GUIDELINE. Complying With Work Health and Safety Consultation Requirements

Transcription

1 GUIDELINE Complying With Work Health and Safety Consultation Requirements Guideline Owner: Director Human Resources Services Centre Keywords: 1) Consultation 2) Work Health 3) Safety Intent Organisational Scope Definitions Guideline Content Related Documents Contact Information Approval History 1. INTENT This guideline is provided to assist managers and supervisors in interpreting the Work Health and Safety consultation requirements as prescribed in the Work Health and Safety Act. It is not a prescriptive guide, nor is it an exhaustive statement of the extent of Edith Cowan University s obligations regarding consultation. It is not to be used as an alternative to adopting a proactive and engaged approach to health and safety. 2. ORGANISATIONAL SCOPE All Edith Cowan University (ECU) Workers. Guideline Complying with Work Health and Safety Consultation Requirements Page 1 of 8

2 3. DEFINITIONS TERM ECU Person Conducting a Business or Undertaking (PCBU) Reasonably Practicable Supervisors Worker DEFINITION Edith Cowan University As prescribed by the Work Health and Safety Act, a PCBU conducts a business or undertaking alone or with others. The business or undertaking can operate for profit or not-for-profit. The definition of a PCBU focuses on the work arrangements and the relationships to carry out the work. In addition to employers, a PCBU can be a corporation, an association, a partnership or sole trader. A volunteer organisation which employs any person to carry out work is considered a PCBU. Householders where there is an employment relationship between the householder and the worker are also considered a PCBU. That which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: a) the likelihood of the hazard or the risk concerned occurring; and b) the degree of harm that might result from the hazard or the risk; c) what the person concerned knows, or ought reasonably to know, about: i. the hazard or the risk; and ii. ways of eliminating or minimising the risk; d) the availability and suitability of ways to eliminate or minimise the risk; and e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Supervisors are those who have responsibility for the direct control of other persons within an organisational unit. The person who carries out work in any capacity for ECU, including work as: a. an employee; or b. a contractor or subcontractor; or c. an employee of a contractor or subcontractor; or d. an employee of a labour hire company who has been assigned to work in the persons business or undertaking; or e. an apprentice or trainee; or f. a student gaining work experience; or g. a volunteer. Guideline Complying with Work Health and Safety Consultation Requirements Page 2 of 8

3 4. GUIDELINE CONTENT 4.1 Consultation Requirement The Work Health and Safety Act (WHS Act) prescribes the duty to consult, cooperate and co-ordinate, so far as is reasonably practicable, between: 1. A duty holder and their workers. 2. A duty holder and another duty holder who have a duty in respect of the same matter. ECU, as a duty holder, will be acting through its managers and supervisors, so it is important that these persons are aware of and act consistently with ECU s consultation duties. 4.2 Consultation, Cooperation and Coordination Between A Manager / Supervisor and Their Workers A person conducting a business or undertaking (PCBU), such as ECU, 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 is not limited to consulting with employees. The term worker includes contractors, subcontractors, labour hire workers, volunteers and work experience students. The duty also extends to any other people working in the workplace who are, or could be, affected by the health and safety matter even if they are not employed or engaged by the PCBU owning or controlling the workplace When is Consultation with Workers Required Consultation is required when: 1. Identifying hazards, assessing risks and making decisions about ways to eliminate or minimise those risks; 2. Making decisions about the adequacy of facilities for the safety and welfare of workers; 3. Proposing changes that may affect the health, safety and welfare of workers; and 4. Making decisions about procedures, including those for: a. consultation with workers b. resolving work health or safety issues c. monitoring the health and safety of workers d. monitoring workplace conditions e. the provision of information and training to workers f. the allocation of human and financial resources Specific instances that require consultation are outlined in the Health and Safety Office s policies and procedures available online via the Health and Safety pages of the HR Services Centre website. Guideline Complying with Work Health and Safety Consultation Requirements Page 3 of 8

4 4.2.2 How To Consult with Workers As specified by the WHS Act, consulting with workers involves: 1. Sharing relevant work health and safety information with workers; 2. Giving workers a reasonable opportunity to express their views and to raise health and safety issues, and taking these views into account; 3. Giving workers a reasonable opportunity to contribute to the decisionmaking process relating to the health and safety matter; 4. Advising workers of outcomes of their discussions in a timely fashion. Consultation does not require consensus or agreement but it does entitle workers to contribute to any decisions made. It is important to note that the length of the consultation process will depend on the complexity of the matter, how many people are being consulted and the accessibility of those people and the methods for consultation. There are a number of strategies for consulting with workers. Some examples include: 1. Health and Safety Representatives; 2. Working Groups or Working Parties; 3. Health and Safety Committees; and 4. Providing additional opportunities for discussion and feedback on health and safety issues e.g. via surveys, ad hoc discussions etc. If workers or work groups are represented by a health and safety representative then that representative must be involved in the consultation process Evidence of Consultation It is crucial to record and retain all records of consultation as evidence to verify compliance with the requirement. This evidence may include copies of letters or s, agreements, memorandums of understanding, documented telephone conversations or meeting minutes. Such records should include information regarding: 1. Who is involved; 2. What the safety matter is; 3. What decision has been made; 4. Who is to take action and by when; and 5. When the action has been completed. 4.3 Consultation, Cooperation and Coordination Between Duty Holders Under the WHS Act, it is possible for a number of PCBU s to have overlapping and concurrent duties in relation to workers. If more than one person has a duty in relation to the same matter, each person must, so far as reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter. Guideline Complying with Work Health and Safety Consultation Requirements Page 4 of 8

5 Each duty holder can have an effect on work health and safety in relation to the activity and therefore must share information and cooperate with each other to ensure that each PCBU can meet their health and safety duties effectively without gaps or inconsistencies. An example of where concurrent and overlapping duties may arise is contractor arrangements. For assistance on determining whether you share a duty with another duty holder, please refer to the Shared Duties Checklist attached at Appendix A. The Health and Safety Office, in consultation with the Office of Legal Services, have prepared a Template Letter to Other Duty Holders that can be adapted and used to initiate the consultation process with another duty holder Topics Requiring Consultation Depending on the circumstances of the case, discussion of a number of the following topics may be required: 1. The delegation and allocation of work health and safety responsibilities, information, instructions, training and supervision for the duration of the contract / project; 2. The availability of appropriate resources, financial and human, commensurate with the levels of risk / hazard aligned to the project; 3. The requirement for appropriate certifications and qualifications required for specific activities; 4. The provision of instructions regarding emergency evacuations; 5. The provision of personal protective equipment and clothing; 6. Determination as to which organisation s work health and safety policies will be applied; 7. The responsibility for consulting with worker(s) regarding work health and safety matters; 8. What information needs to be shared between duty holders for health and safety purposes; 9. If required, safety management plans have been developed and submitted; and 10. Who will take responsibility and control of the relevant persons. The above is not an exhaustive list and specific circumstances may require discussion of a number of other health and safety topics Evidence of Consultation As with consultation with workers, it is crucial to record and retain all records of consultation with other duty holders as evidence to verify compliance with the requirement This evidence may include copies of letters or s, agreements, memorandums of understanding, documented telephone conversations or meeting minutes. Such records should include information regarding: 1. Who is involved; Guideline Complying with Work Health and Safety Consultation Requirements Page 5 of 8

6 4.4 Failure to Consult 2. What the safety matter is; 3. What decision has been made; 4. Who is to take action and by when; and 5. When the action has been completed. A failure to consult may result in a penalty and individuals can be held personally liable for a failure to consult. 5. RELATED DOCUMENTS: Other documents which are relevant to the operation of this guideline are as follows: University Work Health and Safety Policy [HR081] Template Letter to Other Duty Holders Guideline Complying with Work Health and Safety Consultation Requirements Page 6 of 8

7 6. CONTACT INFORMATION For queries relating to this document please contact: Policy Owner Director Human Resources Services Centre All Enquiries Contact: Senior Health and Safety Advisor Telephone: / address: osh@ecu.edu.au 7. APPROVAL HISTORY Approved by: Director Human Resources Services Centre Date First Approved: December 2012 Date last modified: December 2013 Revision History: Next Revision Due: December 2016 TRIM File Reference 298/14 December 2012 Document developed December 2013 Updated into new guideline template Guideline Complying with Work Health and Safety Consultation Requirements Page 7 of 8

8 8. APPENDIX A Shared Duty Checklist Who do I share a duty with? The following checklist can be used as a guide to determine which other duty holders you share a duty with. If you answer yes to any of the following questions then it is likely a concurrent duty exists and therefore you will be required to consult, cooperate and communicate with the other party involved. Please note this is a guide only and not a definitive statement as to the extent of a PCBU or a worker s duties. Do you... Y / N Have staff that move between ECU and another organisation, either locally, nationally or internationally? Arrange or organise ECU students for work experience placements at another organisation, either locally, nationally or internationally? Share financial responsibilities with another organisation? Work on a project collaboratively? For example a research collaboration. Use a labour hire company to provide staff? Share facilities with another organisation? Have input, through the provision of human or financial resources, in the functioning / outcomes of an organisation? Engage contractors? Guideline Complying with Work Health and Safety Consultation Requirements Page 8 of 8