Consultation obligations

The new Work, Health and Safety Act 2020 (WHS Act) expands these responsibilities and places obligations on:

• all duty holders who have a duty in respect of the same matter to consult, cooperate and coordinate with each other so far as is reasonably practicable, and
• a person conducting a business or undertaking (PCBU) to consult with workers so far as is reasonably practicable.

What are my duties to other duty holders?

Due to the expanded definition of a PCBU there may be more than one PCBU with the same duty creating overlapping duties.

To manage this, a PCBU is required to consult, co-operate and co-ordinate with other duty holders who have a duty in relation to the same WHS matter as far as reasonably practicable. Please note that you must address each of these duties separately.

In the residential building industry, the principal contractor and other contractors will need to discuss with each other the hazards and risks to health or safety that they each need to control. They will also need to coordinate their activities and cooperate with each other to ensure that each person knows how the risks will be controlled and by whom, to ensure the work can be carried out safely.

You should commence consultation, co-operation and co-ordination of activities with other duty holders when you become aware they are or will be involved in the work.

Consultation should commence during the planning of the work, to ensure that health and safety measures are identified and implemented from the start.

A need for further consultation may arise when circumstances change over the period of the work, including the work environment and the people involved in the work. This is particularly so in construction and other long term projects.

Co-operation and co-ordination with other duty holders should be an ongoing process throughout the time in which you are involved in the same work and share the same duty.

What are my duties to consult with workers?

A PCBU must, so far as is reasonably practicable, consult with workers who carry out work for their business or undertaking who are, or are likely to be, directly affected by a work health and safety matter.

This means that the duty is not limited to consulting with employees but includes contractors, subcontractors, labour hire workers, volunteers and any other people working in the business or undertaking who are, or could be, affected by the matter.

The duty is qualified by ‘so far as is reasonably practicable’ which means that the circumstances in each case, including the urgency of the health and safety issue and the seriousness of the risk, will be relevant when determining the level of consultation that is required.

The PCBU and their workers can agree to procedures for consultation that best suit their circumstances. This agreement can be verbal or written (i.e. in your Safety Plan or Safe Work Method Statement). If there are agreed procedures for consultation, the consultation must be in accordance with those procedures

When does a PCBU have to consult with workers?

Under the old Occupational, Safety and Health Act an employer was required to consult with safety and health representatives, if any, and other employees at the workplace, regarding occupational safety and health at the workplace.

Under the WHS Act the consultation obligations have been expanded and a PCBU will need to consult when:

• Identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking.
• making decisions about ways to eliminate or minimise those risks
• making decisions about the adequacy of facilities for the welfare of workers
• Proposing changes that may affect the health or safety of workers.
• Making decisions about the procedures for:
  • consulting with workers
  • resolving work health or safety issues at the workplace, or
  • monitoring the health of workers, or
  • monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or
  • providing information and training for workers.

What should the consultation process involve?

Under the WHS Act a PCBU is required to:

• share relevant information about the work, health, safety matter that may affect the workers,
• give workers a reasonable opportunity to express their views and to raise health and safety issues in relation to the matter
• take the views of workers into account
• ensure that workers are given a reasonable opportunity to contribute to the decision making process,
• advise workers of the outcome of the consultation in a timely manner, and
• involve a Health and Safety Representative if one has been elected. 

Learn more about consultation under WHS.