Work Health and Safety (Work Health and Safety Consultation, Co-operation and Co-ordination) Code of Practice 2015

This instrument is the Work Health and Safety (Work Health and Safety Consultation, Co-operation and Co-ordination) Code of Practice 2015. It is an approved code of practice made under section 274 of the Work Health and Safety Act 2011. The Code says an approved code of practice is a practical guide to achieving the standards of health, safety and welfare required under the WHS Act and the Work Health and Safety Regulations.

That legal status matters. The Code is not the same thing as the Act or the Regulations, but it is more than general guidance. The foreword states that in most cases, following an approved code of practice would achieve compliance with the relevant health and safety duties for the subject matter covered by the code. It also states that courts may use the Code as evidence of what is known about a hazard, risk or control and may rely on it in determining what is reasonably practicable. Inspectors may also refer to an approved code when issuing an improvement or prohibition notice.

The Code also makes clear that a business can comply by following another method, such as a technical or industry standard, if that method provides an equivalent or higher standard of work health and safety than the code. In practice, that means businesses should not dismiss the Code as optional reading. If you are not following it, you should be confident your alternative approach is at least as protective and can be explained clearly if challenged.

The Code applies to all types of work and all workplaces covered by the WHS Act. Its main audience is a person conducting a business or undertaking, often called a PCBU. The Code says a PCBU 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.

The Code emphasises that the WHS Act definition of worker is broad. Consultation is not limited to payroll employees. It extends to employees, contractors, subcontractors and their employees, on-hire workers, volunteers and any other people working for the business who are directly affected by the matter. If a business only consults permanent staff and ignores contractors or labour hire workers who are exposed to the same risk, that will not match the approach described in the Code.

The Code also covers situations where more than one person has a duty in relation to the same matter. It explains that duty holders may include businesses that engage workers, direct or influence work, may put other people at risk from the conduct of the business, manage or control a workplace or plant, or design, manufacture, import, supply, install, construct or commission plant, substances or structures for use at a workplace. Where duties overlap, each duty holder must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with the others.

Officers such as company directors are also relevant. The Code states that officers have a due diligence duty to take reasonable steps to ensure the business implements processes for consulting workers and for consulting, co-operating and co-ordinating with other duty holders. Workers themselves also have duties to take reasonable care, comply with reasonable instructions and co-operate with reasonable health and safety policies or procedures, including consultation procedures.

The Code says many organisational decisions or actions have health and safety consequences for workers. The WHS Act identifies specific matters that trigger consultation. According to the Code, a PCBU must consult workers when identifying hazards and assessing risks arising from work carried out or to be carried out, making decisions about ways to eliminate or minimise those risks, making decisions about the adequacy of welfare facilities, proposing changes that may affect workers' health or safety, and making decisions about procedures for consultation, issue resolution, monitoring workers' health, monitoring workplace conditions, and providing information and training.

These trigger points are broader than many businesses expect. Consultation is not limited to major incidents or formal safety projects. The Code gives practical examples such as introducing new equipment into the workplace. It also specifically refers to changing work systems such as shift rosters, work procedures or the work environment, developing a new product or planning a new project, purchasing new or used equipment or using new substances, and restructuring the business.

For welfare facilities, the Code says facilities include toilets, drinking water, washing facilities, dining areas, change rooms, personal storage and first aid. Consultation should cover what facilities are needed, including number and location, and also access, cleaning and maintenance. If facilities already exist, workers and health and safety representatives should be consulted when changes may affect whether those facilities remain adequate.

The Code also says it may be useful to consult on matters beyond the listed triggers, such as incident and near miss investigations. It notes that regular consultation is better than consulting only case by case as issues arise, because regular consultation helps identify and fix potential problems early.

The Code describes consultation as a two-way process. It says consultation involves talking to workers about health and safety matters, listening to their concerns and raising your concerns, seeking and sharing views and information, and considering what workers say before decisions are made. The Code is explicit that consultation does not mean telling workers about a health and safety decision or action after it has already been taken.

Section 48, as quoted in the Code, requires that relevant work health and safety information is shared with workers, workers are given a reasonable opportunity to express their views and raise health or safety issues, workers are given a reasonable opportunity to contribute to the decision-making process, the views of workers are taken into account, and workers are advised of the outcome of consultation in a timely manner.

In practical terms, this means consultation must happen early enough to matter. If a business has already locked in a new layout, roster, machine purchase or procedure before speaking to workers, the process is unlikely to reflect the Code's approach. The Code also says workers should be encouraged to ask questions, raise concerns, report problems, make safety recommendations and be part of the problem-solving process.

The Code recognises that consultation may not always result in agreement, but says agreement should be the objective because that makes decisions more likely to be effective and actively supported. It also stresses the importance of management commitment and open communication. Workers are more likely to engage where their knowledge and ideas are actively sought and their concerns are taken seriously.

The Code says businesses should make available all the information they have relating to the health and safety matter so workers and health and safety representatives can have informed and constructive discussions. Examples listed in the Code include health and safety policies and procedures, technical guidance about hazards, risks and control measures, hazard reports and risk assessments, proposed changes to the workplace, systems of work, plant or substances, and data on incidents, illnesses or injuries presented in a way that protects confidentiality.

The Code also says information should be provided early so workers and representatives have enough time to consider it, discuss it and provide feedback. This timing point is important. A business may technically mention a change to workers, but if the information arrives too late for meaningful input, that is not the kind of consultation the Code describes.

Accessibility also matters. The Code says information should be presented in a way that can be easily understood by workers and should take into account literacy needs and cultural or linguistically diverse backgrounds. It notes that young workers and workers with limited English may be less likely to question health and safety practices or speak up if they are unsure. The Code suggests they may find it easier to communicate through a health and safety representative, an interpreter or a worker representative. It also says information should be simplified and presented in different ways, such as diagrams, to make it easier to understand.

Face-to-face meetings are described as usually the most effective way of communicating, although not always possible or preferable. The Code also refers to other methods such as telephone, email, intranet sites and noticeboards. Information should be updated and attention drawn to new material so people who do not regularly check those channels still know what is happening.

The Code explains that consultation must occur so far as is reasonably practicable with workers who carry out work for the business and who are, or are likely to be, directly affected. It says consultation that is reasonably practicable is both possible and reasonable in the particular circumstances.

The Code lists factors that affect what is reasonably practicable in consultation. These include the size and structure of the business, the nature of the work, the nature and severity of the hazard or risk, the nature of the decision or action including urgency, the availability of relevant workers and any health and safety representatives, work arrangements such as shift work and remote work, and worker characteristics including languages spoken and literacy levels.

The Code's aim is practical rather than rigid. It says the goal is to ensure the business has sufficient information to make well-informed decisions and that affected workers are given a reasonable opportunity to provide their views and understand the reasons for the decisions. A business is not expected to do the impossible, but it is required to take a proactive and sensible approach.

The Code gives examples of limits. An urgent response to an immediate risk may necessarily limit the extent of consultation in some circumstances. It may also not be reasonably practicable to consult workers who are on extended leave, although it would be appropriate to keep them informed about matters that may affect their health and safety when they return. The Code also says it is not always necessary to consult every worker in the workplace. The workers to be consulted are those who are, or could be, directly affected by the matter.

The Code says workers are entitled to take part in consultation arrangements and to be represented in relation to work health and safety by a health and safety representative elected to represent their work group. If workers are represented by a health and safety representative, consultation must involve that representative. A business should not bypass the representative and deal only with individual workers on matters affecting that work group.

The Code also says consultation can be undertaken through health and safety representatives and health and safety committees. However, the WHS Act does not require those mechanisms in every workplace. The Code states they are required only if the relevant request thresholds are met. Outside those situations, businesses may establish consultation arrangements that suit their workers and workplace, including agreed consultation procedures, as long as those arrangements are consistent with the WHS Act.

When deciding what kind of consultation is best, the Code says businesses should consider the size of the business, the way work is arranged and what suits workers. Existing arrangements can continue if they are consistent with the WHS Act and workers have been consulted about them. The Code suggests discussing the duty to consult, the purpose of consultation, the range of work and associated health and safety issues, the available ways consultation can occur, including the right to elect health and safety representatives, and workers' ideas about the most effective method.

The Code recognises that direct discussion may be enough in a small business with few workers where managers and workers speak regularly as part of everyday work. In larger or more complex organisations, or where it is not reasonably practicable to consult each worker individually, representatives or committees may be more appropriate. Some workplaces may need a mix of arrangements to suit different worker groups and situations.

For procedures, the Code says businesses must consult affected workers when developing procedures for resolving WHS issues, consulting with workers, monitoring workers' health and workplace conditions, and providing information and training. It says procedures should be in writing to provide clarity and certainty and assist in demonstrating compliance. They should clearly set out the role of health and safety representatives and any other parties involved, and should be easily accessible, such as on noticeboards or intranet sites.

A major part of this Code deals with overlapping duties. The Code states that if more than one person has a duty in relation to the same matter, each person with the duty must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all other persons who have a duty in relation to the same matter.

The Code explains why this is important. Where responsibility is shared, gaps often arise because duty holders do not understand how each person's activities add to hazards and risks, assume someone else is taking care of the issue, or leave action to a person who is not best placed to take it. The intended outcome is that each duty holder understands how its activities may impact health and safety and that the actions taken to control risks are complementary.

This is highly relevant in shared workplaces and project work. Examples from the Code's scope of duty holders include businesses that manage or control the workplace or plant, businesses that direct or influence work, and businesses that design, manufacture, supply, install or commission plant or structures. In practical terms, overlap can arise between a tenant and building manager, a host business and labour hire provider, a principal contractor and subcontractors, or a business and a supplier installing equipment.

The Code also specifically notes that principal contractors for a construction project, as persons who manage or control the workplace, have duties under the WHS Regulations to have arrangements in place for consultation, co-operation and co-ordination between PCBUs at the site. Even outside construction, businesses should identify overlap points early and work out who controls the workplace, who controls the plant or system, who provides training, who communicates with workers and who will act if a risk emerges.

The Code says consultation with workers and with other duty holders does not have to be documented unless specifically required under the WHS Regulations. Even so, it recommends keeping records to demonstrate compliance, assist the risk management process and make disputes less likely. The Code says records can be brief and simple and should cover who is involved, what the safety matter is, what decision has been made, who is to take action and by when, and when the action has been completed.

The Code also deals with reviewing consultation arrangements. Although the extract provided here does not reproduce the full review section, the table of contents confirms that the Code addresses how consultation arrangements should be reviewed. The surrounding text also makes clear that consultation methods should suit the workplace and workers. In practice, businesses should check whether their current arrangements still fit the size of the business, the way work is organised and the workers affected.

Common review triggers include growth in headcount, new shifts, remote or mobile work, increased contractor use, new plant or substances, a move to a new site, repeated safety complaints, or confusion about who is responsible when duties overlap. If your business has changed but your consultation process has not, that is a sign to revisit it.

Before relying on this page, businesses should also confirm that they are operating under the Commonwealth WHS framework and check whether any state or territory adoption or local variations are relevant to them. This page explains the Commonwealth instrument and the practical guidance stated in it, but businesses should always match the Code against their actual operations, worker mix and duty-holder relationships.

The instrument was approved by the Minister for Employment on 17 December 2015. The Federal Register entry records registration on 30 March 2016. Under the instrument itself, commencement occurs on the day after registration on the Federal Register of Legislative Instruments, so the Code commenced on 31 March 2016.

The Register entry identifies the instrument as in force. Businesses should still check the latest Register status before relying on any compliance page, especially if they are using it for current operational decisions, training materials or internal procedures.