compliance

What is consultation? How and why should we make it a priority?

Words Donna Mogg, Fair Farms

AFTER delivering a webinar on the Hort Award Hours of Work provisions, I realised I speak a lot about consulting with workers when seeking to introduce change or get input around Work Health and Safety (WHS). So it‘s timely to go into the weeds a little and talk about how, and how much, consultation would be considered sufficient (eg, by the Fair Work Ombudsman, Commission or WHS Authority) in a variety of situations.

Consultation does not mean reaching agreement or the ability to veto a proposal. Agreement may be an outcome of consultation, but it isn’t presumed. There are similar, but slightly differing, expectations and regulations around consultation, depending on the matter under consideration. For example, consultation is a legal requirement under WHS legislation and an essential part of managing health and safety risks, and employees have a right to stop work if directed to undertake unsafe work practices.

Requirements to consult with employees about significant changes in the workplace are centred around business proposals to make a particular change. The rules for consultation here are set out in the legislation, Awards or enterprise agreements.

These provisions require employers to consult with employees and their representatives if:

• they intend to change an employee’s regular roster or ordinary hours of work, or

• they intend to make significant changes at the workplace.

What is significant change? This means any change to the business that will impact employees in a significant way, for example different working hours, duties, work locations or decisions leading to redundancies.

Employers who take a consultative approach still have the right to make final decisions on how to manage their business, but employees who are a part of the process are more likely to accept change and are less likely to feel anxious or stressed about the change.

The Federal Work Health and Safety Act 2011 explains the nature of consultation at Section 48:

S48 Nature of consultation

(1) Consultation under this Division requires:

(a) that relevant information about the matter is shared with workers; and (b) that workers be given a reasonable opportunity: (i) to express their views and to raise work health or safety issues in relation to the matter; and (ii) to contribute to the decision making process relating to the matter; and (c) that the views of workers are taken into account by the person conducting the business or undertaking; and (d) that the workers consulted are advised of the outcome of the consultation in a timely manner.

(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.

Workers are often in the best situation to identify hazards and practical solutions, so communicate with and involve all staff involved in the tasks under review. Consultation under the Act is specifically required in relation to:

When consultation is required (f ) 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;

(b) when making decisions about ways to eliminate or minimise those risks;

I when making decisions about the adequacy of facilities for the welfare of workers;

(d) when proposing changes that may affect the health or safety of workers;

I when making decisions about the procedures for:

(f ) consulting with workers; or (ii) resolving work health or safety issues at the workplace; or (iii) monitoring the health of workers; or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or

(v) providing information and training for workers;

(f ) when carrying out any other activity prescribed by the regulations for the purposes of this section.

Having a consultation framework in place – aset of guiding principles and procedures – ensures that consultation occurs in a consistent way and can be described and justified if and when needed.

Don’t over complicate the process. By framework, we mean a set of guiding principles for how you consult with employees around new proposals, in what circumstances and to what extent. Consider whether it’s all employees, or a specific section or group of workers, and what impact the proposal will have on those employees.

Develop an internal communication strategy outlining how your business will deliver key messages to staff. The degree of complexity depends on the size of the workforce and the type of changes proposed. For smaller businesses, this can be a simple document setting out the ground rules for when and how staff communications will be handled, who will handle them and how and when they will be released. Essentially, this means:

• information to employees about change

• employees giving their views about the impact of a change (including any impact in relation to their family or caring responsibilities), and

• considering any views given by employees about the impact of a change

The climate of consultation is vitally important for the smooth transition of change. And setting the tone is as important as the questions to be asked and answered. Invite input, manage expectations, be open and honest, and listen to your employees. Again, you get to make the decisions, but it’s the manner in which those are implemented that counts. Also, keep records!