WHS consultation obligations: health and safety representatives, committees and sections 46 to 49

When consultation is legally required

Section 47 of the model Work Health and Safety Act requires a person conducting a business or undertaking to consult, so far as is reasonably practicable, with workers who carry out work for the business and who are, or are likely to be, directly affected by a matter relating to work health or safety. Section 49 then lists the six matters on which consultation is mandatory:

• (a) identifying hazards and assessing risks arising from the work carried out or to be carried out;
• (b) making decisions about ways to eliminate or minimise those risks;
• (c) making decisions about the adequacy of facilities for the welfare of workers;
• (d) proposing changes that may affect the health or safety of workers;
• (e) making decisions about the procedures for consulting workers, resolving WHS issues, monitoring worker health, monitoring workplace conditions, or providing information and training;
• (f) carrying out any other activity prescribed by the regulations.

Paragraph (f) is routinely dropped from summaries, including some regulator handbooks. Do not drop it — it is the hook for jurisdiction-specific triggers added by regulation. "Worker" is also broader than "employee": it captures contractors and their workers, labour hire staff, apprentices, trainees, work experience students and volunteers, so a process that reaches only the payroll misses most of the people the section covers on a typical construction or logistics site.

Failure to consult under section 47 attracts a tier C monetary penalty — $33,000 for an individual and $165,000 for a body corporate under the model Act as at 1 July 2026 (checked August 2026, from Safe Work Australia's maximum monetary penalties page). Adopting jurisdictions index differently, so name the jurisdiction with the figure. Victoria's Occupational Health and Safety Act 2004 imposes a comparable duty on a separate drafting basis and does not use the section numbers below.

What consultation has to involve

Section 48 sets the standard, and it is a four-part test. Consultation requires that relevant information is shared with workers; that workers are given a reasonable opportunity to express their views, raise WHS issues and contribute to the decision-making process; that their views are taken into account; and that they are advised of the outcome in a timely manner. Section 48(2) adds that where workers are represented by an HSR, the consultation must involve that representative.

Section 48 carries no penalty of its own — it defines the standard section 47 enforces. That matters for evidence. A toolbox talk announcing a decision already made fails limbs (b) and (c). An email inviting comment with no record of what was received and no communication of the outcome fails limbs (c) and (d). The artefact that discharges section 48 is a consultation record showing the information provided, the views received, what changed or why nothing changed, and when the outcome went back. An agreed consultation procedure must be followed under section 47(2), and cannot dilute this standard.

Consulting the other duty holders

Section 46 imposes a separate duty: where more than one person has a duty in relation to the same matter, each must, so far as is reasonably practicable, consult, co-operate and co-ordinate activities with all the other duty holders. Like section 47, it is a tier C offence. It governs shared workplaces — a principal contractor and its subcontractors, a landlord and its tenants, a labour hire provider and its host. Duties under the WHS Act are not transferable and can be held concurrently, so each duty holder must comply to the standard required even where another holds the same duty. The evidence is interface documentation: a written allocation of who controls which hazard, minuted co-ordination meetings and shared risk registers — an allocation that belongs in the contractor and supplier due diligence flow-down.

Electing health and safety representatives

A worker may ask the business to facilitate an election for one or more health and safety representatives under section 50. Section 52(2) then requires the business to take all reasonable steps to commence negotiations with workers within 14 days to determine the work groups the representatives will cover; if they do not commence in that period, section 54 treats it as a failure of negotiations and either party may ask the regulator to appoint an inspector. The request is not conditional on headcount, industry or risk profile — one worker triggers it.

Only a member of the relevant work group is eligible to be elected, under section 60. An HSR holds office for three years under section 64, ceasing earlier only on resignation, on leaving the work group, on disqualification, or on removal by a majority of the work group. Section 67 allows deputy representatives — the practical answer to leave and shift coverage.

What an HSR can do and what you must provide

Section 68 gives an HSR four functions — represent the work group, monitor the measures taken by the business, investigate complaints from work group members, and inquire into anything that appears to be a risk. To discharge them, an HSR may inspect the workplace after reasonable notice, and at any time without notice immediately after an incident or a situation involving serious risk from immediate or imminent exposure to a hazard; accompany an inspector; be present at a WHS interview with the worker's consent; request a health and safety committee; receive information about work group workers' health and safety; and request the assistance of any person. Section 68(3) denies access to a worker's personal or medical information without consent, and section 69 confines the powers to the HSR's own work group subject to narrow exceptions.

Section 70 sets the corresponding obligations: consult the HSR, confer whenever reasonably requested, allow access to information about hazards and about work group workers' health and safety, and provide resources, facilities and assistance. Section 70(2) requires such time as is reasonably necessary to exercise those powers, and section 70(3) requires that time to be with pay. Both are tier D offences — a point that belongs in the obligations register.

HSR training entitlements

Section 72 requires the business, on request, to allow a health and safety representative to attend a regulator-approved course that the representative is entitled under the regulations to attend and that is chosen by the representative. The business must allow the time off as soon as practicable and, in any case, within three months of the request, must pay the course fees and other reasonable costs, and must pay normal remuneration for that time. Where no agreement is reached in that period, either party may ask the regulator to appoint an inspector to decide. Failing to comply is a tier D offence.

The day counts sit in the regulations rather than the Act. Regulation 21 of the model WHS Regulations entitles a representative to an initial course of five days and one day's refresher training each year, the first refresher entitlement beginning a year after the initial training.

Training is not administrative housekeeping: it is a precondition to two of the representative's enforcement powers, and it appears in the statutory examples of an officer's due diligence obligations — see officer due diligence under section 27. Unfilled HSR training entitlements are among the fastest things an inspector can check. Victoria's separately drafted scheme does not use the model section numbering, so check WorkSafe Victoria's guidance directly.

Health and safety committees

Section 75 requires a business to establish a health and safety committee within two months of being asked by an HSR for a work group at the workplace, or by five or more workers there. Failing to do so is a tier F offence — $8,300 for an individual and $41,000 for a body corporate under the model Act as at 1 July 2026.

Composition is regulated. Under section 76, an HSR at the workplace is a member if they consent, and at least half the members must be workers who are not nominated by the business — the requirement most often breached, usually by filling the committee with managers and calling it consultation.

Section 77 gives the committee two functions: to facilitate co-operation between the business and workers in developing and carrying out measures to ensure workers' health and safety, and to assist in developing standards, rules and procedures. Section 78 requires it to meet at least once every three months, and at any reasonable time at the request of at least half its members. Section 79 obliges the business to allow members paid time to attend and to give them relevant information.

Issue resolution, PINs and cease-work directions

Where a WHS issue arises, section 81 requires the parties to make reasonable efforts to achieve a timely, final and effective resolution under an agreed procedure or, where there is none, the default procedure in regulation 23 of the model WHS Regulations. Regulation 22 sets the minimum content of an agreed procedure: it must include the regulation 23 steps, be in writing, and be communicated to all workers it applies to. New South Wales remade its WHS Regulation in 2025, so re-check NSW clause numbers against the current instrument.

A trained health and safety representative may issue a provisional improvement notice under section 90 where they reasonably believe a provision of the Act is being contravened. Three preconditions apply: the representative must first consult the person concerned; must have completed the prescribed initial training or an equivalent; and no inspector may already have issued, or decided not to issue, a notice on the same matter. The notice must give at least eight days to remedy the contravention, and contravening it is a tier B offence — $83,000 for an individual and $414,000 for a body corporate under the model Act as at 1 July 2026. Within seven days the recipient may ask the regulator under section 100 to appoint an inspector to review it; the notice is stayed while the review runs, and a confirmed PIN is then treated as an inspector's improvement notice.

Separately, section 84 permits a worker to cease or refuse work where they have a reasonable concern that carrying it out would expose them to a serious risk from immediate or imminent exposure to a hazard, and section 85 allows a trained HSR to direct a member of their work group to cease work on the same test — but only after consulting the business and attempting resolution, unless the risk is so serious and immediate that consulting first is not reasonable.

The consultation record this machinery produces is the primary evidence that hazards were identified with the people exposed to them, which is the test applied under the psychosocial hazards code of practice and the reason the psychosocial hazard assessment starts from worker input rather than management judgement.