Work Health and Safety Exemption (Construction induction training - ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) 2019

This was a Commonwealth legislative instrument made under the Work Health and Safety Regulations 2011. Comcare stated that it was acting under regulation 684 when it granted the exemption.

The instrument exempted ASC AWD Shipbuilder Pty Ltd and certain overseas technical specialists from complying with the usual general construction induction training requirements for a very specific project setting. In practical terms, it allowed those specialists to carry out defined construction work without first completing the standard construction induction training and without holding the usual evidence of that training, but only if ASC AWD met the conditions written into the instrument.

The exemption was not open-ended. It was tied to a named applicant, a defined class of workers, a particular shipyard in South Australia, and a particular category of work connected with Air Warfare Destroyer ships under construction. It also replaced and repealed an earlier 2014 exemption instrument dealing with the same subject.

The instrument applied to two groups only. First, ASC AWD itself. Second, the technical specialists described in the instrument.

Those technical specialists were not just any overseas workers. They had to be persons recruited from overseas by ASC AWD who carried out construction work involving technical support for the installation, set-to-work, integration and testing of platform and combat system hardware equipment fitted to Air Warfare Destroyer ships under construction at ASC AWD's shipyard at Osborne, South Australia.

That means the exemption was confined by employer, recruitment source, work type, project and location. It did not extend to local workers generally, to other employers, to other shipyards, or to unrelated construction projects. It also did not create a general rule for defence projects or for overseas experts as a class.

The instrument expressly exempted compliance with regulation 316, subregulations 317(1) and 317(2), and subregulation 326(1) of the Work Health and Safety Regulations 2011.

As described in the instrument, the effect was that ASC AWD was not required to ensure that general construction induction training was provided to the technical specialists before they carried out construction work under regulation 316. ASC AWD could direct or allow those specialists to undertake construction work even though they had not successfully completed that training under subregulation 317(1). ASC AWD was also not required to ensure that the specialists held a construction induction training card or a general construction induction training certification issued within 60 days before carrying out construction work under subregulation 317(2).

For the technical specialists themselves, the exemption also meant they did not have to keep available for inspection the usual evidence of construction induction training under subregulation 326(1).

The instrument said the exemption applied in relation to general construction induction training and evidence of that training in the form of a construction induction training card and, where a card had not yet been issued, the general construction induction training certification.

The exemption did not operate as a blanket waiver. It only applied in the circumstances described in the instrument and only subject to the listed conditions. The practical trigger points were straightforward.

First, the worker had to be a technical specialist within the instrument's definition. Second, the work had to be the defined construction work connected with technical support for Air Warfare Destroyer ships under construction at Osborne. Third, ASC AWD had to provide its own work health and safety induction training before the specialist carried out construction work. Fourth, ASC AWD had to satisfy the content, delivery, interpreter, assessment, recordkeeping and site pass conditions.

If those conditions were not met, a business should not assume the exemption could be relied on. The instrument itself states that the exemptions were granted subject to the conditions set out in paragraph 7.

The instrument replaced the usual White Card pathway with a tailored ASC safety induction training program. That alternative pathway came with detailed conditions.

ASC AWD had to provide work health and safety induction training to the technical specialists before they carried out construction work. The training had to be delivered by trainers holding at least a Certificate IV in training and assessment, or an equivalent qualification.

The training also had to include specified subject areas. These were the roles, responsibilities and rights of duty-holders under the WHS Act and WHS Regulations, health and safety consultation and reporting processes, the principles of risk management, common construction hazards and control measures, and safety information and documentation.

In addition, the training had to include a WHS tour of the workplace at ASC AWD's shipyard at Osborne. It also had to cater for technical specialists who were not fully conversant in English by providing a suitable interpreter during training. On completion of the training, the technical specialists had to achieve a mark of at least 80 per cent in a written examination.

The instrument also imposed administrative controls. ASC AWD had to maintain documents of the course content. It had to keep a record for each technical specialist showing successful completion of the training until the completion of the Air Warfare Destroyer Program. ASC AWD could only issue a site security pass to technical specialists after satisfactory completion of the induction training.

If you are reviewing historical compliance on this project, the key checks are documentary as well as operational. The instrument required ASC AWD to maintain documents of course content and to keep individual completion records for each technical specialist until completion of the Air Warfare Destroyer Program.

It also linked site access to training completion. A site security pass could only be issued after satisfactory completion of the ASC safety induction training. That means site access records, induction records and training materials would all be relevant when checking whether the exemption conditions were followed in practice.

For businesses outside this instrument, the practical lesson is not that alternative arrangements are generally available. It is that any exemption must be read closely against its own terms. You should check the named persons, the exact regulations exempted, the conditions, the location, the work covered and the expiry date before treating any worker as exempt from ordinary construction induction requirements.

The instrument was registered in June 2019 and commenced on the day after registration. The Register entry shows it was in force from 20 June 2019 to 29 September 2020, and the instrument itself states that it expired on 30 September 2020, or upon completion of the Air Warfare Destroyer program, whichever was earlier, unless the expiration date was amended or the exemptions were cancelled under regulation 697 of the WHS Regulations.

It is now ceased and no longer in force. Businesses should not rely on it for current operations. If you are dealing with present-day construction work, you need to check the current WHS rules and whether any current exemption instrument actually applies to your business and workers.

For most businesses, this instrument is mainly relevant as a historical example of a tightly confined exemption. It does not suggest that White Card obligations can usually be replaced by an internal induction. The exemption was granted on the written application of ASC AWD and was framed around a very specific operational setting.

If you are checking whether a worker was lawfully allowed on site without standard construction induction evidence during the relevant period, read the instrument against the facts carefully. Ask whether the employer was ASC AWD, whether the worker was recruited from overseas by ASC AWD, whether the work matched the defined technical support activities, whether it occurred at Osborne, whether the ASC safety induction training was completed before work started, and whether the records required by the instrument were kept.

If any of those points do not line up, the safer reading is that the ordinary construction induction requirements remained in place. For current projects, do not assume a past exemption, or an exemption granted to another entity, can be carried across to your business.

This page is based on the Federal Register of Legislation entry and the text of the Work Health and Safety Exemption (Construction induction training - ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) 2019. The official source records the instrument as no longer in force and identifies it as an instrument made under the Work Health and Safety Regulations 2011.