Option 1: Status quo – No changes to regulatory settings
The status quo is premised on the existence of the general duties on businesses and workers under the HSW Act.
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As a quick recap, these duties require PCBUs to eliminate or use controls to minimise worker exposure to the hazard and risks from RCS. PCBUs must:
Complete a risk assessment and review controls before starting work using engineered stone; and
- eliminate risks that arise from its work so far as is reasonably practicable, or
- minimise risks so far as reasonably practicable.
Therefore, in most instances when working with engineered stone, this will mean making use of wet-working control measures, dust control measures, and Personal Protective Equipment (PPE).
We see several issues with the status quo
Despite the obligations of PCBUs under the HSW Act and the amount of guidance material available on risks and controls for RCS, there is evidence that RCS risks are not always being managed as well as they could be.
The status quo effectively means that engineered stone fabricators must minimise RCS risks to workers and others in all cases. While the duty under the HSW Act is clear, the means of compliance required are not set out explicitly. The steps taken by different businesses varies considerably according to the resources of the business, the segment of the market they are competing in, and the operator’s stance towards health and safety and worker wellbeing generally.
WorkSafe inspectors have conducted several rounds of inspections to the 157 engineered stone businesses since 2019.[1] Each round has had a different focus, and over time assessment practices have evolved, the range of matters assessed has expanded, and inspectors are increasingly firmer on ensuring risks are managed. Key observations from inspection rounds are:
- Although businesses are now more aware of the risks of exposure to RCS and overall are managing RCS risks more effectively than when inspectors first visited in 2019, …
- … businesses vary in how effectively they are implementing controls to manage the risks from RCS and even better-performing businesses can lapse in applying effective controls from time to time, and …
- … the matters that notices have been issued for have changed since 2019 e.g. inspectors have not issued a notice for dry cutting or dry sweeping since 2020. However, notices for housekeeping have continued, which indicates there are still issues regarding the level of understanding in some businesses around the risks that the presence of dust poses.
During the last round of inspections, conducted between June 2023 and October 2024, inspectors revisited 102 businesses and issued 131 enforcement actions to 67 businesses. 107 of these actions were enforcement notices issued under the HSW Act:
- 3 prohibition notices[2] – all were for machine guarding, which is not an RCS risk management issue, and
- 104 improvement notices, most commonly for housekeeping[3] (25), machine guarding (17), fit testing of respiratory protective equipment (15), health monitoring (15) and exposure monitoring (9).
With regards to NZESAG’s voluntary accreditation programme, uptake and completion rates of the programme were lower than expected at commencement. However, there has been a significant increase in participation from May 2023 after increased media coverage of both the risks associated with RCS and the Australian decisions. The increase was also supported by two key suppliers of engineered stone requiring programme accreditation by fabricators they supply.
The current settings are predicated on being flexible and proportionate to the PCBU’s obligations to keep workers safe. We are interested in the extent that this is being achieved.
The lack of prescribed regulation means that businesses should be able to respond to changes in risks and technology quickly and in a cost-effective manner. We are interested in understanding whether this is the case, or whether more prescriptive regulatory settings may be required.
Due to the underlying risk, inconsistent compliance with good practice, and scientific uncertainty about what drives harm from work with engineered stone, the current regulatory settings for working with engineered stone may not be sufficient to ensure that risks from RCS are eliminated or minimised by PCBUs so far as is reasonably practicable. In aggregate, this means that workers continue to be at risk of harm.
Questions about Option 1: the status quo – no change
2. Do you think the status quo is adequate or inadequate to address the risks involved in work where RCS may be present? Tell us why.
3. What, if anything, could the regulator do within the status quo to support businesses to address the risks without needing to change current laws and regulations?
Additional questions for businesses
19. What controls do you have in place to manage risks of RCS to your workers and how effective do you consider these controls to be?
20. If you are able to quantify the cost, can you please provide figures for the costs of the controls you currently use? Do you see these as being reasonable?
21. Do you face any barriers to meet the current expected practices to manage risk? If yes, please explain.
22. Would you describe your interactions with the regulator as useful, reasonable, and timely? Please tell us why.
Footnotes
[1]The number of known businesses fabricating engineered stone has increased from 101 in 2019 to 157 in 2024.
[2]Prohibition notices prevent a specific activity from occurring until the situation is rectified.
[3]Housekeeping notices require a work area to be cleaned (and maintained) to ensure dust is not building up on equipment or in the fabrication area so the business can readily see if a dust control starts to become ineffective.