Australia: Overhaul of WHS Act right of entry dispute resolution process in Queensland

On 22 June 2020, the Community Services Industry (Portable Long Service Leave) Act 2020 (Qld) (PLSL Act) received royal assent. The PLSL Act includes significant changes to the right of entry dispute resolution processes in the Work Health and Safety Act 2011 (Qld) (WHS Act).

The WHS Act previously enabled Workplace Health and Safety Queensland (WHSQ) inspectors to exercise powers to resolve disputes about the exercise or purported exercise of a right of entry into a workplace regarding health and safety issues. If union officials sought to enter a workplace to exercise powers under the WHS Act or the Fair Work Act 2009 (Cth) (FW Act), WHSQ inspectors could attend and issue directions about whether there was a valid right to enter. Any such decisions could be reviewed by the Queensland Industrial Relations Commission (QIRC).

The Queensland District Court recently considered this process in Commissioner of Police v Seiffert & Ors [2020] QDC 50. That matter involved union officials entering an ENCO Precast workplace as permit holders under the WHS Act and the FW Act to inquire into suspected work health and safety contraventions. The union officials remained on the premises after being asked to leave by the company's general manager. The union officials then asked WHSQ to appoint an inspector to assist in resolving the dispute over the purported exercise of the right to enter. The attending WHSQ inspector did not exercise powers granting access to the union officials. The general manager contacted the Queensland Police, who eventually arrested the union officials for trespass.

The District Court determined that the WHS Act provides entry permit holders with a right to enter a workplace to inquire into suspected work health and safety contraventions relating to relevant workers. This right of entry allows entry permit holders to remain at the workplace, but only to conduct these inquiries. While the union officials remained at the premises for over three hours before being arrested, no finding was made that they were actually engaged in inspections or consultations relating to suspected contraventions. The District Court determined that the Magistrate had erred in considering whether the union officials exercised a right of entry to the ENCO Precast premises, as the correct issue was whether they had an honest claim of right to remain at the workplace.

Key Changes

The Explanatory Notes for the PLSL Act criticise this process on the basis that WHSQ inspectors have to make 'on the spot' decisions that can be ignored and because resolving these disputes takes WHSQ inspectors away from their critical role of enforcing the WHS Act.

The relevant PLSL Act objective is to establish a 'more efficient' framework for resolving right of entry disputes. The PLSL Act amends the WHS Act by removing the powers of WHSQ inspectors to assist in resolving right of entry disputes. While WHSQ inspectors can still attend to assist to resolve a dispute, they cannot make any decisions or directions. As such, parties to right of entry disputes must now direct the dispute to the QIRC for resolution.

Additionally, the PLSL Act changes increase the WHS Act penalties for offences relating to refusing, delaying, hindering or obstructing WHS entry permit holders exercising right of entry powers from 100 penalty units to 500 penalty units (currently being an increase from $10,000 to $50,000). In addition, the offence of assaulting, threatening or intimidating WHSQ inspectors has been increased to 1000 penalty units (currently $100,000).

Implications for Employers

Employers must be aware that if there is a dispute about the exercise or purported exercise of a right of entry, the parties to the dispute can no longer benefit from WHSQ inspectors resolving the dispute on the spot. While WHSQ inspectors can still provide non-binding assistance, any ongoing dispute must be directed to the QIRC.

The power to call police where it is alleged that union officials are trespassing, by unlawfully remaining at premises despite being asked to leave, remains unaffected. However, police may be unwilling to make a determination about whether union officials are properly exercising right of entry powers.

By requiring a referral to the QIRC and increasing penalties for obstruction, employers will need to make an 'on the spot' decision regarding the validity of right of entry powers and may feel under more pressure to allow entry, without the benefit of any binding WHSQ Inspector directions. Accordingly, obtaining immediate legal advice in these circumstances will be crucial.

Access PLSL Act here.

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