WHS codes of practice: unpacking the legal requirements
Queensland Teachers' Journal, Vol 126 No 4, 28 May 2021, page no.24
A code of practice provides practical guidance on how to achieve the health and safety standards required under the Work Health and Safety Act 2011(Qld). Codes of practice also help with how to identify and manage risks.
WorkSafe Queensland has informed employers, including government departments, that 21 Queensland codes of practice have been updated following a Safe Work Australia review of the national model codes of practice. The new Queensland codes have the state’s current legislative and regulatory requirements embedded within them.
The forewords to each new code provide the legal and regulatory context in which the codes operate. Since July 1, 2018 section 26A of the Queensland WHS Act has said: “Duty holders must comply with an approved code of practice or follow a technical or industry standard, if it provides an equivalent or higher standard of work health and safety than the standard required in this code.”
The forewords of the re-issued codes note: “Codes of practice are admissible in court proceedings under the WHS Act and WHS Regulation. Courts may regard a code of practice as evidence of what was known about a hazard, risk or control and may rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.”
Codes are written as guides and are readable and accessible. The Queensland codes specifically include references to legal requirements under the WHS Act and the WHS Regulation. The words “must”, “requires” or “mandatory” indicate that a legal requirement exists that must be complied with. And this is where the codes are of particular use to principals, school WHS committees and health and safety advisors (HSAs), and worker-elected health and safety representatives (HSRs).
It is useful to note that “in most cases, following an approved code of practice would achieve compliance with the health and safety duties in the WHS Act, in relation to the subject matter of the code.”
In terms of codes of practice that develop members’ knowledge of their obligations and key duties under the act, the following two codes should be referenced frequently. These codes help schools to deliver on the primary duty to ensure a safe workplace and on the duty to consult workers (s47, s49).
- How to manage work health and safety risks – code of practice 2021 (https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0022/72634/how-to-manage-work-health-and-safety-risks-cop-2021.pdf)
- Work health and safety consultation, co-operation and co-ordination – code of practice 2021 (https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0026/72647/whs-consultation-cooperation-coordination-cop-2021.pdf)
There are many codes that have direct application to the management of hazards in schools or other environments. Adding surveying of the codes to a WHS committee meeting agenda could be useful.
The WHS Act imposes a positive duty on employers to prevent psychosocial hazards, in the context of the broad duty to eliminate or manage hazards and risks to a worker’s health, including psychological wellbeing. Therefore, all employers have an obligation to manage psychological and mental health risks.
To progress this important work, unions, facilitated through the Queensland Council of Unions, are working with the Office of Industrial Relations (OIR) to develop a code of practice to support workplaces in meeting their obligations to manage psychosocial risks. A new code providing direction on preventing sexual harassment has also been proposed.
Remember, a code of practice provides practical guidance on how to achieve health and safety standards required under the Work Health and Safety Act 2011 (Qld).