Guide 4 of 5 · Consultation
Consulting workers on safety: the WHS duty
Under the WHS laws, a business must, so far as is reasonably practicable, consult the workers who carry out work for it and are directly affected, or likely to be, by a health and safety matter. For an officer, consulting with workers is one of the Act’s own examples of the duties the business must have processes to meet.
General information, not legal advice. The official places to check are Safe Work Australia’s consultation duties page and the WHS regulator in your state or territory. This guide covers the duty to consult under work health and safety law only. Victoria has not adopted the model WHS laws; its law is the Occupational Health and Safety Act 2004, which this guide does not cover.
The Act
Sections 47 to 49, in the Act’s words
The Commonwealth’s Work Health and Safety Act 2011 sets out the duty in three short sections. Section 47(1):
“The person conducting a business or undertaking must, so far as is reasonably practicable, consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.”
Work Health and Safety Act 2011 (Cth), section 47(1), as compiled at 1 July 2024
If the business and its workers have agreed procedures for consultation, the consultation must follow them, and the procedures must not be inconsistent with section 48. Section 48 says what consultation is:
“(1) Consultation under this Division requires:
- (a) that relevant information about the matter is shared with workers; and
- (b) that workers be given a reasonable opportunity:
- (i) to express their views and to raise work health or safety issues in relation to the matter; and
- (ii) to contribute to the decision-making process relating to the matter; and
- (c) that the views of workers are taken into account by the person conducting the business or undertaking; and
- (d) that the workers consulted are advised of the outcome of the consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.”
Work Health and Safety Act 2011 (Cth), section 48
| Paragraph | Consultation is required… |
|---|---|
| (a) | “when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking” |
| (b) | “when making decisions about ways to eliminate or minimise those risks” |
| (c) | “when making decisions about the adequacy of facilities for the welfare of workers” |
| (d) | “when proposing changes that may affect the health or safety of workers” |
| (e) | “when making decisions about the procedures for: (i) consulting with workers; or (ii) resolving work health or safety issues at the workplace; or (iii) monitoring the health of workers; or (iv) monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking; or (v) providing information and training for workers” |
| (f) | “when carrying out any other activity prescribed by the regulations for the purposes of this section” |
In the Commonwealth Act, the penalty written under section 47(1) is “the tier C monetary penalty”. For the model WHS Act, Safe Work Australia gives tier C as up to $33,000 for an individual and $165,000 for a body corporate, as at 1 July 2026; each jurisdiction’s own Act sets its own amounts.
Who
Which workers, and their representatives
Safe Work Australia says the duty reaches beyond employees: it “includes employees, contractors, volunteers and anyone else who carries out work for the business or undertaking.” Where workers are represented by a health and safety representative, that representative must be involved, and a list of any representatives must be displayed in a central place that workers in the relevant work groups can reach.
How
What good consultation looks like to the regulators
- 1
Share the information
Relevant information about anything that might affect workers’ health and safety goes to the workers and their representatives. SafeWork NSW adds: allow appropriate time for consideration, discussion and response.
- 2
Give a real chance to speak
Workers get a reasonable opportunity to express their views and contribute to decision-making.
- 3
Take the views into account
The views are taken into account before decisions on health and safety matters are made. SafeWork NSW asks businesses to tell workers what was considered in making the decision, and why or how it was made.
- 4
Report the outcome
Workers are told the outcome of the consultation in a timely manner.
Consultation does not need to be elaborate. Safe Work Australia says: “For smaller workplaces with fewer workers and lower risks, it may be as simple as regularly talking directly to workers about health and safety.”
Safe Work Australia calls it good practice to keep records that show the consultation requirements were met, adding that records can help with risk management and make disputes less likely.
Safe Work Australia’s model Code of Practice on consultation, cooperation and coordination gives fuller guidance, with the same caution as its other model codes: it has legal effect in a jurisdiction only once approved there.
Other businesses
When another business shares the duty
Businesses must also consult, cooperate and coordinate with every other person who holds a WHS duty on the same matter, so far as is reasonably practicable. Safe Work Australia’s examples: businesses in the same supply chain, a labour hire agency and a host employer with a duty of care for the same workers, or businesses sharing the foyer of a multi-tenanted building. It is blunt about the trap: “WHS duties can’t be transferred and it’s not okay to just assume another duty holder will take responsibility for a health and safety issue”.
The officer
Where the officer comes in
Consultation is the business’s duty, but the officer’s due diligence reaches it. Paragraph (e) of section 27(5) is about the business having, and implementing, processes for complying with its duties, and the Act’s examples for that paragraph include “consulting with workers”. SafeWork NSW lists consultation with workers among its examples of processes for complying, and its psychosocial hazards code expects an officer to understand the business’s “requirement to consult affected workers”.
Step (f) of due diligence is verification, which SafeWork NSW describes as actively confirming through audits, inspections, reviews and follow-through. All six steps are set out in due diligence in six steps.