Australian Standards offer a nationally uniform OHS code

THE slow and ongoing progress towards national harmonsation of OHS law across Australia's nine jurisdictions highlights just how complex OHS law compliance is for employers in Australia.

THE slow and ongoing progress towards national harmonsation of OHS law across Australia’s nine jurisdictions highlights just how complex OHS law compliance is for employers in Australia.

THE slow and ongoing progress towards national harmonsation of OHS law across Australia’s nine jurisdictions highlights just how complex OHS law compliance is for employers in Australia.

Another facet of this same enigma is the fact that once the employer locates the relevant Act or legislative instruments, chances are they have been amended and are no longer up to date.

While the employers’ key OHS compliance sections are relatively few, one section in the OHS Act that opens the door to a Pandora’s box of headaches is usually buried at the back of the Act. It is seldom visited and headed -Industry Codes of Practice.

So where to start

The logical starting point for seeking “guidance” is to turn to the States Regulations under the OHS Act. These are intended as a roadmap for the employer to follow in implementing the Law’s compliance requirements. Particularly, as regards the risk management approach that underpins the OHS Law.

The NSW OHS Regulations lay down in, for example, Clause 16(2) that ….such “information” as is necessary should be obtained by the employer (in developing risk assessments etc) from a variety of “authoritative sources” these are for example -MSDSs; Workcover Guides; Industry Codes; Australian Standards; National Standards and National bodies; also assessments prepared by NICNAS (National Industrial Chemicals Notification and Assessment Scheme) etc.

But, with this guidance information frequently being available from several of these authoritative sources – which does the employer reference and which can safely be ignored?

As regards these National bodies consider the following: the Regulations may in different editions refer to the National Occupation Health & Safety Commission (NOHSC) which was superseded by the Australian Safety and Compensation Council (ASCC) and this entity has been in turn superseded by Safe Work Australia. All too often guide material references NOHSC material and it can be a problem locating more up to date information that supersedes the NOHSC source.

To add more confusion to an already less than clear picture, consider the dilemma where the company has perhaps, manufacturing and warehousing sites in different States – which Standard and Code does the employer follow? And which States’ Regulation does he apply?

Australian Standards

As regards Australian Standards, often because the latter are very costly especially where the manufacturing processes may be several and each has a relevant Australian Standard – the employer opts not to purchase the Standard or several relevant Standards. Is this wise?

Much OH&S guide material sources is freely available on the Internet while the Australian Standards are not. This causes the applicable Standard to be passed over and often ignored. But, since they apply nationally, is this not a consideration to be weighed?

In applying a particular States’ Regulatory Authority guide material, the employer located in more than one State is being compelled to gamble on which guidance material to follow. Yet, how is the employer to know which States “guidance” material is the “safer” bet?

This fisherman’s fishing reel tangle of convoluted “guidance” material leaves the employer thoroughly confused … and left wondering which guide material does his “due diligence” obligation demand be referenced and what can be safety ignored, if any?

This “authoritative source” imbroglio can be illustrated with the following examples:

1. Plant. The NSW Regulations 2001 as amended- under the Act provides primary “guidance.” (Refer- Chapter 5, Part 5.4 Working with Plant)

Further guidance can be found in the Regulatory Authority’s (Workcover NSW) guide to Plant 2001 amended in 2007. (For Victorian Plant guidance- see: Plant (Code of Practice No19, 1995) In Victoria – NOTE: The OH& S Act 2004 operational July 2005- compliance with a Code of Practice does not necessarily imply compliance with the Law. See further: Plant Safety Package. Revised July 2002. And refer : Worksafe information for employers May 2005

Also referenced regarding Plant safety one finds the NOHSC guide published in 1994. The National Standard for Plant [NOHSC: 1010 (1994)], while in August 1995 the NOHSC published: “Plant in the work place- making it safe”, sub-titled further – A Guide to managing risks from plant in the workplace for employers and employees.

Frequently, Regulations and Regulatory Authority Guides list a series of Australian Standards with the recommendation that these be referenced; an employer must diligently establish his company’s OHS risk management system -refer section 3(e) of the NSW OHS Act, ( Section 21(2) in the Victorian Act ) The employer is well advised to resort to obtaining guidance from yet another Australian Standard – AS/ NZS 4801: 2001 – OH&S Management Systems. Specifications with guidance for use. This guide sets out a roadmap for the guidance of the employer ;

Another important Australian Standard available for use by the employer with regard to seeking guidance vis-a-vis Plant is AS 4024.1: 2006. Safeguarding of machinery: General principles.

2. Welding; spray painting; confined space work; crane operation; scaffolding; gas cylinder use; noise; emergencies ; fire protection – and so the list goes on – all, are examples of OHS issues that have been addressed in both Workcover guide material and in Australian Standards.

Over-viewing the above many authoritative sources of guidance material and the availability of Australian Standards covering generally the same issues -two questions present themselves to be answered namely – which ” guidance material” must the employer reference in order to be able to evidence “due diligence” in the event of a criminal prosecution for negligence?

And secondly, which guidance material may carry more “weight” in the mind of the judicial officer – called upon in court to adjudicate in such a criminal prosecution?

Conclusion

The reader should bear in mind the following – two paradigms are addressed above – firstly, the one where an employer is trying to find guidance as to which authoritative sources to use in the face of many and which guide material to use where perhaps the manufacturing and warehousing operations are taking place in two or more States. Not an uncommon occurrence.

The MD of the latter organisation is faced with deciding which States’ OHS Law and which “authoritative source” material, the organization will comply with- to best protect the company, its directors and managers as well comply with its Duty of Care obligations to its employees and operators.

While the MD of an organization operating solely intra-state, may not be swayed by the need for using an Australian Standard that is relevant nationally. Still, the author recommends it’s consideration.

With 25 years experience in OHS Consulting in Australia the author’s recommendation is to choose the high- water- mark legislation as the benchmark, for compliance.

What might that be in NSW? And again similarly, what might that be in Victoria? In moving beyond the Act and the Regulations for “guidance”, employers should be looking more than they are at present at the relevant Australian Standards. Bear in mind these are relevant where- ever your operation has a foot – print in the Commonwealth of Australia.

Beyond the relevant Australian Standard, “guidance” is best sought from a National Standard. Where this is unavailable it is recommended you look to an Industry Code of practice developed by a Regulatory Authority where the law has been more recently upgraded. As is the case with the Regulatory Authorities in Victoria and Queensland. Refer to in Victoria – www.worksafe.vic.gov.au And in Queensland to www.deir.qld.gov.au

The reason for this is simple. The comprehensive OHS legislative upgrades that have taken place in these two States fairly recently, invariably draw in their wake more up to date guidance material.

* Ray Schaffer is principal consultant with RMH Schaffer and Co, health, safety and environment consultants 02 9878-0613. Visit www.environmentdiy.com.au, pose a question and receive an answer at no cost.