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UpdatesMay 02, 2012

Codes of practice – What they are and why you should use them

Safe Work Australia has developed codes of practice which support the new WHS Act and Regulations. These are largely based on existing codes and guidelines that supported the previous health and safety legislation.

For people who have health and safety duties under the WHS Act, the model codes of practice aim to make it as easy as possible for those people to understand what they need to do to comply with their duties.

By Joanna Weekes

Safe Work Australia has developed codes of practice which support the new WHS Act and Regulations. These are largely based on existing codes and guidelines that supported the previous health and safety legislation.

For people who have health and safety duties under the WHS Act, the model codes of practice aim to make it as easy as possible for those people to understand what they need to do to comply with their duties.

What is a code of practice?

An approved code of practice is a practical guide (developed by Safe Work Australia, informed by public comment and approved by the Workplace Relations Ministers’ Council) to assist you in complying with your health and safety duties under the WHS Act and Regulations.

In most cases, following an approved code of practice would result in your compliance with the health and safety duties in the WHS Act relating to the subject matter of that code.

It is important to remember though, that codes of practice deal with particular issues and do not cover each and every hazard or risk which may arise in your workplace. As a duty holder, you need to consider all risks associated with work you carry out, not only the ones that the codes of practice specifically point out.

Model codes of practice are largely based on existing jurisdictional codes – these existing codes will remain in place until the draft codes of practice have been approved.

Model codes of practice

The following codes of practice have been approved by members of the Workplace Relations Ministers’ Council (WRMC) and are referred to as the model codes of practice.

If your workplace is involved with any of the areas mentioned below, please find and refer to the relevant code of practice at the Safe Work Australia website.

The model codes of practice are:

Draft codes of practice

The following codes have been endorsed by Safe Work Australia but not yet approved by the WRMC, these are referred to as the draft codes of practice – while these codes have not officially been approved yet, it is recommended that you follow the existing codes in your jurisdiction. Once approved, you can use the new codes as a guideline as to how to comply with your duties.

The draft codes of practice are:

You can access all of these codes of practice via Safe Work Australia by clicking on the link. The safety regulator in your jurisdiction will also have copies of the applicable codes on their websites – please refer to the Information Directory at the start of your OH&S Handbook for the contact information of your safety regulator.

The Preventing and Managing Fatigue in the Workplace and Preventing and Responding to Workplace Bullying draft codes of practice are currently being revised based on public comment.

Who do the codes of practice apply to?

A code of practice will apply to the parties described in the code as having a duty of care, e.g. in the Confined Spaces model code of practice, it states that the following parties have duties:
– a person conducting a business or undertaking;
– designers, manufacturers and suppliers of plant or structures;
– officers; and
– workers.

Are codes of practice legally binding?

Codes of practice are not legally binding in the same way as are the statutory obligations imposed on you under the WHS Regulation or WHS Act. The codes are guidelines to assist you in complying with your statutory obligations under health and safety legislation.

In other words, a person cannot be prosecuted for not complying with a code of practice and a person with health and safety duties under WHS legislation is not obligated to use the codes to comply, they can use an alternative method so long as that alternative method ensures safety.

However, model codes of practice are admissible in court proceedings to be used as evidence of what is known about a hazard, risk or control measure, and a court may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates. A failure to follow a reasonably practicable step set out in a code is likely to result in the court finding a breach of the health and safety legislation. It is therefore good practice to observe any applicable code.

Additionally, an inspector may refer to an approved code of practice when issuing an improvement or prohibition notice.

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