Employers or persons conducting a business or undertaking

As an employer or person conducting a business or undertaking (PCBU), you must consult with workers who are likely to be directly affected by a health and safety issue at your workplace. If a health and safety representative (HSR) is appointed to represent workers, the consultation must involve them. This responsibility is covered by your duty to consult in the Work Health and Safety Act 2011.

In line with the timeframes listed in the Work Health and Safety Act 2011, an employer or PCBU must notify workers in writing of:

• their right to request an election for one or more HSRs
• the process for determining work groups
• who may represent the workers in negotiations about the work groups
• the process of electing HSRs, and
• the functions and powers of HSRs.

PCBUs must also:

• consult on work health and safety matters with any HSRs for the work group
• pay all reasonable costs for prescribed training the HSR is required to attend
• pay HSRs their usual pay (including overtime) when attending training
• provide the resources, facilities and assistance prescribed under the WHS Regulation 2011 to enable the HSR to carry out their functions
• allow a HSR to exercise their powers and functions during their ordinary working hours
• inform HSRs where an entry permit holder or inspector attends a workplace and allow the HSR to accompany them
• keep a current list of all HSRs and deputy HSRs and display a copy at the workplace, and
• notify the regulator of all current HSRs. This can be achieved by using the HSR portal.

An employer or PCBU must not hinder, prevent or discourage:

• their workers from making a request to facilitate the conduct of an election for one or more HSRs, or
• the election of one or more HSRs or deputy HSRs, or
• a person conducting the election of one or more HSRs or deputy HSRs from following the election procedures detailed in the Work Health and Safety Act 2011.

Your workers are directly affected by your decisions and can often see things that you may overlook. Consultation enables you to share information and take workers' views and suggestions into account.

Benefits of consultation

• You get input on hazards, risks and solutions from people who understand and do the work.
• Being involved in making decisions means people are more committed to implementing them.
• Regular communication on health and safety helps build co-operation and trust between employers and employees.

Consultation is a collaborative process between the PCBUs, workers, and worker representatives. It involves sharing information about health and safety.

PCBUs must give workers who are, or are likely to be, directly affected by a matter relating to health and safety, a reasonable opportunity to express their views or raise issues.

Business operators need to consult with workers to:

• provide them with relevant safety information
• raise WHS matters
• get their input on:
  • identifying hazards and assessing risks
  • making decisions about ways to eliminate risks
  • decisions regarding adequacy of facilities
  • proposed changes that may affect health and safety
  • decisions on health and safety procedures.

Health and safety representatives

If you have an elected HSR, then they must be involved in any consultation that may affect the members of their work group. You must carry out the consultation only at the time and place agreed to by the parties.

Suitable entities

A worker(s), or HSR, may seek to be represented or assisted by a representative. A representative in this circumstance is a suitable entity. A suitable entity means:

• a relevant union
• an entity which is not an excluded entity, which could include a technical expert such as an engineer or a physiotherapist.

Where a suitable entity seeks to be involved, the PCBU must facilitate their involvement.

Consult with other businesses

There may be times when you need to consult with other businesses. Examples of this include when:

• more than one business is operating at a workplace such as shopping centres or multi-tenanted office buildings
• construction projects are under a principal contractor arrangement
• you have contractors or labour-hire workers
• developing your emergency plan with your neighbours
• storing significant quantities of hazardous chemicals that could impact your neighbours in the event of a fire or other incident.

Consultation must be regular and ongoing. You must consult with your workers when:

• identifying hazards and assessing risks
• deciding how to eliminate or minimise risks
• making decisions about workplace facilities
• proposing changes that may affect the health and safety of workers
• making decisions about how you will: 
  • consult with your workers
  • resolve health and safety issues
  • monitor your workers' health and safety or workplace conditions
  • provide health and safety information and training to your workers.

You can consult with workers by:

• holding regular meetings, formal or informal
• electing a HSR
• appointing a health and safety committee.

Some workplaces have regular meetings with staff, sometimes called 'toolbox talks', others establish health and safety committees or elect HSRs to consult and represent safety concerns to management.

If your workplace is small and there are no HSRs, then meetings or face-to-face discussions may be the best way to consult.

Under the Work Health and Safety Act 2011 (the WHS Act), business operators, have a duty to consult with other business operators who have the same duty in any situation.

Sharing responsibilities

There are often situations where more than one business operates at a workplace and where people share responsibility for work health and safety to varying degrees (for example, shopping centres, construction projects, labour hire, multi-tenanted office buildings).

Section 16 of the WHS Act requires that:

• where more than one person has a duty for the same matter, each person retains responsibility for their duty in relation to the matter and must discharge the duty to the extent to which the person can influence and control the matter.

Section 46 of the WHS Act also requires that:

• each person with a duty must, as reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a work health or safety duty in relation to the same matter.

Under the WHS Act, you cannot transfer your responsibilities to another person. The requirement to consult, cooperate and coordinate activities with other duty holders will help you to meet your primary duty, to ensure, as reasonably practicable, all workers and other persons are not put at risk from work carried out as part of your business or undertaking.

Consultation, cooperation and coordination between you and the person providing those facilities will help you ensure that the necessary steps are being taken so that you can meet your duty.

The duty requires PCBUs to work together in a proactive and reciprocal way. All risks associated with any activity that they are involved in are eliminated or minimised as far as is reasonably practicable.