Work Health and Safety and Other Legislation Amendment Act 2024

The prohibition on using insurance arrangements to avoid responsibility for paying work health and safety penalties has already come into effect. The effectiveness of monetary penalties (e.g. a fine) as a deterrent is significantly undermined if businesses can take out insurance to cover this cost. Both the WHS Act and Safety in Recreational Water Activities Act 2011 prohibit a person entering into, providing or benefiting from an insurance contract or arrangement that purports to cover monetary penalties under these Acts.

Learn more about the prohibition on insurance.

Schedule 1 of the WHS Act has been amended to clarify that the WHS Act and Rail Safety National Law (Queensland) apply concurrently.

This amendment clarifies who can be involved in addressing work health and safety issues at a workplace. It includes suitable entities that can represent health and safety representatives (HSR) and workers. A suitable entity for representing, or assisting a worker or the HSR, means 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.
An excluded entity for representing or assisting a worker or HSR 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 or representative
• 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 representative
• an officer, employee, agent of an excluded entity.

A relevant union 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. The union must be an employee organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) or Industrial Relations Act 2016.

Amendments clarify the rights and responsibilities of WHS entry permit holders (EPH), and ensure they have access to necessary information to fulfill their roles effectively.

• An EPH can enter a workplace for the purpose of giving notice of entry. A notice is not invalid merely because it contains a minor administrative error (e.g. a spelling error or incorrect name of a person or relevant union which is otherwise sufficiently identified in the notice).
• An EPH can enter a workplace to inquire into suspected contraventions of the WHS Act or Electrical Safety Act 2002 and remain at the workplace, during its normal working hours, for the time necessary to achieve the purpose of entry.
• An EPH who has given notice of entry for a suspected contravention is not required to give additional notice to view relevant employee records or other documents held or accessible at the workplace, or to consult workers about the suspected contravention.
• It is not reasonable for a person conducting a business or undertaking (PCBU) to request the EPH to comply with a WHS requirement if it would unduly delay, unreasonably prevent or hinder the EPH exercising a right of entry (e.g. requiring off-site induction at a location far from where entry is sought, or unnecessary use of exclusion zones).
• Information obtained by an EPH when inquiring into a suspected contravention may be used or disclosed if a person reasonably believes it is necessary to lessen or prevent a serious threat to public health or safety, whether in relation to the suspected contravention or more generally. This is intended to allow use or disclosure of information for public awareness or education.

Minor technical amendments to improve the operation of the WHS Act include:

• clarifying the regulator’s powers to obtain information has extraterritorial application (e.g. outside Queensland)
• a consistent approach to issuing and serving notices to obtain information
• clarifying information sharing between regulators.

Minor technical amendments to improve the operation of the WHS Act include:

• allowing a person to answer questions by audio or audio-visual link rather than attending in person before an inspector
• a consistent approach to serving notices for a person to produce a document or answer questions.

Amendments relating to prosecutions include:

• extending the 12-month timeframe to 18 months after an act or omission for a person to request the WHS Prosecutor bring a prosecution for a Category 1 or 2 offence
• providing a request can be made within six months of a coronial report, or a coronial inquiry or inquest ending
• requiring the regulator to provide written updates on investigations every three months to a person who has made a request until a decision is made on whether a prosecution will be brought
• the WHS Prosecutor can authorise an appropriately qualified member of staff from their office to bring proceedings under the WHS Act.

Codes of practice must be reviewed at least every five years, rather than expire after five years.

The Minister may establish industry sector standing committees by gazette notice. No more than ten committees may exist at any point in time.

The Persons Affected by Work-related Fatalities and Serious Incidents Consultative Committee is re-named as the Consultative Committee for Work-related Fatalities and Serious Incidents, informally known as the “Consultative Committee”.

A person conducting a business or undertaking (PCBU) must consult with a representative of the workers if this is requested by one or more of the workers. Where this consultation is to be carried out at the workplace, the PCBU must carry out the consultation at the time and place agreed to by the parties.

A PCBU must share relevant information with workers when carrying out consultation about a matter, but this does not require a PCBU to allow representatives to have access to identifying personal or medical information about workers (unless the worker has given consent) or confidential commercial information.

Amendments to promote the election of health and safety representatives (HSRs) to represent workers in a work group include:

• a person conducting a business or undertaking (PCBU) must not intentionally hinder, prevent, or discourage a worker from requesting an election for HSRs
• a PCBU must not intentionally hinder, prevent or discourage the election of an HSR or deputy HSR or a person conducting the election from following election procedures
• a PCBU must inform workers in writing about:
  • their right to request the election of HSRs and establish work groups
  • the role, powers and functions of HSRs and the process for electing them, and
  • who can represent workers during negotiations about work groups
• a PCBU must invite workers to request the facilitation of an election for one or more HSR.

Further guidance will be developed to assist PCBUs in providing this information.

Amendments providing a clear process and timeframe for work group negotiations include:

• a work group must be determined by negotiation and agreement between:
  • the person conducting a business or undertaking (PCBU)
  • the workers who are proposed to form the work group or their representatives
  • a relevant union for a worker if the union notifies the PCBU in writing they want to be a party to the negotiation and agreement.
• if a worker’s representative or relevant union are a party to the negotiations to be carried out at the workplace, the parties must agree on when and where the workplace negotiations are to be carried out, and ensure they are carried out at the agreed time and place.
• negotiations must be completed within 14 days of the request for the facilitation of an election for a health and safety representative, but the completion date can be extended if the parties mutually agree.
• if negotiations to make or vary an agreement fail, any person who is a party to the negotiations may ask the regulator to appoint an inspector to assist the parties in reaching an agreement.
• an inspector must first attempt to assist the parties and if they reasonably believe the parties are unlikely to reach an agreement within seven days, the inspector must make a decision about the work group negotiations within seven days.
• an inspector’s decision will not be subject to internal review, and any dispute about the decision can proceed to the Queensland Industrial Relations Commission.

The powers and functions of health and safety representatives (HSRs) are amended to:

• empower HSRs to request and receive information concerning the work health and safety of workers in the work group
• allow HSRs to accompany an entry permit holder (EPH) at the workplace where the EPH’s reason for entry relates to the HSR’s work group
• enable an HSR to request assistance from a suitable entity for the HSR (this amendment is proposed to commence in May 2024).

A health and safety representative’s (HSR) power to direct that unsafe work cease is amended so that:

• the direction to cease work by an HSR must be issued to the person conducting a business or undertaking (PCBU) if attempts to resolve the matter have failed
• the direction to cease work is provided in writing through a cease work notice
• the PCBU must direct workers to cease unsafe work until such time as the issue is resolved or the direction is set aside under the dispute resolution process
• the HSR must display the cease work notice in a prominent place for workers in the affected work group.

HSRs retain the ability to issue a cease work direction to a worker in circumstances where there is an immediate exposure to a risk so serious that prior consultation with the PCBU is not reasonable.

WHSQ will be developing a template cease work notice for HSRs.

A health and safety representative can issue a provisional improvement notice (PIN) if they reasonably believe a person is contravening the WHS Act and it is likely the contravention will continue or be repeated. The timeframe for complying with a PIN is reduced from eight days to four days, except in circumstances where all parties agree to extend the timeframe.

The period for when a person can ask the regulator to appoint an inspector to review a PIN is reduced to three days.

Amendments to clarify the rights of health and safety representatives (HSRs) in relation to HSR training include:

• HSRs can choose their own training provider for the HSR training courses that have been approved by the regulator
• the person conducting a business or undertaking (PCBU) must allow the HSR to attend the training and ensure HSRs receive their usual pay (including overtime, penalties, and allowances) they would get if they were performing their normal duties
• HSRs who are part time and work extra hours to attend training must be paid their regular wage for those additional hours
• if a PCBU and HSR cannot reach agreement about these matters, either party may ask the regulator to appoint an inspector to assist in resolving the matter.

Amendments clarifying a person conducting a business or undertaking’s (PCBU) general obligations in relation to health and safety representatives (HSRs) include:

• allowing access to information the HSR is entitled to request
• informing HSRs about notices issued by an inspector or WHS entry permit holder (EPH), and providing a copy to the HSR if the PCBU has been given the notice
• giving the HSR a copy of incident notifications made to the regulator
• when HSRs must be informed that an EPH or inspector has entered the workplace
• allowing the HSR to accompany the EPH or inspector at the workplace
• paying an HSR exercising their powers or functions under the Act the amount (including any overtime, penalties or allowances) they would get if they were performing their normal duties during the same period
• if a dispute arises between the PCBU and HSR about refusal to grant access to information or give a copy of a notice, the HSR may ask the regulator to appoint an inspector to assist in resolving the dispute.

Amendments providing a clear process and timeframe for establishing a health and safety committee (HSC) include:

• a person conducting a business or undertaking (PCBU) must establish an HSC as soon as practicable but not later than 28 days after receiving a request to do so.
• if the parties are unlikely to reach agreement within 28 days, they may ask the regulator to appoint an inspector to assist the parties reach agreement about the constitution of an HSC.
• if the inspector reasonably believes the parties are unlikely to reach an agreement with seven days of being appointed to assist, the inspector must make a decision about the HSC.
• an inspector’s decision will not be subject to internal review, and any dispute about the decision can proceed to the Queensland Industrial Relations Commission.

The WHSOLA Act ensures that discriminatory conduct also includes where a worker is treated less favourably than other workers of the person on the basis the worker has been or seeks to be involved in WHS issues in the workplace.

The jurisdiction of civil proceedings for discriminatory or coercive conduct is now with the Queensland Industrial Relations Commission.

The WHSOLA Act streamlines the issue and dispute resolution process by clarifying 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.

Pathways for dispute resolution

The WHSOLA Act has split dispute resolution into two pathways.

The first pathway is where an inspector is required to first make a decision before the matter can be referred to the QIRC. These matters relate to work group determinations, work group variations and the constitution of health and safety committees.

The second pathway is for matters where parties to an issue 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.

These matters include disputes about:

• health and safety representative (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.

The WHSOLA Act provides that the following matters will now be considered by the Queensland Industrial Relations Commission (QIRC):

• civil proceedings for discriminatory and coercive conduct, and
• WHS civil penalty proceedings.

Costs awarded by the QIRC for external reviews under section 229 of the WHS Act will now be limited to costs of the hearing.

The WHSOLA Act also clarifies 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 sections 126, 144(1), 145, 146 and 147(1) of the WHS Act.

The following amendments in the WHSOLA Act will commence on a date to be proclaimed in the future:

• HSRs and EPHs being able to request information in improvement, prohibition and non-disturbance notices from the regulator
• prescribing high risk plant for non-workplace areas by regulation and a consequential amendment to the Public Health Act