Work Health and Safety (Labelling Hazardous Chemicals) Exemption 2016

The Work Health and Safety (Labelling Hazardous Chemicals) Exemption 2016 was a Commonwealth legislative instrument made by Comcare under regulation 684 of the Work Health and Safety Regulations 2011. It granted a temporary exemption from compliance with specific hazardous chemical labelling provisions for a limited class of chemicals and containers linked to events before 1 January 2017.

This was not a general rewrite of hazardous chemical labelling law. It was a transition measure tied to labels used under the National Code of Practice for the Labelling of Workplace Substances [NOHSC: 2012 (1994)]. Its practical effect was to allow certain pre-2017 chemicals and containers to avoid immediate relabelling under the named WHS Regulations during the exemption period.

The instrument is no longer in force. It commenced after registration in December 2016 and expired on 31 December 2017. For most businesses today, it matters only when looking back at legacy stock, historical compliance decisions, inherited warehouse inventory, old audits or incident investigations involving pre-2017 labels.

The instrument says it applies to two categories of person. First, it applies to a supplier of a hazardous chemical. Second, it applies to a person conducting a business or undertaking, usually called a PCBU. The instrument also says that terms used in it have the same meaning as in the Work Health and Safety Act 2011 (Cth) and the Work Health and Safety Regulations 2011 (Cth).

That means the exemption was aimed at both sides of the chain. It covered businesses supplying hazardous chemicals and businesses handling those chemicals at a workplace. In practical terms, a supplier might have looked at whether older imported or manufactured stock qualified. A PCBU might have looked at whether chemicals already on site, or containers used after transfer or decanting, fell within the listed scenarios.

This page should be read in the context of the Commonwealth WHS system. Businesses outside that system should be careful not to assume that a Comcare instrument automatically governed their position. If you are reviewing an old compliance issue, the first step is to confirm which WHS regime applied to the workplace at the time.

The instrument granted an exemption from compliance with regulations 338, 341(1), 342(1) and 342(2) of the WHS Regulations. The important point is that the exemption only operated in the exact circumstances described in the instrument. It did not say that all hazardous chemical labelling duties stopped applying across the board.

For regulation 338, the exemption applied in relation to a hazardous chemical manufactured or imported before 1 January 2017 if it was labelled in accordance with the National Code of Practice for the Labelling of Workplace Substances [NOHSC: 2012 (1994)].

For regulation 341(1), the exemption applied to a hazardous chemical at a workplace if the chemical was supplied before 1 January 2017 and, at the time it was supplied, was labelled in accordance with that NOHSC code as in force at that time.

For regulation 342(1), the exemption applied to a hazardous chemical if the chemical was manufactured, or transferred or decanted from its original container at the workplace, before 1 January 2017 and, at the time of that manufacture, transfer or decanting, was labelled in accordance with the NOHSC code as in force at that time.

For regulation 342(2), the exemption applied to a container if the container was supplied before 1 January 2017 and, at the time it was supplied, was labelled in accordance with the NOHSC code as in force at that time.

These details matter because the exemption depended on two things working together. First, the relevant event had to happen before 1 January 2017. Second, the item had to be labelled under the older NOHSC code at the relevant time. If either element was missing, the exemption did not apply.

Businesses often make mistakes with transition instruments by reading them too broadly. This exemption was not triggered just because a chemical was old. It was triggered by specific factual situations set out in the instrument.

One trigger was manufacture before 1 January 2017. Another was import before that date. Another was supply before that date. For workplace handling, the instrument also specifically referred to chemicals that were manufactured, transferred or decanted from their original container at the workplace before 1 January 2017. It separately referred to containers supplied before that date.

In each case, the label standard also mattered. The instrument repeatedly ties the exemption to labels that complied with the National Code of Practice for the Labelling of Workplace Substances [NOHSC: 2012 (1994)] as in force at the relevant time. So a business could not simply point to the age of the stock. It needed to connect the stock or container to the correct date-based event and the correct historical label standard.

If you are reviewing old records, it helps to separate the analysis into clear questions. What happened to the chemical or container? When did it happen? Was the item labelled under the NOHSC code at that time? Which of the named regulations was relevant? That approach is more reliable than treating the exemption as a blanket grandfathering rule.

The instrument states that there were no conditions placed on the grant of the exemptions. Even so, a business relying on the exemption would still have needed to be able to show that the factual preconditions were met. In practice, that means records mattered.

For a supplier, useful records might have included manufacturing records, import records, batch information, stock control records, supply records and copies or photographs of labels used at the relevant time. For a PCBU, useful records might have included site procedures, container labelling practices, stock issue records, decanting records, internal registers and any retained examples of labels used on site.

The official text does not prescribe a special evidence standard, but the exemption was built around objective facts. If a business later faced a regulator query, internal audit or due diligence review, it would have needed enough material to support the timing of the relevant event and the label standard used at that time.

That is especially important for businesses that acquired a site, inherited stock or took over another operator's records. Legacy inventory can create a false sense of safety if nobody can prove when the chemical was supplied or how it was labelled. Historical compliance often turns on paperwork and practical site records, not just assumptions about how old the stock looks.

The instrument exempted compliance with specific labelling provisions only. It did not say that all other work health and safety obligations disappeared. Businesses should therefore read it as a narrow carve-out, not as a complete answer to hazardous chemical compliance.

For historical reviews, the practical obligation is to be precise. Work out whether the business was a supplier or a PCBU, identify which exempted regulation was relevant, confirm the pre-1 January 2017 trigger event, and verify that the item was labelled under the NOHSC code at the relevant time. If those elements cannot be shown, the exemption should not be assumed.

For current operations, the practical obligation is different. Because the instrument has expired, businesses should not use it to justify present-day labels, supply decisions or workplace handling practices. Current compliance needs to be checked against the law and guidance now in force.

This distinction between historical and current analysis is important. A business may be able to explain why a label was treated as acceptable during the exemption period, but that does not mean the same label remains acceptable today. If you are making a current operational decision, this instrument is background only.

The instrument is dated 20 December 2016 and was registered on 22 December 2016. It commenced on the day after registration on the Federal Register of Legislative Instruments. The instrument also states that it expires on 31 December 2017, unless the expiration date is amended or the exemptions are cancelled under regulation 697 of the WHS Regulations.

The Federal Register entry shows the instrument as no longer in force. That status is central to how businesses should use this page. It can help explain a past compliance position during the transition period around 1 January 2017, but it cannot be treated as a current exemption.

If you are dealing with present-day hazardous chemical labelling, the safe approach is to check the current WHS legislation and any current regulator guidance that applies to your operations. If you are dealing with a historical matter, the dates in this instrument help define the period in which the exemption may have been relevant.

For most businesses, this instrument will only matter if there is a historical question to answer. Common examples include an old warehouse stocktake, a regulator query about legacy labels, an acquisition due diligence review, an internal compliance clean-up, or an incident investigation involving older chemical containers.

If that is your situation, read the instrument narrowly. Check whether the business was within the Commonwealth WHS system. Then identify the exact scenario described in the instrument and test the facts against it. Do not assume that any pre-2017 label was enough. The instrument specifically refers to labels in accordance with the National Code of Practice for the Labelling of Workplace Substances [NOHSC: 2012 (1994)] as in force at the relevant time.

If your question is about current operations, this instrument is not the right endpoint. It has ceased, and it was always limited to specified regulations and specified historical circumstances. Current labelling, supply and workplace handling decisions should be checked under the current legal framework that applies to your business.

A common question is whether this instrument can still be used to justify an older label that remains on stock today. The answer is no. The instrument expired on 31 December 2017, so it is not a current exemption. Its role now is mainly to help explain a past compliance position during the period when it operated.

Another common question is whether the exemption applied automatically to all stock made or supplied before 1 January 2017. Again, no. The instrument required both the relevant pre-2017 event and labelling in accordance with the NOHSC code at the relevant time. Businesses reviewing old records should therefore look for evidence of both timing and label standard, not just age.

If you are unsure whether a historical issue falls within this instrument, start with the basics. Identify the person involved, identify the relevant event, confirm the date, and locate any label records. That will usually tell you quickly whether the exemption is even potentially relevant.

This page is based on the Federal Register of Legislation entry for the Work Health and Safety (Labelling Hazardous Chemicals) Exemption 2016, legislative instrument F2016L02023. The official text identifies the enabling power, the persons covered, the exempted regulations, the pre-1 January 2017 trigger points, the absence of conditions, and the commencement and expiry rules.

The instrument is no longer in force. This page is general information and should be used carefully, especially where a business is trying to assess current compliance rather than a historical position.