Explanatory Statement
Subject Work Health and Safety Regulations 2011
Work Health and Safety (Hazardous Chemicals) Exemption 2020
The Work Health and Safety Act 2011 (WHS Act) and accompanying Work Health and Safety Regulations 2011 (WHS Regulations) provide the primary work health and safety (WHS) legislation for the Commonwealth jurisdiction. They are based on the model WHS laws developed by Safe Work Australia under the Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety.
Regulation 684 of the WHS Regulations provides that the regulator may exempt a person or class of persons from compliance with any of the WHS Regulations. An exemption may also be made on the regulator’s own initiative.
The Work Health and Safety (Hazardous Chemicals) Exemption 2020
The Globally Harmonised System of Classification and Labelling of Hazardous Chemicals (GHS) was developed by the United Nations (UN) and first published in 2003 to provide a single, globally harmonised system for the classification of chemicals and communication of hazards through labels and safety data sheets (SDS). The GHS is updated every two years, and the 7th Revised Edition (GHS 7) was published in July 2017.
Safe Work Australia Members have agreed to amend the model WHS Regulations to reflect GHS 7 with a two-year transition period.
The transitional period for the move to GHS was due to commence on 1 July 2020 however, due to the impact of COVID-19, the transitional period is now expected to commence on 1 January 2021. As a result, hazardous chemicals must continue to be labelled in accordance with GHS 3, as modified in the WHS Regulations, until the transitional period commences or unless an exemption or similar regulatory allowance is made.
The transition from GHS 3 to GHS 7 has been known by stakeholders for a significant time and some manufacturers, importers, suppliers and end users may be ready for GHS 7 earlier than 1 January 2021. As a result, Safe Work Australia Members have agreed that early adopters of GHS 7 should not be penalised for using the classification system ahead of the commencement of the transitional period and WHS regulators will implement an exemption or similar regulatory allowance, to allow this to occur.
Regulation 685 provides that the regulator must consider all relevant matters before granting an exemption, including a number of specified matters. In making the Instrument, Comcare has considered all relevant matters, 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 the current system remained in place.
Purpose of the Exemption
The Work Health and Safety (Hazardous Chemicals) Exemption 2020 (Exemption) will apply from 1 July 2020 until the start of 1 January 2021. It will enable industry to use GHS 7 from 1 July 2020 if they had already been planning to do so. This should mean that no business is disadvantaged.
Manufacturers, importers, suppliers and end users will need to comply with the requirements set out in either the current WHS Regulations or the Exemption issued by Comcare under Regulation 684 for the period of the exemption.
Application of the Exemption
The Exemption applies where a person who manufactures, imports, supplies, labels, transfers or decants a hazardous chemical after 1 July 2020 uses GHS 7, and therefore, does not comply with the current WHS Regulations.
The Exemption provides that the WHS Regulations should be read as if each reference to ‘GHS’ is a reference to ‘GHS 7’, so that a person who manufactures, imports, supplies, labels, transfers or decants a hazardous chemical after 1 July 2020 in accordance with GHS 7 cannot be penalised for non-compliance with the current WHS Regulations in accordance with this exemption.
The Exemption only applies where the person meets the requirements of the WHS Regulations as if each reference to ‘GHS’ is a reference to ‘GHS 7’.
Specifically, the Instrument exempts:
- manufacturers and importers from the requirement to use the GHS in the current WHS Regulations for the purposes of regulations 329, 330(1), 330(2), 330(3) and 335 (which deals with the classification, preparation and provision of safety data sheets (SDS), and labelling of a hazardous chemicals) if they instead use GHS 7,
- suppliers from the requirement to use GHS in the current WHS Regulations for the purpose of Regulation 338 (which deals with the labelling of a hazardous chemical) if they instead use GHS 7,
- persons conducting a business or undertaking from the requirement to use the GHS in the current WHS Regulations for the purpose of regulations 341, 342(1), 342(2) and 345 (which deal with the labelling of a hazardous chemical and changes to SDSs) if they instead use GHS 7.
The Exemption also ensures that where a person who manufactures or imports a hazardous chemical after 1 July 2020 uses GHS 7, the requirements that apply under Schedule 7 to the WHS Regulations (which deal with SDS requirements) are consistent with GHS 7.
The Exemption means that a manufacturer or importer who needs to review and amend an SDS between 1 July 2020 and the start of 1 January 2021 can use GHS 7 (regulations 330(3) and 345). While an SDS may not need to be reviewed and amended during this period, it is possible that some will come up for their five-yearly review. As such, it makes sense that manufacturers and importers could amend an SDS in accordance with GHS 7.
Where the Exemption applies and a manufacturer or importer uses GHS 7 to classify, prepare and provide an SDS, a reference to a ‘current safety data sheet’ on the WHS Regulations (for example regulation 330(4)) would take into account any exemption in place in the Commonwealth jurisdiction.
Definition of GHS 7
As the GHS 7 is not currently referred to in the WHS Regulations, the Exemption includes a definition. It states that GHS 7 means “the Globally Harmonised System of Classification and Labelling of Chemicals, Seventh revised edition, published by the United Nations as if it were modified by Schedule 6 to the WHS Regulations.”
The GHS 7 can be obtained on the webpage of the United Nations Economic Commission for Europe at this web address: http://www.unece.org/trans/danger/publi/ghs/ghs_rev07/07files_e.html.
Schedule 6 to the WHS Regulations modifies the application of the current version of the GHS referred to in the Regulations (that is, GHS 3) by replacing some of the tables. In doing so, Schedule 6 includes notes with page reference numbers that are specific to GHS 3. For the purposes of GHS 7, those page reference numbers should be read as:
- In the note to Table 6.1, the page reference is p. 159.
- in note 2 to Table 6.2, the page reference number is p.174.
- in note 2 to Table 6.3, the page reference number is p.187.
- in note 2 to Table 6.4, the page reference number is p. 197.
- in note 2 to Table 6.5, the page reference number is p. 207.
Stakeholder consultation
Safe Work Australia, which is the Agency responsible for the policy underpinning the model WHS laws, is a body made up of representatives from all jurisdictions, as well as the Australian Chamber of Commerce and Industry, the Australian Industry Group and the Australian Council of Trade Unions.
In 2019, Safe Work Australia conducted significant consultation on the proposal to move from GHS 3 to GHS 7. In July 2019, Safe Work Australia sought feedback on the proposal and conducted a four-week public consultation period.
Retrospective Commencement
Retrospective commencement of the Exemption complies with s12(2) of the Legislation Act 2003 as the Exemption it does not impose a liability on any person, nor is any person’s rights, at the time of the registration of the Exemption, adversely affected.
Retrospective commencement of the Exemption is appropriate because prior to the impact of COVID-19, the jurisdiction had been advised GHS 7 would be commencing on 1 July 2020, and duty holders may have organised their businesses and undertakings in accordance with that expectation.
Regulation Impact Statement
The Office of Best Practice Regulations advised that a Regulation Impact Statement was not required (OBPR ID: 25148).
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights has been completed for the Instrument 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.
In accordance with sub-regulation 692(2) of the WHS Regulations, an exemption is a legislative instrument within the meaning of the Legislation Act 2003.
The Exemption commences on 1 July 2020 and has effect until the start of 1 January 2021.
Attachment A
Details of the Work Health and Safety (Hazardous Chemicals) Exemption 2020
The Work Health and Safety (Hazardous Chemicals) Exemption 2020 (the Instrument) is made by Comcare under regulation 684 of the Work Health and Safety Regulations 2011 (WHS Regulations).
The exemption provided for in the instrument is granted by Comcare on its own initiative.
The Instrument applies to the following classes of persons, manufacturers, importers, suppliers and persons conducting a business or undertaking (PCBUs). All terms used in the Instrument have the same meaning as in the Work Health and Safety Act 2011 (WHS Act) and WHS Regulations.
The Instrument exempts:
- manufacturers and importers from the requirement to use the GHS in the current WHS Regulations for the purposes of regulations 329, 330(1), 330(2), 330(3) and 335 (which deals with the classification, preparation and provision of safety data sheets (SDS), and labelling of a hazardous chemical) if they instead use GHS 7,
- suppliers from the requirement to use the GHS in the current WHS Regulations for the purpose of regulation 338 (which deals with the labelling of a hazardous chemical) if they instead use GHS 7,
- PCBUs from the requirement to use the GHS in the current WHS Regulations for the purpose of regulations 341, 342(1), 342(2) and 345 (which deal with the labelling of a hazardous chemical and changes to SDSs) if they instead use GHS 7.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Work Health and Safety (Hazardous Chemicals) Exemption 2020
This Disallowable Legislative Instrument is compatible with the human rights freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Work Health and Safety Regulations 2011 (WHS Regulations) impose duties on manufacturers, importers, suppliers and persons conducting a business or undertaking (PCBU) at a workplace. They specify the way in which some duties under the Work Health and Safety Act 2011 (WHS Act) must be met and prescribe procedural or administrative requirements to support the WHS Act (for example, requiring licences for specific activities and the keeping of records).
Chapter 7 of the WHS Regulations regulates hazardous chemicals and (among other things) provides for the standard classification and labelling of hazardous chemicals at the workplace.
This Instrument exempts:
- manufacturers and importers from the requirement to use the Globally Harmonised System of Classification and Labelling of Chemicals (GHS) in the current WHS Regulations for the purposes of regulations 329, 330(1), 330(2), 330(3) and 335 (which deals with the classification, preparation and provision of safety data sheets (SDS), and labelling of a hazardous chemical) if they instead use GHS 7,
- suppliers from the requirement to use the GHS in the current WHS Regulations for the purpose of regulation 338 (which deals with the labelling of a hazardous chemical) if they instead use GHS 7,
- PCBUs from the requirement to use the GHS in the current WHS Regulations for the purpose of regulations 341, 342(1), 342(2) and 345 (which deal with the labelling of a hazardous chemical and changes to SDSs) if they instead use GHS 7.
Human Rights Implications
Article 7 of the International Covenant on Economic, Social and Cultural Rights provides for the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular (b) 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 State parties are responsible for adopting policies and laws to that end. A coherent national policy in this regard is incumbent on all State parties.’[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.
As stated above, Chapter 7 of the WHS Regulations regulates hazardous chemicals and (among other things) provides the standard classification and labelling of hazardous chemicals at the workplace in accordance with the GHS.
The transitional period for the move to GHS 7 was due to commence on 1 July 2020 however, due to the impact of COVID-19, the implementation of GHS 7 has been delayed and the transitional period expected to commence on 1 January 2021.
The transition from GHS 3 to GHS 7 has been known by stakeholders for a significant time and some manufacturers, importers, suppliers and end users may have started implementing the measures and be ready for GHS 7 earlier that 1 January 2021. This would mean that those stakeholders could be penalised for meeting the requirements as per the original implementation date.
As a result, it was agreed that early adopters of GHS 7 should not be penalised for using the revised classification system ahead of the commencement of the transitional period.
For those early adopters of GHS 7, there will be no diminution of safety standards that flow throughout the supply chain or to workers.
GHS 7 provides additional hazard classes and categories, revises the classification criteria for flammable gases to remove the current ambiguity that stakeholders have identified, and removes the requirement to disclose the identity and proportion of each ingredient in the chemical on the label of a hazardous chemical, as this is included in the products SDS.
For the reason stated above, the exemption is 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: https://www.ohchr.org/Documents/Publications/FactSheet16rev.1en.pdf [accessed 1 July 2020]