WorkSafe releases draft Good Practice Guidelines on Worker Engagement, Participation and Representation at Work

WorkSafe has just released its draft Worker Engagement, Participation and Representation Good Practice Guidelines (the draft Guidelines) for public consultation. A copy of the draft Guidelines, which run to nearly 100 pages, can be found here.

The draft Guidelines are intended to provide practical advice, and focus on the requirements and duties related to worker engagement, participation and representation in Part 3 of the new Health and Safety at Work Act 2015 (the Act).

The draft Guidelines are open for consultation until Friday 4 December 2015. They will be amended to reflect the Health and Safety at Work (Worker Engagement, Participation and Representation) Regulations 2016 (the Regulations), once those Regulations have been finalised (which the Guidelines indicate is likely to be in February 2016). Our update on the draft Regulations, as released in October 2015, can be found here.

Overview

Overall, the draft Guidelines emphasise that:

  • All PCBUs must have worker engagement and participation practices, regardless of their size, level of risk or the type of work carried out. However, the law focuses on effectiveness, and what is reasonable, rather than requiring any particular system to be in place.
  • Everyone has a role to play in making sure workplaces are healthy and safe.
  • The worker participation practices chosen by any particular organisation should be influenced by the views and needs of workers, and the size and nature of the organisation.

The draft Guidelines are divided into a number of sections, which we discuss in turn below. They also include various appendices and tables intended to provide more practical guidance and example scenarios.

The ‘twin duties’ – engagement and participation

  • The part of the Act dealing with worker engagement, participation and representation sets out two overarching duties for a PCBU (which the Guidelines describe as the ‘twin duties’):

ο the duty to engage with workers; and

ο the duty to have worker participation practices.

  • A PCBU can use worker participation practices to engage, but it is not enough to simply set up worker participation practices – there will be times when a PCBU has to use other ways to engage.
  • The twin duties are equally important and they support the PCBU’s primary duty of care.

Engaging with workers

  • A PCBU must engage with workers on any work health and safety matter that directly affects them. Every worker must have opportunities to influence their work and their working conditions and to shape health and safety systems at work. A PCBU must take workers’ views into account and let them know promptly what will happen next.
  • A PCBU should take an active approach to engagement. Effective engagement will include a mix of formal and informal approaches to encourage workers to respond.
  • If workers are represented by a Health and Safety Representative, engagement must involve that representative.
  • The draft Guidelines also set out examples of how a PCBU might engage with workers and other relevant considerations to take into account.

Worker participation practices

  • Worker participation practices are what a PCBU puts in place to give workers ongoing opportunities to improve health and safety.
  • A PCBU and its workers can team up to develop the practices that will work best and be most effective for their workplace.
  • Participation can be either direct or through representation.
  • The draft Guidelines emphasise that leadership and commitment from managers are essential for worker participation to be effective.

Worker representation

  • Representation is one form of participation, but can also help a PCBU meet its duty to engage with workers.
  • A worker representative is someone who workers can approach about health and safety who will raise issues with a PCBU on their behalf.
  • Some workplaces will not need to have worker representatives – such as small businesses where health and safety topics are covered regularly (perhaps informally) and all workers are kept up to date.
  • Health and Safety Representatives and Health and Safety Committees are two of the more common methods of representation. There are also other ways to support worker participation in health and safety matters.

Health and Safety Representatives

  • If Health and Safety Representatives are chosen, the Regulations will apply.
  • An elected Health and Safety Representative is a worker who has been chosen by the members of their work group to represent them. The Guidelines indicate that a flowchart will be developed to show the process for electing a Health and Safety Representative (and will be included in the final version of the Guidelines).
  • Health and Safety Representatives who have attended and passed specified training courses have additional powers.

Health and Safety Committees

  • A Health and Safety Committee may be requested by workers or established by the PCBU.
  • For most PCBUs, if workers request a Health and Safety Committee, the HSW Act requires the PCBU to consider that request. This does not necessarily require the PCBU to establish a Health and Safety Committee, but a PCBU may only decline the request if it is satisfied that its existing practices are effective, meet workers’ views and needs, and are fit for purpose and appropriate to the business’s size and risk.
  • Some PCBUs are not legally required to consider a request for a Health and Safety Committee. These are businesses with fewer than 20 workers that are not in high-risk sectors or industries.
  • The draft Guidelines also outline examples of Health and Safety Committee membership in a variety of businesses.

Issue resolution

  • An ‘issue’ is any concern or difference of opinion about health and safety at the workplace. A PCBU should have good processes and procedures for dealing with issues and make sure that workers are aware of them. Everyone in the workplace should understand who to approach if they have a problem.
  • A PCBU, workers and worker representatives must make a reasonable effort to resolve a health and safety issue, following any agreed procedures.

Worker participation and engagement in the mining sector

In the mining sector, all operations must have worker engagement and participation practices in place, regardless of the size, location, hours of operation, or the type of work undertaken. Schedule 3 of the HSW Act has further provisions about worker engagement, participation and representation that specifically apply to the mining sector, and health and safety representatives in the mining sector have specific powers.

How we can help you

Once the Guidelines have been finalised, organisations will be expected to be aware of them and to appropriately reflect the requirements in their worker engagement, representation and participation practices. This could potentially have a significant impact on current business practices and compliance costs.

The current consultation period provides an opportunity for you to consider the Guidelines at a draft stage, and have input into their final form. In addition to any specific feedback provided, WorkSafe is asking everyone making a submission to also respond to a series of general questions (e.g. are the guidelines easy to read, are the diagrams and flowcharts easy to follow, and what other diagrams and flowcharts are needed?). The feedback form can be downloaded here.

We regularly assist clients to understand and comply with their current and anticipated health and safety obligations, including making submissions on proposed changes. We would be happy to now assist you with responding to the draft Guidelines. If you would like to know more about engaging in the consultation process or the effect that the draft Guidelines may have on your workplace, our team would be delighted to help.

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