On 1 July 2024, a new ban commenced on the use of engineered Stone in the ACT, and updates were made to the Silica Dust Code of Practice.[1] Here’s what you need to know about the ban to avoid penalties as an employer, or to ensure you’re working in safe conditions as an employee or contractor.

Over the last several years, the ACT Government has updated its regulations and requirements for working with crystalline silica materials to reduce the risk of workers developing Silicosis from silica dust. Safety regulations applying to crystalline silica materials (including engineered stone) were strengthened in 2022. The latest update comes in the form of an amendment to the Work Health and Safety Regulation 2011 (ACT) to align with a national ban on engineered stone, along with an updated Silica Dust Code of Practice.[2]

WHO WILL THE NEW LAWS EFFECT?

From 1 July 2024 a person conducting a business or undertaking (PCBU) will no longer be able to manufacture, supply, install or process engineered stone benchtops, slabs or panels in the ACT. This ban therefore affects businesses and workers who work with silica materials in the above capacity. The ban has no transitional period for implementation in the ACT, regardless of whether a pre-existing contract for engineered stone has been executed.

For clients or consumers who have purchased engineered stone, the imposition of the ban does not require you to remove engineered stone from your home or workplace. Engineered stone is safe once installed and does not pose any health risks if left undisturbed. WorkSafe ACT does warn against DIY projects on existing engineered stone due to the health risks it may pose and suggests that removal of engineered stone should be conducted by a qualified tradesperson who can dispose of it at an appropriate ACT waste facility.

WHAT CONSTITUTES AN ENGINEERED STONE?

For the purposes of the ban, an engineered stone is an artificial product created by combining natural stone materials with other chemical constituents (e.g. water, resins or pigments) and contains 1% or more crystalline silica.

The following materials are not considered to be engineered stone (although may comprise silica – see below) and therefore, are not subject to the ban:

  • Concrete or cement products;
  • Bricks, pavers and other similar blocks;
  • Ceramic wall and floor tiles, grout, roof tiles and grout;
  • Mortar and render;
  • Plasterboard;
  • Porcelain and sintered stone products that do not contain resin.

EXCEPTIONS TO THE BAN / PERMITTED WORKS

There are minimal exceptions to working with existing legacy engineered stone, and permitted works in the ACT are limited to the following:

  • Genuine research, analysis, sampling and identification of the stone;
  • Removal, repair or minor modifications to installed engineered stone; and/or
  • Disposal of engineered stone.
  • The ban also exempts finished engineered stone products that are not required to be processed or modified such as jewellery, garden ornaments, sculptures and kitchen sinks.

Commencing on the 1 November 2024, WorkSafe ACT will require written notification that a PCBU is, or likely to carry out any of the above permitted exempt works, and the ACT silica safety regulations will continue to apply to permitted legacy work after 1 July 2024.

Whilst some states may allow applications for other exemptions to the ban for certain types of engineered stone, there is no application process in the ACT. The ACT will, however, recognise any exemptions granted by another jurisdiction, consistent with the nation-wide ban. Accordingly, only the above exceptions to the ban are permitted works, upon notification to WorkSafe ACT.

FURTHER OBLIGATIONS UNDER RECENT SILICA POLICIES

Despite being excluded from the ban, crystalline silica materials that do not meet the definition of engineered stone (e.g. concrete, bricks etc.) are still subject to the Silica Dust Code of Practice.

The main requirements include PCBU’s updating their Safe Work Method Statement (SWMS) to include a risk assessment of using crystalline silica material and a silica dust control plan. The SWMS should advise on safety measures such as:

  • supplying water over cutting areas to reduce dust,
  • undertaking air monitoring, and
  • providing workers with respiratory protective equipment, for example.

The Code provides great examples of possible control measures,[3] and insights on how to update your SWMS.[4]

The second requirement is for PCBU’s to ensure Silica dust awareness training for their workers. The Code provides information on examples of crystalline silica materials, definitions of a ‘duty holder’, appropriate controls for mitigating risks, monitoring of air and health, how to identify silica hazards and clean-up or disposal of silica dust. We recommend you read over the Code to better understand your own obligations and how to meet them, noting that each business and worker may have different levels of responsibility.

PENALTIES ASSOCIATED WITH A BREACH OF THE NEW LAWS?

WorkSafe ACT is the Territory’s work health and safety regulator, and is the body responsible for management, monitoring and enforcement of the Work Health and Safety Act 2011 (Cth). To reflect the significant safety concerns related to silicosis, the following penalties have been set for breaches of the new laws and are enforced by WorkSafe ACT.

Breaching the prohibition on engineered stone slabs, benchtops or panels will result in a maximum penalty of $8,400 in the case of an individual and $42,000 in the case of a body corporate.

Breaches of the Code will result in penalties which range from $6,000 to $30,000 per breach. The recent case of SafeWork NSW v Edenstein Creative Pty Ltd in the NSW District court however,[5] highlights the potential for fines to accumulate, with an engineered stone provider being fined $375,000 for exposing an employee to silica dust over a considerable amount of time.

Breaches of the above regulations may also open PCBU’s up to liability under other laws and regulations.

HOW CAN SHG HELP?

If you would like to discuss any of the above changes, such as any new obligations or whether you are eligible for an exemption, Snedden Hall & Gallop’s Business Team can advise you further. We are also available to communicate with WorkSafe ACT and represent you where you are in breach of the laws. The Employment Team and Personal Injury Team can also provide guidance where you believe your employer is providing unsafe work environments in contravention of the new regulations.

 

REFERENCES

[1] Work Health and Safety (Managing the Risks of Airborne Crystalline Silica (Silica Dust) in the Workplace Code of Practice) Approval 2024 (ACT).

[2] Ibid.

[3] Work Health and Safety (Managing the Risks of Airborne Crystalline Silica (Silica Dust) in the Workplace Code of Practice) Approval 2024 (ACT), 51.

[4] Ibid, Appendix B and C.

[5] [2024] NSWDC 178