Exemption under WHS legislation
General information
The Work Health and Safety Regulation (WHS Regulation) has a general power that provides for SafeWork NSW (the Regulator) to grant an exemption from compliance with any of the WHS Regulations.
Issuing an exemption is based on the understanding that the alternative agreed course of action will provide at least an equivalent level of health and safety to that achieved by complying with the WHS Regulation.
Granting an exemption under the Work Health and Safety Regulation is viewed by the Regulator as an exception rather than accepted business practice. The onus is on the mine operator or PCBU to demonstrate why they are unable to comply with a provision of the Regulations, or how they believe they can achieve an improved (higher) level of safety over that which can be achieved by complying with the legislation.
What the Regulator considers in deciding to grant or not grant an exemption
In deciding whether to grant or not to grant an exemption under section 684 the regulator will consider all relevant matters, including the following:
- whether granting the exemption will result in a standard of health and safety at the relevant workplace, or in relation to the relevant undertaking, that is at least equivalent to the standard that would be achieved by compliance with the relevant provision or provisions
- whether at least an equivalent standard of health and safety can be achieved by granting a conditional exemption
- whether exceptional circumstances justify the grant of the exemption
- if the proposed exemption relates to a particular thing—whether the Regulator is satisfied that the risk associated with the thing is not significant if the exemption is granted
- whether the applicant has carried out consultation in relation to the proposed exemption in accordance with Divisions 1 and 2 of Part 5 of the Work Health and Safety Act.
Class exemptions
These are listed on the Resources Regulator website – gazettals webpages.
Innovation policy
The purpose of the Innovation policy (PDF, 317.71 KB) is to make clear how we will ensure that the regulatory framework for work health and safety at mines and petroleum sites:
- supports continuous improvement of health and safety through design, technology, product and system innovation and development
- does not directly, or indirectly, inhibit investment in the development and adoption of improved technologies and products.
To ensure there are clear pathways for the consideration of innovations currently prevented by legislation or technical standards the policy provides for the submission of an innovation policy application through the Resources Regulator portal.
Exemption applications
Any person or class of persons may apply to SafeWork NSW in writing for a general exemption (Clause 684 (1) of the WHS Regulation).
To apply for an exemption you will need to complete and submit an online exemption application form through the Resources Regulator portal.
Individuals can set up a user account to access the portal to make applications on behalf of their organisation. Email mca@regional.nsw.gov.au if your organisation does not currently have an authorised representative with a user account.
Further information