Australia: Ramp up preparation on codes and WHS incidents

Last Updated: 18 July 2012
Article by Nick Noonan, Lisa Berton and Ben Urry

As the process of harmonisation of work health and safety (WHS) laws in Australia continues, understanding codes of practice and how to deal with incidents will gain importance as regulators shift from education to enforcement.

What are codes of practice?

Codes of practice are practical guides which set out how standards of health, safety and welfare may be achieved as required by WHS legislation. The codes of practice provide guidance on some of the risks and hazards in the workplace and how to identify them. They represent a minimum benchmark which must be achieved by all persons conducting a business or undertaking (PCBUs), including employers.

Codes of practice are admissible in court proceedings, and courts may regard a code of practice as evidence of what is known about a hazard or risk and rely on it to determine what is "reasonably practicable". However, a person cannot be prosecuted for failing to comply with a code of practice.

Various codes of practice were released by Safe Work Australia on 1 January 2012 as part of the harmonisation of WHS laws, with new ones to be released progressively throughout the remainder of this year.

Draft, pending and existing codes of practice

At present, the following draft codes of practice are open for public comment:

  • Cranes,
  • Amusement Devices,
  • Industrial Lift Trucks,
  • Managing Risks of Plant in Rural Workplaces,
  • Managing Security Risks in the Cash-in-Transit Industry, and
  • Managing Risks in Forestry Operations.

If you would like to review and/or comment on these draft codes of practice, you can do so at the public consultation section of the Safe Work Australia website.

Codes awaiting adoption by the individual states and territories which have implemented harmonised work health and safety laws (Qld, NSW, ACT, NT and Cth) include:

  • Safe Design of Building and Structures,
  • Excavation Work,
  • Demolition Work,
  • Spray Painting and Powder Coating,
  • Abrasive Blasting,
  • Welding and Allied Processes,
  • First Aid in the Workplace,
  • Managing Risks in Construction Work,
  • Preventing Falls in Housing Construction,
  • Managing Electrical Risks in the Workplace,
  • Managing Risks of Hazardous Chemicals, and
  • Managing Risks of Plant in the Workplace.

The above draft codes of practice are in addition to those that have already been, and continue to be, adopted by the states and territories, for example the Safe Use and Storage of Chemicals (including Pesticides and Herbicides) in Agriculture Code adopted in NSW.

Codes dealing with the 'hot topics' of workplace bullying and fatigue are expected to be released later this year.

Dealing with the regulator

Whenever there is a WHS incident in the workplace, PCBUs need to be mindful of the extent of the investigative powers of the respective state and territory work health and safety regulators, eg WorkCover NSW.

Inspectors of the regulators have broad ranging entry powers depending on whether an incident has or is about to occur. Once on site (which may be without notice), inspectors have the power to:

  • inspect, examine and make inquiries, including in relation to documents,
  • take photos, conduct tests and remove substances for further testing, and
  • require individuals at the workplace to answer any questions or provide documents.

However, care needs to be exercised by PCBUs and their workers when complying with requests by inspectors to avoid issues arising down the track. For example, before answering questions of an inspector individuals should ensure they are protected by requesting that a warning/caution be given. This warning/caution is set out in the relevant WHS legislation and provides protection for individuals where the information they provide may incriminate them.

Some of the tips to keep in mind when dealing with regulators and inspectors include:

  • Where a WHS incident occurs, seek external legal advice as soon as possible. The broad powers of inspectors to request documents may mean you need advice over what documents you must provide, and what documents you should prepare as part of your investigation. The last thing you want is to hand over irrelevant documents which could then be used against you in separate proceedings.
  • Never voluntarily provide information – always ensure you receive the warning/caution first.
  • Remember that documents provided to the regulator may not stay there – state legislation allowing for information requests from government bodies may allow documents you provide to the regulator to be provided to interested third parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kemp Strang has received acknowledgements for the quality of our work in the most recent editions of Chambers & Partners, Best Lawyers and IFLR1000.

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Nick Noonan
Ben Urry
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