In brief - Businesses' safety procedures should reflect updated codes
On 1 April 2016, the 23 codes of practice made under the Work Health and Safety Act 2011 (Cth)
were revoked and remade as separate instruments. As the codes are admissible in court proceedings as evidence of whether or not a duty or obligation under the WHS Act has been complied with, businesses would be wise to ensure that their safety management systems are up to date with these codes.
Minor revisions to seventeen of Safe Work Australia's codes of practice
The codes of practice, developed by Safe Work Australia
, are practical guides to achieving the standards required under the WHS Act. The following is a list of the 23 codes:
Prior to the revocation, the 23 codes were contained within two instruments, being the Work Health and Safety Codes of Practice 2011 (Cth)
and the Work Health and Safety Codes of Practice 2012 (Cth)
. The codes have now been remade as 23 separate instruments, with the content of the codes remaining largely unchanged save for minor revisions to 17 of the codes in order to remedy small technical and drafting errors.
In the Explanatory Statement issued by Minister for Employment, Senator the Honourable Michaelia Cash
, it was stated that the revocation and remaking of the codes as separate instruments has been done to "improve accessibility of the codes on the ComLaw website
and streamline the process for making future updates to the codes."
Codes may be used in court as evidence of non-compliance with WHS Act
As the codes of practice have been revoked and remade under the Commonwealth WHS Act, the remade codes apply to Commonwealth authorities and to corporations licensed to self-insure under the Comcare workers' compensation scheme. In addition, businesses that contract to a Commonwealth authority and work at their workplace may also be required to comply with the codes.
If an incident does occur on your worksite and a prosecution results from the investigation, the codes will be admissible in proceedings as evidence of whether or not a duty or obligation under the WHS Act has been complied with.
The court may regard the codes as evidence of what is known about a hazard or risk, risk assessment or risk control to which the codes relate and may rely on the codes in determining what is reasonably practicable in the circumstances to which the codes relate.
An inspector can also refer to a code of practice when issuing an improvement notice or prohibition notice.
States and territories expected to bring codes into line with the Commonwealth
We expect that the states and territories will assess the amended codes of practice and move to revoke and remake their codes to align with the changes made at the Commonwealth level.
Ensuring that your safety management system is current with the updated codes of practice will demonstrate that you are taking all reasonably practicable steps to manage safety in your business.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.