Two questions regarding WHS consultation
We often get questions from clients about what they have to do to comply with WHS consultation requirements. WHS consultation is mandatory and must be done for every WHS matter before decisions are made about the matter. Two common questions are:
Do we have to have a health and safety committee?
How can we consult our workers and be WHS compliant?
We are happy to help clients with answers that will help them with their WHS requirements.
To answer the first question "do we have to have a health and safety committee?" :
The Work Health & Safety Consultation, Co-operation and Co-ordination Code of Practice, page 12, tells us that: “Consultation with workers can be undertaken in various ways.” It can “be undertaken through health and safety representatives and health and safety committees. However, the WHS Act does not require the establishment of these consultation mechanisms, unless:
in relation to a health and safety representative – a request is made by a worker
in relation to a health and safety committee – a request is made by 5 or more workers or a health and safety representative.”
Sequentially, the WHS Act covers the formation of work groups for the purposes of WHS consultation and the election of HSRs to represent persons in those work groups, should a business wish to formalise their consultation arrangements. Whether there is also a health and safety committee or not, consultation must take place, at any time as needed. A health and safety committee only need meet once every three months, per the WHS Act. Having a health and safety committee does not mean you have effective consultation processes in place at your workplace. Under Victorian OHS Law you have to have work groups and HSRs before you can form a health and safety committee. This leads us to the second question.
To answer the second question "How can we consult our workers and be WHS compliant?", let us refer to the same Code of Practice :
A PCBU (business, organisation, corporation) “... may establish any arrangements for consultation to suit your workers and workplace situations, including agreed consultation procedures, as long as those arrangements are consistent with the requirements of the WHS Act.”
However you do it, consultation must be done in accordance with Sections 48 and 49 of the WHS Act. The Code of Practice reiterates that Section 48 of the WHS Act sets out the nature of consultation. It requires that:
“relevant work health and safety information is shared with workers
workers are given a reasonable opportunity to express their views and to raise health or safety issues
workers are given a reasonable opportunity to contribute to the decision-making process relating to the health and safety matter
the views of workers are taken into account, and
workers are advised of the outcome of any consultation in a timely manner”
The Code of Practice reiterates that Section 49 requires that :
“A person conducting a business or undertaking must consult with workers when:
identifying hazards and assessing risks arising from the work carried out or to be carried out
making decisions about ways to eliminate or minimise those risks
making decisions about the adequacy of facilities for the welfare of workers
proposing changes that may affect the health or safety of your workers, and
making decisions about procedures for consulting with workers; resolving health or safety issues; monitoring health of your workers; monitoring the conditions at the workplace and providing information and training for your workers.”
The Role of Managers, Supervisors and Team Leaders The PCBU has the overarching duty to consult, but a PCBU is not a human being. Business owners and company directors are the "faces" of the PCBU. They must ensure consultation takes place in Reality. They use their leadership team to help. That requires a system and agreed procedures. With those in place, and records kept of consultation activities, you may be able to achieve compliance with these requirements of the law. Recommendation This article is too short to be able to cover consultation requirements properly, but we do recommend the Work Health & Safety Consultation, Co-operation and Co-ordination Code of Practice, as an excellent resource for guidance on workplace consultation.
3 May, 2019 (Revised 31 July, 2024)