Crackdown on unions using safety as a weapon - Proposed changes to Queensland WHS Act

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25 February 2014

The Queensland Government introduced the Work Health and Safety and Other Legislation Amendment Bill 2014 (Bill) into State Parliament on 13 February 2014.

The Bill includes proposed amendments to the Work Health and Safety Act 2011 (Qld) (WHS Act), which will restrict union right of entry processes and remove some powers of health and safety representatives (HSRs).

Background

During a Queensland Government review of the national model WHS laws (Review), the construction industry raised concerns about the misuse of entry powers by union officials and the inconsistencies in entry notification requirements that exist between states.

In response, State Attorney-General Jarrod Bleijie announced in October 2013 that amendments would be made to the right of entry provisions in the WHS Act to stop unions using safety issues as an ‘industrial weapon’.

The changes would prevent unions using “loopholes in the system to force their way onto worksites and lock workers out”, Attorney-General Bleijie said. Instead, the safety regulator (Workplace Health and Safety Queensland (WHSQ)) would become the first point of contact for alleged safety breaches.

Amendments to right of entry and HSR powers

Once enacted, the amendments to the WHS Act proposed in the Bill will mean that:

  • WHS entry permit holders must give at least 24 hours’ notice (but not more than 14 days’ notice) before they can enter a workplace to inquire into a suspected contravention;
  • A HSR who requests assistance from any person must give at least 24 hours’ (but not more than 14 days’) notice before that person can have access to the workplace;
  • HSRs will no longer have the power to direct workers to cease unsafe work;
  • maximum penalties for failure to comply with WHS entry permit conditions will be doubled to $20,000; and
  • penalties of up to $20,000 will also apply for failure to comply with the entry notification requirements.

Other changes

During the Review, businesses also raised concerns about the compliance costs and heavy administrative burden they were faced with under the WHS Act. Accordingly, the Bill:

  • removes the requirement for a person conducting a business or undertaking to provide a list of HSRs to WHSQ; and
  • allows for codes of practice adopted in Queensland to be varied or revoked without requiring national consultation.

Finally, the Bill proposes to increase the maximum penalties that can be prescribed for offences against the Electrical Safety Regulation 2002 (Qld) from $4,000 to $33,000.

Interaction with Fair Work Act 2009 (Cth)

The Bill’s proposed changes to Queensland right of entry notice requirements is also intended to align the WHS Act with relevant provisions of the Fair Work Act 2009 (Cth) (FW Act), which oblige a permit-holder seeking to exercise entry rights for WHS purposes to provide a minimum of 24 hours’ notice.

However, this may not all be in employers’ favour: a recent decision of the Federal Court of Australia confirmed that unions exercising entry rights under State and Territory WHS laws are not only subject to the FW Act’s requirements for right of entry – but also its other provisions, including the ability to seek orders to address employers’ alleged hindering or obstruction of entry rights. See Ramsay v Sunbuild Pty Ltd [2014] FCA 54 (12 February 2014).

What this means for employers

The intention of the proposed amendments to the WHS Act is to ensure that unions are no longer able to cause disruptions on Queensland worksites under the guise of investigating safety breaches.

Once the Bill is passed by State Parliament and commences operation, employers will also benefit from a reduced compliance burden in relation to some aspects of their WHS management systems.

Employers based in Queensland or with operations in that State should review existing policies and practices relating to union right of entry and HSRs, in anticipation of the changes to the WHS Act taking effect.

The Bill has been referred to the Parliamentary Finance and Administration Committee, with submissions due on 28 February and a report by 25 March 2014. It is likely that the amendments to the WHS Act will commence soon after that date.


The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


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