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
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
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.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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