Module 4 Consultation Requirements Under the WHS Act

1. Module 4 Consultation Requirements Under the WHS Act

2. Consultation, Representation and Participation Module 4 covers the requirements for consultation, representation and participation under the WHS Act and includes: • Key changes in consultation requirements • Arrangements for consultation with workers • Consultation between duty holders • Determination of workgroups • Consultation between multiple business workgroups WHS Act Part 5

3. Consultation, Representation and Participation Consultation • How do you currently participate in consultation? • Are you represented by another person in the consultation process? • What is the role of the OHS Representative and OHS Committee in your workplace? • How is your union involved in consultation in your workplace?

4. Key changes from current NSW OHS legislation Wider duties for consultation and greater powers are given under consultation arrangements in the WHS Act. Key changes include: • Health and Safety Representatives (HSRs) and deputy HSRs with their role focused on resolving specific work health and safety issues for their workgroup; • Health and Safety Committees – a change in their current role to one as the forum for consultation on the management of health and safety across the whole workforce; • Consultation, co-operation and co-ordination between duty holders; WHS Act Part 5, 7

5. Key changes from current NSW OHS legislation • Consultation involving multiple-business work groups; • The role of WHS entry permit holders (union representatives); • Resolution process requirements; • Issuing of Provisional Improvement Notices (PINs) and directingunsafe work tocease by trained HSRs; • Ceasing unsafe work by workers; and • Terms of office and training for HSRs, HSC members and WHS entry permit holders. WHS Act Part 5

6. Duty to consult workers- Scenario - A labour hire firm has its workers placed at a host PCBU. What consultation arrangements can be utilised under current OHS legislation?

7. Duty to consult workers The PCBU is required, so far as is reasonably practicable, to consult with workers: • who work for the business or undertaking or • are likely to be directly affected by a work health and safety matter. Workers include contractors, subcontractors, labour hire and volunteers. When may it be considered not ‘reasonably practicable’ to consult? WHS Act s47 (1)

8. Duty to consult workers The WHS Act requires that the views of workers and Health and Safety Representatives mustbe taken into account before making a decision on a health and safety issue. The nature of consultation and when consultation is to occur remain the same as current requirements. Consultation procedures are to be used: • where they have been agreed to by a PCBU and the workers; and • they are consistent with the required ‘nature’ of consultation. WHS Act s48 and s49

9. Arrangements for consultation Options available for consultation as agreed to between PCBUs and workers include: • Health and Safety Representatives (HSRs) and Deputy HSRs to represent various workgroups; • Health and Safety Committee (HSC) – HSR and deputies must be members (unless they choose not to be on the Committee); and • Other arrangements e.g. direct consultation through regular team meetings. WHS entry permit holders can assist in establishing consultation arrangements and consult with members/eligible members on health and safety issues. WHS Act Parts 5 and 7

10. Duty to consult with other duty holders Each person who has a duty to ensure the health and safety of persons at a place of work must , so far as is reasonably practicable, • consult • co-operate and • co-ordinate activities with other duty holders to do so. This will help remove any gaps in work health and safety. How might duty holders meet this requirement to consult, co-operate and co-ordinate activities? WHS Act s46

11. Consultation between duty holders Co-operation e.g. management of interactions between workers Co-ordination e.g. planning and organising work activities Duty holder e.g. Business owner Duty holder e.g. Site controller Consultation e.g. sharing of information on potential hazards Consultation procedures and arrangements e.g. Emergency procedures, work arrangements Duty holder e.g. Labour hire company WHS Act s46

12. Duty to consult workers- Scenario - A labour hire firm has its workers placed at a host PCBU. Under the WHS Act, are labour hire workers considered ‘workers’ of the labour hire firm or the host PCBU or both? Who has a duty to consult with the workers on work health and safety issues? What consultation arrangements can be implemented under the WHS Act?

13. Determination of workgroups of a PCBU A worker requests a PCBU to facilitate the election of HSR/s and deputy HSR.  Negotiations are to commence within 14 days of request.  Unions can assist in the determination of workgroups and in the election process. The PCBU or PCBUs and workers negotiate the determination of one or more workgroups. Negotiations are to be conducted to determine: • the number and composition of workgroups • the number of HSRs and deputy HSRs to be elected • the workplace/s to which the workgroups apply • the businesses or undertakings to which the workgroups will apply  A workgroup may be determined for workers at one or more workplaces. The PCBU must notify workers of any variations.  If negotiations fail any involved party may request an inspector to assist. The PCBUs involved in negotiations must notify workers of the outcome and any workgroups determined. WHS Act s50-54

14. Multiple-business workgroups Workgroups may be determined for workers who carry out work • for two or more PCBUs; or • at one or more workplaces. • The determination of work groups is to be negotiated between each of the PCBUs and the workers. • These arrangements don’t affect any work groups already determined by the PCBU for their workers. WHS Act s55-59

15. Multiple-business arrangements for consultation Consultation Co-operation Co-ordination Consultation Co-operation Co-ordination PCBU duty holder e.g. Host company PCBU duty holder e.g. Site controller PCBU duty holder e.g. Labour hire company Consultation arrangements - policy and procedures - Shared workgroup (workers of the labour hire company are also workers of the host company)  A worker may represent a workgroup where the workers are engaged by different PCBUs.  Workers are to be informed of the outcomes of negotiations and of any workgroups. WHS Act s55-59

16. How to consult on work health and safety: Code of Practice The supporting Code of Practice provides practical guidance on the requirements for consultation, representation and participation under the WHS legislation. A variety of scenarios are also included and reviewed. Areas covered include: • duties for consultation • effective consultation • how to consult with your workers • when to consult with your workers • consultation, co-operation and co-ordination with other duty holders www.safeworkaustralia.gov.au

17. Additional resources Additional resources referenced in the WHS legislation are available through Safe Work Australia and include: • Worker Representation Handbook (under development) • How to manage Work Health and Safety Risks: Code of Practice (not yet endorsed) • Work Environment and Facilities: Code of Practice (not yet endorsed) See also WorkCover NSW and your union’s resources via their websites. www.safeworkaustralia.gov.au

18. Module 4-Activity - • The facilitator will divide the group into small groups to review the scenarios provided and determine the most effective consultation arrangements for each situation. • The group will come back together to discuss the answers.