Commonwealth Consolidated Regulations

OCCUPATIONAL HEALTH AND SAFETY (SAFETY STANDARDS) REGULATIONS 1994 - SCHEDULE 1B

(regulation 6.16A)

Part 1           General

1.01         Definition

                In this Schedule:

relevant employing authority , in relation to an employer seeking an exemption under regulation 6.16A, means:

                (a)    if the employer is the Commonwealth -- the employing authority that wishes to seek the exemption; or

               (b)    if the employer is a Commonwealth authority -- that Commonwealth authority.

Note    The term employing authority is defined in subsection 5 (1) of the Act. See also section 10 of the Act in relation to employing authority.

Part 2           Hazardous substances other than chrysotile

2.01         Applications for exemption

                If an employer wishes to seek an exemption under regulation 6.16A in relation to a hazardous substance other than chrysotile, the relevant employing authority must:

                (a)    apply to the Commission in writing, using the application form (if any) approved by the Commission; and

               (b)    include in the application evidence that:

                          (i)    the use of the hazardous substance is essential to the operation of the employer's business; and

                         (ii)    there is no reasonable alternative substance for the hazardous substance.

2.02         Grant or refusal of exemption

         (1)   On receipt of an application by a relevant employing authority under clause 2.01, the Commission may, in writing:

                (a)    grant the exemption to the employer, in the name of the relevant employing authority; or

               (b)    refuse to grant the exemption; or

                (c)    ask the relevant employing authority to give it further information about the application.

         (2)   Before granting an exemption to the employer, the Commission must be satisfied that:

                (a)    the use of the hazardous substance is essential to the operation of the employer's business; and

               (b)    there is no reasonable alternative substance for the hazardous substance; and

                (c)    there are no circumstances suggesting that granting the exemption would be inconsistent with the objects of Part 6 of these Regulations.

         (3)   If the Commission refuses to grant an exemption, it must give the relevant employing authority a written notice setting out its decision and the reasons for its decision.

2.03         Conditions of an exemption

         (1)   An exemption granted under clause 2.02 may be subject to conditions that promote the objects of Part 6 of these Regulations.

         (2)   The Commission may, by notice in writing to the relevant employing authority to which an exemption relates:

                (a)    add a condition to the exemption, or vary a condition; or

               (b)    revoke a condition.

         (3)   The notice must include:

                (a)    the reasons for the addition, variation or revocation; and

               (b)    the time when the addition, variation or revocation takes effect.

2.04         Operation of an exemption

         (1)   An exemption granted under clause 2.02 commences on:

                (a)    the day on which it is granted; or

               (b)    a later date stated in the exemption.

         (2)   The Commission must cancel an exemption if:

                (a)    it is satisfied that continuing the exemption would be inconsistent with the objects of Part 6 of these Regulations; or

               (b)    the relevant employing authority to which the exemption relates asks the Commission to cancel it.

         (3)   The Commission is not required to consult the relevant employing authority to which an exemption relates before cancelling the exemption.

         (4)   If the Commission cancels an exemption under paragraph (2) (a), it must give the relevant employing authority a written notice setting out:

                (a)    its decision to cancel the exemption; and

               (b)    the reasons for cancelling it; and

                (c)    the time from which it is cancelled.

         (5)   An exemption ceases:

                (a)    at the end of the day (if any) stated in the exemption as the day when it ceases; or

               (b)    when it is cancelled.

Part 3           Chrysotile

Division 3.1            General

3.01         Interpretation

         (1)   In this Part:

"list of exemptions" means the table set out in clause 3.02.

Note     Plant is defined in subsection 5 (1) of the Act to include any machinery, equipment or tool, and any component thereof.

         (3)   For this Part, a part or component of a plant is mission-critical if:

                (a)    the unavailability of the part or component prevents the plant from being available for use; and

               (b)    the unavailability of the plant prevents a mission from being undertaken.

3.02         List of exemptions

         (1)   The Commission may exempt an employer in relation to a use of chrysotile only if the use is a use mentioned in column 2 of the list of exemptions.

         (2)   The Commission must not grant an exemption, in relation to a use mentioned in column 2 in the list of exemptions, that purports to have effect after the date mentioned in column 3 in relation to that use.

Note    An exemption is not effective after the relevant date mentioned in column 3 in the list of exemptions. See subclauses 3.06 (5) and 3.10 (5).

Note    The list of exemptions reflects the exemptions listed in the National List of Exemptions to the Prohibition of the Workplace Use of Chrysotile Asbestos set out in Schedule 2 to the National Model Regulations for the Control of Workplace Hazardous Substances [NOHSC: 1005 (1994)] which includes notes about the exemptions.

Division 3.2            Exemption for uses other than defence mission-critical uses

3.03         Applications for exemption

         (1)   If an employer wishes to seek an exemption for a use mentioned in column 2 of any of items 1 to 3 in the list of exemptions, the relevant employing authority must:

                (a)    apply to the Commission in writing, using the application form (if any) approved by the Commission; and

               (b)    state in the application the use for which the exemption is sought; and

                (c)    include in the application:

                          (i)    evidence that the use is essential to the operation of the employer's business; and

                         (ii)    evidence that there is no reasonable alternative to the use of chrysotile; and

                        (iii)    a statement of the measures that the relevant employing authority will take, if the exemption is granted, to deal with any risk that might arise from the use of chrysotile; and

                        (iv)    a statement of the actions that the relevant employing authority will take, if the exemption is granted, to comply with the condition mentioned in paragraph 3.05 (1) (a).

         (2)   Subclause (3) applies in relation to an application made in accordance with subclause (1) if:

                (a)    the application is to seek an exemption that is to commence on 31 December 2003; and

               (b)    the application is made before that day; and

                (c)    the Commission has not, before that day, decided whether to grant or to refuse to grant the exemption.

         (3)   The exemption sought in the application is taken to be granted to the employer, in the name of the relevant employing authority, on 31 December 2003 and to continue in force until:

                (a)    if the Commission grants the exemption -- the exemption commences; or

               (b)    if the Commission refuses to grant the exemption -- written notice of the Commission's decision is given to the relevant employing authority; or

                (c)    the application is taken to have been withdrawn under subclause 3.04 (2).

3.04         Grant or refusal of exemption

         (1)   On receipt of an application made by a relevant employing authority under subclause 3.03 (1), the Commission may, in writing:

                (a)    grant the exemption to the employer, in the name of the relevant employing authority; or

               (b)    refuse to grant the exemption; or

                (c)    ask the relevant employing authority to give it further information about the application within a reasonable period specified by it.

         (2)   If the Commission has asked for information under paragraph (1) (c), and no information has been given to the Commission within the specified period, or a longer period agreed to by the Commission before the end of the specified period, the application is taken to have been withdrawn.

         (3)   Before granting an exemption to the employer, the Commission must be satisfied that:

                (a)    the use is a use mentioned in column 2 of any of items 1 to 3 in the list of exemptions; and

               (b)    the use is essential to the operation of the employer's business; and

                (c)    there is no reasonable alternative to the use of chrysotile; and

               (d)    the relevant employing authority has in place appropriate measures to deal with any risk that might arise from the use of chrysotile; and

                (e)    the relevant employing authority will be able to comply with the condition mentioned in paragraph 3.05 (1) (a); and

                (f)    there are no circumstances suggesting that granting the exemption would be inconsistent with the objects of Part 6 of these Regulations.

         (4)   If the Commission refuses to grant an exemption, it must give the relevant employing authority a written notice setting out its decision and the reasons for its decision.

3.05         Conditions of an exemption

         (1)   An exemption granted under clause 3.04 is subject to the condition that the relevant employing authority:

                (a)    takes reasonable steps to find alternatives to the use of chrysotile covered by the exemption, including, if necessary, undertaking, or contributing to the undertaking of, research and development of alternatives to the use of chrysotile covered by the exemption; and

               (b)    informs the Commission, in writing, as soon as the relevant employing authority becomes aware of either of the following:

                          (i)    that the use covered by the exemption is no longer essential to the operation of the employer's business;

                         (ii)    that there is a reasonable alternative to the use of chrysotile covered by the exemption.

         (2)   An exemption granted under clause 3.04 may be subject to other conditions that promote the objects of Part 6 of these Regulations.

         (3)   The Commission may, by notice in writing to the relevant employing authority to which an exemption relates:

                (a)    add a condition to the exemption, or vary a condition; or

               (b)    revoke a condition.

         (4)   The notice must include:

                (a)    the reasons for the addition, variation or revocation; and

               (b)    the time when the addition, variation or revocation takes effect.

3.06         Operation of an exemption

         (1)   An exemption granted under clause 3.04 commences on:

                (a)    the day on which it is granted; or

               (b)    a later date stated in the exemption.

         (2)   The Commission must cancel an exemption if:

                (a)    it is satisfied that continuing the exemption would be inconsistent with the objects of Part 6 of these Regulations; or

               (b)    the relevant employing authority to which the exemption relates asks the Commission to cancel it.

         (3)   The Commission is not required to consult the relevant employing authority to which an exemption relates before cancelling the exemption.

         (4)   If the Commission cancels an exemption under paragraph (2) (a), it must give the relevant employing authority a written notice setting out:

                (a)    its decision to cancel the exemption; and

               (b)    the reasons for cancelling it; and

                (c)    the time from which it is cancelled.

         (5)   Unless sooner cancelled, an exemption is effective until:

                (a)    the end of the day stated in column 3 of the item in the list of exemptions that relates to the exemption; or

               (b)    if an earlier day is stated in the exemption as the day when it ceases -- the end of the earlier day.

Division 3.3            Exemption for defence mission-critical uses

3.07         Applications for exemption

         (1)   If it is necessary for the Australian Defence Organisation to use chrysotile in the circumstance mentioned in column 2 of item 4 in the list of exemptions, the defence employing authority must:

                (a)    apply to the Commission in writing, using the application form (if any) approved by the Commission; and

               (b)    include in the application:

                          (i)    a list that meets the requirements of subclause (2); and

                         (ii)    a statement certifying that each item identified in the list is mission-critical; and

                        (iii)    evidence that there is no reasonable alternative to the use of chrysotile; and

                        (iv)    a statement of the measures that the defence employing authority will take, if the exemption is granted, to deal with any risk that might arise from the use of those items; and

                         (v)    a statement of the actions that the defence employing authority will take, if the exemption is granted, to comply with the condition mentioned in paragraph 3.09 (1) (a).

Note    An application may be made by either the Secretary of the Department of Defence or the Chief of the Defence Force acting for himself or herself and on behalf of the other. See subclause 3.01 (2).

         (2)   For subparagraph (1) (b) (i), the list must:

                (a)    identify each type of parts and components in relation to which the exemption is sought; and

               (b)    for each type of parts and components identified -- identify, using a unique identifier, each item of that type, for the use of which the exemption is sought.

         (3)   Subclause (4) applies in relation to an application made in accordance with subclause (1) if:

                (a)    the application is to seek an exemption that is to commence on 31 December 2003; and

               (b)    the application is made within 18 days after the Occupational Health and Safety (Commonwealth Employment) (National Standards) Amendment Regulations 2003 (No. 1) is notified in the Gazette ; and

                (c)    the Commission has not, before 31 December 2003, decided whether to grant or to refuse to grant the exemption.

         (4)   The exemption sought in the application is taken to be granted to the Commonwealth, in the joint names of the Secretary of the Department of Defence and the Chief of the Defence Force, on 31 December 2003 and to continue in force until:

                (a)    if the Commission grants an exemption in relation to the application -- the exemption commences; or

               (b)    if the Commission refuses to grant an exemption in relation to the application -- written notice of the Commission's decision is given to the defence employing authority; or

                (c)    the application is taken to have been withdrawn under subclause 3.08 (2).

3.08         Grant or refusal of exemption

         (1)   On receipt of an application made under subclause 3.07 (1), the Commission may, in writing:

                (a)    grant an exemption to the Commonwealth, in the joint names of the Secretary of the Department of Defence and the Chief of the Defence Force:

                          (i)    for the use of all items identified in the application; or

                         (ii)    for the use of some only of the items so identified ( partial exemption ); or

               (b)    refuse to grant an exemption; or

                (c)    ask the defence employing authority to give it further information about the application within a reasonable period specified by it.

         (2)   If the Commission has asked for information under paragraph (1) (c), and no information has been given to the Commission within the specified period, or a longer period agreed to by the Commission before the end of the specified period, the application is taken to have been withdrawn.

         (3)   Before granting an exemption for the use of an item, the Commission must be satisfied that:

                (a)    the item is mission-critical; and

               (b)    there is no reasonable alternative to the use of chrysotile; and

                (c)    the defence employing authority has in place appropriate measures to deal with any risk that might arise from the use of the item; and

               (d)    the defence employing authority will be able to comply with the condition mentioned in paragraph 3.09 (1) (a); and

                (e)    there are no circumstances suggesting that granting the exemption would be inconsistent with the objects of Part 6 of these Regulations.

         (4)   For paragraph (3) (a), the Commission must treat a statement included in the application certifying that an item is mission-critical as conclusive evidence that the item is mission-critical.

         (5)   If the Commission refuses to grant an exemption, or grants a partial exemption, it must give the defence employing authority a written notice setting out its decision and the reasons for its decision.

3.09         Conditions of an exemption

         (1)   An exemption granted under clause 3.08 is subject to the conditions that the defence employing authority:

                (a)    takes reasonable steps to find alternatives to the use of chrysotile covered by the exemption, including, if necessary, undertaking, or contributing to the undertaking of, research and development of alternatives to the use of chrysotile covered by the exemption; and

               (b)    informs the Commission, in writing, as soon as the Secretary of the Department of Defence or the Chief of the Defence Force becomes aware of either of the following:

                          (i)    that any of the items covered by the exemption is no longer mission-critical;

                         (ii)    that there is a reasonable alternative to the use of chrysotile for any of the items covered by the exemption.

         (2)   An exemption granted under clause 3.08 may be subject to other conditions that promote the objects of Part 6 of these Regulations.

         (3)   The Commission may, by notice in writing to the defence employing authority:

                (a)    add a condition to the exemption, or vary a condition; or

               (b)    revoke a condition.

         (4)   The notice must include:

                (a)    the reasons for the addition, variation or revocation; and

               (b)    the time when the addition, variation or revocation takes effect.

3.10         Operation of an exemption

         (1)   An exemption granted under clause 3.08 commences on:

                (a)    the day on which it is granted; or

               (b)    a later date stated in the exemption.

         (2)   The Commission must cancel an exemption in relation to an item if:

                (a)    it is satisfied that continuing the exemption in relation to the item would be inconsistent with the objects of Part 6 of these Regulations; or

               (b)    the defence employing authority asks the Commission to cancel it.

         (3)   The Commission is not required to consult the defence employing authority before cancelling the exemption.

         (4)   If the Commission cancels an exemption under paragraph (2) (a), it must give the defence employing authority a written notice setting out:

                (a)    its decision to cancel the exemption; and

               (b)    the reasons for cancelling it; and

                (c)    the time from which it is cancelled.

         (5)   Unless sooner cancelled, an exemption in relation to an item is effective:

                (a)    if it is the first exemption for the item -- until the earlier of the following:

                          (i)    the end of 12 months from the beginning of the day when the exemption is granted;

                         (ii)    the end of the day stated in column 3 of item 4 in the list of exemptions; or

               (b)    in any other case -- until:

                          (i)    the end of the day stated in column 3 of item 4 in the list of exemptions; or

                         (ii)    if an earlier day is stated in the exemption as the day when it ceases -- the end of the earlier day.