23 May 2013

My Workplace Rules: how many cooks in the kitchen spoil the OH&S broth?

by Shae McCartney, David Clark

Consultation can be used to improve safety, engender workforce engagement and create innovation, but if not managed properly it can become counter-productive, damaging and create an unhealthy working environment.

A strategy to manage hours of work, rosters and the hazard of fatigue is essential for any workplace, particularly in resources, manufacturing, construction or other high-risk industries. However, legislative requirements, recent Fair Work Commission decisions and legislative changes mean that the consultation process to implement these types of procedures is critical for the success and lawfulness of any strategy.

Consultation is vital to ensure an engaged, productive and fair workplace. However, poorly managed, disorganised and inconsistent consultation processes can cause significant damage to morale, disputation and claims.

More importantly a poor process can hinder any real safety improvement. Employers need a structured consultation process to ensure that consultation enhances safety outcomes rather than creating behaviours more suited to a reality TV show than a productive and harmonious workplace.

Consultation obligations come in many forms and from many sources. Harmonised safety legislation and/or mining safety legislation in most states have consultation obligations in relation to the development of procedures that can impact on the safety of individuals and also their personal freedoms. The last few months have also seen the Fair Work Commission focus on consultation requirements in relation to, among other things, workplace bullying and parental leave entitlements.

There are also proposed changes to the Fair Work Act 2009 that would see a duty on employers to consult with employees who are covered by awards and agreements prior to changing rosters or working hours which may have a significant affect on the way employers are able to run their organisations.

So how can you implement a strategy to manage these high risk issues and use your consultation process to enhance workforce engagement?

Obligations of consultation process when managing hours of work, rosters and the hazard of fatigue

When developing a consultation framework the first step is to consider what it is that you are trying to achieve and ensure that the framework aligns with the organisational goals.

Secondly, it is important to understand where the consultation obligation arises and ensure that any consultation process meets the minimum legal and technical requirements. This may come from:

  • the relevant health and safety legislation and associated legislation. For example, the relevant Queensland laws include the Coal Mining Safety and Health Act 1999, the Mining and Quarrying Safety and Health Act 1999 and Mining and Quarrying Safety and Health Regulation 2001, the Explosives Regulation 2003, the Electrical Safety Act 2002 and the Work Health and Safety Act 2011;
  • Codes of Practice;
  • Standards, Guidelines and Guidance notes eg. Guidance Note for Fatigue Risk Management QGN 16 (Guidance Note) ; and/or
  • best practice management principles;
  • policy or procedures;
  • employment contracts; and
  • enterprise agreements.

Depending on the source of obligation to consult there may be minimum requirements that must be met. Duties and obligations may be strict and process-based, or flexible and driven by content and issues.

Once you understand the fundamental rules that apply you can develop a process that provides for structured and productive consultation.

Practical tips for implementing consultation processes

While every consultation framework will be different there are some features that are common to all good consultation frameworks, including:

  • the identification and engagement of relevant stakeholders (organisations, officers, managers and workers) which are directly affected or hold relevant safety information;
  • liaising with other stakeholders to establish the scope and requirements of the intended consultation process and getting them to commit to the processes adopted;
  • a clear, transparent and unambiguous written consultation plan which includes:
    - written ground rules for any consultation committee acknowledging the importance of and their contribution to the consultation process;
    - principles fundamental to the organisation and a safety culture;
    - a commitment from management that shows that the process is genuine;
  • a process to obtain, filter, verify accuracy and test relevance of data. For example, information considered relevant to consultation on rosters may relate to fatigue issues, psychological well-being, quality of diet, opportunities to engage in physical activities and any specific physical and psychological issues that are associated with work. There can be many varied and different opinions and the framework needs to include a process to manage and test the strength of positions put forward;
  • a process for the systematic and timely distribution of safety information to stakeholders both up and down the reporting chain – if you don't communicate someone will always fill the information vacuum;
  • a process for considering and comparing best practices and continuous improvement initiatives of other organisations within the same or similar industries in Australia or overseas
  • information systems that provide employees with easy access to safety information and evidences the flow of information;
  • a process for stakeholders to raise issues and suggest improvements so that they can be captured in a constructive way. If no formal process exists, complaints are still made but they are just not managed;
  • evidence that issues raised are adequately and genuinely considered, even if not adopted. This may be shown by minutes, report backs or other methods, but also by management representative involvement at appropriate levels. Remember, you don't have to agree but you do have to show you listened;
  • informing employees of the outcome of any consultation process – a simple step yet one that is often missed and can provide a powerful management tool;
  • a secure system that records the consultation process, the reasons for the actions decided upon and the final outcome;
  • a process which allows for an unproductive or destructive consultation to be brought to a head and decisions to be made. This may be referral back to management, an expert, or to a dispute resolution process, depending on the nature of the matter, the persons involved and the processes in place. However if there is no built-in decision-making process, decisions can appear arbitrary and may be challenged on the basis of a failure to consult;
  • a procedure to allow for work to continue while any process is being managed; and
  • control of the production and distribution of documents to ensure that they are appropriately marked to identify and qualify their status eg. "draft", "confidential", "proposed" or "for discussion purposes only", and treated with appropriate confidentiality.

Consultation can be used to improve safety, engender workforce engagement and create innovation. However, if not managed properly it can become counter-productive, damaging and create an unhealthy working environment. A failure to consult can invalidate decisions and give rise to injunctions to stop management action being taken. At its worst poor consultation processes can damage relationships and create an environment for bullying and stress claims.

Make sure your workplace does not become the next episode of My Workplace Rules.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.