The Workplace Health and Safety Act 1995 (Qld) has been amended to give qualified workplace OH&S representatives the power to issue Provisional Infringement Notices (PINs) for alleged breaches of the Act. While the amendments have been passed by the Parliament, they are yet to commence operation. In addition, appropriate training and procedures to qualify OH&S reps to issue PINs are yet to be developed. It is important for businesses to be aware of the changes and that, after commencement of the new regime, penalties may be imposed for breaches of the Act without a departmental inspector visiting the workplace.
After some unions raised concerns about the approach of Workplace Health and Safety Queensland (WHSQ) to enforcement of the OH&S laws in Queensland, the Department of Employment and Industrial Relations commissioned a review of the current enforcement framework. From this review, 50 recommendations were made, and the recent amendments to the WHSA are designed to implement some of those recommendations.
Under the amendments to Part 7 of the Act (which are yet to commence) it is possible for a Workplace Health and Safety officer to undertake training to become a "qualified workplace health and safety representative", which will allow that representative to be able to issue a PIN at their workplace. A PIN is a written notice which is issued by the representative requiring "a person" to remedy a contravention or likely contravention of the Act. A PIN can be issued to an individual or the employer. The practical effect is that someone who undertakes the training to be a qualified Workplace Health and Safety representative will be able to issue a PIN to remedy a breach (or alleged breach) without the need for an inspector from WHSQ to visit the workplace. The advantage of this is said to be that generally workplace OH&S representatives are better placed to know their workplace and the risks in it than any inspector from WHSQ.
The qualified representative must consult with the proposed recipient of the notice prior to issuing the PIN; however the process of issuing a PIN is less formal than the process that would normally accompany the issue of an improvement notice by a WHSQ inspector. If a PIN has been issued appropriately and the breach identified by the PIN is not remedied within the specified timeframe, a penalty can be imposed upon the PIN recipient of up to $4,000.
To prevent possible misuse of this power (for example, to prevent qualified representatives from issuing PINs as part of some industrial activity), a person who receives a PIN can seek to challenge that PIN by referring it to WHSQ. If a WHSQ inspector believes the PIN was incorrectly issued, they can revoke it. There is also an ability in the Act for WHSQ or the employer to seek an order from the Queensland Industrial Relations Commission to revoke a representative's ability to issue a PIN. If the Commission believes that the qualified representative has issued a PIN unreasonably they may suspend or cancel that person's ability to issue PINs. Such a decision can, however, be appealed.
Businesses may find that qualified representatives will issue PINs in circumstances where, under previous arrangements, the relevant safety issues might not have been pursued.
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