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Safety Industry Codes of Practice in NSW

This article was published in Safety Watch E-Newsletter, July 2005

In looking at its obligations under the Occupational Health and Safety Act 2000 (the OHS Act) and the Occupational Health and Safety Regulation 2001 (the OHS Regulation), an employer in NSW may be left wondering what it needs to do to comply with its statutory duties. One way an employer can obtain some guidance and direction in relation to this issue, is to examine any relevant industry codes of practice which may apply to work done by persons in the employer’s workplace, (whether they be the employer’s own employees or workers engaged under some other arrangement).

What is a Code of Practice?

A code of practice is an instrument made under the OH&S Act, which is designed to provide practical guidance to employers and other persons who have duties under the OHS Act or OHS Regulation (such as controllers, designers, manufacturers, employees, directors etc), in order to assist them in meeting the standards of health and safety required by the OHS Act and OHS Regulation. Prepared by WorkCover (normally in consultation with interested groups within an industry) a code of practice needs to be approved by the Minister responsible for occupational health and safety in NSW, currently the Minister for Commerce.

While codes of practice can have broad application across various industries, such as the Code of Practice: OHS Consultation, they generally tend to apply to specific types of work. For example, the Code of Practice for Low Voltage Electrical Work, amongst other things, sets out steps to be followed when working on electrical equipment, including ensuring the equipment is de-energised, isolated and appropriately tagged-off.

Effect of a Code of Practice

Whilst made under the OHS Act, compliance with a code of practice (with some exceptions, for example, the Code of Practice - Occupational Health and Safety Induction Training for Construction Work) is not generally mandatory. As such, a person (ie employer, director, controller etc) is not liable by reason only that the person has failed to observe an approved industry code of practice. A failure to follow a relevant code of practice, however, may be used by WorkCover in evidence against the person to prove that the person has breached their obligations under the OHS Act or OHS Regulation. The person must then establish that an alternative course of action was followed that achieved the same or a better standard of health and safety than that provided in the code of practice.

Whilst there are many codes of practice available to assist employers and other persons having duties under the OHS Act and OHS Regulation, there is not a code of practice for every aspect of work that will be conducted in the workplace. In any event, and as previously indicated, compliance with a relevant code of practice will not discharge an employer of its obligations under the OHS Act and OHS Regulation. That is, compliance with a code of practice will not be an absolute protection from a prosecution for breach of occupational health and safety obligations. As such, an employer must be vigilant and proactive in doing everything reasonably practicable to ensure the health and safety of its employees and other workers it engages to perform work in its workplace.

HR Tip - Are you using a Code of Practice?

Is there a code of practice that applies to the work performed by your workers in NSW? If you are unsure, check the list of codes of practice at www.workcover.nsw.gov.au or contact Australian Business Lawyers. Remember, failure to follow a relevant code of practice may be used against you if you are prosecuted by WorkCover for a breach of the OHS Act or OHS Regulation. However, where you can do more than is required by a code of practice to promote safety, do it!

For further information on the matters discussed in this article or on your OHS obligations generally, please contact Tim Capelin, Partner on (02) 9458 7497.