Work Health and Safety (Labelling Hazardous Chemicals) Exemption 2017

The Work Health and Safety (Labelling Hazardous Chemicals) Exemption 2017 was a Commonwealth legislative instrument made by Comcare under regulation 684 of the Work Health and Safety Regulations 2011. It granted an exemption from compliance with four specified WHS labelling provisions: regulations 338, 341(1), 342(1) and 342(2).

The instrument was transitional. It dealt with hazardous chemicals and containers that had already been labelled under the older National Code of Practice for the Labelling of Workplace Substances [NOHSC:2012 (1994)]. Instead of requiring immediate compliance with those four WHS labelling provisions in every case, it carved out limited situations where those provisions did not apply.

For most businesses today, this is not a live compliance tool. It is mainly relevant if you are reviewing what was lawful in late 2017 or 2018, such as during an audit, incident review, insurer query, due diligence exercise or post-acquisition review of old chemical stock and records.

The instrument says the exemption applied to two categories of person.

First, a supplier of a hazardous chemical.

Second, a person conducting a business or undertaking, usually called a PCBU.

That is broader than just manufacturers. A supplier could include a business supplying hazardous chemicals into the market or into workplaces. A PCBU could include a workplace operator, contractor, manufacturer, warehouse operator, maintenance business or other business handling hazardous chemicals at work.

The practical question is not just your industry. It is your role in relation to the chemical or container. The exemption may have been relevant if your business imported chemicals, manufactured them, supplied them, or transferred or decanted them at a workplace during the dates set out in the instrument.

If your business did not deal with hazardous chemicals, or only dealt with chemicals already labelled under the current WHS system, this instrument was unlikely to have mattered in practice.

The instrument granted an exemption from compliance with regulations 338, 341(1), 342(1) and 342(2) of the WHS Regulations. The instrument does not reproduce the full wording of those regulations, but it does explain enough to understand the practical categories they deal with.

Regulation 338 is treated in the instrument as a hazardous chemical labelling requirement that would otherwise apply to certain hazardous chemicals. The exemption says regulation 338 does not apply 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.

Regulation 341(1) is described in the instrument as a labelling requirement on a PCBU at a workplace. The exemption says that requirement does not apply to a hazardous chemical if the chemical was supplied before 31 December 2017 and, at the time it was supplied, it was labelled in accordance with the National Code.

Regulation 342(1) is also described as a labelling requirement on a PCBU at a workplace. The exemption says it does not apply to a hazardous chemical if the chemical was manufactured, or transferred or decanted from its original container at the workplace, before 31 December 2017 and, at that time, it was labelled in accordance with the National Code.

Regulation 342(2) is again described as a workplace labelling requirement on a PCBU, but this time directed to a container. The exemption says it does not apply to a container if the container was supplied before 31 December 2017 and, at the time it was supplied, it was labelled in accordance with the National Code.

So, in plain terms, the instrument split the exemption into four separate scenarios. You had to match your facts to the correct regulation and scenario. It was not enough to say the label was old or that the stock was old.

The date thresholds are central to this instrument. There are two different cut-off dates, and they apply to different scenarios.

Scenario 1: regulation 338
This applied to a hazardous chemical manufactured or imported prior to 1 January 2017, provided it was labelled in accordance with the National Code of Practice for the Labelling of Workplace Substances.

Scenario 2: regulation 341(1)
This applied to a hazardous chemical at a workplace if it was supplied before 31 December 2017 and, at the time of supply, it was labelled in accordance with the National Code.

Scenario 3: regulation 342(1)
This applied to a hazardous chemical at a workplace if it was manufactured, or transferred or decanted from its original container at the workplace, before 31 December 2017 and, at that time, it was labelled in accordance with the National Code.

Scenario 4: regulation 342(2)
This applied to a container if it was supplied before 31 December 2017 and, at the time of supply, it was labelled in accordance with the National Code.

The practical point is that each scenario has both a timing element and a label-status element. A business could not rely on the exemption unless both were satisfied. For example, a chemical supplied before 31 December 2017 would not automatically qualify if the label was not in accordance with the National Code at the time of supply. Likewise, a compliant older label would not be enough if the relevant manufacture, import, supply, transfer or decanting happened outside the stated dates.

Although this instrument removed compliance with specified labelling provisions in limited cases, it did not create a free-standing right to use any old label. A business relying on it would have needed to identify the exact activity involved and prove the timing and label status.

In practice, that usually meant checking records such as supplier invoices, import documents, manufacturing records, stock registers, batch information, warehouse logs, decanting procedures and workplace container records. If the business could not show when the chemical or container entered the relevant stage, or could not show that the label complied with the National Code at that time, reliance on the exemption would have been risky.

The instrument also states that no conditions were placed on the grant of the exemption. That is useful because it means there were no extra conditions in the instrument itself, such as reporting obligations, notices or undertakings. But the exemption was still narrow. It only switched off the listed regulations in the listed circumstances. It did not say that all other WHS duties disappeared.

For a business reviewing old compliance, the safest reading is to treat this as a targeted historical carve-out, not a broad suspension of hazardous chemical safety obligations.

If you are trying to work out whether this exemption applied to your business in the past, focus on evidence that answers three questions.

First, what happened? Was the chemical imported, manufactured, supplied, transferred, decanted, or was the issue about a supplied container?

Second, when did it happen? The instrument uses specific dates, so the timing of the relevant event matters.

Third, what label standard applied at that time? The exemption depends on the chemical or container being labelled in accordance with the National Code of Practice for the Labelling of Workplace Substances as in force at the relevant time.

Useful records may include purchase orders, invoices, import declarations, manufacturing logs, stock movement records, warehouse records, photographs of labels, supplier specifications, safety documentation and internal procedures for transfer or decanting. If records are incomplete, it may be difficult to confidently conclude that the exemption applied.

The instrument was dated 18 December 2017 and registered on 22 December 2017. It commenced on the day after registration, which means 23 December 2017. The instrument states that it expired on 31 December 2018 unless the expiration date was amended or the exemptions were cancelled under regulation 697 of the WHS Regulations.

The register records the instrument as no longer in force. That means businesses should treat it as historical only. It may still matter when analysing whether conduct during the period from late December 2017 to 31 December 2018 complied with the law, but it should not be used as a basis for current labelling decisions.

For current operations, this instrument is not something to rely on. If your business still stores or uses hazardous chemicals, current labelling obligations need to be checked under the current WHS framework.

Where this instrument still has practical value is in historical analysis. It may explain why an older label was lawfully used during the exemption period. That can matter if you are responding to a regulator, insurer, purchaser, auditor or internal investigation about events from 2017 or 2018.

Businesses should be careful not to overread the instrument. It did not say all older labels were acceptable. It only exempted compliance with specified regulations in tightly defined situations. If your records do not clearly show the relevant dates and label standard, you may need further legal or WHS advice before drawing conclusions about past compliance.

Businesses often ask whether this instrument created a broad grace period for all hazardous chemical labels. It did not. The exemption was tied to specific regulations, specific activities and specific dates.

Another common question is whether the exemption had extra conditions. The instrument says there were none. But that does not mean there were no other WHS obligations outside the listed labelling provisions.

A final common issue is whether the instrument can still be used for current stock. It cannot. Its role now is mainly to help interpret historical compliance during the period it was in force.