Understanding Work, Health and Safety consultation requirements 

Written by Jaaden Morrall, Senior Workforce Advisor – Peak Legal & Workforce 

Workplace safety is a fundamental right for every person in the workplace, and it is the responsibility of person conducting a business or undertaking (PCBU’s) to ensure a safe working environment. In Queensland, there are stringent laws in place to safeguard the health and well-being of workers, these being primarily governed by the Work Health and Safety Act 2011 (Qld) (WHS Act) and the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation).  

A key aspect to these laws is consultation. Consultation plays a crucial role in creating a safe and healthy workplace, and when done effectively, ensures the collective knowledge and experience of a workforce is utilised to identify and eliminate; or where it is not reasonably practicable to eliminate; mitigate risks, leading to a safer working environment. 

While there are many benefits to consultation, it’s important that Councils are aware that it is also a legislative requirement. Failure to comply with consultation obligations can result in significant penalties, fines, and legal consequences.  

Section 46 of the WHS Act prescribes a duty to consult with other duty holders. It states that if more than one person has a duty in relation to the same matter under the WHS Act, each person with the duty must, so far as is reasonably practicable, consult, cooperate and coordinate activities with all other persons who have a duty in relation to the same matter. 

Further, Section 47 of the WHS Act prescribes a duty to consult with workers. The definition of a ‘worker’ under the WHS Act might be broader than you initially think, and includes employees, contractors, subcontractors, work experience students, volunteers and PCBUs who are also ‘workers’ if they perform work for the business. Section 47 asserts that the PCBU must, so far as is reasonably practicable, consult with workers who carry out work for the business or undertaking who are, or likely to be, directly affected by a matter relating to work health or safety.  

If the PCBU and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures. Therefore, its timely that you review your policies and procedures relating to work, health and safety, and more specifically, consultation. The agreed procedures may also be found in the Local Government Industry Award – State 2017, or in an applicable certified agreement for most Councils.  

Section 48 of the WHS Act covers the nature of the consultation and provides a requirement that relevant information about the matter is shared with workers and that workers are given a reasonable opportunity to: 

1. Express their views and to raise work health and safety issues in relation to the matter; and 

2. To contribute to the decision making process related to the matter; and 

3. That the views of workers are taken into account by the PCBU; and 

4. That the workers consulted are advised of the outcome of the consultation in a timely way. 

If workers are represented by a health and safety representative (WHSR), the consultation must involve that representative. Similarly, you will need to consider consulting with relevant Unions where appropriate.  

Section 49 of the WHS Act outlines when consultation is required, and states that it’s required for the following health and safety matters: 

1. 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; 

2. When making decisions about ways to eliminate or minimise those risks; 

3. When making decisions about the adequacy of facilities for the welfare of workers; 

4. When proposing changes that may affect the health or safety of workers; 

5. When making decisions about procedures for: 

1. Consulting with workers; or 

2. Resolving work health or safety issues at the workplace; or 

3. Monitoring the health of workers; or 

4. Monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or 

5. Providing information and training for workers.  

6. When carrying out any other activities prescribed under a regulation for that section.  

The Code of Practice: Work Health and Safety Consultation, Cooperation, and Coordination is an important document for you to review when considering your consultation obligations. It plays a pivotal role in fostering a safe and secure work environment, by emphasising the need for open communication and active collaboration between all parties in the workplace. It also ensures that all workers are included in the decision-making process.  

Earlier in the year, we uploaded an exclusive HR Assist webinar which covered the fundamentals of WHS legislation. We have prepared a subsequent webinar covering the new Code of Practice: Managing the risk of psychosocial hazards at work. 

We encourage you to view these webinars to gain greater understanding into your obligations regarding WHS. We’re here to review your policies and procedures, risk management processes, to ensure you meet your WHS obligations. 

If you have any questions, please don’t hesitate to contact our Peak Services Legal and Workforce team at peaklegal@wearepeak.com.au.  

You can also log into HR Assist to find out more about WHS Consultation including its key elements, how to facilitate effective consultation and its subsequent benefits.  

If you have any questions, please don’t hesitate to contact the team at Peak Legal and Workforce