Australia: Employment Update – Right Of Entry In Queensland – An Employer’s Juggling Act

‘Work Choices’ employers in Queensland are now required to comply with the right of entry provisions in both State and Federal legislation and juggle those obligations.

The Workplace Health and Safety and Other Acts Amendment Act 2006 (Qld) was assented to on 17 May 2006. It amends the Workplace Health and Safety Act 1995 (Qld) (WHSA) and is enacted (according to the explanatory notes) in response to the restrictions concerning right of entry set out in the recently enacted Commonwealth Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which amends the Workplace Relations Act 1996 (Cth) (WRA).

There are now two right of entry regimes operating in Queensland:

1. Right of entry under the WRA.
2. Right of entry under the WHSA.

The amended WRA significantly altered the ability of union officials to gain entry to an employer’s premises.

The WRA allows an official to enter premises in three possible circumstances:

• To investigate a breach of the WRA or an Australian Workplace Agreement (but only if the employee who is a party to it makes a written request to the organisation to investigate the breach), an award or collective agreement.

• To hold discussions (during mealtime or other breaks) with employees who are covered by an award or collective agreement, who are members or eligible to become members of the organisation that is seeking to hold the discussions and who wish to participate in those discussions.

• To investigate an occupational health and safety matter (in accordance with a State or Territory law).

The WRA does not itself provide a right to enter to investigate occupational health and safety matters and leaves this to be governed by the States and Territories. In Queensland, the WHSA will apply.

It is not easy to obtain a permit under the WRA and in deciding whether or not to issue a permit, the Registrar must be satisfied that the applicant is a ‘fit and proper’ person and in doing so must consider whether:

• The official has received the appropriate training about the rights and responsibilities of being a permit holder.

• The official has been convicted of an offence against an industrial law, or in relation to entry to premises, fraud or dishonesty or the intentional rise of violence.

• The official has been ordered to pay a penalty under the Act or any other industrial law.

• The official has previously had a permit revoked, suspended or made subject to conditions.

The amendments to the WHSA are said to have been introduced to provide clarity about a person’s powers to enter a Queensland workplace on workplace health and safety grounds. It is also said to have been enacted to bring Queensland into line with OHS laws in the Australian Capital Territory, New South Wales and Victoria.

The WHSA allows entry on two different bases. First, in relation to a breach, or suspected breach of the WHSA and second, in relation to the holding of general discussions about workplace safety.

The WHSA includes a power for an authorised representative to enter a workplace where they have a reasonable suspicion that a breach of the WHSA has happened or is happening and that it relates to or affects a member (or person eligible to be a member) of the organisation to which the authorised representative belongs.

After entering the workplace in relation to a breach or suspected breach of the WHSA, an authorised representative will be able to:

• Inspect any plant, substance or other 'thing'.

• Observe work carried out.

• Speak to a person who is a member of the authorised representative's organisation with that person's consent.

• Speak to the occupier.

• Require the production of documents for inspection and copying – including employment records relevant to the suspected contravention.

• Require the occupier to give 'reasonable help'.

An authorised representative may enter a workplace to discuss matters relating to workplace health and safety with a member (or person eligible to be a member) of the organisation to which the authorised representative belongs, only if that member wants to take part in that discussion and only during a work break, including a meal break.

For either type of entry to the premises under the WHSA, the authorised officer must give at least 24 hours notice (or in certain limited circumstances as soon as practicable after the entry).

‘Work Choices’ employers covered by the WRA will need to consider the interrelationship between the WRA and the WHSA. For unincorporated entities and other employers that remain solely in the Queensland jurisdiction, the Industrial Relations Act 1999 (Qld) and the WHSA will remain the governing pieces of legislation in relation to right of entry.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.