Australia: Workplace consultation: why, when and how?

The harmonised work health and safety legislation (WHS legislation) imposes obligations on duty holders to consult, so far as is reasonably practicable, with other duty holders and their workers in relation to the identification and management of risks to health and safety in the workplace.

This means that duty holders need to consult and coordinate activities with other duty holders who have a work health and safety duty for the same matter. They also have to consult with their workers who are likely to be directly affected by a matter relating to work health and safety.

Why is consultation important?

The rationale underpinning the obligation to consult is twofold. First, the more people there are looking at a particular issue, the more likely it is that risks will be identified and appropriate control measures implemented. Second, the skills, experience and the particular insight of workers and other duty holders are a valuable resource that should be tapped into when identifying risks and control measures.

Most safety regulators in Australia also now include consideration of whether consultation has occurred in their incident investigation process. That is, following an incident, or even when making compliance inspections, questions are asked of duty holders about whether they have appropriately consulted with workers and other duty holders and whether suitable consultation mechanisms are in place.

An inspector will usually ask to see evidence of the consultation process, including consultation policies and procedures. They may also ask to see minutes of health and safety committee meetings, to ascertain whether meaningful consultation has actually occurred. Failure to produce such evidence may indicate a failure to comply with a duty. This may expose the duty holder to a risk of prosecution and potentially significant fines, irrespective of whether there has been an incident. Furthermore, it may also expose officers of the organisation to liability or culpability for a failure to exercise due diligence in taking reasonable steps to ensure the organisation is complying with health and safety legislation.

When should consultation occur?

Consultation should be undertaken by duty holders in a number of circumstances, including:

  • when identifying hazards and assessing risks to health and safety arising from work
  • where there is a change to the system of work
  • when making decisions about the adequacy of facilities for worker welfare
  • when making decisions about ways to eliminate or minimise risks
  • when proposing changes that may affect the health or safety of workers, and
  • when making decisions about how to consult.

Importantly, consultation must be proactive. That is, it must occur before work is commenced or, in the case of work already underway, as soon as new risks are encountered. The requirement to consult will be triggered when a new worker starts as well as when new processes, plant, equipment and/or substances are introduced into the workplace—as each may introduce a new risk into the workplace.

How should consultation be undertaken?

Workplace consultation can be undertaken in a number of ways. The most common method for consultation with workers is through health and safety committees. Consultation with other duty holders is usually done through the use of pre-work meetings.

Before consultation occurs, the following questions should be considered:

  • What is the relevant activity or issue that requires consultation?
  • What obligations does the duty holder have regarding that particular activity?
  • Who else is involved in the activity?
  • What information does the duty holder need to know to ensure compliance with its duties in relation to that activity?
  • Where do the activities of the duty holder intersect with the other duty holders?
  • How do each of the parties compromise or support the health and safety activities of the other party?

Workers must be given an opportunity to express their views and raise health and safety issues throughout the consultation process. These views must also be considered in any decisions that are made. Where workers are represented by a health and safety representative (HSR), the HSR should be involved in the consultation. Workers and other duty holders should be advised of the outcome of the consultation in a timely manner.

The WHS legislation does not set out a specific mechanism for how consultation should be undertaken. Rather, the consultation process needs to be tailored to suit the particular workplace. For example, the consultation process for workers in a factory will not be suitable for a workforce that is not confined to a single workplace, such as truck drivers. This means that duty holders may also be required to consult about the appropriate consultation process.

Other considerations

The various duties of each duty holder performing work should also be considered during consultation. For example, you will need to determine which duty holder is required to provide plant, equipment, processes and supervision in relation to the work. Site access, site security and the provision of amenities are also relevant considerations.

Ultimately, it is the outcome of the consultation that is important. The consultation must achieve an effective exchange of information between all relevant parties and should result in workplace health and safety measures that can be implemented.

The duty to consult with workers and other duty holders is subject to the qualifier of what is reasonably practicable in the circumstances.

What do I need to do?

Duty holders should prepare a consultation procedure if their workplace does not already have one in place. Consultation procedures should include:

  • the type of matters and activities where consultation should occur
  • the frequency of consultation
  • who should be consulted
  • how consultation will occur
  • how information will be shared with workers and HSRs
  • what opportunities workers and HSRs will be provided to give their views on proposed matters and how these will be considered, and
  • how duty holders and workers will be advised of the outcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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