WORK HEALTH AND SAFETY AMENDMENT REGULATION 2016 (NO. 1) (F2016L00151) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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WORK HEALTH AND SAFETY AMENDMENT REGULATION 2016 (NO. 1) (F2016L00151)

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Employment

Subject - Work Health and Safety Act 2011

Work Health and Safety Amendment Regulation 2016 (No. 1)

The Work Health and Safety Act 2011 (the Act) and accompanying Work Health and Safety Regulations 2011 (the 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.

Section 276 of the Act provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 43 of the Act provides that a person must not carry out work if the regulations require the work to be carried out by a person who is authorised and the person is not authorised in accordance with the regulations. Non-compliance with section 43 of the Act is an offence.

Regulation 81 of the Regulations provides that a person must not carry out a class of high risk work unless the person holds a high risk work licence for that class of high risk work. The classes of high risk work are set out in Schedule 3 to the Regulations and include various activities, including operating a reach stacker (item 23).

At the time the Regulations commenced, reach stacker licences were not available as the national course which is the pre-requisite for obtaining the licence was yet to be developed. Transitional arrangements for the period up to 1 January 2016 have allowed workers operating reach stackers to hold one of a number of other licences (reg 727):

* a non-slewing mobile crane licence

* a licence for high risk work with a slewing mobile crane (regardless of the crane's capacity to which the licence relates), or

* a licence granted under a corresponding WHS law of a State or Territory that is equivalent to either of those licences.

The intention was for the mandatory, dedicated course for reach stacker operators to be developed and readily available to operators by 1 January 2016. This has not occurred so the transitional period has been extended until 31 December 2016. The amendment applies prospectively in accordance with section 12(2) of the Legislative Instruments Act 2003.

Consultation

Safe Work Australia, which is overseeing the development and implementation of the VET unit, and the regulator, Comcare, were consulted about the proposal to extend the transitional period (regulation 727). Safe Work Australia has provided information about the development of the mandatory unit of competency for reach stacker operators, and confirmed the need for an extension. The Regulation reflects Comcare's preferred approach. It allows for more time for implementation issues to be resolved, and ensures the Commonwealth's transitional arrangements align with other states and territories.

As the instrument is of a minor nature, and does not substantially alter existing arrangements, broader consultation was considered unnecessary and inappropriate. Any resulting delay would have extended the gap in transitional arrangements, as the transitional arrangements lapsed on 1 January 2016. The amendment takes effect on the day after the Regulation is registered. It was not possible to apply the amendment retrospectively: Legislative Instruments Act 2003, s 12(2)).

The Office of Best Practice Regulation advised that a Regulation Impact Statement was not required (OBPR ID: 20270).

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

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Act does not impose any conditions that need to be satisfied before the power to make the Regulation may be exercised.

The Regulation commences on the day after it is registered.

ATTACHMENT

Statement of Compatibility with Human Rights

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

Work Health and Safety Amendment Regulation 2016 (No. 1)

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 Work Health and Safety Amendment Regulation 2016 (No. 1) is to extend transitional arrangements for reach stacker licences under the Work Health and Safety Regulations 2011 (WHS Regulations), Part 4.5.

At the time the Regulations commenced, reach stacker licences were not available, as the national course which is the pre-requisite for obtaining the licence was yet to be developed. Transitional arrangements for the period up to 1 January 2016 have allowed reach stackers to hold one of a number of other licences (regulation 727):

* a non-slewing mobile crane licence

* a licence for high risk work with a slewing mobile crane (regardless of the crane's capacity to which the licence relates), or

* a licence granted under a corresponding WHS law of a State or Territory that is equivalent to either of those licences.

The intention was for the mandatory, dedicated course for reach stacker operators to be developed and readily available to operators by 1 January 2016. This has not occurred, so the transitional period has been extended until 31 December 2016.

Human rights implications

The instrument engages the right to just and favourable conditions of work (Article 7 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR)).

Right to just and favourable conditions of work--Safe and healthy working conditions

Article 7 of ICESCR encompasses a number of elements, including a right to safe and healthy working conditions.

Reach stacker licensing is new. Mandatory requirements to hold a new reach stacker licence cannot reasonably start until the national course which is the pre-requisite for obtaining the licence is developed, implemented and readily accessible to operators.

The intention was for this to happen by 1 January 2016. This has not occurred, so the transitional arrangements allowing operators to hold other suitable high risk work licences need to be extended.

Extending transitional arrangements will not limit the right to safe and healthy working conditions. It is reasonable, necessary and proportionate maintain transitional arrangements until the new licensing class (and underlying training course) can be implemented. During this transitional period, workers will still be required to maintain either a slewing or
non-slewing mobile crane licence, and will be subject to the more general protections in the Act.

As such, the instrument does not limit the right to safe and healthy working conditions.

See also the Explanatory Statement to the Work Health and Safety Amendment (Licences) Regulation 2014, for an earlier explanation for extending the transitional period.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights because it does not limit human rights.

Senator the Hon Michaelia Cash, Minister for Employment