It’s the PCBU’s duty to consult
Weekly WHS Article 14th September 2023
WHS consultation has always been a major focus for SafeWork NSW as it is a major part of WHS Law. Consultation and communication with workers is a key element in the success of any WHS management system.
Here are some key points on the subject of PCBU consultation. We hope you will find this useful and supporting of your WHS efforts in your workplace.
A Person Conducting a Business or Undertaking (PCBU) must consult with workers on matters of health and safety. This is covered in Sections 47 to 49 of the WHS Act 2011. The PCBU is the business entity. It is a name on paper. Business owners, Directors, CEOs and any other top-tier managers that fit the definition of "officer" under Section 9A (d) of the Corporations Act 2001 are the people that must convert these requirements into real world actions and consult, as representatives of the PCBU. (See Section 27 of the WHS Act.)
Section 70 of the WHS Act describes the specific activities and matters those acting as "representatives of the PCBU" must discuss with Health and Safety Representatives when workers are represented by an HSR.
Some businesses may formalise their consultation arrangements by establishing a Health and Safety Committee (HSC) to help with WHS consultation. HSCs deal with matters for the entire workplace. HSRs deal only with matters associated with hazards and risks in their work groups. An HSC is an additional resource for management to be able to communicate with the workforce. In many businesses, the "worker representatives" of the committee are also HSRs for the work groups established at the premises.
A health and safety committee is site-specific as it deals with safety concerns of the workplace as a whole (as opposed to concerns pertaining to work groups.) Often these are project-based activities that address specific workplaces and premises. An HSC addresses matters such as WHS policy, programs and plans, safety and maintenance of plant and machinery, signage, audits, real estate and premises, etc. HSRs on the committee may still need to pass information to the people of their work groups on some WHS matters. An HSC has no "operational role" and no "authority." The HSC doesn't make decisions. It makes recommendations to Management who make the decisions. (See Section 77 of the WHS Act.)
In larger organisations it may be impractical for Directors and CEOs to talk to HSRs directly about WHS issues. "A visit from the big boss" once in a while might be a good PR action but may not be the most effective way to consult on more complicated matters. How often can the CEO actually get out and do that? Some workplaces have multiple sites. How would that work? Directors and CEOs get their management team to be their "eyes and ears" and report back to them. It doesn't matter "how" WHS consultation is done. It just has to be done. (See Sections 48 and 49 of the WHS Act.)
A Health & Safety Committee need only meet once every three months hence cannot be the "only" resource for WHS consultation in a workplace. What about WHS matters that occur in the intervening months between meetings? WHS consultation must occur whenever required, irrespective of when "the next committee meeting" is. Hence, tool box talks, safety meetings, surveys and simple one-on-one discussions, anything else that works to facilitate the resolution of WHS matters must occur when and as needed. Having a "health and safety committee" does not mean "Safety is all sorted."
Keeping records of compliance with consultation is not a legal requirement but is good practice and could make disputes less likely and assist the risk management process.
You are welcome to contact us if you have any questions about consultation or other WHS matters.
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14th September 2023
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