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07 Apr 2014

Right of entry for safety reasons curtailed in Queensland

Unions in Queensland will have reduced opportunities to influence safety and health issues through rights of entry for safety reasons, following the passage of the Work Health and Safety and Other Legislation Amendment Bill 2014. Safety and health representatives also have diminished powers to stop work.

These changes to the Work Health and Safety Act 2011 (Qld) are expected to commence soon, although no date has yet been set.

Safety and health representatives lose their powers to stop work

Currently a health and safety representatives may direct a worker in their work group to cease work "if the representative has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard".

In practice, this leads to disputes over whether there is a "serious risk" from "imminent exposure", and a potential for misuse.

The Bill has removed this power and the main enforcement avenues for safety and health representatives will now be consultation, or the issue of provisional improvement notices (PINs).

Workers individually still however have the individual right to cease work if they have a reasonable concern that they will be exposed to a serious risk to their health or safety emanating from an imminent exposure to a hazard.

Union rights of entry

Holders of WHS entry permit holders will now have to give notice at least 24 hours but not more than 14 days before entering a workplace, not "as soon as is reasonably practicable after entering a workplace". The notice would need to be given during usual working hours at the workplace.

The notice requirement for entering a workplace for the purpose of consulting and advising workers on WHS issues has been altered too. Notice of entry must now be given at least 24 hours in advance not only to the employing business, but to the person with management or control of the workplace as well.

Implications for Queensland businesses

Businesses now need to make a decision whether they intend to take up the opportunity these changes present. Unless protocols for rights of entry are changed in business systems, in practice it is likely that many rights of entry will continue "by consent".

As we noted when the Bill was first introduced, this change presents businesses with an opportunity to build stronger direct relationships with their workforces through consultation in relation to safety and health issues. However, to do this, businesses will need to be prepared to hold unions and safety and health representatives to their restricted powers, and to ensure their own incident investigation and dispute resolution systems present a reliable alternative when issues first arise.

Further, the reduction in union and safety and health representative powers presents an enhanced likelihood of early regulatory intervention when issues arise. It has been reported that Work Health and Safety Queensland is already preparing for increased demands on resources to respond to issues. For this reason, businesses should refresh their process and understanding of rights and obligations to ensure appropriate interactions with regulators.

More specifically, these changes should now prompt employers to:

  • review right of entry protocols and consider whether they should hold unions to the limited right of entry powers. This should ideally happen upon commencement of the legislation as it will be harder to implement such a change if not implemented now;
  • review safety and health consultation processes and issue resolution processes to ensure that businesses can retain control over safety issues so far as possible;
  • review process and understanding of rights and obligations to ensure businesses deal appropriately with responses to regulators intervention in business issues and do not make inadvertent admissions or attract additional attention during such liaison;
  • consult, co-ordinate and cooperate with any other persons conducting a business or undertaking (PCBUs) at a relevant workplace;
  • undertake frontline management training in dealing with these issues to ensure effective implementation of the changes.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.