Legal status of codes of practice

What is the prosecution that can be commenced?

Persons conducting a business or undertaking must comply with Codes of Practice approved by the Minister unless such persons can demonstrate that they manage hazards and risks to a standard that is equivalent to or higher than the standard required under the Code. This creates a duty that can give rise to an offence under ss 32–33 of the WHS Act.

Who can bring such a prosecution?

Only the regulator or registered organisations that have a member or members concerned in the matter to which the prosecution relates can bring such prosecutions in the Industrial Court of New South Wales (Industrial Court).

What will the Industrial Court consider?

In determining whether this charge is made out, the Industrial Court will ask:

1. Does the Person Conducting a Business or Undertaking (PCBU) comply with the code?
2. If not, how do they manage hazards and risks? Does the way they manage hazards or risks provide a standard of health and safety that is equivalent to or higher than the standard required under the code?

What is the procedure that the Industrial Court will adopt to deal with such prosecutions?

The Industrial Court will deal with such prosecutions in the same way as it deals with all prosecutions under the Work, Health and Safety Act 2011 (NSW).