Understanding OHS Regulations

Regulations are laws made by the Governor in Council (not Parliament) under authority granted by the OHS Act, which authorises regulations to be made on:

• how the Act's policy, principles and standards must be implemented;
• regulating or prohibiting specified activities;
• prescribing fees to be paid for licences and other matters;
• prescribing forms for use with the Act or regulations;
• prescribing penalties for offences against the regulations;
• timeframes within which certain things must be done;
• record keeping requirements;
• prescribing circumstances, actions and standards that must be followed in particular circumstances;
• prescribing exemptions of specified classes of persons from complying with certain regulations.

Regulatory proposals must also follow the Subordinate Legislation Act 1994 (SLA) and the Victorian Guide to Regulation.

The steps in preparing regulations are:

1. Draft regulation and regulatory impact statement (RIS) are prepared.
2. These documents are released for public comment.
3. The regulations are finalised having considered comments received from public.
4. Office of the Chief Parliamentary Counsel certifies that the proposed regulation is suitable for making in accordance with the SLA.
5. Recommendation is made to the Minister that the draft regulation be made.
6. Minister recommends to Executive Council that the regulations be made. If it agrees, the Governor in Council makes the regulation which becomes law.
7. After regulation is made, it, along with other documentation required by SLA, is tabled in both Houses of Parliament.
8. Regulations and summaries of public comment and corresponding responses are sent to the Scrutiny of Acts and Regulations Committee of Parliament (SARC).
9. SARC has the power to scrutinise the regulations to ensure they comply with the SLA. Parliament may disallow the regulations in whole or part if SARC identify problems with them. Disallowed regulations are never part of the law.

WorkSafe is committed to national harmonisation of OHS regulation and to giving effect to national standards in Victorian regulations. A national standard is subjected to an economic impact assessment (EIA) process. It must be certified by the Commonwealth Office of Best Practice Regulation as adequately assessing the costs and benefits of a proposed national standard.

The RIS is the primary document for articulating policy rationale for a regulatory response to an identified problem and must include:

• statement of objectives of proposed regulation;
• statement explaining effect of proposed regulation;
• statement of other practicable means of achieving those objectives, including other regulatory and non-regulatory options;
• assessment of costs and benefits of proposed regulation and of any other practicable means of achieving same objectives;
• reasons why other means are not appropriate; and
• assessment on whether or not the regulatory proposal restricts competition.

The cost/benefit assessment must include economic, environmental and social impacts and its likely administration and compliance costs.

Consistent with the National Competition Principles Agreement, regulations should not restrict competition unless it can be demonstrated that:

• the benefits of the restrictions to the community as a whole outweigh the costs; and
• the objectives of the regulation can only be achieved by restricting competition.

The following principles guide WorkSafe's approach to making regulations:

• Specific mandatory risk controls or prohibition
  A regulation may mandate a specific risk control or prohibit certain activities. This type of regulation is usually appropriate where the risk and means of control are well known, there are no viable alternatives and the risk is significant enough to warrant regulation, eg, prohibition on the use of compressed air in removing asbestos.
• Mandatory performance standard
  A regulation may specify an outcome that must be achieved, but allow the duty holder flexibility on how to achieve the outcome. This may be appropriate where the outcome can be clearly defined, measured, evaluated and verified and the risk is significant enough to warrant regulation, eg, maximum exposure standards for hazardous substances.
• Mandatory process
  A regulation may specify that a process must be followed in order to achieve a safety outcome. This may be appropriate when it's unlikely that a duty holder will arrive at appropriate risk controls without following the prescribed process, eg, working through a hierarchy of controls.
• Permissions
  WorkSafe makes regulations to establish a licensing or other permission scheme if:
  • the proposed scheme forms part of a national agreement that is designed to assure national consistency of permission arrangements, eg, national standards; or
  • there is a clear, evidence-based case that, given the severity of the risk, there is a need to ensure that a certain standard is achieved prior to an activity being undertaken or undertaking being conducted; and
  • there is a need to ensure that a sanction is available to prevent a duty holder engaging in an activity (through suspension or revocation) in the event of serious non-compliance.
• Record keeping
  Regulatory proposals requiring recording or transmission of information may be appropriate in order to ensure the health and safety of persons or to facilitate the discharge of duties by others, eg, where there's a demonstrated need for minimum data transfer to assist in the control of OHS risks such as documentation of areas likely to contain asbestos).
• Making the Act work
  Several areas within the Act set out general rules or procedures and leave matters of detail to be prescribed in regulations, eg, prescribing default issue resolution procedures and providing for the introduction of an infringement notice scheme.