Health and Safety - Chemical Users

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A safety shower being tested

Sources of more information
Glossary of terms and definitions

 

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Duty of Care - underpinning legislation

The growing interest in health and safety is broadening legislation and codes of practice based on the principles of common law. Common law assumes the employer has greater responsibility for employees than between other citizens in the community. Therefore even if an injured employee has contributed to the accident, or if another employee was totally responsible, the employer may be held liable.

State enforced laws, though varying in detail, all require employers to provide as far as reasonably practicable;
bulleta safe working environment;
bulleta safe system of work;
bulletmaterials and equipment in safe condition with adequate facilities; and
bulletinformation, instruction, training and supervision to enable the safe performance of work.
These are encapsulated in the principle of duty of care whose implications suggests that to minimise exposure to litigation, employers should identify and adopt;
bulletworkplace safety aims and policies;
bulletappropriate management;
bulletinformation, procedures, safety signs and posters;
bulletskills relative to the tasks; and
bulletsafe plant, equipment and materials relative to documented safe working procedures.

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Workplace Legislation

To reinforce duty of care principles and extend self-regulation by industry, Worksafe Australia has developed the National Model Regulations and Codes of Practice for workplaces that use chemicals. These Regulations provide a framework for standardised State and Territory legislation for occupational health and safety to be adopted beginning 1995. Considered comparable to legislation in Europe, the Regulations identify responsibilities for the provision of information by employers to employees, and establishes mechanisms for information and practices to reduce risk to health and safety.

This legislation aims to reduce risk in two broad ways, by;
bulletdefining assessments, controls and procedures; and
bulletidentifying information systems to communicate the risks to other persons enabling correct response to reduce risk.
The assumption of responsibility is a major implication of the National Model Regulations. It addresses hazardous substances in the workplace and identifies the manufacturer or the importer of the substance as the primary source of information (including for distinguishing substances as hazardous substances). It recognises the Material Safety Data Sheet and the workplace label as important health and safety information sources with the employer assuming responsibility in applying and communicating the (manufacturer's or importer's) information to employees in the workplace.

The legislation will therefore provide for more clearly defined rules for work practice, and information and responsibility where `hazardous substances' are used in the workplace.

Broadly, a substance is a `hazardous substance' if it has the potential through being used at work to harm the health or safety of persons in the `workplace' and includes substances which may be produced in the workplace (eg. from welding rods, plastics processing etc.). To reduce ambiguity, a listing of substances is provided by Worksafe in Lists of Designated Hazardous Substances and for non listed substances and mixtures, by health effect criteria in Approved Criteria for Classifying Hazardous Substances available from the Australian Government Publishing Service.

The implications if hazardous substances are used (meaning the production, handling, storage, transport or disposal) in the workplace are substantial.

 

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Assessment

There has to be an assessment of any workplace with potential or uncertainty, for any person to be exposed to hazardous substances in the workplace.

An assessment requires the identification of the;

  1. Hazardous substances;
  2. Respective hazards; and
  3. Risks of those hazards to health.
The assessment provides the basis to identify appropriate control measures, induction and training, monitoring, health surveillance and future assessment. Recommendations and conclusions must be recorded in a register. Worksafe Australia has published the Guidance Note for the Assessment of Health Risks Arising from the Use of Hazardous Substances in the Workplace that provides a comprehensive procedural outline with examples of assessment procedures and forms.

An assessment is required for each process or operation and job category, (including those persons apblankly not directly involved) where hazardous substances are used or produced in the workplace and where there is potential exposure to the substance. The assessment must be suitable and sufficient for all risks to health created by the work. Only retailers and retail warehouse operators need not undertake assessments under specified conditions.

Broadly, there are two levels of assessments;
bullet Simple if an insignificant level of risk is anticipated (such as in the retail sector) and with reasonable certainty; or
bullet Detailed assessment if the risk is potentially substantial or uncertain.
A simple assessment involves;

  1. A review of the MSDS or equivalent information;
  2. Identification of risks in use of substances; and
  3. Assessment of the controls for use of the substance.
A detailed assessment is required if significant risk is anticipated, if shown from the simple assessment, or if uncertain results were obtained. It uses more expansive information about the substances, expert opinion, and provides for assessment of controls and procedures. At the minimum, the uncertainty must be eliminated, else or in any event, appropriate controls, induction and training, monitoring and even health surveillance may be required.

New assessment is required for a range of reasons, and always with review at intervals not exceeding 5 years.

It is useful to note that generic (ie. collective) assessments are allowed for which creates opportunities for industry associations to reduce costs for their members.

 

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Monitoring

Monitoring means to quantitatively estimate the exposure of employees in the workplace to hazardous substances for comparison with relevant exposure standards. It involves a survey of measures used to control hazardous substances in the workplace (including the monitoring of atmospheric contaminants).

Monitoring is required by the National Model Regulations when;
bulletindicated by an assessment;
bulletevaluating introduced control measures; or
bulletthe level of atmospheric exposure is close to exposure standards.
The records of monitoring must be kept as a record for at least 30 years from the date of the last entry

 

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Health surveillance

Health surveillance involves monitoring the health of employees to reduce the risk of exposure to those hazardous substances and is required by the National Model Regulations if the workplace assessment indicates either;
bulleta significant risk to health by exposure to certain substances listed in Schedule 3 in the National Model Regulations for Control of Workplace Hazardous Substances; or
bulletother hazardous substances for which there is;
bulletan identifiable disease or health effect that may be related to the exposure; and
bulleta reasonable likelihood that the disease or health effect may occur under the particular conditions of work; and
bulletvalid techniques for detecting indications of the disease or the effect; or
bulletvalid biological monitoring procedure is available and a reasonable likelihood that accepted values may be exceeded.
Health surveillance records must be kept for a period of 30 years.

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Control measures

In the end, employers are required to;
bulletAs far as practicable control exposure to hazardous substances in the workplace to minimise risk to health and safety;
bulletEnsure no employee is exposed to hazardous substances at levels above the relevant exposure standards listed in the Exposure Standards for Atmospheric Contaminants in the Occupational Environment; and
bulletEffectively maintain all engineering controls, safe working practices and personal protective equipment.
An underlying principle is to as far as reasonably practicable use control measures other than personal protective equipment.

 

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The Material Safety Data Sheet

More detailed information

. Information is a key aspect addressed with a key source of information being the Material Safety Data Sheet (MSDS).

The MSDS is a structured document which provides information about a specific substance for general application. It describes the identity, health hazards, precautions for use, safe handling, storage and disposal information. An MSDS is required to be available for all hazardous substances that may be used (ie. handled, stored or transported) in the workplace.

The MSDS has to comply with the National Code of Practice for the Preparation of Material Safety Data Sheets.

The National Model Regulations require the MSDS;
bulletto be reviewed and re-issued at intervals not exceeding 5 years, or when there are changes in detail or information;
bulletto be provided by manufacturers or importers; and
bulletprovided before, or with the first supply of the substance.
Material Safety Data Sheets are not required to be provided for;


For more detailed information about the MSDS and checklist.

bulletsubstances not intended for use in the workplace (eg. the home);
bulletsuppliers to retailers and for retail warehouse operators, for substances in consumer packages which hold less that 30 kilograms or 30 litres and which are not intended to be opened;
bulletlaboratories, for preparations, samples or reaction intermediates; and
bulletfor hazardous substances produced and used within the workplace, or for by-products, wastes or fugitive emissions.

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Workplace labels

More detailed information

. Labels often represent the first source of information about chemicals in the workplace with more comprehensive information available from the MSDS (ie. if the contents is a hazardous substance). The labelling of substances used in the workplace is described in the National Code of Practice for the Labelling of Workplace Substances.

With exceptions and some additions, workplace labels are required for containers for;
bullethazardous substances;
bulletdecanted and not consumed immediately (though the label need only have the product name and risk and safety phrases);
bulletarticles (and substances) which can produce hazardous substances during use (eg. welding rods); and
bulletcontainers not cleaned (until no longer containing the hazardous substances).
Workplace labelling is not required for specified products including for registered agricultural and veterinary products; for certain activities; transported or in transit; decanted if for immediate use (ie. substances consumed immediately leaving the container empty); or imported if in transit before possession by the importer; consumer packages used by retailers and operators of warehouses under specified terms.

Also excluded are; tanks and bulk stores (to be placarded); and enclosed systems, such as pipes, process vessels and reactor vessels (marked according to AS 1345, Identification of the Contents of Piping, Conduits and Ducts).

Suppliers of workplace substances and employers have primary responsibility to ensure workplace hazardous substances are correctly labelled.
bulletSuppliers assume the responsibility for correct labelling of hazardous substances supplied to others.
bulletEmployers must ensure all containers of hazardous substances are appropriately labelled
Information on the Label

Information on the workplace label includes prescribed risk and safety phrases, first aid details, emergency procedures and reference to the MSDS.

As also specified for the MSDS, there is specific guidance for the commercially sensitive topic of ingredient disclosure on the label.

First the ingredients may be identified by a prescribed percentage range if commercially confidential.

Second commercially confidentiality is recognised by allowing the ingredients to be classified to three types. Hazardous substances, other than certain harmful substances (that may be identified by a generic name for which guidelines are provided), must be identified by the chemical name. For other substances, a statement, other ingredients determined no to be hazardous is allowed.
More detailed information on the workplace label.

 

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Registers

A register is a record which primarily lists all hazardous substances used in the workplace and is the responsibility of the employer.

The minimum requirement for a register is a MSDS for all the hazardous substances used in the workplace. A register can also record the result of an assessment completed steps in the assessment process, date MSDS is reviewed and record control measures are in place.

Other information which may be included on the register for each substance are; date, or date of commencement, of introduction; product name; CAS registry number; name (and synonyms); ingredients, or (as a minimum) the ingredients which are hazardous substances; maximum quantities (of the product and ingredients, or hazardous ingredients); locations; and, date of withdrawal or cessation of production or manufacture.

The register should be kept current to record the withdrawal of substances including the cessation of production. As a minimum, the register, detailing the names of hazardous substances used in the workplace, must be maintained and held for five years from the date each substance is no longer used.

 

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Training

NOTE: The "SafetyLine Institute" (www.safetyline.wa.gov.au/institute) , are interactive programs provided for primary, secondary and tertiary education in occupational safety and health by WorkSafe Western Australia.

Training is a key feature of the National Model Regulations premised that information is only useful if understood and capable of use.

Training, whether by the employer or a nominated consultant, is required to;
bulletrelate to the risk associated with the work activities for which the workplace assessment provides guidance;
bulletreflect the level of skill, language and literacy and previous training of the employees;
bulletbe evaluated in terms of its original objective;
bulletbe repeated as required with the need reviewed at least every 12 months but more frequently if there are changes to;
bullet- information on the hazards,
bullet- work practices,
bullet- control measures, or
bullet- operations, locations or other variables which influences the risks.
bullet recorded (for performance assessment) to indicate attendee names, date, content of course and the trainer. This is a record to be kept for a period of 5 years. Training may be general or specific to the substances.
bullet General, (not specific to substances);
bullettheory of hazards, risks, controls, safety procedures etc;
bulletinformation sources, including the MSDS, labels, placards, manifests, registers etc. and in terms of purpose, interpretation, access, etc;
bulletcontrols (engineering and procedural), practices, routine measures etc;
bulletpersonal protective equipment and clothing, including selection, maintenance, decontamination and use;
bulletparticipation procedures and rights of employees, in terms of reasons for;
bullethealth surveillance,
bulletmonitoring,
bulletdata interpretation, and
bulletnew substance requirements, including controls, assessment and employee rights.
bulletemergency procedures, including;
bulletfire, spills and disposal,
bulletfirst aid, and
bulletincident reporting.
bullet other requirements for the National Model Regulations. bullet Specific (to the substance);
bulletHazards, risks to health, the degree of exposure and routes of entry, symptoms, etc; and
bulletControls, work practices and procedures relating to the safe use, storage, transportation, clean up and disposal of the substance.

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Plant

Plant being machinery, equipment, appliances, implements or tools and any component, fitting or accessory, is subject to Worksafe's National Standard for Plant. It defines hazard identification, risk assessment and risk control processes. It requires the provision of relevant information and training, and certain designs and items of plant have to be registered. The Standard applies to plant in the workplace and to its design, manufacture, testing, installation, commissioning, use, repair alteration, dismantling, storage and disposal. Duties and responsibilities are provided that include systems of work for many parties including manufacturers, employers, importers, suppliers and installers of plant.

 

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Storage

The storage of dangerous goods is covered by detailed State and Territory regulations. As for transport, these regulations address both the need to properly manage dangerous goods and other specified hazardous goods and to provide information about their presence, nature and location. Separation and segregation, storage conditions, placarding and manifests are key aspects of the legislation.

As also for transport, storage regulations are generally based on the hazard characteristics as indicated by the class of dangerous goods class, Sub-Risk, packaging group and UN number. These information elements indicate the nature of the hazards and should be available from the relevant Material Safety Data Sheet.

A particularly useful source of information are Safe Storage and Handling Guides available from Standards Australia which is also part of their CHEMCARD software system.

Worksafe Australia is developing a National Regulatory Model Storage and Handling of Dangerous Goods. It will be adopted by the States to achieve national uniformity in the storage and handling of dangerous good by replacing current regulations.

 

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Transport

More detailed information

. State enforced regulations cover the transport of dangerous goods which call up the Australian Code for the Transport of Dangerous Goods by Road and Rail (ADG Code) with only minor variations. IATA accreditation applies to the transport by air and specific State regulation applies to explosives (including flares, ammunition etc). The codes are generally consistent with international practices and applies to dangerous goods moved outside the premises.

The regulations address procedures for managing and packaging chemicals as well as a system of diamond-shaped placarding and labels and other information-based actions designed to encourage appropriate response by other persons. It is a key document and its principles are reflected in current storage regulations.

 

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Product Liability

More detailed information

Whereas occupational health and safety legislation address product-related injury in the workplace, Part VA of the Trade Practices Act 1974 covers injury related to the use of the product by the consumer. A deceptive conduct statute is described in section.

The Act primarily addresses defective (unsafe) products that are not as safe as persons in the community are generally entitled to expect. It supplements existing laws for negligence for defective products under;
bulletCommon law
bulletbreach of contract; and
bulletof negligence.
bullet Product liability under state and federal sale of goods statutes. Part VA applies to all consumer products that have come onto the market since 9 July 1992 (common law applies previous to that date) including raw materials and finished goods that are personal, domestic or for household purposes.

Three types of defects are recognised;
bulletManufacturing defects that are inadvertent and unplanned (as a result of production, transport or storage). These are normally one-off in a product or production-run.
bulletDesign or formulation defects that occur at the beginning of design or formulation. These are repeated defects and inherent in the product.
bulletInformational defects from information conveyed or not conveyed (ie. information that should have been conveyed, whether deliberate or inadvertently). Labelling, literature, guarantees, advertising and promotion and information media. Included is a failure to identify a risk whether known or should have been known.
The legislation is aimed at;
bulletManufacturers;
bulletImporters, where the manufacture is overseas;
bulletPersons, who apply their own names or marks;
bulletManufacturers of components of the finished goods; and
bulletProducers of raw materials.
In other words distributors, own-branders, service providers and repairers may be defendants under product liability laws. Directors and officers of corporations may become personally liable under certain circumstances and the legislation does not affect rights to sue foreign parties.

Claimants

Claimants may be product purchasers, consumers, bystanders, workplace employees, consumer groups etc., if these have suffered;
bulletPersonal injury,
bulletLoss through injury to another person, or
bulletDamage to;
bulletother goods that are for personal, domestic or household use; or
bulletland, buildings or fixtures that are ordinarily acquired for personal use.
Claimants must prove;
bulletProduct was defective or unsafe, and
bulletLoss or damage was caused by the defect.
The legislation recognises all relevant circumstances. These include;
bulletManner of marketing;
bulletThe presentation, including markings;
bulletWarnings and instructions on harmful products.
bulletFailure to warn at time of supply of known and discoverable risks (including known or should have been known including for regulations and foreseeable misuse of the product);
bulletreasonably expected uses, including misuses; and
bullettimes at which the goods were supplied.
In other words, ignorance is not a basis for avoiding liability! Furthermore, it is worth noting that the manufacturer may be liable to claims for injury as a result of contamination or tampering of their package by another party if the packaging is susceptible to contamination or tampering. Further, raw material suppliers may be held liable indirectly if the finished product has contributed to injury that is linked to the raw material (or component).

Since March 1992, class action may be used when there are more than seven persons with common claims.

Part VA provides for joint and several liability (ie. two or more parties may be held collectively and individually liable).

Damages

Damage may be for;
bulletPersonal injury;
bulletDamage to real property; and, under certain circumstances
bulletEconomic loss.
Some defences to claims include;
bulletA statute of repose that places a limit of ten years after supply for which a claim must be commenced;
bulletA limit of three years from the date of becoming aware of the defect or injury;
bulletThe product was delivered at a state of art knowledge about the ability to detect the defect or the injury (ie. not able to detect the defect). Therefore one must be able to claim the product was tested to detect all defects according to current state of knowledge of technology and awareness of all risks of injury.
bulletThe defect arose after supply (and not reasonably anticipated etc); and
bulletDefective due to compliance with legislation;
As components of goods are included, a defence claim could include that the;
bulletdefect is attributable to the design of the finished goods; or
bulletrelates to the markings instructions or warnings of the finished goods.
Risk minimisation

Measures to minimise claims and costs include;
bulletRegular process and product testing (quality control including of containers),
bulletLegal review of;
bulletwarnings and instructions on products,
bulletpromotional material and advertising,
bulletguarantees and warranties,
bulletcontracts for the;
bulletpurchase of raw materials/components (including packaging),
bulletsupply of goods,
bullet Measures to review;
bulletliterature and research to maintain awareness of risks, and
bulletlegislation related to occupational health and safety,
bullet Effective liability insurance, bullet Review of defect response procedures including;
bulletproduct recall from market, and
bulletinformation release.

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References

Guide to Chemicals in Australia - Volume 1, The Material Safety Data Sheet. ISBN 0-646-01372-6, published by Chemlink Pty Ltd, Perth WA.

Guide to Chemicals in Australia -Volume 2, Using, Moving and Storing Chemicals. ISBN 0-646-03992-X, published by Chemlink Pty Ltd, Perth WA.

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Chemlink Pty Ltd ABN 71 007 034 022. Publications 1997. All contents Copyright © 1997. All rights reserved. Information in this document is subject to change without notice. Products and companies referred to are trademarks or registered trademarks of their respective companies or mark holders. URL: www.chemlink.com.au/
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