Codes of Practice and Courts of Law

Weekly WHS Article 22nd September 2022

The Work Health and Safety legislation aims to empower businesses in creating and operating management systems whereby workers and workplaces are free from risks to life and limb, or in instances where risks cannot be eliminated that risks are at least mitigated by being controlled.

How a business is measured as to their compliance with these laws is determined by what actions have been taken that are “reasonably practicable.”

This term “reasonably practicable” is mentioned throughout the WHS Act and WHS Regulation and is defined and expanded upon specifically in Section 18 of the WHS Act. It is a key guiding concept.

In court cases where persons have been accused of failing to meet their WHS duties the courts consider what the person did or didn’t do in the matter in relation to what was “reasonably practicable” at the time.

To help the courts determine evidence of whether or not a WHS duty or obligation has been complied with, approved codes of practice may be referred to. This is stated in Section 275 of the WHS Act. A code may help determine what is “reasonably practicable” in the circumstances of the matter.

It is the duty of the Person Conducting a Business or Undertaking (companies, employers, self-employed) to manage risks. It is the duty of the PCBU to instruct and train staff to do their jobs safely and to follow the management system for health and safety in the workplace. Supervision must be provided.

While these aforementioned requirements are clearly and specifically stated in the WHS Act and WHS Regulation, it may be a Code of Practice only that expounds on details specific to certain industries. This is where Codes of Practices may be essential for the courts to determine whether an action taken was “reasonably practicable” or otherwise.

For example, the code of practice for Hazardous Manual Tasks does cover the broad requirements of the PCBU from the Act and Regulation but additionally provides diagrams and instructions on the human body and types of manual tasks, as well as procedures and actions to assess risks otherwise not mentioned in the Act or Regulation.

In court such a code of practice could be helpful in the defence of the PCBU in proving that the instruction, training and supervision provided was “reasonably practicable.” The code of practice could also be helpful to the prosecution if it became evident that instruction, training, and supervision was lacking, and therefore not “reasonably practicable.”

Whether for the prosecution or for the defence, codes of practices are very helpful to determine outcomes in court cases.

For more information on how WHS laws help the productivity of your business and the welfare of your staff, feel free to contact one of our WHS consultants.