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. It's the duty of the PCBU (business, organisation, corporation, etc) to consult on WHS matters.
WHS duties are non-delegable. This means a duty holder cannot transfer or subcontract their legal liability to another party. Even if the task is delegated, the original party remains responsible for ensuring it is performed correctly.
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. A PCBU is a business entity, not a human being. Therefore, business owners and company directors (deemed "officers" as per Section 9A (d) of the Corporations Act 2001) are the people that must convert these requirements into real world actions and consult to ensure this duty is met. (See Section 27 of the WHS Act.)
Health and Safety Representatives are people from the workforce who have been elected to represent groups of workers in the workplace (work groups) and help the PCBU to consult on WHS matters. The establishment of work groups comes first. Section 70 of the WHS Act describes the specific activities and matters 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 their duty to consult. HSCs deal with matters for the entire workplace but can assist with specific WHS consultation matters too as per Section 77c of the WHS Act. This Section of the Act expands on the committee's specific duties stated in Section 77a and 77b to consultation actions as agreed between the PCBU and the committee. A health and safety committee is site-specific as it deals with safety concerns of the workplace as a whole and assists with WHS policy, programs and plans, safety and maintenance of plant and machinery, signage, audits, real estate and premises, etc.
In larger organisations it may be impractical for business owners and company directors 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? CEOs get their leadership 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 the business to consult its workers on WHS matters. 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 an HSC doesn't replace other needed actions and procedures for consultation on WHS matters.
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.
For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.
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14th September 2023
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