Australia: Amendments to OHS Regulations (Vic) to commence on 1 July 2014

Introduction

The Occupational Health and Safety Amendment Regulations 2014 will commence on 1 July 2014, making significant changes to the Occupational Health and Safety Regulations 2007 ("the Regulations").

There are thirty one amendments made to the Regulations. The amendments are aimed at reducing the administrative ('red tape') burden on employers, while ensuring Victoria has the safest workplaces in Australia.

Key amendments to the OHS Regulations

The amendments to the Regulations follow a review by the Victorian WorkCover Authority. The amendments have been made to, in effect, reduce the administrative requirements on employers without reducing safety standards, streamlining obligations and bringing Victoria's regulations more into line with the model Work Health and Safety Regulations ("the WHS Regulations").

The Victorian WorkCover Authority ("the Authority") has published on its website a comparative analysis of the current Regulations against the amended OHS Regulations.

In this article, we highlight key amendments to the Regulations, which employers and others should become familiar with. This is a summary only of some of the amendments and you should carefully check all of the amendments to determine the effect they will have on your obligations.

• Requirements in the Regulations to provide information, instruction and training have been revoked

Requirements in the Regulations¹ for employers to provide employees with sufficient information, instruction and training as necessary to enable the employees to perform their work in a manner that is safe and without risks to health have been revoked.

The revocation of this clause of the Regulations will not reduce the obligations of an employer as they are already found² in the Occupational Health and Safety Act 2004 ("the OHS Act") and those obligations are not as limited as the requirement that were in the Regulations.

• Designs of specified 'lifts' no longer required to be registered

Following amendment to the Regulations, "platforms for raising or lowering stage performers and associated equipment and plant designed only to store vehicles in a designated parking facility³" will not be classified as 'lifts', and the designs for those platforms will accordingly not be required to be registered as such. This will reduce the administrative burden and costs for those who design these types of devices.

• Plant item registration no longer required

The requirement for specified items of plant to be registered with the Authority has been repealed. However, specified plant designs are still required to be registered as prescribed under Schedule 2 of the Regulations. Requirements applicable to registered plant continue to apply to specified items of plant⁴.

This change recognises that the mere registration of an item of plant did nothing to improve OHS and the information obtained through the registration process was not used by the Authority. By contrast, the registration of the design of specified plant provides for a consideration of hazards and risk controls and is a worthwhile process.

While there will no longer be a requirement to register items of plant with the Authority, it is important for employers to have in place systems and processes for assessing plant as being safe for the intended use and for regular inspection and maintenance of items of plant to ensure they continue to be safe and without risks to health if used for the purpose for which they were designed and manufactured⁵. This is reinforced by continued requirements in the Regulations for an employer to inspect and maintain plant⁶ and keep records of the inspection and maintenance of specified items of plant⁷.

• Exemption for high risk work and high risk work licence has been extended

The exceptions under the Regulations from the requirement to have a high risk work licence before undertaking high risk work have been extended to include, "any person who is performing high risk work involving plant (other than work referred to in Part 1 of Schedule 3) that is performed solely for the purpose of testing, installing, commissioning, maintaining or repairing the plant".

Changes have been made to the provisions for exemption from the high risk work licensing obligations, and you should check to see if the changes may assist you.

The expansion of the exemptions relating to high risk work and high risk work licences will more closely align Victoria's Regulations with the provisions of the model WHS Regulations.

• Principal Contractor provisions threshold value increased to $350,000

The value of the 'construction project' cost that triggers the operation of the principal contractor provisions of the Regulations has been increased from $250,000 to $350,000. This means that the principal contractor provisions will apply to fewer construction projects. This provides to some extent for inflation since the Regulations commenced in 2007. Taking into account non-construction costs (e.g. design), this will also bring the threshold closer to that applying under the WHS Regulations, which is for construction costs (not the cost of the whole project) of $250,000.

• Requirement to retain records of construction induction cards removed

The requirement for an employer to make and retain a record of construction induction cards held by employees has been revoked. This is simply a record-keeping change and an employer must still ensure that employees engaged in construction work hold construction induction cards (and this must be checked before allowing employees to undertake construction work).

• Lead result now to be forwarded to the Authority 'as soon as is reasonably possible'

Employers will no longer be required to provide the outcome of the lead examinations to the Authority within 48 hours after receiving the report. Instead, employers will be required to provide a copy of the report to the Authority 'as soon as is reasonably possible'. This term has not been defined and therefore it must be given its ordinary meaning, which may mean as soon as the employer receives the report, unless there are impediments to doing so.

This change removes inconsistency with other requirements in the Regulations where the term 'so far as is reasonably possible' has been used⁸.

• Increased flexibility for duty holders in identifying substances as hazardous

Currently, duty holders must use either the Hazardous Substances Information System ("HSIS") or the Globally Harmonised System ("GHS") to determine if a particular substance is hazardous. The amended Regulations provide that the 3rd, 4th or 5th edition of the GHS can be used to determine if a particular substance is hazardous. This is in contrast with the model WHS Regulations where only the 3rd edition of the GHS is used.

Further, the term Material Safety Data Sheet ("MSDS") and Safety Data Sheets ("SDS") can now be used interchangeably. This will remove confusion, as the term SDS is used under the WHS Regulations rather than MSDS. Also, employers are no longer required to make reasonable enquiries regarding the currency of an MSDS9 (no such obligation exits under the WHS Regulations).

• Some reporting requirements of mining operators changed

The requirement for mining operators to obtain a copy and provide such copy of health surveillance to its employees on the day it is obtained¹⁰ has been replaced with a note for that report to be provided 'as soon as is reasonably possible'. The requirement for mining operators to notify the Authority in writing of the name of each registered medical practitioner involved in conducting health surveillance has been revoked.

The period in which a mining operator may make a submission in relation to an inquiry by the Authority as to whether a mine should be determined a prescribed mine has been extended to 28 days (from 14 days). This will assist mining operators to have a reasonable opportunity to collate and gather information relating to the inquiry being made by the Authority.

• Amendments to the Plant & High Risk Work Schedules

Parts of the Plant and High Risk Work Schedules have also been amended, which for the most part replicate the requirements under the model WHS Regulations:

• The requirement to register the design for Hazard Level E gas cylinders and Hazard Level E fired heaters¹¹ has been repealed;
• The design requirement for Miniature Boiler that meets the Australian Standard Safety Committee (AMBSC) Codes 1-4 has been removed and has been excluded from requiring a person to hold high risk work licence¹² when involved in works relating to miniature boiler;
• Chairlift¹³ designs are now required to be registered, which is consistent with the requirements under the WHS Regulations;
• The design of trucks with mounted concrete placing units¹⁴ (with delivery boom) are now required to be registered, the same requirement exists under the model WHS Regulations;
• There is now limited design registration requirements on powered devices on amusement structures¹⁵, and the amendments will align Victoria's OHS Regulations with the model WHS Regulations which relies on the same standard (AS 3533.1) as in Victoria;
• A forklift licence is no longer required for any person who operates a tractor fitted with a forklift attachment¹⁶; and
• Operators for winders for the lowering and raising of personnel and materials¹⁷ in mines are no longer required to have a high risk licence.

Implications for employers

While the key changes to the Regulations provide for reduced burdens on employers, the 'devil is in the detail'. Employers and others with relevant obligations under the regulations should carefully review the amendments and identify how these will affect them. Care should be taken to note new obligations and changes to existing obligations, as well identifying opportunities to cease previously required recording and reporting activities that are no longer required.

The focus placed on the Regulations by the amendments, make it an ideal time to revisit the duties and obligations that you have and ensure that your systems and processes provide for compliance. Taking a fresh look at the systems and processes may also provide a further opportunity to identify improvements to safety outcomes and cost effectiveness.

Footnotes

¹Regulations 2.1.2 and 3.5.45 of the Regulations.
²Section 21(2)(e) of the OHS Act.
³Schedule 2 – Plant 1.4 of the Regulations.
⁴For example, risk control requirements relating to lifts, in Regulation 3.5.41.
⁵Note the duty of an employer under Section 21(2)(a) of the OHS Act.
⁶Regulation 3.5.30.
⁷Regulation 3.5.31 as amended; and notification under section 37 of the OHS Act of incidents involving collapse or malfunction etc of plant specified in regulation 3.5.31 (new regulation 3.5.45A added).
⁸For example regulations, 2.2.4(1), 2.2.4(1), 3.2.12, 3.4.20(4), 4.4.21(1), 5.2.17, 6.1.26(1) and 7.1.4(30) contained the term 'so far as is reasonably possible' .
⁹Regulation 4.1.16 has required an employer to review the currency of an MSDS if it was received more than 5 years ago and has not been reviewed during that period.
¹⁰Regulation 5.3.15(2)(b) of the Regulations.
¹¹Schedule 2, 1.1 of the Regulations.
¹²Schedule 2, Part 1, 1.1 and Schedule 4 of the Regulations. ¹³Schedule 2, Part 1 of the Regulations.
¹⁴ibid
¹⁵Schedule 2, 1.8, of the Regulations.
¹⁶Schedule 3, Part 2, 9 of the Regulations.
¹⁷Schedule 3, Part 2, 24, Occupational Health and Safety Amended Regulations 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.