New approach to seeking exemptions under WA’s WHS regulations

By Nicholas Beech

When Western Australia’s new work health and safety laws come into operation this month, circumstances may arise when it’s not possible to achieve compliance, or full compliance, with an obligation or requirement under the applicable regulations.

The WHS Laws will see the introduction of a new regime for seeking an exemption to the operation of a regulation. The regime is consistent with a nationally endorsed approach across jurisdictions. Exemptions are available in WA under current laws, however the key change will be the application of consistent and detailed principles to the application and decision-making processes.

There is no power for a regulator to grant exemptions from compliance with duties under the WHS Act as these duties are considered fundamental to protecting the health and safety of workers and others.

Present exemption regime in WA

Presently, under the Occupational Safety and Health Regulations and Mines Safety and Inspection Regulations, a person can apply for that person or a workplace to be exempted from complying with a requirement of the regulations. An exemption will be granted if the regulator is satisfied:

• that there is substantial compliance with the requirement; or
• that compliance would be unnecessary or impracticable.

An exemption may be made subject to conditions and may be revoked by the regulator. Although a pro forma application must be completed to make an application, there are no prescribed guidelines or principles that govern the assessment of an application. Generally, it has been held that:

• substantial compliance is not far short of full compliance – whether ‘substantial compliance’ has been met is a matter of degree and concerns the practical effect of what has been done, compared with the practical effect the relevant regulation which has not been complied with, seeks to achieve; and
• compliance may be unnecessary if it is possible to adopt an alternative approach to that prescribed by a regulation which adequately takes account of the relevant hazard and the risk of harm or injury.

Seeking exemptions under the new WHS regulations

The new exemptions regime is set out in Part 11.2 of the Work Health and Safety (General) Regulations 2022 (Regulations).

In WA, there are two categories of exemptions that may be sought: general and high-risk work licence. High-risk work licences are required for scaffolding and rigging and crane, forklift and pressure equipment operation. A third category of exemption relating to major hazards does not apply in WA as the State’s work health and safety laws for major hazard facilities remain part of the Dangerous Goods laws.

For a general exemption, the regulator may, on the regulator’s own initiative or on the written application of one or more persons, exempt a person or class of persons from compliance with any of the Regulations. A person or class of persons may apply in writing to the regulator to be exempted from complying with a requirement to hold a high-risk work licence.

For both types of exemptions, there are a number of prescribed matters that the regulator must consider in assessing an application.

General exemption:

• Whether the granting of the exemption will result in a standard of health and safety at the relevant workplace, or into the relevant undertaking, that is at least equivalent to the standard that would be achieved by compliance with the relevant provision or provisions.
• Whether the above requirements will be met if the regulator imposes certain conditions in granting the exemption and those conditions are complied with.
• Whether exceptional circumstances justify the grant 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 regulator is satisfied that the risk associated with the thing is not significant if the exemption is granted.
• Whether the applicant has carried out consultation with workers and other relevant duty holders in relation to the proposed exemption.

High-Risk Work Licence exemption:

• An exemption must not be granted unless the regulator is satisfied that granting the exemption will result in a standard of health and safety that is at least equivalent to the standard that would have been achieved without that exemption.
• Whether the obtaining of the high-risk work licence would be impractical.
• Whether the competencies of the person to be exempted exceed those required for a high-risk work licence.
• Whether any plant used by the person can be modified in a way that reduces the risk associated with using that plant.

There are also prescribed requirements dealing with the manner and form of an application and the conditions that may be imposed on an exemption, including monitoring risks and potentially affected workers, keeping certain records and reporting certain matters. A decision to refuse an application or to impose a condition is a reviewable decision, which allows the applicant, within 28 days of being alerted to the decision, to apply to the Work Health and Safety Tribunal (presently the Western Australian Industrial Relations Commission) for review.

National Exemption Framework

To facilitate a national and consistent approach to exemption applications and assessment by the regulators in each jurisdiction, a number of matters have been agreed through Safe Work Australia’s Strategic Issues Group-WHS. The purpose of this group is to assist Safe Work Australia in performing its functions with regard to WHS matters and comprises members from each jurisdiction, unions and industry groups.

National Approach

• The following principles will guide the exemption decision making process:
  • Consistency – regulators will apply common criteria for the issue, refusal and variation of exemptions from WHS Regulations.
  • Constructiveness – regulators will use national guidance material to assist applicants to understand the exemption decision making process.
  • Transparency – the principles upon which exemption decisions are made will be published on the website of Safe Work Australia. 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 – 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.
• An example application has been prepared that provides an indication of the type of document which must be completed prior to lodgement of an exemption application to the regulator.
• Information collected by the regulator in connection with an application may be provided to other WHS Regulators to ensure that a nationally consistent approach is taken to exemptions.

In substance, the present concepts of substantial compliance, and unnecessary or impractical compliance will remain relevant under the new regime to seek an exemption. The focus will also remain firmly on establishing that the exemption will not result in any reduced safety standard. It is likely many of the broad range of conditions will be used to monitor the consequences of the exemption and to permit amendment or cancellation of the exemption promptly when necessary.

It will be interesting to see whether the new principles can be applied consistently and the extent to which exemptions are ultimately harmonised.