Consultation duties: what Victorian employers must do before changing work

What must a Victorian employer consult employees about?

Under section 35 of the Occupational Health and Safety Act 2004 (Vic), an employer must, so far as is reasonably practicable, consult employees likely to be directly affected before making health and safety decisions — including changes to the workplace, plant, substances or how work is done. Consultation means sharing information, allowing views, and taking those views into account.

That last sentence is the part most factories get wrong. Consultation is not a briefing. WorkSafe Victoria puts it plainly: "Telling people about decisions afterwards isn't consultation." (WorkSafe Victoria, Consultation with health and safety representatives, reviewed 5 August 2022.)

I've spent close to thirty years walking Victorian shop floors, and the consultation duty is one of the most commonly breached — and most easily fixed — obligations I see. It costs nothing but a bit of discipline, and it is one of the first things an inspector probes when something has gone wrong.

When exactly does the duty to consult apply?

Section 35(1) of the OHS Act lists seven triggers. If you are doing any of these things, and employees are or are likely to be directly affected, you must consult.

#	Trigger under s.35(1)	What it looks like in a factory
a	Identifying or assessing hazards or risks	Running a risk assessment on a new guillotine
b	Deciding on measures to control risks	Choosing between a light curtain and a fixed guard
c	Deciding on the adequacy of employee welfare facilities	Relocating or reducing the crib room or toilets
d	Deciding on procedures for issue resolution, consultation, health monitoring, or information and training	Writing your issue resolution procedure or induction program
e	Determining membership of a health and safety committee	Setting up or restructuring your HSC
f	Proposing changes to the workplace, to plant/substances used, or to how work is performed	New layout, new solvent, new shift pattern, new production rate
g	Anything else prescribed by the regulations	As specified in the OHS Regulations

Source: OHS Act 2004 (Vic) s.35.

Item (f) is the sleeper. Bringing in a second-hand machine, switching to a cheaper degreaser, moving from two shifts to three, lifting line speed — all of these are proposed changes that may affect health or safety, and all of them attract the duty before you decide.

What are the three steps that make it real consultation?

Section 35(3) sets out exactly three things an employer must do:

1. Share the information about the matter with the affected employees.
2. Give them a reasonable opportunity to express their views about it.
3. Take those views into account before deciding.

WorkSafe's guidance adds practical texture: information should be given in a timely way so people have time to consider it, discuss it and seek advice; it should be in a form they can readily understand; and it should not be withheld simply because it is technical. Where employees come from culturally or linguistically diverse backgrounds, the employer should have a way of consulting them too.

Two points worth being clear on. First, agreement is not the required outcome — WorkSafe states that while the parties should aim to reach agreement, the responsibility to identify hazards and control risks ultimately rests with the employer. Second, if you and your employees have agreed a consultation procedure, s.35(5) requires you to follow it. An agreed procedure you ignore is worse than no procedure at all.

Where do health and safety representatives fit in?

If the affected employees are represented by an HSR, s.35(4) requires the consultation to involve that HSR — with or without the employees being involved directly. Regulation 21 of the Occupational Health and Safety Regulations 2017 (Vic) deals with how to involve HSRs in consultation.

WorkSafe's guidance is that, unless it is not reasonably practicable, the employer should give information to the HSR a reasonable time before giving it to employees. In practice that means the HSR sees the drawing, the safety data sheet or the proposed roster first — not at the same all-staff meeting as everyone else.

Following consultation, once a final decision is made, the employer should inform the HSR of that decision and explain the reasoning. That closing loop is the step I most often find missing, and it is the step that determines whether people bother raising anything next time.

Do you have to consult contractors and labour hire workers?

Yes, in both cases, and Victorian manufacturers regularly miss this.

• Independent contractors. Section 35(2) says that for the purposes of the consultation duty, "employee" includes an independent contractor engaged by the employer and any employees of that contractor — in relation to matters over which the employer has control. Your maintenance contractor rebuilding a conveyor is inside the duty.
• Labour hire. Section 35A requires labour hire providers and host employers who owe duties to a labour hire worker to consult, cooperate and coordinate activities, so far as is reasonably practicable, with others who owe a duty to the same worker. Contravening s.35A is an offence.

If you run agency labour on your floor, the practical test is simple: when you change something that affects those workers, does the provider hear about it, and do the workers get consulted the same way your direct employees do?

What happens if you don't consult?

An employer who contravenes s.35 is guilty of an offence. The penalty in the Act is 180 penalty units for a natural person and 900 penalty units for a body corporate.

From 1 July 2026 to 30 June 2027 the value of a Victorian penalty unit is $209.10 (Department of Justice and Community Safety, Penalties and values, reviewed 23 July 2026). On those figures the maximum exposure is:

Duty holder	Penalty units	Maximum (2026–27)
Natural person	180	$37,638
Body corporate	900	$188,190

Penalties are the blunt end of it. The more common consequence is an unresolved issue that escalates. Under the OHS Act, where a health and safety issue arises the employer or its representative and the affected employees or their HSR must attempt to resolve it in accordance with an agreed procedure — and if there is no agreed procedure, the prescribed procedure in Part 2.2 of the OHS Regulations 2017 applies. If the issue is not resolved within a reasonable time, any party may ask WorkSafe to send an inspector.

WorkSafe's own guidance indicates a reasonable time should not normally exceed about one week for relatively minor matters, and two to three weeks for more complex concerns. That is a much shorter clock than most managers assume.

How do you prove you actually consulted?

There is no prescribed consultation record in the Act. But the burden of demonstrating what you did lands on you, and memory is a poor witness two years after an incident. The record I recommend to every manufacturer I work with is four lines per consultation:

1. What was proposed — one sentence describing the change, hazard or decision.
2. Who was consulted and when — names, HSR involvement, dates, and the date information was provided.
3. What was raised — the views actually expressed, including the ones you disagreed with.
4. What was decided and why — the outcome, the reasoning, and how it was communicated back.

Attach it to the risk assessment, the change request or the toolbox talk record. Four lines, kept consistently, is the difference between "we discussed it" and evidence.

A practical rhythm that works in a 20–100 person factory: a standing consultation item at the weekly production meeting for anything changing on the floor; the HSR briefed before the crew; and a short written note filed the same day. It takes ten minutes a week.

What I see go wrong most often

Three patterns, all fixable:

• Consulting after the purchase order. The machine is on the water before anyone asks the operators about access, guarding or noise. The duty attaches to the proposal, not the commissioning.
• Consulting the wrong people. Management consults the supervisor, not the operators who are directly affected. Section 35(1) is framed around who is directly affected, not who is convenient.
• No feedback loop. Views are collected and never answered. People stop contributing, hazards stop being reported, and the first you hear of a problem is when someone is hurt.

If you want an outside set of eyes on how consultation actually runs at your site — what's documented, what's habit, and what would stand up to an inspector's questions — book a site assessment and we'll walk it with you. Our clients have a safety manager on call rather than a form to fill in.

Frequently asked questions

Do I have to consult if only one employee is affected? Yes. Section 35(1) applies to employees who are or are likely to be directly affected — there is no minimum number. If one operator is the only person running the machine you're modifying, that operator is who you consult.

Do we need a written consultation procedure? The Act does not require you to have one. But s.35(5) says that if you and your employees have agreed procedures for consultation, the consultation must be undertaken in accordance with them. Separately, deciding on your consultation procedure is itself something you must consult about under s.35(1)(d). Most Victorian manufacturers are better off with a short written procedure that is genuinely agreed and actually followed.

Is consultation the same as issue resolution? No, though they overlap. Consultation is the forward-looking duty under s.35 — involving people before decisions are made. Issue resolution is what happens once a health and safety issue has arisen, and follows either your agreed procedure or the prescribed procedure in Part 2.2 of the OHS Regulations 2017. Deciding your issue resolution procedure is one of the matters you must consult about.

This article is general information for Victorian manufacturers, not legal advice. Last updated: 17 August 2026.