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:

• How can we consult our workers and be WHS compliant?

• Do we have to have a health and safety committee?
  

To answer the first 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.”

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” 

Section 49 of the WHS Act 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.”

To answer the second 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.”

The WHS Act is sequential

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. Formation of a health and safety committee comes later in the WHS Act.

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.

Directors must ensure their leadership team assists them

The PCBU (organisation) has the overarching duty to consult, but a PCBU is not a human being, it is a business entity.

Business owners and company directors control the business. They have an assurance role and therefore must ensure consultation processes exist and take place. They need their leadership team to help translate these processes into Reality. 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. 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

3 May, 2019 (Revised 31 July, 2024)