Option 4: Increased general duties and monitoring in all workplaces exposing workers to RCS

Option 4 increases the general duties of PCBUs in all industries where workers are likely to be exposed to RCS, including but not limited to engineered stone fabrication.

For engineered stone fabrication, it can be deemed similar to option 2, as the outlined specific requirements in option 2 will likely need to be applied by businesses under option 4. However, option 4 also applies to other industries in which workers are likely to be exposed to RCS. This option is premised on the idea that regulatory requirements would create certainty for businesses, health and safety professionals, and workers that work with materials containing crystalline silica, therefore creating clear and effective requirements. This option may improve standards in a more durable and consistent way than can be achieved under option 1 (the status quo).

Option 4 is made up of several sub-options, all of which can be considered separately but all fall into the category of mandatory requirements. We could consider only setting more stringent requirements for work with engineered stone (options 2, 3, and 5) and allow the status quo to continue in other industries, or apply requirements more evenly across all industries in which workers are likely exposed to RCS. Therefore, option 4 could apply solely to engineered stone. We welcome feedback on all three sub-options individually and as a group.

Sub-option 4A introduces a general duty to reduce RCS exposures from work in all workplaces, while sub-option 4B and 4C would introduce mandatory requirements for worker exposure and health monitoring for workers in all industries where there is a likelihood of exposure to RCS. This would follow recent amendments to the Australian model WHS laws, and set performance expectations for all workers that are at risk of exposure to RCS, not only those working with engineered stone. 

Any monitoring option in itself will not prevent harm from occurring. However, option 4 could work particularly well in combination with option 2, discussed above, to ensure that controls are effective in reducing harm to workers. 

We recommend reading Annexes III and IV before considering the below sub-options. These Annexes outline the background and current exposure limits relevant to understand the options outlined below. 

Sub-option 4A: General duty to reduce RCS exposures from work in all other workplaces

Sub-option 4A would introduce a general duty to reduce RCS exposures from work in all other workplaces. It has broad application and would apply to workplaces that work with any crystalline silica containing materials, including engineered stone. 

This option would introduce measures to strengthen requirements for all workers processing crystalline silica-containing materials and products. It would prohibit the uncontrolled processing of all crystalline silica containing materials, across all industries in New Zealand. This means that all crystalline silica processes are to be considered high risk unless determined otherwise by a PCBU through a risk assessment. 

This option arises from risks to workers from the broad range of stone, masonry and ceramic materials that contain crystalline silica and that have historically been a cause of silicosis in mine and quarry workers, stonemasons working with natural stone, and the construction sector, predominantly when working with concrete products, but others as well. WorkSafe estimate that up to 80,000 workers in these sectors are working in conditions where the Workplace Exposure Standard (WES) for RCS is regularly exceeded.

Australian regulations could provide an example

The Model Work Health and Safety Regulations (Crystalline Silica Substances) Amendment 2024^[1] in Australia has specific requirements for businesses 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 exposure and health monitoring for workers, and
• report workplace exposure standard exceedances to the relevant WHS regulator.

This option would impose regulatory requirements to monitor worker health, and workplace exposure to RCS. These are discussed in options 4B and 4C below.

Sub-option 4B: Mandatory worker health monitoring for workers in all industries where there is a likelihood of exposure to RCS 

Sub-option 4B would make mandatory worker health monitoring for workers in all industries, including engineered stone fabrication, where there is a likelihood of exposure to RCS. 

Such a regulatory provision could be given effect to by sector specific guidelines or requirements in a safe work instrument, on who is covered by the monitoring requirement, and the nature of the health assessment required.

Health monitoring, particularly for respiratory disease is a requirement of the Health and Safety at Work (Mining Operations and Quarrying Operations) Regulations 2016. It has been a feature of the mining and quarrying sector for decades and is also a feature of the current NZESAG Accreditation Programme for engineered stone fabrication businesses.

Sub-option 4B would require health monitoring of all workers in a workplace that is assessed as being likely to exceed the WES for RCS, e.g. workplaces that manipulate products with high crystalline silica content in which dust is produced, for example tunnelling, mining, quarrying, and production of engineered stone.

Ongoing health monitoring differs in nature and purpose from the ACC Accelerated Silicosis Assessment Pathway, which is being carried out to check whether engineered stone workers have silicosis and to ensure they get the treatment and care they need (see Annex I). Instead, worker health monitoring by a PCBU is to provide assurance that controls are in place and working, and workers are not being harmed. It has application to chronic, accelerated, and acute forms of silicosis and other silica-related diseases.

For the engineered stone sector, specific tests and investigations are needed to detect accelerated silicosis. WorkSafe currently requires engineered stone businesses to provide evidence that they are undertaking health monitoring.  However, there is no specific guidelines on what sort of health monitoring is required. Current costs have been estimated by the occupational health sector as between $150–500 per worker per annum for each worker, plus $800–1,800 per worker biannually for engineered stone workers (both costs met by the business) depending on the provider and the tests needed. The higher charges relate to low resolution computed tomography (CT) scans. 

WorkSafe has been working with health professional groups to develop more specific health monitoring requirements for engineered stone businesses that use appropriate, and available, diagnostic technologies. More information is required to inform this option. 

Sub-option 4C: Exposure monitoring of all workplaces where there is a likelihood of exposure to RCS 

Sub-option 4C would require businesses to ensure the workplace conditions are monitored by a competent person (such as an occupational hygienist) who can ensure that effective controls are in place. That person may determine that exposure monitoring is necessary depending in the workplace. This would apply to all workplaces where there is a likelihood of exposure to RCS. Exposure monitoring is used to assess the level of exposure to a substance and is used as part of assessment of controls to determine whether they are effective. 

In New Zealand there is evidence of inconsistent risk identification and use of appropriate controls,^[2] resulting in a significant proportion of workers at risk of exposures at or above the exposure standard. While the risk profile for RCS exposure in other industries is different from engineered stone, the number of workers exposed is much larger.

Section 36(3)(g) of the HSW Act clarifies that the primary duty of care that PCBUs have includes monitoring the conditions at the workplace (including exposure monitoring) and the health of workers. So, while it is not an explicit requirement there is a general duty that PCBUs are expected to meet. We understand that monitoring is already required in Australian states, but that observance is lower than Safe Work Australia would like. 

Exposure monitoring may be made mandatory by regulations which could have application in subsectors within the construction, manufacturing and mining and quarrying sectors.

We require more information to determine whether option 4 would be effective and how the costs involved influence current uptake

While we can infer that the costs imposed on duty holders to ensure appropriate health monitoring, especially in the engineered stone sector, are relatively high, we need more evidence as to the impact this has. 

Exposure and health monitoring are likely the best tools to determine the effectiveness of option 2, and a general duty would expand the focus to other industries who would also be required to undertake health and exposure monitoring. Monitoring alone does not manage the risk or exposure. Mandatory monitoring could be used to support mandatory requirements as it provides useful information to determine whether those controls are working effectively.

We note that exposure monitoring in small businesses is problematic and costly as it is difficult to get enough samples to provide meaningful results if there are only two or three workers. We welcome feedback on this point.

Footnotes

^[1] See the Amendment (Crystalline Silica Substances) 2024 and the Explanatory Statement - Amendment (Crystalline Silica Substances) 2024 by Safe Work Australia.

^[2]See Annex IV on further information on the status quo.

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