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Consultation and Communication
Consultation and Communication

Precis

(Last revised 14 November 2017)

Consultation with workers and other stakeholders is one of the core elements of the Model WHS Legislation. It is a crucial element in a Safety Management Plan for a PCBU but even more important in creating and maintaining a safe place of work when several PCBU share the same space. For a safe place of work it is imperative that all stakeholders understand not only their own duties but have an equal understanding for the duties of other PCBU’s and workers in the workplace.

There is a generally accepted Code of Practice for the consultation process although it primarily focusses on consultation within the PCBU organisation.

NOTE: The general duty to consult with employees is set out in sections 35 and 36 of the Occupational Health and Safety Act 2004 (Victoria) and Section 5(e) and 19(c) of the Occupational Safety and Health Act 1984 (WA).

3.1 Code of Practice

The Code of Practice provides practical guidance to persons conducting a business or undertaking on how to effectively consult with workers who carry out work for the business or undertaking and who are (or are likely to be) directly affected by a health and safety matter. It includes information on mechanisms to facilitate worker participation and representation.

This Code also provides guidance to duty holders who share responsibility for the same work health and safety matter on how to consult, co-operate and co-ordinate activities with each other.

This Code applies to all types of work and all workplaces covered by the WHS Act and may be applied to other jurisdictions.

3.1.1 Consulting with workers

Section 47: A person conducting 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 health and safety matter

This duty to consult is based on the recognition that worker input and participation improves decision-making about health and safety matters and assists in reducing work-related injuries and disease.

The broad definition of a ‘worker’ under the WHS Act means that you must consult with your employees plus anyone else who carries out work for your business or undertaking. You must consult, so far as is reasonably practicable, with your contractors and sub-contractors and their employees, on-hire workers, volunteers and any other people who are working for you and who are directly affected by a health and safety matter.

Workers are entitled to take part in consultation arrangements and to be represented in relation to work health and safety by a health and safety representative who has been elected to represent their work group. If workers are represented by a health and safety representative, consultation must involve that representative.

3.1.2 Consulting, co-operating and co-ordinating activities with other duty holders

Section 46: If more than one person has a duty in relation to the same matter, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter

Section 46: If more than one person has a duty in relation to the same matter, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter

Persons conducting a business or undertaking will have health and safety duties if they:

· engage workers to undertake work for them, or if they direct or influence work carried out by workers

· may put other people at risk from the conduct of their business or undertaking

· manage or control the workplace or fixtures, fittings or plant at the workplace

· design, manufacture, import or supply plant, substances or structures for use at a workplace

· install, construct or commission plant or structures at a workplace.

These duty holders’ work activities may overlap and interact at particular times. When they share a duty, for example, a duty to protect the health and safety of a worker, or are involved in the same work, they will be required to consult, co-operate and co-ordinate activities with each other so far as is reasonably practicable.

Persons who manage or control a workplace have specific duties under the WHS Regulations to have arrangements in place for consultation, co-operation and the co-ordination of activities between any persons conducting a business or undertaking at the site.

3.2 How to consult with workers?

Consultation with workers can be undertaken in various ways. It does not need to be a formal process and can be as simple as talking to them regularly and considering their views when making health and safety decisions.

It is recommended to take notes and keep written records of all consultation. It will help tremendously if you are ever investigated. [i]

Consultation arrangements should take into account the size of the business, the way work is arranged and what suits your workers.

To determine how best to consult, you should first discuss with your workers issues such as:

· the duty to consult and the purpose of consultation

· the range of work and associated health and safety issues at the workplace

· your workers’ ideas about the most effective way to consult.

· the various ways for consultation to occur, including your workers’ right to elect health and safety representatives

You should work out methods that:

· meet your duty to consult

· ensure all workers can participate in consultation including any casual workers where practical

· will best integrate with the way your business manages health and safety.

A practical solution for many suppliers can be to have regular meetings with all permanent workers and an on-site Health and Safety Representative (HSR) to consult with casual workers and other PCBU’s on-site.

Note that a HSR does not need to be an exclusive position but could be the crew-chief, site manager or similar.[ii]

Arrangements such as ‘toolbox talks’ (short discussions on specific health and safety topics relevant to the task) may be the most practical way to consult with them.

When unexpected matters arise, there may not be time to plan consultation, so consideration should be given to whether the issue can be addressed through one of the regular communication channels, or if there is a need to do something different like hold a one-off meeting.

3.3 Agree on consultation procedures
Agreeing on procedures for consultation with workers can save time and confusion about how and when consultation must occur. The agreed consultation procedures should clarify key responsibilities of people in the workplace and clearly state when consultation is necessary.

Agreed consultation procedures are likely to be most effective if they include:

· the matters that require consultation

· who will be consulted

· the ways consultation will occur, for example, through regular meetings, tool-box talks or health and safety representatives

· how information will be shared with workers and health and safety representatives

· what opportunities will be provided for workers and health and safety representatives to give their views on proposed matters

· how feedback will be given to workers and health and safety representatives

· how consultation will occur with any workers who have special language and literacy needs

· timeframes for reviewing the procedures.

It is really important to make sure that all workers understand these arrangements and stick with them. It is the only way to prevents confusion and provide a workable safety system.

If the system is too complicated then essential information may not be shared or issues may not be reported. If the system is too loose it will not gain the respect it requires and soon be obsolete.

Consultation procedures should be monitored and reviewed to ensure they continue to be effective.

3.4 Sharing consultation arrangements with other duty holders
This is one of the most difficult areas in the entertainment industry and a situation that will occur almost every day. On one hand, the legislation is very clear:

Section 16: The WHS Act requires that where more than one person has a duty for the same matter, each person retains responsibility for their duty in relation to the matter and must discharge the duty to the extent to which the person can influence and control the matter.
Section 46: In these situations, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a work health or safety duty in relation to the same matter.

What is less clear is how this can be achieved within the confines of the entertainment industry, certainly for the smaller ‘one day’ events.

People often assume that someone else is going to take action for health and safety, perhaps because that other person is more directly involved in the activity. This can mean that nobody takes the necessary action.

Each person conducting a business or undertaking must ensure, so far as is reasonably practicable, the elimination or minimisation of risks to health and safety. This includes ensuring, for example, that safe plant is used, that there are adequate welfare facilities for workers and that training is provided to workers.

You must ensure these requirements are met even if others may also have the duty to do so.

You may ensure the outcomes by not necessarily taking the required action yourself, but making sure that another person is doing so. For example, you may not need to provide toilet facilities for your workers if they are already available, but you need to check that those facilities are in good working order, clean and accessible for your workers.

Consultation, co-operation and co-ordination between you and the person providing those facilities will help you ensure that the necessary steps are being taken so that you can meet your duty.

What is reasonably practicable in relation to consulting, co-operating and co-ordinating activities with other duty holders will depend on the circumstances, including the nature of the work and the extent of interaction.

Talking to, and co-operating and co-ordinating activities with others who are involved in the work or things associated with the work will make the control of risks more likely and assist each duty holder comply with their duty. It can also mean that health and safety measures are more efficiently undertaken.

3.4.1 Who must consult, co-operate and co-ordinate and with whom

From a practical perspective is should be the event producer, the promoter or the production company who starts the process. They are ultimately in charge of the workplace and have access to all the information required to commence a sensible consultation. All other stakeholders have a duty to participate in the process.

The first step is to identify who the other duty holders are that you need to consult, co-operate and co-ordinate activities with. The duty requires each person with a health and safety duty to consult, co-operate and co-ordinate activities with each other person who has a duty over the same matter.

Examples of who may need to be involved in consultation, co-operation and co-ordination of activities are as follows:

· Various contractors who are involved in the same work at the same time at a workplace will need to consult, co-operate and co-ordinate activities with each other as they may each affect the health or safety of their own workers or the workers of other business operators or other people at or near the workplace.

· An installer of plant or equipment at a workplace and the person with management or control of the workplace should consult, co-operate and co-ordinate activities with each other in relation to when, where and how the plant or equipment is to be installed to control any health and safety risks.

· Each of the business operators involved in the supply and logistics chain (the consignor and consignee, the operator of a warehouse, the trucking company and any sub-contracted drivers) should consult, co-operate and co-ordinate activities with each other on the timing and process for the collection and delivery of the goods.

3.4.2 When should consultation start?

Consultation should commence during the planning of the work, to ensure that health and safety measures are identified and implemented from the start. A need for further consultation may arise when circumstances change over the period of the work, including the work environment and the people involved in the work. This is particularly so in festivals and other long term projects.

Co-operation and co-ordination with other duty holders should be an ongoing process throughout the time in which you are involved in the same work and share the same duty.

3.4.3 What is meant by consultation with other duty holders?

The objective of consultation is to make sure everyone associated with the work has a shared understanding of what the risks are, which workers are affected and how the risks will be controlled. The exchange of information will allow the duty holders to work together to plan and manage health and safety.

The consultation should include:

· what each will be doing, how, when and where and what plant or substances may be used

· who has control or influence over aspects of the work or the environment in which the work is being undertaken

· ways in which the activities of each duty holder may affect the work environment

· ways in which the activities of each duty holder may affect what others do

· identifying the workers that are or will be involved in the activity and who else may be affected by the activity

· what information may be needed by another duty holder for health and safety purposes

· what each knows about the hazards and risks associated with their activity

· whether the activities of others may introduce or increase hazards or risks

· what each will be providing for health and safety, particularly for controlling risks

· what further consultation or communication may be required to monitor health and safety
or to identify any changes in the work or environment.

This consultation will determine which health and safety duties are shared and what each person needs to do to co-operate and co-ordinate activities with each other to comply with their health and safety duty.

An example here may be an audio company carrying out a system check whilst the catering company is setting tables for a corporate dinner. The audio company will have controls in place to minimise the risk of hearing damage, the catering company is unlikely to be aware at the same level as it is outside their normal work hazards. When both PCBU’s are working in the same room, the noise hazards impact on the health and safety of the catering staff and need to be addressed.

3.4.4 What is meant by co-operation?

What is required for co-operation should have been identified in the consultation process.

Co-operation may involve implementing arrangements in accordance with any agreements reached during consultation with the other duty holder and involve not acting in a way that may compromise what they are doing for health and safety.

3.4.5 What is meant by co-ordination?

The co-ordination of activities requires duty holders to work together so that each person can meet their duty of care effectively without leaving any gaps in health and safety protection. You should plan and organise activities together with the other duty holders.

This will include making sure that the measures you each put in place work effectively together to control the risks.

3.5 What if another duty holder refuses to consult or co-operate or co-ordinate?

What is reasonably practicable for you may depend on the level of participation of other duty holders.

This does not mean that you should simply accept what you consider to be inadequate action by another duty holder. You should check that they are aware of this duty and what you consider is needed to comply with it, and with the health and safety duties that you each have.

Written arrangements are not essential, but they may help to clarify everyone’s expectations. You should consider including in your contracts a requirement for other parties to consult, co-operate and co-ordinate on safety matters, as that can be very useful. This will make the other party clearly aware of the obligation and give you a contractual right to enforce it.

For further details or information:

http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/consultation-cooperation-coordination-cop

For Victoria: http://www.worksafe.vic.gov.au/safety-and-prevention/health-and-safety-topics/consultation

[1] Consultation can also be undertaken through health and safety representatives and health and safety committees. However, the WHS Act does not require the establishment of these consultation mechanisms, unless:
· in relation to a health and safety representative – a request is made by a worker
· in relation to a health and safety committee – a request is made by 5 or more workers or
a health and safety representative.
You may establish any arrangements for consultation to suit your workers and workplace situations, including agreed consultation procedures, as long as those arrangements are consistent with the requirements of the WHS Act.

[2] HSR: It is not compulsory for Health and Safety Representative to be trained however they should be encouraged to take up their training entitlement to provide them with the skills and knowledge to perform their role effectively. HSRs can issue Provisional Improvement Notices (PINs) and direct work to cease only if they have been trained. Untrained HSRs can perform all other functions.
http://www.safeworkaustralia.gov.au/sites/SWA/model-whs-laws/FAQs/Documents/Training%20of%20Health%20and%20Safety%20Representatives.pdf