Changes to Queensland's Work Health and Safety Legislation

Prohibition on certain insurance, indemnity and other arrangements – in force now

The WHS Act and the Safety in Recreational Water Activities Act 2011 (Qld) (SRWA Act) have been amended to prohibit a person from entering into, providing or taking the benefit of contracts of insurance, indemnities or other arrangements that insure or indemnify a person for liability for a monetary penalty under the legislation. This closer aligns with the position in New South Wales, Victoria, and Western Australia.

Key details about this new prohibition:

• It is a defence if the person can show they had a reasonable excuse.
• This offence will have broad application and may apply to insurance companies, people and corporations carrying on a business, not for profits, and officers, with it deemed that an officer of a corporation is taken to have also committed the offence in certain circumstances. Officers may be held personally liable for the offence, whether or not the corporation is also pursued.
• Contraventions may attract a maximum penalty of up to $50,000 for individuals and up to $250,000 for corporations.
• Terms of insurance or other arrangement, or an indemnity, will also be void to the extent that they purport to insure or indemnify a person for liability for a monetary penalty under the WHS Act and / or the SRWA Act.
• This new prohibition came into effect on 28 March 2024 (the date of assent) but varying transitional arrangements apply for up to 18 months.
• The prohibition does not extend to insurance or indemnities related to any defence costs for alleged contraventions of the WHS Act and/or the SRWA Act.

Health and safety representatives and unions – not yet in force as awaiting proclamation

The amendments implement changes to bolster the existing health and safety representative (HSR) framework by:

• prohibiting persons conducting a business or undertaking (PCBUs) from intentionally hindering, preventing, or discouraging:
  • the election of a HSR;
  • a worker from making a request for the PCBU to facilitate the conduct of an election for 1 or more HSRs; and/or
  • the person conducting the election of a HSR from following procedures set out in the legislation;
• providing that contraventions may attract a maximum penalty of up to $20,000 for individuals and up to $100,000 for corporations;
• further requiring PCBUs to:

• providing a new process and timeframe for work group negotiations, including for relevant unions to participate in these negotiations and be a party to any agreement;
• permitting unions to be a party to health and safety issues and enter and remain at the workplace for the purposes of attending discussions with a view to resolving the issue;
• permitting HSRs to choose their training course and, when attending a training course, requiring PCBUs to pay the HSR any usual overtime, penalties or allowances that the HSR would otherwise be entitled to receive if the HSR was performing their normal duties;
• expanding the role and powers of HSRs to permit HSRs to (to the extent they relate to their work group) accompany WHS entry permit holders and inspectors in the workplace; and
• amending the existing cease work notice power to enable HSRs to issue a written cease work notice to the PCBU (rather than workers) requiring the PCBU to direct workers to cease work if the HSR has a reasonable concern that worker health and safety is at serious risk from an immediate or imminent exposure to a hazard. These cease work notices will remain in effect until withdrawn by the HSR, the issue is resolved with the assistance of an inspector, an inspector issues a prohibition notice or the Commission decides or deals with any dispute.

Discriminatory conduct – not yet in force as awaiting proclamation

While discriminatory conduct is already prohibited, this is further aligned to the Industrial Relations Act 2016 (Qld) by:

• extending the definition of “discriminatory conduct” to include treating a worker less favourably;
• requiring applications for orders regarding discriminatory conduct to be heard by the Queensland Industrial Relations Commission (QIRC), rather than the Magistrates Court; and
• permitting a relevant union to apply to the QIRC on behalf of a worker.

New obligations for regulator – not yet in force as awaiting proclamation

There are two key changes that affect Workplace Health and Safety Queensland (WHSQ):

• WHSQ may, on request, give information contained in an improvement notice, prohibition notice or non-disturbance notice to a HSR or WHS entry permit holder, other than personal or confidential commercial information.
• where a person requests that a prosecution be brought and the Work Health and Safety Prosecutor advises that the incident investigation is not complete, WHSQ is required to provide written updates every 3 months until the investigation is complete.

WHS entry permit holders – not yet in force as awaiting proclamation

Further amendments will be made to clarify the power of WHS entry permit holders, including:

• WHS entry permit holders will be expressly permitted to remain at a workplace for the time necessary to complete the exercise of their statutory powers;
• a formal defect or irregularity in an entry notice (for example, incorrect spelling) does not affect the validity of an entry; and
• a request to comply with a WHS requirement is not reasonable if complying would unduly delay or unreasonably hinder or obstruct the WHS entry permit holder exercising a right of entry to the workplace. For example, requiring off-site induction far away from where entry is sought or excessive / unnecessary usage of exclusion zones

What’s next?

Organisations and their officers should:

• review any insurance or indemnity arrangements to ensure compliance with the new prohibition; and
• consider how the changes relating to HSRs, union involvement and WHS entry permit holders will affect the business and understand whether any changes to internal processes and procedures will be required.

Further changes to Queensland’s safety legislation are anticipated in 2024, with the Electrical Safety Act 2002 (Qld) currently being reviewed.

If you would like to discuss the proposed changes in more detail, including what they may mean for your organisation, please don’t hesitate to contact us.