WHSOLA Act: Your questions answered

Updates to Queensland’s Work Health and Safety Act 2011 (WHS Act) and Work Health and Safety Regulation 2011 (WHS Regulation) implemented recommendations from two independent reviews:

• 2022 Review of the Work Health and Safety Act 2011 (the WHS Act Review)
• 2018 Review of the Model Work Health and Safety Laws (the Boland Review)

The Work Health and Safety and Other Legislation Amendment Act 2024 (WHSOLA Act) gives effect to recommendations from these two reviews. The key objectives of the changes are to:

• strengthen and promote the role of health and safety representatives (HSRs)
• promote consultation about work health and safety with workers and their representatives
• clarify rights of entry permit holders (EPHs)
• clarify who may assist and act as worker representatives
• clarify and streamline the issue and dispute resolution process, and
• enhance the operation and administration of the WHS Act.

Targeted consultation with industry, registered unions, employee organisations and government bodies informed the development of the WHSOLA Act.

The WHSOLA Act has come into effect in stages, with some of the major changes outlined in the table below.

*Note: Additional consequential amendments may have been made to give full effect to the policy intent.

From 20 May 2024, changes to those able to assist HSRs are that:

• only a suitable entity may assist in HSR elections (s61)
• only a suitable entity may assist HSRs (s68(2)(g)), as opposed to ‘any person’, and
• a PCBU must allow a suitable entity access to the workplace where they are assisting a HSR (s70(1)(g)).

From 29 July 2024, the role of HSRs has been strengthened and clarified to confirm that:

• HSRs can choose their own training provider and must receive their usual remuneration (e.g. including overtime) for attending training (s72)
• a PCBU must, at certain times, notify workers in writing of matters such as informing workers that they may request an election of HSRs, the process for electing HSRs, and the powers and functions of HSRs (new s50B)
• a PCBU must not intentionally hinder, prevent or discourage workers from certain acts, such as requesting election of HSRs (new s50A and 62A), and
• the types of resources, facilities and assistance a PCBU must provide to a HSR e.g. access to a room and access to a phone and internet access (new s20A of the WHS Regulation).

New section 50B of the WHS Act includes a new obligation for PCBUs to notify their workers in writing about their rights to elect a HSR, who may represent workers in certain negotiations, the powers and functions of HSRs, and the process for determining work groups and elections for HSRs.

WHSQ is preparing guidance to assist PCBUs meet their obligations under section 50B of the WHS Act. This material will shortly be made available on the WorkSafe website.

Under s72, a PCBU has obligations to allow a HSR time off work to attend the training, pay the training fees and any other reasonable costs associated with attending the training. There is now greater flexibility for HSRs to choose their own training, including a location that suits their needs.

Where there are disagreements about HSR training matters, including costs, simplified dispute resolution processes will support timely resolution of these disputes. For example, an employer or HSR can ask the regulator to appoint an inspector to assist in resolving the matter (s72(5)). Alternatively, the matter can be referred directly to the QIRC for resolution.

From 29 July 2024, important changes to minimise confusion and risks to workers clarify requirements around cease work directions and notices.

If a HSR issues a cease work direction under s85, the HSR must:

• give the PCBU a cease work notice to inform them of the cease work direction
• ensure the written notice includes all necessary information
• display, in a prominent way in an area used by the workers of the work group, a copy of the cease work notice given to the PCBU, and
• consult with the PCBU to attempt to resolve the matter.

Additional changes to s85 also clarify that a HSR direction is effective until withdrawn in writing by the HSR, the issue is resolved with inspector assistance, an inspector issues a prohibition notice in relation to the matter, or QIRC decides or deals with the dispute.

New requirements under s85A clarify that a cease work notice must include information like:

• the name of the HSR
• the HSR's concern and the basis for that concern,
• the risk to the workers' health and safety if the work is carried out, and
• the day and time the cease work notice was given.

Retaining a written notice can also be used to support the HSR providing evidence to the QIRC should the matter escalate to a dispute.

The Office of Industrial Relations has developed a cease work notice form (PDF, 0.14 MB) for HSRs to use.

Workplaces can apply their own processes to support the HSR requirements.

Elected HSRs can contact HSR Direct on 1300 633 419 or email whstraining@oir.qld.gov.au to request advice from the regulator.

From 29 July 2024, important changes to PINs will:

• reduce the minimum timeframe to remedy a contravention, or likely contravention in s92(d) from 8 days to 4 days (from the date of issuing the PIN)
• allow a HSR to change the remedy date on a PIN by agreement with:
  • the person to whom the notice was issued, or
  • in certain circumstances, the PCBU
• reduce the s100 timeframe in which a person may ask the regulator to appoint an inspector to review a PIN, from 7 days to 3 days (from the date of issuing the PIN).

Yes. See the new version of the PIN form (PDF, 0.16 MB).

From 20 May 2024, the powers of EPHs have been changed to clarify that:

• an EPH may enter and remain at the workplace (s81(3), s118)
• an EPH notice of entry is not invalid simply due to a formal irregularity, defect or error in the name (if it still reasonably identifies a person or relevant union) (s119(2B))
• where an EPH remains at a workplace, they may access documents kept or accessible at the workplace, and consult with relevant workers without giving further notice (s119(4)), and
• compliance with workplace WHS requirements is not reasonable if it would unreasonably hinder/delay entry to the workplace (s128(2)).

From 20 May 2024, changes were made to inspector powers to require the production of documents and answers to questions under s171.

The amendments restructured the requirements in s171 relating to notices that may be given by an inspector who has entered the workplace, or another inspector, within 30 days of the inspector’s entry.

Section 171(2A) allows the inspector (or another inspector) within 30 days of entering the workplace, to require a person to:

• produce a document within a particular period (that they have custody or access to)
• give written answers to questions within a particular period, or
• attend before the inspector to answer questions at a place and time, or by using audio or audiovisual links. If the person chooses a particular method to answer the questions (i.e. in person or virtually), the inspector must agree if it is reasonable in the circumstances.

A notice under s171(2A):

• must relate to a document or question relevant to the purpose for which the workplace was entered
• must be in writing and meet requirements under s173(1A), and
• must be issued in the same way as provided in s209.

New consultation, representation and participation requirements differentiate between ‘suitable entities’ and ‘excluded entities’ for representing workers and HSRs (new part 5, division 1AA).

A suitable entity refers to:

• a relevant union for the worker, or
• another entity authorised by the worker or representative to represent or assist them, that is not an excluded entity.

Other than a relevant union, examples of a person who may be a ‘suitable entity’ able to represent a worker may include a lawyer or a technical expert, like an engineer.

An excluded entity includes:

• a union that is not a relevant union for the worker
• an entity, other than a union, that is an association of employees or independent contractors
• an entity, other than a union or an association of employees or independent contractors, that represents, or purports to represent, the industrial interests of the worker
• an entity that demands or receives a fee from another excluded entity for representing or purporting to represent the industrial interests of the workers, or
• an officer, employee, agent of an excluded entity.

From 29 July 2024, issue and dispute resolution processes are streamlined to clarify the role of inspectors, the Queensland Industrial Relations Commission (QIRC), and the standing of worker representatives. This facilitates efficient resolution of safety-related issues and means more WHS matters can be taken to the QIRC.

Matters where an inspector makes a decision

Some matters require an inspector to first make a decision. These matters include work group determinations and work group variations (s54) and the constitution of health and safety committees (s76).

Once an inspector has made a decision, the matter can then be referred to the QIRC.

Matters where an inspector assists, or the matter is referred to the QIRC

Dispute resolution has been streamlined for matters including:

• HSR access to information or copies of particular notices
• access to a workplace by a person assisting an HSR
• HSR training
• HSR issuing a cease work direction
• WHS matters where the issue dispute resolution applies.

In these matters, there are two options for dispute resolution options. The parties can either:

• request an inspector to be appointed to assist with resolving the matter (and then refer the matter to the QIRC), or
• directly take a dispute to the QIRC.

In these matters, an inspector’s role is to assist the parties and they do not make a decision.

From 20 May 2024, parties to an issue under s80 include:

• a PCBU(s) or the PCBU(s) representative(s)
• where a HSR is elected – a HSR or a suitable entity representing the HSR, and
• where a HSR is not elected – a worker or suitable entity representing the worker.

From 29 July 2024, a relevant union for an affected worker may be party to the issue where the relevant union notifies the PCBU in writing that it wants to be a party to the issue. Note that from 20 May 2024, under s81(3), a PCBU must allow all parties to the issue to enter and remain at the workplace for the purpose of attending discussions with a view to resolving the issue.

From 29 July 2024, the QIRC has jurisdiction to hear civil proceedings for discriminatory and coercive conduct, and WHS civil penalty proceedings. Costs awarded by the QIRC for external reviews (s229) will now be limited to costs of the hearing and in accordance with a standardised scale of costs.

There are also important changes about who has standing to commence WHS civil penalty proceedings. The WHS Prosecutor and an authorised member of the WHS Prosecutor’s staff have standing to bring an order for all civil penalty proceedings. In addition, a relevant union, a WHS entry permit holder and a person affected by a contravention have standing to bring an order in relation to exercising entry permit holder rights of entry under ss 126, 144(1), 145, 146 and 147(1).