Changes to the Work Health and Safety Act 2011 (Qld) (WHS Act) that were passed by the Queensland Parliament in April 2014 took effect on 16 May 2014. The changes represent a step in the right direction for employers, as they follow the Queensland Government’s review assessing the impact and costs of work health and safety laws, and appear to be targeted at alleviating some of the compliance costs burdening employers. The big ticket items relate to tightening union right of entry for safety reasons and restricting the powers of health and safety representatives (HSRs).
These amendments are the latest in a series of changes affecting the industrial relations landscape in Queensland.
In summary, the Work Health and Safety and Other Legislation Amendment Act 2014 (Qld) amends the WHS Act to:
- In the case of entry to investigate a suspected contravention, require WHS Act permit holders to give notice of a proposed entry and the suspected contravention before entering a workplace. The notice must be given at least 24 hours, but not more than 14 days, prior to entry. This is a significant departure from the current position which requires permit holders to give notice of the entry and the suspected contravention as soon as is reasonably practicable after entering a workplace;
- In the case of entry to consult and advise workers, require WHS Act permit holders to give notice to the person with management or control of the workplace, as well as the person conducting a business of undertaking;
- Introduce penalties for failing to comply with entry notification requirements and increase penalties for contravening entry permit conditions;
- Remove the power of HSRs to direct workers to cease unsafe work;
- Require HSRs to give notice of least 24 hours, but not more than 14 days, of the proposed entry of a person who will provide them with assistance (for example, a union official);
- Remove the obligation of a person conducting a business or undertaking to provide up-to-date lists of HSRs to the regulator; and
- Remove the requirement for consultation in relation to codes of practice that are being approved, varied or revoked.
The changes also amend the Electrical Safety Act 2002 (Qld) to increase penalties for offences under theElectrical Safety Regulation 2013 (Qld).
Requiring at least 24 hours’ notice of entry to investigate suspected safety contraventions will curb unions from entering workplaces at will while merely citing ‘safety concerns’. This change, in conjunction with the requirement for HSRs to give at least 24 hours’ notice of the proposed entry of a person to provide assistance and the removal of HSRs power to direct workers to cease work, will allow businesses to resolve safety issues without the need for immediate union intervention, and so reducing unnecessary business disruption and costs.
Businesses should ensure that ‘on-the-ground’ employees who deal with exercises of right of entry are aware of and understand the changes. The changes can also be used as an opportunity to build stronger relationships with the workforce by enhancing engagement in relation to the resolution of safety concerns at the employer level, as opposed to unions dictating the response.
Workers’ compensation changes
Significant changes were also introduced to the workers’ compensation regime in Queensland on 29 October 2013.
As well as replacing Q-COMP with the new Workers’ Compensation Regulator, the amendments aligned the assessment of impairment between statutory and common law provisions of the scheme, with the introduction of the concept of a degree of permanent impairment (DPI). In a move that attracted considerable attention, the changes also introduced a minimum 5% DPI threshold to access damages at common law. The most significant amendment for employers however, relates to disclosure in the pre-employment setting.
If requested to do so by a prospective employer, prospective employees are now required to disclose any pre-existing injury or medical condition that they suspect, or ought reasonably to suspect, would be aggravated by performing the duties of the position. If the request by the prospective employer is made in accordance with the legislation, an employee will not be entitled to compensation or to seek damages for any event that aggravates the pre-existing injury or medical condition if they have a pre-existing injury or medical condition and have made a false or misleading disclosure, which includes non-disclosure, in relation to it.
There is also a new entitlement for prospective employers to apply to the Workers’ Compensation Regulator for a copy of the prospective employee’s claims history summary.
These amendments are potentially of great benefit to employers, as they enable employers to more fully and effectively consider whether an applicant is suitable for a particular position. In doing so, the employer may potentially reduce the likelihood of the prospective employee suffering an injury or exacerbating an existing injury. In this way, disclosure is in the interests of both the employer and the prospective employee.
Having said this, employers should exercise caution in utilising this new power without careful consideration, as there are a host of statutory protections for employees that continue to exist despite the reforms and which could have a bearing on the use of the new power.
Businesses in the building and construction industry also need to be aware of the respective Commonwealth and State building codes that exist.
The Commonwealth Building Code 2013 (Commonwealth Code), which was introduced by the former Federal Government, came into effect on 1 February 2013. It applies to building contractors and building industry participants, as well as their subcontractors, that have submitted an expression of interest (EOI) or tender for Commonwealth funded construction-related work. While one of the Commonwealth Code’s stated aims is to establish higher standards of workplace relations behaviour, the Code has been criticized as an attempt to block tougher State codes which target a number of practices and provisions frequently pursued by industry unions.
The current Federal Government published a new draft Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (New Commonwealth Code) in mid-April 2014, with one of the stated purposes being to restore the rule of law and fairness to Australia’s construction sector. The Government has said it will introduce the New Commonwealth Code once it secures passage of the Building and Construction Industry (Improving Productivity) Bill 2014, which if it is to occur, is likely to be only after 1 July 2014, when the composition of the Senate changes. The New Commonwealth Code is intended to apply retrospectively to any enterprise agreements made after 23 April 2014.
Queensland, like some of the other States, has also attempted to encourage best practice within the construction industry at a State level in setting minimum standards for publicly funded building and construction work requested by the Queensland Government through tender or EOI exceeding $2 million in value. The new Implementation Guidelines to the Queensland Code of Practice for the Building and Construction Industry (Queensland Code) took effect on 1 July 2013 and address issues such as workplace arrangements, project agreements, tendering, dispute settlement, industrial action and strike pay, workplace health and safety and rehabilitation, freedom of association and right of entry.
Moving forward, businesses must ensure that their agreements with contractors and subcontractors, as well as employment agreements are compliant with the Commonwealth and Queensland codes. While breach of the codes will not attract penalties, they do have ‘teeth’, namely that failure to comply, can result in sanctions, including being precluded from tendering for Government-funded work