Workers Representation and Consultation

Contributed by Anne Aziz-Parker, with Catherine Matthews and Richard Muir and current to August 2018.

One of the objects of the Work Health and Safety Act 2011 is the provision of fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety.

Worker representation provides a means for facilitating consultation, involving workers and giving them a voice in health and safety matters. The Work Health and Safety Act 2011 recognises that workplaces have better health and safety outcomes when workers have input before decisions are made about health and safety matters that affect them.

A person in control of a business or undertaking must consult, so far as is reasonably practicable, with workers who carry out work for the business or undertaking and who are, or are likely to be, directly affected by a work health or safety matter. A person works for a person in control of a business or undertaking if they carry out work for the business or undertaking including employees, contractors, subcontractors, labour hire workers and volunteers.

Consultation requires a person in control of a business or undertaking to share information with the workers and give them a reasonable opportunity to contribute information and express their views. The person in control of a business or undertaking must consider the views expressed by workers’ before making a decision and the person in control of a business or undertaking must also advise workers of the outcome of the consultation.

When doses a person conducting a business or undertaking have a duty to consult?

A person conducting a business or undertaking must consult with workers when:

• identifying hazards and assessing risks arising from work and 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; and,
• making decisions about the procedures, including those for:
  • 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 Work Health and Safety Regulation 2011.

How to consult?

The Work Health and Safety Act 2011 allows for workers to be consulted and represented through health and safety representatives and committees.

A worker may ask for a health and safety representative to be elected to represent them on work health and safety matters. If a worker makes this request, work groups need to be established to facilitate the election. Where health and safety representatives have been elected, the person in control of a business or undertaking must consult with them.

A health and safety committee brings together workers and management to assist in the development and review of health and safety policies and procedures for the workplace. A health and safety committee must be established when a health and safety representative or five or more workers makes a request to the person in control of a business or undertaking.

Work groups

Work groups are formed to enable workers to elect health and safety representatives to represent them on health and safety matters.

Any worker or group of workers may ask the person in control of a business or undertaking for whom they are carrying out work to facilitate the election of one or more health and safety representatives. The person in control of a business or undertaking must then facilitate the determination of one or more groups of workers. Groups should be formed in a way that most effectively and conveniently enables their health and safety interests to be represented and so that each member of the group can easily access their health and safety representative.

Work groups are formed by negotiation and agreement between the person in control of a business or undertaking and the workers. The person in control of a business or undertaking must take all reasonable steps to commence negotiations with the workers or their representatives within 14 days after a request has been made.

When forming work groups consideration must be given to the:

• number and composition of work groups to be represented by health and safety representatives;
• number of health and safety representatives (there must be at least one) and deputy health and safety representatives (if any) to be elected for each work group;
• workplace or workplaces and/or the businesses or undertakings to which the work groups will apply;
• number of workers;
• views of workers in relation to the determination and variation of work groups;
• nature of each type of work carried out by the workers;
• number and grouping of workers who carry out the same or similar types of work;
• areas or places where each type of work is carried out;
• extent to which any worker must move from place to place while at work;
• diversity of workers and their work;
• nature of any hazards at the workplace;
• nature of any risks to health and safety at the workplace;
• nature of the engagement of each worker, for example as an employee or as a contractor;
• pattern of work carried out by workers, for example whether the work is full-time, part-time, casual or short-term work;
• times at which work is carried out; and,
• arrangements at the workplace relating to overtime or shift work if applicable.

What if negotiations fail?

If there is a failure in negotiations to establish or vary an agreement, any person who is, or would be, a party to the negotiations may ask the regulator to appoint an inspector to either decide the issue in dispute or assist the negotiations.

In the case of a single business or undertaking, an inspector can decide an issue. In this role, the inspector will have regard to all the parties’ views and aim to facilitate an agreement to suit all parties. In some circumstances, an inspector may decide work groups should not be determined or that an agreement should not be varied.

Once the inspector makes a decision, it is taken to be an agreed determination. In other words, the parties are bound by the decision. However, if an affected worker, their representative, a person in control of a business or undertaking or a health and safety representative does not agree with the decision, they can request the regulator to review the inspector’s decision.

Where an agreement cannot be reached to establish or vary work groups for multiple businesses or undertakings, an inspector can be asked to assist the parties with negotiations. An inspector will facilitate reaching an agreement but cannot make a determination. If all parties still cannot agree, the persons in control of a business or undertaking involved may choose to negotiate with their own workers to determine work groups for a single business or undertaking.

Issue resolution

An ‘issue’ is any concern about health and safety that remains unresolved after the person in control of a business or undertaking has consulted with the affected workers.

The Work Health and Safety Act 2011 encourages persons in control of a business or undertaking to agree on issue resolution with their workers. If there are no agreed procedures, the default procedure for issue resolution under the Work Health and Safety Regulation 2011 must be followed. The default procedure includes the minimum requirements for any agreed procedures.

When a work health and safety issue arises, the parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue.

If reasonable efforts have been made to resolve an issue and it remains unresolved, any party to the issue can ask the regulator to appoint an inspector to assist at the workplace.