Recent changes to the Workplace Health and Safety Act prioritise enhancing worker consultation and empowering HSRs. The emphasis is on simplifying dispute resolution processes and enforcing stricter compliance measures for workplace health and safety. It’s crucial for businesses to understand these impending regulations to mitigate penalties and uphold a safe working environment. 

Background  

The Work Health and Safety and Other Legislation Amendment Act 2024 was assented on 28 March 2024. The Amendment Act makes changes to Queensland’s Work Health and Safety Act 2011 (WHS Act). Changes to the WHS act include changes to business health and safety consultation obligations and the powers and functions of Health and Safety Representatives and Committees. This article explores the amendments made to the WHS Act.  

Overview of the HSR Changes  

PCBU Obligations  

When workers make a request, it will be mandatory for a person conducting a business or undertaking (PCBU) to consult with a worker representative. These consultations should take place at an agreed time and location within the workplace. During these meetings, the PCBU must provide relevant information to the workers. However, sensitive information like personally identifiable or medical details of workers, unless consented to, and confidential commercial information, must not be disclosed. This aims to foster a collaborative approach to workplace safety, as it ensures all decisions are made with the involvement of those who are directly impacted. 

Election Process of HSRs  

When electing health and safety representatives (HSRs) within a group, there will be a requirement that the PCBU must not stop or discourage workers from requesting an HSR election. The PCBU must not interfere with the HSR or deputy HSR election process. Additionally, there is also an obligation that the PCBU must inform all employees about the following:  

• Their right to request HSR elections and form work groups. 

• The roles, authority, and responsibilities of HSRs, and how they are elected. 

• Who can represent workers in discussions about work groups. 

The PCBU must also invite workers to seek help in organising an HSR election. These changes are aimed to foster a culture where worker input in valued, and the decisions surrounding WHS are made objectively with fairness.   

Determination of work groups 

PCBUs will be required to establish a clear plan and timeframe for negotiating and agreeing on the composition of work groups. This includes involving relevant workers and their representatives, and a union if interested. If a worker’s representative or union participates in negotiations, all parties must agree on the timing and location of the discussion. Negotiations must be concluded within 14 days of requesting the election of a health and safety representative, with the possibility of extensions if mutually agreed upon. If negotiations stall for any reason, any party can request assistance from an inspector to resolve issues. If unresolved after 7 days, the inspector will make a final decision within another seven days, which cannot be disputed. 

Powers and functions of HSRs  

The powers and functions of HSRs have been revised to enhance their role. The amendments empower HSRs to request and receive information regarding the health and safety of workers within their designated work group. HSRs are now allowed to accompany entry permit holders (EPHs) into the workplace when the EPH’s visit concerns issues within the HSR’s work group. Additionally, starting in May 2024, HSRs will have the ability to seek assistance from an appropriate entity to support them in their role. 

HSRS ceasing unsafe work 

Amendments concerning HSRs grant them the authority to issue a direction to cease unsafe work, which includes: 

• HSRs can direct a business or PCBU to stop work if attempts to resolve safety concerns are unsuccessful. 

• HSRs can require the PCBU to instruct workers to stop unsafe tasks until the issue is resolved or determined through a formal dispute resolution process. 

• HSRs retain the ability to immediately issue a work cessation directive for workers in affected areas without prior consultation with the PCBU. 

Provisional improvement notices (PIN)   

Under the amendments a HSR has the authority to issue a provisional improvement notice (PIN) if they have a reasonable belief that someone is violating the WHS Act and there is a likelihood that the violation will persist or reoccur. The deadline for complying with a PIN is shortened from eight days to four days unless all parties agree to an extension. The timeframe during which a person can request the regulator to appoint an inspector to review a PIN is reduced to three days. 

Training providers and remuneration 

HSRs have the autonomy to select their training provider from a list of approved courses. PCBUs are obligated to permit HSRs to attend training sessions and ensure they receive their regular compensation, encompassing overtime, penalties, and allowances. Part-time HSRs who work additional hours to attend training must be compensated at their standard hourly rate. In cases of disagreement between the PCBU and HSR regarding these matters, either party has the option to request intervention from an inspector to facilitate resolution. 

PCBUs general obligations  

PCBUs must provide HSRs with access to necessary information. HSRs should be notified about any notices issued by inspectors or WHS entry permit holders, and copies of these notices should be provided if issued to the PCBU. HSRs are entitled to receive copies of incident notifications submitted to regulators. HSRs must be informed and allowed to accompany permit holders or inspectors during their workplace visits. PCBUs are required to ensure that HSRs receive their regular wages, including overtime and allowances, when fulfilling their duties under the WHS Act. In cases where there’s a disagreement regarding access to information or notice copies, the HSR has the right to request the regulator to appoint an inspector to resolve the matter. 

Health and safety committees 

Upon receiving a formal request, PCBUs are now required to form a Health and Safety Committee (HSC) within 28 days. This committee is to play a crucial role in ensuring a safer work environment by fostering collaboration between the PCBU and all relevant stakeholders. 

If there are challenges in reaching agreement on the HSC’s structure within the initial 28-day period, the parties involved can request assistance from an inspector. The inspector acts as a mediator to facilitate discussions and help the parties find common ground. 

In cases where agreement seems unlikely despite the inspector’s involvement, the inspector has the authority to make a final decision about the HSC within seven days. This decision is final and binding, meaning it cannot be appealed internally. Any disputes arising from this decision can be taken to the Queensland Industrial Relations Commission (QIRC) for external resolution. 

Discriminatory conduct 

Under the WHS Act, discriminatory conduct encompasses situations where a worker is treated unfavourably compared to others due to their involvement or interest in WHS matters. This protection extends to workers who have been or are seeking to be engaged in WHS issues within their workplace. 

Furthermore, civil proceedings concerning discriminatory or coercive behaviour now fall under the jurisdiction of the QIRC. This change ensures that disputes related to such conduct are adjudicated within a specialised and appropriate legal framework. 

Issue and dispute resolution process  

The WHS Act amendments include significant changes to the dispute resolution processes by clearly defining the roles of inspectors, the QIRC, and the rights of worker representatives. This structured approach ensures timely resolution of safety-related concerns and expands the QIRC’s jurisdiction over a broader range of WHS issues. 

The WHS Act establishes two distinct pathways for resolving disputes: 

1. Initially, matters such as determinations of work groups, changes to work group structures, and the establishment of health and safety committees must be adjudicated by an inspector before potentially being escalated to the QIRC. 

1. The WHS Act also introduces a flexible approach where parties involved in an issue can either seek assistance from an inspector to resolve the matter (with the possibility of referral to the QIRC) or directly lodge a dispute with the QIRC. This pathway covers disputes related to various WHS issues, including: 

• Access to information or notices by HSRs 

• Workplace access for those assisting an HSR 

• Training provided to HSRs 

• Directives issued by HSRs to cease work 

• Other WHS matters subject to dispute resolution procedures. 

These provisions aim to streamline the resolution of WHS related conflicts, ensuring that disputes are handled efficiently and in accordance with established legal procedures. By empowering inspectors and expanding the QIRC’s role, the amendments to the WHS Act strengthens the framework for protecting the rights of workers and promoting safer working environments across Queensland. 

Jurisdiction of the Queensland Industrial Relations Commission, proceedings and prosecutions  

The Amendments to the WHS Act introduces several key changes regarding the jurisdiction and proceedings overseen by the QIRC: 

1. The QIRC will now handle civil proceedings concerning discriminatory and coercive conduct, as well as WHS civil penalty proceedings. 

1. Costs awarded for external reviews under section 229 of the WHS Act are now specifically limited to covering the expenses directly associated with the hearing. 

Additionally, the Act now clarifies the entities and individuals authorised to initiate WHS civil penalty proceedings: 

• The WHS Prosecutor and designated staff members of the WHS Prosecutor now have the authority to commence civil penalty proceedings for any contraventions. 

• Furthermore, relevant unions, WHS entry permit holders, and individuals affected by violations are granted standing to initiate proceedings related to the exercise of entry permit holder rights under sections 126, 144(1), 145, 146, and 147(1) of the WHS Act. 

These updates aim to enhance clarity and efficiency in the handling of WHS-related legal matters, ensuring appropriate parties have the standing to pursue enforcement actions and costs associated with legal reviews remain reasonable and focused on the hearing process.