EXPLANATORY STATEMENT
Work Health and Safety Act 2011
Issued by the Minister for Employment and Workplace Relations
Notice of a Disallowable Instrument
Work Health and Safety Codes of Practice 2012
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 12 codes of practice, namely:
First aid in the workplace
Construction work
Preventing falls in housing construction
Managing electrical risks in the workplace
Managing risks of hazardous chemicals in the workplace
Managing the risks of plant in the workplace
Welding processes
Excavation work
Demolition work
Safe design of structures
Spray painting and powder coating
Abrasive blasting
These represent the second set of codes of practice Safe Work Australia and the Workplace Relations Ministers Council have approved since the implementation of the WHS Act.
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(2) of the WHS Act, those model codes were developed in consultation with the Commonwealth, State and Territory governments, unions and employer organisations. The second set of model codes were released for public consultation in September 2011. The Chair of the Select Council on Workplace Relations advised jurisdictions to adopt and implement the second set of model codes in July 2012 (October 2012 for Spray painting and powder coating and Abrasive blasting).
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 273B(1)(d) 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).
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
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, enacted by the Parliament of Australia, was introduced to address the need for a uniform approach to work health and safety across all jurisdictions in Australia. This Act aimed to provide a framework to protect the health, safety and welfare of employees and others at work by setting out the duties of employers, employees, and other persons in the workplace. The policy objective was to create a nationally consistent scheme to eliminate or minimise the risks to health and safety arising from work. In line with this objective, the Work Health and Safety Codes of Practice 2012 were approved to provide practical guidance to duty holders on meeting their obligations under the Act and the associated regulations. These codes were developed by Safe Work Australia, in consultation with various stakeholders, and were intended to assist in ensuring compliance with the legislative requirements.
Scope and Application
The Work Health and Safety Codes of Practice 2012 approved under the Work Health and Safety Act 2011 applies to all persons and entities involved in the specified industries and activities covered by the twelve approved codes. These codes provide practical guidance to duty holders on how to meet their obligations under the WHS Act and the WHS Regulations, thereby ensuring compliance with occupational health and safety standards. The codes of practice approved in this instrument cover a wide range of industries and activities, including construction work, electrical risks, hazardous chemicals, plant risks, and others. The geographic reach of these codes is national, as they are adopted by all Commonwealth, State, and Territory governments in Australia. The codes are 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. While the Act itself may extend or restrict application through subordinate instruments, this instrument primarily focuses on approving the specific codes of practice that offer guidance to duty holders on meeting their obligations.
Key Provisions
The main operative sections of this legislation focus on the approval of codes of practice under the Work Health and Safety Act 2011 (WHS Act) and Work Health and Safety Regulations 2011 (WHS Regulations). Section 274 allows the Minister for Employment and Workplace Relations to approve codes of practice to guide duty holders in meeting their obligations. Section 275 specifies that these approved codes are admissible in court as evidence of compliance with the WHS Act. The codes approved in this legislation cover various areas such as first aid in the workplace, construction work, managing electrical risks, and more. They provide practical guidance on how to handle hazards and risks in these specific industries, ensuring that duty holders can effectively manage work health and safety.
The obligations imposed by the Act on the parties it governs include the necessity for duty holders to follow the approved codes of practice when managing work health and safety. These codes serve as a benchmark for what is considered reasonably practicable in terms of risk management and hazard control. Duty holders must ensure that they comply with the requirements set out in the approved codes, which means implementing appropriate measures to mitigate risks and ensure a safe working environment. Additionally, the approved codes can be used as evidence in legal proceedings to demonstrate whether the duty holders have met their obligations under the WHS Act.
Breaching the provisions of the approved codes of practice can lead to various consequences. While the legislation does not explicitly state offences, penalties, or specific civil or criminal consequences for non-compliance, the codes can be used in court to determine whether a duty holder has met their obligations under the WHS Act. If it is found that a duty holder has not complied with the approved codes, this could result in legal action, fines, or other penalties as determined by the relevant authorities. The seriousness of the breach and its impact on health and safety will be considered in determining the appropriate consequences. The codes themselves are not legally binding, but they provide a standard that courts and regulators will consider when assessing compliance.