Offshore electricity workplace safety duties harsher after rule changes

The amendments to the Offshore Electricity Infrastructure Regulations (OEI Regulations), which recently came in effect, are the second stage of rules that provide scaffolding for parties in offshore renewable energy infrastructure and offshore electricity transmission infrastructure. Licence holders now have additional work health and safety duties, and regulators have more oversight of the activities planned and undertaken on offshore projects.

Changes to the requirements of management plans

Under the new regulations, management plans will be required to describe the activities being carried out and the work health and safety measures being implemented for the project. Once a management plan is approved by the regulator, a person cannot carry out activities in a way that is contrary to those procedures. With this new change, licence holders of management plans currently in place will need to review their plans and revise them if they fail to identify high risk hazards, identify controls, or do not include other relevant work health and safety matters.

The rules also resolve uncertainty by clarifying that licence holders have a duty to consult their workers on work health and safety matters when creating or revising a management plan. This, in our view, has always been the case, but the legislation changes make it irrefutable. Licence holders and officers that fail to consult their workers during the creation or revising of a management plan could receive a consultation charge from the regulator under the Work Health and Safety Act.

We recommend that consultation involve the relevant sharing of information about the project with workers to the extent it gives workers a reasonable opportunity to:

• express their views;
• raise work health and safety matters; and
• contribute to the decision-making process.

The views expressed by the workers must be taken seriously and considering them can often be the difference in avoiding safety incidents and other offences.

If the project is at its beginning, and there are no workers available to consult, then licence holders must consult each union that will be reasonably likely to represent the industrial interests of workers on that project. 

Safety notification regulations

In addition to the consultation duties, there are new safety notification regulations. Licence holders will now be required to alert the regulator of events that have the potential to result in a dangerous high-risk situation. This includes any workplace health and safety incident, damage to infrastructure, marine vessel collision or contraventions of safety and protection. Following the initial notification, licence holders must then provide a report of the event within 48 hours after the first notification, with more details of the event. 

The notification and reporting of the event is intended to assist the regulator in monitoring the project and enables the regulator to react quickly to the matter. Failure to notify the regulator of these events will constitute an offence under the Offshore Electricity Infrastructure Act, and potentially the Work Health and Safety Act as well. This increased regulatory oversight is a sign that regulators will increase their focus on the solar industry.

Safety zone applications

As regulators turn their attention to the offshore electricity industry, licence holders may want to consider the safety zone and protection zone applications they make for their projects. The new rules clarify the procedures involved in safety zone applications and emphasise their importance when working on a project.

Well established safety zones can reduce the possibility of safety incidents to workers, and limit the damage caused to infrastructure or vessels operating on the project. Every application for a safety zone or protection zone will be reviewed by the regulator, which will determine whether the zone is adequately designed for work health and safety risks. The regulator may also vary or revoke a safety zone determination at any point of time, including after the regulator receives a safety notification or report. The new rules also provide that the regulator must decide on the safety zone application within 60 days, though the regulator may also extend that decision period in a notice to the licensees.

The clarification of the procedures on safety zones indicates that the requirements for safety zone applications may be more significant than they have been in the past.

Ultimately, these new regulations prove that the obligations of regulators have grown, and that licensees are at risk of charges and penalties if they fail to meet these new rules.

Co-written by Andrew Herlinger of Pinsent Masons.