If your business uses silica in any form, you need to be aware of the new laws
by Andrew Ross, associate director at Australian Business Lawyers & Advisors
If your business uses silica in any form you need to be aware of the new laws now in effect in some States that will have significant impacts on work health and safety training regimes.
New Victorian laws now require businesses across a range of industries, including construction, quarrying and tunnelling, to provide special training to employees and information to job applicants who might engage in "high-risk crystalline silica work".
Other new provisions require manufacturers and suppliers of products containing crystalline silica to provide statements outlining the percentage of the hazardous substance in their products, along with information on safely handling them and exposure controls.
The Victorian Government made the new laws under the Occupational Health and Safety Amendment (Crystalline Silica) Regulations 2021 in November last year.
This instrument also establishes a licensing regime for engineered stonework; it permanently bans the uncontrolled dry cutting of engineered stone (which has a very high concentration of silicosis-causing crystalline silica); and has introduced eight silica-related infringement notice offences.
WorkSafe Victoria today noted that crystalline silica is contained in many products, including engineered stone, ceramic tiles, concrete, bricks and marble, and high-risk crystalline silica work can create dust that can cause deadly lung and respiratory diseases.
Last year, WorkSafe Victoria accepted 73 claims from workers with silica-related diseases resulting from workplace exposures, and five of the claims involved deaths.
In another recent development, WorkSafe inspectors' powers were increased to allow them to issue prohibition notices and directions pertaining to non-immediate but serious health and safety risks, like exposure to silica. Until now those notices were constrained mainly to immediate physical threats, such as unguarded machinery endangering a worker’s body.
It needs to be remembered that industrial manslaughter laws will apply both to employers and senior officers arising out of any fatality arising from a work-based source of silica exposure. There is no time limit in Victoria on this offence and the work-based exposure need not be the sole causative exposure.
The NSW Regulator’s website advises that the ‘uncontrolled cutting, grinding or drilling of products or materials containing crystalline silica can generate hazardous levels of airborne dust. Breathing in this dust, usually over several years, leads to serious and fatal lung disease such as silicosis.’
In NSW Inspectors can issue prohibition notices to stop you from doing work that generates high levels of silica dust. If you don't comply with a prohibition notice, PCBUs (employers) can face penalties up to $100,000. The NSW Regulator advises that:
There are mandatory exposure standards - the workplace exposure standard (WES) for silica is 0.05mg/m3 (eight-hour time-weighted average). Time-weighted average (TWA) is a method of calculating a worker’s daily exposure to hazardous substances such as dust, fumes, chemicals, gases, or vapors. It is averaged to an eight-hour workday or 40-hour week, along with the average levels of exposure to the hazardous substance and the time spent in that area.
The TWA reflects the maximum average exposure a worker can be subjected to without experiencing significant adverse health effects over the standardized eight-hour work period. The TWA is expressed in units of parts per million (ppm) or mg/m3.
On-the-spot fines apply for PCBUs (employers) failing to notify SafeWork NSW of an ‘adverse health monitoring report’. In NSW, medical practitioners must notify NSW Health when they diagnose a case of silicosis.
There is a Stone Benchtop Code of Practice which must be followed in that industry.
NSW does not have a ‘direct’ industrial manslaughter offence in place but does have a ‘reckless or gross negligence’ offence applicable to both individuals (including senior officers) and companies. Over time we expect increased pressure to enact an industrial manslaughter offence (which can apply to silicosis as any other hazard) which is designed to be easier to facilitate proof using ‘negligence’, rather than ‘reasonable practicability’ as the touchstone for culpability.
The position and advice regarding silica as a hazard in Queensland is generally similar to New South Wales.
Similarly to Victoria, it also needs to be remembered that industrial manslaughter laws will apply both to employers and senior officers arising out of any fatality from a work-based source of silica exposure. There is no time limit in Queensland on this offence and the work-based exposure need not be the sole exposure.
South Australia
After collaboration with stakeholders, industry and union partners, SafeWork SA has published new guidance on managing the risks of silica dust across the construction industry.
The guidance material includes information on:
SafeWork SA supports the South Australian Construction Safety Alliance (SACSA) respirable crystalline silica initiative. SACSA has developed a safety essential flyer containing information to minimise risks of exposure to respirable crystalline silica that will be shared and posted at their members worksites.
SafeWork SA Executive Director, Martyn Campbell says on the SafeWork SA website “proper protection from exposure is a lot more than just wearing a dust mask, which alone, provides minimal protection. Engineering controls have become more accessible in recent times and are reasonably practicable to use in many cases; compliance with the regulations can be achieved through the application of basic, well-known exposure controls”.
An offence of industrial manslaughter is set to become law in South Australia, a promise which the Labor Government made to minimise the risk of avoidable deaths and injuries in the workplace. Preventable deaths from silicosis in the workplace may see those undertaking a business or involved at an executive level jailed or faced with a hefty financial penalty.
Tasmania has adopted the new model Code of Practice: Managing the risk of Respirable Silica from Engineered Stone in the Workplace. The new code took effect in Tasmania on 19 January 2022. The workplace exposure limit for respirable crystalline silica was reduced to an eight-hour time-weighted average of 0.05mg/m3. This change took effect in Tasmania on 22 December 2021.
The Department of Mines Industry Regulation and Safety (the Department) has responsibility for this issue. The Department has adopted the same workplace exposure limit as per other jurisdictions. The Department lists the type of tasks commonly giving rise to problematic exposure as:
Industrial manslaughter is to become an offence in Western Australia and silica exposure causing death to a worker or contractor will bring about exposure to that offence by the business or a senior officer.
The Worksafe ACT website points out that the mandatory limit for silica dust is an eight-hour time weighted average (TWA) of 0.05 mg/m3. However, there is still a risk to worker health at this concentration. Therefore, exposure must be reduced as far as possible under this TWA. This is a feature of WHS laws - a continuous improvement dynamic is required.
The Regulator suggests the following risk controls be utilised:
Choosing materials that are silica free or have the lowest silica content (such as abrasive blasting agents).
Designing buildings with recesses for services to reduce the amount of chasing required.
Providing vehicles with enclosed cabs fitted with high efficiency particulate air filters, for dusty earthworks or mining.
Using wet methods to reduce airborne dust (such as wet cutting or polishing, water sprays during earthworks).
Using water spray or rubber curtains around conveyor transfer points.
Using local extraction ventilation, either fixed at a worktable or on-tool (such as for mixing, crushing, milling, drilling or chasing).
Good housekeeping such as shadow vacuuming (during drilling) and using a vacuum clean-up rather than sweeping, and
Not blowing dust with compressed air.
In addition to other controls, PPE, such as an appropriate respirator, may be required, depending on the task and the effectiveness of the other controls.
The ACT has an industrial manslaughter offence which can apply to a death from silicosis.
When “may use” means “MUST use”.
It warrants saying that whilst a website or a Code of Practice might indicate on a light reading that a particular control measure is not overtly prescribed as mandatory, nonetheless the proper application of the legislation will mean that the measure is in fact mandatory because of the deliberative obligation of an employer to consider the particular circumstances of the business. In very simple terms, an employer has a duty of care to its employees and by all accounts the regulators will be unforgiving should workers become ill due to such negligence.
Safety is a continuous improvement requirement. It is recommended that employers regularly engage an experienced safety professional to carry out annual risk assessments, in conjunction with receiving legal advice.
