Employers' duty to consult

The Occupational Health and Safety Act (2004) provides for specific consultation on a wide range of issues with both OHS reps and workers - these provisions are in Part 4 of the Act, which came into effect on January 1, 2006.  Go to Duty to Consult for details on what the employer must do. 
The basic thing to remember is that if there are elected OHS reps 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 reps of things after they occur is not consultation, and an employer who does this is breaching Part 4 of the OHS Act.
If you believe that the required consultation has not occurred, raise this matter with your employer and your union. If you are not successful in ensuring this consultation occurs, the employer's failure to consult is a legitimate reason for issuing a Provisional Improvement Notice (PIN) - and this is what reps should do.  Sometimes just complaining about lack of consultation, or continually asking an employer to consult and not getting anywhere is not going to resolve the problem. 

OHS Reps' duty to consult

The Act requires that OHS reps and the employer representative attempt to resolve any OHS issues 'in accordance with the relevant agreed procedure or, if there is not such procedure, the relevant prescribed procedure' being the Issue Resolution Regulations. Resolution of issues is covered under Part 7, Division 8 of the OHS Act (more detail). 
Basically, reps and employer reps should negotiate and consult with a view to resolving issues. Where this process does not lead to resolution, the OHS Rep has the right to issue a PIN.  Sections 60 - 66 of the Act deal with PINs. For more information and advice on PINs see PINs - How to use them.

The only exception to the requirement of following procedures to resolve issue, is where there is an "immediate threat" to the health and safety of any person. In these cases, either the OHS rep or the employer rep can "direct that the work shall cease". If possible, there should be consultation prior to this - but the Act acknowledges that this is not always possible.

Consultation Email Template

If your employer is not following their duty to consult under s35 of the OHS Act, one step HSRs can take is to send them an email requesting proper consultation. We've created this consultation email template to make your job easier. Click here to access the Consultation Email Template.

Consultation Email Template


Last amended April 2015

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