at the premises and have not been consumed or processed at the premises, and

(e)  are not intended for sale at the premises.

fire risk dangerous goods means dangerous goods of Class 2.1, 3, 4 or 5 or Subsidiary Risk 2.1, 3, 4 or 5, and C1 combustible liquids, that burn readily or support combustion.

food includes:

(a)  a substance prepared or intended or represented as being for human consumption, and

(b)  a substance intended to be an ingredient of, or additive to, a substance referred to in paragraph (a).

food packaging means:

(a)  a container that contains, or is designed or intended to contain, food, or

(b)  material designed or intended to be used in such a container.

free from dangerous goods, in relation to an empty container, means if the container last held:

(a)  a gas or volatile liquid—the concentration of gas or vapour in the atmosphere of the container is less than the concentration listed in the document entitled Adopted National Exposure Standards for Atmospheric Contaminants in the Occupational Environment [NOHSC: 1003 (1995)] published by the NOHS Commission, as in force from time to time, or

(b)  dangerous goods of Class 2.1, Class 3 or Subsidiary Risk 2.1 or 3—the concentration of those goods or their vapours in the atmosphere of the container is less than 5 per cent of the LEL (lower explosive limit) for the goods when sampled at ambient temperature, or

(c)  a non-volatile liquid or solid—the container has been thoroughly cleaned.

goods too dangerous to be transported has the same meaning as in the ADG Code.

handling has the same meaning as in section 135A of the Act.

hazardous area means an area or space in which the atmosphere contains or may be reasonably be expected to contain any material or substance (including, but not limited to, combustible dusts, combustible fibres, flammable vapours, flammable liquids, flammable gases, flammable or combustible fumes) at a concentration that is capable of being ignited by an ignition source.

ignition source means any source of energy sufficient to ignite combustible dusts, combustible fibres, flammable vapours, flammable gases or flammable or combustible fumes and includes the following:

(a)  a naked flame,

(b)  exposed incandescent material,

(c)  hot surfaces,

(d)  radiant heat,

(e)  a spark from mechanical friction,

(f)  a spark from static electricity,

(g)  an electrical arc,

(h)  any electrical, electronic, mechanical or other equipment.

incident involving dangerous goods means an incident within the meaning of section 86 of the Act (whether or not it occurs at a place of work) that involves dangerous goods.

intermediate bulk container or IBC means a rigid or flexible portable packaging for the transport of dangerous goods that:

(a)  has a capacity of not more than:

(i)  for solids of Packing Group I packed in a composite, fibreboard, flexible, wooden or rigid plastics container—1,500 L, or

(ii)  for solids of Packing Group I packed in a metal container—3,000 L, or

(iii)  for solids or liquids of Packing Groups II and III—3,000 L, and

(b)  is designed for mechanical handling, and

(c)  is resistant to the stresses produced in usual handling and transport as determined by tests under the ADG Code.

MSDS means a material safety data sheet prepared in accordance with clause 174J.

package means the complete product of the packing of dangerous goods, and consists of the goods and their packaging.

packaged dangerous goods means:

(a)  Class 2 dangerous goods that are in a container with a capacity of not more than 500 L, or

(b)  goods too dangerous to be transported or dangerous goods of a Class other than Class 2 that are in a container with:

(i)  a capacity of not more than 450 L, and

(ii)  a net mass of not more than 400 kg, or

(c)  C1 combustible liquids in a container with a capacity of not more than 450 L.

Packing Group means the packing group assigned to dangerous goods under the ADG Code.

pipework means a pipe or an assembly of pipes, pipe fittings, valves and pipe accessories used to convey dangerous goods.

pool chlorine means dangerous goods of Class 5.1, being calcium hypochlorite, sodium dichloroisocyanurate, sodium trichloroisocyanurate, potassium dichloroisocyanurate, dichloroisocyanuric acid, trichloroisocyanuric acid and other oxidising agents, in solid form, used for chlorinating water.

proper shipping name has the same meaning as in the ADG Code.

relevant transport code, in relation to dangerous goods in transit, means the ADG Code, the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air, the International Maritime Organization’s International Maritime Dangerous Goods Code or the International Air Transport Association’s IATA Dangerous Goods Regulations as appropriate.

serious incident has the same meaning as in section 87 (1) of the Act.

storage location means any place or area where one type of dangerous goods or compatible dangerous goods are kept either in bulk or in a quantity exceeding the relevant quantity specified in the column headed “Placarding quantity” in the Table to Schedule 5 (and includes a building, structure, room, compartment, tank or other bulk container, store or receptacle in or on which dangerous goods are stored or handled either in bulk or in a quantity exceeding the relevant quantity specified in the column headed “Placarding quantity” in the Table to Schedule 5).

storing has the same meaning as in section 135A of the Act.

Subsidiary Risk has the same meaning as in the ADG Code.

tank means a container, other than an IBC, that is used or designed to be used to transport, store or handle dangerous goods in the form of a gas or a liquid in bulk and includes fittings, closures and any other equipment that forms part of the container.

UN Number or UN followed by a number, in relation to dangerous goods, means either of the following:

(a)  the substance identification serial number shown in Appendices 1 and 2 of the ADG Code in relation to those goods,

(b)  the number assigned to the goods by the United Nations Committee of Experts on the Transport of Dangerous goods in the document entitled Recommendations on the Transport of Dangerous Goods published by the United Nations from time to time.

water capacity, of a container, means the total internal volume of the container in litres of water measured at a temperature of 15 degrees Celsius.

(2)  In this Chapter, a reference to litres in relation to dangerous goods of Class 2 means the water capacity of the container that holds those dangerous goods.

174C   Dangerous goods to which section 135A of the Act applies

(1)  For the purposes of this Chapter, dangerous goods within the meaning of clause 174A are declared to be dangerous goods to which section 135A of the Act applies.

(2)  However, for the purposes of Parts 6A.2–6A.4 of this Chapter and despite subclause (1), the following dangerous goods are not dangerous goods to which section 135A of the Act applies at premises that are not places of work unless the quantity of the goods at those premises exceeds any minimum quantity set out in relation to the goods in the Table to this clause.

(3)  In the Table to this clause, kg or L means, where this combination of letters immediately follows numbers, the combined total of:

(a)  the number of kilograms of non-liquid dangerous goods, and

(b)  the number of litres of liquid dangerous goods.

Table

Dangerous goods	Minimum quantity
Liquified Petroleum Gas (LP Gas) (being dangerous goods of Class 2.1)	500 L (water capacity)
Dangerous goods of Class 2.1 (other than Liquified Petroleum Gas (LP Gas))	200 L (water capacity)
Dangerous goods of Class 2.2	300 L (water capacity)
Note.  Dangerous goods of Class 2.3 are not covered by this table and therefore are dangerous goods to which section 135A of the Act applies at all premises (whether or not a place of work).
Dangerous goods of Class 3	100 L
Pool chlorine	100 kg
Sodium Hypochlorite designated by UN Number 1791	100 L
Dangerous goods of Class 9	100 kg or L
Dangerous goods of Packing Group I	5 kg or L
C1 combustible liquids	1,000 L
Any dangerous goods other than those specified above (not including dangerous goods of Class 2.3)	100 kg or L

174D   Application of Chapter

This Chapter applies to:

(a)  all dangerous goods at places of work, and

(b)  dangerous goods to which section 135A of the Act applies (regardless of whether those goods are at a place of work or are for use at work).

174E   Non-application of Chapter

(1)  This Chapter does not apply to the following:

(a)  the transport of dangerous goods by road, rail, sea or air, or any associated activity or matter, to the extent to which it is regulated by the following:

(i)  the Road and Rail Transport (Dangerous Goods) Act 1997 or any regulation made under that Act,

(ii)  the International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air,

(iii)  the International Maritime Organization’s International Maritime Dangerous Goods Code,

(iv)  the International Air Transport Association’s IATA Dangerous Goods Regulations,

(b)  dangerous goods that form part of batteries that are incorporated into plant,

(c)  dangerous goods in a fuel container that is fitted to a vehicle, vessel or aircraft, or used in or consumed by a vehicle, vessel, aircraft, mobile plant, appliance or other device, where the goods are necessary for its propulsion or are part of, or necessary for the operation of, its equipment or accessories (but not dangerous goods being stored in a spare fuel or goods container),

(d)  dangerous goods in a fuel container of a domestic, portable or transportable fuel burning appliance,

(e)  dangerous goods that form part of the refrigeration system of refrigerated freight containers,

(f)  dangerous goods in portable fire fighting equipment (such as fire extinguishers), portable safety equipment and portable medical equipment at premises for use at the premises,

(g)  dangerous goods of Class 2.2 in portable gas cylinders that are used or intended to be used for medical purposes,

(h)  compressed gas in pneumatic tyres,

(i)  potable liquids in consumer packages at retail premises (for example, bottled alcoholic spirits at bottle shops),

(j)  naturally occurring gas in an underground mine.

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

(a)  food,

(b)  therapeutic agents,

(c)  cosmetics,

(d)  tobacco and tobacco products,

(e)  toiletries and toilet products.

Part 6A.2 Manufacture, import and supply of dangerous goods

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

Division 1 General

174F   Application—importers to ensure manufacturers’ responsibilities are met

A person who imports dangerous goods 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 those goods.

Note. Importing from outside New South Wales includes importing from another State or Territory of Australia.

174G   Manufacturer to identify dangerous goods

(1)  A manufacturer of goods must, before the goods are handled or supplied to another person, determine in accordance with the ADG Code, or in the case of goods that are combustible liquids, in accordance with AS 1940, whether the goods are dangerous goods.

Maximum penalty: Level 4.

(2)  If a manufacturer determines that goods are dangerous goods, the manufacturer:

(a)  must determine in accordance with the ADG Code whether the goods are goods too dangerous to be transported, and

(b)  must:

(i)  in the case of combustible liquids—assign a classification under AS 1940 to the liquids, or

(ii)  in relation to all other dangerous goods—assign to the goods the appropriate UN Number, Class, Subsidiary Risk and Packing Group under the ADG Code.

Maximum penalty: Level 3.

174H   Packing and labelling by manufacturer

(1)  A manufacturer of dangerous goods who assigns a UN Number, Class, Subsidiary Risk and Packing Group to those goods, before the goods are supplied to another person, must ensure that the provisions of the ADG Code are complied with in relation to the condition of the goods and:

(a)  in relation to dangerous goods in bulk—the container and placarding for the goods, and

(b)  in relation to all other dangerous goods—the packing and package labelling for the goods.

Maximum penalty: Level 4.

(2)  A manufacturer of C1 combustible liquids or goods too dangerous to be transported, before the liquids or goods are supplied to another person, must ensure that the liquids or goods are packed in packaging that is:

(a)  of a type and in a condition that will retain the liquids or goods and will not react adversely with the liquids or goods, and

(b)  clearly labelled with the product name of the liquids or goods.

Maximum penalty: Level 4.

(3)  A manufacturer of dangerous goods complies with subclause (1) or (2) if the dangerous goods are:

(a)  in relation to dangerous goods in bulk—contained in containers, and are placarded, in accordance with corresponding legislation, and

(b)  in relation to all other dangerous goods—packed, or the packages are labelled, in accordance with corresponding legislation.

(4)  Subclause (2) does not apply to C1 combustible liquids or goods too dangerous to be transported that are supplied in bulk.

174I   Restrictions on supply

(1)  A person (other than the manufacturer of the dangerous goods) who supplies dangerous goods to another person must, before the goods are supplied to the other person, ensure that the provisions of the ADG Code are complied with in relation to the condition of the goods, and:

(a)  in relation to dangerous goods in bulk—the container and placarding for the goods, and

(b)  in relation to all other dangerous goods—the packing and package labelling for the goods.

Maximum penalty: Level 4.

(2)  A person (other than the manufacturer of the combustible liquids or goods too dangerous to be transported) who supplies C1 combustible liquids or goods too dangerous to be transported to another person must, before the liquids or goods are supplied to the other person, ensure that the liquids or goods are packed in packaging that is:

(a)  of a type and in a condition that will retain the liquids or goods and will not react adversely with the liquids or goods, and

(b)  clearly labelled with the product name of the liquids or goods.

Maximum penalty: Level 4.

(3)  A supplier of dangerous goods complies with subclause (1) or (2) if the dangerous goods are:

(a)  in relation to dangerous goods in bulk—contained in containers, and are placarded, in accordance with corresponding legislation, and

(b)  in relation to all other dangerous goods—packed, or the packages are labelled, in accordance with corresponding legislation.

(4)  Subclauses (1) and (2) do not apply to a retailer who supplies dangerous goods in a container provided by the purchaser, but only if:

(a)  the capacity of the container does not exceed 30 kg or 30 L, and

(b)  the retailer:

(i)  in relation to dangerous goods of Class 2—has ensured that the container is a package that meets the requirements of the ADG Code that relate to packages for the goods, and

(ii)  in relation to all other dangerous goods—has taken all reasonable steps to ensure that the container:

(A)  is of a type and in a condition that will retain the goods and will not react adversely with the goods, and

(B)  is clearly marked with the product name of the goods, and

(C)  is not a container that could be mistaken for or confused with one that is used for food.

(5)  Subclause (2) does not apply to C1 combustible liquids or goods too dangerous to be transported that are supplied in bulk.

Division 2 Material safety data sheets

174J   Manufacturer to prepare material safety data sheet

(1)  A manufacturer of dangerous goods must prepare a material safety data sheet (MSDS) for the dangerous goods before the dangerous goods are supplied to another person.

Maximum penalty: Level 4.

(2)  The MSDS must:

(a)  be in English, and

(b)  contain the date on which it was last reviewed or, if it has not been reviewed, the date of its preparation, and

(c)  clearly identify the dangerous goods to which it relates, and

(d)  set out the following information in relation to the dangerous goods to which it relates:

(i)  their recommended uses,

(ii)  their chemical and physical properties,

(iii)  any relevant health-hazard or physical-hazard information,

(iv)  information concerning the precautions to be followed in relation to their safe storage and handling,

(v)  if applicable, the proper shipping name, UN Number, Class, Subsidiary Risk and Packing Group,

(vi)  in the case of goods too dangerous to be transported, the name of the goods as specified in Appendix 5 to the ADG Code,

(vii)  in the case of C1 combustible liquids, the appropriate classification under AS 1940, and

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

(3)  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: Level 4.

(4)  If the dangerous goods manufactured by a manufacturer are also a hazardous substance, the MSDS prepared for the dangerous goods for the purposes of this clause:

(a)  may be a single MSDS that complies with both clause 150 and this clause if it is prepared before 1 September 2006, or

(b)  must be a single MSDS that complies with both clause 150 and this clause if it is prepared on or after 1 September 2006.

174K   Manufacturer to provide MSDS

(1)  A manufacturer of dangerous goods must provide a copy of a current MSDS for the dangerous goods:

(a)  to any person who supplies the dangerous goods for use, and

(b)  to any person who claims to be associated with the handling or storage of the dangerous goods 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.

(2)  This clause commences on 1 September 2006.

174L   Manufacturer to disclose ingredients to medical practitioner

(1)  If an MSDS or label does not disclose the chemical name of an ingredient of dangerous goods, the manufacturer of the dangerous goods 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 the management of the practitioner’s patient.

(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 use the information only for the purpose for which it has been provided.

Maximum penalty: Level 3.

174M   Supplier to provide MSDS

(1)  A person who supplies dangerous goods must ensure that a current MSDS in relation to the goods prepared by the manufacturer is provided:

(a)  on the first occasion the dangerous goods are supplied, and

(b)  on the first occasion the dangerous goods are supplied following a revision of the MSDS, and

(c)  at any other time, to any person who claims to be associated with the storage or handling of the dangerous goods and who asks to be provided with a copy of the MSDS, and

(d)  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) and (b) do not apply to a supplier who is a retailer if:

(a)  the dangerous goods are packaged dangerous goods supplied in a consumer package with a capacity that does not exceed 30 kg or 30 L, or

(b)  the dangerous goods are supplied in a container provided by the purchaser with a capacity that does not exceed 30 kg or 30 L, or

(c)  the retailer is supplying fuel to the fuel tank of a vehicle, vessel or aircraft.

(3)  This clause commences on 1 September 2006.

Part 6A.3 Obligations of occupiers

Division 1 Preliminary

174N   Definitions

In this Part:

controller of dangerous goods premises means the controller of premises at or in which dangerous goods to which section 135A of the Act applies are stored or handled.

controller of premises includes:

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

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

occupier means the following:

(a)  if dangerous goods are stored or handled at an employer’s place of work—the employer,

(b)  a controller of dangerous goods premises.

Division 2 Hazard identification and risk assessment

174O   Duties in relation to dangerous goods

(1)  An occupier must ensure that all persons (including members of the public) are not exposed to risks to their health and safety arising from dangerous goods at the occupier’s premises.

Maximum penalty: Level 4.

Note. Other general laws and specific legislation may provide that occupiers have obligations with regard to dangerous goods that relate to risks to property or the environment, both inside and beyond the premises of the occupier, arising from those goods.

(2)  Nothing in this clause is to be construed:

(a)  as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of this clause, or

(b)  as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.

Note. Section 10 (2) of the Act provides that person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used.

174P   Extension of hazard identification and risk assessment provisions

(1)  Division 1 (General duties of controllers of premises) of Part 4.2 of Chapter 4 of this Regulation extends to controllers of dangerous goods premises (regardless of whether or not the premises are a place of work or are used for work).

(2)  A reference in Chapter 2 (Places of work—risk management and other matters) and Division 1 (General duties of controllers of premises) of Part 4.2 of Chapter 4 of this Regulation to occupational health and safety (however expressed) includes, where the hazard concerned is a hazard that arises from dangerous goods, a reference to public health and safety.

(3)  For the avoidance of doubt:

(a)  when complying with clause 11 or 36, an occupier, when considering how to control a risk associated with the storage and handling of dangerous goods (where it is not reasonably practicable to eliminate the risk), must control the risk by taking the measures set out in clause 5, and

(b)  clauses 6 and 8 apply in relation to duties and responsibilities of occupiers and other persons at dangerous goods premises that are not places of work.

174Q   Risk assessment

(1)  An occupier must review each risk assessment conducted for the purposes of clause 10 or 35 at the times required by clause 12 or 37, but in any case each risk assessment must be reviewed at least once every 5 years.

(2)  The occupier must:

(a)  if the occupier is an employer, make a record of each risk assessment and any review of a risk assessment by:

(i)  making a notation in the register of dangerous goods kept under clause 174ZW if no specific measures are necessary to control the risks associated with the storage or handling of dangerous goods, or

(ii)  preparing a report on the risk assessment if specific measures are necessary to control the risks associated with the storage or handling of the dangerous goods, and

(b)  if the occupier is not an employer, make a record of each risk assessment and any review of a risk assessment, and

(c)  keep a copy of that record while the risk assessment is current or being reviewed.

Maximum penalty: Level 4.

Division 3 Particular risk control measures

Subdivision 1 Stability and interaction with dangerous goods

174R   Stability of dangerous goods

(1)  An occupier must ensure, so far as is reasonably practicable, that the dangerous goods at the occupier’s premises do not inadvertently become unstable, decompose or change so as to:

(a)  create a hazard that is different from the hazard originally created by the dangerous goods, or

(b)  increase the risk associated with the dangerous goods.

Maximum penalty: Level 4.

(2)  Without limiting subclause (1), the occupier must ensure that:

(a)  if the stability of the dangerous goods is dependent on the maintenance of levels of stabilisers, those levels are maintained as specified by the manufacturer of the dangerous goods, and

(b)  if the dangerous goods are required to be stored or handled with a particular temperature range specified by the manufacturer, they are stored or handled within that temperature range.

(3)  Subclause (2) does not apply in relation to dangerous goods that are about to be used in a manufacturing process.

(4)  In this clause, stabiliser means any substance (including any diluent, inhibitor, desensitiser, phlegmatizer, solvent, wetting agent or adulterant) added to, or present in, dangerous goods that overcomes the chemical instability inherent in the dangerous goods.

174S   Separation of dangerous goods

(1)  Without affecting the generality of clauses 11 and 36, an occupier must ensure that the risk to other dangerous goods storage or handling areas and to persons and property at or beyond the premises that arises from an incident involving dangerous goods:

(a)  is eliminated, or

(b)  if it is not reasonably practicable to eliminate the risk, is controlled so far as is reasonably practicable by separation.

Maximum penalty: Level 4.

(2)  In this clause, separation, in relation to the separation of dangerous goods from a person, property or thing, means the physical separation of the dangerous goods from the person, property or thing, by either distance or a physical barrier.

174T   Preventing interaction with other substances

An occupier must ensure that dangerous goods on the occupier’s premises that are not compatible with other substances (including other dangerous goods) are stored or handled separately from the other substances so that a loss of containment or any other interaction cannot cause a serious incident.

Maximum penalty: Level 4.

174U   Ignition sources in hazardous areas

(1)  An occupier must ensure that ignition sources in any hazardous area within the occupier’s premises:

(a)  are eliminated, or

(b)  if it is not reasonably practicable to eliminate those ignition sources, the risk arising from those sources is controlled.

Maximum penalty: Level 4.

(2)  An occupier must identify any hazardous area that is within, or arises as a result of dangerous goods stored or handled at, the occupier’s premises.

Maximum penalty: Level 4.

174V   Atmospheric emissions

An occupier must ensure that any risk produced by atmospheric emissions from dangerous goods that are toxic, corrosive, flammable, explosive or asphyxiant:

(a)  is eliminated, or

(b)  if it is not reasonably practicable to eliminate the risk, is reduced so far as is reasonably practicable.

Maximum penalty: Level 4.

Note. The obligation imposed by this clause is in addition to any obligations under Division 5 of Part 4.3 of Chapter 4.

174W   Preventing contamination of food and personal products

An occupier must ensure that dangerous goods on the occupier’s premises cannot contaminate food, food packaging or personal use products.

Maximum penalty: Level 4.

174X   Containers for dangerous goods in bulk

An occupier of premises at which dangerous goods in bulk in a container are present must ensure that:

(a)  the container and any associated pipework are provided with stable foundations and supports, and

(b)  any pipework or equipment connected to the container is installed so as to prevent excessive stress on the container, pipework or equipment, and

(c)  the container and any associated pipework are protected from deterioration.

Maximum penalty: Level 4.

174Y   Containment of spills

(1)  An occupier must ensure that, in each place at the occupier’s premises where dangerous goods are stored or handled, provision is made for containment of spills or leaks so as:

(a)  to eliminate the risk from any spill or leak of dangerous goods, or if it is not reasonably practicable to eliminate the risk, reduce it so far as is reasonably practicable, and

(b)  so far as is reasonably practicable, to contain safely within the premises the dangerous goods that have been spilled or leaked and any effluent arising from an incident.

(2)  In the case of dangerous goods containment, any area or receptacle intended to contain spills or leaks must not be shared with any other substances, including other dangerous goods, that are not compatible with the dangerous goods to be contained.

(3)  In the event of a spill or leak of dangerous goods, the occupier must ensure that:

(a)  immediate action is taken to reduce any risk associated with the spill or leak so far as is reasonably practicable, and

(b)  the dangerous goods and any resulting effluent are, as soon as reasonably possible, cleaned up and disposed of or otherwise made safe.

Maximum penalty: Level 4.

174Z   Transfer of dangerous goods

(1)  An occupier must ensure that any risk associated with the transfer of dangerous goods within, to or from the occupier’s premises is eliminated, or if it is not reasonably practicable to eliminate the risk, is controlled so far as is reasonably practicable.

(2)  In eliminating or controlling a risk in accordance with subclause (1), the occupier must, as relevant, have regard to:

(a)  the need for measures to:

(i)  control spills and leaks, and

(ii)  minimise static electricity, and

(iii)  control vapour generation, and

(b)  the suitability of pipework, attachments and associated safety systems at the premises with the risk elimination or control measures proposed.

Maximum penalty: Level 4.

174ZA   Impact protection

An occupier must ensure, as far as is reasonably practicable, that any containers, pipework, attachments, equipment containing, or associated with, of dangerous goods on the occupier’s premises are protected from physical damage resulting from activities in or on the premises, including impacts, imposed loads and mechanical stress.

Maximum penalty: Level 4.

Subdivision 2 Preparedness for emergencies

174ZB   Fire protection

(1)  An occupier must ensure that:

(a)  the occupier’s premises are provided with a fire protection system that:

(i)  has been designed and constructed having taken account of any risk assessment of the premises, and

(ii)  is designed and constructed to take account of:

(A)  the types and quantities of dangerous goods and the conditions under which they are stored and handled, and

(B)  other materials and substances that make up the premises or are stored or handled at the premises, and

(iii)  is compatible with the dangerous goods and the other materials and substances and is effective in the control of incidents involving the types and quantities of dangerous goods and other materials and substances, and

(b)  the fire protection system is:

(i)  properly installed, tested and maintained, and

(ii)  at all times accessible to persons on the premises and to the relevant emergency services, and

(iii)  capable of being used, without adaptation or modification, with the equipment used by the New South Wales Fire Brigades and the NSW Rural Fire Service.

Maximum penalty: Level 4.

(2)  The occupier must, if any of the components of the fire protection system are rendered inoperative, ensure that:

(a)  the implications of any of the components of the system being unserviceable or inoperative are assessed, and

(b)  alternative measures are taken to control, to the same level of effectiveness, those risks that were controlled by the system when functioning fully, and

(c)  the fire protection system is returned to full operation as soon as is reasonably practicable.

Maximum penalty: Level 4.

(3)  If the implications of the system becoming unserviceable or inoperative, as assessed by the occupier under subclause (2) (a), include a significant reduction in the effectiveness of the fire protection system, the occupier must notify the relevant emergency services of the condition of the fire protection system.

Maximum penalty: Level 4.

(4)  In determining the alternative measures required under subclause (2) (b) the occupier must have regard to the need for:

(a)  the provision of alternative fire protection measures, and

(b)  a reduction of the quantities of dangerous goods stored or handled at the premises, and

(c)  stopping or reducing the processes used for the storage and handling of dangerous goods at the premises, and

(d)  modifications to systems of work at the premises.

Maximum penalty: Level 4.

(5)  In this clause, fire protection system includes fixed or portable fire detection, fire suppression and fire fighting equipment.

174ZC   Planning for emergencies

(1)  This clause applies in relation to premises where dangerous goods are stored and handled in quantities that exceed the relevant quantities specified in the column headed “Manifest quantity” in the Table to Schedule 5.

(2)  An occupier of premises to which this clause applies must ensure that a written plan for dealing with any emergency associated with the storage and handling of dangerous goods on those premises (an emergency plan) is:

(a)  developed, implemented and maintained, and

(b)  communicated to:

(i)  persons who are engaged by the occupier to work at the premises and who may be exposed to risk as a result of an emergency, and

(ii)  persons in control of adjacent premises to the extent that the emergency plan applies to those person, if persons or property on the adjacent premises may be exposed to risk as a result of an emergency.

Maximum penalty: Level 4.

(3)  In developing or reviewing the emergency plan, the occupier must:

(a)  provide a draft of the emergency plan to the Commissioner of the New South Wales Fire Brigades, and

(b)  have regard to any written advice received from the Commissioner of the New South Wales Fire Brigades.

Maximum penalty: Level 4.

(4)  The occupier of the premises must provide a copy of the emergency plan to:

(a)  if the premises to which this clause applies are within a rural fire district within the meaning of the Rural Fires Act 1997—the NSW Rural Fire Service, or

(b)  in any other case—the Commissioner of the New South Wales Fire Brigades.

Maximum penalty: Level 4.

(5)  The occupier must review the emergency plan:

(a)  if there is a change in circumstances at the premises, or any adjacent premises, such as to raise the possibility of an emergency of a kind that is not dealt with by the plan, and

(b)  at intervals of not more than 5 years from the date on which the plan was developed or last reviewed.

Maximum penalty: Level 4.

(6)  The occupier must communicate the revised plan to the persons specified in subclause (2) (b).

Maximum penalty: Level 4.

(7)  This clause commences on 1 September 2006.

Subdivision 3 Safety equipment and safe access

174ZD   Safety equipment

(1)  An occupier must ensure that, where safety equipment is required to control an identified risk in relation to the storage or handling of dangerous goods (including personal protective equipment and clean up equipment such as neutralisers, decontaminants and associated equipment), that equipment is provided, maintained and accessible to persons authorised to be on the premises.

(2)  A person must not wilfully damage or make ineffective any safety equipment referred to in subclause (1).

Maximum penalty: Level 4.

174ZE   Safe access

An occupier must ensure that safe means of access to and from and within the occupier’s premises are provided and maintained.

Maximum penalty: Level 4.

Subdivision 4 Plant, equipment and containers

174ZF   Cleaning or decommissioning plant, equipment and containers

(1)  An occupier must ensure that any plant, equipment or container that was used in connection with dangerous goods and:

(a)  is to be disposed of, or

(b)  has not had dangerous goods placed in or taken from it for a continuous period of 12 months,

      is made free from dangerous or otherwise made safe.

(2)  If a dangerous goods container has been made free from dangerous goods and the container is to be reused for a purpose other than its original purpose, the occupier must ensure that any references, signs, symbols or warning relating to the dangerous goods that it formerly contained are removed or obliterated.

(3)  If an underground, partially underground or fully mounded tank (other than an LPG tank) has been used to contain dangerous goods and 2 years have elapsed since any dangerous goods were last put in or taken from the tank, the occupier of the premises in which it is situated (or in the case of a LPG tank, the owner of the tank) must:

(a)  remove any remaining dangerous goods from, and abandon, the tank in compliance with AS 1940, and

(b)  within 7 days of the abandonment, notify WorkCover in the approved form of the abandonment.

Maximum penalty: Level 4.

Note. See clause 174ZZE for obligations in relation to LPG tanks.

Subdivision 5 Provision of information

174ZG   Occupier to obtain MSDS

(1)  For all dangerous goods stored or handled on an occupier’s premises, the occupier:

(a)  must obtain from the supplier of the goods an MSDS before or on the first occasion on which they are supplied, and

(b)  must ensure that the MSDS is readily accessible to any person at the premises who could store or handle the goods, and

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

(2)  The provisions of subclause (1) (a) and (b) do not apply to:

(a)  dangerous goods in transit, and

(b)  dangerous goods that are supplied to a retailer, retail warehouse operator or transport warehouse operator in a consumer package that:

(i)  holds less than 30 kg or 30 L of the goods, and

(ii)  is intended for retail sale, and

(iii)  is not intended to be opened on the premises of the retailer or operator.

Maximum penalty: Level 4.

(3)  This clause commences on 1 September 2006.

174ZH   Occupier to ensure containers are labelled and enclosed systems are identified

(1)  An occupier must ensure that packaged dangerous goods at the occupier’s premises, including those supplied to or produced within the occupier’s premises, are labelled in accordance with the ADG Code, and that the labels are not removed, defaced or altered.

Maximum penalty: Level 4.

(2)  Without limiting subclause (1), an occupier must ensure that any such label:

(a)  clearly identifies the dangerous goods, and

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

Maximum penalty: Level 4.

(3)  However:

(a)  a container into which dangerous goods are transferred 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 dangerous goods are transferred for immediate use need not be labelled, so long as it is cleaned immediately after it has been emptied of the dangerous goods.

(4)  An occupier must ensure that the identity of any dangerous goods contained in an enclosed system at the occupier’s premises (such as a pipe or piping system, or a process or reactor vessel) is notified to a person who could handle the dangerous goods.

Maximum penalty: Level 1.

(5)  This clause does not apply to dangerous goods in transit.

Subdivision 6 Placards

174ZI   Commencement of Subdivision

This Subdivision commences on 1 September 2006.

174ZJ   Outer warning placards

(1)  If the quantities of dangerous goods stored and handled at an occupier’s premises exceed the relevant quantities specified in the column headed “Placarding quantity” in the Table to Schedule 5, the occupier must ensure that a “HAZCHEM” outer warning placard as specified in Schedule 6 is displayed at the entrances to the premises that emergency services would use or be likely to use in the event of an emergency.

Maximum penalty: Level 4.

(2)  Subclause (1) does not apply to retail service stations.

174ZK   Other placarding requirements

(1)  An occupier must ensure that the following are placarded in accordance with this clause:

(a)  any container or other form of storage of dangerous goods in bulk,

(b)  any storage location of packaged dangerous goods.

Note. See the definition of “storage location” in clause 174B.

(2)  Subclause (1) does not apply to any of the following:

(a)  dangerous goods in bulk in any container, including an IBC, that is intended for transport and marked in accordance with the ADG Code,

(b)  C1 combustible liquids in bulk in a quantity not exceeding 10,000 L that are separated from other dangerous goods,

(c)  dangerous goods of Class 2.1 or 3 or C1 combustible liquids, that are stored in an underground tank at a retail service station where the goods are used to refuel vehicles.

(3)  The dimensions, design, layout and content of a placard must be in accordance with Schedule 6 or the ADG Code.

(4)  A placard must be kept clean, in good order and unobstructed.

(5)  A placard required by subclause (1) or by clause 174ZJ must be located:

(a)  so that it is clearly legible by persons approaching the premises, bulk container or other form of storage or storage location (as appropriate), and

(b)  so that it is separate from any other sign or writing which contradicts, qualifies or distracts attention from the placard.

(6)  A placard required by subclause (1) (a) must be located on or adjacent to each bulk container or other form of storage.

(7)  A placard required by subclause (1) (b) must be located:

(a)  at the entrance to any building in which the dangerous goods are stored, and

(b)  within a building referred to in paragraph (a), at the entrance to each room or other closed or walled section of the building in which the dangerous goods are stored, and

(c)  adjacent to any external storage location where the dangerous goods are stored.

(8)  If the dangerous goods to which placards apply are permanently removed from the premises, the occupier must remove the placards.

Maximum penalty: Level 4.

174ZL   Different location permitted

(1)  An occupier of premises that are required to be placarded may place placards in locations different from those specified in this Part if the relevant emergency services agree with the placards being in those different locations.

(2)  The occupier must ensure that the agreement of the relevant emergency services is in writing and is readily available for inspection by WorkCover.

174ZM   Revision

An occupier must ensure that all placards required by this Subdivision are revised as soon as reasonably practicable after any change to the type or quantity of dangerous goods stored at the occupier’s premises that requires different information to be displayed.

Maximum penalty: Level 4.

Subdivision 7 Manifests

174ZN   Manifest to be maintained

(1)  An occupier of premises where dangerous goods are stored and handled in quantities that exceed the relevant quantities specified in the column headed “Manifest quantity” in the Table to Schedule 5 must keep a manifest of dangerous goods, that contains the information and site plans required by Schedule 7, readily available for use by an inspector or the emergency services.

(2)  The occupier must ensure that a copy of the manifest is kept, and is readily accessible, at the main entrance to the occupier’s premises unless the occupier and the Commissioner of the New South Wales Fire Brigades or the NSW Rural Fire Service, as appropriate, have agreed to a different location for keeping a copy of the manifest.

(3)  The occupier must ensure that the manifest is revised as soon as possible after a change in any of the information specified in Schedule 7.

(4)  This clause does not apply in relation to dangerous goods in transit.

(5)  This clause commences on 1 September 2006.

Maximum penalty: Level 4.

Subdivision 8 Serious incidents and other incidents

Note. Sections 86 and 87 of the Act, and clauses 341, 341A and 342 of this Regulation, make provision for the notification to WorkCover of serious incidents and certain other incidents at places of work and for the non-disturbance of plant and areas surrounding the place of a serious incident.

174ZO   Response to serious incidents and other incidents

(1)  An occupier must respond to a serious incident or other incident involving dangerous goods at the occupier’s premises by ensuring that:

(a)  immediate action is taken to assess and control any risk associated with the serious incident or other incident, including making any plant or equipment associated with the serious incident or other incident and the surrounding area safe so far as is reasonably practicable, and

(b)  only persons essential to carrying out the action referred to in paragraph (a) remain in the vicinity of the serious incident or other incident, and

(c)  the risk to each person engaged by the occupier at the premises to carry out the action referred to in paragraph (a) is reduced so far as is reasonably practicable.

Maximum penalty: Level 4.

(2)  Clauses 341–343 extend to controllers of dangerous goods premises and to premises on or in which dangerous goods to which section 135A of the Act applies (regardless of whether or not the premises are a place of work or are used for work).

Note. Sections 86 and 87 of the Act apply to premises on or in which dangerous goods to which section 135A of the Act applies are stored or handled (regardless of whether or not the premises are a place of work or are used for work): see section 135A (3) (c) of the Act.

(3)  The obligations of the occupier under subclause (1) (b) and (c) do not apply in respect of members of the emergency services responding to the serious incident or other incident.

174ZP   Investigation of serious incidents and other incidents

An occupier must ensure that:

(a)  any serious incident or other incident involving dangerous goods occurring at the premises is investigated and that the investigation, so far as possible, determines the cause or likely cause of the serious incident or other incident, and

(b)  a record of the investigation is:

(i)  made, and

(ii)  kept for at least 5 years, and

(iii)  readily available, on request, to WorkCover.

Maximum penalty: Level 4.

174ZQ   Risk assessment and control following serious incidents and other incidents

An occupier of premises where a serious incident or other incident involving dangerous goods has occurred must:

(a)  review the risk assessment carried out in accordance with this Regulation, taking into account the results of the investigation into the serious incident or other incident, and

(b)  if the review identifies deficiencies in any risk control measures, alter those measures or implement new measures.

Maximum penalty: Level 4.

174ZR   WorkCover may request information

(1)  WorkCover may request any information from an occupier in relation to:

(a)  the cause or effect of a serious incident or other incident that has occurred on the occupier’s premises, and

(b)  any action taken by the occupier as a result of the serious incident or other incident.

(2)  A request for information must:

(a)  be in writing, and

(b)  specify a reasonable period within which the occupier must respond.

(3)  The occupier must provide the requested information:

(a)  in writing, and

(b)  within the period specified by WorkCover.

Maximum penalty: Level 4.

(4)  This clause does not apply to a serious incident or other incident at premises that are not a place of work.

Subdivision 9 Notification

174ZS   Notification to WorkCover

(1)  An occupier of premises where dangerous goods are stored and handled in quantities that in total exceed or are likely to exceed the relevant quantities specified in the column headed “Manifest quantity” in the Table to Schedule 5 must ensure that WorkCover is notified of the presence of those dangerous goods.

(2)  A notification to WorkCover under subclause (1) must:

(a)  be given within 14 days after the obligation to notify arises, and

(b)  be accompanied by a fee in such amount as WorkCover may determine as the appropriate amount to cover expenses in connection with the processing and review of notifications required by this clause, and

(c)  include the following information:

(i)  the name of the occupier (and any other occupiers of the premises concerned),

(ii)  the address of the premises where the dangerous goods are stored and handled,

(iii)  the occupier’s contact details,

(iv)  the nature of the principal activities involving the dangerous goods,

(v)  the Class, Packing Group and the maximum quantity of the dangerous goods stored and handled in bulk or as packaged dangerous goods,

(vi)  descriptions and details and the maximum quantity of any C1 combustible liquids stored and handled in bulk or as packaged dangerous goods,

(vii)  the product name and the maximum quantity of goods too dangerous to be transported,

(viii)  any other documents or information specifically requested by WorkCover.

(3)  The occupier must ensure that WorkCover is provided with further notification, containing the information required under subclause (2), every 12 months, or at such longer intervals as are specified by WorkCover.

(4)  On receiving a notification under this clause, WorkCover must send the occupier a written acknowledgment of the notification.

(5)  WorkCover may give any information contained in a notification to a relevant local government council and the emergency services.

(6)  This clause does not apply in relation to dangerous goods in transit.

Maximum penalty: Level 4.

Subdivision 10 Miscellaneous

174ZT   Security at premises

An occupier must, so far as is reasonably practicable, prevent:

(a)  access to dangerous goods on the occupier’s premises by unauthorised persons, and

(b)  unauthorised activities occurring on those premises.

Maximum penalty: Level 4.

174ZU   Lighting

An occupier must ensure that lighting is provided that:

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

(b)  is adequate to allow persons to move safely within the occupier’s premises, and

(c)  facilitates safe access to and egress from the premises, including emergency exits.

Maximum penalty: Level 4.

Part 6A.4 Obligations of employers

174ZV   Employer to retain records of induction and training

An employer must retain records in a suitable form of all induction or other training required by clause 13 to be provided to employees who are likely to store or handle dangerous goods at the employer’s place of work for at least 5 years after the date of creation of the record.

Maximum penalty: Level 1.

174ZW   Employer to keep register of dangerous goods

(1)  An employer must ensure that a register is kept and maintained for all dangerous goods stored or handled at the employer’s place of work.

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

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

(b)  the relevant MSDS (if any) for each of those dangerous goods, and

(c)  any notations required under clause 174ZX.

(3)  The employer must ensure that the register is readily accessible to all employees who may store or handle dangerous goods while at the employer’s place of work.

(4)  This clause does not apply to the following dangerous goods:

(a)  dangerous goods that are supplied to a retailer or retail warehouse operator in a consumer package holding less than 30 kg or 30 L of the dangerous goods, that is intended for retail sale and that is not intended to be opened on the premises of the retailer or operator,

(b)  dangerous goods in transit.

(5)  The employer may keep and maintain a single register both for the purposes of this clause and for the purposes of clause 167 (Employer to keep register of hazardous substances).

(6)  This clause commences on 1 September 2006.

Maximum penalty: Level 1.

174ZX   Employer to record risk assessments

(1)  An employer must record the results of a risk assessment relating to the storage or handling of dangerous goods by:

(a)  making a notation in the register of dangerous goods kept under clause 174ZW if no specific measures are necessary to control the risks associated with the dangerous goods, or

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

Maximum penalty: Level 3.

(2)  The employer must ensure that any risk assessment report prepared in relation to dangerous goods that are stored or handled 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 store or handle the dangerous goods.

Maximum penalty: Level 1.

(3)  This clause commences on 1 September 2006.

Part 6A.5 Specific provisions applying to all dangerous goods to which section 135A of Act applies

174ZY   Application

This Part applies to all dangerous goods to which section 135A of the Act applies (regardless of whether or not they are at a place of work).

174ZZ   Self-service fuel dispensing units

(1)  A person who keeps dangerous goods, being vehicle fuel, for sale or supply by means of a self-service fuel dispensing unit must, in relation to the unit, comply (or cause compliance) with the provisions of this clause.

(2)  Instructions for the operation of the unit, and a statement of the requirements of subclauses (8) and (9), must be clearly displayed on or immediately adjacent to it.

(3)  The unit and the area surrounding it must be adequately illuminated when the unit is in operation.

(4)  A person (an operator) must be appointed to control and supervise from a control point the safe operation of the unit when it is in operation for the sale of fuel.

(5)  Subclause (4) does not apply to a premises at which one or more coin or card operated self-service fuel dispensing units are located during such times (if any) as the premises are not staffed.

(6)  A person must not be appointed as an operator unless he or she:

(a)  is a competent and reliable person of or over the age of 18 years, and

(b)  is fully conversant with the manner of operation of the unit by the users and the system employed for the sale of fuel by means of the unit.

(7)  The person referred to in subclause (1) must take all practicable steps to ensure that the self-service fuel dispensing unit is not operated by a person under 16 years of age.

(8)  When a vehicle is standing near a self-service fuel dispensing unit, the driver of the vehicle must ensure that its engine:

(a)  is stopped before the fuel tank is opened, and

(b)  remains stopped while the fuel is being dispensed into the vehicle.

(9)  A person must not smoke, create a spark or introduce any other ignition source within 3 metres of a self-service fuel dispensing unit (including the nozzle of a hose that is part of such a unit). For the purposes of this subclause, the normal movement of a vehicle does not constitute the introduction of an ignition source.

Maximum penalty: Level 4.

174ZZA   Fuel dispensing units generally

(1)  When a vehicle is standing near a fuel dispensing unit, the driver of the vehicle must ensure that its engine:

(a)  is stopped before the fuel tank is opened, and

(b)  remains stopped while the fuel is being dispensed into the vehicle.

(2)  A person must not smoke, create a spark or introduce any other ignition source within 3 metres of a fuel dispensing unit (including the nozzle of a hose that is part of such a unit). For the purposes of this subclause, the normal movement of a vehicle does not constitute the introduction of an ignition source.

Maximum penalty: Level 4.

174ZZB   Positioning of liquefied gas cylinders

A person must not keep, convey or use a cylinder containing dangerous goods of Class 2.1, being liquefied flammable gas, unless the cylinder is positioned so that the safety relief device communicates directly with the vapour space in the cylinder.

Maximum penalty: Level 4.

174ZZC   Valves

(1)  A person who keeps a cylinder or other container containing dangerous goods of Class 2 must, unless it is connected by permanent piping to a consuming device, ensure that its valve is kept securely closed at all times except when the container is being filled or goods are being taken from it.

(2)  If piping or a pipeline is equipped with one or more excess flow valves, a person must not convey dangerous goods of Class 2 by means of the piping or pipeline unless each valve is set for the minimum diameter of that part of the piping or pipeline that the goods would enter through the valve without first passing through another such valve.

Maximum penalty: Level 4.

174ZZD   Filling of balloons and other containers

(1)  A person must not:

(a)  fill a balloon or other collapsible container with flammable, toxic or anaesthetic gas, or

(b)  keep, convey, sell or use a balloon or other collapsible container that contains any such gas.

(2)  This clause does not prevent an activity carried out for the purposes of or in connection with scientific research or for any medical purpose.

Maximum penalty: Level 4.

174ZZE   Decommissioning of LPG tanks

If an LPG tank has been used to contain dangerous goods and 2 years have elapsed since any dangerous goods were last put in or taken from the tank, the owner of the tank must:

(a)  remove any remaining dangerous goods from, and abandon, the tank in compliance with AS/NZS 1596—2002 The storage and handling of LP Gas, and

(b)  within 7 days of the abandonment, notify WorkCover in the approved form of the abandonment.

Maximum penalty: Level 4.

Chapter 7 Hazardous processes

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

Chapter 2 (Places of work—risk management and other matters) contains further obligations in relation to the provision of personal protective equipment, emergency arrangements and first aid facilities by employers.

Part 5.4 (Working with plant) contains provisions in relation to the maintenance and repair of plant.

Part 6.4 (Use of hazardous substances) contains further obligations in relation to the use of hazardous substances at places of work.

Part 7.1 Spray painting

175   Definitions

In this Part:

electrostatic spray painting means spray painting using an electrically-charged spray painting substance.

spray booth means a structure that is designed to:

(a)  enclose or otherwise accommodate articles being spray painted, and

(b)  control hazards of dust, mist, aerosols, fumes or flammable vapours generated by spray painting by use of appropriate exhaust ventilation, and

(c)  provide for the prevention of ignition sources,

being a structure that is used only for the purpose of spray painting.

spray painting means the process of spraying a spray painting substance that has been converted into a mist or aerosol onto a surface, whether for decoration, preservation, insulation or otherwise.

spray painting substance means a substance used in spray painting and includes, but is not limited to, paints, powders, lacquers, paint removers, rust converters and removers, surface preparation and removers, surface preparation products, resins, solvents and thinners.

176   Application

This Part applies in addition to the other provisions of this Regulation.

Note. In particular, see clause 164 (Use of hazardous substances) which prohibits the use of certain hazardous substances in spray painting and clause 165 (Employer to provide health surveillance) which requires employers to provide health surveillance if there is a risk to health through exposure to hazardous substances.

177   Spray painting in spray booths—particular risk control measures

An employer must ensure that:

(a)  spray painting is carried out in a spray booth, and

(b)  no persons (other than persons required to be in the spray booth as part of the spraying process) are in a spray booth during spray painting, and

(c)  any persons in a spray booth during spray painting are wearing appropriate personal protective equipment.

Maximum penalty: Level 3.

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

178   Spray painting outside spray booths—particular risk control measures

(1)  This clause applies to spray painting other than spray painting carried out in a spray booth.

Note. Despite clause 177 (a), an employer may carry out spray painting other than in a spray booth if the employer proves that compliance with that clause is not reasonably practicable (see section 28 of the Act which provides a defence to proceedings in those circumstances).

(2)  An employer must ensure that spray painting to which this clause applies:

(a)  is carried out in the open air at least 6 metres from every building and from every other thing that might obstruct ventilation, and

(b)  is effectively isolated from every other process in which persons are employed and that is within 6 metres (measured in any direction) from the place at which the spray painting substance is being applied, and

(c)  is effectively isolated from all plant, machinery and equipment that is, or may become, a source of ignition and that is within 2 metres, measured vertically above, and 6 metres, measured in other directions, from the place at which the spray painting substance is being applied.

(3)  If it is not reasonably practicable (within the meaning of section 28 of the Act) for an employer to ensure that the spray painting is carried out in the open air as required by subclause (2) (a), the employer must ensure that:

(a)  the place where the spray painting is carried out is adequately ventilated (by natural or mechanical ventilation), and

(b)  the spray painting is effectively isolated in accordance with subclause (2) (b) and (c).

(4)  For the purposes of this clause, spray painting is not effectively isolated:

(a)  from another process if a substance from the spray painting can be inhaled by a person engaged in the other process, or

(b)  from plant, machinery or equipment if there is a risk that a substance from the spray painting will be ignited by a source of ignition from or associated with the plant, machinery or equipment.

(5)  An employer must ensure that persons carrying out spray painting to which this clause applies are wearing appropriate personal protective equipment.

Maximum penalty: Level 3.

179   Electrostatic spray painting—particular risk control measures

(1)  An employer must ensure that equipment used to carry out electrostatic spray painting is provided with automatic controls that will, if any conveyor carrying articles through the high voltage electric field stops:

(a)  disconnect the power supply to any high voltage transformer used in the process, and

(b)  give a warning of the stoppage.

(2)  An employer must ensure that, if electrostatic spray painting is carried out using a hand-held device, the following items are effectively earthed:

(a)  the handle of the device,

(b)  the articles being painted,

(c)  if the painting is carried out in a spray booth:

(i)  all metal work of the booth, and

(ii)  all metal articles inside the booth or within 2 metres of the booth.

(3)  An employer must ensure that a clearly legible warning notice bearing the words “DANGER—HIGH VOLTAGE” is exhibited in a clearly visible position on equipment used to carry out electrostatic spray painting.

(4)  An employer must ensure that equipment used to carry out electrostatic spray painting cannot be used unless the exhaust system is in operation.

Maximum penalty: Level 3.

Part 7.2 Abrasive blasting

180   Definitions

In this Part:

abrasive blasting means the process of cleaning, smoothing, roughening, cutting, preparing or removing the surface, or part of the surface, of any article or building by means of blasting, blowing, throwing or otherwise propelling an abrasive substance against the article or building, including the propelling of an abrasive substance by means of blasting steam or water at a high pressure.

abrasive blasting enclosure means a structure that is designed to:

(a)  enclose or otherwise accommodate articles being abrasive blasted, and

(b)  isolate or minimise hazards of dusts or debris generated by abrasive blasting, and

(c)  provide for the prevention of ignition sources, and

(d)  safely filter and discharge any exhaust ventilation to a suitable point outside the workplace,

being a structure that is used only for the purpose of abrasive blasting.

abrasive substance means any substance used as an abrasive for the purpose of abrasive blasting.

181   Application

This Part applies in addition to the other provisions of this Regulation.

182   Abrasive blasting—particular risk control measures

(1)  An employer must ensure that:

(a)  abrasive blasting is carried out in an abrasive blasting enclosure if reasonably practicable, and

(b)  no persons (other than persons required to be in the abrasive blasting enclosure as part of the blasting process) are in an abrasive blasting enclosure during abrasive blasting, and

(c)  any persons in an abrasive blasting enclosure during abrasive blasting are wearing appropriate personal protective equipment.

(2)  If it is not reasonably practicable to carry out abrasive blasting in an abrasive blasting enclosure, an employer must ensure that:

(a)  any area exposed to dust is minimised, and

(b)  adequate signs to warn of the hazards of the blasting are provided, and

(c)  persons not carrying out the blasting are not permitted to enter an area in which there is a risk of exposure to atmospheric contaminants, and

(d)  persons carrying out the blasting are wearing appropriate personal protective equipment.

Maximum penalty: Level 3.

183   Supply of respirators and personal protective equipment

(1)  An employer must ensure that persons who are carrying out abrasive blasting and who may be exposed to atmospheric contaminants arising from the blasting are provided with an air supplied respirator if the persons may be exposed to atmospheric contaminants exceeding the appropriate exposure standard referred to in clause 51 (Atmospheric contaminants—particular risk control measures).

(2)  An employer must ensure that other persons (including those carrying out maintenance or repair work on abrasive blasting equipment) who may be exposed to atmospheric contaminants arising from abrasive blasting are provided with appropriate personal protective equipment if the persons may be exposed to atmospheric contaminants exceeding the appropriate exposure standard referred to in clause 51.

Maximum penalty: Level 3.

Note. Also see clause 15 (Provision by an employer of personal protective equipment).

184   Control of substances used in abrasive blasting

An employer must ensure that substances that may result in the exposure of persons to atmospheric contaminants exceeding the appropriate exposure standard referred to in clause 51 are not used for the purpose of abrasive blasting.

Maximum penalty: Level 3.

Part 7.3 Welding

185   Definition

In this Part:

welding includes any metal welding or similar process, such as fusion welding (including arc welding, gas welding and laser beam welding), spot welding, braze welding and thermal cutting (including oxygen and plasma cutting).

186   Application

This Part applies in addition to the other provisions of this Regulation.

187   Exposure to atmospheric contaminants and other hazards—particular risk control measures

(1)  An employer must ensure that exposure of persons to atmospheric contaminants arising from welding, including fumes, gases and vapours emitted from materials consumed during welding and from materials being welded, is controlled by use of one or more of the following measures (in descending order of priority):

(a)  substituting a less hazardous process, material or procedure,

(b)  using appropriate ventilation.

(2)  An employer must ensure that persons directly involved in welding are wearing appropriate personal protective equipment.

(3)  An employer must ensure that adequate signs to warn of the hazards are provided at or near any area in which there is a risk of exposure of persons to hazards arising from welding.

Maximum penalty: Level 3.

188   Supply of respirators

An employer must ensure that any person who may be exposed to atmospheric contaminants arising from welding, including fumes, vapours or gases emitted from materials consumed during welding and from materials being welded, is provided with suitable respiratory protection if the person may be exposed to atmospheric contaminants exceeding the appropriate exposure standard referred to in clause 51 (Atmospheric contaminants—particular risk control measures).

Maximum penalty: Level 3.

Note. Also see clause 15 (Provision by an employer of personal protective equipment).

189   Ultraviolet radiation—particular risk control measures

An employer must ensure that risks associated with exposure of persons to harmful levels of ultraviolet radiation at or near the site of welding are controlled by use of the following measures (in descending order of priority):

(a)  using appropriate screens to provide protection from ultraviolet radiation,

(b)  ensuring that persons required to be in an area in which there is a risk of exposure to ultraviolet radiation are wearing appropriate protective equipment,

(c)  ensuring that persons who are not carrying out welding are not permitted to enter an area in which there is a risk of exposure to ultraviolet radiation and that adequate signs to warn of the hazards are provided.

Maximum penalty: Level 3.

Part 7.4 Electroplating

190   Definition

In this Part:

electroplating means the process of applying a deposit of metal onto an article, or any part of an article, by electrolytic means, including the ancillary process of polishing, brightening or cleaning the article by electrolytic or chemical means.

191   Application

This Part applies in addition to the other provisions of this Regulation.

192   Exposure to atmospheric contaminants and other hazards—particular risk control measures

(1)  An employer must ensure that exposure of persons to atmospheric contaminants arising from electroplating is controlled by use of one or more of the following measures (in descending order of priority):

(a)  substituting a less hazardous process, material or procedure,

(b)  using appropriate ventilation or fume suppressants, or both.

(2)  An employer must ensure that, if the persons exposed to atmospheric contaminants arising from electroplating are persons involved in the cleaning or maintenance of equipment used in electroplating, the exposure is controlled by using appropriate ventilation and the provision of appropriate personal protective equipment.

(3)  An employer must ensure that adequate provision is made to minimise the consequences of dangerous spills or splashes arising from electroplating by the supply, appropriate to the level of risk, of spill kits, safety showers, eye wash and personal protective equipment for splash protection.

(4)  An employer must ensure that adequate signs to warn of the hazards are provided at or near any area in which there is a risk of exposure of persons to hazards arising from electroplating.

(5)  An employer must ensure that persons who are not carrying out electroplating are not permitted to enter an area in which there is a risk of exposure to hazards arising from electroplating.

Maximum penalty: Level 3.

193   Labelling of containers

An employer must ensure that every container of a substance (whether hazardous or not) used in electroplating is clearly labelled with the name of the substance at all times.

Maximum penalty: Level 3.

Note. This clause is in addition to clauses 156 (Supplier to ensure hazardous substances are labelled) and 163 (Employer to ensure containers are labelled) (to the extent that those clauses apply to the containers referred to in the clause).

194   Cyanide—particular risk control measures

An employer must ensure that any electroplating process involving cyanide complies with the following:

(a)  containers of corrosives involved in the process must be separated from any container of cyanide by at least one water rinse tank,

(b)  cyanide not being used in the process must be kept in containers that are stored in a manner that prevents them from coming into contact with a liquid,

(c)  containers of corrosives not directly involved in the process must not be kept in a storage area in which cyanide is kept,

(d)  a person is available to provide first aid in the case of cyanide poisoning and an emergency kit suitable for treating cyanide poisoning, together with an appropriate respirator, is provided in a suitable location for use by that person,

(e)  a notice with respect to the treatment of persons for cyanide poisoning is exhibited in a suitable location where cyanide is used or stored.

Maximum penalty: Level 3.

Part 7.5 Molten metal

195   Definitions

In this Part:

molten metal work means any work process in which metals are melted, poured and moulded.

196   Application

This Part applies in addition to the other provisions of this Regulation.

197   Atmospheric contaminants and other hazards—particular risk control measures

(1)  An employer must ensure that exposure of persons to atmospheric contaminants from molten metal work, including toxic or noxious fumes, dust or gases emitted during the melting, pouring and moulding processes, is controlled by use of the following measures (in descending order of priority):

(a)  isolation of the work,

(b)  installation of extractive ventilation or measures of equivalent effectiveness.

(2)  An employer must ensure that persons directly involved in molten metal work are wearing appropriate personal protective equipment (including, where appropriate, respiratory equipment and equipment for protection against impact, radiation or heat).

(3)  An employer must ensure that adequate signs to warn of the hazards are provided at or near any area in which there is a risk of exposure of persons to hazards arising from molten metal work.

(4)  An employer must ensure that persons who are not carrying out molten metal work are not permitted to enter any area in which there is a risk of exposure to hazards arising from molten metal work.

Maximum penalty: Level 3.

198   Exposure to radiation—particular risk control measures

An employer must ensure that exposure of persons to heat and infra-red and ultra-violet radiation generated by molten metal work is controlled by use of the following measures (in descending order of priority):

(a)  isolation of the heat or radiation generating process from the work space,

(b)  shielding the persons concerned from the heat or radiation.

Maximum penalty: Level 3.

Part 7.6 Lead processes and lead risk work

199   Definitions

In this Part:

blood lead level means the concentration in whole blood expressed in micromoles per litre (µmol/L) or micrograms per decilitre (µg/dL).

lead means lead metal, inorganic lead compounds and lead salts of organic acids.

lead process means any one of the following processes:

(a)  any work that exposes a person to lead dust in air or lead fumes arising from the manufacture or handling of a dry lead compound, except galena (lead sulphide) when its character or composition remains unchanged,

(b)  any work connected with the manufacture, assembly, handling or repair of, or parts of, electric accumulators (batteries) that involves the manipulation of dry lead compounds, pasting or casting lead,

(c)  breaking up or dismantling of lead accumulators and the sorting, packing and handling of plates or other parts containing lead removed or recovered from those accumulators,

(d)  spraying with molten lead, alloys or lead paint containing more than 5 per cent by weight of lead,

(e)  melting or casting of lead alloys containing more than 5 per cent by weight of lead in which the temperature of the molten material is more than 450 degrees Celsius,

(f)  recovery of lead from its ores, oxides or other compounds by a thermal reduction process,

(g)  dry machine grinding, discing, buffing or cutting by power tools of lead or alloy containing more than 5 per cent by weight of lead,

(h)  machine sanding or buffing of surfaces coated with paint containing more than one per cent by dry weight of lead,

(i)  any process by which electric arc, oxy-acetylene, oxy gas, plasma arc or a flame is applied, for the purposes of welding, cutting or cleaning, to the surface of any metal that is coated with lead or paint containing more than one per cent by dry weight of lead,

(j)  radiator repairs if exposure to lead dust or fumes may occur,

(k)  fire assay if lead is used,

(l)  melting of lead or alloy containing more than 50 per cent lead by weight if the exposed surface area of the molten material is more than 0.1 square metres and the temperature of the molten material exceeds 450 degrees Celsius.

lead risk work means a lead process or a work activity or sequence of activities at a specific area within a place of work in which the blood lead level of an employee might reasonably be expected to rise or does rise above 1.45 µmol/L (30 µg/dL).

200   Application

This Part applies in addition to the other provisions of this Regulation.

Note. In particular, note that the provisions of Part 6.4 apply to the use of all hazardous substances (including lead) at work and, among other things, require employers to provide health surveillance for employees if there is a risk to health resulting from exposure to a hazardous substance. Those provisions apply whether or not the use constitutes a lead process or lead risk work for the purposes of this Part. Also note that clause 345 requires persons to give WorkCover notice of any proposed lead risk work.

201   Employer to control risks from lead

(1)  An employer at a place of work at which a lead process is carried out must ensure that contamination by lead is confined to the area in which the lead process is carried out (a lead process area) and that lead contamination of the surrounding environment does not occur.

Maximum penalty: Level 4.

(2)  An employer must ensure that:

(a)  a lead process area is kept as clean as is practicable, and

(b)  compressed air, compressed gas or dry sweeping cleaning methods are not used in a lead process area, and

(c)  no employee eats, drinks, chews gum, smokes or carries smoking materials in a lead process area, and

(d)  any eating or drinking facilities provided at the workplace cannot be contaminated with lead, and

(e)  employees working in a lead process area wear appropriate personal protective equipment, and

(f)  changing rooms and washing, showering and toilet facilities appropriate to the lead process carried out are provided and maintained in good working order, and

(g)  employees remove clothing and equipment contaminated with lead, and wash their hands and faces, before entering an area provided at the workplace for eating and drinking.

Maximum penalty: Level 3.

(3)  An employer must arrange for the laundering of protective work clothing that may have been contaminated by lead.

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

202   Biological monitoring and health surveillance

(1)  In the case of lead risk work, any biological monitoring required to be performed under Part 6.4 must consist of the measurement of lead in whole blood or packed red cells, sampled as capillary or venous blood (as appropriate) and related measurements, as required.

(2)  In the case of lead risk work, health surveillance (additional to that required to be performed under Part 6.4) must be performed:

(a)  in relation to an employee who is carrying out lead risk work at the commencement of this clause—as soon as practicable after that commencement, or

(b)  in relation to an employee who commences lead risk work after the commencement of this clause:

(i)  before the employee commences the work (except biological monitoring), and

(ii)  within one month of the commencement of the work, and

(iii)  as soon as practicable after 2 months of the commencement of the work, and

(iv)  as soon as practicable after 6 months of the commencement of the work.

(3)  In the case of lead risk work, the biological monitoring required to be performed under Part 6.4 and subclause (1) must be performed at the following intervals:

(a)  for females of reproductive capacity:

(i)  within 3 months of the last biological monitoring if the result of that last monitoring shows a blood lead level of less than 0.48 µmol/L (10 µg/dL), or

(ii)  within 6 weeks of the last biological monitoring if the result of the last monitoring shows a blood lead level result of 0.48 µmol/L (10 µg/dL) or more,

(b)  for females not of reproductive capacity and males:

(i)  within 6 months of the last biological monitoring if the result of the last monitoring shows a blood lead level result of less than 1.45 µmol/L (30 µg/dL), or

(ii)  within 3 months of the last biological monitoring if the result of the last monitoring shows a blood lead level of 1.45 µmol/L (30 µg/dL) or more but less than 1.93 µmol/L (40 µg/dL), or

(iii)  within 6 weeks of the last biological monitoring if the result of the last monitoring shows a blood lead level of 1.93 µmol/L (40 µg/dL) or more.

Maximum penalty: Level 4.

203   Employer to remove certain employees from lead risk work

(1)  An employer must ensure that an employee ceases to carry out lead risk work if the employer or employee considers that the employee has received an excessive exposure to lead in the workplace and the results of biological monitoring on the employee show the confirmed blood lead level of the employee as:

(a)  0.72 µmol/L (15 µg/dL) or more for females who are pregnant or breast feeding, or

(b)  0.97 µmol/L (20 µg/dL) or more for other females of reproductive capacity, or

(c)  2.41 µmol/L (50 µg/dL) or more for females not of reproductive capacity and males.

(2)  An employer must ensure that an employee referred to in subclause (1) receives a medical examination by an authorised medical practitioner within 7 days of the employer determining that the employee should cease carrying out lead risk work.

(3)  An employer must ensure that an employee referred to in subclause (1) does not carry out lead risk work until:

(a)  the employee’s confirmed blood lead level is less than:

(i)  0.48 µmol/L (10 µg/dL) for females of reproductive capacity, or

(ii)  1.93 µmol/L (40 µg/dL) for females not of reproductive capacity and males, and

(b)  the employee is certified as fit to return to lead risk work by an authorised medical practitioner.

(4)  An employer must keep a record that includes the following particulars:

(a)  the date on which an employee ceased to carry out lead risk work in accordance with this clause and the date on which the employee recommenced such work,

(b)  the name, sex and date of birth of the employee.

Note. The record must be retained for at least 5 years. See clause 171.

(5)  In this clause:

confirmed blood lead level means the concentration of lead in venous whole blood.

Maximum penalty: Level 4.

204   Pregnant or breastfeeding employee to advise employer

An employee employed to carry out lead risk work who:

(a)  knows she is pregnant, or

(b)  is breast feeding,

must advise her employer of that fact as soon as practicable.

Maximum penalty: Level 2.

Note. See also clause 28 for obligation of employee to notify employer of any matter that may affect employer’s obligations under this Regulation.

Part 7.7 Electrical work

Note. See also Division 3 of Part 4.2 (Electricity—duties of controllers of premises) and Division 8 of Part 4.3 (Electricity—duties of employers).

205   Definitions

In this Part:

electrical installation has the same meaning as in Chapter 4.

safe work method statement means a statement that:

(a)  describes how work is to be carried out, and

(b)  identifies the work activities assessed as having safety risks, and

(c)  identifies the safety risks, and

(d)  describes the control measures that will be applied to the work activities,

and includes a description of the equipment used in the work, the standards or codes to be complied with, the qualifications of the personnel doing the work and the training required to do the work.

Note. See Chapter 2 for provisions relating to the identification, assessment and control of risks.

206   Application

This Part applies in addition to the other provisions of this Regulation.

207   Electrical work on electrical installations—safety measures

(1)  An employer must ensure that any electrical work on an electrical installation at a place of work is carried out using a safe system of work.

(2)  An employer must ensure that such work is not carried out while the circuits and apparatus of the part of the installation that is being worked on are energised.

(3)  The safe system of work must include:

(a)  checks to ensure that the circuits and apparatus of the part of the installation that is being worked on are not energised before work commences and remain that way until the work is completed, and

(b)  measures to eliminate or control the risk of the person carrying out the work inadvertently contacting any part of the installation that remains energised.

(4)  Despite subclause (2), electrical work on an electrical installation may be carried out while the circuits and apparatus of the part of the installation that is being worked on are energised if it is necessary to do so in the interests of safety and the risk of harm would be greater if the circuits and apparatus were de-energised before work commenced. In these circumstances the employer must ensure that:

(a)  before the work is commenced, a written risk assessment has been completed in respect of the work in consultation with the persons proposing to do the work, and

(b)  the work is carried out in accordance with a safe work method statement for the work, and

(c)  the work has been authorised by the person in control of the premises, and

(d)  the persons doing the work are appropriately qualified, trained and instructed in safe work practices for the particular task, including the proper use of test equipment, tools, accessories and personal protective equipment, and

(e)  appropriate test equipment and tools and accessories are provided to the persons doing the work, are properly used and are well maintained, and

(f)  appropriate clothing and personal protective equipment for the work are provided to the persons doing the work and are properly worn and used, and

(g)  the isolation point of the relevant electrical supply has been clearly identified and is able to be reached and operated quickly without any need to negotiate or remove obstacles, and

(h)  the work area is clear of obstruction so as to enable entry and exit quickly and safely, and

(i)  unauthorised persons are prevented from entering the work area by signage or barriers, or both, and

(j)  the work is undertaken in the presence of a safety observer who is competent to perform the particular task that is to be carried out and is competent in electrical rescue and cardio-pulmonary resuscitation.

(5)  This clause does not apply to electrical work carried out under a plan required to be lodged under the Electricity Supply (Safety and Network Management) Regulation 2002 or to electrical testing referred to in clause 208.

Maximum penalty: Level 4.

208   Electrical testing on electrical installations—safety measures

(1)  An employer must ensure that persons conducting tests for the integrity and operability of energised circuits and apparatus of an electrical installation at a place of work conduct the tests in a safe manner.

(2)  Without limiting the generality of subclause (1), the employer must ensure that:

(a)  a safe system of work is used that includes:

(i)  a risk assessment in respect of the tests, and

(ii)  measures to eliminate or control the risk of the persons conducting the tests inadvertently contacting any part of the installation that is energised (including safe work practices to minimise the risk of inadvertent contact, if the risk cannot be eliminated), and

(b)  appropriate test equipment is provided and properly used by appropriately trained persons, and

(c)  appropriate personal protective equipment is provided and used by the persons conducting the tests, and

(d)  if necessary to minimise a risk identified by the risk assessment, the tests are conducted in the presence of a safety observer who is competent to assist the persons who are conducting the tests and who is competent in electrical rescue and cardio-pulmonary resuscitation.

Maximum penalty: Level 4.

Chapter 8 Construction work

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

Part 8.1 Preliminary

209   Definitions