Right of entry

On 28 November 2024 during its first week of sitting, the 58th Queensland Parliament passed legislation amending the Work Health and Safety Act 2011 (Qld) (WHS Act). The recent amendments are the third time the WHS Act has been amended over the past 18 months and were included in the Brisbane Olympic and Paralympic Games Arrangements and Other Legislation Amendment Bill 2024 (Qld) (Bill).

The Bill amends s 119 of the WHS Act to require WHS entry permit holders to provide at least 24 hours, but not more than 14 days, written notice of their intention to exercise statutory right of entry powers under the WHS Act. This is a significant departure from the current ability for a WHS entry permit holder to enter a workplace to inquire into a suspected safety contravention without providing any notice, with the requirement to provide a notice of entry as soon as is reasonable practicable after entering.

The recent amendment to s 119 means that the notice requirements for entry permit holders seeking entry to a worksite under the WHS Act will soon be the same as those contained in s 484 of the Fair Work Act 2009 (Cth).

A WHS entry permit holder will still be permitted to enter a workplace without notice if there is a reasonable belief that a relevant worker is exposed to a serious risk to their health and safety, emanating from an immediate or imminent exposure to a hazard. While such hazards are yet to be legislated, it is expected that it would include hazards that could result in a 'dangerous incident' as defined in s 37, such as:

• electric shock;
• the fall or release from a height of any plant, substance or thing;
• the collapse or partial collapse of a structure;
• the interruption of the main system of ventilation in an underground excavation or tunnel;
• an uncontrolled implosion; and
• the inrush of water, mud or gas in workings, in an underground excavation or tunnel.

Deputy Premier and Minister for Industrial Relations Jarrod Bleijie noted that some instances of occupational violence may meet the threshold for a WHS entry permit holder to immediately gain access to a workplace. He also foreshadowed the Queensland Government's intention to shortly introduce legislation to close the gap that currently exists in WHS legislation. Mr Bleijie stated:

'We have a gap around work related violence and aggression in that most of these incidents are actually not notifiable to the regulator for action. Proposed changes to the model workplace health and safety laws on this matter are anticipated for consideration in the near future. We intend to take action on this issue on the basis that changes will ensure incidents of work related violence and aggression are coming to the attention of the regulator and more serious events are being triaged for an inspectorate response.'

'Reintroducing the requirement to provide at least 24 hours’ notice will provide a circuit breaker to recent tensions we’ve observed regarding entry and will provide employers with sufficient time to respond to WHS entry permit holders on issues that they may raise. This is intended to provide better conditions for discussion and problem solving on health and safety concerns on these workplaces.'

When the amendments come into effect, if a circumstance exists that permits a WHS entry permit holder to enter without notice, the existing requirement for the entry permit holder to provide a written notice as soon as practicable after entry remains.

Given the long-term practice of WHS entry permit holders being permitted to enter a workplace for lower-level disputes, employers should brace for resistance to the amendments by WHS entry permit holders. Disputes about whether an alleged contravention meets the threshold to permit entry without notice are likely.

Section 364 of the Bill confirms that the current provisions of the WHS Act concerning right of entry will remain in force until the Bill is given Royal Assent.

Imminent ability for health and safety representatives to take photos, videos, measurements and conduct tests will not proceed

In August 2024, the WHS Act was amended by the (then) Labor Government to enable a health and safety representative (HSR) to take photos, videos, measurements and to conduct tests of a suspected contravention of the WHS Act. Those provisions were to come into effect on 1 January 2025.

Following concerns raised by employers about the privacy implications such rights might cause, the Queensland Government has confirmed that those provisions will not come into force.

Cease work directions simplified

The WHS Act was also amended in August 2024 to redesign the process for a HSR to issue a cease work direction. As part of those amendments, a HSR was able to issue a cease work notice to an employer which required them to instruct workers to cease unsafe work. Amendments contained in the Bill will simplify the process by enabling a HSR to issue a cease work notice directly to workers, instructing them to cease unsafe work, if the HSR has consulted with the employer and the issue remains unresolved. The requirements for a cease work direction to be in writing, the notice to be placed in a prominent location at the worksite and for the employer to be given a copy will remain.

Once the changes come into effect, if a WHS entry permit holder attends your worksite without notice and seeks to exercise statutory right of entry powers, you should assess the following:

• whether the alleged safety contravention the WHS entry permit holder cites on their entry notice is one that exposes a worker to a serious risk to their health and safety, emanating from an immediate or imminent exposure to a hazard;
• if the answer is yes, which workers the alleged safety contravention are exposed to a serious risk to their health and safety; and
• are the workers exposed to the alleged safety contravention working in a role that entitles the WHS entry permit holder's union to represent them.

If you require advice regarding your obligations under the WHS Act, or you find yourself involved in a dispute with a WHS entry permit holder seeking entry to your worksite, please contact us below.