It took time to introduce these Code of Practice (COP) documents into the WHS document set for employers to use as a reference for implementing the WHS Legislation. As the WHS legislation was introduced into Australia there was a general lack of understanding of the specifics required.
The legislation made statements for the employer to ensure a safe workplace as it related to the hazard but did not provide any process to do this. Compliance Standards were introduced to prescribe ways of preventing or minimising risks to workers from exposure to specific hazards at a workplace. These documents were not overly helpful and often just repeated the legislative requirement with minor explanations of the terminology.
These Compliance Standards were replaced with Advisory Standards. This was an improvement as they included drawings, flowcharts and practical guidance on the legislative requirements and making the documents easier to read. They increased in size and began to stitch together and provide a holistic view of the hazard in the workplace. Often adding simple Q&A examples drawn from reference groups on the topics. The latest COP mirror the Safe Work Australia documents provide practical guidance on how to meet the standards set out in the WHS Act and the WHS Regulations. These Codes of Practice are admissible in proceedings as evidence of whether a duty under the WHS laws has been met.
They can also be referred to by an inspector when issuing an improvement or prohibition notice.
It is recognised that equivalent or better ways of achieving the required work health and safety outcomes may be possible. For that reason, compliance with a COP is not mandatory providing that any other method used provides an equivalent or higher standard of work health and safety than suggested by the Code of Practice.
Code of Practice – Queensland Only
There is an exception to this in Queensland. As part of a review following some incidents, several changes were made to the legislation that included making adherence to the Codes of Practice a must. Work Health and Safety Act 2011 s26A states …. A person conducting a business or undertaking must, if the Minister approves a COP for the purposes of this Act,
(a) comply with the code; or
(b) manage hazards and risks arising from the work carried out as part of the conduct of the business or undertaking in a way that is different to the code but provides a standard of health and safety that is equivalent to or higher than the standard required under the code.
An approved COP applies workers who have a duty of care that relates to the hazard described in the code. Though merely an approved code of practice would achieve compliance with the health and safety duties the PBCU is required to continue to reevaluate and improve where the technology or understanding of the hazard changes.
There are many codes that are developed to directly assist the management of hazards in workplaces.
The harmonised WHS Act imposes a positive duty on employers to monitor many hazards in the workplace with the most recent being psychosocial hazards. This COP can assist employers in the context of the broad duty to eliminate or manage hazards and risks to a worker’s health. As always health includes psychological wellbeing. This is not a new development but that a COP hase been developed to assist employers with their duty to manage psychological and mental health risks.
These documents provide practical guidance on how to achieve health and safety standards required under the harmonised Work Health and Safety legislation adn are taken on by the states and territories to assist in discharging their duty.
Codes of practice deal with specific issues and do not cover all hazards or risks that may be in a workplace. The PCBU must consider all risks associated with work, not only those risks that regulations and codes of practice are available for. While approved codes of practice are not law, they remain admissible in court proceedings. Courts may regard an approved COP as evidence of what is known about a hazard, risk or control and may rely on the relevant code to determine what is reasonably practicable in the circumstances. Understanding that the Queensland Work Health and Safety Act 2011 and other harmonised legislation taken from the Model Health and Safety legislation may from time to time be amended. Users must refer to the most current version of the Health and Safety Act and Regulation available.
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