EXPLANATORY STATEMENT

Work Health and Safety Regulations 2011

Work Health and Safety (Construction Induction Training — Defence Technical Specialists) Exemption 2026

Notice of Disallowable Instrument

Introduction

The Work Health and Safety Act 2011 (Cth) (WHS Act) and Work Health and Safety Regulations 2011 (WHS Regulations) provide the primary work health and safety legislation for the Commonwealth jurisdiction. They are based on model WHS laws developed by Safe Work Australia under the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety.

Comcare may exempt a person or class of persons from compliance with specified provisions of the WHS Regulations, and Comcare may do so on its own initiative or upon written application of one or more persons - regulation 684 of the WHS Regulations.

Comcare can impose conditions on the exemption that it considers appropriate, which can include requirements on the applicant to do certain things - regulation 691 of the WHS Regulations.

An exemption document that exempts a class of persons is a legislative instrument within the meaning of the Legislation Act 2003 (Legislation Act) - subregulation 692(2) of the WHS Regulations.

Background

The Work Health and Safety (Construction Induction Training – Defence Technical Specialists) Exemption 2026 (Exemption) was requested by the Department of Defence (Defence).

The Exemption applies to a limited class of persons who are conducting a business or undertaking, or carrying out work as a Technical Specialist, that is part of the Destroyer Capability Enhancement Program (DCE Program) being undertaken by Defence.

The DCE Program involves the rotation of each of Australia’s 3 Hobart-Class Destroyers (Destroyers) through the workplace of the Osborne Naval Shipyard in South Australia for maintenance and improvement by the end of 2034. Different systems on the Destroyers (eg. propulsion, communication, radar, digital, combat, etc.) require work to be done by highly skilled technicians who are in short supply, and high demand, around the world.

These highly skilled workers are referred to for the purposes of the Exemption as Technical Specialists. They have been recruited from overseas to perform highly specialised construction work on the DCE Program and have not undertaken general construction induction training (GCIT) The Exemption removes the regulatory requirements for Technical Specialists to undertake GCIT for work on the DCE Program.

Over the life of the DCE Program it is expected that there will be hundreds of Technical Specialists engaged. Technical Specialists can cost in the order of $100,000.00/week to engage, and will usually only be in Australia for less than two weeks. None will be here for more than 8 weeks.

The work required to be carried out by Technical Specialists in the DCE Program is ‘construction work’, as defined in regulation 289 of the WHS Regulations, and is ordinarily required to be carried out by a worker who has successfully completed GCIT.

Under the WHS Regulations, GCIT is training in the specified VET course — Work Safely in the Construction Industry. This course must be delivered in Australia by a registered training organisation. It involves about six hours of face‑to‑face or online training.

The work performed by Technical Specialists is highly specialised and involves working on and around ships under construction. Conditions are placed on the Exemption to require Technical Specialists to undertake alternative work health and safety induction training (WHS IT), which unlike GCIT is created for the workplace at the Osbourne Naval Shipyard.

This will result in an equal or higher standard of health and safety than would be expected to be achieved by ordinary compliance with the exempted WHS regulations.

Comcare has also assessed that the granting of the Exemption will likely decrease monetary compliance costs for duty-holders, and regulatory costs for Comcare and other scheme administrators.

The Exemption is compatible with applicable Human Rights.

GCIT obligations in the WHS Regulations

The WHS Regulations impose duties on Persons who are Conducting a Business or Undertaking (PCBUs) to ensure their workers (which includes Technical Specialists) carrying out, or about to carry out, construction work have:

• undertaken GCIT; and
• appropriate GCIT certification.

There are no direct obligations on the Technical Specialists (as ‘workers’) to undertake GCIT, other than that they keep GCIT certification available for inspection while carrying out construction work.

The work to be carried out by the Technical Specialists is ‘construction work’ as defined in regulation 289 of the WHS Regulations because it involves relevant activities upon as ‘structure’ as defined in regulation 290 of the WHS Regulations.

GCIT duties arise out of Chapter 6 of the WHS Regulations. Under Part 6.5 of the WHS Regulations, a:

1.        PCBU must:

• ensure that GCIT is provided to any Technical Specialist engaged by the PCBU to carry out construction work (regulation 316);
• not direct or allow a Technical Specialist to carry out construction work unless they have successfully completed GCIT (subregulation 317(1)); and
• ensure that a Technical Specialist, directed or allowed to carry out construction work, holds a GCIT card or relevant certification (subregulation 317(2)).

2. Technical Specialist, while carrying out construction work, must keep available for inspection their GCIT card or relevant certification (subregulation 326(1)).

The Exemption

The exempted regulations relate to requirements to ensure:

• GCIT has been provided to, and undertaken by, Technical Specialists; and
• evidence of GCIT completion by Technical Specialists is available for inspection.

The Exemption commences on the day after it is registered on the Federal Register of Legislation. Unless it is amended or cancelled under regulation 697 of the WHS Regulations, the Exemption will apply until the earlier of:

• the completion of the DCE Program; or
• the close of 31 December 2034

The Exemption is granted with a number of conditions which impose requirements on Defence, as the Applicant for the Exemption, to ensure that:

• suitable alternative work health and safety induction training (WHS IT) is provided to Technical Specialists, along with a competency assessment; and
• appropriate records are kept of the training and assessment to enable WHS review and regulatory oversight.

Scope of the Exemption

The Exemption is limited to requirements in regulation 316, subregulations 317(1) and (2), and 326(1) of the WHS Regulations. The Exemption operates so that for construction work which is part of the DCE Program:

1.        Technical Specialists do not have to keep available for inspection a GCIT card or other GCIT certification, as otherwise required by subregulation 326(1).
2.        PCBUs:
   1.        are not required to ensure that GCIT is provided to a Technical Specialist engaged to carry out construction work for its business or undertaking, as would otherwise be required by regulation 316.
   2.       may direct or allow a Technical Specialist to undertake construction work notwithstanding that the Technical Specialist has not successfully completed GCIT, as would otherwise be required by subregulation 317(1).
   3.        are not required to ensure that a Technical Specialist holds a GCIT card or other GCIT certification, as would otherwise be required by subregulation 317(2).

Conditions on the Exemption

The Exemption imposes conditions to address the work health and safety matters otherwise addressed by the exempted provisions. The exemption requires Defence to:

1.        ensure that prior to a Technical Specialist carrying out any construction work on the DCE Program:
   •         WHS IT is provided to the Technical Specialist; and
   •         the Technical Specialist undertakes a WHS IT competency assessment.
2.        ensure the WHS IT:
   •         is provided by trainers who hold a Certificate IV or equivalent in training and assessment;
   •         includes suitable content, including:
     •          WHS rights and responsibilities of duty holders;
     •          WHS consultation and reporting processes;
     •          principles of risk management;
     •          common construction hazards and risk controls;
     •          workplace safety information and documents; and
     •          emergency and incident management procedures.
   •         includes a physical WHS tour of the workplace; and
   •         caters for Technical Specialists who are not fully conversant in English by providing them with an interpreter for the WHS IT.
3.        maintain a register of
   •         the date of completion of WHS IT of each Technical Specialist; and
   •         the date each Technical Specialist undertook their WHS IT competency assessment.
4.        keep a record of:
   •         the WHS IT course content; and
   •         the written answers of each WHS IT competency assessment.
5.        ensure Technical Specialists carrying out construction work are supervised at all times by a person who has successfully completed GCIT and who holds a Naval Shipbuilding and Sustainment Identification Card.

Matters that must be considered in granting an exemption

In granting an exemption, Comcare has had regard to all relevant matters including those specified in regulation 685 of the WHS Regulations. Matters considered by Comcare include:

• the Exemption requires workplace specific WHS IT to be completed by Technical Specialists which will result in an equivalent or higher standard of health and safety in the workplace than would be achieved if Technical Specialists only completed GCIT;
• the WHS IT has been developed to cater specifically for this working environment, and it:
  • is compulsory for all workers, including Technical Specialists, at the workplace;
  • has comparable course content to GCIT but targeted at the Osbourne Naval Shipyards;
  • is delivered by experienced and qualified trainers;
  • can accommodate non-native English speakers; and
  • has an accompanying competency assessment.
• exceptional circumstances exist in relation to the Exemption:
  • The DCE Program and the work of the Technical Specialists is of public interest to Australia.
  • Technical Specialists are in high demand globally, and are costly to engage and have limited availability for engagement. Requiring each Technical Specialist to undertake GCIT prior to commencing any construction work would likely:
    • substantially increase the cost of the DCE Program without any increased work health and safety benefit; and
    • be a difficult, and at times not feasible, logistical exercise which would adversely affect the flow of work and unnecessarily disrupt the DCE Program;
• records, registers, and other information that Defence are required to maintain and preserve supports meaningful WHS review, and regulatory oversight, of the operation of the Exemption; and
• Defence, as the Applicant, has carried out consultation in relation to the proposed Exemption in accordance with Div 1 and 2 of Part 5 of the WHS Act.

Requirements of the Legislation Act 2003

In accordance with section 17 of the Legislation Act, Comcare is satisfied all appropriate and reasonably practicable consultation has been undertaken in relation to the Exemption.

Comcare’s only direct consultation was with Defence. This was appropriate and sufficient as Comcare was able to interrogate the extensive consultation that had been undertaken by Defence, as well as Defence’s experience and expertise in relation to the relevant work, workplace, and associated induction training.

Comcare has:

• consulted with Defence on why there was a need for the grant of the Exemption, and also on work health and safety issues engaged by the Exemption and how they can be managed;
• taken into account the consultation undertaken by Defence, which included consultation with other parties that are likely to be affected by the Exemption, including:
  • Commonwealth Agencies and bodies connected to Australia’s security and defence;
  • the relevant corresponding regulator; and
  • other PCBUs who will be affected by the exemption.
• reviewed and considered an exemption already granted by the corresponding regulator for the same work and WHS regulatory obligations for the relevant duty-holders within the corresponding regulator’s jurisdiction.

Comcare also considered the nature of the Exemption including the consequences to Technical Specialists and was satisfied that consultation with Technical Specialists was not necessary and or practicable to undertake.

Comcare formed this view because:

• the Exemption conditions are placed on Defence (not Technical Specialists) in the type of training it must provide to Technical Specialists;
• the Exemption does not directly or substantially affect any right of, or otherwise impact, a Technical Specialist as they are still required to complete induction training, the only difference being completion of targeted WHS IT training instead of GCIT;
• consultation would not be reasonably practicable given Technical Specialists are yet to be recruited and reside overseas, which creates administrative complexities in arranging for consultation on the scale required, and would have not been tenable.

Statement of Compatibility with Human Rights

Work Health and Safety (Construction Induction Training — Defence Technical Specialists) Exemption 2026

Introduction

The Statement of Compatibility with Human Rights has been prepared in accordance with section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 (HR(PS) Act).

The Exemption is compatible with the human rights, and freedoms, recognised or declared in the international instruments listed in section 3 of the HR(PS) Act.

Human rights implications

The right to just and favourable conditions of work, as contained in Article 7 of the International Covenant on Economic, Social and Cultural Rights, is engaged by the Exemption. The right to enjoy just and favourable working conditions has various components that require States to establish a minimum standard for working conditions for all workers and develop appropriate enforcement measures.

One of the components of Article 7 is the right to safe and healthy working conditions. In relation to this right, the Committee on Economic, Social and Cultural Rights has stated that ‘people must be afforded minimum conditions of occupational health and safety, and States parties are responsible for adopting policies and laws to that end’.[1]

In Australia, the right to safe and healthy working conditions underpins the formulation of work health and safety legislation at the Commonwealth, state and territory levels.

At the Commonwealth level, this legislation includes the WHS Act and WHS Regulations. The WHS Act places high‑level duties on a range of entities that are designed to ensure safe and healthy working conditions. It is supported by the WHS Regulations which provide more specific obligations, including those applying to GCIT in Part 6.5 of the WHS Regulations.

The Exemption relieves PCBUs of their obligation to ensure that Technical Specialists, as ‘workers’ under the WHS Regulations, have successfully completed GCIT before carrying out relevant construction work. That obligation has been replaced by a requirement on Defence, as the Applicant for the Exemption, to ensure a similar but more targeted and workplace specific induction training is provided in place of GCIT.

While Comcare acknowledges that GCIT contributes to work health and safety, the WHS IT creates an equivalent or higher standard of health and safety for Technical Specialists and the workplace because it has been developed to cater specifically for the working environment on and around the ships under construction, maintenance, or improvement at the Osbourne Naval Shipyards, and:

• is compulsory for all workers, including Technical Specialists, at the workplace;
• has comparable course content to GCIT;
• is shorter than GCIT because it is specifically created for the Osbourne Naval Shipyard in South Australia;
• is delivered by experienced and qualified trainers;
• can accommodate non-native English speakers; and
• has an accompanying competency assessment.

Conclusion

This disallowable legislative instrument is compatible with human rights because the Exemption will result in an equivalent or higher standard of health and safety in the relevant workplace than would be achieved by simple compliance with the exempted WHS regulations, and therefore will not result in a diminution of workers’ rights to safe and healthy workplaces.

[1] UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 16 (Rev.1), The Committee on Economic, Social and Cultural Rights, May 1996, No. 16 (Rev.1), available at: http://www.refworld.org/docid/4794773cd.html [accessed 10 April 2026]