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
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
Draft, pending and existing codes of practice
At present, the following draft codes of practice are open for
Industrial Lift Trucks,
Managing Risks of Plant in Rural Workplaces,
Managing Security Risks in the Cash-in-Transit Industry,
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
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,
Spray Painting and Powder Coating,
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
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
inspect, examine and make inquiries, including in relation to
take photos, conduct tests and remove substances for further
require individuals at the workplace to answer any questions or
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
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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