Duty to consult

Fair and effective representation of workers is an essential aspect of the 2004 Act, in which the employer's duty to consult has been expanded to cover not only HSRs, but also employees (who may not have an elected HSR). The Part clearly setting out the duty of employers to consult on a wide range of matters. 

The consultative approach set out in the Act stresses the importance of talking to the people who actually do the work and listening to what they have to say. 

Part 4 Duty of Employers to Consult

Section 35 of the Act1 spells out that the employer must consult with employees - either through their elected OHS Representative/s or, where there is no OHS Rep, then with the employees directly. Where there is an elected HSR, the consultation may also involve the workers. The employer must consult about:

  • how consultation is going to happen
  • identifying and assessing hazards or risks to health or safety at a workplace
  • the measures to be taken to control risks
  • the adequacy of facilities for the welfare of  workers
  • how to resolve health and safety issues
  • how to monitor the health of workers
  • information and training in safe working practices for workers
  • the membership of any health and safety committee
  • proposed changes that may affect the health and safety of employees including changes to the workplace, the plant, substances or other things used at the workplace or the way work is performed. This means, the consultation must take place well before any changes are made.

Further, the Act makes it clear that consultation must involve:

  • sharing information;
  • giving workers the opportunity to express their views; and
  • taking those views into account.

In other words, consultation is more than your employer telling you what will happen. Consultation means considering your views and reaching an agreement that takes account of your concerns.

1 - The Act was amended on September 26, 2018 to merge Section 36 into Section 35. It is now s35(4).  It is now clear that an employer who does not involve HSRs in consultation is contravening this section and is guilty of an offence. What this should mean in effect is that WorkSafe inspectors should find it easier to uphold PINs issued by HSRs if the employer fails to consult with them.

Download the interactive Record of Consultation developed by the VTHC OHS Unit and launched at the 2016 VTHC HSR conference. Use this as a tool to ensure that your employer is complying with this crucial part of the OHS Act.

The 2017 Regulations also specify HOW the employer is to consult with elected OHS reps.  This is covered by section 21 in Pert 2.1 (General Duties) of the regulations.

More information:

WorkSafe:

The 2004 Act can be downloaded (in both pdf and word format) on the Victorian government legislation repository website.

Last amended October 2018

AskRenata

Please send in your occupational health and safety questions to Renata. We will respond within a few days.

Ask a question

Safetynet

Please complete the form below to subscribe to the SafetyNET Journal email newsletter.

Required fields are marked with an asterisk (*).

Your details

BE TRADES HALL TRAINED

Have you had your initial training yet? Want to do a refresher course? Register online!

OHS Training