Consultation, Representation and Participation

The new Health and Safety legislation reinforces the importance of consultation and the need for consultative mechanisms within organisations.

The Work Health and Safety Regulation 2011(WHS Regulation) operates in conjunction with the WHS Act and details the way in which specific consultation obligations under the WHS Act must be carried out. Further guidance for compliance can be found in codes of practice (outlined below).

Consultation is not a new concept within the realm of our workplaces. The WHS Act requires consultation, representation and participation in matters specific to health and safety with the aim of ensuring effective and relevant health and safety policies and procedures. Importantly for organisations the WHS Act outlines penalties for breaching the WHS Act’s consultation, participation and representation obligations.

Included in this part and new to the WHS Act is the requirement for a procedural framework for resolution of health and safety matters.

A Person Conducting a Business or Undertaking (PCBU) must be able to show that they have as far as ‘reasonably practicable’ consulted with workers on health and safety matters that are likely to directly affect them. Workers must be able to actively participate expressing their views either individually or through consultative mechanisms such as through Workplace Health and Safety Representatives (WHSRs) for their Work Group or through their Health and Safety Committee.

The WHS Act provides that PCBUs are required to consult with other duty holders who may have a duty in relation to the same health and safety matter. Again the phrase ‘so far as is reasonably practicable’ is applied.

The WHS Act specifies when PCBUs are required to consult with workers regarding health and safety matters such as:

 A PCBU must consult with workers when:

·         Identifying hazards and assessing risks arising from work

·         Proposing changes that may affect the health and safety of workers

·         Carrying out activities prescribed by the WHS Regulation

Workers views must also be taken into account when making decisions about:

·         Ways to eliminate or minimise risks

·         The adequacy of facilities for workers’ welfare

·         Procedures for consulting workers

·         Resolving health and safety issues

·         Monitoring the health and safety of workers or workplace conditions

·         How to provide health and safety information and training to workers

 

A WHSR is elected by workers and represents the health and safety issues of the work group they are elected by. The WHS Act allows elections to be conducted with the assistance of a union or other person or organisation, provided that a majority of affected workers agree.

A PCBU must ensure that if requested a WHSR may attend training approved by Workplace Health and Safety Queensland or other State WHS regulator. A PCBU has three months in which to allow the WHSR paid time off to attend the training and must also pay the costs of such training.

In circumstances where there is serious risk to the health and safety of a worker or workers then the WHSR can issue directions to workers to cease work. The WHSR can also issue Provisional Improvement Notices in certain circumstances.

This is a new concept provided by the WHS Act whereby a work group is formed by workers who share a similar work situation, for example a work group formed for all administrative staff at an organisation. Any worker can request a PCBU to set up a work group in order to elect a WHSR and a PCBU must begin negotiations in relation to appropriate work groups within 14 days.

Importantly if asked by a worker a PCBU must negotiate a work group with a worker’s representative such as a union. 

A WHSR can request that a health and safety committee is formed and this must be done within 2 months of the request. A workplace health and safety committee facilitates collaboration and cooperation of PCBUs and workers on various health and safety matters.

Organisations are required to implement a procedural framework for the resolution of health and safety issues. This is a new concept in the WHS Act as previously disputes were normally resolved via conciliation and arbitration through the industrial commission.

The WHS Regulation outlines a default procedure for issue resolution if there is not already one implemented in the workplace.

Codes of Practice provide practical guidance for organisations on how to meet standards set out in the WHS Act and the WHS Regulation in Queensland. The code of practice for consulting workers and consulting, cooperating and coordinating with others on work health and safety matters has been approved and is due for commencement on 1 January 2012.

It is important to remember that codes of practice are admissible in court proceeding under both the WHS Act and the WHS Regulation. In determining what is deemed ‘reasonably practicable’ in the circumstances the Courts may rely on the relevant code to which the matter relates.

Failure to comply with the WHS Acts Consultation, Representation and Participation attracts penalties of up to $20,000.

·         Conduct a health and safety audit of your workplace specifically targeting consultation, representation and participation requirements to determine gaps in compliance.

·         Coordinate with other duty holders at the planning stage in order to implement a process to ensure compliance with the new duty to consult with other duty holders.

·         Proactively develop health and safety consultation policies, processes and mechanisms with all affected workers including contractors and subcontractors.

·         Develop and implement a dispute resolution framework that covers workplace health and safety that is specific to and effective for your workplace minimising the need for regulatory involvement in your workplace.

While penalties for breaches of consultation duties provide enormous incentive to comply with these obligations, it should also be remembered that effective consultation and cooperation in health and safety is essential in securing the health and wellbeing of your workforce.

For more information regarding your consultation obligations under the new WHS legislation, contact Celia Young at Livingstones.