Publications / Work Health and Safety
WHO SHOULD READ THIS
- Managers and work health and safety professionals.
THINGS YOU NEED TO KNOW
- Union officials and persons assisting HSRs will regain powers to allow entry to workplaces for safety matters without notice, and HSRs will again be able to direct unsafe work to stop.
WHAT YOU NEED TO DO
- Review procedures for allowing access for work health and safety reasons, and to ensure HSR powers are recognised.
The Queensland Government has passed legislation that will reverse major changes made by the former LNP Government, and in doing so, has used a legislative Delorean to take right of entry requirements for work health and safety (WHS) issues ‘back to the future’.
In 2014, the LNP Government passed changes to right of entry requirements in the Work Health and Safety Act 2011 (Qld) to, in part, ensure notice requirements for entry were consistent with those under the Fair Work Act 2009 (Cth). The changes included provisions to:
- remove the right of elected health and safety representatives (HSRs) to direct workers to cease unsafe work
- require HSRs to give 24 hours' notice before a person – such as a technical expert or a union official – could lawfully enter the workplace to assist them
- require WHS entry permit holders to give 24 hours' notice before lawfully entering a site to investigate suspected safety contraventions, and
- increase the maximum fine for permit holders who breached the entry provisions to $20,000.
The rationale behind the LNP Government’s changes were to ensure that WHS contraventions were reported to the regulator (Workplace Health and Safety Queensland) and to stop union officials using their right of entry powers as ‘industrial weapons’ as then Attorney-General Jarrod Bleijie said at the time.
Unsurprisingly, with the election of the Labor Government the changes made by the previous Government were subject to review.
On 23 April 2015 the current Industrial Relations Minister Curtis Pitt announced there would be comprehensive reforms to industrial relations laws. On 7 May 2015 the Work Health and Safety and Other Legislation Amendment Bill 2015 (Bill) was introduced to Parliament and referred to the Finance and Administration Committee (Committee), who tabled their report on 6 July 2015.
The Committee’s report was divided along party lines, with members from the Government and the Opposition failing to reach agreement on the reversal of the LNP Government’s changes, save for a consensus view that the increased penalty for breaches of right of entry obligations was not a deterrent. The Government members of the Committee favoured revoking permits in these instances.
The Bill ultimately passed Queensland Parliament on 14 October 2015. Once proclaimed, the changes will take Queensland’s right of entry laws back to the position that existed under the original harmonised legislation, meaning that union right of entry permit holders need not give any notice when exercising their powers to investigate WHS issues.
The penalty for failing to meet entry requirements will also be halved, and the other changes made by the LNP Government as listed earlier will be reversed. In addition, the Bill will have the effect of recreating the role of the Electrical Safety Commissioner and the Electrical Education and Electrical Equipment Committees.
However, the Government did not succeed in having all of its desired changes made. The Katter Australia Party’s Shane Knuth and Robert Katter, along with Independent Speaker Peter Wellington, sided with the Opposition to defeat the proposed change to require notification to the regulator when a person was absent from work for more than four days as a result of a work related illness or injury.
While there are clearly numerous important changes that will come into effect once the Bill is proclaimed, there will be a need for employers to review and update right of entry processes for WHS issues to ensure compliance with the statutory requirements, and to ensure the reinstated HSR powers are recognised.
Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.