We often get questions and comments from HSRs about consultation and what it should look like in the workplace - “Does my employer have to include HSRs in consultation?”, “Can my employer consult directly with employees and bypass the HSR?” and “What can we do when our employer has a different definition of consultation?”
When it comes to working out whether consultation obligations have been met the OHS Act is always a good place to start. However, there is more to consider before determining that consultation complies with OHS laws….
Section 35 of the Occupational Health and Safety Act (2004) (“the Act”) provides for specific consultation on a wide range of issues with both HSRs and workers.
The basic thing to remember is that if there are elected HSRs in the workplace, the employer MUST consult with them, and the consultation MUST occur before changes are implemented, or before policies and procedures are introduced. Just informing HSRs of things after they occur is not consultation, and an employer who does this is breaching Part 4 of the OHS Act.
Section 35 of the Act spells out that the employer must consult with employees about:
- how consultation is going to happen
- identifying and assessing hazards or risks to health or safety at a workplace
- the measures to be taken to control risks
- the adequacy of facilities for the welfare of workers
- how to resolve health and safety issues
- how to monitor the health of workers
- information and training in safe working practices for workers
- the membership of any health and safety committee
- proposed changes that may affect the health and safety of employees including changes to the workplace, the plant, substances or other things used at the workplace, or the way work is performed. This means, the consultation must take place well before any changes are made.
Further, the Act makes it clear that consultation must involve:
- sharing information;
- giving workers the opportunity to express their views; and
- taking those views into account.
The Act was amended in 2018 to make it clear an employer who does not involve HSRs in consultation is contravening this section and is guilty of an offence. What this should mean in effect is that WorkSafe inspectors should find it easier to uphold PINs issued by HSRs if the employer fails to consult with them.
The 2017 Regulations at r.21 also specify HOW the employer is to consult with elected OHS reps.
This regulation states that if an employer is required under the Act to consult with workers who are represented by a health and safety representative the employer must involve the HSR by:
- providing the rep with ALL the information the employer provides or is intending to provide to the workers' and
- providing that information to the rep BEFORE providing it to the workers - 'unless it is not reasonably practicable to do so' and
- inviting the rep to meet with the employer to CONSULT about the matter; and
- meeting with the rep (if the invitation is accepted); and
- giving the rep 'a reasonable opportunity' to express his/her views; and
- taking those views into account.
The regulations are law and your employer must comply. Note though that the regulations don’t specifically spell out that the employer must consult with HSRs before anyone else, but it does point to ensuring that HSRs are not simply ‘involved’, but rather are there at the beginning of the process.
OHSReps has information and HSR tools that you may find useful in understanding your rights to consultation and to help you record your workplace consultation –