One of the seemingly hardest duties for many employers to comply with is the duty to consult with elected health and safety representatives (HSRs). This is a legal duty under the Victorian Occupational Health and Safety Act 2004 – and has been a legal duty since 1985 when workers were given the right to elect representatives, and these representatives were given rights and powers.
The Act states that the employer must consult with HSRs, so far as is reasonably practicable’ on a wide range of ohs-related matters when:
• Identifying or assessing hazards or risks
• Making decisions about what measures to take to control risks
• Making decisions about the adequacy of facilities for the welfare of employees (includes toilets, changerooms, dining facilities, first aid, and more)
• Making decisions on procedures for: resolving ohs issues; consulting with employees; monitoring the health of employees; monitoring the conditions at the workplace; the provision of information and training
• Determining the membership of the OHS Committee
• Proposing changes that may affect workers’ health or safety to: a workplace; the plant, substances or other things; the conduct of the work performed
But any HSR will tell you that real consultation – which means an exchange of information and ideas which can genuinely lead to an outcome different to the one originally proposed by the employer - rarely happens. Too often changes happen around HSRs and workers, and if they’re lucky, they might have been told about them before they actually happen. This is not consultation.
This is despite the fact that workers’ input will almost invariably lead to better outcomes and that it would be very rare that it would not be practicable for consultation to take place. It is despite the fact that the law says the employer has a legal duty to consult. It is despite HSRs continually raising and complaining about their employers’ failure to consult. It is despite advice from the regulators that consultation must happen.
But why is it so hard? Is it that employers have always felt affronted by government telling them they have to consult with mere workers when it comes to making decisions about their own businesses? Is it because they don’t think workers have anything valuable to offer? For whatever reason, there are few employers who ‘do’ consultation well – even after 35 years of laws telling them they must.
HSRs have the right to issue Provisional Improvement Notices (PINs) to their employer in cases where they believe their employer is breaching the Act or the Regulations. Although a PIN merely formalises that belief, and sets out what the HSR believes should happen. Many HSRs hesitate issuing PINs. Taking any action – even legally sanctioned action – can put a target on an HSR’s back.
And WorkSafe Victoria, the government regulator, does almost no compliance activity to ensure employers comply with their legal duty to consult. It has recently come to light that inspectors either cancel or deem not valid the vast majority of PINs issued by HSRs. Only a tiny percentage were ‘affirmed without modification’. It also appears, unsurprisingly, that HSRs are issuing fewer PINs than they did a few years ago.
Consultation is more important now – ‘in the time of COVID’ - than ever. The Victorian government has made it a requirement for all workplaces which are operating under the lockdown – and for all workplaces as we come out of lockdown – to develop and implement a COVIDSafe plan.
The plan must set out the business owner/employer’s:
• Actions to help prevent the introduction of coronavirus (COVID-19) in the workplace
• The level of face-covering or personal protective equipment (PPE) required for the workforce
• How the employer will prepare for, and respond to, a suspected or confirmed case of coronavirus (COVID-19) in the workplace
• The plan must demonstrate how the employer will meet all the requirements set out by the Victorian Government. Some higher-risk industries or workplaces have additional requirements of employers and employees.
All the requirements have implications for the health and welfare of the workers. Consequently, under OHS legislation they have a right to be consulted, through their elected HSRs if they have them, when the plan is developed, implemented and revised. This is not happening in many workplaces, with workers and their reps being kept in the dark. This can have serious, if not fatal, consequences.
A new WHS model Code of Practice which was released last week provides employers and PCBUs with clear guidance on their duties to consult with workers, health and safety representatives and other businesses in a COVID-19 context.
Unions need to ensure their HSRs know what to ask for and that they ask for it. We need to get on to WorkSafe and make sure that it does what it is supposed to do: enforce the law.
Consultation: a right workers have; a duty employers must comply with.