Health and Safety - Duty to consult, co-operate and co-ordinate

Friday 15 September, 2017

Duty to consult, co-operate and co-ordinate

The Health and Safety at Work Act 2015 (‘HSWA’) imposes a new duty on local authorities, as “persons conducting a business or undertaking” (PCBUs), to consult, co-operate and co-ordinate activities, so far as is reasonably practicable, with all other PCBUs who share health and safety responsibilities in relation to particular work.

Where the health and safety duties of different PCBUs overlap, the PCBUs should make reasonable arrangements and co-ordinate responsibilities with each other in order to fulfil their duties.  The PCBUs should also monitor each other to ensure everyone is doing what has been agreed.

This duty is aimed at encouraging engagement and communication between parties and ensuring PCBUs work together to implement the required health and safety measures in an effective and consistent manner.

The duty to consult, co-operate and co-ordinate has significance to local authorities as it is relevant to situations local authorities encounter on a regular basis, such as worksites that have multiple parties undertaking work simultaneously.

Local authorities do not necessarily need to comply with this duty directly; they can instruct other parties, such as contractors, to carry out the necessary steps in order to comply with the duty.  However, as the primary duty holder, local authorities will need to be satisfied that the duty is being complied with.

It is also important to note that each PCBU is responsible for discharging its own health and safety duties and cannot use consultation as a method of avoiding or minimising its obligations under HSWA.

Compliance with the duty to consult, co-operate and co-ordinate

Guidelines published in 2016 as to the position Worksafe intends to take in regulating the duty to consult, co-operate and co-ordinate indicate that the focus, at least initially, will be on collaboration between PCBUs at a broad level, demonstrated by actions such as defining responsibilities for health and safety related tasks and planning ahead.

In order to comply with the duty to consult, co-operate and co-ordinate, Worksafe expects local authorities to be able to explain the steps they have taken to consult, co-operate and co-ordinate activities with other PCBUs and the arrangements they have put in place to monitor and control risks. 

Worksafe will also expect local authorities to employ sound contractor management processes, including choosing competent contractors, diligent planning and monitoring, and post-contract reviews.

In practical terms, while there are no precise rules, local authorities will likely be successful in meeting their duty to consult, co-operate, and co-ordinate if they:

• Plan ahead by thinking about every stage of the work and recognising how the work could affect other PCBUs and the public;
• Identify the health and safety risks that need managing;
• Consult other PCBUs to decide which PCBU or PCBUs are best placed to control each risk;
• Consult other PCBUs to agree how to control each risk;
• Clearly define roles, responsibilities and actions, and explain these so everyone knows what to expect; and
• Continue to communicate, co-operate, and co-ordinate, and carry out reasonable and proportionate monitoring, to make sure good health and safety is maintained.

Offence to fail to consult, co-operate and co-ordinate

It is an offence for a PCBU to fail to consult, co-operate and co-ordinate activities with all other PCBUs who have a duty in relation to the same matter, so far as it is reasonably practicable.  The maximum penalty for an individual who commits this offence is a fine of $10,000 and for a company or other entity a fine of $100,000.

Please contact Mark Hammond if you want to learn more about the issues discussed in this article.