Compliance by persons conducting a business or undertaking (PCBU) with the consultation duties in the proposed Work Health Safety Act (model Act) will be necessary to ensure and facilitate compliance with the broader primary duty contained in the model Act.

Although the proposed consultation duties are modelled on provisions in the Victorian legislation, the obligations are far wider than existing provisions because the duty to consult is not simply owed to employees but rather to a far broader category: workers. ‘Workers’ are defined to include contractors, subcontractors, employees of contractors and subcontractors, labour hire workers, students on work experience, apprentices, outworkers and volunteers as well as employees. The full implications of this significant expansion of the duty have not been widely debated to date.

In addition, there is a new duty to consult with other duty holders: that is, if more than one person has a duty in respect of the same matter, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who share that responsibility.1

This duty is known as horizontal engagement, and is akin to similar obligations contained in rail safety legislation relating to interface coordination. Broadly, consultation needs to be co-ordinated between all of the relevant duty holders so as to identify and address any gaps in managing health and safety risks.

Under the model Act, workers at a workplace are entitled to be represented by an elected health and safety representative (HSR), and if so represented, consultation by a PCBU must involve that HSR who has various functions and powers under the model Act. In addition, consultation with workers may also occur via an established health and safety committee (HSC) at a workplace.

Workers must be provided with relevant information regarding the matter for consultation and their views must be taken into account. Workers must also be advised of the outcome of any consultation in a timely manner.

Currently, it is proposed under the model Act that a failure to consult with relevant duty holders and/or workers will result in maximum penalties of up to $100,000.00 for a body corporate and up to $20,000.00 for an individual.

 Who has a duty to consult?

All PCBUs have a duty to consult.

Officers, such as company directors, must be aware of the duties and exercise all due diligence to ensure that the business or undertaking implements its consultation processes.

Likewise, workers are required to participate in consultation arrangements and report any hazards and incidents to their managers.

When is consultation required?

In summary, consultation is required when:

  • identifying hazards and assessing risks arising out of work
  • making decisions about ways to eliminate or minimise risks
  • making decisions about the adequacy of facilities for workers
  • proposing changes that may affect the health and safety of workers
  • making decisions about various procedures, and
  • carrying out any other activity relevantly prescribed by the model Regulations.

Duty holders should come to a shared understanding of what the risks are, which workers are affected and how the risks will be controlled.

The extent to which consultation will be considered to be reasonably practicable in the circumstances will depend on factors such as the size and structure of the business, the nature of the work, the types of work arrangements including shift work and remote work, and the characteristics of workers.2 The more likely a hazard is to cause serious harm, the more extensive the consultation that is required.

Consultation is required at the commencement of each relevant health and safety matter and is to be ongoing.

Organisations need to keep records of their consultation to assist with the risk management process and to demonstrate compliance with consultation requirements in the event of a dispute.

Recommendations

There are a number of steps required to ensure compliance:

  • Identify your workers: Your duty is to consult your workers and therefore you need to identify who those workers are.
  •  Negotiate workgroups: The process of negotiating workgroups may be complex especially in a unionised workplace. Allow yourself sufficient time to engage with your workers to ensure that you get the desired outcome.
  • Revise your policies: The triggers for consultation have changed. Make sure that your policies reflect this.
  • Understand the new regulatory environment: HSRs will have additional powers in some jurisdictions such as the power to issue provisional improvement notices and to direct that work cease. Management need to be trained to deal with that new environment to ensure they do not inadvertently fall foul of victimisation provisions.

It is also recommended that organisations prepare a consultation checklist which outlines the procedures that will ensure compliance with the consultation provisions in the model Act and model Regulations.

Organisations should also conduct an analysis to identify other duty holders with which their business and undertakings intersect and should consider preparing a pro-forma consultation agreement that can be entered into with concurrent duty holders as required in order to meet the obligations for horizontal engagement with other duty holders.