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It’s the PCBU’s “duty to consult”

Weekly WHS Article 14th September 2023

As a provider of Workplace Health and Safety training and consulting we routinely hear 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 many 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. Often these are project-based activities that address whole workplaces and premises. 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 consult before it can make decisions.

  • 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 an effective forum to assist with the PCBU’s duty to consult but may not be sufficient as the only means of consulting. However, a committee may agree to consider issues that an HSR would be consulted on if a workplace does not have HSRs. A PCBU must consult whenever required, irrespective of when "the next committee meeting" is. Consultation must be able to take place whenever it is needed.

  • 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.

It's the PCBU's duty to consult
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14th September 2023

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