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DRAFTING OF STANDARDS THAT MAY BE REFERENCED UNDER OCCUPATIONAL
Standards Development – Policies and Procedures Page 1/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed DRAFTING OF STANDARDS THAT MAY BE REFERENCED UNDER OCCUPATIONAL HEALTH AND SAFETY LEGISLATION 1 Scope and objective This Standardization Guide is intended to assist committees developing Australian Standards that may incorporate an occupational health and safety component. Its objective is to ensure that those Standards are drafted in a way that will make them compatible with the legal requirements in each of the Occupational Health and Safety (OH&S) regulatory jurisdictions around Australia. Some Australian Standards are directly referenced in full or in part in State Occupational Health and Safety regulations while others may have evidentiary status. This Guide deals with the drafting of Australian Standards that may be used in either of these applications. This Guide does not address the New Zealand component of Joint Australian/New Zealand Standards. This will be dealt with in Standardization Guide No. 17.2. An explanation of how Australian Standards are developed is given in Appendix A. A glossary of terms as understood in the Occupational Health and Safety framework is given in Appendix B. References to legal requirements in this Guide are necessarily presented in a highly simplified form and should not be relied upon as providing legal advice.. 2 General Approach to Drafting of Standards Australian Standards are essentially technical documents and should be drafted in a technical, rather than a legalistic, manner. In the OH&S regulatory framework, Standards are used in a diversity of ways. It is therefore more difficult to make general rules about drafting these Standards than it is about drafting Standards for use with other regulatory regimes — for example, Standards referenced in the Building Code of Australia (see Standardization Guide No. 9.1, Preparation of Standards Referenced in the Building Code of Australia). When developing or revising a Standard, it is important to be aware of the needs of all users. This includes ensuring that the Standard is drafted in such a way that it is compatible with the specific needs of the authority in each jurisdiction that intends using the Standard for regulatory purposes. Regardless of how the Standard is to be referenced, it is absolutely essential that Standards Australia committees keep sight of the fact that they are documenting consensus agreement on approaches to equipment and workplace design, work practices, and other aspects of occupational health and safety. They are not writing the law. Standards are technical documents, written by people with technical expertise, to be interpreted in a technical, not a legalistic, manner. The Commonwealth, State and Territory governments may choose to incorporate Australian Standards into their occupational health and safety legislative frameworks — that is, reference them in an Act, regulations or Approved Codes of Practice. The exact manner of incorporation will determine whether the whole document is incorporated, or whether specific sections or provisions of the Standard are incorporated. Standards Development – Policies and Procedures Page 2/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed Incorporation of an Australian Standard into an Approved Code of Practice has the effect of making the Standard form part of the Code — that is, part of the guidance on how to comply with the provisions of the Act or regulations to which the Code is giving practical guidance. The manner of incorporation will determine which of the Standard's requirements and recommendations form part of the Code and, therefore, would have evidentiary status. 3 Tiering of Requirements Australian Standards are meant to represent minimum acceptable performance and not best practice in the industry. This is a complex matter to judge when dealing with issues associated with health and safety because, as technology improves, the community’s expectation of the minimum acceptable level of health and safety also rises. Thus, new editions of Standards must keep pace with improved knowledge of the risks associated with the subject at hand and with any new technology. In addition, there is the need to take into account Australia’s obligations under international trade agreements. Guidance on Standards Australia’s policy on this point, and the implementation of the policy of alignment with International Standards is given in Standardization Guide No. 7, Adoption of International Standards. Where a committee feels that there would be a benefit in including requirements in an Australian Standard, which go beyond the minimum acceptable levels of health and safety, the requirements may need to be ‘tiered’. Tiering can be achieved in several ways, but the simplest approach is to divide the Standard into Parts, with Part 1 covering a means of meeting one’s health and safety obligations under the law. The additional requirements can then be covered by Part 2, which would be used principally in contractual arrangements in instances where it is deemed necessary to go beyond the essential health and safety requirements required under the law. Interface with Regulations — Duties of Employers, Employees, Designers of Equipment and Others Australian Standards should not restate the duties of employers, employees, designers or others. The 1995 Industry Commission Inquiry into Occupational Health and Safety found that the restatement of rights and duties in National Standards incorporated into subordinate legislation was a significant source of confusion about workplace health and safety. While this point was primarily directed to the National Standards developed by the National Occupational Health and Safety Commission (NOHSC), it also sent a clear message to those developing Australian Standards. A problem that committees often face is trying to develop Standards that will fit into a regulatory framework based on the responsibilities of employers, designers of equipment, employees and others. Because these duties must always be tied back to the overall duties set out in an Act of Parliament in each jurisdiction, it is neither desirable nor feasible to try to establish in an Australian Standard the duties of the different parties. As well, there are often fundamental differences between the Acts in the different jurisdictions; this in turn will affect the way duties can be ascribed to parties. As a result, what suits a representative, from one jurisdiction, on a Technical Committee will often conflict with the requirements of a representative from another jurisdiction. The establishment of some common national approach to the duties of the different parties is part of the role of NOHSC. Australian Standards must be written so as to be compatible with the Common Essential Requirements developed by NOHSC, but should not try to duplicate this work. Standards Development – Policies and Procedures Page 3/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed There is one exception to this rule, and that is where a Standard has been jointly developed with NOHSC and has the status of being both an Australian Standard and a NOHSC endorsed National Standard. In the few cases where this path has been followed, duties of the parties may be included in the elements of the dual Standard that has been endorsed as the NOHSC National Standard. Australian Standards must also take into account the whole range of regulatory requirements (not just Occupational Health and Safety) that can affect how a product is designed, how a certain substance is handled, and the many other subjects covered by the Standard. To take a practical example, if the subject of the Standard is the storage of a flammable liquid it may be affected by Occupational Health and Safety, Environmental, Consumer Protection, and Planning law. Therefore, the Standard should not attempt to restate or modify the legal obligations of the occupier of the site. Instead, it should describe current good practice by occupiers as a result of all of the external facilities including their many legal obligations and the need to operate the facility in an efficient manner. Requirements for siting of tanks should, therefore, be expressed in the form ‘Tanks shall be located with a minimum effective separation distance of x metres’, rather than ‘Occupiers shall locate tanks at a minimum separation distance of x metres’. It should be noted that in one State OH&S jurisdiction this may be a duty placed on ‘the occupier’, and in another it may be a duty of ‘the employer’. Similarly, under planning law, it may be a duty of ‘the applicant’ to take account of tank location. The Standard should normally reflect the range of ways in current use in industry by which legal obligations can be met. There is no need to try to cover every conceivable way of meeting those obligations. Under the performance-based regulatory regimes operating in Australia, the regulations should focus on outcomes, thereby providing room for new and innovative ways of achieving those outcomes. The Australian Standard should, therefore, meet the needs of people who are not interested in innovative approaches, but who simply want to know what to do. One test of whether a requirement should go into an Australian Standard or be dealt with in a regulation is to ask whether the requirement is likely to change over time as a result of technical innovation or other similar factors. If there is a likelihood of change, then the requirement should normally go into the Australian Standard. In general, anything that involves setting a specific numerical value will be liable to change. 4 Use of ‘Shall’ and ‘Should’ Like virtually all national Standards bodies around the world, Standards Australia follows the rules set down by the international Standards bodies ISO and IEC for the use of the terms ‘shall’ and ‘should’. The term ‘shall’ is used to indicate a normative requirement of a Standard. In other words, if one wants to be in compliance with the Standard, all of the ‘shall’ requirements have to be met. It is normally said within Standards Australia that use of the term ‘shall’ in a Standard indicates that a statement is ‘mandatory’; however, this use of the expression ‘mandatory’ is easily confused with a ‘mandatory legal requirement’. For this reason, it is preferable in Standards covered by this Guide to use the expression ‘shall indicates a normative requirement of the Standard’. It should be remembered that the requirements (‘shall’ statements) in an Australian Standard are not mandatory for legal purposes unless incorporated specifically by an Act or regulation. By contrast, the term ‘should’ implies a recommendation. Compliance with a Standard can still be achieved without necessarily meeting all of the recommendations. Standards Development – Policies and Procedures Page 4/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed Where recommendations are given, they normally point to generally accepted good practice in the industry concerned and, therefore, such factors should be taken into consideration. Within an Australian Standard, notes, informative appendices and preliminary elements of the Standard such as the Preface and Foreword are included only as guidance to assist users in understanding the Standard's requirements and recommendations. Under no circumstances are these elements to include any normative requirements (‘shall’ statements). In this context, the ‘notes’ referred to do not include notes to tables and figures, which may sometimes include normative requirements and recommendations (see ISO Directives Part 3 for more guidance on this point). In accordance with international standardization practice, the word ‘must’ is not to be used in an Australian Standard. Appendix C provides wording that may be incorporated into the Preface of a Standard that is to be referenced under Occupational Health and Safety legislation in order to clarify the use of the term ‘shall’. 5 Use of ‘Practicable’ and ‘Reasonably Practicable’ The use of ‘practicable’ and ‘reasonably practicable’ should be avoided in Australian Standards. Requirements with a test of practicability, for example ‘As far as practicable all pinch points shall be effectively guarded’ can be problematic in an Australian Standard, because the way the test is to be applied in the field is not defined. It must be borne in mind, that Standards must be capable of precise, unambiguous interpretation without reference to an external source, such as a regulatory authority or a Standards Australia committee. Most State legislation has a test of practicability for the performance of a legal duty, or reasonableness automatically built into the use of all Approved Codes of Practice, so such statements could be viewed as being redundant. Practicability, in the legal sense, involves establishing whether it is financially practicable for the employer to comply or whether or not a period of grace needs to be allowed before a requirement can practicably be complied with by a particular occupier. When a committee refers to ‘practicability’, what is generally intended is that it is technically feasible to comply with the requirement. It is preferable to set out the technical conditions that govern the applicability of the requirement, rather than to rely on the test of practicability. In the example quoted above, the statement might be reworded to read ‘All pinch points shall be effectively guarded, unless the presence of such a guard would inhibit the operation of the machine or the guard would require removal and replacement during each cycle of the machine’. If a requirement cannot be reworded to delete the word ‘practicable’, it ought to be expressed as a recommendation, (i.e. as a ‘should’) rather than as a normative requirement (‘shall’) of the Standard. 6 Cross-references to Other Standards Cross-references to other Standards should be made sparingly In any given Standard, it is often necessary to require that the provisions of a second Standard are met in order to comply with the first Standard. The referenced Standard may be an Australian Standard, a NOHSC-endorsed National Standard, an International Standard, a national Standard of another country or a widely recognized industry Standard. For example, a standard for personal protective clothing may require that garments be Standards Development – Policies and Procedures Page 5/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed subjected to a test method set out in a Standard for testing of textiles. Alternatively, a Standard for storage and handling of flammable and combustible liquids may require that component hoses comply with a particular Standard for flexible plastic hoses. In such cases, the internationally agreed practice in consensus standardization is to make a cross-reference to the relevant Standard (often developed by a separate committee with a different specialist expertise) rather than repeat the provisions of the referenced Standard. It should be noted, however, that other Standards should only be cross- referenced where compliance with the referenced Standard is essential to achieving the objective of the first Standard. Extensive cross-references to Standards only loosely related to the subject at hand can prove to be an obstacle to the Standard being used in the regulatory system. If the attention of the cross-reference is simply to alert the reader to the existence of other Standards on related subjects, it is better to avoid the cross-reference and simply list the related Standards, as further reading, in an Appendix at the back of the document. 7 References to Occupational Health and Safety Authorities as Interpreters of Standards or as Approvals Bodies Australian Standards must not refer to regulatory authorities as interpreters of the Standards or as bodies that give approvals to products or work practices. Under the performance-based system of regulation, referenced standards must be capable of standing on their own technical merits without the need for further reference to any external body for the approval of products or work practices. In particular, the standard must not include any requirement that attempts to place a duty or responsibility on a regulatory authority, on Standards Australia, or on any of its technical committees. Australian Standards must set out the technical requirements for components or pieces of equipment rather than referring to ‘approved’ components or pieces of equipment. Australian Standards must not refer to dispensations from, or variations to, the requirements of the Standard given by regulatory authorities or by Standards Australia. In cases where there is sufficient demand, such as for major Codes or an important series of Standards, a Standards Australia Rulings Service may be established for a particular Standard or set of Standards. Rulings take the form of questions and answers about how the applicable requirements of a Standard might be applied in a particular set of circumstances, and these are developed by the committee that is responsible for the Standard. The Rulings are then made available to the public. Further information about rulings is given in Standardization Guide No. 12.1, Interpretations and Rulings. It is a matter for individual regulatory authorities to determine the weight they will give to Standards Australia Rulings. 8 Revisions of Standards Referenced under OH&S legislation When an Australian Standard that is referenced under State OH&S regulatory systems is revised several questions arise, including whether or not the revised requirements apply to existing installations and equipment from the dates of publication of the new edition of the relevant Standard. The date at which the legal requirements change and the effect on existing plant and equipment are matters to be determined by the relevant OH&S jurisdiction. However, a technical committee may determine that it would be useful to offer recommendations on this subject, particularly where there are technical issues involved in the timing of the changeover. In some instances, a new edition of a Standard will include upgraded requirements that are not critical to safety and could be accommodated only by closing down the facility in Standards Development – Policies and Procedures Page 6/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed question. Upgrades would be feasible, therefore, only where incorporated in the design of new facilities, or where older facilities were shut down for major maintenance work. On the other hand, some new requirements may address a recently discovered critical safety issue that requires urgent attention. Where a technical committee decides to offer advice, it will be the responsibility of that committee to formulate the advice that will best suit the circumstances of the Standard in question. The following wording is offered as an example of the key issues to be addressed in any such advice: • In recognition of changes made to this Standard, existing equipment should be assessed for risk and interim control measures should be implemented. • Current installed equipment should be updated to conform to this Standard. Compliance improvements should be made within a time frame that takes into consideration the cost of upgrading and the associated risk levels. Standards Development – Policies and Procedures Page 7/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed Annex A Process of Standards Development Australian Standards are developed according to the internationally aligned principles set out in other Standardization Guides in this series. This involves a multi-party consensus process, i.e. all major interest groups affected by a particular Standard are entitled to be represented on the committee charged with the development of the Standard, and that committee is responsible for developing and approving the content of the Standard. It is only when consensus cannot be achieved at committee level that a supervising Standards Policy Board may become involved. This is a different process to the tripartite system used by the National Occupational Health and Safety Commission (NOHSC), whereby decision-making committees are composed of representatives of three groupings: employers, through the Australian Chamber of Commerce and Industry (ACCI); employees, through the Australian Council of Trade Unions (ACTU); and government, through the State and Territory regulatory agencies. In addition to these parties, the Standards Australia system allows for a range of other interests to be represented depending on the subject being standardized (e.g., equipment suppliers not affiliated with the ACCI, occupational health and safety professionals, industry associations not affiliated with the ACCI, health and safety training and service providers, end-use consumers, academia and many others). Another important policy of Standards Australia is the need for international alignment of Australian Standards, as set out in Standardization Guide No. 7, Adoption of International Standards. Prior to the development or revision of any Australian Standard, a literature search is conducted of available overseas and International Standards on the subject matter. The normal option is to simply adopt the relevant International Standard (or de facto International Standard) for use in Australia, unless there are valid reasons to modify it (as set out in the Agreement on Technical Barriers to Trade). Another way of ensuring Australia's obligations under the agreement are fulfilled is to list overseas Standards deemed to be equivalent to the Australian Standard. More detail on how this policy operates in practice is given in Standardization Guide No. 7, Adoption of International Standards. Standards Development – Policies and Procedures Page 8/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed Annex B Glossary of Terms Used in This Guide B.1 Scope of Appendix This Appendix sets out some selected terms used in this Guide and gives definitions that are relevant to the way these terms are understood in the Occupational Health and Safety regulatory framework in Australia. The definitions do not necessarily apply in other circumstances; for instance, the normal definition of 'code of practice' in consensus standardization is quite different to the one given here. B.2 Definitions The following definitions apply in this Guide: B.3 Approved Code of Practice A code of practice made and gazetted under State law, which provides an acceptable means of complying with the relevant Act or regulation. NOTES: 1 There may be other means of complying with the Act or regulation apart from that set out in the Approved Code of Practice. 2 Approved Codes of Practice are said to have evidentiary status. B.4 Common Essential Requirements A set of nationally agreed principles, expressed in such a way that it can be used in State regulatory systems with the status of either a regulation or an Approved Code of Practice. NOTE: When it was originally formed, NOHSC began developing its National Standards in the form of ‘model regulations’. For a range of reasons, including the differences in the head Acts in the various jurisdictions, there was little success in having these model regulations adopted at the ‘State level’. The approach of expressing the requirements as ‘common essential requirements’ has been more successful as it has enabled the jurisdictions to have greater flexibility in how the National Standards are adopted. This has some parallels with the way the European Commission uses European Directives. B.5 Guidance Note An advisory document issued by the National Occupational Health and Safety Commission or by a regulatory authority. It has no legal standing. B.6 National Code of Practice A model code of practice developed and issued by the National Occupational Health and Safety Commission, under the terms of its Act, and intended for use by State and Territory regulatory authorities as an Approved Code of Practice. NOTE: A National Code of Practice normally relates to a National Standard. B.7 National Standard A document developed and issued by the National Occupational Health and Safety Commission, under the terms of its Act, and intended for use by State and Territory regulatory authorities. NOTE: National Standards may be in several forms, including exposure standards and Common Essential Requirements. The National Standard for Plant is an example of a National Standard in the form of a set of Common Essential Requirements. Standards Development – Policies and Procedures Page 9/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed B.8 Regulation A set of legal requirements in a jurisdiction. NOTE: While people may still be able to meet their legal obligations even if they fail to comply with an Approved Code of Practice, when an Australian Standard is given the force of a regulation, the Australian Standard represents the only way people can meet their legal obligations. Standards Development – Policies and Procedures Page 10/10 Standardization Guide – SG-017 Revision: 14-03-2008 Drafting of Standards that may be referenced under Occupational Health and Safety Legislation Please ensure this is the correct version before use Uncontrolled copy if printed Annex C Text for Inclusion in the Preface of Australian Standards Intended To Be Incorporated in OH&S Legislative Frameworks The following text may be included in the Preface of an Australian Standard to avoid any confusion regarding the use of the term ‘shall’. It replaces the definition of ‘shall’ often included in Australian Standards. • It should be noted that Standards Australia uses the term ‘shall’ to indicate those requirements that have to be met if one wants to be in compliance with the objectives and intent of the Standard in question. However, nothing in this Australian Standard is required by law in any Australian jurisdiction, unless the Australian Standard has been specifically incorporated by an Act of regulation in the jurisdiction. Readers will need to refer to their jurisdiction's law to determine which parts of this Australian Standard (if any) have been incorporated and the manner of incorporation. • The Commonwealth, State and Territory governments may choose to incorporate this Australian Standard into their occupational health and safety law. The exact manner of incorporation will determine whether the whole document is incorporated or whether specific sections or provisions of the Australian Standard are incorporated. The manner of incorporation will determine which of the Standard's requirements ('shall' statements) have been made a legal requirement in a jurisdiction. As a general principle, where an Australian Standard is incorporated by regulation, the legal status of the Standard's requirements and recommendations is made clear by the incorporation provisions of the regulation. • Jurisdictions may also choose to incorporate this Australian Standard (either in whole or in part) in an Approved Code of Practice made under OH&S law. The purpose of Approved Codes of Practice is to provide practical guidance to persons on how to comply with their obligations under the enabling OH&S Act or regulations made under the Act. Incorporation of this Australian Standard in an Approved Code of Practice has the effect of making the Standard form part of the Code; that is, part of the guidance on how to comply with the provisions of the Act or regulation to which the Code is giving practical guidance. The provisions in a Code, however, are not mandatory. That is, a person may choose to comply with the relevant provisions of the Act or regulation in some other way, provided that the alternative method used also fulfils the requirements of the Act or regulations. • Readers will need to refer to their jurisdiction’s Approved Codes of Practice to determine which parts of this Australian Standard (if any) have been incorporated into Codes of Practice and the manner of incorporation. 9 RECORD(S) The following records are retained— Record By Whom Retention Period 10 DOCUMENT HISTORY This document last updated: 2000-04-01.
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