On Thursday 22 October 2015, the Work Health and Safety and Other Legislation Amendment Act 2015 (Qld) (amending Act) received royal assent and was passed into law. Relevantly, the amending Act serves to unwind the previous Newman government’s amendments to the Work Health and Safety Act 2011 (Qld) which had introduced a requirement for 24 hours written notice to be given to exercise a right of entry for suspected health and safety contraventions. The previous amendments were prompted by reports of widespread abuse of the health and safety entry powers to circumvent notice requirements applicable to other forms of rights of entry, particularly in the construction industry. With the unwinding of those provisions, union officials will once again have a pathway onto a worksite without the need for advance notice.
Union right of entry is predominantly governed by Part 3-4 of the Federal Fair Work Act 2009 (Cth) (FW Act). In brief, three types of entry are available to permit holders:
- entry to investigate suspected contravention of an Act or an industrial instrument which affects a union member;
- entry to hold discussions with workers who are entitled to be members of the union; and
- entry under State Occupational Health and Safety (State OHS) laws.
Each of the first two types of entry requires written notice of not less than 24 hours. The FW Act similarly imposes a requirement for 24 hours written notice for entry under a State OHS law where the entry is to inspect or access any employee record, but is silent on notice requirements for other forms of entry under State OHS laws. As such, it is left for the State to determine.
In Queensland, the Work Health and Safety Act 2011 (Qld) provides a union with a right of entry for the purposes of inquiring into a suspected contravention which affects a worker who is entitled to be a member of the union. The permit holder must ‘reasonably suspect’ before entering the workplace that the contravention has occurred or is occurring. Since April 2014, entry on this ground has been subject to at least 24 hours written notice, consistent with the entry requirements of the FW Act.
Effect of the amendments
The amending Act removes the requirement for advanced written notice of entry to investigate suspected safety contraventions. Instead, the notice of entry is required to be given ‘as soon as is reasonably practicable after entering a workplace’ unless the notice would defeat the purpose of the entry or cause unreasonable delay where there is urgency. While it may appear otiose, the notice of entry remains important as it must particularise the suspected safety contraventions. It is also important to appreciate that any request to inspect or access records remains subject to a requirement of 24 hours written notice, even where such documents relate to suspected safety contraventions, as does an entry to consult with workers and advise regarding safety generally.
Workplace health and safety representatives
The amending Act also reinstates the power of a workplace health and safety representative at a worksite to direct the cessation of work. The representative must have a ‘reasonable concern’ that to perform the work would expose the worker to a serious risk of injury from an ‘immediate or imminent exposure to a hazard’. Prior consultation with the business is required, unless the risk is so serious and urgent so as to make consultation unreasonable. The amendments also reinstate a workplace health and safety representative’s right to request the assistance of any person whenever necessary in the exercise of their power, without advance written notice.
With the reversal of previous reforms aimed at reducing perceived abuses of entry rights, employers face a heightened risk that health and safety complaints may be used to gain entry to a worksite without notice in order to agitate industrial disputes or increase union influence. Nevertheless, the legislative regime continues to impose important constraints. It is both legally and commercially important that employers are vigilant in ensuring appropriate notices of entry are given on each occasion, and that the powers are exercised in accordance with the legislative requirements.