Increased regulation and a potential ban on engineered stone

Potential ban of engineered stone

On 27 October 2023, Safe Work Australia released to the public the much awaited ‘Decision Regulation Impact Statement: Prohibition on the use of engineered stone’ (Decision RIS), recommending that the ministers responsible for WHS matters around Australia ‘prohibit the use of all engineered stone, and implement a licensing scheme for certain work with engineered stone previously installed’. The Decision RIS was provided to Commonwealth, state and territory WHS Ministers on 16 August 2023 for their consideration. The WHS Ministers are yet to decide whether to implement the recommendation.

The Decision RIS also considered other options involving a prohibition of the use of engineered stone containing 40% or more silica. However, the Decision RIS considered that a lower silica content in engineered stone would not result in improved compliance with silica regulations, and that there is a lack of evidence showing that products containing lesser amounts of silica pose less risks to health and safety.

There have been other signs indicating that the ban will progress – for example, at its 49^th national conference in Brisbane in August 2023, the Australian Labor Party (ALP) agreed to take “all necessary measures” to eliminate silicosis “including a ban on the manufacture, use and import of harmful engineered stone products”. State leaders have indicated their support (or likely support) for the ban including Australian Capital Territory ACT Industrial Relations and Workplace Safety Minister Mick Gentleman and New South Wales Premier Chris Minns.

Unions around Australia also actively support a ban on the use of engineered stone. For example, the construction union, CFMEU, has indicated that it will itself ‘ban’ the use of engineered stone by July 2024 if the government fails to do so (see here), by educating union members and elected health and safety representatives on the dangers of working with engineered stone and their rights to refuse unsafe work. On 24 October 2023, the Australian Council of Trade Unions agreed to a resolution urging all affiliates to “take all necessary steps to take action to support bans at the workplace level’.

Regulation of silica under the model WHS Laws

All jurisdictions in Australia (except Victoria) have implemented harmonised work health and safety laws known as the model Work Health and Safety Laws (Model WHS Laws). The Model WHS Laws are published by Safe Work Australia, and have legal effect in individual jurisdictions that have adopted the recommended provisions.

The Model WHS Laws contain various obligations relevant to the management of silica risks. Some of the key obligations include:

• An express prohibition on the uncontrolled processing of engineered stone (i.e. without the use of respiratory protective equipment, and either a water delivery system, on-tool extraction system or local exhaust ventilation system, to suppress the generation of dust).
• Obligations to ensure that the workplace exposure standard for silica dust is not exceeded. The workplace exposure standard for respirable silica is 0.05 milligrams per cubic metre (mg/m3) for an eight hour time weighted average (see here for details).
• Obligations to carry out air monitoring where necessary to determine whether the exposure standard has been exceeded or there is a risk to health.
• Obligations to ensure that health monitoring is provided to workers if there is significant risk to a worker’s health because of exposure to silica (see here for guidance).
• General risk management obligations to manage safety risks associated with silica dust exposure (e.g. the primary duty of care).

Safety regulators around Australia are actively enforcing these requirements, and there have been numerous prosecutions brought against organisations for failing to adequately protect workers from silica dust risks.

Safe Work Australia has also developed a model code of practice, Managing the risks of respirable crystalline silica from engineered stone in the workplace, which again is up to individual jurisdictions to adopt. The Code recommends the use of a silica dust control plan to manage silica dust control risks, among other matters.

Silica regulation across Australia

The following table provides a summary of the status of silica regulation in each jurisdiction. Most jurisdictions have adopted the silica requirements in the Model WHS Laws outlined above, including some form of prohibition on the uncontrolled processing of engineered stone. Some jurisdictions have also adopted additional requirements for silica (e.g. training requirements).