Australia’s world-leading ban on engineered stone introduces additional WHS and legal ramifications for employers in the building and construction industry, writes GLENN JOHNSON.

On 13 December 2023, ministers responsible for work health and safety across Australian jurisdictions announced a ban on the use of engineered stone products, which came into effect on 1 July 2024. The ban includes the manufacture, supply, processing and installation of engineered stone benchtops, panels and slabs due to the significant health risks associated with respirable crystalline silica, which is linked to silicosis and other lung diseases.

The ban was recommended in a 2023 report by Safe Work Australia following a rise in silicosis cases among workers handling engineered stone. The report found engineered stone workers not only faced a greater risk of developing silicosis, but also saw a faster disease progression and higher chance of death when they did get it.

“While silicosis cases have been found in workers across a range of industries and silica-containing materials, a disproportionate number of silicosis diagnoses are in engineered stone workers,” the report said.¹

Jonathan Walsh, Principal Lawyer at Maurice Blackburn, specialises in dust diseases, and welcomes the ban.

“Maurice Blackburn represents hundreds of workers diagnosed with deadly silicosis and other silica-related autoimmune diseases following exposure to silica dust,” he said. “Every day we see the devastating impacts of exposure. This ban will drastically reduce the number of people affected by silicosis and related diseases in the future.”

The ban on engineered stone presents a number of ramifications for businesses in the building and construction industry and their workers.

Non-uniformity of state regulations

The engineered stone ban in Australia aims to address the rising incidence of silicosis among workers who process this material. Regulations for the ban, however, vary across different states and territories. Some jurisdictions have a transition period for contracts entered into prior to 31 December 2023, while other states and territories are implementing a complete outright ban, regardless of contractual agreements.

In New South Wales, South Australia, Tasmania, Western Australia and the Northern Territory, a transition period allows engineered stone to be supplied, processed and installed up until 31 December 2024, provided the contract was in place prior to 31 December 2023. In contrast, Victoria, Queensland and the ACT have implemented an outright ban from 1 July, regardless of contractual obligations. It is therefore up to the business to negotiate contract variations with their clients.

Differing laws do not, however, affect the responsibilities of employers in relation to the health and wellbeing of their employees.

“The ban on use, importation and supply of high silica-containing engineered stone does not discriminate based on state regulation and cannot be selectively implemented, directly or indirectly,” Walsh said.

“The differing laws don’t affect the contractor insofar as his personal responsibility is concerned regarding worker self-protection and system of work. However, the law that applies to the product manufacturer or supplier depends on the state within which the product is purchased or supplied.”

Ongoing safety controls

A ban on engineered stone, however, does not imply that workers will no longer be exposed to the hazards the material presents. New installations will still occur in those states and territories during the transition period, and there will be ongoing exposure to legacy engineered stone in existing sites going forward — whether through repairs, modifications or disposal.

Employers whose workers are therefore engaged in working with engineered stone must now comply with not only safety controls for their workers but reporting and application requirements required in each jurisdiction.

“Employers have a paramount duty to ensure the safety of their workers, to design and implement a safe system of work and to make sure they comply with any relevant workplace safety laws,” Walsh said.

Key safety controls include (but are not limited to):

• Wet cutting and polishing: Using water suppression systems to reduce dust generation.
• Local exhaust ventilation and tool attachments: Implementing LEV systems and on-tool extraction systems to capture and remove airborne dust at its source.
• Personal protective equipment (PPE): Providing workers with appropriate respiratory PPE, such as P2/N95 masks or higher, with fit testing and training on proper usage.
• Enclosed work areas: Conducting high-risk activities in enclosed areas with controlled ventilation to prevent the spread of dust to other parts of the workplace.
• Health surveillance: Regular health checks for workers exposed to silica dust to monitor for signs of silicosis or other respiratory conditions — including lung function tests and chest X-rays.
• Safety training: Providing regular training to workers on the risks of silica dust, proper use of control measures and emergency procedures.
• Regulatory compliance: Adhering to local regulations and guidelines, including any specific requirements for silica dust control and reporting.
• Signage and hazard communication: Posting clear signage in areas where silica dust exposure is possible and ensuring all workers are aware of the hazards and control measures in place.

“Organisations like Safe Work Australia and state- and territory-based workplace health regulators have published details to help employers and workers to understand what’s required under the engineered stone ban,” Walsh said.

Penalties for non-compliance

Employers who allow their employees to work with engineered stone without adhering to the prescribed safety controls face serious legal ramifications. Penalties for non-compliance vary across states and territories but fines can be as high as $30,000 for individuals and $190,000 for companies, and repeated violations can lead to work stoppages, legal proceedings, business closures and, in some cases, imprisonment.

“Workers’ legal rights in these scenarios remains as it always was: the legal duty remains on employers to design and implement a safe system of work for their employees and on suppliers to provide adequate risk warning and other information around the optimal methods of working with the products safely,” Walsh said.

Stricter controls in the near future

Safe Work Australia has also flagged even stricter controls to come into effect from 1 September 2024. These new regulations will relate to the supply of, and working with, other materials with amounts of crystalline silica greater than 1%.

“Australia’s world-leading ban on engineered stone was brought into place to help combat the devastating impact of exposure to silica dust, but this is only the beginning for much needed reform across all high-risk silica workplaces across the country,” Walsh said. “New and improved regulation is required to help better protect the 600,000 other Australian workers who are exposed to silica dust every day.”

Employers should regularly check the Safe Work Australia website to ensure they are aware of the latest available guidance.

^{1. ABC News 2023, Engineered stone ban needed to protect workers from silicosis, Safe Work Australia report says, https://www.abc.net.au/news/2023-10-27/silicosis-engineered-stone-bench-report-released-by-government/103026286}