Australia: Safety and industrial relations: managing entry for safety in an industrial world

Key Points:

Changes to the Work Health and Safety Act will give Queensland businesses an enhanced opportunity to test the use of right of entry for safety reasons.

The Queensland Parliament is currently considering changes to the work health and safety regime which will significantly tighten union rights of entry for safety purposes and restrict rights of safety and health representatives to stop work being conducted on site.

The Work Health and Safety and Other Legislation Amendment Bill 2014 was introduced into Parliament on 13 February 2014, and represents the first of a series of anticipated changes impacting work health and safety laws in Queensland.

During consultation with the Government, the construction industry had raised serious ongoing concerns about the misuse of right of entry provisions by union officials and the impact and disruption that this had on business. Other industries also reported confusion.

According to Attorney General and Minister for Justice JP Bleijie, the concerns of industry were confirmed by review of the complaints received by the work health and safety regulator about union right of entry disputes. He said when introducing the Bill, "Most of these disputes related to entry without prior notice to inquire into a suspected contravention under the Work Health and Safety Act. Inspectors found that overall none of the issues identified were considered to be an immediate or imminent risk to workers or others at the workplace".

Safety and health representatives powers to stop work

Under the Work Health and Safety Act 2011 (Qld) (WHS Act) health and safety representatives (HSRs) currently have the power to direct that unsafe work cease.

A HSR 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". This power supplements other powers of HSRs including the ability to issue provisional improvement notices (PINs) for contraventions of the WHS Act.

In practice the question of whether or not a risk is one giving rise to a "serious risk" from "imminent exposure" is often at the heart of a dispute. HSRs and unions have been able to raise an issue and stop work immediately with what appears to be limited evidence in support of their view to establish what is a "reasonable concern". In response, businesses are forced put together a scientific case to demonstrate the adequacy of their operational controls in such a way as to satisfy a regulator or a court that work should not cease. This can leave a business legacy of disruption and associated cost. When safety concerns are raised in conjunction with other industrial issues, the potential for misuse of these HSR powers exists.

The Bill would remove these powers of HSRs, leaving their main enforcement avenues as consultation or the issue of a PIN. In theory the issue of a PIN allows HSRs a powerful way to control valid safety concerns: it is an offence not to comply. However they do not offer HSRs the same immediate control over operations, because a PIN must allow the recipient a timeframe of eight days within which to comply. This means that any HSR wanting an immediate response in case of dispute will need to either engage with the business through its own consultation and risk systems, or call upon the safety regulator to intervene.

This does not mean workers have no protection where they are exposed to imminent risk. Under the WHS Act workers still individually have the 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. Similarly, under the Fair Work Act 2009 (Cth) it will still not constitute unlawful industrial action for workers to cease work under those conditions.

Union rights of entry

The Bill introduces notice obligations on WHS entry permit holders that have not previously been in place in Queensland.

Under the WHS Act currently, permit holders may enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act and exercising significant powers of inspection and inquiry after entry. Currently, a permit holder must give notice to the relevant employing business and to the person with management or control of the workplace "as soon as is reasonably practicable after entering a workplace".

The Bill would require permit holders to give notice before entering a workplace for those purposes. The notice would need to be given during usual working hours at the workplace at least 24 hours but not more than 14 days before the entry.

Under the WHS Act currently, permit holders may also enter a workplace for the purpose of consulting and advising workers on WHS issues. There is already a requirement to give at least 24 hours prior notice of entry to the employing business. The Bill would modify this so that notice must also be given to the person with management or control of the workplace.

The Bill also would double the current penalty regime for breaches of entry permit conditions, and introduce a new offence of failure to give the relevant notice.

These provisions severely restrict the opportunity of unions to surprise businesses with rights of entry for contraventions. They also will allow head contractors and principals an increased ability to prevent the spread of raised concerns throughout workforces of multiple sub-contractors, where notice has been given only to one of several undertakings operating at that workplace.

As with the stop work provisions, the effect of these changes will be to push the role to manage urgent safety issues which cannot be resolved by internal consultation onto the regulator rather than unions, and to introduce a cooling-off period before union interventions can follow.

These changes remove most likelihood of unwarranted business disruption from any ulterior motives and hold unions and representatives to account as to the genuine validity of risk and safety concerns.

Managing these issues

Businesses should view these reforms as an opportunity to enhance operational control, build better direct relationships with their workforce through safety and risk consultation, and ensure that unions and representatives raising safety issues do so in a valid way.

Unions will have reduced opportunities to introduce safety concerns inequitably, and businesses can ensure that their own safety and risk hazard and incident investigation systems provide a reliable alternative when issues first arise. Ultimately the aim to produce enhanced safety outcomes and build stronger direct relationships with workers can go hand in hand.

Clayton Utz industrial relations lawyers can assist your business build systems for safety and industrial resilience. We regularly advise on:

• Business readiness and protocols for safety related right of entry and stoppages;
• Requirements for unions and representatives to put forward evidence of reasonable concerns and suspicions of breach;
• Management of personnel and safety and health issues when right of entry access occurs;
• Keeping records and evidence to required standards;
• Enhancing consultation, cooperation and coordination processes;
• Improving issue and dispute resolution processes;
• Planning for the interface with concurrent duty holders;
• Training management and frontline leaders;
• Effective dispute resolution strategies.

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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 bulletin. Persons listed may not be admitted in all states and territories.