WorkSafe Tasmania

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Exemptions under the Work Health and Safety Regulations

The Work Health and Safety Regulations 2012 have  a general power which provides for the Regulator to grant an exemption from compliance with any of the regulations.

The issuing of an exemption is based on the understanding that the alternative agreed course of action will provide at least an equivalent level of health and safety to that achieved by complying with the regulation.

Exemption types

General exemption

Under Regulation 684, the Regulator may grant a general exemption from compliance with any of the regulations.

Hazard specific exemptions

Hazard specific provisions in the Regulations apply to the granting of an exemption:

  • From holding a high risk work licence [regulation 686]; or
  • For a major hazard facility [regulation 688].

Scope

General exemption provisions are set out in Regulations 684-685 and exclude exemptions requiring a person to hold a high risk work licence, that are set out in Regulations 686-687 or relating to a major hazard facility or a proposed major hazard facility, that are set out in Regulations 688-689.

Who may apply for an exemption

General exemption

Any person or class of persons may apply to the Regulator in writing for a general exemption [Regulation 684 (1)].

A person includes a body corporate (legal entity) such as a corporation or incorporated association or government entity (government department or government statutory body) or an individual.

A class of persons means a number of persons who have a common characteristic for example: operators of a specific tool or machinery.

The Regulator may on its own initiative grant a general exemption [Regulation 684 (2)].

High risk work licence exemption

Any person or class of persons may apply to the Regulator in writing for an exemption from the requirement to hold a high risk work licence [Regulation 686].

Major hazard facility exemption

The operator of a major hazard facility or proposed major hazard facility may apply to the Regulator for an exemption from compliance with any provision in the WHS Regulations relating to that facility [Regulation 688 (2)].

Regulation 533(1) of the WHS Regulations define the operator of a major hazard facility to be a person who conducts the business or undertaking of operating the facility and who has:

  • management or control of the facility; and
  • the power to direct that the whole facility be shut down.

Regulation 533(2) of the WHS Regulations define the operator of a proposed major hazard facility to be:

  • the operator of a proposed facility that is an existing workplace; or
  • the person who is to be the operator of a proposed facility that is being designed or constructed.

Duration of an exemption

The exemption will last the length of time stipulated by the Regulator unless the Regulator amends or cancels the exemption earlier [Regulation 692(g) and 697].

Recognition of interstate authorisations

An exemption issued by the Regulator is valid in Tasmania only.

Granting, renewal, refusal

The Regulator takes into account the following matters when deciding whether to grant an exemption.

Key principles

The agreed national principles which guide exemption decision making which underpin the exemption decision making process are:

Consistency: Regulators will apply common criteria for the issue, refusal and variation of exemptions from the Regulations.

Constructiveness: Regulators will use national guidance material to assist applicants to understand the exemption decision making process.

Transparency: The principles on which exemption decisions are made will be published by Safe Work Australia (external link). Regulators will make decisions by applying documented policies neutrally and objectively, with integrity and fairness. Appropriate confidentiality considerations will underpin the decision making process. Documented policies will also be published on the website of each WHS Regulator.

Accountability: Regulators will report details of applications for exemptions to Safe Work Australia (subject to issues of confidentiality) and provide reasons for making exemption decisions.

At the time of refusing, cancelling, suspending or varying an exemption, an applicant will be advised of the right to apply for external review of the decision.

Proportionality: Exemption decision making should be proportionate to the risk and regulators should ensure that equivalent safety can be demonstrated.

Responsiveness: in making exemption decisions regulators will be timely and responsive to the needs of an applicant while ensuring that appropriate consultation has taken place.

Targeted: Regulators will only grant an exemption where exceptional circumstances justify the grant of the exemption and can grant an exemption on its own initiative, that is, without receipt of an application.

General exemption

The Regulator may deem any matter relevant when making its decision to grant a general exemption but must consider the following:

  • whether granting the exemption will result in a standard of health and safety at the relevant workplace or in relation to the relevant undertaking, that is at least equivalent to the standard that would be achieved by compliance with the provision/s
  • whether at least an equivalent standard of health and safety can be achieved by granting a conditional exemption
  • whether exceptional circumstances justify the granting of the exemption. Exceptional circumstances may include: emergency situations, practicality of applying a regulatory provision and technological change
  • if the proposed exemption relates to a particular thing whether the risk associated with that thing is not significant if the exemption is granted
  • whether the applicant has carried out consultation in relation to the proposed exemption in accordance with Divisions 1 and 2 of Part 5 of the WHS Act.

[Regulation 685].

Exemption from holding a high risk work licence

The Regulator may deem any matter relevant when making its decision to grant an exemption from holding a high risk work licence but must be satisfied that granting the exemption will result in a standard of health and safety that is at least equivalent to the standard that would be achieved without the exemption. The Regulator will consider the following in making a decision:

the impracticability of obtaining a high risk work licence

whether the person’s competencies exceed those required for the grant of a high risk work licence; and

whether any plant used can be modified to reduce the risk associated with its operation.

[Regulation 687].

Exemption for a major hazard facility

The Regulator must be satisfied about the following before granting an exemption:

  • whether one or more Schedule 15 chemicals are present or likely to be present at the facility; and
  • whether the quantity of the Schedule 15 chemical/s exceeds the threshold quantity of the chemical/s periodically because:
  • the Schedule 15 chemical/s are solely the subject of intermediate temporary storage; and
  • the Schedule 15 chemical/s is in one or more containers with the capacity of each container to contain no more than a total of 500 kilograms of the Schedule 15 chemical.
  • whether granting the exemption will result in a standard of health and safety in relation to the operation of the facility that is at least equivalent to the standard that would be achieved by compliance with the relevant provision/s. The Regulator will consider the following in making a decision:
  • whether the applicant (operator of the facility) is complying with the WHS Act and Regulations, including Part 7.1; and
  • whether the applicant has processes and procedures in place which will keep the quantity of the Schedule 15 chemical/s present or likely to be present at or below the threshold quantity for the Schedule 15 chemical/s as often as practicable; and
  • whether the applicant has implemented adequate control measures to minimise the risk of a major incident occurring.

[Regulation 689].

The Regulation defines ‘in transit’ in relation to a thing, means that the thing:

  • is supplied to, or stored at, a workplace in containers that are not opened at the workplace; and
  • is not used at the workplace; and
  • is kept at the workplace for not more than 5 consecutive days.

[Regulation 5].

Granting a conditional exemption

The Regulator may impose any conditions it considers appropriate on an exemption. Conditions that may be imposed include:

  • monitoring risks
  • monitoring the health of persons at the workplace who may be affected by the exemption
  • keeping certain records
  • using a stated system of work
  • reporting certain matters to the regulator; and
  • giving notice of the exemption to person/s that may be affected by the exemption.

A decision to impose condition/s on an exemption is a reviewable decision.

[Regulation 691].

Granting an exemption

If the Regulator grants an exemption on consideration of a written application or on its own initiative, it must provide written notice of the exemption within 14 days after making the decision to grant the exemption.

The Regulator must provide the notification to the person who applied for the exemption or to each person to whom the exemption applies, if the regulator grants the exemption on its own initiative. If the exemption applies to a class of persons the Regulator must publish a copy of the exemption in the Tasmanian Government Gazette.

Refusing to grant an exemption

The Regulator may refuse to grant an exemption. If it refuses to grant an exemption, it must give the applicant written notice of the refusal within 14 days after making that decision and the notice must state the reasons for the refusal [Regulation 696].

A decision to refuse to grant an exemption is a reviewable decision [Regulation 684, 686 and 688].

Obligations

A person to whom an exemption is granted must comply with the conditions of the exemption and ensure any person under their management or control complies with the conditions of the exemption [Regulation 693].

Cancelling/amending an exemption

The Regulator may amend or cancel an exemption at any time.

A decision to amend or cancel an exemption is a reviewable decision [Regulation 697].

If the Regulator decides to amend or cancel an exemption it must give written notice to the applicant of the amendment or cancellation within 14 days after making that decision and the notice must state the reasons for the decision [Regulation 698 (1) and (3)].

If the exemption affects a class of persons, the Regulator must publish a notice of amendment or cancellation of the exemption in the Tasmanian Government Gazette [Regulation 698 (2)].

The amendment or cancellation takes effect on the publication of the notice in the Tasmanian Government Gazette or on a later date specified in the notice or if a notice is not required to be published in the Tasmanian government gazette, on the giving of the notice to the applicant or on a later date specified in the notice [Regulation 698 (4)].

Applying for review of decision relating to an exemption

The table in Regulation 676 sets out decisions that are reviewable (reviewable decisions) and who is eligible (eligible person) to apply for the review of a reviewable decision.

The applicant is the eligible person to request a review of the following decisions:

  • to refuse to grant an exemption [Regulation 684, 686 and 688]; or
  • to impose a condition on an exemption (Regulation 691]; or
  • to refuse to grant an exemption [Regulation 696]; or
  • to amend an exemption [Regulation 697]; or
  • to cancel an exemption [Regulation 697].

Internal review

A written application for the internal review of a reviewable decision is made using the application form provided by the Regulator. The application must be lodged with 28 days of the day on which the decision first came to the eligible person’s notice or such longer period as the Regulator allows [Regulation 678 (1)].

The internal reviewer may:

  • confirm or vary the reviewable decision; or
  • set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate.

[Regulation 680 (2)].

If the reviewable decision is not varied or set aside within the 14 day period the internal decision is taken to have been confirmed [Regulation 680 (6)].

The Regulator will give the applicant written notice of the decision and reason for the decision [Regulation 681].

An application for an internal review does not affect the operation of the reviewable decision or prevent the taking of any lawful action to implement or enforce the decision [Regulation 682].

External review

If the applicant is not satisfied with the internal review process, they can apply to the Magistrates Court (Administrative Appeals Division) (external link).

Legislation

Work Health and Safety Act 2012 (external link)

Work Health and Regulations 2012 (external link)

Checklists

Checklist for general exemption

  • Application form is complete including a signature in the declaration.
  • If the proposed exemption relates to a thing, evidence that the risk associated with the thing, is not significant if the exemption is granted has been submitted.
  • Evidence that consultation in relation to the proposed exemption has been undertaken in accordance with Divisions 1 and 2 of Part 5 of the WHS Act has been submitted.

Checklist for exemption from high risk work licence

  • Application form is complete including a signature in the declaration.
  • Copies of documents showing successful completion of competencies exceeding those required for the grant of the high risk work licence has been submitted.
  • Documents that demonstrate that the plant used by the person or class of persons can be modified to reduce the risk associated with its operation has been submitted.

Checklist for exemption for a major hazard facility

  • Application form is complete including a signature in the declaration.
  • Documents that demonstrate that the Schedule 15 chemical/s present or likely to be present will periodically exceed the threshold quantity because they are in intermediate temporary storage and in containers with a capacity to contain no more than 500 kg of the chemical has been submitted.
  • Documents that the operator of the facility is complying with the WHS Act and Regulations, including Part 7.1 has been submitted.
  • Documents that evidence processes and procedures are in place which will keep the quantity of the Schedule 15 chemical/s present or likely to be present at or below the threshold quantity as often as practicable has been submitted.
  • Documents that evidence that that operator of the facility has implemented control measures to minimise the risk of a major incident occurring has been submitted.

How to apply

Complete the application form (DOCX, 369.8 KB) and submit to the Regulator at WorkSafe Tasmania.

Updated: 14th November 2019