The removal of the power of WHS inspectors in Queensland to make binding directions regarding WHS right of entry disputes is likely to shift the focus for dispute resolution to the police, or the Australian Building and Construction Commission if entry is exercised in the construction industry, rather than the intended Queensland Industrial Relations Commission (QIRC).
Earlier this month, a raft of amendments were made to laws in Queensland, including the Work Health and Safety Act 2011 (Queensland) (WHS Act). Previously, the WHS Act empowered inspectors who were requested to resolve right of entry disputes to issue binding directions to the PCBU to allow the WHS entry permit-holder to enter the workplace if, in their opinion, the right of entry was being validly exercised. The direction could be appealed to the QIRC.
Now, employers must assess carefully the rights of the WHS permit-holder before refusing entry as inspectors can no longer determine the dispute. However, an inspector can still assist in resolving the dispute, including whether the right has been exercised lawfully. If an employer wishes to escalate the matter, they will have to approach the QIRC directly or potentially contact the police with respect to a potential trespass.
These amendments came into operation on 9 July 2020 under the Community Services Industry (Portable Long Service Leave) Act 2020.
At this stage, no other jurisdiction has implemented the change. The amendments also include significant increases to the maximum penalties associated with right of entry breaches. Persons who refuse or delay entry of WHS entry permit holders, or hinder or obstruct WHS entry permit-holders face five times the original penalty now at a maximum of 500 penalty units ($66,725).