Operators of Major Hazard Facilities must develop a safety management system, safety assessment and safety case.
The operator of a licensed Major Hazard Facility (MHF) must manage risk by establishing, reviewing and maintaining:
- the major incident and major incident hazard identification document
- the safety assessment
- the safety management system
- the emergency plan.
The operator must prepare a safety case that demonstrates that the safety management system will control risks arising from major incidents and major incident hazards and that the control measures implemented at the facility are adequate. This involves:
- an analysis of all potential major incidents and hazards
- documenting assessment methods used in investigation and analysis
- providing the rationale for implementing risk control measures
- reviewing the adequacy of the risk control measures.
The safety case must be presented with the licence application to the regulator. Operators of licensed Major Hazard Facilities also have specific consultation obligations with emergency services, councils and the local community.
Who are operators?
Section 533 of the Work Health and Safety Regulation 2011 defines the 'operator' of an MHF as a person conducting a business or undertaking (PCBU) who has management or control of the facility and the power to direct the whole facility to close down.
The operator of the MHF is therefore the company or PCBU that either owns the facility, or has management or control of the facility and the power to direct the whole facility to close down.
The site manager or the person responsible at the site level for operating or managing the MHF is not the 'operator' under this definition as they are not the PCBU.
The authority to act on behalf of the company or PCBU as the 'operator' can be delegated to the site manager for the purpose of completing notification forms. Appropriate PCBU personnel may also be nominated by the PCBU to act as their agent and thus represent the PCBU under the principle of agency.
Operators, their delegates or agents as appropriate, must provide the notification and declaration information required.
Part A of Form 69: Notification of a facility exceeding 10% of schedule 15 thresholds (smart form) must be filled out for the operator (PCBU) and each officer of the PCBU. The officers must be identified but do not need to individually sign.
'Individual' operator versus operator as a 'body corporate'
Section 538 requires specific content to be addressed where the operator is an individual (s.538(3)(a)), as distinct from the operator as a body corporate (s.538(3)(b)).
An 'individual' operator refers to a business or undertaking conducted by a partnership or an unincorporated association. An example may be a warehouse storing schedule 15 chemicals over the specified threshold which operates under a partnership and is not registered under the Corporations Act 2001 (Cth). In this case, the operator must provide the notification and declaration information.
An operator is a body corporate if the company operating the MHF is registered under the Corporations Act 2001 (Cth). If the operator is a registered company, it is required to provide notification and declaration information in relation to the operator and to each of the officers of the company operating the facility.
In addition, where the operator is a body corporate, the safety case for the facility must be signed-off by the most senior executive of the company residing in Queensland. For the purpose of this provision, the authority to act on behalf of the 'operator' or company is delegated to the 'senior executive officer' of the 'operator' or company residing in Queensland.
'Officer' of an 'operator' of the facility
An 'officer' of the operator or company operating the facility is defined under s.9 of the Corporations Act 2001 (Cth). The definition of officer of a corporation includes any of the following:
- a director or secretary of the corporation
- a person:
- who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation
- who has the capacity to affect significantly the corporation's financial standing
- in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation)
- a receiver, or receiver and manager, of the property of the corporation
- an administrator of the corporation.