Work Health and Safety Exemption (Construction induction training — ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) 2019

Scope of exemption: The instrument identifies three principal regulatory obligations that are disapplied for the defined cohort. First, the duty on the person conducting a business or undertaking (PCBU) to ensure CIT is provided before construction work commences (regulation 316) (para 4(a)(i)). Second, the related prohibition on directing or allowing construction work where the worker has not successfully completed CIT (subregulation 317(1)), and the requirement for a CITC or a GCITC issued within 60 days prior to the work (subregulation 317(2)) (para 4(a)(ii)-(iii)). Third, the duty on workers to keep a CITC or a pending GCITC available for inspection (subregulation 326(1)(a)-(b)) (para 4(b)).

Definition of the covered workers: The instrument defines "technical specialists" narrowly (para 3). They must be recruited from overseas by ASC AWD and engaged specifically in construction work that provides technical support for installation, set‑to‑work, integration and testing of platform and combat system hardware for Air Warfare Destroyer ships at the Osborne shipyard (para 3(b)(i)-(ii)). ASC AWD itself is a named beneficiary of the exemption (para 3(a)). The instrument notes ASC AWD is a body corporate prescribed under the WHS Act as a public authority (para 2).

Substantive alternative training regime: Rather than the nationally-recognised CIT/CITC regime, the exemption conditions require ASC AWD to provide an internal "ASC safety induction training" before the technical specialists commence construction work (para 7(1)). The instrument prescribes minimum trainer qualification (Certificate IV in training and assessment or equivalent), subject areas to be covered (roles, responsibilities and rights under the WHS Act and WHS Regulations; consultation and reporting processes; risk management principles; common construction hazards and controls; safety information and documentation), a workplace WHS tour, language assistance via interpreters where necessary, and an assessment requiring a written examination with a minimum score of 80 per cent (para 7(2)(a)-(e)). ASC AWD must keep course content records and individual completion records (para 7(3)-(4)). Issuance of site security passes is tied to satisfactory completion (para 7(5)).

Temporal and administrative features: The instrument replaces the earlier 2014 exemption (para 8), commences after registration (para 9), and carries an explicit expiration date tied to a calendar date or program completion (para 10). The instrument is granted on ASC AWD’s written application (para 2), and is subject to cancellation or amendment under regulation 697 of the WHS Regulations (para 10).

Primary beneficiaries: ASC AWD Shipbuilder Pty Ltd is expressly named as a person to whom the exemptions apply (para 3(a)). The instrument therefore alters duties that would otherwise attach to ASC AWD under the cited WHS Regulations in respect of the covered technical specialists (para 4(a)).

Covered workers: The instrument applies to a defined set of overseas technical specialists recruited by ASC AWD who perform the specified construction work activities at the Osborne shipyard (para 3(b)(i)-(ii)). Membership of this class depends on three factual predicates: recruitment from overseas by ASC AWD, participation in the defined technical support tasks, and performance of that work at the specified shipyard. Workers who do not meet those predicates fall outside the exemption.

Other workers and duty-holders: The text does not alter duties for other workers or PCBUs beyond those named. The exemption operates to remove certain obligations from ASC AWD and to relieve the named technical specialists of particular obligations to carry or make available CIT evidence (para 4). It does not purport to remove or alter other WHS duties, or duties that may apply under other provisions of the WHS Act or Regulations that are not specified in para 6.

Security and access control stakeholders: The instrument gives ASC AWD control over site access for technical specialists by making site security pass issuance conditional on satisfactory completion of the ASC safety induction training (para 7(5)). This places responsibility for security-related work access decisions with ASC AWD subject to the condition.

Regulator and administrative actors: The instrument is made on application by ASC AWD (para 2) and is a legislative instrument under the Legislative Instruments Act 2003 (note). It replaces an earlier instrument and is subject to amendment or cancellation under regulation 697 of the WHS Regulations (paras 8, 10). The text therefore implicates the administrative functions of whichever regulator administers the WHS Act and Regulations, by creating an exemption that may be subject to regulatory oversight or cancellation, though those powers are only referenced, not described in the instrument.

Program timeframe stakeholders: The instrument’s operation is temporally tied to the Air Warfare Destroyer Program; ASC AWD must retain records "until the completion of the Air Warfare Destroyer Program" (para 7(4)), and the whole instrument expires on 30 September 2020 or earlier upon completion of that program (para 10). Parties responsible for program completion dates will therefore affect how long the exemption remains operative.

Duties removed by the exemption: The instrument explicitly relieves ASC AWD of the duties in regulation 316 and subregulations 317(1) and (2) insofar as they would require CIT and possession of a CITC/GCITC for the defined technical specialists (para 4(a)(i)-(iii)). It also relieves the technical specialists of the obligation in subregulation 326(1) to keep a CITC or GCITC available for inspection (para 4(b)(i)-(ii)). These are the discrete regulatory obligations that the instrument disapplies.

Alternative duties imposed on ASC AWD by conditions: The exemption is conditional on ASC AWD providing ASC safety induction training to technical specialists before they carry out construction work (para 7(1)). The instrument prescribes minimum standards for that alternative training:

• Trainer qualification: trainers must hold at least a Certificate IV in training and assessment or an equivalent qualification (para 7(2)(a)). This places a hiring, contracting or validation duty on ASC AWD to ensure trainer competence.

• Course content: the ASC safety induction training must include specified subject areas (duties/roles under the WHS Act and Regulations; consultation and reporting processes; principles of risk management; common construction hazards and control measures; and safety information and documentation) (para 7(2)(b)(i)-(v)). ASC AWD is required to provide and document content covering these topics (para 7(3)).

• Workplace familiarisation: training must include a WHS tour of the Osborne shipyard (para 7(2)(c)), which imposes a practical delivery requirement.

• Language assistance: training must cater for specialists not fully conversant in English by providing a suitable interpreter (para 7(2)(d)), which imposes an accessibility duty.

• Assessment: technical specialists must achieve at least 80 per cent in a written examination upon completion of training (para 7(2)(e)), which imposes an assessment and recordkeeping duty on ASC AWD.

ASC AWD must maintain course content documents (para 7(3)) and keep a record for each technical specialist showing successful completion until program completion (para 7(4)). ASC AWD may only issue a site security pass to technical specialists upon satisfactory completion (para 7(5)). These are positive obligations that replace the CIT/CITC compliance path for the defined cohort.

Rights and permissive acts under exemption: The exemption expressly permits ASC AWD to direct or allow technical specialists to undertake construction work even if they have not completed CIT (subregulation 317(1) is disapplied) (para 4(a)(ii)). That is, ASC AWD gains discretion to allow work to proceed without the nationally-specified CIT credentials, provided the conditions of the exemption are met.

Temporal rights and duties: ASC AWD and technical specialists have rights and obligations that persist only so long as the exemption remains in force , the instrument is time-limited and tied to the Air Warfare Destroyer Program (para 10). The instrument replaces an earlier instrument and is subject to cancellation under regulation 697, which affects the durability of the altered duties and rights (paras 8, 10).

What the instrument does not change: The instrument limits itself to the CIT requirements and the evidence forms identified (CITC and GCITC) (para 5). It does not state that other obligations under the WHS Act or other Regulations are removed; nor does it set out new offences or civil liabilities in the instrument itself. Enforcement and penalties under the WHS Act/Regulations are not replaced in the text of the instrument.

The instrument does not itself create new penalties or detail enforcement procedures. It grants an exemption from specified regulatory duties and imposes alternative conditions on ASC AWD, but it does not, within its text, specify sanctions for non‑compliance with those conditions. The instrument therefore leaves enforcement and penalty frameworks to the existing WHS Act and WHS Regulations, insofar as they apply to exemptions, regulatory compliance and the duties that remain in force. The instrument explicitly references regulation 697 of the WHS Regulations as the mechanism by which the exemptions may be cancelled (para 10), indicating that administrative cancellation is available under the Regulations, although the instrument does not describe the process or sanctions in detail.

Administrative oversight: Because the instrument is a legislative instrument granted on application (para 2) and is registered on the Federal Register of Legislative Instruments (para 9), the relevant regulator and administrative authority retain a role in maintaining the statutory framework within which the exemption operates. That role will include, at minimum, the capacity to amend or cancel the exemption under the referenced regulatory provision (para 10). The instrument requires ASC AWD to keep records and course content documents (para 7(3)-(4)), which creates an administrative trail that a regulator could inspect when assessing compliance with the conditions attached to the exemption.

Indirect enforcement mechanisms embedded in the conditions: The conditions themselves contain compliance-linked mechanisms. For example, ASC AWD may only issue site security passes to technical specialists after satisfactory completion of ASC safety induction training (para 7(5)). This ties worker access to the site to completion of the alternative training and serves as an operational enforcement lever internal to ASC AWD. Recordkeeping obligations (para 7(3)-(4)) facilitate evidentiary verification of compliance.

Limitations on the instrument’s punitive reach: The instrument does not purport to change criminal or civil liability imposed by other provisions of the WHS Act or Regulations for breaches unrelated to the CIT/CITC requirements that have been exempted. It neither prescribes monetary penalties nor civil remedies in this text. Any penalty exposure arising from a failure to meet the exemption’s conditions would therefore depend on how the WHS Act and Regulations treat non‑compliance with conditions attached to an exemption or on other applicable statutory duties; the instrument itself provides no additional penalty schedule.

Direct interaction with the WHS Regulations: The instrument expressly modifies the application of three parts of the WHS Regulations to the defined parties. It disapplies regulation 316 and subregulations 317(1) and (2) in relation to the named technical specialists as concerns CIT and the carrying of a CITC/GCITC (para 6(a); para 4(a)). It also disapplies subregulation 326(1) to the technical specialists with respect to keeping a CITC or GCITC available for inspection (para 6(b); para 4(b)). The instrument therefore operates as a limited and specific carve‑out from those regulatory obligations.

Relationship to the WHS Act: The instrument refers to duties and inspection obligations "under the Act" when discussing the obligation to keep a CITC or GCITC available (para 4(b)). ASC AWD is noted to be a body corporate prescribed by the WHS Act as a public authority (para 2). The exemption therefore sits within the WHS statutory scheme: it does not repeal the Act, but adjusts the operation of specified regulatory duties under the Act for a defined cohort.

Administrative regulation and legislative instrument status: The instrument is described as a legislative instrument within the meaning of the Legislative Instruments Act 2003 (note), and it replaces an earlier exemption instrument (para 8). As such it interacts with the administrative law framework governing legislative instruments, registration and publication (para 9), and the mechanisms for amendment or cancellation available under the WHS Regulations (para 10, referencing regulation 697). The instrument’s commencement, registration and expiration are therefore governed by that broader administrative framework.

Interplay with national CIT regime and credentials: The instrument suspends the application of the nationally‑recognised general construction induction training and the requirement to hold a CITC/GCITC for the defined technical specialists, but it requires ASC AWD to deliver an alternative training regime. This creates a substitution effect: technical specialists may not hold the nationally portable CITC while they work under this exemption, but they are required to complete a site‑specific induction documented and assessed by ASC AWD (para 7). The instrument does not address whether technical specialists may or may not obtain a CITC independently; it simply removes the workplace obligations to ensure or carry the CITC/GCITC for the defined circumstances (para 4).

Temporal relationship to the Air Warfare Destroyer Program: The exemption is tied to the Air Warfare Destroyer Program by reference to the program’s completion date for record retention requirements and for the instrument’s expiry (para 7(4); para 10). Therefore program milestones and administrative determinations about program completion will interact with the duration of the statutory carve-out.

Replacement of prior instrument: The instrument expressly replaces and repeals the 2014 exemption instrument (para 8). That means the current legal position supersedes the terms of the prior instrument; any rights, conditions or administrative arrangements in the earlier instrument are replaced by the terms set out here.

What it does not change: The instrument is narrow in its scope. It does not purport to alter other areas of the WHS Act/Regulations beyond those specified, nor does it provide for cross‑jurisdictional recognition beyond the internal ASC safety induction framework set out in the conditions. It does not alter or define criminal liability or civil enforcement regimes beyond referencing regulatory cancellation powers.

Replacement of earlier instrument: The instrument expressly replaces and repeals a prior instrument titled Work Health and Safety Exemption (Construction Induction Training , ASC AWD Shipbuilder Pty Ltd and overseas technical specialists) (September 2014) , F2014L01195 (para 8). The text does not provide further detail about differences in content between the 2014 instrument and the current instrument; it simply records that the earlier instrument is superseded and repealed.

Commencement and registration: The instrument commences on the day after it is registered on the Federal Register of Legislative Instruments (para 9). The instrument includes a note that it is a legislative instrument under the Legislative Instruments Act 2003, referencing regulation 692(2) of the WHS Regulations in that context (note following the Name provision). The instrument does not itself list any prior amendments; it is presented as the operative instrument replacing the 2014 text.

Expiry and termination provisions: The instrument contains an explicit expiration date. It expires on 30 September 2020, or upon completion of the Air Warfare Destroyer Program, whichever is earlier (para 10). The text also indicates that the expiration date may be amended or the exemptions cancelled under regulation 697 of the WHS Regulations (para 10). The instrument therefore provides that its duration can be altered administratively under the referenced regulatory provision.

Amendment by regulatory process: Although the instrument does not contain operational amendment clauses beyond the replacement and expiration dates, it references the regulatory power for cancellation (regulation 697) and notes the legislative instrument status required under the Legislative Instruments Act 2003. Those references imply that amendments, cancellations or further replacements would follow the processes set out in the statute and associated regulations, but the instrument does not itself describe or initiate any amendment process beyond noting the existing powers.

What is not in the instrument: The text does not set out a schedule of amendments or a history of prior changes except for noting the 2014 instrument replacement. There is no provision in the instrument that permits partial amendment by ASC AWD or other parties; all such modifications would have to occur through the formal legal/regulatory process referenced.

Recordkeeping and program linkage: The instrument requires ASC AWD to keep completion records “until the completion of the Air Warfare Destroyer Program” (para 7(4)). That retention obligation ties the practical recordkeeping timeline to program milestones rather than strictly to the instrument’s calendar expiration, although the instrument also supplies a calendar fallback expiry date (para 10).

The instrument itself does not cite any judicial decisions, tribunal determinations or litigation history. There are no cases named in the text. It is presented as an administrative/statutory exemption granted on application and registered as a legislative instrument. The instrument does not record any legal challenges, litigation outcomes, or judicial interpretation related to its terms.

Consequently, there is no litigation history contained in this text to inform interpretation or compliance strategies. Any adjudicative history or contested interpretation would need to be sought in administrative or judicial records outside this instrument; the instrument contains no such material.

Implications of absence of litigation history in the instrument: The lack of cited litigation does not preclude later legal challenge; it simply means the instrument itself does not document any prior dispute. Practitioners seeking precedential or interpretive guidance on contested points arising from the exemption will need to consult external administrative decisions or court records, which are not included here.

Recordkeeping as evidential source: The instrument requires ASC AWD to maintain course content documents and individual completion records until program completion (para 7(3)-(4)). Those records will form the primary documentary basis for any administrative review, compliance audit or litigation about whether ASC AWD has complied with the conditions of the exemption. The instrument does not itself specify evidentiary rules, but the retention duty creates the factual record that would matter in any subsequent enforcement or dispute.

Narrow definition of "technical specialists": The exemption applies only to persons “recruited from overseas by ASC AWD” who carry out the specific technical support tasks at the Osborne shipyard (para 3). If an overseas worker is recruited by a third party or works in a different role, or at a different site, they will fall outside the exemption and the usual CIT/CITC obligations will apply. The instrument’s narrow predicates mean that factual misclassification of a worker’s recruitment source, tasks performed or work location will affect whether the exemption applies.

Substitution does not equate to national portability: The instrument disapplies the requirement for a CITC/GCITC in the specified circumstances (para 4). It replaces that national credential with an ASC safety induction that is specific to ASC AWD, requiring an 80 per cent pass in an ASC-written written examination (para 7(2)(e)). That replacement means technical specialists working under the exemption may not hold the nationally portable CITC while performing work at ASC AWD; the instrument does not address whether the specialist can later obtain a CITC or whether other PCBUs would accept the ASC training in lieu of a CITC.

Strict assessment threshold and language provision: The ASC safety induction training requires at least an 80 per cent mark in a written examination (para 7(2)(e)). The instrument requires interpreters to be provided for specialists not fully conversant in English (para 7(2)(d)). Practically, ASC AWD must arrange interpreters that facilitate a fair examination process. Failure to provide adequate interpreter support could lead to disputes over whether the specialist met the condition. ASC AWD must design both the training and the assessment to accommodate the interpreter-supported process and to document adequacy.

Record retention obligations tied to program completion: ASC AWD must keep a record for each technical specialist showing successful completion until the completion of the Air Warfare Destroyer Program (para 7(4)). Because the program completion date, rather than an absolute calendar date, governs retention, records may need to be kept beyond the instrument’s calendar expiry if the program has not completed. Conversely, if the program completes before the calendar expiry, obligations may terminate sooner. Accurate program milestone tracking is therefore material.

Site security pass linkage: ASC AWD may only issue a site security pass upon satisfactory completion of the ASC safety induction training (para 7(5)). Practically, if ASC AWD delays training or assessment, technical specialists’ access to the site will be delayed, with potential operational consequences. Ascertain whether any operational planning accounts for this gating mechanism.

Trainer qualification requirement: The requirement that trainers hold at least Certificate IV in training and assessment, or equivalent (para 7(2)(a)), imposes a specific human resources or contractor qualification burden. ASC AWD must verify qualifications or equivalence and maintain documentation as evidence (para 7(3)). Choosing an inadequate trainer risks non‑compliance with the exemption conditions.

Temporal and cancellation risk: The exemption expires on 30 September 2020 or earlier upon program completion (para 10) and may be amended or cancelled under regulation 697 (para 10). ASC AWD and technical specialists therefore face uncertainty about continuity; if the exemption is cancelled or expires while a technical specialist remains on site, the standard CIT/CITC obligations could reapply. Planning should address transitional arrangements in the event of cancellation or expiry.

Replacement of prior instrument without detail: The instrument repeals the 2014 exemption (para 8) but the text does not describe substantive changes. Parties transitioning from the 2014 instrument to this instrument should not assume identical terms without comparison to the earlier instrument.

No penalties specified in the instrument: The text does not specify penalties for failing to meet the exemption conditions or for the consequences of misapplication. Enforcement and penalty matters will be governed by the WHS statutory framework and administrative cancellation powers (paras 4, 10). Relying on the exemption without adhering to its conditions could therefore expose ASC AWD to regulatory action under the broader WHS regime.

Checklist for ASC AWD

1. Confirm applicability:

   • Verify that each overseas technical specialist is recruited by ASC AWD, is engaged in the specified technical support tasks (installation, set-to-work, integration and testing of platform and combat system hardware equipment), and will work at the Osborne shipyard. Only such persons fall within the exemption (para 3).

2. Deliver ASC safety induction training prior to work:

   • Ensure every technical specialist completes the ASC safety induction training before commencing construction work (para 7(1)).

3. Trainer qualifications:

   • Use trainers who hold at least a Certificate IV in training and assessment, or an equivalent qualification, and maintain evidence of those qualifications (para 7(2)(a); para 7(3)).

4. Course content and documentation:

   • Provide training that covers the specified subject areas: roles, responsibilities and rights under the WHS Act and WHS Regulations; health and safety consultation and reporting processes; principles of risk management; common construction hazards and control measures; and safety information and documentation (para 7(2)(b)(i)-(v)).
   • Maintain documented course content and materials and keep those documents for inspection (para 7(3)).

5. WHS tour and workplace familiarisation:

   • Include a WHS tour of the Osborne shipyard as part of the induction (para 7(2)(c)).

6. Language assistance and accessibility:

   • Provide a suitable interpreter during training for technical specialists who are not fully conversant in English and document the provision of interpreter services (para 7(2)(d)).

7. Assessment and pass mark:

   • Administer a written examination on completion of training and require a mark of at least 80 per cent for a satisfactory result; keep the marked assessments and results as records (para 7(2)(e); para 7(4)).

8. Recordkeeping:

   • Keep a record for each technical specialist showing successful completion of the ASC safety induction training, retained until the completion of the Air Warfare Destroyer Program (para 7(4)). Keep course content documents (para 7(3)). Ensure records are retrievable and auditable.

9. Site security pass control:

   • Issue site security passes to technical specialists only upon satisfactory completion of the ASC safety induction training (para 7(5)). Implement administrative controls to ensure no pass is issued prematurely.

10. Monitor temporal limits and cancellation risk:

    • Track the Air Warfare Destroyer Program completion timeline and the instrument’s calendar expiry (expires on 30 September 2020 or upon program completion, para 10). Monitor for any regulatory cancellations or amendments under regulation 697 (para 10).

Checklist for technical specialists

1. Confirm status:

   • Confirm recruitment by ASC AWD and that the role and work location at Osborne shipyard meet the instrument’s definition (para 3).

2. Complete ASC safety induction:

   • Attend and complete the ASC safety induction training prior to commencing construction work (para 7(1)).

3. Engage with assessment:

   • Prepare for and pass the ASC written examination with at least an 80 per cent mark (para 7(2)(e)). Request interpreter assistance where English language proficiency is limited (para 7(2)(d)).

4. Site access:

   • Expect site security pass issuance only after satisfactory completion of the ASC safety induction (para 7(5)).

5. Evidence and documentation:

   • Understand that the exemption means you will not be required to hold or keep available a CITC or a GCITC for inspection while working under the exemption (para 4(b)). Ensure you have ASC AWD’s record showing completion, as that will be the operative evidence of training under the exemption (para 7(4)).

Administrative and risk management actions for both parties

• Audit readiness: Maintain complete and contemporaneous records of trainers’ qualifications, course materials, exam papers, marked exams and completion records, because compliance with the exemption’s conditions is evidenced by those documents (para 7(3)-(4)).

• Operational coordination: Align induction scheduling with project timelines to avoid delays in site access, given the site pass gate imposed by the conditions (para 7(5)).

• Language and assessment fairness: Design assessments and interpreter processes to ensure that the 80 per cent threshold is assessable and fair to non‑English speakers; document how interpreters are used in training and assessment (para 7(2)(d)-(e)).

• Monitor regulatory status: Keep watch for any cancellation or amendment of the exemption under regulation 697, and plan for transition to the standard CIT/CITC regime if the exemption ceases to apply (para 10).

• Compare past instrument terms: If operational procedures were based on the 2014 instrument, confirm that current practices conform to the new instrument, which replaced and repealed the prior instrument (para 8).

Following these steps will align ASC AWD and the covered technical specialists with the explicit conditions and procedural requirements the instrument places on the alternative training mechanism and site access controls.