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OCCUPATIONAL HEALTH AND SAFETY ACT 2004 - SECT 35

Duty of employers to consult with employees

    (1)     When doing any of the following things, an employer must so far as is reasonably practicable consult in accordance with this section with the employees of the employer who are or are likely to be directly affected by the employer doing that thing—

        (a)     identifying or assessing hazards or risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer;

        (b)     making decisions about the measures to be taken to control risks to health or safety at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer;

        (c)     making decisions about the adequacy of facilities for the welfare of employees of the employer;

        (d)     making decisions about the procedures for any of the following—

              (i)     resolving health or safety issues at a workplace under the employer's management and control or arising from the conduct of the undertaking of the employer;

              (ii)     consulting with employees of the employer in accordance with this section;

              (iii)     monitoring the health of employees of the employer and the conditions at any workplace under the employer's management and control;

              (iv)     providing information and training to employees of the employer;

        (e)     determining the membership of any health and safety committee;

        (f)     proposing changes, that may affect the health or safety of employees of the employer, to any of the following—

              (i)     a workplace under the employer's management and control;

              (ii)     the plant, substances or other things used at such a workplace;

              (iii)     the conduct of the work performed at such a workplace;

        (g)     any other thing prescribed by the regulations for the purposes of this subsection.

    (2)     For the purposes of subsection (1)—

        (a)     a reference to an employee of an employer includes a reference to an independent contractor engaged by the employer and any employees of the independent contractor; and

        (b)     the duties of an employer under that subsection extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.

    (3)     An employer who is required to consult with employees under subsection (1) must do so by—

        (a)     sharing with the employees information about the matter on which the employer is required to consult; and

        (b)     giving the employees a reasonable opportunity to express their views about the matter; and

        (c)     taking into account those views.

    (4)     If the employees are represented by a health and safety representative, the consultation must involve that representative (with or without the involvement of the employees directly).

    (5)     Subject to subsections (3) and (4), if the employer and the employees have agreed to procedures for undertaking consultations, the consultation must be undertaken in accordance with those procedures.

    (6)     An employer who contravenes this section is guilty of an offence.

Penalty:     In the case of a natural person, 180 penalty units;

In the case of a body corporate, 900 penalty units.

S. 36 repealed by No. 49/2018 s. 19.

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Part 5—Duties relating to incidents



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