Traversing the OHS minefield

MOST employers these days understand they must provide a safe workplace, but how do you know what’s acceptable OHS practice when even the experts and guideline creators don’t always agree? *Amanda Hecimovic writes

MOST employers these days understand they must provide a safe workplace, but how do you know what’s acceptable OHS practice when even the experts and guideline creators don’t always agree? *Amanda Hecimovic writes.

Occupational Health & Safety is a tricky animal.

The rules surrounding OHS requirements are contained in a variety of laws, regulations, guidelines, industry codes, Australian Standards and case law. The challenge for employers is to comply with the ones that will protect them if they face prosecution in an OHS matter, at the same time falling in line with others that may not be legally binding, but may still provide sensible workplace practice. And knowing the difference!

Here’s a thumbnail guide to the hierarchy of OHS rules.

The Occupational Health & Safety Act 2000 (the Act) states the law as it has been legislated by parliament in New South Wales. This is the paramount OHS authority, setting out the duties of the parties affected by its provisions. A breach of the Act may give rise to prosecution against the employer, director or manager, or even an employee, which can have very considerable financial consequences.

The Occupational Health & Safety Regulation 2001 (the Regulation) works hand-in-hand with the Act, adding detail about the way in which the Act will be implemented. For example, it sets out required workplace safety procedures including hazard identification, risk control requirements, equipment design and use, the process for notifying accidents, activities requiring certification, etc.

The next level of OHS rules is represented by Approved Industry Codes of Practice (industry codes). These are approved by the Minister for Industrial Relations and are published in the Government Gazette. Industry codes, such as the National Code of Practice for Manual Handling and the National Code of Practice for the Control of Work Related Exposure to Hepatitis and HIV and (Blood-borne) Viruses, set out specific procedures and systems an employer should have in place to prevent particular work-related accidents or illnesses.

Industry codes don’t have the same legal force as the Act or the Regulation. Employers are not liable for a breach of the Act just because they have failed to observe an Approved Industry Code. However, a WorkCover inspector can use an industry code as evidence to establish that an employer has failed to comply with the provisions of the Act or Regulation, so it certainly pays for employers to know and apply the industry code relevant to their workplace.

Then come Australian Standards (AS). And here’s where employers need to tread carefully.

AS can provide valuable guidance for employers, recommending sensible and safe precautions for their workplace. However, they are not legally binding. For example, just because an employer’s system of work and its machinery, equipment or appliances comply with an AS doesn’t mean the employer has met its obligations under the Act.

On the other side of the coin, failure to comply with an AS in itself doesn’t represent a breach of the Act.

In fact, AS have been treated as not having any particular status and not creating any particular standard. A breach of one does not create any particular obligation under the Act. However, ignoring a requirement imposed upon persons within an industry by an applicable AS will reflect negatively on the nature and quality of the offence.

According to a recent NSW Industrial Relations Commission decision, it’s up to the judge hearing a case to determine how much weight should be given to AS.

In making such a determination, the judge may accept an AS into evidence, but only if both parties to the proceedings agree. This is because in many instances not every expert involved will agree to the status and acceptability of an AS and therefore it lacks ‘consensus of professional opinion.’

The OHS ABC for employers?

A. You must comply with the Act and the Regulation.

B. If an Approved Industry Code of Practice applies to your industry know it and apply it.

C. Australian Standards

Sensible industry guidance? — Yes.

Protection against potential OHS prosecution? – No.

Key contact:

Amanda Hecimovic

Dibbs Abbott Stillman

ahecimovic@daslaw.com.au

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