Offshore wind - work, health and safety obligations

As Australia seeks to establish an offshore renewable energy industry to support the emissions target of net zero by 2050, key new proposed regulations clarify and expand upon work health and safety requirements. Licence holders seeking to develop and operate offshore renewable energy and electricity transmission infrastructure in Commonwealth waters will need to have these new requirements front of mind.

Snapshot

• The Offshore Electricity Infrastructure Act 2021 (OEI Act) and associated Regulations generally apply the Work Health and Safety Act 2021 (Cth) (WHS Act) with some modifications to ensure the OEI framework is fit for purpose for hazardous and high risk remote offshore worksites.
• The recent consultation on draft amendments to the Regulations and an associated Consultation Paper have clarified and significantly expanded upon the content of work health and safety requirements for offshore wind projects and other activities under the OEI Act. Subsequent ‘preliminary information’ released by the Offshore Infrastructure Regulator (OIR) (being the National Offshore Petroleum Safety and Environmental Management Authority or “NOPSEMA”) has also provided further guidance.
• Licence holders will need to take care in preparing the WHS Management Plan that must form part of the management plan, and establish processes that meet the additional WHS requirements of the offshore wind regime.
• The Commonwealth government has also introduced a new industrial manslaughter offence in the WHS Act.
• Officers of OEI licence holders have specific due diligence obligations under work, health and safety laws, and should ensure they put in place effective systems and processes. 

Background to the OEI Regulatory Regime

The OEI regime established a framework for declaring areas, and a licensing regime, for offshore renewable energy and electricity transmission infrastructure projects. Six priority areas have been identified and are in different stages of the regulatory process, with feasibility licences recently granted for the Gippsland area and decisions expected shortly for the Hunter area.

The government has been developing and releasing the supporting Regulations to the OEI legislative framework in stages to facilitate projects commencing as soon as possible. The initial Regulations in 2022 dealt with licensing, fees and levies. The second stage Regulations, due to be released in mid-late 2024, will expand upon and amend the existing Regulations, and prescribe regulations that will guide licence holders once they have received an OEI licence. The proposed amendments will deal with management plans, safety and protection zones, and work health and safety, among other things.  

In this note, we focus on the key WHS issues that may be relevant when preparing an OEI management plan. For an overview of management plans more generally, including consultation and financial security requirements, please see our previous article on this topic here.

WHS under the OEI Framework

Consultation recently closed on these second stage Regulations; the proposed Offshore Electricity Infrastructure Amendment Regulations 2024 (Draft Regulations). The Draft Regulations will clarify and significantly expand upon the work health and safety regulatory framework which will apply to offshore infrastructure activities. This includes how these laws apply, what the regulator will expect of license holders to demonstrate compliance with safety laws, and the potential consequences of non-compliance.

The baseline position which currently applies under the Offshore Electricity Infrastructure Act 2021 (OEI Act) to offshore renewable energy and electricity transmission infrastructure projects will be maintained. That is, the Commonwealth WHS Act (which is based on the Model WHS Laws) will continue to apply to work under OEI Act licences.

Depending on the location and nature of the work, marine and aviation safety laws may also apply, and it should be noted that State and Territory WHS law may apply to elements of offshore wind and other OEI projects that are located in State or Territory coastal waters or onshore.

In a general sense, activities under OEI licences are subject to the same foundational safety regulatory regime that would apply to onshore infrastructure activities. However, the introduction of the Draft Regulations will more closely align the work health and safety regulatory framework (and the WHS management plan requirement) for these projects to other forms of offshore projects (like offshore petroleum facilities, which require a safety case).  The materials indicate that the intention of these changes is to provide a WHS framework which is suited to the unique nature of offshore renewable energy and electricity transmission infrastructure projects and in particular, the complex, high risk and remote working environments.

What is proposed?

• Licensees will have specific responsibility for oversight of project planning and overall accountability for safety - While there are multiple WHS duty holders operating on offshore infrastructure projects, the proposed Regulations will elevate the role of the licensee as having specific safety obligations attached to their licence conditions.  Licence holders will have specific responsibility of safety oversight and for reviewing and updating WHS management plans for the complete project lifecycle. This monitoring and coordination role will exist whether or not a principal contractor is also appointed.
• WHS Management Plans - The proposed Regulations introduce the concept of a WHS Management Plan which forms part of the overall Management Plan under the relevant feasibility or other OEI licence. Licensees will be required to submit a single WHS Management Plan which sets out the licence holder’s management systems and arrangements for ensuring that the licence holder, and any contractors and subcontractors, have appropriate mechanisms to ensure that WHS obligations are being met. These management plans will need to be submitted and approved by the Regulator prior to the commencement of certain activities within the licence area and must provide oversight for the entire range of activities and interactions throughout the entire project, so far as they relate to WHS matters, infrastructure integrity, emergency management, and environmental management of the specific site.
• Other changes There are a range of other changes as part of the proposed Regulations, including: a new design notification scheme required for commercial and transmission & infrastructure licences – PCBUs must prepare and submit specific design notifications to the Regulator in relation to offshore renewable and electricity transmission infrastructure, with the intent that safety matters are taken into account early in the design phase of the offshore infrastructure project prior to its construction; changes to prescriptive commercial diving WHS regulations  and extended safety notification obligations.

WHS management plans – the OIR expectations?

The introduction of the proposed Draft Regulations and the requirement for WHS Management plans will mean that safety planning, safety management systems and asset integrity will be subject to close scrutiny as a precondition of granting a license and throughout the life of the project (in monitoring compliance with license conditions). The OIR will have broad powers to issue directions as to the content and execution of the WHS Management Plan, and to assess, investigate and enforce compliance with that plan. The Plans will need to address a range of issues, including: 

• WHS Consultation: The regulator will expect to see evidence of workforce consultation in developing and reviewing the WHS Management Plan.
• Project Oversight: The PCBU must demonstrate appropriate oversight of the WHS matters relating to the operations of contractors, subcontractors and workers who are involved in the project.
• Risk management: The licence holder will need to ensure they have a system in place for identifying and managing risks to health and safety and implementing appropriate control measures on an ongoing basis for the life of the offshore infrastructure project. This includes ensuring that the system is tailored to the specific offshore infrastructure project and identifies project specific hazards and risks that may occur, and is adaptable if new hazards or risks are identified, and updated and revised when the scope of work changes.
• Interface Risk Management: The WHS Management Plan will need to address the interfaces between the licence holder, other PCBUs and workers to ensure that the project as a whole is managed safely, and that obligations under the applied WHS provisions can be met. Interfaces between different activities and operations must be identified, and hazards that may arise from these interfaces must be appropriately managed. There must be evidence of consultation, coordination and communication between the PCBU and the duty holder on the project.
• Upstream WHS Duties Addressed: To the extent that the licence holder owes any other duties under the WHS Act including as a designer, manufacturer, supplier, importer or installer, this will need to be addressed in the WHS Management Plan. Although there is no need to set out an exhaustive list of obligations in the WHS Management Plan, the licence holder should demonstrate that they are meeting the duties and obligations that apply to them. This is consistent with the WHS Act general principle that an entity can have multiple concurrent duties in different capacities.
• Contractor Engagement and Assurance: The WHS Management Plan must address the process of engaging, verifying and monitoring contractors, including expert/specialist contractors. Specifically, it should consider how the PCBU will satisfy itself that its contractors follow a safe system of work.
• Incident Notification: The WHS Management Plan should define how incident notification obligations will be managed, especially in circumstances where there are multiple duty holders on the project.
• Principal Contractor Appointments: The engagement and responsibilities of Principal Contractors must be managed as between duty holders throughout the lifecycle of the project.
• Compliance with WHS Management Plan: It is the licence holder’s responsibility to ensure that all parties are informed of their obligations and that systems are in place to report non-compliances or potential non-compliances with obligations to the licence holder. The WHS Management Plan should describe how the management system will allow the licence holder to identify non-compliance throughout the course of their activities and importantly, what processes will be in place to respond to instances of non-compliance such that remedial actions can be taken to return to compliance.
• Information, training instruction: The licence holder will need to ensure there is a system in place for verifying all workers have appropriate qualifications, competencies, and any supervision required to undertake tasks safely and responsibly, as well as periodically refreshing and updating these over the life of a project. The WHS Management Plan should describe how this will be identified and tracked over time.

Key takeaways

It is clear that WHS matters form a central component of licence holders’ OEI management plans. License holders should ensure that project planning includes allocation for the time and resources likely needed for the development of a WHS Management Plan, together with the WHS consultation required, and the OIR review and approval process. Project planning should also ensure that WHS responsibilities for parties on these projects are clearly defined and communicated, including those of licensees and Principal contractors.

For parties interested in seeking a feasibility licence in future, the process and timeframe for satisfying these requirements should be factored into project planning, including risk management and governance structures.

It should be noted that these changes come at the same time that the Commonwealth Government has introduced a new industrial manslaughter offence in the federal WHS Act. Officers of licence holders have personal due diligence obligations under WHS Laws and should ensure that they are meeting their due diligence obligations under WHS Laws.

By Nerida Jessup and Olga Klimczak with Heidi Asten, Emily Ainsworth, Eloise Nagel and Rae Huang  ​​​​​​​