Codes of Practice and Courts of Law

The Work Health and Safety legislation aims to empower businesses in creating and operating a health and safety management system which eliminates workplace risks and hazards to its employees, customers, and visitors to the workplace. Sometimes hazards and risks cannot be eliminated and must instead be controlled. These two options – control or eliminate – are the essence of “risk management.”

A business has a guiding standard as to the actions it takes in resolving health and safety matters. This is the idea of “as far as is reasonably practicable.” This applies to all risks and hazards, and to all businesses no matter the industry or size.  

This term “reasonably practicable” is mentioned throughout the WHS Act and WHS Regulation and is specifically expanded upon in Section 18 of the WHS Act. It serves as the yardstick for what must be done to manage risks.

In court cases where businesses owners and company directors 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.  

Determining what is “reasonably practicable”

To help the courts determine whether a WHS duty or obligation has been complied with, Codes of Practices may be consulted. Safe Work Australia publishes Model Codes and the State and Territory Regulators incorporate these Codes into their own jurisdiction. Often the adopted Codes are identical to the Model Codes. The term for Code of Practice in Victoria is “Compliance Code.” (Victoria is the only jurisdiction in Australia that is not on the Model WHS laws.)

The use of Codes is covered in Section 275 of the WHS Act. A code may help the court determine what is “reasonably practicable.”

All duty holders identified in WHS law have duties and are expected to do them. The WHS Act and WHS Regulation give broad requirements and do not always say “what” to do or “how” to do it. But, you may find in a Code of Practice practical information on what to do or how to something that may help achieve compliance with requirements stated in the Act and Regulation.

Provisions for staff to do their work safely

Section 19 of the WHS Act requires that the business (PCBU) provides information, instruction, and training for persons to be able to do their jobs safely. Additionally, staff must be supervised in their work. Workers must respect the control measures that have been established for hazards that were not able to be eliminated.

Some people have jobs that may cause them short-term and long-term physical health risks. This could happen from doing work that involves repetitive manual tasks such as lifting, bending, pushing, pulling, getting into awkward positions, etc. Sudden force and vibrations may contribute to injuries over time. There might be instances where the tools or aids they use in their work may potentially injure them if used wrongly (such as a STANLEY® knife, or incorrect use of a pallet jack.)

While the Code of Practice for Hazardous Manual Tasks does present the legal obligations from the WHS Act and Regulation it additionally provides diagrams and instructions about the human body and lists and illustrates different types of manual tasks, as well as procedures and actions to assess risks otherwise not mentioned in the Act or Regulation.

The use of Codes in courts of Law

In a court of law such a code of practice may be helpful in the defence of the PCBU, if directors and CEOs can prove that instruction, training and supervision was provided to those people and that what was provided was “reasonably practicable” for the type of work or situation.  

The code of practice could also be helpful to the prosecution if it became evident that the PCBU did not provide instruction, training, and supervision “as far as is 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 WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.