29 Oct 2015

Groundhog Day for Qld WHS entry permit holders and HSE reps - so review your right of entry protocols

by Shae McCartney, Joanne Stevenson

Queensland businesses should review their right of entry protocols and update them to ensure they reflect legislative requirements.

The Labor Government in Queensland has succeeded in its first wave of industrial relations reforms, restoring the right of:

  • WHS permit holders to enter a workplace for suspected safety breaches, without notice; and
  • elected health and safety representative to direct workers to cease unsafe work.

The reforms in the Work Health and Safety and Other Legislation Amendment Bill 2015 will commence on a date to be fixed by proclamation, but Queensland employers should be getting ready for them now. Employers take steps to ensure they have in place processes to guard against misuse of the provisions by unions seeking to disrupt sites by alleging unparticularised and unsubstantiated safety concerns.

How the restored right of entry will work

The new laws essentially provide permit holders the immediate right of entry to enter a workplace where there are suspected safety concerns, as opposed to 24 hours' notice. WHS entry permit holders need only give notice as soon as is reasonably practicable after entering the workplace.

The laws also removed the penalty for failure to give the required notice of entry to inquire into suspected contraventions of the Work Health and Safety Act 2011 (Qld), inspect employee records or information and to consult and advise workers and reduced the penalty for contravening WHS entry permit conditions from 200 to 100 penalty units.

Stop work directions

Health and safety representatives also have the right to 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. However before doing so, the representative must first consult about the matter with the person conducting the business or undertaking (unless the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction).

Electrical safety committees

The Electrical Safety Commissioner, the Electrical Safety Education Committee and the Electrical Equipment Committee have also been reinstated.

Getting ready for the revived rights of entry

Your business can prepare now, so that you can proactively manage disruptions caused by an abuse of the rights under the new laws.

The first step is to review your right of entry protocols and update them to ensure they reflect legislative requirements. This may include preparing to seek the assistance of the regulator if there is a dispute over a right of entry dispute, for example, if the WHS entry permit holder did not reasonably suspect a contravention before entering the workplace.

You should also:

  • commence consultation with health and safety representatives in relation to the changes;
  • consider whether training in dealing with right of entry issues is required; and
  • ensure that workers are aware of the HSR's right to direct workers to cease unsafe work and their obligation to comply with such direction.

If you would like further information or assistance in updating or developing your right of entry protocols please contact us.

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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.