Australian WHS Ministers met on 22 March 2024 to determine a number of key implementation matters associated with the prohibition on the use of engineered stone benchtops, panels and slabs.

Ministers agreed to draft amendments to the model WHS laws to give effect to the ban of engineered stone from 1 July 2024. These amendments are as follows:

• make clear that the prohibition applies to engineered stone benchtops, panels and slabs;
• specify that all sintered stone and porcelain products (including benchtops, panels and slabs) are excluded from the prohibition, and for the avoidance of doubt, clarify that porcelain products and sintered stone for this purpose are products that do not contain resin; and
• clarify that finished engineered stone products (e.g. jewellery, garden ornaments, sculptures, kitchen sinks) which do not require processing or modification and pose minimal risk to the health and safety of workers, are not prohibited.

Benchtop, panels and slabs made from alternative materials

Ministers noted that processing alternative products containing crystalline silica will be subject to the stronger regulations on crystalline silica processes, including a prohibition on uncontrolled processing. Businesses also have existing duties to manage the risks to workers and others in the workplace from exposure to harmful airborne chemicals.

Safe Work Australia has been asked to review the health risks to workers associated with processing slabs, panels, and benchtops made from alternative materials that may contain or be free from crystalline silica. The review is to be completed by 31 July 2025.

Potential Rebranding of Existing Products

Ministers condemned any attempt by companies to rebrand engineered stone as another product to intentionally avoid the prohibition. They encouraged WHS regulators to take strong compliance and enforcement action regarding the ban, including addressing instances of rebranding engineered stone as a different product.

Sintered Stone

Safe Work Australia has been instructed to report back to Ministers by the end of April 2024 with urgent advice on the health risks of sintered stone and whether any additional safeguards are necessary to address the issue of rebranding.

Transitional arrangements for contracts for engineered stone benchtops, panels and slabs

Ministers agreed jurisdictions may adopt a transition period for contracts entered into before the announcement of the prohibition. This means that work involving the supply, installation or processing of engineered stone benchtops, panels and slabs between 1 July 2024 and 31 December 2024 would be exempt from the prohibition provided the work is carried out under, or for the purposes of, a contract that provides for the installation of engineered stone entered into on or before 31 December 2023. Activities undertaken during this period must be appropriately controlled and subject to stronger WHS regulations for high-risk crystalline processes, as agreed upon at the meeting.

Ministers encouraged businesses and consumers to explore alternative products under eligible contracts as soon as possible and approach any required contract negotiations in good faith to minimise the use of engineered stone benchtops, panels and slabs during this transitional period.

What will happen with existing (legacy) engineered stone?

Ministers considered a national framework for the removal, disposal, repair or minor modification of legacy engineered stone developed by Safe Work Australia. They agreed that a notification framework should be adopted in the model WHS laws. Under this framework, businesses planning to undertake permitted work with legacy engineered stone must notify WHS regulators. Failure to provide the required information will constitute an offence.

Ministers noted the need for further work to be undertaken by Safe Work Australia to finalise the framework as a priority. They agreed by majority that, under this framework, persons conducting a business or undertaking would need to demonstrate compliance with notification requirements upon request.

Disposal of engineered stone

The prohibition of engineered stone will allow for the disposal of installed and uninstalled engineered stone benchtops, panels and slabs, requiring processing to be controlled. The disposal of engineered stone held in stock will align with existing jurisdictional waste management requirements.

Regulation of other crystalline silica processes

Ministers reaffirmed their commitment to preventing workers and others at the workplace from exposure to respirable crystalline silica across all industries. They agreed on the policy parameters for a stronger regulatory framework for workers processing crystalline silica-containing materials and products. This includes specific requirements for persons conducting a business or undertaking carrying out high-risk crystalline silica processes to:

• develop a Silica Risk Control Plan aimed at identifying hazards associated with crystalline silica processes and measures to control these risks;
• provide additional training for workers or others likely exposed to the risks associated with high-risk crystalline silica processes;
• undertake air and health monitoring for workers; and
• report workplace exposure standard exceedances to the relevant WHS regulator.

Ministers agreed that all crystalline silica processes are to be considered high risk unless determined otherwise by a person conducting a business or undertaking through a risk assessment, and minimum requirements for risk assessments should be set out in these regulations. These minimum requirements will include assessing whether the airborne concentration of respirable crystalline silica is reasonably likely to exceed half the workplace exposure standard.

In addition, to better protect workers from the risks of respirable crystalline silica, Ministers also agreed to the prohibition of uncontrolled processing of all crystalline silica substances, across all industries.

Ministers confirmed that these strengthened regulations, which include the prohibition of uncontrolled processing of all crystalline silica substances, will apply to porcelain products and sintered stone.

Review

Safe Work Australia is to finalise a review of the prohibition by 31 July 2025 to ensure it is effectively protecting workers from exposure to respirable crystalline silica and to identify and assess any unintended consequences. This process includes the Ministers’ request for Safe Work Australia to consider the health risks posed to workers from processing slabs, panels and benchtops made from alternative products that may contain or be free from crystalline silica.

Next steps

Ministers agreed that Safe Work Australia would work with the Australasian Parliamentary Counsel’s Committee to finalise amendments to the model WHS Regulations that give effect to the prohibition, exemption provisions, transitional arrangements, and legacy management framework by the end of April 2024. This will ensure jurisdictions can expedite the adoption of these arrangements in their respective WHS laws before 1 July 2024.

Ministers noted additional time may be required to settle arrangements and assessment criteria for the exemption framework. Safe Work Australia will provide further advice on developing the national framework for exempting engineered stone products to WHS Ministers for consideration by the end of April 2024.

Safe Work Australia will work with the Australasian Parliamentary Counsel’s Committee to finalise the amendments to the model WHS Regulations for crystalline silica processes and for these amendments to be provided to Ministers by the end of April 2024.

Once amendments are finalised, Ministers agreed to implement these regulations by 1 September 2024 for all work with substances containing at least 1 per cent crystalline silica. In the interim, regulations prohibiting uncontrolled processing of engineered stone, sintered stone and porcelain benchtops, panels and slabs will continue to apply.

Ministers agreed that further guidance should be developed by Safe Work Australia to support businesses in implementing the new regulations, particularly to assist in understanding and implementing the prohibition and the safety frameworks applicable to alternative products, as well as the development of any codes of practice.

Further detail on the agreed amendments to the model WHS Regulations and agreed policy parameters for a national framework for working with legacy engineered stone, exemption framework for the prohibition, engineered stone amendments and regulation of crystalline silica processes will be available on the Safe Work Australia website in coming weeks.

Ministers agreed to meet again in May 2024.