11 Oct 2012

Codes of Practice - A vital tool in discharging work, health and safety responsibilities

by Andrew Klein

They aren't mandatory, but a wise employer should look closely at the Work Health and Safety Codes of Practice for guidance.

The Work Health and Safety (WH&S) Codes of Practice provide a wealth of practical guidance to support the Work Health and Safety Act 2011 and the Work Health and Safety Regulations 2011.

The primary safety regulator of the Commonwealth, Comcare, comments on its website that:

"The Work Health and Safety Approved Codes of Practice 2011 are critical to understanding the duties contained in the Work Health and Safety Act 2011 and WHS Regulations."

What is the status of the WH&S Codes of Practice

WH&S Codes of Practice are not mandatory. Consequently, if an organisation can find an equivalent means of providing the same level of health and safety — as provided for in the relevant WH&S Code of Practice — then that is an acceptable course of action.

However, WH&S Codes of Practice do have evidentiary status in court.

For example, courts may regard a WH&S Code of Practice as evidence of what is known about a risk and consider this in the context of deciding whether what was "reasonably practicable" was done in particular case.

Which codes are in effect?

The first, priority, group of WH&S Codes of Practice was brought into effect on 1 January 2012.

On 13 July 2012 a further group of WH&S Codes of Practice was introduced.

The Codes that are currently in effect can be accessed through the Safe Work Australia website.

The WH&S Codes of Practice that are already operating have a wide coverage, and also address in detail a number of specific risks (for example, the "Managing Noise and Preventing Hearing Loss" Code). They therefore have the potential to be extremely helpful in formulating risk management plans, and they also have the potential to raise issues if a specific risk has not been adequately addressed by an organisation.

Of particular general utility is the "How to Manage Work Health and Safety Risks" WH&S Code.

For example, it contains:

  • an overview of relevant duties and the test of what is "reasonably practicable";
  • information about consultation requirements;
  • practical help with identifying hazards;
  • a step-by-step how-to guide with regard to assessing risks, controlling risks and reviewing risks; and
  • information about best practice in record-keeping.

Additionally, a range of useful precedent documents and case studies are provided in the appendices to the Code.

Draft Code: Preventing and Responding to Workplace Bullying

The following Codes of Practice are currently being revised based on public comment. SafeWork Australia expect these Codes to be finalised later in 2012.

  • Preventing and Managing Fatigue in the Workplace
  • Preventing and Responding to Workplace Bullying.

The Preventing and Responding to Workplace Bullying draft Code has been particularly controversial.

The draft Code defines bullying in the workplace as "repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety."

It lists the following as examples of bullying:

  • abusive or offensive language;
  • spreading misinformation or malicious rumours;
  • regularly making someone the brunt of practical jokes;
  • unreasonably overloading a person with work or not providing enough work; and
  • deliberately changing work arrangements such as rosters and leave to inconvenience a particular worker

As recognised by a number of employer groups, the draft Code, when read as a guide to what is required to reach the level of having done all that is "reasonably practicable" as a Person Controlling a Business or Undertaking or for an officer to have discharged his or her duty of due diligence, has the potential to set a high bar for organisations and individuals to reach.

For example, employer groups have noted that potentially things such as:

  • withholding information and training;
  • not providing enough work; or
  • assigning tasks beneath a worker's qualifications,

will all become instances of workplace bullying, under the draft Code.

On the other side of the equation, the union movement has argued for a strong Code, setting high standards for the protection or workers.

Specifically, the ACTU says the code fails to “address workplace bullying in the same framework as any other workplace hazard/risk.”

It also says that the code must make clear that the bullying it targets is a “pattern of behaviour.”

Watch this space with regard to the final form of the Preventing and Responding to Workplace Bullying Code.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.