Communication and Consultation

The Health and Safety at Work Act 2015 (HaSWA) is based on the premise that those who create or work with occupational risks, or can influence or direct them, must identify and manage those risks.

The legislation is designed in part to cover modern working arrangements, which can contain multiple employers with diverse workforces made up of employees, contractors, subcontractors, volunteers and others.

One of the requirements of the HaSWA legislation is the positive obligation on businesses to “consult, cooperate and coordinate” with other businesses about the health and safety duties they will share.  This requires them to address risks to workers arising from modern work environments where a number of businesses and organisations work together or share a common work place.

This can for example, be a construction contract where there is a principal contractor on the construction site with sub-contractors engaged by the principal contractor, sub-contractors engaged by the sub-contractors (including self-employed contractors), along with the client engaging the principal contractor and suppliers.

Where any or all of these parties are considered to be PCBU’s in their own right, they have a duty under the Act to, so far as is reasonably practicable, consult, cooperate with, and coordinate activities with other PCBUs where their duties overlap.

More than one PCBU may have the same duty in relation to the same workers, workplace, plant, substance or structure and the legislation requires them to work together to ensure the health and safety of all workers, or they risk prosecution and penalties.

Consultation is a critically important part of the process of achieving safety in a multi-PCBU workplace.

It should eliminate any confusion and uncertainty about the scope of a PCBU’s duties when multiple PCBUs are working at the same workplace.  In particular, the risk that a PCBU will not take responsibility for a health and safety duty, because it is assumed that another PCBU has responsibility or will take action.

The HaSWA requires each PCBU to discharge their duties and they may do this by not necessarily taking any required action themselves, but by ensuring that another person or PCBU is doing so.

The objective of consultation is to make sure that every PCBU associated with a work project or workplace has a shared understanding of what the risks are, which workers are affected and how the risks will be controlled.

In particular, consultation should involve an exchange of information that will allow PCBUs to work together to determine which duties are shared and what each person needs to do to cooperate and coordinate activities with other PCBUs.

Consultation should include:

• What each PCBU will be doing, how, when and where and what plant or substances may be used.
• Which PCBU has control or influence over aspects of the work or the environment in which the work is being undertaken?
• Ways in which the activities of each PCBU may affect the work environment.
• Ways in which the activities of each PCBU may affect what others do.
• Identifying the workers that are or will be involved in the activity and who else may be affected by the activity.
• What procedures or arrangements may be in place for the consultation and representation of workers, and for issue resolution?
• What information may be needed by another PCBU for health and safety purposes?
• What each PCBU knows about the hazards and risks associated with their activity.
• Whether the activities of others may introduce or increase hazards or risks.
• What each PCBU will be providing for health and safety, particularly for controlling risks.
• What further consultation or communication may be required to monitor health and safety or to identify any changes in the work or environment?

Cooperation

The duty on PCBUs to cooperate will require PCBUs to implement arrangements in accordance with any agreements reached during consultation.  The duty to cooperate would also include a PCBU refraining from acting in a way that may compromise the health and safety actions of other PCBUs.  It also means that, if a PCBU is approached by another PCBU wanting to consult on health and safety matters it should cooperate.

To best ensure compliance with the HaSWA, PCBUs that share a workplace and have overlapping duties with other PCBUs should consider:

Including in any commercial agreements with other PCBUs an obligation to consult, cooperate and coordinate on safety matters.  This will make other parties clearly aware of their obligations and give parties a contractual right to enforce obligations.

Establishing clear lines of communication between all PCBUs.

Identifying workplace hazards and each PCBUs duties or agreed control measures in relation to that hazard in writing.

Keeping a written record of all formal PCBUs communication in the form of meeting minutes and other documentation. Including any significant work health and safety issues that were discussed, agreed actions and any time-frames.

Conducting regular reviews, reporting and auditing of arrangements to ensure they remain effective.

Actions required to prepare for consultation with other PCBUs prior to commencing any work on the site:

• A description of the project, task or activity must be created in enough detail to enable identification of all contacts and degrees of control to be established.
• Lines of communication must be established with every PCBU being able to communicate freely with all other PCBUs.
• Create a table of contributing PCBUs which must be must be provided to every PCBU to ensure the ability to consult and communicate effectively.
• The Principal Contractor for the project should take a proactive role in convening meetings with PCBU representatives to discuss all aspects of the proposed task or activity.
• All PCBU’s must acquire a complete understanding of the total working environment, the safety culture that exists there and be satisfied that agreed methods for management of health and safety are appropriate and will meet expected standards.
• A written record of all formal PCBUs communication must be created in the form of meetings minutes and other related documentation.
• It is vital to ensure that all contributing PCBUs are well informed and consulted as appropriate to the type and duration of the activity.
• The principal contractor should provide regular written updates to all other PCBUs to enable them to keep track of progress of the work plan.

Andy Loader
First Rock Consultancy Ltd

Ph/Fax: 09 279 9392
Cell: 021 379 297
PO Box 200173
Papatoetoe Central, Auckland 2156