Codes of practice are not simply nice business behaviours that we should all demonstrate, although they are that too. Workplace codes of practice are the minimum standard practical guides that help employers and workers comply with the work health and safety (WHS) laws in Australia. They cover various aspects of workplace safety, such as hazards and chemicals management, and the safe performance of specific tasks. But are codes of practice legally binding? And what are the consequences of not following them?
What are Codes of Practice?
Before any Code is implemented by the WHS, input is gathered by all the stakeholders, including employers, workers, unions, industry associations, industry regulators and experts. Specific Codes of Practice are published by Safe Work Australia, the body that develops national WHS policies. The Codes are then approved by state and territory government ministers for implementation by anyone who has a duty of care described in the relevant code.
For example, if you are an employer, you have a duty to ensure the health and safety of your workers and anyone else who may be affected by your work activities. A code of practice can help you identify and manage the risks associated with your work.
Some examples of codes of practice include:
- How to safely remove asbestos
- Managing noise and preventing hearing loss at work
- Wearing tethered harnesses when working at heights
- Reducing back injuries when lifting
You can find a full list of codes of practice on the Safe Work Australia website.
Are all Codes of Practice legally binding? What about a bag check?
The law recognises a clear distinction between Codes of Practice and advisory Codes of Conduct. A bag (and pram) check is a practice that some retailers use to prevent theft by customers. It is what is called an advisory code of conduct, and is not legally binding, with customers having a right to refuse it. However, where retailers choose to exercise this advisory code, they must follow correct principles and procedures to respect the rights and privacy of customers, for example, they may not touch a person. They may, however, refuse to allow a non-compliant customer back into their store.
Codes of practice are not legally binding in the same way as the WHS laws. They are not mandatory and you can adopt another method to achieve the same or better health and safety outcome. You must be able to justify in court proceedings (should you need to) that a hazard or risk was best addressed by your chosen method. You will need to present evidence to demonstrate that your method was better than the one suggested by the Code for your particular situation and circumstances.
Why Should You Follow Codes of Practice?
Apart from avoiding legal risks, there are many benefits to following codes of practice. They can help you:
- Improve your WHS performance and reduce injuries, illnesses and fatalities
- Save time and money by providing clear and consistent guidance on how to meet your WHS obligations
- Enhance your reputation and credibility as a responsible employer or worker
- Foster a positive safety culture and increase worker confidence and satisfaction
A positive safety culture should be everybody’s business. Therefore, it is advisable to follow the WHS codes of practice whenever possible, or adopt an alternative method that is equally or more effective than the one suggested by the code, but be sure you’re right. If you’re unsure, get advice.