New changes the Queensland Work Health and Safety Act give workers more powers to ensure their workplaces are safe.
Overview of key changes
• Improved access for HSRs to info and investigations
• Increased powers to enforce PIN notices
• Increased obligations on the PCBU
• Ability for HSRs to elect training providers and be trained sooner
• More powers to direct unsafe work to cease
• Positive duty on PCBU to inform workers about HSR elections
• Increased powers for negotiation over work groups
• Increased powers over establishment of WHS committee
• Expanded scope of WHS matters that Commission can deal with.
• PCBU must consult the representative
• Workgroup must be negotiated with relevant union
• Entity excludes non-registered unions
• Union can be party to an issue
• Union can apply to commission for civil penalty for alleged contravention
Consultation with workers
Existing Rights
PCBU’s/employers have a duty to consult workers when –
• identifying hazards, assessing their risk, making decisions to eliminate or minimise their risk
• proposing changes that may affect health and safety
• making decisions about the adequacy of facilities for the welfare of workers
• developing procedures for consulting workers, resolving WHS issues, monitoring the health of workers or conditions at work
• providing information and training about WHS to workers.
If workers are represented by HSRs, the PCBU must consult the HSR.
If there are agreed procedures for consultation in place, consultation must follow those procedures.
Key Changes
If 1 or more workers ask the PCBU to consult their ‘representative’, the PCBU must consult the ‘representative’ i.e., their relevant union.
The parties must agree on where and when the consultation will take place.
Electing HSRs
Existing Rights
A worker may request the negotiation of work groups for a business or undertaking to facilitate the representation of workers by 1 or more HSRs.
A worker may request a PCBU to facilitate the conduct of elections for HSRs and deputy HSRs.
Key Changes
A PCBU has a ‘positive duty’ to advise workers in writing about their rights to request the election of HSRs, the formation of work groups, the processes to do so, and about the powers and functions of a HSR.
as soon as reasonably practicable after the term of office for a HSR ends; or
as soon as reasonably practicable after the day a HSR ceases to hold office; or
otherwise, every year.
A work group must be determined by negotiation and agreement between a PCBU, workers or their representatives, and relevant unions where the union makes a request in writing.
A PCBU must not intentionally hinder, prevent or discourage workers from making a request to conduct elections.
Negotiating Workgroups
Existing Rights
Work groups are determined by negotiation and agreement between a PCBU and workers or their representatives.
A PCBU must take reasonable steps to commence negotiations within 14 days of a request to determine the number and composition of work groups, the numbers of reps, and work groups etc.
Key Changes
A work group must be determined by negotiation and agreement between a PCBU, workers or their representatives, and relevant unions where the union makes a request in writing.
A PCBU must negotiate with and must not exclude a representative of a worker or a relevant union from the negotiations.
The parties must agree on when and where in a workplace negotiations are to be carried out and carry out the negotiations only at the agreed time and place.
*Further changes on taking measurements, conducting tests, taking photographs and videos in 2024
Time limit
Existing Rights
If negotiations for work groups fail, a person who is or would be a party to the negotiations may ask the regulator to appoint an inspector who may decide the matter (or not decide).
Key Changes
If agreement is not reached about the formation of work groups within 14 days after a request is made, an inspector may be appointed on request.
The inspector must make a decision within 7 days after the appointment.
A party may apply to the Commission to determine the matter by conciliation, mediation, or arbitration if they do not agree with a decision of an inspector.
Powers and Functions
Existing Rights
HSRs represent workers in their work group on WHS matters affecting them, can monitor measures taken by a PCBU to comply with the Act, investigate complaints relating to WHS, and inquire into any risks to WHS of workers in their work group.
HSRs can also inspect a workplace, accompany inspectors, be present at interviews (with workers consent), request the establishment of a HS Committee and receive information concerning the WHS of workers in their work group.
Key Changes
HSRs will be able to –
• accompany a WHS EPH while at the workplace
• request and receive information about WHS of workers
• whenever necessary, request the assistance of a suitable entity.
Obligations of PCBU
Existing Rights
PCBUs are obliged to consult with HSRs on WHS matters that affect workers in their work group, confer with HSRs to ensure the health and safety of workers, and allow HSRs to have access to information relating to hazards and their risks and the health and safety of workers in their work group.
PCBUs are also obliged to provide resources, facilities and assistance to HSRs, and allow them to spend time reasonably necessary to exercise their powers and functions.
Key Changes
A PCBU must inform a HSR about a notice and the entry of a WHS EPH or an inspector, provide copies of relevant notices (entry notices and compliance notices), and notify a HSR about notifiable incidents in their workplace/work group.
A PCBU must permit a HSR to accompany a WHS EPH or an inspector while at the workplace.
A PCBU must pay the HSR the amount, including any overtime, penalties or allowances, the HSR would be otherwise entitled to when performing their normal duties during the same period.
HSR Training
Existing Rights
A PCBU must allow a HSR to attend HSR training within 3 months of being elected, or as soon as reasonably practicable thereafter if the training is not available.
A PCBU must allow a HSR time off to attend prescribed HSR training on the pay they would otherwise be entitled to receive, and pay for the training and reasonable costs associated with attending the training.
Key Changes
A PCBU must allow a HSR to choose the training.
HSR training must be undertaken within 28 days of being elected as a HSR, or a soon as reasonably practicable thereafter if the training is not available.
If a HSR usually works on a day they attend training, the PCBU must pay the amount, including overtime, penalties or allowances, the HSR would otherwise be entitled to receive.
If a HSR attends training on a day they would not usually work, the PCBU must pay the HSR the amount they would receive for their normal duties during the hours they attend the training.
WHS Committees
Existing Rights
A PCBU must establish a HS Committee within 2 months after being requested to do so by a HSR or 5 or more workers at a workplace.
Key Changes
• A PCBU must establish a HS Committee as soon as practicable but not later than 28 days after being requested to do so (as above).
• A party may ask the regulator to appoint an inspector to assist the parties to reach agreement including about the constitution of a committee within 7 days.
• If agreement is not reached, or a party disagrees with an inspector’s decision they may apply to the Commission to have the matter otherwise determined.
Issue Resolution
Existing Rights
• A PCBU or their representative, a HSR on behalf of workers in a work group, or if there are no HSR’s a representative of the workers may be parties to resolve a WHS issue.
• A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving a WHS issue.
Key Changes
• A PCBU or their rep, a HSR or a suitable entity representing a HSR may be a party to a WHS issue.
• Other parties may include a suitable entity to represent worker(s) where there are no HSRs, or a relevant union who notifies the PCBU they want to be a party to an issue.
• A PCBU must allow all the parties to the issue to enter and remain at the workplace for the purpose of attending discussions with a view to resolving the issue.
Power to Direct PCBU
Existing Rights
• A HSR may direct a worker to cease work if they have a reasonable concern that to carry out work would expose the worker to a serious risk to their health or safety, emanating from an immediate or imminent exposure to a hazard.
• A cease work notice must not be given unless the HSR has consulted with the PCBU first, unless the risk is so serious and immediate or imminent it is not reasonable to consult before giving the direction.
Key Changes
• A HSR may issue a written cease work notice to a PCBU to cease work if they have a reasonable concern to carry out work would expose a worker to a serious risk to their health or safety, emanating from an immediate or imminent exposure to a hazard.
• A PCBU must direct a worker(s) to cease work or not start work to the extent it relates to the matter. The direction remains effective until the notice is withdrawn in writing by the HSR, the issue is resolved with the assistance of an inspector, an inspector issues a prohibition notice, or the Commission deals with the matter as a dispute.
• A HSR may also direct workers orally to cease work.
Dispute Resolution
Existing Rights
• A party may refer a dispute about a WHS matter to the Commission for determination (conciliation, mediation or arbitration) if 24 hours has elapsed since requesting the regulator to appoint an inspector to assist in resolving the WHS issue
• WHS matters include those relating to issue resolution, access to information by a HSR, a request by a HSR for an assistant, and cease work
• The Commission may review an inspector’s compliance decision by confirming or varying or setting it aside.
Key Changes
• The powers of the Commission to deal with WHS disputes has been expanded to include the determination of work groups, access to information by a HSR, notices or information to be provided to HSRs, requests to access training for HSRs, health and safety committee constitutions, WHS issues under the issue resolution process, and issues about cessation of work.
Discrimination
Existing Rights
• A person must not engage in discriminatory conduct against workers, HSRs, WHS officers and HS committee members by dismissing them, terminating a contract for services, placing a worker to their detriment, altering their position to their detriment etc.
• Civil proceedings are to be taken in the Magistrate’s Court by the WHS prosecutor.
Key Changes
• Discriminatory conduct also includes treating a worker less favourably than other workers of the person
• Workers, their representative, or a suitable entity may apply to the Commission (not Court) for an order for engagement in or inducement of discriminatory or coercive conduct
Entry Permits
Existing Rights
• WHS EPH’s have a right to enter a workplace to investigate suspected contraventions of the Act or ES Act, to inspect employee records or other relevant information, or to hold discussions with employees.
Key Changes
• If a WHS EPH is already at a workplace to investigate a suspected contravention, there is no further requirement to give additional notice.
• When exercising a ROE, a EPH may also remain at the workplace for the time necessary to achieve the purposes of the entry.
• A request to comply with a WHS requirement is not reasonable if it would unduly or unreasonably prevent or hinder the EPH.
Civil Penalties
Existing Rights
The WHS prosecutor may take proceedings in the Magistrate’s Court against a person for a contravention of a civil penalty provision.
Key Changes
• Proceedings have been transferred to the Commission for a contravention or an alleged contravention of a civil penalty provision,
• A relevant union, a WHS EPH, or a person affected by a contravention/alleged contravention may apply to the commission for an order in relation to a contravention or an alleged contravention.
Definitions
Who is a relevant union?
A relevant union, for a worker, whether the worker is a health and safety representative or another worker, means a union –
• of which the worker is a member or is eligible to be a member; and
• whose rules entitle the union to represent the worker’s industrial interests.
What is an excluded entity?
• An entity, other than a union, that is an association of employees or independent contractors, or both;
• An entity, other than a union or an association (above), that represents, or purports to represent, the industrial interests of the worker or representative;
• An entity that demands or receives a fee from another excluded body, for representing, or purporting to represent, the industrial interests of the worker or representative;
• A union that is not a relevant union for the worker;
• An individual who –
• is an officer or employee of an excluded body; or
• is acting as an agent of an excluded body; or
is otherwise representing or purporting to represent an excluded body.
Who is a suitable entity?
A suitable entity, for representing or assisting a worker or the health and safety representative for a worker, means –
a relevant union for the worker; or
another entity that –
is authorised by the worker or representative to represent or assist the worker or representative; but
is not an excluded entity for representing or assisting the worker or representative.
Who is a representative? (*For the purpose of s82(2)(g), s81(3), and s102A)
A representative, in relation to a worker, means –
• the health and safety representative for the worker; or
• a suitable entity for representing the worker that is authorised by the worker to represent the worker [s 45A].
