WHS Due Diligence for CEO’s, Directors and Managers – NSW edition
Topic 4 – CONSULTATION
An important area in Officer responsibility is to ensure that consultation occurs with all Workers who carry out work for the business and/or who may be directly affected by a WHS matter.
You must also consult, cooperate & coordinate activities with other duty holders who share WHS duties regarding the same matter. For instance, if you hire a contractor to do work for you, that work is “the same matter” and both PCBUs (the contractor and host PCBU) must exercise their duties to the fullest extent.
Consultation must occur in accordance with the WHS Act 2011.
The Nature of Consultation (Section 47 WHS Act 2011)
(1) Consultation under this Division requires:
(a) that relevant information about the matter is shared with workers,
and
(b) that workers be given a reasonable opportunity:
(i) to express their views and to raise work health or safety issues in relation to the matter, and
(ii) to contribute to the decision-making process relating to the matter, and
(c) that the views of workers are taken into account by the person conducting the business or undertaking, and
(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.
Although preferable, consultation is not necessarily about reaching agreement. Management remains responsible for making decisions.
When to Consult
- when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,
- when making decisions about ways to eliminate or minimise those risks,
- when making decisions about the adequacy of facilities for the welfare of workers,
- when proposing changes that may affect the health or safety of workers,
- when making decisions about the procedures for—
(i) consulting with workers, or
(ii) resolving work health or safety issues at the workplace, or
(iii) monitoring the health of workers, or
(iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or
(v) providing information and training for workers, or - (f) when carrying out any other activity prescribed by the regulations for the purposes of this section.
Essentially, consultation must occur before any decision or change is being made that can potentially affect the health and safety of a worker. (See WHS Act s49)
How to Consult
The WHS Act provides 3 ways how to consult
- Health and Safety Representatives (HSR)
- Health and Safety Committees (HSC)
- Other Arrangements
Health and Safety Representatives (HSR)
These are elected individuals who represent the safety concerns of their work group.
They must be elected under certain circumstances, are entitled to a 5 day SafeWork NSW HSR course and when completed, can issue provisional improvement notices to and direct the cessation of unsafe work.
Health and Safety Committees (HSC)
These are a group of people including management and non management, who meet on a regular basis and make recommendations on how to improve safety in the workplace.
A HSC must be established under certain circumstances. The PCBU can establish a HSC on its own initiative.
Health and Safety Committees can have a profound positive effect on workplace safety and therefore on overall business results. Key to achieving this is to have HSC members undergo suitable Safety Committee training. This training can delivered over 1 day face to face or 4hrs or online.
Other Arrangements
Consultation using staff meetings, toolbox talks, face to face meetings etc. This style of consultation will particularly suit smaller businesses. However, every business must consult on how to consult.