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
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
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
More specifically, these changes should now prompt employers
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
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
consult, co-ordinate and cooperate with any other persons
conducting a business or undertaking (PCBUs) at a relevant
undertake frontline management training in dealing with these
issues to ensure effective implementation of the changes.
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.
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