“We have a health and safety committee” does not mean “We have WHS Consultation covered”
Weekly WHS Article 29th November 2022
Decisions about the health and safety of a workplace are ultimately made by the PCBU (business, corporation, organization, sole trader.) Before decisions are made a PCBU is required by law to consult every person in their workforce on WHS matters that may affect them. This requirement has been in effect for 11 years, as covered in the WHS Act 2011 and WHS Regulation 2017 but can still be a weakness in some businesses.
How to Consult with Workers
There are a number of ways that consultation may take place. In small companies the PCBU may be able to talk directly to staff, or have representatives talk directly to staff at toolbox talks, staff meetings, or through email and phone correspondence.
In larger organisations, consultation may be carried out with Health & Safety Representatives who have been elected by workers to represent their group, or consultation carried out with members of a Health & Safety Committee who have been elected by workers, or direct consultation with workers by their Manager/Supervisor. One or more of the above avenues of consultation in combination could be used in the workplace.
The legal requirements in section 48 of the WHS Act about the nature of the consultation are that a PCBU must;
consult with workers who are, or who are likely to be, directly affected by a work health and safety matter,
share relevant information with workers,
give workers reasonable opportunity to express their views and to raise their work health and safety issues and to contribute to the decision making process,
take workers’ views into account,
advise workers of the outcome of the consultation in a timely manner,
involve the workers’ health and safety representative in the consultation.
Health and Safety Committee meetings
If a business has a health and safety committee (HSC) the committee must meet at least once every 3 months. That’s minimally once every 13 weeks.
The purpose of a health and safety committee is to help the business develop company WHS measures, policies, procedures, rules, and standards. An HSC helps the PCBU consult with the workforce. The committee provides feedback, suggestions, and information from the workforce with recommendations back to the PCBU so the PCBU can make decisions and spend any needed money on matters of health and safety. [See ref 1 and 2]
But if a health and safety committee only meets every 3 months what happens if WHS issues or proposals need to be consulted during the 11 weeks in between? What if there are incidents? What if a managed risk needs to be reviewed or modified now? What if something new or urgent needs to be brought to the attention of the directors and senior management? Is the PCBU going to “wait till the next meeting” to consult staff on these matters?
Obviously, the answer is no.
When Consultation is Required
Section 49 of the WHS Act says:
“Consultation under this Division is required in relation to the following health and safety matters:
(a) when identifying hazards and assessing risks to health and safety arising from the work carried
out or to be carried out by the business or undertaking,
(b) when making decisions about ways to eliminate or minimise those risks,
(c) when making decisions about the adequacy of facilities for the welfare of workers,
(d) when proposing changes that may affect the health or safety of workers,
(e) when making decisions about the procedures for:
(i) consulting with workers, or
(ii) resolving work health or safety issues at the workplace, or
(iii) monitoring the health of workers, or
(iv) monitoring the conditions at any workplace under the management or control of the person
conducting the business or undertaking, or
(v) providing information and training for workers, or
(f) when carrying out any other activity prescribed by the regulations for the purposes of this
We can determine very clearly from Section 49 above that whenever there is a need to identify new risks, revisit managed risks, obtain information about health and safety matters, make changes to procedures, or make any decisions concerning workplace health and safety, then the PCBU must consult its people on those matters before making those decisions.
Therefore, a business must have a management system that exists and operates every moment of the day and every day of the work week that allows the PCBU to be able to consult on health and safety matters as needed, and when there are emergencies or incidents.
“We have a health and safety committee” does not mean “we’ve got consultation covered.”
Primary duty of care
It is already established earlier in the WHS Act that the PCBU has the primary duty of care. “Duty of care” in a legal sense is the legal obligation to ensure the safety or well-being of others. This is different from the moral obligation to render help as covered in the common law definition of “duty of care” and which otherwise applies to every human being. The WHS Act is very specific in establishing who has the overarching responsibility for providing the WHS risk management system and ensuring the safety and wellbeing of staff at work. [Ref 3]
The PCBU must consult as needed on matters of health and safety.
That might be today, tomorrow, or might need to be right this very minute.
Is consultation in your workplace effective? Do you want to talk about it?
Feel free to contact one of Courtenell’s WHS consultants on Ph. 9552 2066.
Ref 1. WHS Act, Section 77 Functions of committee
Ref 2. WHS Act Section 78 - Meetings of committee
Ref 3. WHS Act Section 19 Primary duty of care
29th November 2022