Applying for an exemption from compliance with Victoria's health and safety regulations
Guidance about how WorkSafe grants exemptions from health and safety regulations.
Regulations with exemption provisions
WorkSafe administers a range of regulations in its role as the statutory authority responsible for promoting and enforcing health and safety in Victorian workplaces. Those regulations are the:
- Occupational Health and Safety Regulations 2017
- Equipment (Public Safety) Regulations 2017
- Dangerous Goods (Explosives) Regulations 2011
- Dangerous Goods (HCDG) Regulations 2016
- Dangerous Goods (Storage and Handling) Regulations 2012
- Dangerous Goods (Transport by Road or Rail) Regulations 2018
This guidance provides information about applying for an exemption under the Occupational Health and Safety Regulations 2017 (OHS Regulations).
The guidance also summarises:
- the exemption provisions of the other listed regulations
- the provisions for inquiry and review of exemption decisions for those regulations
Exemptions from complying with the OHS Regulations
The OHS Regulations allow WorkSafe to exempt any person or any class of person from complying with certain duties. In other words, WorkSafe may excuse any activity, process, substance or thing, or any class of activity, process, substance or thing from:
- any requirement of certain duties
- prohibition in certain duties
Applicant's legislative requirements
An application for an exemption must:
- be in writing and signed and dated by or for the applicant
- state the applicant's name and address
- state the name of the person or description of the class of person the application relates to
- identify the regulation requirement from which the applicant wishes to be exempt
- explain why the exemption is sought
- if applicable, identify the workplace for which the exemption is sought
- if the applicant is an employer, set out the consultation that has taken place with employees
- provide sufficient information for WorkSafe to decide whether it can grant the exemption
An application can be made for more than one person, provision, activity, process, substance or thing. WorkSafe can ask an applicant for any additional information it considers necessary to properly consider an application. WorkSafe can make as many requests for additional information as it considers necessary.
Form to request exemption
When WorkSafe may grant an exemption
WorkSafe can grant an exemption after receiving an application. It can also grant an exemption on its own initiative in relation to high-risk work (HRW) for a class of employer.
WorkSafe can grant an exemption if it is satisfied that:
- granting the exemption will result in at least an equivalent level of health and safety as if the relevant provision had been followed
- the provision for which the exemption is sought is administrative and would be inappropriate or unnecessary in the circumstances
WorkSafe can decide to grant only part of an application for an exemption. It can also grant an exemption so it applies in a more limited way than sought in the application.
Conditions
WorkSafe can place any condition it considers appropriate on an exemption. Conditions include but are not limited to:
- risk control measures to be used or implemented
- monitoring, including atmospheric monitoring and health monitoring to anyone at the workplace
- recording or keeping information
- providing information, instruction, training and supervision to a person or class of persons
- using or implementing systems of work or processes
- reporting information to WorkSafe, including health and safety information and the results of any monitoring, health monitoring or testing
- limiting the quantity to be used
- limiting who may carry out the activities
- limiting the activities that may be carried out
- imposing time limits on any actions that must take place
Exemptions relating to major hazard facilities
If WorkSafe intends to refuse to grant an exemption for provisions of the OHS Regulations relating to an MHF, it must:
- first invite the applicant to make a written submission
- allow 14 days for the submission
- consider any submission
Exemptions relating to high-risk work
WorkSafe may grant an exemption to HRW if it is satisfied:
- a person who does not hold a relevant HRW licence can perform the work described in the application
- the person who does not hold a relevant HRW licence can perform the work described in the application as safely as a person who does hold a HRW licence
- those requirements can be met by imposing certain conditions and those conditions are observed
Applicants may have to satisfy WorkSafe of their ability in relation to any skill or knowledge relevant to the HRW licence they are applying for.
WorkSafe may provide an exemption for all or part of the work normally done by a person with a relevant HRW licence.
Form and content of exemptions
An exemption must be in writing and must specify:
- in the case of an exemption relating to a HRW licence -
- the name of the employer or class of employer
- the work that may be performed by employees who do not hold the relevant HRW licence
- in any other case, who or what is exempt
- the workplace where the exemption applies, if applicable
- the provision of the OHS Regulations the exemption relates to
- when the exemption starts
- any conditions to the exemption
WorkSafe must provide a copy of an exemption to an individual applicant within 14 days after granting the exemption.
WorkSafe must also publish notice of an exemption in the Government Gazette. An exemption takes effect on the day it is published or any later day specified in the notice. As soon as reasonably possible after publication of an exemption in the Government Gazette, WorkSafe must publish a similar notice in a newspaper circulating generally throughout Victoria.
Notice of refusal
If WorkSafe refuses to grant an exemption, it must notify the applicant of the reasons for the refusal within 14 days of its decision.
Variation or revocation of an exemption
Where an exemption applies to a class of person, process, substance, activity or thing, WorkSafe may vary or revoke an exemption at any time. It does this by placing a notice in the Government Gazette setting out the variation, or stating that the exemption has been revoked. The revocation or variation takes effect on the day the notice is published in the Government Gazette or on a later day as specified in the notice.
In the case of any other exemption, WorkSafe must give written notice to the person the exemption applies to within 14 days of deciding to vary or revoke the exemption.
Further information
Applicants can contact WorkSafe Victoria's Licensing Branch on 1300 852 562 for further information.
A person who suspects a duty who holds an exemption is not maintaining equivalent levels of health and safety can contact the WorkSafe Advisory Service or the WorkSafe Emergency Response Service on 13 23 60.
WorkSafe Advisory
WorkSafe's advisory service is available between 7:30am and 6:30pm Monday to Friday. If you need more support, you can also contact WorkSafe using the Translating and Interpreting Service (TIS National) or the National Relay Service.
Summary of exemption provisions
The following information explains the process and requirements for applying for exemptions under regulations that WorkSafe administers.
- Dangerous Goods (Explosives) Regulations 2011, regulations 14, 15 and 232
Who can initiate exemption?
What must be achieved for exemption?
WorkSafe must be satisfied that:
Fee
$300
- any person, except in relation to a requirement that a person hold a licence
- WorkSafe on its own initiative
- the method proposed by the applicant is capable, in itself or with conditions, of achieving a level of health and safety of persons and safety of property that is at least equivalent to the level achieved by complying with the relevant regulations
- the provision is an administrative requirement not directly associated with a risk control measure and is inappropriate or unnecessary in the circumstances
- Dangerous Goods (Storage and Handling) Regulations 2012, regulation 9
Who can initiate exemption?
What must be achieved for exemption?
If the person operates an MHF that is licensed under the OHS Regulations, WorkSafe must be satisfied that in operating the MHF, the person is capable of achieving a level of health and safety of persons and safety of property that is at least equivalent to the level achieved by complying with the regulations.
In the case of any other exemption in relation to a person or class of person, WorkSafe must be satisfied that:
In the case of an exemption in relation to any premises, activity or other thing or class of premises, WorkSafe must be satisfied that a level of health and safety of persons and safety of property can be achieved that is at least equivalent to the level achieved by complying with the relevant regulations.
Fee
None
- any person, premises or activity or other thing or a class of person or premises or activity or other thing
- the person or class of person is capable of achieving a level of health and safety of persons and safety of property that is at least equivalent to the level achieved by complying with the relevant regulations
- the provision is an administrative requirement that is not directly associated with a risk control measure, and is inappropriate or unnecessary in the circumstances
- Dangerous Goods (Transport by Road or Rail) Regulations 2018, regulation 169
Who can initiate exemption?
What must be achieved for exemption?
Compliance is not reasonably practicable for the person or class of persons, and the exemption:
Fee
None
- a person connected with Victoria
- a representative of a class of persons connect with Victoria
- WorkSafe on its own initiative
- would not be likely to create a greater risk of death or injury to a person or harm to the environment
- would not cause unnecessary administrative or enforcement difficulties, particularly in relation to maintaining national uniformity of road and rail transport laws
- Dangerous Goods (HCDG) Regulations 2016, regulations 25 and 26
Who can initiate exemption?
What must be achieved for exemption?
WorkSafe must be satisfied that the method proposed can achieve a level of security of HCDG that is at least equivalent to the level achieved by complying with the regulations.
Fee
None
- any person, except a requirement to hold a high-consequence dangerous goods (HCDG) licence
- WorkSafe on its own motion
- Equipment (Public Safety) Regulations 2017, regulation 7
Who can initiate exemption?
What must be achieved for exemption?
If the exemption is for a specific prescribed equipment or class of prescribed equipment, WorkSafe must be satisfied that the risk associated with the prescribed equipment is not significant.
If the exemption is for a person or class of persons, WorkSafe must be satisfied that the person can demonstrate the same level of health and safety in relation to the prescribed equipment as would be achieved if the person had complied with the regulations.
Fee
46.2 fee units
- any person
- WorkSafe on its own initiative
Information about the current value of a fee unit is available from the Department of Treasury and Finance Victoria.
Summary of provisions for inquiry and review of exemption decisions
- Dangerous Goods (Explosives) Regulations 2011, regulations 16 and 17
Refusal
WorkSafe must not refuse to grant an exemption unless it has given notice to the applicant. It must also invite the applicant to make a written submission on the proposed refusal.
WorkSafe must consider any submission.
A person whose interests are affected by a WorkSafe decision to grant or refuse an exemption may apply for a review of the decision.
Revocation, suspension or variation
WorkSafe must not amend, suspend or revoke an exemption unless it has given notice to the holder of the exemption. It must also invite the holder of the exemption to make a written submission on the proposed course of action.
WorkSafe must consider any submission.
A person whose interests are directly affected by a WorkSafe decision to revoke, suspend or vary an exemption may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the decision.
- Dangerous Goods (Storage and Handling) Regulations 2012
Refusal
A person whose interests are directly affected by a WorkSafe decision to refuse an exemption may apply to VCAT for a review of the decision.
Revocation, suspension or variation
A person whose interests are directly affected by a WorkSafe decision to refuse an exemption may apply to VCAT for a review of the decision.
- Dangerous Goods (HCDG) Regulations 2016, regulations 27 and 28
Refusal
WorkSafe must not refuse to grant an exemption unless it has given notice to the applicant. It must also invite the applicant to make a written submission on the proposed refusal.
WorkSafe must consider any submission.
Revocation, suspension or variation
WorkSafe must not amend, suspend or revoke an exemption unless it has given notice to the holder of the exemption. It must also invite the holder of the exemption to make a written submission on the proposed course of action.
WorkSafe must consider any submission.
- Equipment (Public Safety) Regulations 2017, regulation 7(5)
Refusal
If WorkSafe refuses to grant an exemption, it must notify the applicant within 14 days of deciding to refuse to grant the exemption. It must also provide reasons for the decision.
Revocation, suspension or variation
If an exemption has been varied or revoked, WorkSafe must provide written notice to the applicant within 14 days of deciding to vary or revoke the exemption. The notice must include reasons for WorkSafe's decision.