Australian Work Health and Safety (WHS) law directs that all businesses must consult with their workers. Specifically, the WHS Act states that businesses/employers (PCBUs) must consult (as far as is reasonably practicable) with workers who are, or are likely to be directly affected by a matter relating to work, health or safety.
Further, the Act states that if there is an agreed procedure for consultation, the consultation must be in accordance with those procedures. Any agreed procedures need to ensure that;
- Relevant information is shared work workers, and
- Workers are given a reasonable opportunity to:
- Express their views and raise WHS issues in relation to the matter, and
- To contribute to the decision-making process relating to the matter, and
- That the views of workers are taken into account by the PCBU, and
- Workers who are consulted are advised of the outcome of the consultation in a timely manner.
Importantly, if the workers are represented by a health and safety representative, the consultation must involve that representative.
The Act is clear in its description of employersโ duty to consult with their workers about WHS. The duty to consult is mandatory, whether or not there are โagreed proceduresโ. If there are no agreed procedures for consultation, the employer still needs to discuss WHS matters (in the method listed above) with the workers.
If an employer or employee wishes to have an agreed procedure for consultation, the procedure needs to be selected from the types listed in the WHS Act.
What types of consultation mechanisms are there?
There are three categories of consultation mechanisms in the WHS Act. These include:
| Health and Safety Representatives (HSRs) | Health and Safety Committees (HSC) | Other Agreed Arrangements |
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HSRs are elected to represent workers on health and safety matters and have responsibilities under WHS legislation. There is a process to follow to elect the HSR and work groups in the WHS Act. An employer must facilitate the election of an HSR if one or more workers request it. When a request is made for an HSR, the employer must also facilitate the determination of one or more work groups. A working group usually consists of workers who perform similar types of work and have similar WHS conditions within the workplace. E.g. the office may have an HSR to represent them, and the factory may have its own HSR. The HSR will gather information about WHS issues for their workgroup and discuss them with the employer to reach mutually suitable outcomes. HSRs have significant powers under the legislation including the ability to authorise staff โstop workโ in extremely unsafe conditions, and issue Provisional Improvement Notices (PINs).
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An HSC is a group of elected employees (with at least 50% being workers, and the remaining being management representatives) who meet regularly in a formal manner to discuss WHS matters and act as a channel between the business and workers to collaborate on WHS matters and gather feedback for consideration. An HSC must meet regularly (at a minimum every 3 months) and have an agenda set and minutes recorded and then distributed to all staff (or made available on a platform such as an HRIS) If 5 or more workers request an HSC to be established, or an HSR requests it, an employer is obligated to do so within 3 months. An employer can choose to establish an HSC without being requested. The establishment of an HSC generally involves a formal nomination and voting process. It would be important to enable a fair and transparent nomination and voting process to eliminate the risk of any discrimination or other complaints. SafeWork Australia and the state WHS regulators have guidelines on how to form HSCs.
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These are mechanisms that are more commonly utilised across any industry or workplace and consist of a variety of options for employers/employees to elect as their agreed method. A business may choose to have one or more of these options, for example, have monthly all-staff meetings where WHS is discussed, and a WHS noticeboard which is regularly updated. HRIS such as Employment Hero can also serve as a consultation mechanism, using the Announcement feature to reach all staff, regarding WHS information. Examples of other agreed arrangements include;
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NOTE: State legislation should be reviewed and followed in relation to all consultation requirements, especially HSRs, and HSCs.
As you can see from the options above, HSRs and HSCs are a much more formal method than Other Agreed Arrangements. Every business is different. A large employer that has an HSR and HSC in place may do great with this procedure, but that formal process may not work at all for an equivalent employer down the road. Practicality and commitment should factor into decisions.
Should we have an agreed WHS consultation procedure?
Often in a small business, there are no agreed procedures, but the nature of regular contact with workers and management often mean WHS matters can be discussed easily and at short notice (e.g. a meeting held before shifts commence, or at the end of a shift). This is fine, as long as the consultation is carried out in accordance with the requirements of the WHS Act. Consultation must always enable employees to have their say and their opinions be considered by the business.
It is always essential to document when consultation occurred with employees, even if there is no formal procedure in place. This ensures good records are kept and can be referred to if needed or produced as evidence of consultation if required.
Employers with larger workforces, or workplaces with a variety of different departments/divisions and locations may decide that formal procedures will be a more suitable mechanism, due to the complexities of the workforce or locations.
Whether a business has 3 or 3000 employees, the option is always there to establish agreed consultation procedures. Consultation is a fantastic way of forming stronger relationships and trust with employees and the reality is, when employees are able to contribute to ideas, it can produce much better safety outcomes.
As an employer, I want to establish a mechanism that I believe will best suit our business. How do I do this?
An employer may have an idea for a WHS consultation procedure that they feel would work effectively for the business and its employees. An employer may wish to have consultation formalised so managers have a clear process to follow and to guarantee consultation occurs regularly.
If an employer has a proposal for consultation methods, it is recommended they put forward that proposal to the employees and ask them to consider the idea. As with any agreement process, when the majority of employees/managers agree, the proposal can be implemented.
Implementing an agreed procedure should involve:
- A vote or feedback from every employee on the proposal
- Modifications to the mechanism if feedback is provided and it is deemed suitable
- Writing the agreed procedure into a Policy
- Distributing the Policy to employees
- Displaying/providing access to the Policy on HRIS / Noticeboards/intranet etc.
- Including the Policy in the induction and WHS training
Where employees are represented (e.g. by a union), those representatives should be consulted and included in the above process.
Summary
It can be a challenging thought to open up to a workforce and provide a voice to every employee. โWhat if they are angry? What if they insist on expensive fixes? It will take longer to talk to them about everythingโฆโ those are all common fears and often based on lived experiences.
The fact is, employee relationships, and any relationship really- can get tricky at times and they take work! The key is always โrespectful and effective communicationโ.
If there are difficult discussions about WHS, employers can reflect on the scenario and consider why there is such concern from the team, perhaps they are genuinely worried about their safety or well-being. Those heated discussions can uncover more significant problems underlying the business. It is a good thing to know about this, so employers can take action to fix issues.
Having frequent and genuine discussions with teams about their safety will eventually lead to a better culture, with more trust and honesty. It may be hard at the beginning, but it should become easier, more productive, and enjoyable.
Employees often have the best ideas for safety outcomes. WHS consultation mechanisms can provide a conduit to have those ideas and feedback channelled to management in a constructive way.
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Disclaimer
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.