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It’s the PCBU’s “duty to consult”

As a provider of Workplace Health and Safety training and consulting we routinely hear from hundreds of people from companies and government bodies about the Work Health and Safety programs and activities they are working on in order to improve their WHS management system and what they have done and are doing to improve their compliance with WHS law.

WHS consultation has always been a major focus for SafeWork NSW. That focus will continue because consultation and communication with workers is a key element in the success of any WHS management system.

From the thousands of discussions we have had over the years we have put together some key points on the subject of the PCBU's duty to consult staff on WHS matters. We hope you will find this useful and supporting of your WHS efforts in your workplace.

  • Under WHS Law the Person Conducting a Business or Undertaking (PCBU) has a mandatory duty to consult with workers on matters of health and safety. This is covered in Sections 47 to 49 of the WHS Act 2011.

  • Further, Section 70 of the Act describes the specific activities and matters a PCBU must discuss with Health and Safety Representatives (HSR) when workers are represented by an HSR in consultation work groups.

  • Some workplaces have a Health and Safety Committee (HSC) to help with the PCBUs efforts to consult the workforce on WHS matters. If a workplace also has HSRs then those HSRs are often members of the HSC. An HSC may deal with matters such as WHS policy, programs and plans, safety and maintenance of plant and machinery, signage, audits, real estate and premises, etc. A health and safety committee is site-specific as it deals with safety concerns of the workplace as a whole. The HSC has no "operational role" and no "authority." It exists as a conduit for communication between the workforce and management on WHS matters. (See Section 77 of the WHS Act.) But a PCBU must prove it has consulted before it can make decisions on WHS matters.

  • In larger organisations it may be impractical for the Officers of the PCBU (Directors, CEOs, GM's etc) to walk around the workplace, going from work group to work group and talking to the HSRs about issues. "A visit from the big boss" once in a while might be a good PR action but may not be the best representation of the PCBU complying with this duty. Some workplaces have multiple sites. How would that work? Managers have to manage.

  • A Health & Safety Committee can be a effective forum to assist with the PCBU’s duty to consult, but it is not efficient as the "only" means of consultation. A PCBU must consult whenever required, irrespective of when "the next committee meeting" is. Consultation must be able to take place every minute of every hour of every work day. The WHS management system has to be in constant operation.

If the consultation process is taking place in your workplace, and it can be documented and proven, then your workplace is well on the way to being compliant with basic WHS consultation law.

6th February 2017


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