Significant legislative developments affecting employers in Queensland
Changes to the Work Health and Safety Act 2011 (Qld) (WHS Act) that were passed by the Queensland Parliament in April 2014 took effect on 16 May 2014. The changes represent a step in the right direction for employers, as they follow the Queensland Government's review assessing the impact and costs of work health and safety laws, and appear to be targeted at alleviating some of the compliance costs burdening employers. The big ticket items relate to tightening union right of entry for safety reasons and restricting the powers of health and safety representatives (HSRs).
These amendments are the latest in a series of changes affecting the industrial relations landscape in Queensland.
In summary, the Work Health and Safety and Other Legislation Amendment Act 2014 (Qld) amends the WHS Act to:
- In the case of entry to investigate a suspected contravention, require WHS Act permit holders to give notice of a proposed entry and the suspected contravention before entering a workplace. The notice must be given at least 24 hours, but not more than 14 days, prior to entry. This is a significant departure from the current position which requires permit holders to give notice of the entry and the suspected contravention as soon as is reasonably practicable after entering a workplace;
- In the case of entry to consult and advise workers, require WHS Act permit holders to give notice to the person with management or control of the workplace, as well as the person conducting a business of undertaking;
- Introduce penalties for failing to comply with entry notification requirements and increase penalties for contravening entry permit conditions;
- Remove the power of HSRs to direct workers to cease unsafe work;
- Require HSRs to give notice of least 24 hours, but not more than 14 days, of the proposed entry of a person who will provide them with assistance (for example, a union official);
- Remove the obligation of a person conducting a business or undertaking to provide up-to-date lists of HSRs to the regulator; and
- Remove the requirement for consultation in relation to codes of practice that are being approved, varied or revoked.
The changes also amend the Electrical Safety Act 2002 (Qld) to increase penalties for offences under the Electrical Safety Regulation 2013 (Qld).
Requiring at least 24 hours' notice of entry to investigate suspected safety contraventions will curb unions from entering workplaces at will while merely citing 'safety concerns'. This change, in conjunction with the requirement for HSRs to give at least 24 hours' notice of the proposed entry of a person to provide assistance and the removal of HSRs power to direct workers to cease work, will allow businesses to resolve safety issues without the need for immediate union intervention, and so reducing unnecessary business disruption and costs.
Businesses should ensure that 'on-the-ground' employees who deal with exercises of right of entry are aware of and understand the changes. The changes can also be used as an opportunity to build stronger relationships with the workforce by enhancing engagement in relation to the resolution of safety concerns at the employer level, as opposed to unions dictating the response.
Workers' compensation changes
Significant changes were also introduced to the workers' compensation regime in Queensland on 29 October 2013.
As well as replacing Q-COMP with the new Workers' Compensation Regulator, the amendments aligned the assessment of impairment between statutory and common law provisions of the scheme, with the introduction of the concept of a degree of permanent impairment (DPI). In a move that attracted considerable attention, the changes also introduced a minimum 5% DPI threshold to access damages at common law. The most significant amendment for employers however, relates to disclosure in the pre-employment setting.
If requested to do so by a prospective employer, prospective employees are now required to disclose any pre-existing injury or medical condition that they suspect, or ought reasonably to suspect, would be aggravated by performing the duties of the position. If the request by the prospective employer is made in accordance with the legislation, an employee will not be entitled to compensation or to seek damages for any event that aggravates the pre-existing injury or medical condition if they have a pre-existing injury or medical condition and have made a false or misleading disclosure, which includes non-disclosure, in relation to it.
There is also a new entitlement for prospective employers to apply to the Workers' Compensation Regulator for a copy of the prospective employee's claims history summary.
These amendments are potentially of great benefit to employers, as they enable employers to more fully and effectively consider whether an applicant is suitable for a particular position. In doing so, the employer may potentially reduce the likelihood of the prospective employee suffering an injury or exacerbating an existing injury. In this way, disclosure is in the interests of both the employer and the prospective employee.
Having said this, employers should exercise caution in utilising this new power without careful consideration, as there are a host of statutory protections for employees that continue to exist despite the reforms and which could have a bearing on the use of the new power.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.