OHS - Consultation Cooperation and Coordination

7/24/2019 OHS - Consultation Cooperation and Coordination

1/7

CONSULTATION, COOPERATION AND COORDINATION HOWCAN PRINCIPAL CONTRACTORS AND SUBCONTRACTORSCOMPLY?

This paper considers the obligation in the model Work Health and Safety Billfor duty holders

to consult, coordinate and cooperate with other duty holders who have a duty in relation tothe same matter. The paper considers the implications of this duty for the constructionindustry, in particular for principal contractors and subcontractors. The paper does notaddress the duty to consult with workers.1

Consult, cooperate and coordinate what does the Bill say?

Clause 46 of the Model Work Health and Safety Bill(WHS Bill)2provides as follows:

If more than one person has a duty in relation to the same matter under this Act, eachperson with the duty must, so far as is reasonably practicable, consult, co-operateand co-ordinate activities with all other persons who have a duty in relation to thesame matter.

The maximum penalty for failure to comply with this obligation is $20,000 for an individualand $100,000 for a body corporate.

The obligation to consult, cooperate and coordinate is about achieving outcomes, not merelya process. The draft Code of Practice entitled Work Health and Safety Consultation, Co-operation and Co-ordination3 states that the objective of consultation is to make sureeveryone associated with the work has a shared understanding of what the risks are, whichworkers are affected and how the risks will be controlled. The exchange of information isintended to allow the duty holders to work together to plan and manage health and safety.

The consultation provision needs to be considered in the context of the primary duty of care.The WHS Bill makes a significant change to the nature of the primary duty of care in most

1Clause 47 of the Work Health and Safety Billrequires a person conducting a business or undertaking to consult with

workers who are, or are likely to be, directly affected by a matter relating to health and safety. It should be noted that

the definition of worker in the Work Health and Safety Bill is very broad, and includes subcontractors. A subcontractor

can be a worker and also a person conducting a business or undertaking (thereby having a primary duty of care to its

own workers and the workers of any second tier subcontractors) simultaneously.

2References in this paper are to the WHS Bill are to the 23 June 2011 version that appears on the Safe Work Australia

web site at http://safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Pages/model-work-

health-safety-act-23-June-2011.aspx.

3 The draft Code of Practice is available on the Safe Work Australia web site through the following link

http://safeworkaustralia.gov.au/LEGISLATION/ADMINISTRATIVEREGULATIONS/Pages/Model%20work%20health%20a

nd%20safety%20Regulations.aspx
http://safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Pages/model-work-health-safety-act-23-June-2011.aspxhttp://safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Pages/model-work-health-safety-act-23-June-2011.aspxhttp://safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Pages/model-work-health-safety-act-23-June-2011.aspxhttp://safeworkaustralia.gov.au/LEGISLATION/ADMINISTRATIVEREGULATIONS/Pages/Model%20work%20health%20and%20safety%20Regulations.aspxhttp://safeworkaustralia.gov.au/LEGISLATION/ADMINISTRATIVEREGULATIONS/Pages/Model%20work%20health%20and%20safety%20Regulations.aspxhttp://safeworkaustralia.gov.au/LEGISLATION/ADMINISTRATIVEREGULATIONS/Pages/Model%20work%20health%20and%20safety%20Regulations.aspxhttp://safeworkaustralia.gov.au/LEGISLATION/ADMINISTRATIVEREGULATIONS/Pages/Model%20work%20health%20and%20safety%20Regulations.aspxhttp://safeworkaustralia.gov.au/LEGISLATION/ADMINISTRATIVEREGULATIONS/Pages/Model%20work%20health%20and%20safety%20Regulations.aspxhttp://safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Pages/model-work-health-safety-act-23-June-2011.aspxhttp://safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Pages/model-work-health-safety-act-23-June-2011.aspx


2/7

2

jurisdictions. The duty is not based on the employment relationship (where a duty is owed byan employer to an employee with limited duties for an employee to act in respect of their ownsafety and the safety of other employees). Instead, the duty is owed by a person conductinga business or undertaking (PCBU)4 to workers engaged or caused to be engaged by theperson and to workers whose activities are influenced or directed by the person. Workers isa term which encompasses a class far more broadly defined 5than the notion of an employeeat common law.

The primary duty of care is set out at clause 19 of the WHS Act. It requires duty holders toensure that, so far as is reasonably practicable, the health and safety of workers engaged orcaused to be engaged by the person and workers whose activities are influenced or directedby the PCBU are not put at risk. This duty includes the provision and maintenance of a safework environment, the provision and maintenance of safe plant, structures and systems ofwork; provision of adequate facilities and the provision of any information, training, instructionor supervision that is necessary to protect persons from risks to their health and safetyarising from work carried out as part of the business or undertaking.

It is important to note that the obligation on each PCBU is to ensurethat these requirementsare met. The duty is not to provideeach of these things. As Sherriff and Tooma6point out,where there are multiple duty holders in respect of the same activities, a PCBU may complywith the duty of care by ensuring that the relevant matters are attended to by another person.For example, a PCBU may not have to actively take any steps for the provision of safe plant,training or welfare facilities if another PCBU is doing so. However, the first PCBU may be inbreach of the duty of care if they do not ensurethat the second PCBU has discharged theobligations. The first PCBU must therefore take steps to identify and verify the actions takenby others to meet the obligation.7

Consultation, cooperation and coordination of activities will therefore be critical to ensuring

that each PCBU with a primary duty of care fulfils their duty.

What is required to meet the duty?

There is existing case law on the meaning of consultation which is of assistance ininterpreting clause 46 of the WHS Bill. In Tvw Enterprises Limited v Duffy,8Toohey J stated:

Consultation is no empty term. "The requirement of consultation is never to be treatedperfunctorily or as a mere formality" (Port Louis Corporation v. Attorney-General ofMauritius (1965) AC 1111 at 1124). That decision and others e.g. Rollo v. Minister ofTown Planning (1948) 1 All ER 13 at 17 and Sinfield v. London Transport Executive(1970) Ch 550 at 558 make it clear that a responsibility to consult carries a

responsibility to give those consulted an opportunity to be heard and to express theirviews so that they may be taken into account.

4The meaning of this term is set out at clause 5 of the WHS Bill.

5The meaning of worker is set out in clause 7 of the WHS Bill,

6 Barry Sherriff and Michael Tooma, Understanding the Model Work Health and Safety Act (2010, CCH Australia Ltd)

page 25.

7Ibid, page 26.

8Re Tvw Enterprises Limited v Michael John Duffy; Australian Broadcasting Tribunal; Perth Television Limited; West

Coast Telecasters Limited and Western Television Limited [1985] FCA 251 (12 July 1985), para 19


3/7

3

So, consultation needs to be genuine and two way. The Courts have also found that directinga particular course of action or telling another party what is going to be done (as opposed toseeking views on what is proposed to be done)9do not constitute consultation.

Merely adopting a directive stance over matters where more than one duty holder has a dutyof care would also be inconsistent with the approach recommended in the Code of Practicewhich sets out that discussionswith other duty holders should commence as soon as thoseother duty holders are reasonably able to do so (page 17). The draft Code of Practice statesthat the nature of those discussions should include the following:

What each will be doing, how, when and where and what plant or substances may beused

Who has control or influence over aspects of the work or the environment in whichthe work is being undertaken

Ways in which the activities of each duty holder may affect the work environment Ways in which the activities of each duty holder may affect what others do

Identifying the workers that are or will be involved in the activity and who else may beaffected by the activity

What procedures or arrangements may be in place for the consultation andrepresentation of workers, and issue resolution

What information may be needed by another duty holder for health and safetypurposes

What each knows about the hazards and risks associated with their activity Whether the activities of others may introduce or increase hazards or risks What each 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.

An approach which encompasses the listed level of detail is clearly also needed to fulfil thetwo other legs of clause 46 - to cooperate and coordinate activities. The draft Code ofPractice provides the following guidance as to what is meant by cooperation and bycoordination.

The Code states that cooperation may involve implementing arrangements in accordancewith any agreements reached during consultation with the other duty holder as well as notacting in a way that may compromise health and safety. It also states that cooperation alsomeans that, if a duty holder is approached by other duty holders wanting to consult, the firstduty holder must not obstruct communication and must respond to reasonable requests fromother duty holders to assist them in meeting their duty.

In relation to coordination, the Code states that coordination of activities requires dutyholders to work together so that each person can meet their duty of care effectively withoutleaving any gaps in health and safety protection. Duty holders should plan and organiseactivities together with other duty holders. This will include making sure that the measureseach duty holder puts in place work effectively together to control the risks.

9Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v

QR Limited (no 2) [2010] FAC 652 (unreported, Logan J, 22 June 2010).


4/7

4

What practical steps should principal contractors put in place?

It is not a requirement to formalise consultation, cooperation and coordination obligationsthrough a contract, although the Code of Practice notes that doing so can help clarify theexpectations of all parties. Master Builders therefore recommends that a requirement toconsult, cooperate and coordinate activities should be included in the contract betweenprincipal contractors and subcontractors. For construction projects with a value of $250,000or more, the Model Work Health and Safety Regulations also require principal contractors toprepare a work health and safety management plan that plan must specify thearrangements for consulting, cooperating and coordinating activities for that project.10

In terms of day to day arrangements, what is put into place will depend on the nature andcomplexity of the construction work. For smaller projects (e.g. housing construction)arrangements which recognise that principal contractors do not have a full time presence onsite may be appropriate. There is no requirement for consultation to be face to face, soconsultation in these circumstances could be by phone, fax or email. As noted above, it is not

the process that is important but the outcome that all duty holders are satisfied that each isnot only meeting its duty of care but meeting that duty of care in a manner that is clearlycommunicated to the other parties involved with the construction work.

For larger projects with complex subcontracting arrangements more formal arrangementsmay be appropriate (for example daily prestart meetings, regular face to face subcontractorcoordination meetings and toolbox talks that are expressed to be mandated by the governingcontract documents).

Given that the aim of the duty to consult, cooperate and coordinate is to ensure that eachduty holder is meeting its duty of care, it would be good practice to integrate consultation,cooperation and coordination withother elements of contractor management. The elements

of good contractor management11

include:

Element Examples

Planning Subcontractors are required to provide an appropriate OHS Plan. Tender documentation stipulates OHS requirements for

subcontractors. A safety information start up pack is available for subcontractors. A process is in place for subcontractors to submit an OHS plan to

demonstrate hazard identification, risk assessment and controlprocedures.

Selected subcontractors have the required skills and experience toundertake the work and a proven track record in OHS. This couldinclude checking management plan submissions, conducting prework interviews and checking references.

Site induction Subcontractors are incorporated into the common system for siteinduction.

All subcontractors are instructed in the site safety rules and sitespecific emergency procedures.

A procedure is in place to ensure subcontractors have met minimuminduction requirements prior to commencing work.

10Regulation 309

11 The table is based on the Federal Safety Commissioners Fact Sheet An introduction to subcontractor OHS

managementwhich is available from the Federal Safety Commissioners web sitewww.fsc.gov.au/Resources
http://www.fsc.gov.au/Resourceshttp://www.fsc.gov.au/Resourceshttp://www.fsc.gov.au/Resourceshttp://www.fsc.gov.au/Resources


5/7

5

Pre-start checklists are used to identify whether the subcontractor islicensed to conduct the required work.

Communication Subcontractors are regularly provided with OHS information. Toolbox and pre-start meetings are used to regularly communicate

information and to discuss OHS issues with subcontractors. Toolbox and pre-start meetings, and other relevant consultations, are

documented. A site notice board or safety alert/bulletin is used as a weekly source

of OHS information and is regularly checked by subcontractors.Hazardidentificationandriskmanagement

Subcontractors are consulted in the Job Safety Analysis process andin the development of Safe Work Method Statements.

A procedure for JSAs and SWMS is in place, and is communicated tosubcontractors through the induction process.

A SWMS appropriate to the work activity is completed and signed bythe subcontractor before commencing work.

All SWMS are regularly reviewed and updated in consultation withsubcontractors.

Monitoring andreviewing safetyon site

Subcontractors are engaged in OHS inspection and evaluationprocesses.

A schedule for inspections and audits is in place and lists attendanceby subcontractors.

A procedure is in place to regularly inspect the safety of plant,substances, equipment and temporary structures used bysubcontractors.

Corrective actions are developed in consultation with subcontractors,and included in the applicable SWMS.

What happens if there is a dispute about a matter?

There may be situations where a principal contractor and subcontractor have consultedabout a particular matter in relation to which they both have a primary duty of care but do notagree on the appropriate course of action. This could include disputes about the nature of therisk controls to be implemented or who should bear the responsibility for implementing therisk control.

In such situations, clause 8112of the Model Bill requires the parties to the dispute to makereasonable efforts to achieve a timely, final and effective resolution of the issue inaccordance with the agreed dispute resolution procedure for the workplace, or if there is no

agreed procedure, the default procedure prescribed by the Model Regulations.13 If it is stillnot possible to resolve the issue, clause 82 of the Model Bill provides that any party to theissue can ask the regulator to appoint an inspector to attend the workplace to assist inresolving the issue.

12 The Explanatory Memorandum to the Model Bill states on page 39 that Consultation is an integral part of issue

resolution and conversely, issue resolution processes may be required to deal with issues arising during consultation.

The provisions for consultation are dealt with separately in Divisions 1 [consultation with other duty holders] and 2

[consultation with workers] of this Part.

13Regulation 47


6/7

6

Agreed dispute resolution procedures need to be in writing and include all of the stepsspecified for the default procedure.14Master Builders recommends that the requirement tocomply with the terms of the dispute resolution procedure for the workplace should be in thegoverning contract documents.

Any party to a dispute can have a representative (such as Master Builders) to represent themin a dispute.

Does the consultation duty mean that principal contractors cannot direct how work isundertaken?

On construction sites, particularly large and complex sites, it is common for principalcontractors to put into place site safety rules as well as arrangements to verify that work isactually being carried out in accordance with agreed procedures. As noted above, sucharrangements are part of good subcontractor management and are a necessary andimportant part of ensuring that the principal contractor is meeting the primary of duty of care

to workers on site. Clearly adopting a directive approach to site safety, where there is noconsultation with subcontractors will not satisfy clause 46. However, the requirement toconsult with other duty holders who have a duty in relation to the same matter does not meanthat principal contractors cannot direct that subcontractors comply with agreed site safetyrules nor that principal contractors cannot ultimately direct that work be carried out in aparticular manner if that is what is required in order for the work to be carried out safely.

It should be noted that if a principal contractor directs a particular course of action it is lesslikely that the principal contractor could successfully argue that they did not have influence orcontrol over the matter. Clause 16 of the Model Act provides that where more than one dutyholder has a duty, each person must discharge that duty to the extent to which they haveinfluence and control of the matter. This provision, together with consideration of what is

reasonably practicable in the particular circumstances are the two, inter-related ways inwhich the Model Act deals with the issue of control in relation to the primary duty of care.Master Builders has prepared a comprehensive paper which considers the application of thenotion of control in the Model Act.15

What happens if a principal contractor does not want to consult?The obligation to consult is multi-directional. It is not an obligation on principal contractors toconsult with subcontractors but for all duty holders with a duty in relation to the same matterto consult with each other. So subcontractors and labour hire company have an equalobligation to consult with a principal contractor as does a principal contractor with thoseparties. This raises questions as to what happens if another duty holder does not wish toparticipate in consultations or does not participate to the extent that satisfies the other dutyholders that they have sufficient information to determine that they are meeting their duty ofcare.

The Code of Practice does not provide adequate guidance to deal with this issue. The Codestates This does not mean that you should simply accept what you consider to beinadequate action by another duty holder. You should check that they are aware of this dutyand what you consider is needed to comply with it, and with the health and safety duties that

14Regulation 46

15See Master Builders research paper Losing Control? The impact of the primary duty of care. This paper discusses

the application of the notion of control in the Model Bill, including where more than one duty holder has a duty in

respect of the same matter. The paper is available on Master Builders web site

www.masterbuilders.com.au/HealthSafety
http://www.masterbuilders.com.au/HealthSafetyhttp://www.masterbuilders.com.au/HealthSafetyhttp://www.masterbuilders.com.au/HealthSafety


7/7

7

you each have. This somewhat trite statement does not adequately take into account thecomplexities of the commercial environment in which such consultation takes place. Labourhire companies and subcontractors may be able to rely on contractual arrangements or cancall on the regulator to assist with a situation where consultation is not occurring to the extentneeded to be satisfied that they are meeting their duty of care. Ultimately, if, for example, alabour hire company is not able to be satisfied that the work that their employees will beundertaking will be done safely, the company needs to carefully consider whether or not thatparticular placement should proceed.

Conclusion

The requirement to consult, cooperate and coordinate is no mere window dressing. Allparties who undertake construction work must ensure that arrangements are in place so thatcommunication about how each party involved with the construction process will meet theirduty of care is a consideration about which there is no doubt.

Master Builders Australia Limited 2011

Disclaimer: This document is not legal advice. Whilst every care has been taken in preparing this document,no responsibility will be accepted for actions taken in reliance upon information contained in this document.

OHS - Consultation Cooperation and Coordination

Documents

Transcript of OHS - Consultation Cooperation and Coordination