GN 101 - Summary of WHS Acts & Regulations For PE Industry

Details: Category: Design, Materials, Manufacture and Installation

APEK
- WTIA
GUIDANCE NOTE

SUMMARY OF WHS ACTS & REGULATIONS
FOR PE INDUSTRY

APEK GN 101
Rev 1
Issued: 26/06/2013

Developed for: ACA, AICIP, AIES, AINDT, CAAA, Eng Aust, Met. Aust, NATA, Stds Aust, WTIA, & PE Industry & Regulators

1 SCOPE

This Note gives selected extracts from the new national Work Health and Safety (WHS) Act 2011 and WHS Regulations 2011 which apply to:

a) PE and related equipment or material

b) PE persons - definitions

c) PE persons - duties

d) PE related actions

e) PE important principles

These WHS laws have been enacted in the Commonwealth, ACT, Queensland, NSW and Northern Territory and are virtually identical with the Model Act and Regulations. It is expected that SA, TAS, VIC and WA will adopt these laws in 2014 – possibly with minor change.

The referenced Sections of Acts, Regulations and some referenced Acts, are those for NSW. They may differ slightly in other jurisdictions, but the terms have the same meaning eg NSW Regulation uses “Clauses” instead of “Regulations” in the Model Regulations.

In some cases where noted in italics, a term has been modified from “plant” to “pressure equipment”.

2 PURPOSE

This Note is intended to assist the pressure equipment (PE) and related industries in consistent use and understanding of terms, to help improve industry performance and also to identify where any improvement may be needed. Resolution of terms has been reported to solve over 90% of legal cases in the USA.

3 PE AND RELATED EQUIPMENT OR MATERIAL

.1 Act

plant includes:

(a) any machinery, equipment, appliance, container, implement and tool, and

(b) any component of any of those things, and

structure means anything that is constructed, whether fixed or moveable, temporary or permanent, and includes:

(a) buildings, masts, towers, framework, pipelines, transport infrastructure and underground works (shafts or tunnels), and

(b) any component of a structure, and

substance means any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour.

[Section 2]

workplace is

(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

(2) In this section, place includes:

(a) a vehicle, vessel, aircraft or other mobile structure; and

(b) any waters and any installation on land, on the bed of any waters or floating on any waters. [Section 8]

.2 Regulations

article means a manufactured item, other than a fluid or particle, that:

(a) is formed into a particular shape or design during manufacture, and

(b) has hazard properties and a function that are wholly or partly dependent on the shape or design. [Cl. 5]

boiler means:

(a) a vessel, or an arrangement of vessels and interconnecting parts, in which steam or vapour is generated or in which water or other liquid is heated at a pressure above that of the atmosphere by the application of fire, the products of combustion, electrical power or similar high temperature means, and

(b) the superheaters, reheaters, economisers, boiler piping, supports, mountings, valves, gauges, fittings, controls, boiler setting and other equipment directly associated with those vessels, but does not include:

(c) except in Schedules 3 and 4, a fully flooded or pressurised system where water or another liquid is heated to a temperature lower than the normal atmospheric boiling temperature of the liquid, or

(d) for the purposes of Parts 5.2 and 5.3 and in Schedules 3 and 4, a boiler designed or manufactured to the following codes:

(i) AMBSC Part 1—Australian Miniature Boiler Safety Committee Code for Copper Boilers,

(ii) AMBSC Part 2—Australian Miniature Boiler Safety Committee Code for Steel Boilers, or

(Note: Other Parts yet to be Listed ie Part 3 for Copper, Part 4 for Duplex)

(e) in Schedules 3 and 4:

(i) a direct fired process heater, or

(ii) boilers with less than 5 square metres heating surface or 150 kilowatt output, or

(iii) unattended boilers certified in compliance with AS 2593:2004 (Boilers—Safety management and supervision systems). [Cl. 5]

container, in relation to a hazardous chemical, means anything in or by which a hazardous chemical is, or has been, wholly or partly covered, enclosed or packed, including anything necessary for the container to perform its function as a container. [Cl. 5]

direct fired process heater means an arrangement of 1 or more coils, located in the radiant zone or convection zone, or both, of a combustion chamber, the primary purpose of which is to raise the temperature of a process fluid circulated through the coils, to allow distillation, fractionalism, reaction or other petrochemical processing of the process fluid, whether that fluid is liquid or gas, or a combination of liquid and gas. [Cl. 5]

[Note: proposal is to delete “direct”]

facility, in Chapter 9, means a workplace at which Schedule 15 chemicals are present or likely to be present.

[Cl. 5]

fire risk hazardous chemical means a hazardous chemical that:

(a) is any of the following:

(i) a flammable gas,

(ii) a flammable liquid (hazard category 1 to 3),

(iii) a flammable solid,

(iv) a substance liable to spontaneous combustion,

(v) a substance which, in contact with water, emits flammable gases,

(vi) an oxidizing substance,

(vii) an organic peroxide, and

(b) burns readily or supports combustion. [Cl. 5]

gas cylinder means a rigid vessel:

(a) that does not exceed 3000 litres water capacity and is without openings or integral on the shell other than at the ends, and

(b) that is designed for the storage and transport of gas under pressure, and

[Note: May add “Hazard” if defined]

hazardous chemical means a substance, mixture or article that satisfies the criteria for a hazard class in the GHS (including a classification referred to in Schedule 6), but does not include a substance, mixture or article that satisfies the criteria solely for one of the following hazard classes:

[GHS = globally harmonised system of classifying and labelling chemicals]

(a) acute toxicity—oral—category 5,

(b) acute toxicity—dermal—category 5,

(d) skin corrosion/irritation—category 3,

(e) serious eye damage/eye irritation—category 2B,

(f) aspiration hazard—category 2,

(g) flammable gas—category 2,

(h) acute hazard to the aquatic environment—category 1, 2 or 3,

(i) chronic hazard to the aquatic environment—category 1, 2, 3 or 4,

(j) hazardous to the ozone layer.

NOTE. The Schedule 6 tables replace some tables in the GHS. [Cl. 5]

heritage boiler means a boiler that:

(a) was manufactured before 1952, and

(b) is used for a historical purpose or activity, including an activity that is ancillary to a historical activity.

Examples:

1 Historical activity: a historical display, parade, demonstration or re-enactment.

2 Activity ancillary to a historical activity: restoring, maintaining, modifying, servicing, repairing or housing a boiler used, or to be used, for a historical activity. [Cl. 5]

industrial robot means plant that is a multifunctional manipulator and its controllers, capable of handling materials, parts or tools, or specialised devices, through variable programmed motions for the performance of a variety of tasks. [Cl. 5]

major hazard facility means a facility:

(a) at which Schedule 15 chemicals are present or likely to be present in a quantity that exceeds their threshold quantity, or

(b) that is determined by the regulator under Part 9.2 to be a major hazard facility. [Cl. 5]

pipeline means pipe work that crosses a boundary of a workplace, beginning or ending at the nearest fluid or slurry control point (along the axis of the pipeline) to the boundary.

pipe work means a pipe or assembly of pipes, pipe fittings, valves and pipe accessories used to convey a hazardous chemical [Note: Recommend use of PIPING]. [Cl. 5]

plant, in Parts 5.2 and 5.3, includes a structure (and pressure equipment). [Cl. 5]

powered mobile plant means plant that is provided with some form of self-propulsion that is ordinarily under the direct control of an operator. [Cl. 5]

pressure equipment means boilers, pressure vessels and pressure piping. [Cl. 5]

pressure piping:

(a) means an assembly of pipes, pipe fittings, valves and pipe accessories subject to internal or external pressure and used to contain or convey liquid or to transmit liquid pressure, and

(b) includes distribution headers, bolting, gaskets, pipe supports and pressure containing accessories, but

(i) a boiler or pressure vessel, or

(ii) any piping that is regulated under the Gas Supply Act 1996, the Petroleum (Offshore) Act 1982 or the Pipelines Act 1967. [Cl. 5]

pressure vessel:

(a) means a vessel subject to internal or external pressure, and

(b) includes:

(i) interconnected parts and components, valves, gauges and other fittings up to the first point of connection to connecting piping, and

(ii) fired heaters, and

(iii) gas cylinders, but

reciprocating steam engine means equipment that is driven by steam acting on a piston causing the piston to move, and includes an expanding (steam) reciprocating engine.

structure, in Chapter 6—see clause 290. [Cl. 5]

structure has the same meaning as it has in the Act.

(1) Examples.

1 A roadway or pathway.

2 A ship or submarine.

3 Foundations, earth retention works and other earthworks, including river works and sea defence works.

4 Formwork, falsework or any other structure designed or used to provide support, access or containment during construction work.

5 A dock, harbour, channel, bridge, viaduct, lagoon or dam.

6 A sewer or sewerage or drainage works.

(2) does not apply to plant unless:

(a) the plant is:

(i) a ship or submarine, or

(ii) a pipe or pipeline, or

(iii) an underground tank, or

(iv) designed or used to provide support, access or containment during work in connection with construction work, or

(b) work on the plant relates to work that is carried out in connection with construction work, or

(c) the plant is fixed plant on which outage work or overhaul work that involves or may involve work being carried out by 5 or more persons conducting businesses or undertakings at any point in time.

[Cl. 290]

turbine means equipment that is driven by steam acting on a turbine or rotor to cause a rotary motion.

[Not a gas turbine]. [Cl. 5]

4 PE AND RELATED PERSONS

NOTE: In Acts and Regulations, “persons” can be bodies, organisations, companies etc, as well as individual persons.

.1 Act

corresponding regulator means the holder of a public office, or a public authority, of the Commonwealth, or of a State, who or which is responsible for administering a corresponding WHS law. [Section 2]

designer a personwho conducts a business or undertaking that designs: [Section 22]

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or

employer organisation means an organisation of employers. [Section 2]

health and safety representative in relation to a worker, means the health and safety representative elected under Part 5 for the work group of which the worker is a member. [Section 2]

importer a person who conducts a business or undertaking that imports:

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

[Section 24 part only]

inspector means an inspector appointed under Part 9 or deemed to be an inspector under that Part.

[= Government or Regulator Inspector]. [Section 2]

installer means a person who conducts a business or undertaking that installs pressure equipment that is to be used or could reasonably be expected to be used, at a workplace. [Section 26, part only]

local authority means a council or county council under the Local Government Act 1993. [Section 2]

manufacturer a person who conducts a business or undertaking that manufactures:

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or

officer means:

(a) an officer within the meaning of section 9 of the Corporations Act 2001 of the Commonwealth other than a partner in a partnership, or

(b) an officer of the Crown within the meaning of section 247, or

(c) an officer of a public authority within the meaning of section 252, other than an elected member of a local authority acting in that capacity. [Section 2]

parties to an issue

(1) In this Division, parties, in relation to an issue, means the following:

(a) the person conducting the business or undertaking or the person’s representative,

(b) if the issue involves more than one business or undertaking, the person conducting each business or undertaking or the person’s representative,

(c) if the worker or workers affected by the issue are in a work group, the health and safety representative for that work group or his or her representative,

(d) if the worker or workers affected by the issue are not in a work group, the worker or workers or their representative.

(2) A person conducting a business or undertaking must ensure that the person’s representative (if any) for the purposes of this Division:

(a) is not a health and safety representative, and

(b) has an appropriate level of seniority, and is sufficiently competent, to act as the person’s representative. [Section 80]

persons conducting a business or undertaking (PCBU)

(1) For the purposes of this Act, a person conducts a business or undertaking:

(a) whether the person conducts the business or undertaking alone or with others; and

(b) whether or not the business or undertaking is conducted for profit or gain.

(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8) In this section, volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

[NOTE: This big difference between a worker (employee) and a PCBU] [Section 5]

public authority means:

(a) a Division of the Government Service, or

(b) a NSW Government agency, or

(d) any other public or local authority constituted by or under an Act. [Section 2]

regulator means (in NSW):

(a) the WorkCover Authority constituted under the Workplace Injury Management and Workers Compensation Act 1998, unless paragraph (b) applies, or

(b) in relation to matters or the exercise of a power or function concerning a mining workplace or a coal workplace—the head of the Department of Trade and Investment, Regional Infrastructure and Services.

[NOTE: other regulators may have different titles] [Section 2]

supplier means a person who conducts a business or undertaking that supplies:

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or

user (Note: not defined in WHS but is for PE industry) a person conducting a business or undertaking (PCBU) that manages or controls plant, in whole or in part at a workplace [Sections 20 & 21]

volunteer means a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). [Section 2]

worker

(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a) an employee, or

(b) contractor or subcontractor, or

(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or

(e) an outworker, or

(f) an apprentice or trainee, or

(g) a student gaining work experience, or

(h) a volunteer, or

(i) a person of a prescribed class.

(2) For the purposes of this Act, a police officer is:

(a) a worker, and

(b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.

(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking. [Section 7]

.2 Regulations

competent person means:

(a) for electrical work on energised electrical equipment or energised electrical installations (other than testing referred to in clauses 150 and 165)—a person who is authorised under the Home Building Act 1989 to do electrical wiring work,

(b) for general diving work—see clauses 174 and 177,

(d) for inspection of amusement devices under clause 241—see clause 241,

(e) for design verification under clause 252—a person who has the skills, qualifications, competence and experience to design the plant or verify the design,

(f) for a clearance inspection under clause 473—a person who has acquired through training or experience the knowledge and skills of relevant asbestos removal industry practice and holds:

(i) a certification in relation to the specified VET course for asbestos assessor work, or

(ii) a tertiary qualification in occupational health and safety, occupational hygiene, science, building, construction or environmental health,

(g) for any other case—a person who has acquired through training, qualification or experience the knowledge and skills to carry out the task. [Cl. 5]

when is a person competent to inspect plant

A person is a competent person to inspect an item of plant for registration if the person has:

(a) educational or vocational qualifications in an engineering discipline relevant to the plant to be inspected, or

(b) knowledge of the technical standards relevant to the plant to be inspected. [Cl. 267]

design verifier

(1) A person is eligible to be a design verifier for the design of an item of plant if the person is a competent person.

(2) Despite subclause (1), a person is not eligible to be a design verifier for the design of an item of plant if:

(a) the person was involved in the production of the design, or

(b) at the time the design was produced, the person was engaged by the person conducting the business or undertaking that produced the design.

(3) Subclause (2) (b) does not apply if the person conducting the business or undertaking uses a quality system to undertake the design of plant that has been certified by a body accredited or approved by the Joint Accreditation System of Australia and New Zealand. [Cl. 252]

designer, in relation to plant, a substance or a structure, has the same meaning as it has in section 22 of the Act.

[Cl. 5]

duty holder, in Part 3.1, means a person referred to in clause 32 i.e.:

This Part applies to a person conducting a business or undertaking who has a duty under this Regulation to manage risks to health and safety. [Cl. 32]

licence holder means:

(a) in the case of a high risk work licence—the person who is licensed to carry out the work, or

(b) in the case of an asbestos assessor licence—the person who is licensed:

(i) to carry out air monitoring during Class A asbestos removal work, and

(ii) to carry out clearance inspections of Class A asbestos removal work, and

(iii) to issue clearance certificates in relation to Class A asbestos removal work, or

(c) in the case of an asbestos removal licence—the person conducting the business or undertaking to whom the licence is granted, or

(d) in the case of a major hazard facility licence—the operator of the major hazard facility to whom the licence is granted or transferred. [Cl. 5]

manufacturer

(1) A manufacturer of plant must ensure the following:

(a) that the plant is manufactured and inspected having regard to the information provided to the manufacturer by the designer of the plant under the Act and this Regulation,

(b) if the information provided to the manufacturer by the designer of the plant under the Act and this Regulation requires the plant to be tested—that the plant is tested in accordance with that information,

(c) if, during the manufacturing process, any hazard is identified in the design of the plant for which the designer has not provided a control measure:

(i) that the hazard is not incorporated into the manufacture of the plant, and

(ii) that the designer of the plant is given written notice of the hazard as soon as practicable, and

(iii) that all reasonable steps are taken to consult with the designer of the plant in relation to the alteration of the design to rectify the hazard. [Cl. 193]

retailer means a person whose principal business is supplying consumer products to members of the public who are not engaged in the further supply of those products. [Cl. 5]

5 PE PERSONS - DUTIES

.1 Act

Duty of persons conducting businesses or undertakings involving management or control of workplaces

(1) In this section, person with management or control of a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control, in whole or in part, of the workplace but does not include:

(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or

(b) a prescribed person.

(2) The person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. [Section 20]

Duty of persons conducting businesses or undertakings involving management or control of fixtures, fittings or plant at workplaces

(1) In this section, person with management or control of fixtures, fittings or plant at a workplace means a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of fixtures, fittings or plant, in whole or in part, at a workplace, but does not include:

(a) the occupier of a residence, unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking, or

(b) a prescribed person.

(2) The person with management or control of fixtures, fittings or plant at a workplace must ensure, so far as is reasonably practicable, that the fixtures, fittings and plant are without risks to the health and safety of any person. [Section 21]

Duties of persons conducting businesses or undertakings that design plant, substances or structures

(1) This section applies to a person (the designer) who conducts a business or undertaking that designs:

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or

(2) The designer must ensure, so far as is reasonably practicable, that the plant, substance or structure is designed to be without risks to the health and safety of persons:

(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed, or

(b) who handle the substance at a workplace, or

(d) who construct the structure at a workplace, or

(e) who carry out any reasonably foreseeable activity at a workplace in relation to:

(i) the manufacture, assembly or use of the plant for a purpose for which it was designed, or the proper storage, decommissioning, dismantling or disposal of the plant, or

(ii) the manufacture or use of the substance for a purpose for which it was designed or the proper handling, storage or disposal of the substance, or

(iii) the manufacture, assembly or use of the structure for a purpose for which it was designed or the proper demolition or disposal of the structure, or

Example. Inspection, operation, cleaning, maintenance or repair of plant.

(f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity referred to in paragraph (a), (b), (c), (d) or (e).

(3) The designer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4) The designer must give adequate information to each person who is provided with the design for the purpose of giving effect to it concerning:

(a) each purpose for which the plant, substance or structure was designed, and

(b) the results of any calculations, analysis, testing or examination referred to in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing, and

(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or when carrying out any activity referred to in subsection (2) (a)–(e).

(5) The designer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2) (a)–(e). [Section 22]

Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures

(1) This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures:

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or

(2) The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons:

(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured, or

(b) who handle the substance at a workplace, or

(d) who construct the structure at a workplace, or

(e) who carry out any reasonably foreseeable activity at a workplace in relation to:

(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or

(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or

(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or

Example. Inspection, operation, cleaning, maintenance or repair of plant.

(3) The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).

(4) The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning:

(a) each purpose for which the plant, substance or structure was designed or manufactured, and

(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in subsection (2) (a)–(e).

(5) The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2) (a)–(e). [Section 23]

Duties of persons conducting businesses or undertakings that import plant, substances or structures

(1) This section applies to a person (the importer) who conducts a business or undertaking that imports:

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or

(2) The importer must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons:

(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured, or

(b) who handle the substance at a workplace, or

(d) who construct the structure at a workplace, or

(e) who carry out any reasonably foreseeable activity at a workplace in relation to:

(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or

(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or

(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or

Example. Inspection, operation, cleaning, maintenance or repair of plant.

(3) The importer must:

(a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2), or

(b) ensure that the calculations, analysis, testing or examination have been carried out.

(4) The importer must give adequate information to each person to whom the importer provides the plant, substance or structure concerning:

(a) each purpose for which the plant, substance or structure was designed or manufactured, and

(5) The importer, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2) (a)–(e). [Section 24]

Duties of persons conducting businesses or undertakings that supply plant, substances or structures

(1) This section applies to a person (the supplier) who conducts a business or undertaking that supplies:

(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace, or

(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace, or

(2) The supplier must ensure, so far as is reasonably practicable, that the plant, substance or structure is without risks to the health and safety of persons:

(a) who, at a workplace, use the plant or substance or structure for a purpose for which it was designed or manufactured, or

(b) who handle the substance at a workplace, or

(d) who construct the structure at a workplace, or

(e) who carry out any reasonably foreseeable activity at a workplace in relation to:

(i) the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant, or

(ii) the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance, or

(iii) the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure, or

Example: Inspection, storage, operation, cleaning, maintenance or repair of plant.

(3) The supplier must:

(a) carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2), or

(b) ensure that the calculations, analysis, testing or examination have been carried out.

(4) The supplier must give adequate information to each person to whom the supplier supplies the plant, substance or structure concerning:

(a) each purpose for which the plant, substance or structure was designed or manufactured, and

(5) The supplier, on request, must, so far as is reasonably practicable, give current relevant information on the matters referred to in subsection (4) to a person who carries out, or is to carry out, any of the activities referred to in subsection (2) (a)–(e). [Section 25]

Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures

(1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons:

(a) who install or construct the plant or structure at a workplace, or

(b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned, or

(c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure, or

(d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c). [Section 26]

4.2 Regulation

Duty to eliminate or minimise risk -

(1) This clause applies in relation to plant or a structure that includes a space that is, or is intended to be, a confined space.

(2) A designer, manufacturer, importer or supplier of the plant or structure, and a person who installs or constructs the plant or structure, must ensure that:

(a) the need for any person to enter the space and the risk of a person inadvertently entering the space are eliminated, so far as is reasonably practicable, or

(b) if it is not reasonably practicable to eliminate the need to enter the space or the risk of a person inadvertently entering the space:

(i) the need or risk is minimised so far as is reasonably practicable, and

(ii) the space is designed with a safe means of entry and exit, and

(iii) the risk to the health and safety of any person who enters the space is eliminated so far as is reasonably practicable or, if it is not reasonably practicable to eliminate the risk, the risk is minimised so far as is reasonably practicable. [Cl. 64]

Duty to identify hazards

A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety. [Cl 34]

Managing risks to health and safety

A duty holder, in managing risks to health and safety, must:

(a) eliminate risks to health and safety so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety—minimise those risks so far as is reasonably practicable. [Cl 35]

Provision of information, training and instruction

(1) This clause applies for the purposes of section 19 of the Act to a person conducting a business or undertaking.

(2) The person must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to:

(a) the nature of the work carried out by the worker, and

(b) the nature of the risks associated with the work at the time the information, training or instruction is provided, and

supplier of plant must:

(a) take all reasonable steps to obtain the information required to be provided by the manufacturer under section 23 (4) (a) and (c) of the Act and this Regulation, and

(b) ensure that, when the plant is supplied, the person to whom the plant is supplied is given the information obtained by the supplier under paragraph (a). [Cl. 198]

6 PE RELATED ACTIONS

.1 Act

construct includes assemble, erect, reconstruct, reassemble and re-erect. [Section 2]

demolition includes deconstruction. [Section 2]

design, in relation to plant, a substance or a structure includes:

(a) design of part of the plant, substance or structure, and

(b) redesign or modify a design. [Section 2]

disclose, in relation to information, includes divulge or communicate to any person or publish. [Section 2]

handling includes transport. [Section 2]

import means to bring into the jurisdiction from outside Australia. [Section 2]

supply means

(1) A supply of a thing includes a supply and a resupply of the thing by way of sale, exchange, lease, hire or hire-purchase, whether as principal or agent.

(2) A supply of a thing occurs on the passing of possession of the thing to the person or an agent of the person to be supplied.

(3) A supply of a thing does not include:

(a) the return of possession of a thing to the owner of the thing at the end of a lease or other agreement, or

(b) prescribed supply.

(4) A financier is taken not to supply plant, a substance or a structure for the purposes of this Act if:

(a) the financier has, in the course of the financier’s business as a financier, acquired ownership of, or another right in, the plant, substance or structure on behalf of a customer of the financier, and

(b) the action by the financier, that would be a supply but for this subsection, is taken by the financier for, or on behalf of, that customer.

(5) If subsection (4) applies, the person (other than the financier) who had possession of the plant, substance or structure immediately before the financier’s customer obtained possession of the plant, substance or structure is taken for the purposes of this Act to have supplied the plant, substance or structure to the financier’s customer. [Section 6]

.2 Regulation

Decision on application

(1) Subject to subclause (3), the regulator must grant the registration if satisfied about the matters referred to in subclause (2).

(2) The regulator must be satisfied about the following:

(a) the application has been made in accordance with this Division,

(b) the design is not registered under a corresponding WHS law,

(i) resides in this jurisdiction, or

(ii) resides outside this jurisdiction and circumstances exist that justify the grant of the registration,

(d) if the applicant is a body corporate, the applicant’s registered office:

(i) is located in this jurisdiction, or

(ii) is located outside this jurisdiction and circumstances exist that justify the grant of the registration,

(e) the applicant is able to ensure compliance with any conditions that will apply to the registration.

(3) The regulator must refuse to grant a registration if satisfied that, in making the application, the applicant has:

(a) given information that is false or misleading in a material particular, or

(b) failed to give any material information that should have been given.

(4) If the regulator decides to grant the registration, it must notify the applicant within 14 days after making the decision.

(5) If the regulator does not make a decision within 120 days after receiving the application or the additional information requested under clause 255, the regulator is taken to have refused to grant the registration applied for.

NOTE. A refusal to grant a registration (including under subclause (5)) is a reviewable decision (see clause 676).

[Cl. 256]

genuine research means systematic investigative or experimental activities that are carried out for either acquiring new knowledge (whether or not the knowledge will have a specific practical application) or creating new or improved materials, products, devices, processes or services. [Cl. 5]

maintain, in relation to plant or a structure in Chapter 5, includes repair or servicing of plant or a structure. [Cl. 5]

Plant design to be registered The design of an item of plant specified in Part 1 of Schedule 5 must be registered under this Part.

Note. See section 42 of the Act. [Cl. 243]

[Schedule 5 of Regulation specifies PE designs to be registered i.e.

.1 Pressure equipment, other than pressure piping, and categorised as hazard level A, B, C or D according to the criteria in Section 2.1 of AS 4343:2005 (Pressure equipment—hazard levels).

.2 Gas cylinders covered by Section 1.1 of AS 2030.1:2009 (Gas cylinders—General Requirements).

Exclusions not include: - a heritage boiler]

Items of plant to be registered

(1) An item of plant specified in Part 2 of Schedule 5 must be registered under this Part.

NOTE. See section 42 of the Act.

(2) The purpose of registering an item of plant is to ensure that it is inspected by a competent person and is safe to operate. [Cl. 246]

[Schedule 5 of Regulation specifies for PE items to be registered i.e.

.1 Boilers categorised as hazard level A, B or C according to criteria in Section 2.1 of AS 4343:2005 (Pressure equipment—Hazard levels).

.2 Pressure vessels categorised as hazard level A, B or C according to the criteria in Section 2.1 of AS 4343:2005 (Pressure equipment—Hazard levels), except:

(a) gas cylinders, and

(b) LP Gas fuel vessels for automotive use, and

7 PE IMPORTANT PRINCIPLES

.1 Act

“reasonably practicable” in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. [Section 18]

What is a “dangerous incident”

In this Part, a dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to:

(a) an uncontrolled escape, spillage or leakage of a substance, or

(b) an uncontrolled implosion, explosion or fire, or

(d) an uncontrolled escape of a pressurised substance, or

(e) electric shock, or

(f) the fall or release from a height of any plant, substance or thing, or

(g) the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations, or

(h) the collapse or partial collapse of a structure, or

(i) the collapse or failure of an excavation or of any shoring supporting an excavation, or

(j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel, or

(k) the interruption of the main system of ventilation in an underground excavation or tunnel, or

(l) any other event prescribed by the regulations, but does not include an incident of a prescribed kind.

[Section 37]

.2 Regulation

Hierarchy of control measures

(1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause.

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following:

(a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b) isolating the hazard from any person exposed to it,

(4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

NOTE. A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose. [Cl 36]

8 RECOMMENDATIONS

.1 When drafting or redrafting various documents used by the PE, welding and related industries, the above terms and their interpretation should be adopted where practicable. In the transition period alternative terms should be listed if necessary.

.2 Where improvements could be made (eg see Notes to a few terms) these should be referred to local Regulators or Safe Work Australia.

.3 For further guidance refer to the specific Acts, Regulations and Codes of Practice on various websites or contact the appropriate Regulator or SafeWork Australia.

9 REFERENCES

.1 WHS Act 2011 e.g. NSW (http://www.comlaw.gov.au/Details/C2011A00137)

.2 Model WHS Act and Regulations by SafeWork Australia (http://www.safeworkaustralia.gov.au/sites/swa/model-whs-laws/model-whs-regulations/pages/regulations)

.3 WHS Regulations e.g. NSW http://www.legislation.nsw.gov.au/maintop/view/inforce/subordleg+674+2011+cd+0+N

.4 Codes of Practice e.g. a) NSW http://www.workcover.nsw.gov.au/lawpolicy/codes-of-practice/Pages/default.aspx, or b) SafeWork Australia (http://www.safeworkaustralia.gov.au/sites/swa/model-whs-laws/model-whs-regulations/pages/regulations)

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GN 101 - Summary of WHS Acts & Regulations For PE Industry

.1 Act

.2 Regulations

4 PE AND RELATED PERSONS

.1 Act

.2 Regulations

competent person means:

5 PE PERSONS - DUTIES

.1 Act

.2 Regulation