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Employer's duty to consult with employees about OHS matters: LaneWorksafe

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LaneWorksafe  on employer's duty to consult:

Employers must consult with employees about OHS matters so that employees can contribute to decisions affecting their health, safety and welfare.

The OHS Act provides for occupational health and safety representatives to be elected when requested by an employee. OHS Committees can be established in workplaces of 20 or more where the majority of employees request it. Other consultation arrangement can be agreed to between the employer and employees.

The OHS Regulation details obligations established in the Act in relation to consultation. Further guidance is provided by a WorkCover Code of Practice which outlines the steps that can be taken to set up consultation arrangements in accordance with the Act, and the application of the powers and functions of representatives and committees.

Unlawful dismissal

The OHS Act makes it unlawful to dismiss or victimise and employee for being an occupational health and safety representative, committee member, or for performing his or her duties under the Act. It is also unlawful to dismiss or victimise an employee for making a complaint about a health and safety matter.

Employer to provide instruction, training and information

An employer must ensure that each new employee receives induction training that covers the following:

  • Arrangements at the place of work for the management of occupational health and safety including arrangements for reporting hazards to management
  • Health and safety procedures at the place of work relevant to the employee including the use and maintenance of risk control measures
  • How employees can access any health and safety information that the employer is required by OHS Regulation to make available to employees
  • Any other matter that the OHS regulation specifies should be the subject of induction training and that is relevant to the place of work concerned having regard to the competence experience and age of the new employee

Employer to identify hazards

An employer must eliminate any reasonably foreseeable risk to the health or safety of:

  • Any employee of the employer, or
  • Any other person legally at the employer's place of work, or both that arises from the conduct of the employer's undertaking

If it is not reasonably practicable to eliminate the risk, the employer must control the risk

Means of controlling risk

For the purposes of OHS Regulation, an employer has an obligation to control a risk to health or safety (in any case in which the elimination of the risk is not reasonably practicable) and has an obligation to take the following measures (in the order specified) to minimise the risk to the lowest level reasonably practicable:

  • Firstly, substituting the hazard giving rise to the risk with a hazard that gives rise to a lesser risk
  • Secondly, isolating the hazard from the person put at risk
  • Thirdly, minimising the risk by engineering means
  • Fourthly, minimising the risk by administrative means (for example, by adopting safe working practices or providing appropriate training, instruction or information)
  • Fifthly, using personal protective equipment

A combination of the above measures is required to be taken to minimise the risk to the lowest level reasonably practicable if no single measure is sufficient for that purpose.

NSW Occupational Health and Safety Regulation 2000 Part 2 Division 1 - Definitions

Employee means an individual who works under a contract of employment or apprenticeship. Employer means a person under contracts of employment or apprenticeship.

Occupier of premises includes:

  • A person who, for the time being, has (or appears to have) the charge, management or control of the premises, or
  • A person who, for the time being, is in charge (or appears to be in charge) of any operation being conducted on the premises

Place of work means premises where persons work. Plant includes any machinery, equipment or appliance.

Premises include any place and in particular include:

  • Any land, building or part of any building, or
  • Any vehicle, vessel or aircraft, or
  • Any installation on land, on the bed of any waters or floating on any waters

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