You must be this compliant to ride: new Work Health & Safety requirements for amusement device operators in New South Wales

By Rachael Arnold, Holly Turner and Rebecca Dodd

New requirements for the operation of amusement device and passenger ropeways have come into force, following the enactment of Schedule 1 [6]-[11] of the Work Health and Safety Amendment Regulation 2022 (NSW) (Amendment) (introduced on 1 December 2022) within the Work Health and Safety Regulation 2017 (NSW) (Regulation).^[1]

What is an amusement device and what is a passenger ropeway?

The Regulation defines:^[2]

• an ‘amusement device‘ as a plant that is operated for hire or reward that provides entertainment, sightseeing or amusement through movement and/or passenger travel. Examples include rollercoasters, ferris wheels, climbing walls, high ropes courses, bungy jumping and go-karts. There are several exclusions, including miniature trains, boats, and mechanical kiddie rides (ie those machines typically located in malls and operated by coin).
• a ‘passenger ropeway‘ as a powered system used for transportation, on a horizontal or inclined plane, of passengers moved by a carrier attached to a moving rope and/or supported by a standing rope or other overhead structure. Examples include chair lifts and gondolas. There are several exclusions, including cable cars and flying foxes (and similar devices).

The object of the Amendment is to give effect to the Model Work Health and Safety Legislation Amendment 2022 and lay out specific practice requirements in terms of:

• the nature of an operator’s experience.^[3]
• mandatory inclusions for the log book.^[4]
• availability of the log book on transfer of control of an amusement device.^[5]

Nature of an operator’s experience

The Amendment introduces clause 238(3) which provides clarity to the existing requirement for the person with management or control of an amusement device or passenger ropeway to ensure that it is only operated by ‘a person who has been provided with instruction and training in its proper operation’.^[6]

Clause 238(3) provides that the reference to ‘instruction and training’ includes a reference to ‘instruction and training in carrying out the checks and operation required under clause 238(2)(a) and (b)’. Clause 238(2)(a) and (b) apply to amusement devices and passenger ropeways and require that:

• daily, pre-operation ‘checks’ are performed; and
• daily, pre-operation, passenger-free (ie empty/staff only) ‘test’ operations are performed.

The maximum penalty for failure to comply with clause 283(1) is 70 penalty units for an individual and 345 penalty units for a body corporate.

Summary: persons with management or control of an amusement device or passenger ropeway must now ensure that anyone operating the device or ropeway is specifically trained in carrying out the daily, pre-operative checks and tests.

Mandatory inclusions for the log book

The Amendment omits what was clause 242(1)(a) and replaces its effect with the introduction of clause 242(1A), which provides a detailed list of information that must be recorded in the log book for an amusement device.

The information that must now be recorded is laid out in detail.^[7] In summary, the log book must include details and information about the device in respect of:

• each occasion of erection;
• each occasion of storage;
• maintenance;
• daily hours of operation;
• cumulative total hours of operation;
• faults and/or matters relevant to safety;
• names and instruction/training details for each device operator;
• all statutory notices issued that pertain to the device, including:
  • any actions taken in response to a statutory notice; and
  • where the statutory notice is pursuant to a corresponding work health and safety (WHS) law, the location of the device when the statutory notice was issued.

Additionally, the daily pre-operation checks and tests of an amusement device or passenger ropeway must also be recorded in the log book.^[8]

For further clarity, the Amendment also introduces clause 242(4) which defines ‘statutory notice’ to mean an ‘improvement notice, prohibition notice or penalty notice’, or one of those documents issued under a corresponding WHS law.

Summary: persons with management or control of an amusement device must ensure that the specific information outlined in clause 242(1A) is recorded in the log book. This will likely require updating the log book twice daily (before opening and after closing). It should be noted that a log book is not required for passenger ropeways.

Availability of the log book on transfer of control of an amusement device

The Regulation previously included a Note after clause 242 which stated that clause 237(5) required the person with management or control of the amusement device to give the log book and maintenance records to the person being supplied with the plant. The Amendment omits that Note and introduces clause 242(3), which specifically states that ‘the person with management or control of an amusement device at a workplace must make the log book for the device available to any person to whom the person relinquishes control of the device’.

The maximum penalty for failure to comply with clause 242(3) is 15 penalty units for an individual and 70 penalty units for a body corporate.

Summary: clause 242(3) creates a duty that is different to that which existed previously under clause 237(5) (which is concurrently operative) in three ways:

• firstly, it relates to provision of the log book specifically,^[9] as opposed to the records of plant, which also remain required to be provided.^[10]
• secondly, it distinguishes the recipient in the scenario in which the log book must be shared (any person to whom control of the amusement device is relinquished).
• thirdly, while clause 242(3) and 237(5) both only require the person relinquishing control to make the log book available to the recipient, the now omitted Note contradictorily asserted that clause 237(5) required the log book to be given to the recipient of the plant (which was inconsistent and confusing).

Conclusion

Overall, the Amendment should be a welcome source of sufficiently specific guidance for owners and operators of amusement devices and passenger ropeways. WHS Queensland records reveal that there were 111 serious amusement ride incidents in Australia between 2001 and 2016, a significant proportion of which were caused by operator error.^[11]

Due to the nature of the industry, amusement rides are frequently transported to different events where they are operated by different staff. This means that there is a heightened need for proper instruction and training, thorough pre-operation checks and fulsome documentation of faults and safety risks, all of which is mandated by the Amendment.

While the mandatory inclusions for the log book may be time-consuming, they encourage good record-keeping practices in general, and clear, up-to-date records are always an excellent resource in defending all kinds of legal claims. The Amendment provides a clearer, more accessible roadmap to compliance and will assist owners and operators to translate the Regulation into practice.

If you have any questions, please contact a member of our team.

[1] Part 5.2, Division 2, Subdivision 2 of the Regulation.
[2] Chapter 1, Part 1.1, Section 5 of the Regulation.
[3] Clause 238(3) of the Regulation.
[4] Clause 242(1A) of the Regulation.
[5] Clause 242(3) of the Regulation.
[6] Clause 238(1) of the Regulation.
[7] Clause 242(1A)(a)-(h) of the Regulation.
[8] Clause 238(2)(c) of the Regulation.
[9] Clause 242 of the Regulation.
[10] Clause 237 of the Regulation.
[11] Tim Lyons, WorkCover Queensland, Best Practice Review of Workplace Health and Safety Queensland (Final Report, 3 July 2017) 100.