From 1 January 2012 the Work Health and Safety Act 2011 operates to protect the health, safety and wellbeing of residents at work in the Territory. The Act reflects contemporary best practice in work safety and addresses emerging safety issues and contemporary work arrangements. It sets out a general framework for the health, safety and wellbeing of people at work and is supported by detailed Regulations, Codes of Practice and other guidance material on particular subjects for employers and their workers.
This guide explains the duties that employers have to consult their workers on work safety under the new Act. It also outlines new, flexible consultation options for employers and workers in a range of businesses and provides practical guidance for achieving compliance.
Why is consultation needed?
The Work Health and Safety Act requires employers, workers and other people at workplaces to ensure work safety by managing risk. Work safety includes health, safety and wellbeing. Workers often have highly valuable knowledge and experience about these issues and can contribute to improved safety outcomes. Consultation usually results in higher worker morale and job satisfaction, increased productivity and an overall cost saving to employers.
What is consultation?
To consult their workers an employer must share information with the workers, give them a reasonable opportunity to contribute information and express their views and must also consider the workers’ views before they make a decision that affects work safety. The workers must also be advised of the outcome of the consultation in a timely manner.
When does an employer have a duty to consult?
All employers in the Territory have to consult their workers. This consultation should allow each worker to contribute to matters which directly affect their health, safety and wellbeing in relation to work at the workplace.
A person conducting a business or undertaking must consult with workers when:
- consultation with workers
- resolving work health or safety issues
- monitoring the health of workers
- monitoring workplace conditions
- providing information and training to workers, and
- when carrying out any other activity prescribed by the Regulations.
A person conducting a business or undertaking may choose to consult with workers about health and safety matters in other instances, for example when conducting investigations into incidents or ‘near misses’.
There is no longer an exception for employers that have less than 10 workers – all workers deserve to be consulted about their health, safety and wellbeing at work.
Failing to consult with workers is an offence (with a maximum penalty of $20,000 for an individual or $100,000 for a corporation).
Who are my workers? Who is an employer for consultation?
You are someone's employer for consultation if the person carries out work for your business or undertaking and are, or are likely to be, directly affected by a work health and safety matter. 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. A worker must be consulted by more than one employer if they work for more than one business.
What should employers do?
The following four, simple steps will help employers establish these new arrangements:
Step 1: Create at least one worker consultation unit for your workers
A work group is simply a group made up of workers. An employer with few workers can form a single work group made up of all of their workers. As the purpose of dividing workers into units is to allow for practical consultation by each employer, a work group can be made up of workers across multiple workplaces and/or that have multiple employers. This will allow employers greater flexibility and will allow consultation arrangements to change over time in line with the needs of each business.
If it is not reasonably practicable to consult directly with all workers, or if a worker asks them, an employer must set up one or more than one work group. Failing to do so is an offence with a maximum penalty of $10,000 for an individual or $50,000 for a corporation.
To make a decision about how many worker consultation units to create employers must consult their workers and establish the unit/s in a way that best and most conveniently allows the interests of their workers to be represented and safeguarded. This should take account of:
The purpose of multiple work groups in practice is to allow separate units of workers to have different methods of consultation that suit them (see Step 2 below). As such, it may be helpful to think about possible consultation methods before making a final decision.
If the workers or employer would like help in doing this, they can ask for outside assistance.
Step 2: Decide with the workers in each work group HOW you will consult them
There are many acceptable ways to consult workers. The most popular methods in the past have been the election of a Health and Safety Representative (‘Representative’) or of a Health and Safety Committee (‘Committee’). However, there are now other options and it is possible to use more than one. The decision is up to each employer and their workers.
If the workers or employer would like help they can ask for assistance. A case study at the conclusion of this guide sets out one way that a small business could comply.
An employer must arrange for the election of a Representative or Committee if a worker who carries out work for a business or undertaking asks to facilitate an election for 1 or more health and safety representatives.
Health and Safety Representatives
Representatives are there to talk for, and to, workers on work safety issues and tell employer/s about potential risks, dangerous occurrences and work safety issues that affect the workers. They will have a range of functions, powers and duties under the Work Health and Safety Act to help them do this.
Health and Safety Committees
The functions of a Committee are:
A health and safety committee must meet—
(a) at least once every 3 months; and
(b) at any reasonable time at the request of at least half of the members of the committee.
An employer and their workers can now choose alternative methods of consultation. This will allow everyone to benefit from consultation without complex arrangements. These options are flexible – if workers agree, employers can come up with innovative new ways to consult their workers that are effective for their particular needs at the time, such as:
Step 3: Consult workers on an on-going basis by the agreed method
Once an employer has created one or more work groups, and has agreed with the workers in each group on a method of consultation they must then consult using the agreed method when a work health and safety issue arises that might directly affect their workers. For example:
Step 4: Keep records about each unit and undertake reviews
Employers should keep records about the creation of work groups, their activities, any changes and any review that is undertaken so that they can prove they have been consulting their workers.
To ensure consultation remains effective, employers should conduct a review of its consultation arrangements at least once every two years. They must hold the review earlier if it is reasonably necessary due to workplace changes or if a worker, representative or committee asks for one. If a review shows that a change to the existing consultation arrangements is necessary in the interests of work safety that change must occur.
What if an employer or a worker wants a change later on?
If an employer, or any worker who has given the employer notice, wants a change to the existing consultation arrangements in the interests of work safety the employer must consult their workers about the proposed change. The employer and/or workers can ask someone to assist with this. If a change is necessary in the interests of work safety, the employer must make the change.
What if an employer and their workers cannot agree?
If an employer and their workers cannot agree on their consultation arrangements they can ask the Director General via the Office of Regulatory Services to arbitrate the dispute.
Alex and Beth must consult all three of their workers – Mark, Meg and Steve – about matters which directly affect their health, safety and wellbeing at work. After getting advice from WorkSafe ACT, Alex and Beth sat down with their workers one day, explained the new consultation duty and gave their workers a copy of this guide to read.
Step One: Create at least one work group for your workers
Together, they decided that it would be most convenient and effective to have one work group for the business to begin with. In making this decision, they took into account the small number of people involved, the risks to safety which might arise in their work, the fact that two workers were casuals and that they all worked on multiple sites and in vehicles. They also talked about the fact that Meg and Steve had family responsibilities and this might restrict their ability to attend any meetings that could be held.
Step 2: Decide with the workers in each work group how you will consult them
Alex and Beth asked their workers what they thought was the best way to consult them. Mark and Steve said that a Committee was not needed as there were only three workers. Meg thought a Representative would not be useful as they worked apart. Alex and Beth said they had checked and did not have to have a Committee or Representative unless they wanted one. Meg suggested that they talk about work health and safety at staff meetings and that they have a conference call on their mobiles each week to discuss work safety. Everyone agreed.
Step 3: Consult workers on an on-going basis by the agreed method
Alex and Beth kept their word and set up a routine call each week with their workers. They talked about on-going issues like equipment safety but also any planned work changes.
Step 4: Keep records about each work group and undertake reviews
Alex and Beth made a record of each meeting, including staff meetings and kept a diary with brief notes about each week’s phone conference. In two years time they will review the arrangements they have set up, if they have not already been reviewed.