Are your OH&S consultation arrangements legal?

All workplaces in NSW must now have documented OH&S consultation arrangements in place that have been developed in consultation with all employees of the employer in a particular workplace, writes BOB LIPSCOMBE.

The Occupational Health and Safety (OH&S) Act 2000 states an employer must consult with employees "to enable the employees to contribute to decisions affecting their health, safety and welfare at work". As a consequence, all workplaces in NSW must now have documented OH&S consultation arrangements in place that have been developed in consultation with all employees of the employer in a particular workplace.

In schools and colleges these consultation arrangements will normally take the form of an OH&S committee (with workplaces with 20 or more employees) or an elected OH&S representative (where there are fewer than 20 employees), although other agreed arrangements are possible if they meet the standards established by the legislation.

With the expiry of a two year phasing period on September 1, 2003, all schools and colleges should ensure that their OH&S committees or other OHS consultation arrangements conform to the requirements of the Occupational Health and Safety Act 2000 and Occupational Health and Safety Regulation 2001. Any OHS consultation arrangements entered into prior to September 1, 2001 are now likely to be invalid.

Although the legislation states that the employer must consult on consultation arrangements, for practical purposes the negotiations will occur between the principal or college manager (as the employer representatives) and all Department of Education and Training (DET) employees within a particular workplace.

The Occupational Health and Safety Act 2000 sets out what must occur when employees are consulted. According to Section 14, consultation requires the sharing of relevant information with employees, that employees be given the opportunity to express their views and to contribute, and that the views of employees are valued and taken into account by the employer. If you are unaware of consultation occurring on a matter that could affect your OH&S, it is unlikely that it has occurred at the standard required.

In addition to these general requirements, the Occupational Health and Safety Regulation 2001 sets out some specific issues that must be addressed when developing workplace OH&S consultation arrangements. These mean that teachers in each workplace must be provided with appropriate information and discussions held on each of the following:

• composition of the OH&S committee (for example, teaching staff, non-teaching staff)
• number of employee representatives and employer representatives (the DET limit of four in schools no longer applies)
• arrangements for the election of OH&S representatives and/or OH&S committee members (including arrangements to deal with absences, casual vacancies and the removal of members)
• arrangements for OH&S committee meetings and meetings between OH&S representatives and the employer (including the frequency of ordinary meetings and the calling of special meetings)
• procedures for meetings
• arrangements for communication between employee representatives and the employees they represent (including procedures to raise issues and to make complaints about OH&S matters)
• arrangements for the training of OH&S committee members and OH&S representatives
• relationship between the DET OH&S committees and employees of other employers in the workplace (for example, cleaning staff).

It is expected that agreement will be reached on the points listed above. However, if this is not possible, advice should be sought from your Federation Organiser.

Two other important requirements of an OH&S committee are also worth noting:

a) the chairperson must be elected from among the employee representatives, and
b) a person cannot be an employer's representative unless that person has the employer's authority to act on behalf of the employer in OH&S matters in the particular place of work.

Once consultation arrangements have been determined, the Regulation requires that they be recorded, displayed and publicised among existing and new employees.

Further information about consultation arrangements can be found in the Federation's Occupational Health and Safety Kit for Teachers (available from your Fed Rep or downloadable from www.nswtf.org.au) and in WorkCover's OH&S Consultation Code of Practice (www.workcover.nsw.gov.au).

Bob Lipscombe a Federation Vice President.

For further information

November 2003 contents