EXPLANATORY STATEMENT
Work Health and Safety Act 2011
Issued by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations
Notice of a Disallowable Instrument
Work Health and Safety Codes of Practice 2011
The purpose of the instrument to which this Explanatory Statement relates is to approve codes of practice providing practical guidance to duty holders on meeting their obligations under the Work Health and Safety Act 2011 (the WHS Act) and the Work Health and Safety Regulations 2011 (the WHS Regulations).
Section 274 of the WHS Act provides that the Minister may approve codes of practice for the purpose of the WHS Act. Section 275 of the WHS Act provides that an approved code of practice is admissible in proceedings under the WHS Act as evidence of whether or not a duty or obligation under the WHS Act has been complied with. A court may have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.
This instrument approves the following 11 codes of practice, namely:
Work Health and Safety Consultation, Co-operation and Co-ordination
How to Manage Work Health and Safety Risks
Managing the Work Environment and Facilities
Managing Noise and Preventing Hearing Loss at Work
Hazardous Manual Tasks
Confined Spaces
Managing the Risk of Falls at Workplaces
Labelling of Workplace Hazardous Chemicals
Preparation of Safety Data Sheets for Hazardous Chemicals
How to Safely Remove Asbestos
How to Manage and Control Asbestos in the Workplace
These represent the priority codes of practice identified by Safe Work Australia and the Workplace Relations Ministers Council.
Safe Work Australia has developed model codes of practice for adoption by the Commonwealth, State and Territory governments in accordance with the Council of Australian Governments’ Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (the IGA). Consistent with the IGA and subsection 274(3) of the WHS Act, those model codes were developed in consultation with the Commonwealth, State and Territory governments, unions and employer organisations. The model codes were released for public consultation in December 2010 and endorsed by the Workplace Relations Ministers Council in August 2011.
The codes of practice approved by this instrument are the model codes of practice as so developed by Safe Work Australia and modified by Comcare to ensure consistency with the WHS Act and the WHS Regulations and compliance with requirements of the Legislative Instruments Act 2003.
In accordance with paragraph 275B(1)(e) of the WHS Act, this instrument is a legislative instrument within the meaning of the Legislative Instruments Act 2003.
Further codes of practice are still under development and certain parts of the Occupational Health and Safety Code of Practice 2008 approved under the Occupational Health and Safety Act 1992 have been temporarily preserved by the Work Health and Safety (Transitional and Consequential Provisions) Regulations 2011 to provide interim guidance to duty holders pending approval of new codes of practice.
The Decision Regulation Impact Statement for National Harmonisation of Work Health and Safety Regulations and Codes of Practice prepared by Safe Work Australia addresses the regulatory impact of the codes of practice approved by this instrument (and further codes of practice under development to be approved by subsequent instruments).
In accordance with the WHS Act, the Minister has notified the approval of the codes of practice in newspapers and copies of the codes of practice (and applied, adopted and incorporated documents) are available for inspection, without charge, at Comcare offices during normal business hours. Copies are also published on the Comcare website www.comcare.gov.au .
Overview
The Work Health and Safety Act 2011 was enacted to harmonise work health and safety laws across Australia and to provide for the protection of workers' health and safety by setting and enforcing standards and providing for penalties for non-compliance. The policy objective of the Act is to provide a balanced and nationally consistent framework for improving work health and safety and workers' compensation arrangements. The Work Health and Safety Codes of Practice 2011 were approved by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, under Section 274 of the WHS Act. These codes provide practical guidance to duty holders on meeting their obligations under the Act and the WHS Regulations, and they are admissible in proceedings under the Act as evidence of compliance with duties and obligations. The codes were developed by Safe Work Australia in consultation with the Commonwealth, State and Territory governments, unions and employer organisations. This legislative instrument is intended to address the problem of inconsistent work health and safety laws across Australia by providing a nationally consistent framework for work health and safety.
Scope and Application
The Work Health and Safety Codes of Practice 2011, approved under the Work Health and Safety Act 2011, apply to all duty holders, including employers, employees, self-employed persons, persons conducting a business or undertaking, and officers of corporations, within the Commonwealth, states, and territories of Australia. These codes provide practical guidance to assist duty holders in meeting their obligations under the WHS Act and the WHS Regulations. They cover a range of work health and safety issues, including consultation, managing risks, environmental controls, noise management, hazardous manual tasks, confined spaces, falls, hazardous chemicals, and asbestos management. The codes are admissible in court proceedings as evidence of compliance and can be relied upon to determine what is reasonably practicable in given circumstances. The codes are developed by Safe Work Australia in consultation with relevant stakeholders and are approved by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations. The instrument also indicates that further codes are under development, and certain parts of the previous Occupational Health and Safety Code of Practice 2008 have been preserved to provide interim guidance until the new codes are approved.
Key Provisions
The Work Health and Safety Codes of Practice 2011 (the Codes) are a set of eleven priority codes developed to provide practical guidance on meeting obligations under the Work Health and Safety Act 2011 (WHS Act) and the Work Health and Safety Regulations 2011 (WHS Regulations). These codes cover a range of areas including consultation, risk management, the work environment, hazardous manual tasks, and asbestos management. Section 274 of the WHS Act allows the Minister to approve these codes, and they are admissible in proceedings as evidence of compliance or non-compliance with the WHS Act (Section 275). The codes were developed in consultation with relevant governments, unions, and employer organisations and are based on model codes created by Safe Work Australia.
The obligations imposed by these codes on duty holders include ensuring that they provide a safe and healthy work environment, manage risks effectively, and comply with specific guidelines outlined in each code. For instance, the Code on Managing Work Health and Safety Risks requires duty holders to identify hazards, assess risks, implement control measures, and monitor their effectiveness. Similarly, the Code on Managing the Work Environment and Facilities mandates that duty holders maintain safe and hygienic working conditions, which includes ensuring that facilities are clean and that equipment is maintained properly.
Failure to comply with these codes can lead to civil and criminal consequences. Under the WHS Act, breaches of the codes can be used as evidence in legal proceedings, potentially leading to fines and penalties. The specific penalties for non-compliance can vary, but they include substantial fines for individuals and corporations. For example, an individual officer of a corporation can face fines up to $3,000, while a body corporate can face fines up to $15,000,000, depending on the severity and nature of the breach. The WHS Act also provides for criminal sanctions in cases of gross negligence or willful breaches, which can result in imprisonment for individuals and further substantial fines for corporate entities.