OUTCOMES OF WHS MINISTERS’ MEETING – ENGINEERED STONE/SILICA

A meeting of WHS Ministers was held on 22 March 2024.

The Ministers’ communique, which was released following the meeting can be downloaded here.

Following is a short summary of key outcomes and anticipated next steps for information.

The main items on the agenda were:

1. Proposed amendments to the Model WHS laws to give effect to the prohibition on the use of engineered stone (including a definition);

2. Potential transitional arrangements for contracts entered into prior to the WHS Minister’s previous meeting;

3. The development of a model national engineered stone product exemption process and framework;

4. The development of a model national framework for working with legacy engineered stone; and

5. Enhanced Regulation of crystalline silica processes for all materials, including engineered stone.

A summary of key outcomes from the meeting (and our understanding as to what they mean) is as follows:

1. Proposed amendments to the Model WHS laws to give effect to the prohibition on the use of engineered stone

Today WHS Ministers agreed:

• To prohibit the use, supply and manufacture of all engineered stone from 1 July 2024 under the model WHS laws; and
• A definition of engineered stone, reflecting what was agreed at the December 2023 Meeting with the exception that it is now limited to engineered stone benchtops, panels and slabs.

2. Transitional arrangements for contracts entered into prior to the December 2023 WHS Minister’s meeting

• The majority of Ministers agreed that there may be transitional arrangements put in place for contracts entered into prior to 31^st December 2023.
  • This means that any contracts entered into before 31^st December 2023 for the use, supply or manufacture of engineered stone may be exempted from the 1^st July prohibition date and may have until 31^st December 2024 to complete the work. Thereafter, the prohibition would take effect regardless of what date the contract was entered into.
• For contracts entered into after 31^st Decemberr 2023, the prohibition will commence on 1 July 2024.
• It is crucial to remember that changes giving effect to the above transition arrangements need to be made by State and Territory Governments, and there are no guarantees that each State and Territory will adopt the exact same approach in their respective jurisdictions.
• As is the normal process for safety law, each State and Territory will need to amend their own WHS laws to reflect changes to the Model laws, which may differ in key detail from those made to the Model laws.
• While we hope that the majority of jurisdictions will adopt a consistent approach, some jurisdictions may differ insofar as the duration of any transition, or the need for any transition period at all.
• Therefore, you should await confirmation from your local State and Territory Government as to the exact details and timings of any transition period.

3. Development of a model national engineered stone product exemption process and framework

• Ministers agreed to a model engineered stone product exemption process where there is compelling evidence that a product can be worked with safely.
• The process will utilise the existing National Exemption Framework and will include common criteria for engineered stone product exemptions and a mutual recognition scheme.
• Details of this Framework are to be finalised by Safe Work Australia.

4. Development of a model national framework for working with legacy engineered stone

• Ministers agreed to implement changes to the Model WHS laws to establish a national framework requiring PCBUs, who plan to undertake permitted work with legacy engineered stone, to provide prescribed information to the relevant WHS Regulator.
• Notifications will need to include information about how the PCBU will meet the requirements when undertaking permitted work involving engineered stone.
• PCBUs may be required to re-notify (e.g. annually and/or when information changes).
• Notifications will need to include information about the frequency and type of work; relevant training provided; and whether appropriate controls have been put in place.
• Details will be finalised by Safe Work Australia.

5. Enhanced Regulation of crystalline silica processes for all materials, including engineered stone

• Ministers agreed to policy parameters for enhanced regulations for all crystalline silica processes.
• These included:
  • Definitions of crystalline silica substance and crystalline silica process;
  • Definition of a high-risk crystalline silica process;
  • Training requirements;
  • Prescribed controls;
  • Air and health monitoring (where prescribed); and
  • The requirement to prepare a documented risk assessment and/or Silica Risk Control Plan.
• Details will be finalised by Safe Work Australia.

Next steps and implementation

Any amendments agreed by the Ministers today only relate to agreed changes to the Model WHS laws (which has limited jurisdiction).

The changes will not have any effect unless implemented at the State/Territory level.

It is also worthwhile noting that Ministers agreed that a review of the prohibition, and any associated changes, should take place within 12 months to ensure it is working effectively and to identify and assess any unintended consequences.

We will provide further updates as more detail around the amendments is confirmed.