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Work Health and Safety and Other Legislation Amendment Bill 2015
Work Health and Safety and Other Legislation
Amendment Bill 2015
Explanatory Notes
Short title
The short title of the Bill is the Work Health and Safety and Other Legislation Amendment
Bill 2015.
Policy objectives and the reasons for them
The Bill implements election commitments made by the Government as part of the Improving
safety for Queenslanders at work policy. In particular, the Government committed to
restoring elements of the Work Health and Safety Act 2011 (WHS Act) that were changed
following a review of the model work health and safety (WHS) laws in 2012. This includes:
restoring right of entry powers allowing WHS entry permit holders to gain immediate
access to a workplace to inquire into a suspected contravention of the WHS Act; and
empowering trained health and safety representatives (HSR) to direct workers to cease
unsafe work.
The Government also committed to:
amending the current incident notification requirements to include an additional
requirement for employers to notify the regulator when a worker is absent for more than
four days due to a workplace injury; and
improving electrical safety by re-instating the Electrical Safety Commissioner, Electrical
Safety Education Committee, Electrical Equipment Committee which were abolished in
2012.
Achievement of policy objectives
The Bill will achieve the policy objectives by amending legislation to:
allow WHS entry permit holders to enter a workplace immediately if they suspect a
contravention has occurred and provide notice of entry as soon as is reasonably
practicable afterwards, removing the requirement to provide at least 24 hours' notice of
entry;
reinstate the power for a trained HSR to direct a worker in their work group to cease
work if they have a reasonable concern that to carry out the work would expose the
worker to a serious risk to their health and safety, emanating from an immediate or
imminent exposure to a hazard. This will restore consistency with the model WHS laws;
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Work Health and Safety and Other Legislation Amendment Bill 2015
allow HSRs to request the assistance of any person, removing the requirement for at least
24 hours' notice if the assistant requires access the workplace;
remove the penalty for failing to provide notice of entry to inquire into a suspected
contravention of the WHS Act, consult and advise workers and make copies of
documents relevant to a suspected contravention. This penalty does not exist in the
model WHS laws;
decrease the maximum penalty for contravening WHS entry permit conditions from 200
penalty units to 100 penalty units, to restore consistency with the model WHS laws;
reinstate a requirement from the repealed Workplace Health and Safety Act 1995 for the
regulator to be notified of workplace injuries that result in a worker being off work for
more than four days; and
reinstate the Electrical Safety Commissioner, Electrical Safety Education Committee,
and Electrical Equipment Committee.
Alternative ways of achieving policy objectives
The policy objectives can only be achieved by legislative amendment.
Estimated cost for government implementation
There are no significant financial impacts arising from the proposed amendments.
The amendments in relation to the powers of HSRs to direct workers to cease unsafe work
and WHS entry permit holders at clauses 21 and 23 are not likely to increase costs as existing
WHS Act provisions already allow for right of entry by permit holders and for individual
workers to cease unsafe work.
The incident notification amendments at clause 16 may add to the burden for business,
however are not likely to have a significant financial impact as businesses should already
have systems in place to record and notify work-related injuries.
The amendments in Part 2 to reinstate the Commissioner for Electrical Safety and re-establish
the Electrical Safety Education Committee and the Electrical Equipment Committee do not
have significant costs impacts and will be met within existing departmental resources.
Consistency with fundamental legislative principles
The Bill is generally consistent with fundamental legislative principles. Potential
inconsistencies with fundamental legislative principles are addressed below.
Confer protection from civil liability on the Electrical Safety Commissioner
The existing section 192B will confer protection from civil liability on the Electrical Safety
Commissioner. The protection applies for an act or omission by the Commissioner done or
omitted to be done in good faith and in the execution or purported execution of powers and
functions under the Electrical Safety Act 2002 (ES Act), and for the liability to attach to the
State instead.
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Work Health and Safety and Other Legislation Amendment Bill 2015
OQPC notes that this issue is unlikely to be of concern as this protection already exists for
other persons under s192B of the ES Act.
Response:
Section 192B continues the civil liability protection previously afforded to the position of
Electrical Safety Commissioner under previous section 205 which was omitted in 2014.
Given the proposed immunity is limited to acts or omissions that are done in good faith and
in the execution or purported execution of powers and functions under the Act, the proposed
sections are appropriate and justified. Other recent legislative amendments have included
similar provisions conferring immunity where an officer is acting within the scope of his or
her legislative authority and in good faith, e.g. Public Safety Business Agency Bill 2014.
Injury or illness prescribed under a regulation
Section 4(4)(c) of the Legislative Standards Act 1992 provides that whether legislation has
sufficient regard to the institution of Parliament depends on whether a bill authorises the
amendment of an Act only by another Act. Clause 16 provides that the scope of what
constitutes a 'serious injury or illness' can be further extended in the regulations. OQPC
believes this may be regarded as an objectionable Henry VIII clause or delegation of power
unless it is for a justifiable use such as to facilitate immediate executive action for health and
safety reasons, or to facilitate the application of national schemes of legislation.
Response:
The Bill allows the definition of 'serious injury of illness' to be further extended by
subordinate legislation due to the breadth of possible injuries or illnesses. This extension is
not intended to amend the provisions in question - they would still be read in the same way
and any extension of the definition is limited to the objects of the WHS Act. Complex
national legislative schemes, such as the one for work health and safety, needs to be
facilitated by strong regulation making powers.
Reinstate the power of a health and safety representative (HSR) to direct a worker to cease
unsafe work
Clause 21 provides that a HSR has the ability to direct a worker to cease work if the
representative has a reasonable concern that the work would expose the worker to a serious
risk to their health and safety, emanating from an immediate or imminent exposure to a
hazard. The provisions empowering a HSR to direct the cessation of work were removed
under the Work Health and Safety and Other Legislation Amendment Act 2014. Clause 21
reinstates this power.
OQPC notes that this proposal may have an impact on the rights and liberty of individuals,
e.g. employers, however, it is also noted that there are safeguards (e.g. resolution of issues
under ss80, 81, 82 or 89 of the WHS Act) and the power may be justifiable for health and
safety reasons.
Response:
The power of a trained HSR to direct a worker to cease unsafe work will be qualified in that a
HSR must form a reasonable concern that performance of the work would expose the worker
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Work Health and Safety and Other Legislation Amendment Bill 2015
to a serious risk to their health and safety emanating from the immediate or imminent
exposure to a hazard.
The power to direct unsafe work to cease will also be governed by the obligation to consult
with a PCBU prior to issuing a direction to cease work. For example, Part 5 Division 5 of the
WHS Act requires parties to make a reasonable attempt to resolve an issue, and where this
fails, enables the issue to be referred to the regulator. Where it is not reasonable to consult
with a PCBU due to imminent safety risk, consultation with a PCBU must occur as soon
possible after the direction is issued. A PCBU may also direct a worker to carry out suitable
alternative work at the same or another workplace if that work is safe and appropriate for the
worker to carry out until the worker can resume normal duties and does not affect the service
period of the worker's employment.
Restoring this provision will also align with the cessation of work provisions contained in the
model WHS laws and adopted by other participating jurisdictions.
Restore the right for work health and safety entry permit holders and health and safety
representative assistants to gain immediate access to a workplace
Clause 23 gives a WHS entry permit holder the right to gain immediate access to a workplace
to inquire into a suspected contravention of the Act and clause 17 removes the requirement
for HSRs provide at least 24 hours' notice if a person assisting the HSR requires access to the
workplace.
Before the amendments to the WHS Act under the Work Health and Safety and Other
Legislation Amendment Act 2014, the WHS Act contained provisions that allowed:
WHS entry permit holders to gain immediate access to a workplace to inquire into a
suspected contravention of the WHS Act and provide notice as soon as is reasonably
practicable afterwards; and
a HSR to request the assistance of any person without providing notice.
The 2014 amendments introduced minimum 24 hours' notice requirements for both these
access provisions. The intention of the Bill is to restore the original elements of the
harmonised WHS Act.
The Office of Queensland Parliamentary Counsel (OQPC) notes that reinstatement of these
provision is unlikely to be of concern where there are appropriate safeguards and the power
relates to entry into business premises and is justifiable for health and safety reasons.
Response:
WHS entry permit rights may only be exercised in limited circumstances, i.e. in relation to
suspected contraventions that relate to, or affect, the health and safety of a worker. There are
also a number governance arrangements around exercising this power, in particular, entry
powers can only be exercised during usual working hours, only in the area of the workplace
where relevant workers work, and do not extend to entry of any part of a workplace that is
used for residential purposes. The proposed amendment is also considered to be in the public
interest with the main focus being to promote the health and safety of persons at the
workplace.
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Work Health and Safety and Other Legislation Amendment Bill 2015
The WHS Act clearly defines the functions and powers of a HSR to ensure they can perform
this role effectively and reasonably. A person assisting an HSR is limited to providing
assistance and they cannot exercise a HSR's functions and powers. If the person assisting the
HSR also happens to be a WHS entry permit holder, the governance arrangements in the
WHS Act that apply to WHS entry permit holder would be applicable to any action taken by
that person as a WHS entry permit holder. Additionally, a person conducting a business or
undertaking (PCBU) may refuse to grant a HSR assistant access to the workplace if there are
reasonable grounds for doing so.
Consultation
There has been no formal consultation as the proposals in the WHS Bill were announced as
part of the Government's pre-election commitments in Improving safety for Queenslanders at
work.
Consistency with legislation of other jurisdictions
The WHS Act adopts the nationally agreed model WHS laws which provide a nationally
consistent framework for the health and safety of workers and workplaces. The Bill will
realign the majority of the Queensland WHS Act with the current model WHS laws.
The amendment at clause 16 to include an additional requirement for employers to notify the
regulator when a worker is absent for more than four days due to a workplace injury will be
different from other harmonised jurisdictions.
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Work Health and Safety and Other Legislation Amendment Bill 2015
Notes on provisions
Part 1 Preliminary
Clause 1 sets out the short title of the Bill.
Clause 2 states clause 16 and 26 commence six months after the date of assent and that Part 2
commences on a day to be fixed by proclamation.
Part 2 Amendment of Electrical Safety Act 2002
Clause 3 states that Part 2 amends the Electrical Safety Act 2002.
Clause 4 amends section 5 (How purpose of Act is to be achieved) to re-establish the role of a
Commissioner for Electrical Safety and specific committees to promote community
awareness about electrical safety (electrical safety education committee) and participate in
developing requirements for the electrical safety of electrical equipment (electrical equipment
committee).
Clause 5 reinstates Part 6 - Commissioner for electrical safety.
This part provides for the appointment of a Commissioner for Electrical Safety by the
Governor in Council. The commissioner will resume the key role of managing the activities
of the Electrical Safety Board and its committees and providing independent advice to the
Minister on electrical safety matters. Part 6 reinserts the previous requirements and functions
relating to the role including:
requirements that for a person to be appointed as commissioner, the person must have
an electrical trade or qualification and professional experience in electrical safety,
outlining the employment provisions for the commissioner, which are to be approved
by the Governor in Council,
allowing for the commissioner's appointment to be ended, either by resignation or in
accordance with contract provisions,
providing for the appointment of a person to act as commissioner during any vacancy
or period of absence. The acting commissioner is appointed for a term and on
conditions decided by the Minister,
outlining the commissioner's functions, including managing the activities of the
Electrical Safety Board and its committees, chairing the Electrical Safety Board and
the electrical licensing committee, and providing independent advice to the Minister
on electrical safety matters, and
providing that the commissioner has the powers necessary to carry out his or her
functions.
Clause 6 amends section 77 to remove the position of chairperson, as a member of the
Electrical Safety Board appointed by the Minister, and reinstates the commissioner as the
chairperson of the Electrical Safety Board.
Clause 7 amends section 86 to allow for the reestablishment of the electrical safety education
committee and the electrical equipment committee.
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Work Health and Safety and Other Legislation Amendment Bill 2015
Clause 8 amends section 89 to reinstate the commissioner as the chairperson of the electrical
licence committee.
Clause 9 reinstates Part 8, division 2A to re-establish the electrical safety education
committee to provide advice and make recommendations to the Electrical Safety Board about
the promotion of electrical safety in workplaces and the broader community. The reinstated
Part also provides ways the electrical safety education committee may discharge its functions.
The regulator must provide administrative and other support to enable the committee to
perform its functions efficiently and effectively.
The reinstated committee will consist of the chairperson and at least six other members
appointed by the Minister. In choosing members of the committee the Minister must consider
the person's practical experience and competence in the promotion and marketing of
electrical safety. The Minister must seek to appoint both men and women as members of the
committee.
This clause also reinstates Part 8, division 2B to re-establish the electrical equipment
committee to provide advice and make recommendations to the Electrical Safety Board about
the safety of electrical equipment. The committee will give advice and make
recommendations to the Electrical Safety Board about energy efficiency and the performance
of electrical equipment. The reinstated Part also provides ways in which the electrical
equipment committee may discharge its functions. The regulator must provide administrative
and other support to enable the committee to perform its functions efficiently and effectively.
The reinstated committee will consist of a chairperson and at least six other members
appointed by the Minister. In choosing committee members the Minister must consider a
person's practical experience and competence in promoting and marketing electrical safety.
The Minister must seek to appoint both men and women as members of the committee.
Clause 10 amends section 98 to provide that the reinstated commissioner is not precluded
from being appointed as a member of an advisory committee.
Clause 11 amends section 99 to allow for the commissioner to be paid remuneration and
allowances as an appointed member of an advisory committee.
Clause 12 amends section 184 to reflect the commissioner's reinstated role as chairperson of
the licensing committee.
Clause 13 inserts a new Part 22 which provides transitional arrangements which clarify that
current chairpersons of the Electrical Safety Board and Electrical Licensing Committee will
hold office until an Electrical Safety Commissioner is appointed.
Clause 14:
amends the definition of board committee to include the reinstated safety education
committee and equipment committee, and
reinserts the definitions of equipment committee and safety education committee.
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Work Health and Safety and Other Legislation Amendment Bill 2015
Part 3 Amendment of Work Health and Safety 2011
Clause 15 states that Part 3 amends the Work Health and Safety Act 2011.
Clause 16 amends the definition of 'serious injury or illness' to include an additional
requirement to notify the regulator of an injury or illness causing a person to be absent from
the persons voluntary or paid employment for more than four days.
Clause 17 makes a consequential amendment to the note in section 68(2) to include the
reference to health and safety representatives having the power to direct work to cease in
certain circumstances.
The clause also omits subsections 68(3A) to (3C) so that health and safety representatives
(HSRs) are no longer required to give at least 24 hours, but no more than 14 days, notice
before the assistant's proposed entry to the workplace.
Clause 18 omits sections 71(5A) so that a person conducting a business or undertaking is no
longer permitted to refuse to grant access to a workplace to a person assisting a HSR if the
HSR has not given the required notice.
Clause 19 makes a consequential amendment to subsection 82(3)(b) as a result of reinserting
section 85 so that a HSR can direct a worker in their work group to cease work.
Clause 20 amends the definition of 'cease work under this division' under section 83 to
include a reference to 'cease work on a direction of a HSR'.
Clause 21 establishes a HSRs' power to direct that unsafe work cease. In general, this power
can only be used to direct workers in the HSR's own work group, unless the special
circumstances in section 69 of the WHS Act apply. A HSR's deputy could also exercise this
power in the circumstances set out in section 67 of the WHS Act.
New section 85(1) sets out the circumstances in which an HSR may direct that unsafe work
cease. Similar to section 84 of the WHS Act, a HSR may issue the direction under this clause
to a work group member if:
they have a reasonable concern that carrying out the work would expose the work
group member to a serious risk to their health or safety, and
the serious risk emanates from an immediate or imminent exposure to a hazard.
New section 85(2) requires HSRs to consult with the relevant person conducting a business or
undertaking (PCBU) and attempt to resolve the work health or safety issue under Division 5
of the WHS Act before giving a direction under this clause. However, these steps are not
necessary if the risk is so serious and immediate or imminent that it is not reasonable to
consult before giving the direction (new section 85(3)). In that case, the consultation must be
carried out as soon as possible after the direction is given (new section 85(4)).
New section 85(5) requires a HSR to inform the PCBU of any direction to cease work that
the HSR has given to workers.
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Work Health and Safety and Other Legislation Amendment Bill 2015
New section 85(6) provides that only an appropriately trained HSR may exercise the powers
under this provision, that is if the HSR has:
completed initial HSR training as set out under the regulations, whether for the HSR's
current work group or another workgroup (including a work group of another PCBU),
or
undertaken equivalent training in another jurisdiction.
Clause 22 is a consequential amendment to section 86 as a result of reinserting section 85 so
that a HSR can direct a worker in their work group to cease work.
Clause 23 sets out the provisions regarding notice after entry by a WHS entry permit holder.
New section 119(1) requires a WHS entry permit holder to provide notice, in accordance with
the regulations, to the relevant PCBU and the person with management or control of the
workplace as soon as is reasonably practicable after entering a workplace under section 117
of the WHS Act to inquire into a suspected contravention. The contents of the notice must
comply with the regulations.
However, new section 119(2) provides that a WHS entry permit holder is not required to
comply with the notice requirements in section 119(1), including to provide any or all of the
information required by the regulations, if to do so:
would defeat the purpose of the entry to the workplace, or
would cause the WHS entry permit holder to be unreasonably delayed in their inquiry
in an urgent case, i.e. in an emergency situation.
New section 119(3) provides that the notice requirements in section 119(1) do not apply to
entry to a workplace under section 120 of the WHS Act to inspect or make copies of
employee records or records or documents directly relevant to a suspected contravention that
are not held by the relevant PCBU.
Clause 24 amends section 123 to reduce the maximum penalty from 200 penalty units to 100
penalty units.
Clause 25 omits section 143A so that it is no longer an offence for a WHS entry permit
holders to enter a workplace without providing notice under new section 119 or section 120
or section 122 of the WHS Act.
Clause 26 inserts a new Part 16 division 4 which clarifies that the new section 36(d) does not
apply to injuries or illnesses sustained before the commencement of section 36(d), even if the
injury or illness causes a person to be absent for more than four days after the commencement
of section 36(d).
Clause 27 makes consequential amendments to the reviewable decisions in Schedule 2A as a
result of reinserting section 85 so that a HSR can direct a worker in their work group to cease
work.
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