Client Update

New NSW legislation for building professionals

From 1 March 2007, the Building Professionals Board commenced its functions under the Building Professionals Act 2005 (NSW) relating to the regulation and accreditation of building and subdivision certifiers.

On 25 January 2007, the Act was proclaimed to commence. The following day the Minister for Planning, The Hon. Frank Sartor (the Minister) appointed the members of the Board:

• Mr John Murray AM, President
• Mr Graham Miller, Deputy President
• Ms Christine Paull, and
• Mr Geoffrey Douglass.

The functions of the Board are to:

• accredit certifiers to issue construction, occupation, subdivision, strata, compliance and complying development certificates under the Environmental Planning and Assessment Act 1979 (EP&A Act), Strata Schemes (Freehold Development) Act 1973 and Strata Schemes (Leasehold Development) Act 1986. The Accreditation Scheme (gazetted on 2 February 2007 and which commenced on 1 March 2007), sets out the accreditation criteria to be met by persons seeking accreditation as well as the code of conduct for accredited certifiers
• investigate complaints against accredited certifiers
• audit accredited certifiers and councils in their certification role, and
• improve professional practice through education and training.

Some of the key provisions of the Act include:

• Accreditation - The Board is responsible for reviewing, determining, issuing and renewal of certificates of accreditation. Both the Act as well as the Accreditation Scheme set out the process and criteria against which the Board must perform this function.
• Protection of the public - The Board may take preventative action to protect the safety of property or persons by either suspending or imposing conditions on the certificate of accreditation of an accredited certifier.
• Investigative and disciplinary powers - The Board has powers to investigate complaints made against accredited certifiers. If after an investigation the Board decides that the accredited certifier is guilty of ‘unsatisfactory professional conduct’ then it may take actions that include imposing conditions on the accredited certifier’s certificate, ordering that the accredited certifier attend educational courses and ordering the accredited certifier to pay a fine.
• Penalty provisions - The Board can issue fines of up to $11,000 and its authorised officers can issue on-the-spot fines of up to $1,100. The maximum penalty that the Tribunal may impose is $110,000. The maximum penalty that may be imposed against an accredited certifier who on the understanding that they will act otherwise than impartially, agrees or offers to accept a benefit is $1.1 million (ie 10,000 penalty units), or two years’ imprisonment (or both). The same maximum penalty applies to persons who procure such conduct.

Victoria consolidates OHS Regulations

The proposed Occupational Health and Safety Regulations 2007 (Vic) aim to:

• consolidate the existing 13 OH&S Regulations due to expire in 2007, into one single streamlined set of Regulations
• reduce the amount of duplication and overlap involved with the existing 13 sets of Regulations
• address the need to nationally standardise licensing and permissioning schemes
• reduce red tape and compliance costs
• align Victoria with the National OH&S Standards, and
• introduce new areas of coverage such as a set of minimum standards for the construction industry and hazardous substances generated from non-hazardous materials (eg saw-dust from timber).

Background

WorkSafe Victoria has sought submissions on proposed amendments to the existing 13 OH&S Regulations, for example: the Occupational Health and Safety (Asbestos) Regulations 2003; the Occupational Health and Safety (Hazardous Substances) Regulations 1999; the Occupational Health and Safety (Lead) Regulations 2000 and the Occupational Health and Safety (Noise) Regulations 2004. The proposed amendments will see the Regulations consolidated into one single streamlined set of Regulations, the proposed Occupational Health and Safety Regulations 2007 (Vic). WorkSafe Victoria is the prevention arm of the Victorian WorkCover Authority and will be responsible for administering the consolidated Regulations. The public comment period closed on 28 February 2007.

The proposed Regulations are intended to align Victorian standards with those of other States (in keeping with the National OH&S Standards). It is not proposed they make any other substantive policy changes.

WorkSafe still champion a consultative approach between employers and employees for the resolution of OH&S issues (primarily through Health & Safety Representatives). The new Regulations further seek to clarify what Health & Safety Representatives and other stakeholders should immediately do while a safety issue is being dealt with under its prescribed process.

Occupational Health and Safety Regulations 2007 (Vic)

Contents

The proposed Regulations consist of eight chapters:

Chapter 1 - Preliminary Matters (including some revised definitions)

Chapter 2 - General Duties and Issue Resolution (including the provision of training etc)

Chapter 3 - Specific Hazards (including manual handling, noise & prevention of falls)

Chapter 4 - Hazardous Substances (including carcinogenic substances, asbestos and lead)

Chapter 5 - Hazardous Industries (including construction, major hazard facilities and mines)

Chapter 6 - Licensing and Registration (including review of decisions)

Chapter 7 - Administrative Matters and Exemptions

Chapter 8 - Saving and Transitional Provisions

Costs

The Victorian Government intends that the amendments to the Regulations will not only save lives and reduce injuries by making obligations easier to recognise and comply with, but that there will also be a significant financial reduction. Currently, workplace injuries and deaths costs Victorians $7 billion annually. Costs will be saved in areas such as risk assessment and associated record keeping. Risk assessments will still be required in high risk industries such as construction and mining.

The construction industry

The proposed Regulations contain a set of minimum standards dedicated to the construction industry, which address issues including:

• OH&S training as a prerequisite to working on a construction site (cards will be issued to workers by WorkSafe to demonstrate that OH&S training has been completed)
• larger construction sites (where the value of the work is $250K or more) having health and safety coordination plans (maintained by the principal contractors)
• safe work method statements to be completed by employers for all high-risk construction work (e.g. working from heights, trenching, demolition etc.).

Licensing and permissioning schemes

Licensing of people who perform high risk work (e.g. crane and forklift operators) has recently been standardised by the Australian Government. The proposed Regulations will align Victorian standards with the National Standards and permit a free flow of labour across State borders. In an effort to reduce fraud, the Standards incorporate photographic ID for licensed persons and will introduce mandatory renewal periods (5 years). Other measures, as noted in ‘Streamlining Victoria’s OHS regulations - information sheet, January 2007’, to be introduced by the proposed Regulations include:

• training and assessment of operators to be conducted through Registered Training Organisations
• clarification of the grounds on which WorkSafe can suspend or cancel licences
• removing the current licence exemptions for operators of forklifts on farms and in forestry operations, and
• a new class of licence being required for those people operating self-erecting tower cranes.

Noise

Nationally 19% of all disease related claims relate to hearing loss. Noise-induced hearing loss (including industrial deafness) is an irreversible condition. Employers in Victoria are currently required to test for noise levels regardless of whether any excess is apparent. The proposed Regulations are aimed at saving time and money in this regard by only requiring employers to test where there is uncertainty as to the safety of noise levels.

Major hazard facilities

The aim of the proposed Regulations with respect to major hazard facilities is to prevent major incidents from occurring and reduce the impact of such incidents on the State’s infrastructure (the Longford disaster is provided by WorkSafe as an example of such a situation). Primarily, the National Standards will be adopted and the change is designed to clarify the point at which a review of a Safety Management System is required. Further, the proposed Regulations will detail mandatory requirements to prevent any unauthorised access to major hazard facilities.

Preventing falls at work

The current regime will still apply, which requires employers to control the risk of a fall of two metres or more; additionally, this obligation will be extended by the proposed Regulations to include emergency services volunteers.

Plant and machinery

The inclusion of plant and machinery in the proposed Regulations is designed to strengthen consumer protection in purchasing new and second-hand plant. The proposed Regulations include disclosure obligations for auctioneers who sell plant. Additionally, as regards lift safety, the proposed Regulations will be extended to cover persons maintaining lifts.

Mines

The proposed Regulations maintain the prescribed risk management process which makes hazard identification and risk assessment in the mining industry mandatory. The Regulations will also incorporate the Commonwealth Government’s National Mine Safety Framework.

Manual handling

The manual handling elements of existing Regulations will be added to the consolidated Regulations without any noteworthy change.

Working in confined spaces

The working in confined spaces elements of existing Regulations will be added to the consolidated Regulations without any noteworthy change.

Asbestos

The new Regulations will set out clearly the circumstances where minor contaminations can be dealt with by unlicensed people, so that common work practices are not unnecessarily impeded. The Regulations will also distinguish between demolition works and renovation works. The Regulations intend to reduce the time for notification of small jobs from 5 days to 24 hours so that the process of performing small jobs by licensed removalists can be expedited. Licensed removalists will also be relieved of the burden of notifying WorkSafe when they have a supervisor change.

Lead

WorkSafe considers it vital that appropriate safety information accompany lead products supplied in the workplace as exposure to lead can result in kidney failure, brain damage and death. Employers currently have four weeks to evaluate whether a process has a lead risk. Under the proposed Regulations, if there is any doubt as to whether a lead risk exists, a lead risk will be deemed to exist until testing is complete, thus avoiding exposure during the testing period. Further, in order to meet National Standards, biological blood testing of employees for lead levels will take place every six months, three months or six weeks, depending on the previous level reading. Atmospheric testing will also take place where blood testing is not required, or if there is uncertainty about whether exposure exceeds acceptable levels.

Criticisms of the proposed Regulations

A few concerns have been raised by stakeholders regarding the impact of the proposed Regulations. These include:

• increased risk to workers and the community by allowing Class B asbestos removalists to remove larger quantities of asbestos;
• it may be possible for employers to claim that they did not perceive a noise risk in order to avoid the time and cost involved in testing and rectifying noise levels; and
• unions are concerned that there is a greater risk in removing the obligation for businesses to perform a risk assessment in most instances.

Equipment (Public Safety) Regulations 2007 (Vic)

Plant and machinery

The second Regulation consolidation currently proposed by WorkSafe Victoria is the Equipment (Public Safety) Regulations 2007 (Vic). This consolidation will amalgamate the two sets of Regulations that currently support the Equipment Public Safety Act 1994 (Vic), being the Equipment (Public Safety) Regulations 1995 (Vic) and the Equipment (Public Safety) (Incident Notification) Regulations 1997 (Vic). The consolidated Regulations will introduce controls for non-workplace plant and machinery (such as amusement rides and lifts), to aid public safety. However, overall there will not be any significant changes to existing obligations in this area.

Summary

The consolidated Regulations do not make dramatic changes to the existing framework and WorkSafe therefore stipulates that businesses and individuals who are complying with their obligations now will be well placed to comply with the new scheme.

In summary, the Government has stated that the proposed Regulations, as noted in Streamlining Victoria’s OHS regulations – information sheet January 2007, will be of the following effect: