EXPLANATORY STATEMENT

Work Health and Safety Regulations 2011

Work Health and Safety Exemption (Construction Induction Training — ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) 2019

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

Regulation 684 provides that the regulator may exempt a person or class of persons from compliance with any of the WHS Regulations, and under Regulation 691 the regulator may impose any conditions it considers appropriate on an exemption.

In accordance with subregulation 692(2) of the WHS Regulations, an exemption document that exempts a class of persons is a legislative instrument within the meaning of the Legislative Instruments Act 2003.

All terms used in the Instrument and Explanatory Statement have the same meaning as in the WHS Act and Regulations.

Work Health and Safety Exemption (Construction Induction Training – ASC ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) 2019

The Work Health and Safety Exemption (Construction Induction Training – ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) 2019 (the 2019 instrument) extends the Work Health and Safety Exemption (Construction Induction Training – ASC ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) 2014 (the 20014 Instrument) from its 2 September 2019 expiry to a 30 September 2020 expiry date, or upon completion of the Air Warfare Destroyer program—whichever is the earlier.

The 2014 instrument granted an exemption from compliance with subregulation 326(1) of the Work Health and Safety Regulations 2011 (WHS Regulations) to a class of persons, namely, workers who carry out construction work as technical specialists on ships under construction in the Air Warfare Destroyer program at ASC AWD Shipbuilder Pty Ltd’s (ASC AWD) shipyard at Osborne, South Australia.

The 2014 instrument also granted three other exemptions relating to exemptions from regulation 316 and subregulations 317(1) and (2) of the WHS Regulations. These exemptions were granted to ASC AWD being a body corporate which is a public authority for the purposes of the Work Health and Safety Act 2011 (WHS Act).

The exemptions applying to ASC AWD were not class exemptions. However, they were included in the instrument that applied to technical specialists because all four exemptions were granted subject to a condition imposed on ASC AWD. They were consequently linked and best described together.

This 2019 Instrument continues all exemptions and conditions of the 2014 instrument, other than to extend the expiry date. The reason for seeking this further exemption is to cater for the scheduled extension to the AWD Shipbuilding program.

Background

ASC AWD began constructing Air Warfare Destroyer Ships in 2014 at its ASC AWD’s shipyard at Osborne, South Australia. For this program it engaged some technical specialists from outside Australia to carry out highly skilled technical work on these ships while under construction. More specifically, the technical specialists have supported the installation, set-to-work, integration and testing of platform and combat system hardware equipment fitted to the ships. The systems include power distribution, heating, ventilation, air conditioning, propulsion, above water radar and detection, communication and weapons.

Each technical specialist will carry out work on site intermittently for the duration of the Air Warfare Destroyer program as and when their particular specialist services are needed.

WHS Regulatory requirements for Construction Induction Training at Workplaces

The WHS Regulations impose duties on the person carrying out a business or undertaking (PCBUs) at a workplace to ensure that general construction induction training (CIT) is provided to a worker who is to carry out construction work.

There are no direct obligations on the technical specialists (as ‘workers’) to undertake general construction induction training (CIT) or to obtain a general CIT cards (CITC) or a general CIT certificate (GCITC).

The specific requirements are provided in chapter 6 of the WHS regulations. These impose the duties in relation to general construction induction training, requiring that ASC AWD, as the PCBU:

• ensures that CIT is provided to any technical specialist who is to carry out construction work (regulation 316);
• does not direct or allow a technical specialist to undertake construction work unless they have successfully completed CIT (subregulation 317(1)); and
• ensures that the technical specialist holds a CITC or a GCITC issued within the preceding 60 days (subregulation 317(2)).

Under subregulation 326(1), a technical specialist (being a worker) who carries out construction work must keep available for inspection under the WHS Act their CITC or a GCITC while awaiting the grant of a CITC.

The work being carried out by the technical specialist is treated as ‘construction work’ as defined in regulation 289 of the WHS Regulations because it involves the ‘installation or testing carried out in connection with’ the construction or fitting out of a ‘structure’ being a ship and ‘the installation, testing or maintenance of an essential service in relation to a [ship]’.

The exemptions are granted from compliance with the above regulations.

The exemptions

Details of the exemptions

The exemptions relate to general construction induction training (CIT) which workers must successfully complete before commencing construction work. They also relate to general CIT cards (CITC) and, where a worker is waiting to be issued with a CITC, general construction induction training certifications (GCITC) issued within the preceding 60 days which are proof that a worker has successfully completed CIT.

Under the WHS Regulations, general CIT is training in the 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.

Very briefly, the effect of the exemptions will be to relieve ASC AWD of the obligation to ensure that technical specialists, as ‘workers’ under the WHS Regulations, have successfully completed CIT before carrying out construction work.

The exemptions will also relieve the technical specialists of the requirement to keep their CITCs or GCITCs available for inspection under the WHS Act.

The exemptions will be granted on a number of conditions which relate to the alternate provision of on‑site induction training to the specialists before they carry out construction work.

Relevant Matters in Granting the Exemptions

Regulation 685 provides that the regulator must consider all relevant matters before granting an exemption, including a number of specified matters. The regulator (Comcare) considered these matters in making the Instrument, including that the making of the instrument will result in a standard of health and safety that is at least equivalent to the standard that would be achieved if general construction induction training was complied with.

Comcare has granted exemptions from the above WHS regulations on condition that ASC AWD ensures that each technical specialist successfully completes ASC AWD’s on‑site safety induction training (ASC safety induction training) before carrying out construction work. Regulation 691 provides that the regulator may impose any conditions it considers appropriate on an exemption.

When considering whether or not to grant the exemptions, Comcare noted that:

• the construction work to be carried out by the technical specialists will be low risk;
• ASC safety induction training has been developed to cater specifically for the working environment on and around the ships under construction in the Air Warfare Destroyer program at the Osborne shipyard and:
  • is compulsory for workers at its Osborne shipyard;
  • has equivalent course content to the CIT except that this content is framed specifically in terms of ASC AWD’s workplace;
  • is shorter than CIT because it need only cover ASC AWD’s workplace;
  • includes a two‑hour theory component, a one‑hour walk‑through of the workplace and a written exam for which a worker must score at least 80%;
  • is delivered by experienced and qualified trainers who hold at least a Certificate IV in Training and Assessment;
• ASC AWD ensures that suitable interpreters are available during training so that workers who are not fully conversant with English can achieve a satisfactory level of understanding of WHS requirements; and
• the technical specialists are very high‑cost workers (there is significant global demand for their services) and, to require them to attend CIT in addition to ASC safety induction training, would increase the cost of the Air Warfare Destroyer program by an estimated $440,00 to $650,000.

The conditions Comcare has imposed on ASC AWD in respect of the exemptions will essentially convert training already provided by ASC AWD on a voluntary basis into a mandatory requirement. The conditions will also require ASC AWD to maintain documents of course content, keep records of course attendances and to issue site security passes only on the satisfactory completion of ASC safety induction training.

Details of the conditions are listed in paragraph 7 of the exemption instrument.

Comcare considers that by granting the conditional exemptions it will result in at least an equivalent standard of work health and safety as would have been achieved had the exemptions not been granted. In considering this extension to the exemption, Comcare has taken into account that there are no changes to the conditions of the exemption, no added risks to the work being undertaken and no changes being made by ASC AWD to the risk controls being applied to their workers.

It is Comcare’s view that the high additional cost of requiring the technical specialists to undertake general CIT may not in isolation be an exceptional circumstance justifying the grant of the exemptions. However, when considered together with the equivalent work health and safety standard achievable through the ASC AWD’s application of the required training condition, the additional costs could arguably qualify as an exceptional circumstance.

Compliance with consultation requirements of the Legislative Instruments Act 2003

As previously indicated, these exemptions apply in relation to ASC AWD Shipbuilder Pty Ltd and technical specialists recruited from overseas to undertake work on the Air Warfare Destroyer program.

Comcare consulted extensively with ASC AWD Shipbuilder Pty Ltd before granting the abovementioned 2014 exemptions. Consultations focussed on whether there was a need for the grant of the exemptions and also on work health and safety issues, for example, the adequacy of ASC AWD Shipbuilder Pty Ltd’s in-house safety induction training.

Comcare notes that ASC AWD Shipbuilder Pty Ltd consulted with its Australian‑based workers who would be supervising or working with the technical specialists on the Air Warfare Destroyer program. Consultations were about the proposal for the technical specialists to undergo site‑specific in‑house safety induction training in substitution for general construction induction training, as defined in regulation 5 of the Work Health and Safety Regulations 2011.

Apart from the workers mentioned above, consultation was not carried out with the technical specialists themselves or workers or other parties not involved in the technical specialists’ work. In accordance with section 18 of the Legislative Instruments Act 2003, Comcare was able to be satisfied that the proposed exemptions were such that consultation with these other parties would be unnecessary or inappropriate.

A Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights has been completed for the exemptions, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement’s assessment is that the instrument is compatible with human rights. A copy of the Statement is attached.

Commencement of exemption

The exemptions are taken to have commenced on the day after they are registered on the Federal Register of Legislative Instruments. They will apply until 30 September 2020 or upon completion of the Air Warfare Destroyer program (whichever is earlier) unless the expiration date is amended or the exemptions are cancelled under regulation 697 of the WHS Regulations.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Work Health and Safety Exemption (Construction Induction Training — ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) 2019

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The purpose of the instrument to which this Explanatory Statement relates is to grant an exemption from compliance with subregulation 326(1) of the Work Health and Safety Regulations 2011 (WHS Regulations) to a class of persons, namely, workers who carry out construction work as technical specialists on ships under construction in the Air Warfare Destroyer program at ASC AWD Shipbuilder Pty Ltd’s (ASC AWD) shipyard at Osborne, South Australia.

This exemption is one of a ‘package’ of four exemptions in the instrument. The remaining three relate to exemptions from regulation 316 and subregulations 317(1) and (2) of the WHS Regulations. These exemptions are granted to ASC AWD being a body corporate which is a public authority for the purposes of the Work Health and Safety Act 2011 (WHS Act).

The exemptions applying to ASC AWD are not class exemptions. However, they have been included in the instrument that applies to technical specialists because all four exemptions have been granted subject to conditions imposed on ASC AWD. They are consequently linked and best described together.

Regulation 684 provides that the regulator may exempt a person or class of persons from compliance with any of the regulations in the WHS Regulations. Regulation 691 provides that the regulator may impose any conditions it considers appropriate on an exemption.

In accordance with subregulation 692(2) of the WHS Regulations, an exemption document that exempts a class of persons is a legislative instrument within the meaning of the Legislative Instruments Act 2003.

The exemptions

Summary of the exemptions

The exemptions relate to general construction induction training (CIT) which workers must successfully complete before commencing construction work. They also relate to general CIT cards (CITC) and, where a worker is waiting to be issued with a CITC, general construction induction training certifications (GCITC) issued within the preceding 60 days which are proof that a worker has successfully completed CIT.

Very briefly, the effect of the exemptions will be to relieve ASC AWD of the obligation to ensure that technical specialists, as ‘workers’ under the WHS Regulations, have successfully completed CIT before carrying out construction work and to relieve them of their duty to ensure that the workers hold either a CITC or a GCITC.

The exemptions will also relieve the technical specialists of the requirement to keep their CITCs or GCITCs available for inspection under the WHS Act.

The exemptions will be granted on a number of conditions relating to the provision of on‑site induction training to the specialists before they carry out construction work.

Comcare has granted exemptions from the above WHS regulations on condition that ASC AWD ensures that each technical specialist successfully completes ASC AWD’s on‑site safety induction training (ASC safety induction training) before carrying out construction work.

Further to the provision of ASC safety induction training, this training is compulsory for the technical specialists and is to be provided by trainers who hold at least a Certificate IV in training and assessment (or equivalent).

The ASC safety induction training is to include

(a) the following subject areas:

(i) the roles, responsibilities and rights of duty holders under the WHS Act and WHS Regulations;

(ii) health and safety consultation and reporting processes;

(iii) the principles of risk management;

(iv) common construction hazards and control measures;

(v) safety information and documentation;

(b)  includes a WHS tour of the workplace at ASC AWD’s shipyard at Osborne, South Australia;

(c) caters for technical specialists who are not fully conversant in English by providing them with a suitable interpreter during training; and

(d)  requires the technical specialists to achieve a mark of at least 80% in a written examination upon completion of the training.

The conditions Comcare has imposed on ASC AWD in respect of the exemptions will essentially convert training already provided by ASC AWD on a voluntary basis into a mandatory requirement. The conditions will also require ASC AWD to maintain documents of course content, keep records of course attendances and to issue site security passes only on the satisfactory completion of ASC safety induction training.

Comcare considers that the grant of the conditional exemptions will result in at least an equivalent standard of work health and safety as would have been achieved had the exemptions not been granted.

It is Comcare’s view that the high additional cost of requiring the technical specialists to undertake general CIT may not in isolation be an exceptional circumstance justifying the grant of the exemptions. However, when considered together with the equivalent work health and safety standard achievable through the ASC AWD’s application of the required training condition, the additional costs could arguably qualify as an exceptional circumstance.

Human rights implications

A human right engaged by this instrument, included in the section 3 definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011, is the right to just and favourable conditions of work contained in article 7 of the International Covenant on Economic, Social and Cultural Rights. 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 Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011. 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 general construction induction training.

Chapter 6.5 of the WHS regulations imposes duties in relation to general construction induction training, requiring that ASC AWD, as the PCBU:

• to ensure that CIT is provided to any technical specialist who is to carry out construction work (regulation 316);
• to not direct or allow a technical specialist to undertake construction work unless they have successfully completed CIT (subregulation 317(1)); and
• to ensure that the technical specialist holds a CITC or a GCITC issued within the preceding 60 days (subregulation 317(2)).

Under subregulation 326(1), a technical specialist (being a worker) who carries out construction work must keep available for inspection under the WHS Act their CITC or a GCITC while awaiting the grant of a CITC.

While this Instrument exempts ASC AWD of the obligation to ensure that technical specialists, as ‘workers’ under the WHS Regulations, have successfully completed CIT before carrying out construction work and to relieve them of their duty to ensure that the workers hold either a CITC or a GCITC, and it exempts the technical specialists of the requirement to keep their CITCs or GCITCs available for inspection under the WHS Act, the exemption will not affect the work health and safety in the workplace.

Importantly, the instrument outlines the alternative provision of ASC safety induction training and the content of this training. Additionally it also provides further conditions which will require ASC AWD to maintain documents of course content, keep records of course attendances and to issue site security passes only on the satisfactory completion of ASC safety induction training.

Comcare believes that these exemptions will not affect work health and safety at the AWD program workplace. As a result, these exemptions are considered to be compatible with the right to safe and healthy working conditions.

Conclusion

This disallowable legislative instrument is compatible with human rights because it 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 30 May 2014]