"Yes... but can you prove it?"
In 2017, SafeWork NSW inspectors did quite a blitz on WHS consultation compliance. They focused on businesses being able to provide evidence and proof that they consulted on WHS matters in accordance with the requirements of the WHS Act. In that year, many businesses were issued Improvement Notices because they could not prove that they consulted when they should have. This was the beginning of a crackdown on WHS consultation that continues to this day.
SafeWork NSW takes WHS consultation compliance very serious. If you were to be visited by a SafeWork NSW inspector today, the likelihood of being asked for evidence that your company consults on WHS matters is very high.
Duty to consult on WHS matters
A person conducting a business or undertaking (PCBU) has a duty to consult on matters relating to health and safety in the workplace as per Sections 46 and 47 of the WHS Act. In tandem with this, business owners and company directors must ensure that it happens, as per Section 27 of the WHS Act which applies to them. A WHS 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. WHS duties are non-delegable. This includes the duty to consult.
Thus, representatives of the PCBU must talk with other PCBUs that share the same premises; with landlords, suppliers, and with sub-contractors. (See WHS Act, Section 46.) For their own business they must talk to all staff in their employ who are or may be affected by a WHS matter. (See WHS Act, Section 47.)
Consultation involves the sharing of information regarding health and safety. Workers must be informed, given reasonable opportunity to express their views, to raise issues, to contribute to the decision-making process and to be advised of outcomes.
The Work Health and Safety Consultation Cooperation and Coordination Code of Practice states that:
“You may establish any arrangements for consultation to suit your workplace and workers’ situations including agreed consultation procedures, as long as those arrangements are consistent with the WHS legislation.”
It is likely that most companies that SafeWork NSW issued the improvement notices to probably do and did consult on WHS matters and have measures in place to do so. The WHS Act does not insist on any particular way you should go about consulting, just that it has to be done. It could be safe to say that most businesses are aware of this and do so, accordingly. This is all very well, but you have to be able to prove it.
Although it does not say anywhere in the WHS Act or WHS Regulation that keeping records of consultation is mandatory, it goes without saying that some record keeping is advisable for exactly the situation where a SafeWork NSW inspector is asking for evidence that WHS consultation happens in your workplace.
Court cases and prosecutions
There have been many court cases in recent times where the root cause of the prosecution was because of consultation failures. This has led to disastrous consequences in some cases. On the other hand, there have also been some cases where the judge saw that consultation did take place and it was sufficient and reasonable. This evidence has exonerated business owners and company directors from being falsely accused.
What would be your answer to the question "did you consult?"
For more information on WHS training and WHS compliance services feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066
You are welcome to download & distribute this article in your workplace if you feel it may be useful
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