22 May, 2014
Codes of Practice (safety) are issued by Australian state and federal government agencies to advise employers and employees of acceptable ways of achieving compliance with occupational health and safety legislation. They are usually designed to be used in addition to statutes and regulations but can also be incorporated into legislation. One very useful application is to cite a relevant Code as defining a minimum, cover-all standard in relation to a purchase order for goods or services. You need to know the Code exists, of course, and what it covers!
Advisory natureLegally, Codes of Practice are generally of an advisory nature. Section 38(2) of the National Occupational Health and Safety Commission Act 1985 specifies that a national standard or code of practice is an instrument of an advisory character only.
Legal statusIn each Australian jurisdiction except the state of Tasmania, the principal occupational health and safety statute sets out the legal status of codes of practice within that jurisdiction. (Tasmania does not publish codes but, where appropriate, national codes of practice apply.) In general, a code of practice achieves legal status only when approved by the Minister according to an occupational health and safety statute. A State or Territory can develop its own codes of practice or, where convenient, adopt a national code of practice and have it approved under the appropriate statute. An approved code of practice is generally designed to be used in conjunction with the statute and regulations but does not have the same legal force. A person or company cannot be prosecuted just for failing to comply with an approved code of practice. However, in proceedings for contravention or failure to comply with the occupational health and safety legislation, failure to observe an approved code of practice may be admissible as evidence. In the state of South Australia, where in proceeding for an offence against their Occupational Health, Safety and Welfare Act 1986 it is proved that the defendant failed to observe a provision of an approved code of practice dealing with the matter in respect of which the offence is alleged to have been committed, the defendant is, in the absence of proof to the contrary, to be taken to have failed to exercise the standard of care required.
SummaryAn approved code of practice is designed to provide practical guidance; should be followed, unless there is another solution which achieves the same result, or a better solution; can be used in support of a statute’s preventive enforcement provisions; and can be used to support prosecution for non-compliance.