May 23, 2023

Safety Alert - Codes of Practice Update

Safety Alerts

Between 30 March 2022 and 30 March 2024 the Work Health and Safety laws are transitioning form the Occupational Health & Safety Act 1984 (OSH Act) to the new Work Health & Safety Act 2020 (WHS Act).

WorkSafe has announced that: "Transition arrangements allow for codes of practice approved under the Occupational Safety and Health Act 1984 and Mines Safety and Inspection Act 1994 to continue being in effect as if approved by the Minister under the WHS Act. Codes of practice will be published on the department’s website after they are approved by the Minister"

What is a code of practice?

WorkSafe defines a code of practice as something which: "...provides detailed information on how you can achieve the standards required under WHS law. Codes of practice do not replace the law, but can help you understand what you need to do to comply with specific regulations and provide a healthy and safe workplace”.

In short, they are a cheat sheet to ensuring you are remaining compliant to WHS laws.

What does the Code of Practice mean for you?

Section 28 of the WHS Act outlines the 'Duties of workers' as:

Taking reasonable care for the worker's own health and safety; and
Taking reasonable care that the worker’s acts or omissions do not adversely affect the health and safety of other persons; and
To comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
To cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

What constitutes an offence under the WHS Act?

The WHS Act clearly sets out what constitutes an offence. It states a person commits and offence (a category 1 offence) if:

The person has a health and safety duty otherwise than as a person conducting a business or undertaking; and
The person fails to comply with that duty; and
The failure causes the death of, or serious harm to, an individual.

Are there penalties for non-compliance of the WHS Act?

The WHS Act also details the penalties for not complying with your duties as:

For an individual, if the offence is committed by the individual as an officer of a person conducting a business or undertaking, imprisonment for 5 years and a fine of $680 000;
For an individual, if the above bullet point does not apply, imprisonment for 5 years and a fine of $340 000;
For a body corporate, a fine of $3 500 000.

Remember, an approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with. And, during the course of a court case the court make take into account the code as evidence of what is known about hazards or risks, the assessment of these risks, and the mitigation of these risks. The court may also rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

The code however, does not prevent someone from showing compliance in a manner that is different from the code, so long as the compliance is shown to be equivalent to, or higher than, the standard set out by the code.

In short, if you do not read and follow the code of practice and any other reasonable safety instruction and procedures from EGT, host employer, or supervisor and something goes wrong based on your actions, you could be held liable and need to answer to a court. If found guilty as above, the penalties are severe.