Work Health and Safety Exemption to Regulation 217

Overview

The Work Health and Safety Exemption to Regulation 217 is part of the Work Health and Safety Regulations 2011, which was enacted to create a uniform framework for work health and safety across Australia. The problem or gap this exemption addresses is the practical difficulties encountered by various industry stakeholders, including the Civil Contractors Association and the Master Builders Association, in complying with the requirements of regulation 217, which mandates that earthmoving machinery must be securely fitted with a protective structure at all times. The exemption was introduced by the Heads of Workplace Safety Authorities (HWSA) and considers that the existing regulations, excluding regulation 217, sufficiently ensure safe and healthy working conditions for those operating earthmoving machinery. This exemption was passed by the Australian Parliament and aligns with the overarching policy objective of providing a flexible, risk-based approach to occupational health and safety regulation, as supported by the Office of Best Practice Regulation. The exemption does not impose any conditions and is considered compatible with the right to safe and healthy working conditions, as stipulated in article 7 of the International Covenant on Economic, Social and Cultural Rights. This regulatory change was enacted to address practical challenges faced by industry without compromising worker safety.

Scope and Application

The Work Health and Safety Exemption to Regulation 217 applies to all persons with the management and control of earthmoving machinery at a workplace, exempting them from the requirements of regulation 217 of the Work Health and Safety Regulations 2011, which mandates that such machinery must be securely fitted with a protective structure to be used. This exemption, which has no conditions, extends across the Commonwealth as a Legislative Instrument under the Legislative Instruments Act 2003. The exemption was recommended by the Heads of Workplace Safety Authorities, following stakeholder representations from various industry associations about the practical difficulties in adhering to regulation 217. Despite the exemption, the human right to safe and healthy working conditions, as recognised in the International Covenant on Economic, Social and Cultural Rights, is considered to be adequately protected under other regulations in the WHS Regulations. The exemption commences on the day after it is registered on the Federal Register of Legislative Instruments.

Key Provisions

The main operative sections of the Work Health and Safety Exemption to Regulation 217 (F2013L00659) provide an exemption from compliance with regulation 217 of the Work Health and Safety Regulations 2011 (WHS Regulations). Regulation 217 requires that earthmoving machinery must be securely fitted with a protective structure before use, and this exemption applies to all persons managing or controlling such machinery at a workplace. This means that, for the class of persons affected, the obligation to secure the machinery with a protective structure is waived. The exemption is absolute and without any conditions. The obligations and requirements imposed by this Act primarily concern those with management or control of earthmoving machinery at a workplace. These individuals or entities are no longer required to ensure that their machinery is equipped with a protective structure before use, as mandated by regulation 217 of the WHS Regulations. Instead, they are expected to comply with other relevant regulations within the WHS Regulations that ensure the safe operation of the machinery, such as regulations 214 and 215. This exemption aims to alleviate some of the practical difficulties identified by industry stakeholders, including the Civil Contractors Association, the Master Builders Association, and others, regarding the universal application of the protective structure requirement. In terms of offences, penalties, or consequences for breach, the Act itself does not explicitly outline penalties for failing to comply with regulation 217, as the exemption removes this requirement for the specified class of persons. However, it is important to note that any non-compliance with other applicable regulations within the WHS Regulations could result in enforcement actions, including fines and legal penalties. The maximum penalties for breaches of the WHS Regulations are determined by the specific provisions of the legislation and can vary significantly depending on the nature and severity of the breach. These penalties may include substantial fines for individuals and corporations, and in more severe cases, imprisonment.