Discussion 4

almost 2 years ago
CLOSED: This discussion has concluded.

Are there areas in the model WHS laws where the balance between flexibility in the model Codes of Practice and prescription of the model Regulations could be improved?

WHS regulation in Australia is structured to impose broad duties under the model WHS Act, supported by detailed duties under the model WHS Regulations. Codes of Practice provide practical guidance to achieve the standards of health and safety required under the model WHS Act and Regulations. This is intended to provide flexibility for duty holders in how they meet WHS obligations, while still ensuring minimum requirements are prescribed.

  • Sarah_Allen about 2 years ago
    It is important the Codes of Practice reference the correct Australian Standards as the Codes provide important guidance on how PCBU's are to meet their obligations. As an example, the Code of Practice - Managing Electrical Safety Risks in the Workplace states AS/NZS 3190 should be used as the guidance material for the reasonable steps a PCBU should take to ensure RCD's in a workplace work effectively. (Regulation 165, Page 21 of the Code)AS/NZS 3190 is the standard used by manufacturers/importers/responsible suppliers for approval during testing prior to bringing them to the Australian market. It is not an in-service testing standard. The correct standard for the in service inspection and testing of RCD's is AS/NZS 3760. This is the standard that should be reference in the Code of Practice. AS/NZS 3190 provides no information relevant to PCBU's looking to ensure the safety of their workplace though compliance with Regulation 165.
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    • Stephen Cooper about 2 years ago
      Hi Sarah,There is a lot of disagreement on whether Australian Standards should even play a role in the prescription of day to day workplace safety requirements.Laws and other documents prescribing should be freely available to all people who are bound by that law. It is fundamentally unjust and undemocratic if a person cannot access the rules with which they are bound to comply.In Australia's case, Standards Australia has exclusively outsourced its standards publishing division to SAI Global, a privately held foreign-owned company, and SAI Global has copyright and licensing restrictions on its products.When Australian Standards are prescribed in law, the government is legislating that Australians must pay a foreign company a fee that the foreign company sets to even read the legal requirements they are bound by. This is both ridiculous and unjust.To quote Carl Malamud (US-based):"How can there be equal protection under the law or due process under the law... if the law is locked up behind a cash register?""The fees for bulk legal data [documents] are a significant barrier to free enterprise, but an insurmountable barrier to the public interest.""If a document is to have the force of law, it must be available for all to read.""Incorporation [into the law] by reference of standards from bodies such as ANSI should only be allowed if the underlying standards are made freely available".References to private standards are a problem even in the voluntary context of codes of practice, as businesses use codes of practice to help determine whether their arrangements are reasonably practicable. Basically, someone has to pay a foreign company just to find out if what they are doing is on the right track. They have to pay even just to find out if the standard is applicable (notable example of the PPE standards - businesses don't know if the standard applies to use and maintenance of PPE in the workplace without buying the standard - and most of the time it doesn't turn out to be relevant). Money just wasted and draining out of the country in the name of safety.These issues disproportionately affect Australia because of the large proportion of small businesses - these lack both the resources to fund buying standards and the specialist expertise to know the content of standards and when they apply. It's a large productivity problem and one of the reasons why the COAG have agreed in principle to slowly remove references to Australian Standards from legislation and other legal documents, with detailed requirements moved into codes of practice.The non-prescriptive and non-binding nature of codes of practice isn't really an issue, even AS/NZS 3760 that you mentioned allows businesses to deviate from the prescribed test periods based on risk assessment.I fully agree that there is a need for detailed guidance on the minimum workplace expectations that would be considered reasonably practicable under the law, but (unfortunately) foreign-owned pay-per-person documents aren't the right solution. If these were made freely available then this could work, but ultimately they are privately owned documents and the copyright holder would be entitled to significant compensation and this cost would ultimately be paid by the Australian people. Better to leave standards as voluntary or prescribed by free-market contracts.
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      • REM almost 2 years ago
        Well said Stephen! I totally agree with everything you say in relation to the Australian Standards referenced in WHS Legislation. Being a small subcontractor, current legislation, i.e., Acts, Regulation, Codes of Practice referencing Standards that must be adhered to places significant costs onto our organisation. If Standards are to be included as legislation, they must be available free of charge. I am also incensed with SAI Global who even want to charge a subscription for their services of informing which standards are actually linked to the legislation let alone the enormous costs involved in purchasing these standards, and again purchasing when they are revised. This issue must be reviewed by SWA and possibly guidance materials published which actually provide a total listing of all Standards referenced into all WHS Legislation as a guidance to small business. And yes! those Standards must be freely made available on the SWA site for anyone to access due to them being classified as legislation and not merely standards.
  • Marie Boland about 2 years ago
    Thank you for your feedback so far. I’ve recently been to Perth, Brisbane, Cairns, Darwin and Adelaide talking to regulators, businesses, unions industry organisations, researchers and community groups about their experience of work health and safety laws.I’ve heard mixed views around the balance of prescription and flexibility provided in the model WHS laws. Many smaller businesses and workers' advocates support the practical guidance provided in the model Codes of Practice. The use of Australian Standards in both the model WHS Regulations and Codes of Practice was also raised with me. I will explore this in further detail through the review process.
  • Stephen Cooper about 2 years ago
    "Codes of Practice provide practical guidance to achieve the standards of health and safety required under the model WHS Act and Regulations." There is debate about how 'practical' the guidance in codes of practice really is. Some codes of practice (e.g. First Aid) are very useful, providing clear expectations of minimum requirements, items that would be considered minimum in some situations, and items that are not considered minimum but could be useful in some situations for those businesses that want to go beyond ALARP. Other codes of practice (e.g. Construction Work) treat most hazards in the sense of 'these options could be appropriate' without getting into the details of which items are considered practically mandatory, recommended or optional (not required most of the time). I appreciate that 'construction work' is an enormously diverse topic, but people come looking to codes of practice for clear guidance on what is and is not acceptable. Simply listing options is not 'practical guidance' - the reality is that for any given situation (e.g. outdoor concrete works), there will be some controls considered normal, some considered optional and some considered unnecessary. People need guidance - and maybe it is better to come from industry bodies rather than regulators.
  • vanders1000 almost 2 years ago
    I do find that some organisations try to push the risk onto the contractor, rather than work with the contractor in controlling the risks. Others try to eliminate all risks, which can make some tasks almost impossible to perform, because of their fear of litigation, and little understanding of the requirements or how a task is performed.
  • Rhys almost 2 years ago
    Following the Hazardous Chemical Information System should become a mandatory requirement. It seems strange (and can put companies at a competitive disadvantage) that an identical product containing toluene can be put on the Australia market having different GHS labels based on the HCIS or ECHA classification and both being legal.
  • Jamie almost 2 years ago
    I agree that Codes of Practice should be followed. Australian Standards should not be referenced in COPs, unless all such documents are provided FREE to any business or person who has to use a COP. The monopoly on AS by SAI Global should be removed by the Federal Government immediately.