Consultation for changes to work health and safety procedures and policies

Sections 47 and 48 of the Work Health and Safety Act 2011 (ACT) require a person conducting a business or undertaking to effectively consult with their workers in relation to work health and safety matters that are likely to affect them. This includes the development of, or making changes to, a health and safety policy or procedure. Consultation requires:

• relevant information is shared with affected workers;
• workers are given a reasonable opportunity to express their views and to raise concerns;
• workers are given a reasonable opportunity to contribute to the decision-making process;
• the views of workers are taken into account;
• workers are advised of the outcome of any consultation in a timely manner; and
• if the workers are represented by a health and safety representative, consultation must include that representative.

Case study

A recent Fair Work decision ruled a national packaging manufacturer (the employer) had failed to meet its consultation obligations as required in the WHS legislation in relation to the changes made to its Alcohol and Other Drug Policy. Such failure has led to the employer being prevented from introducing the changes. These changes include:

• re-introduce random testing instead of blanket testing;
• removal of alcohol self-testing machines on sites which resulted in employee being unable to self-exclude from duties following self-testing for alcohol;
• employees who have declared to be on prescription or over the counter medication following a non-negative result in a random drug test will be stood down until the medical review officer confirms their fitness for work.

While the employer conducted the consultation activities through a number of different forms including providing a presentation on the policy and meeting with the relevant unions, it did not share any information to support the proposed changes. The Commission stated that the employees were provided with the opportunity to provide feedback. However, it found the employees were not provided with all relevant information for them to effectively express their views and contribute to the decision making.

The Commission commented that the requirement to consult affected workers would not be satisfied by providing the employees with a mere opportunity to be heard. The requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made.

Want to know more about your consultation obligations, reach out to our Workplace Relations and Legal Team on 02 6175 5950.