Your guide to the changes: Work Health and Safety and Other Legislation Amendment Act 2024

Andrea Fox: Hi, I'm Andrea Fox, Executive Director of Policy and Workplace Services for Work Health and Safety Queensland and today we're doing a presentation on recent legislative changes to the Work Health and Safety legislation in Queensland.

Sarina Wise: And I'm Sarina Wise, Executive Director for the Compliance and Field Services area within Work Health Safety Queensland and I'm here joining Andrea to talk a bit about the changes.

We respectfully acknowledge the traditional custodians of the land in which we meet today. We also pay our respects to Elders past and present and extend that respect to Aboriginal and Torres Strait Islander people listening to today's presentation.

Andrea Fox: The legislative changes we're talking about today stem from two reviews.

The first one is a review of the Queensland Work Health and Safety Act. That was undertaken in 2022 by a number of independent reviewers. You might recall the Minister announcing that one.

And the second one is tidying up some final recommendations that came out of a national review known as the Boland Review of the model work health and safety laws.

The Work Health and Safety Act amendments are happening in a couple of tranches. The first tranche has already happened. That was on the 28th of March. The most significant thing out of that one for you probably is that it brought in a new prohibition on using insurance to cover your penalties. That was part of the Boland recommendations.

The second tranche came into effect on the 20th of May. Most significantly in that one were changes to who can represent workers, which were more clearly defined in the Act. Some powers for entry permit holders, some inspector powers as well, and particularly some around sharing information across jurisdictions to allow regulators to work better together. And that one also was part of the Boland Review recommendations.

The third tranche is the new one that you'll be seeing now, which occurs on the 29th of July. It brings into effect the vast majority of changes that have come with this bill. Notably, it changes some things for HSR powers, health and safety representatives. It changes some things around their training, their elections, their remuneration.

The role of inspectors has also been changed in relation to issue and dispute resolution. Because of the recommendations of the review, that process has now been streamlined. And people involved in the dispute are now able to more readily take their dispute straight to the QIRC, Queensland Industrial Relations Commission, for resolution.

There's a couple of provisions that are yet to commence. We won't go into them in detail, but you'll see more information emerge over time on our website.

From the 28th of March, there were some changes to clarify how we work as a regulator with the national regulator in the rail safety space.

From 28th of March, there's been another important change that you need to know about, and that's that insurance indemnity provisions have changed. You're no longer allowed to get insurance to indemnify yourself, against penalties that you might otherwise have had to pay for non-compliance. Sarina.

Sarina Wise: So recently we had a court matter which resulted in $1.5 million fine being awarded to the business. With these new legislative powers or changes to the Act, that business would not be able to rely on their insurance to pay for that fine. And so it's a great deterrent, and it's important to know as a business about these changes.

Andrea Fox: From 20th of May, there's been some changes to worker representatives in our legislation. It's important to understand, because worker representatives is used in a number of ways in the legislation, that we now have clearer definition of who comes under these parts of representative.

The first thing to know is that a union means an employee organisation registered under the Fair Work Act. The second thing to know is it must be a relevant union. A relevant union means they're eligible to or they already have members on site. A suitable entity means it can be a relevant union entering under this path or another entity, and that means not an excluded entity.

Let me tell you that an excluded entity is a group who will represent you but charges fees to represent you. Other people can come in under a suitable entity, like an engineer or a physiotherapist or someone with technical expertise who's going to assist the health and safety representative in the legislation, but they can't be part of a group that purports to represent you and charges fees for it.

As I mentioned just a moment ago, these changes for worker representatives have an impact in the issue resolution pathway in the legislation. That is, that it clarifies who can represent a worker in that issue resolution process. You might want to take some time to study the screen to see how that works.

From 20th of May, there are also some changes to entry permit holders and their powers. One of them was that we clarified that when an entry permit holder enters, they may remain at the workplace while they're resolving the issue. That one more or less speaks for itself, but it just provides clarity that potentially wasn't there before of the intention around entry.

An entry permit holder's notice of entry is a way of communicating what they're doing and why they're there. It's no longer the case that minor administrative errors in the notice make it invalid. This recognises that occasionally there'll be a minor error in the notice. That doesn't change the use of that notice by the entry permit holder to come on site.

The fourth change here refers to the need for PCBU's or employers to balance up two needs. One is that they need to maintain safety of the site. The second one is they can't unreasonably hinder or delay entry permit holders in their right to come on site. This recognises more formally that an employer needs to weigh those two things up. If you're requiring an entry permit holder to do particular things like site induction or sign-ins, it needs to be weighed up against your other obligation, which is not to delay them getting on site to look at a suspected contravention.

Sarina Wise: Additionally, from the 20th of May, there were some further changes to the legislation around inspector powers. So now under section 171, the inspectors can actually request documents and answers to questions whilst not being at a particular workplace, and they can do that remotely and require the PCBU or the business to provide that information within a certain time period.

Andrea Fox: From 20th of May, there are a couple of changes to how we as a regulator do information sharing. And I guess it's probably worth just being a bit familiar with the fact that regulators can share information across borders. Obviously, that's very important in terms of investigations and working collaboratively together. There's also been some changes around how our industry codes of practice get reviewed, only fairly minor changes, and there's been some changes to prosecutions. And finally, there were some other definitional changes that happened on the 20th of May.

The most significant changes to our Act were those that occurred on 29th of July, and they're about changes for the health and safety representatives. This was a key finding out of the independent review of our Act. So from 29th of July, you'll need to be aware that a bunch of changes commenced for your health and safety representatives. And if you're a health and safety representative, you need to be aware of some of the new elements in your role.

The first one is that it clarifies that HSRs can choose who their trainer is for their training course. The second one is that we've reduced the time frames for when an HSR is elected and then when they need to get trained. Previously, you had three months before you could do this in the role. Now you need to do it within 28 days. That's important because you fulfil a really significant role in our legislation, and we need to make sure that you're trained for that role as soon as possible.

There are some changes also around documents that you can access and the information around that. I'll let you find out further about that through our website.

But significantly, part of empowering health and safety representatives means that you're aware when entry permit holders, the unions that are relevant to your work group, are on site, or when one of our inspectors are, and that you're released from what you're doing to be able to accompany them on that walkthrough. It means you can be aware of what the health and safety concerns are, and you can also contribute and say what you and your work group have been thinking around this area. There's also been some changes around compliance with PINs. Sarina?

Sarina Wise: Thanks. So PIN is a provisional improvement notice, and these are notices that HSRs can actually issue to the business. So the new legislation now looks at the time frames around those notices. The compliance to a PIN now is reduced to four days. For the compliance timeframe on those PINs, and that's a minimum. It can still be a greater period determined by the HSR. And there's also some changes around the timeframes for when the business can review the PIN as well. So that's reduced to a three-day window.

Andrea Fox: Finally, health and safety representatives have some important changes around cease-work directions. This is one of the most significant powers that you have as an HSR. You can now issue the direction directly to your employer, the PCBU, rather than the workers involved.  And there's more requirements around specifically what to put in that direction to make sure that we're all clear on what you've observed and what needs to happen before we can safely return to work.

Speaking of health and safety representatives, you know one of the most important parts of our Act is consultation with workers. Our organisation has a strategy around worker consultation, representation and participation that's been finalised, and it's going to be released soon, so stay tuned for that.

Sarina Wise: So from the 29th of July, the legislation has seen some further amendments around the health and safety representatives. So if an HSR has not been elected or an HSR ceases to hold office, the business must notify the workers in writing on a number of points. And what that looks like is that the notification in writing must include that the workers may request an election of an HSR, the process for the election of the HSR and the powers and functions of HSRs, the process for the work group determinations and who may represent the worker in negotiations.

Another one of the changes relating to HSRs is the business is now required to make sure that there's appropriate resources and facilities given to the individual worker that is an HSR so that they can operate and do their job as an HSR.

So this is quite a lot of information for businesses to understand. So if you've got any HSR situations where you're not quite sure how to comply with the legislation, there is a link on the screen that you can go to and get some more information about HSRs and elections and the like.

From the 29th of July, there's also another change to the legislation about audiometric testing. What that means is if a worker uses PPE to protect from hearing loss, the PCBU or the business must provide audiometric testing within three months of that worker commencing that work and at least once every two years from that commencement date. This legislation change has a transitional period of 12 months.

So some further changes around issues and dispute resolution processes that have come into this new legislative amendment is when it involves a Work Health Safety Inspector in those processes and what our role is from an inspectorate perspective. So in the first column in black there on the left, you'll see two situations, one around when there's disputes around the work group determination and matters relating to that and also Health and Safety Committee matters relating to constitutions and the like.

So where there's disputes around those different types of matters at the workplace, a Work Health Safety Queensland Inspector can be requested to come out and assist and make a decision and a determination around that particular matter. Now, if the business or other parties are not happy with the decision of the regulator or the inspector that has made that decision, they have a right to review that decision with the QIRC.

The second scenario here and changes to the legislation where a WHS Inspector can come out and assist the business and the parties to the dispute is there's a whole range of circumstances there in the column that you can see with the dot points. Inspectors can assist and provide advice. Then there is also a role for QIRC there.

There's also been a range of different changes to definitions in the legislation. You can see a number of those changes that have come into effect from the 29th of July on the screen.

Andrea Fox: Some final changes that I want to bring to your attention that occurred on 29th of July are around discriminatory conduct, failure of negotiations but also around relevant union involvement. There may come times where a relevant union to your organisation contacts you as a PCBU in writing to exercise their powers under the legislation in relation to section 52 about forming the work group, the negotiations around forming a work group or around any issues under section 80. If they inform you in writing that they wish to be part of those discussions, it doesn't rely on your worker having that discussion with you. You now are obliged to bring them in as a party to the issue.

Sarina Wise: So there are some further changes yet to commence and they'll have a focus around HSRs and entry permit holders and providing some additional sections within the legislation enabling request of information from the regulator.

So that concludes our presentation for today. You will now see on your screen a whole range of different links to resources. If you've still got more questions after our presentation, have a look at those links and at the website. And if there's still some unanswered questions there for you, you can call our Advisory Services team at Work Health Safety Queensland and ask them some questions as well.

Thank you and we wish you the best in implementing the new legislation.