The code of practice is still in place

I refer to Joseph Zammit McKeon's contribution "The 1997 code was killed" (October 20) where it was contested that once the OHSA Act of 2000 (Cap. 424) came into force, it automatically repealed the validity of the code of practice issued by virtue of the Occupational Health and Safety Promotion Act of 1994 (Cap. 367).

The Occupational Health and Safety Authority has sought legal advice on the matter and would like to state that this code is far from "dead" and is, in effect, still valid today.

According to the general principles of the Interpretation Act of 1975, the repeal of a law does not render invalid anything validly done under the repealed act. Whether the code is saved or otherwise for the purpose of the new act depends on two issues. One depends on the effect or force that such codes have under the new law and whether they must be codes issued under its authority. The second is whether the repealing section of the law makes any provision expressly deeming them (if they require to be made under the new law) to have the same effect as if promulgated under the new law.

With regard to the first issue, the OHSA Act of 2000 (Cap. 424) defines codes of practice as a "standard, specification or any other written or illustrated form a practical guidance, instruction or control" (Art. 2). This definition does not in any way indicate that a code of practice has legal effect but underlines the practical nature of the same.

Article 9 (2) (e) of the Act provides that one of the functions of the authority is to prepare regulations or codes of practice which are required to promote, maintain and protect a high level of occupational health and safety.

As already previously stated by the authority, "the scope of this code is to provide practical guidance on a technical, administrative and legal framework for health and safety in the construction industry, to ensure a better level of protection of the health and safety of workers, and to prevent harmful effects on the health of workers, and accidents arising from employment in the construction industry.

"Although failure to comply with any provision of this code is not of itself an offence under Act VII of 1994 (which has now been replaced by Act XXVII of 2000), this latter act clearly states that it is the duty of the employer to ensure the safety and health of all the workers who are carrying out work for that employer, as well as of third parties."

In this respect, the legal force or effect of codes of practice issued under the authority of the OHSA Act of 2000 can be compared to the legal force or effect of codes of practice issued under the previous act of 1994 (Cap. 367). The question as to whether they have "effect" at a particular point in time depends on whether their contents provide good guidance or not.

In view of the fact that the new OHSA Act did not change the substantive thinking with respect to the health and safety procedures in the building and construction industry, the code retains its practical value as a guide to the implementation of safety measures. Indeed, this is, and always was, the only "effect" which this code has, even though it was published by an authority, set up by law.

When it comes to the second issue, article 12 of the Interpretation Act of 1975 (Cap. 249) provides that when an act of parliament is repealed anything which is done under or by virtue of the repealed act of parliament shall continue to have full effect, unless it appears that there is an intention that the thing done under or by virtue of the repealed act of parliament shall also be repealed.

The OHSA Act of 2000 provides no express answer as to whether there is such an intention. However, in view of the arguments expressed above, it is quite clear that there is no such implied intention.

It is thus concluded that the code is still a valid instrument whereby practical guidance on a technical, administrative and legal framework for health and safety is being provided to employers and employees in the building and construction industry. Thus, all duty holders in the construction industry would be ill-advised if they were not to take cognisance of the numerous provisions found in the code and were they not to act accordingly.

Dr Gauci is chief executive officer, Occupational Health and Safety Authority.