Proposed amendments to the Work Health and Safety Act 2011 (Qld) (WHS Act) to restore immediate right of entry powers to inquire into suspected contraventions of the WHS Act
On 7 May 2015, the Queensland Government introduced the Work Health and Safety and Other Legislation Amendment Bill 2015 (Bill). The Bill was subsequently referred to the Finance and Administration Committee (Committee) which received 32 submissions and consulted numerous stakeholders during the course of its inquiry into the Bill. The Committee’s report into the Bill was tabled earlier this month (July 2015).
In the following Alert, Partner Andrew Tobin and Senior Associate Troy Wild provide an outline of the report.
The Committee failed to reach agreement on major aspects of the Bill and have made only one recommendation. Referring to an amendment requiring employers to notify the safety regulator if a worker is absent for more than four days because of a workplace injury, the Committee recommended that the Department of Justice and Attorney-General improve ease of access and reporting systems for employers and develop education and communication strategies to ensure employers are both aware of the requirements and the reasons for them.
The Committee’s report says Parliament should consider the views of both Government and Opposition members during the Bill's second reading debate. The report can be viewed at the following link.
The Bill follows, and is in line with, Queensland Industrial Relations Minister Curtis Pitt’s announcement on 23 April 2015 to introduce comprehensive reforms to the State’s industrial relations laws.
The pending reforms are in accordance with the Labor party's election campaign promise to reverse the previous LNP Government's amendments to the WHS Act in 2014, which followed concerns raised by the construction industry about the misuse of right of entry powers by union officials.
The Palaszczuk Government’s proposed reforms include:
- restoring the immediate right of entry provisions for work health and safety (WHS) permit holders where there are suspected safety concerns;
- restoring the right of health and safety representatives (HSRs) to direct unsafe work to cease, and remove the requirement for HSRs to give 24 hours' notice before a person can enter the site to assist them; and
- halving the maximum fine for WHS entry permit holders who breach their obligations from 200 penalty units to 100 units.
Under the Fair Work Act 2009 (Cth), however, a permit holder exercising a State or Territory OHS right (which includes the WHS Act) is still required to provide at least 24 hours notice to inspect or otherwise access an employee record of an employee.
According to Mr Pitt, the reforms "will ensure the hard fought and won working rights of Queenslanders lost under the previous government are returned".
Mr Pitt said the Government's industrial relations reforms also include:
- introducing protections against the contracting out of Government services;
- re-establishing the Electrical Safety Commission;
- returning Labour Day to May from 2016;
- improving employment security for public servants; and
- restoring the independence of the Queensland Industrial Relations Commission.
As part of the reforms, an Industrial Relations Reference Group including academics, government and union representatives, will also be established to undertake a wider review of the State’s industrial relations laws. This review will make recommendations to the Government for legislative reform for introduction in the first half of 2016.
Implications for employers
Should the Palaszczuk Government's amendments to the right of entry provisions be implemented as anticipated:
- some employers will almost certainly see an increase in the number of workplace entries by union officials – without prior notice;
- employers may be faced with increased compliance costs, including in terms of managing entries and responding to allegations of suspected safety contraventions;
- more than ever, employers will need to ensure compliance with their numerous obligations under the WHS Act and be mindful that workplaces and systems of work are open to investigation by union officials - without notice; and
- employers will need to ensure their WHS policies and procedures are up to date and meet WHS obligations – including ensuring that business operators, managers, workers, contractors and persons visiting the workplace are familiar with an employer’s WHS policies and procedures.