Purpose
This Procurement Policy Note is to advise entities of an upcoming amendment in the work health and safety (WHS) laws that will prohibit the use of engineered stone in Australia.
On 13 December 2023, Commonwealth, State and Territory governments agreed to amend the model WHS laws to include a prohibition on the use of engineered stone. The majority of jurisdictions will commence the prohibition from 1 July 2024.
WHS and Workplace Relations Ministers also released a communique encouraging businesses and consumers to be mindful of the upcoming prohibition on the use of engineered stone products and to avoid entering into contracts for these products that may not be able to be fulfilled.
The prohibition responds to the rise in silicosis diagnoses in engineered stone workers and evidence that the respirable crystalline silica (RCS) workers are exposed to when cutting or processing engineered stone is linked with an earlier onset of, and more severe form of silicosis. Silicosis in an incurable lung disease caused by inhaling RCS.
Policy application in Commonwealth Procurement
To lead the way on these changes, the Australian Government has agreed to immediately restrict the installation of engineered stone in procurements and contracts for building or refurbishment projects funded or controlled by the Commonwealth.
Paragraph 4.4 of the Commonwealth Procurement Rules (CPRs) requires ‘public resources to be used in an efficient, effective, economical and ethical manner that is not inconsistent with the policies of the Commonwealth’. The use of engineered stone is considered to be inconsistent with the policies of the Commonwealth and no longer demonstrates value for money as it poses an unacceptable health risk to workers.
As for any procurement, and especially when amending an existing approach to market or varying a contract, officials should consider the requirement in paragraphs 5.2 and 5.4 of the CPRs in relation to considering the costs imposed on relevant entities and potential suppliers and that all potential suppliers be treated equitably.
This policy applies to entities that are subject to the Commonwealth Procurement Rules (CPRs), non-corporate Commonwealth entities and prescribed corporate Commonwealth entities (CCEs). Non-prescribed CCEs are strongly encouraged to comply with the intent of this policy.
Approaches to market (ATM)
ATMs currently underway, including those under negotiation, should be managed in line with the policy to restrict the use of engineered stone.
Entities may choose to include an addendum to a current ATM to inform potential suppliers of the requirement to restrict the use of engineered stone in tenders. Entities should provide sufficient time for potential suppliers to respond to the addenda.
Where the approach to market has closed and/or in contract negotiation, entities should consider an alternative product to engineered stone. Depending on the significance of engineered stone in the assessment of value for money, it may be appropriate to seek a revision of the tender or to undertake a new process.
Existing contracts
In advance of the prohibition coming into effect, entities should explore options to renegotiate affected contracts for alternate products.
While this policy will not be applied retrospectively, Department of Finance (Finance) expects entities should apply best endeavors to amend existing contracts in advance of the ban.
Further advice
Further questions relating to the policy decision to restrict engineered stone can be directed to the Department of Employment and Workplace Relations at whspolicy@dewr.gov.au.
For questions relating to procurement, please contact your Central Procurement Team or Finance’s procurement policy team at procurementagencyadvice@finance.gov.au.
