Codes of practice now mandatory in New South Wales

In a further step requiring businesses to implement reasonably practicable controls to eliminate safety risks, from 1 July in New South Wales, all minister-approved codes of practice are now mandatory.

With the introduction of section 26A of the Work Health and Safety Act 2011 (NSW) (WHS Act), a person conducting a business or undertaking (PCBU) must now either comply with the terms of any published code of practice or “manage hazards and risks arising from the work carried out as part of the conduct of the business or undertaking in a way that is different to the code but provides a standard of health and safety that is equivalent to or higher than the standard required under the code”.

By including this requirement in the WHS Act as a mandatory obligation on a PCBU, a business that fails to comply with the code is exposed to a separate penalty. This is in addition to any potential penalty for a failure to comply with the general duty of care imposed under the WHS Act, to ensure safety so far as is reasonably practicable.

Previously, and what remains the position in most jurisdictions, is that the codes could be relied upon by the regulator in any proceedings as evidence of what was “reasonably practicable” for the PCBU to implement at the time of the offence. In Victoria, compliance codes went one step further in that if a PCBU could demonstrate compliance with the code, then they would be taken to have discharged their general duty of care under the Occupational Health and Safety Act 2004 (Vic).

The change to the law in New South Wales, which may be replicated in other jurisdictions going forward, elevates the importance for all businesses to review applicable codes and implement them into their operations, or an alternative of the same or higher standard.

Visit the website of your safety regulator for the full list of codes that are currently in force in your jurisdiction.

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