Right of Entry for Workplace Health and Safety Queensland (WHSQ) inspectors
On 22 June 2020, the Community Services Industry (Portable Long Service Leave) Act 2020 (Qld) (PLSL Act) passed legislation. The PLSL Act includes substantial changes to the right of entry dispute resolution processes in the Work Health and Safety Act 2011 (Qld).
The WHS Act initially enabled Workplace Health and Safety Queensland inspectors to exert powers to resolve disputes about the right of entry into a workplace regarding health and safety issues. If union officials attempted to enter a workplace to exercise powers under the WHS Act or the Fair Work Act 2009, WHSQ inspectors could visit and issue instructions about whether there was a valid right to enter. Any such decisions could be reviewed by the Queensland Industrial Relations Commission
The Queensland District Court recently considered this procedure when it determined Commissioner of Police v Seiffert & Ors. This matter involved union officials making unwanted unannounced visits into an ENCO Precast site. The officials from the union stayed on the facilities despite being ordered to leave by the general manager of the company. The union officials then requested WHSQ to name an inspector to facilitate solving the disagreement over alleged right to enter. The WHSQ inspector did not use powers allowing accessibility to the union officials. The general manager called the Queensland Police, and this led to the arrest of the union members.
The District Court ruled that the WHS Act provides entrance permit holders with a right to enter a place of work to enquire into alleged work health and safety infringements concerning to relevant workers. The right of entry would allow entry-permit holders into the site, but only to do inquiries. While the union officials stayed at the site for over three hours until being arrested, no finding was made that they were actively engaged in inspections or consultations relating to suspected infringements. The District Court ruled that the Magistrate had precluded in taking into consideration whether the union officials exercised a right of entry to the ENCO Precast premises, as the appropriate concern was whether they had an honest claim of right to stay at the place of work.
Regulators note that WHSQ examiners frequently have to make off the cuff decisions that are "easy to overlook, ignore or have only slight consequences."
The appropriate PLSL Act objective is to establish a 'more effective' framework for trying to resolve right of entry disputes. The PLSL Act amends the WHS Act by having removed the powers of WHSQ inspectors to help solve right of entry disputes. While WHSQ inspectors can still attend to help resolve a conflict, they cannot make a decision or provide directions. As such, stakeholders to right of entry disagreements must now direct the dispute to the QIRC for resolving.
Additionally, the PLSL Act changes have increased the WHS Act penalties for offences relating to refusing, delaying, hindering or obstructing WHS entry permit holders trying to exercise right of entry powers from 100 penalty units to 500 penalty units (currently being a ramp up from $10,000 to $50,000). The fine of assaulting, threatening or intimidating WHSQ inspectors has been elevated to $1000.
Ramifications for employers.
Employers need to be aware that if there is a disagreement about the exercise or perceived exercise of a right of entry, the disputing parties can no longer benefit from WHSQ inspectors resolving the disagreement on the spot. While WHSQ inspectors can still offer non-binding help and support, any continuing dispute must be directed to the QIRC.
The ability to call police where it is believed that union officials are trespassing, by illegitimately remaining at a site or premises despite being asked to leave, remains untouched. However, a police officer can find it difficult to rule if union officials have the legal right to enter a workplace.
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