22 Nov 2012

Entry to workplaces by union officials regarding WHS issues - essential information for employers

by Andrew Klein

Both those with an entry permit and employers have obligations in how the right to entry is exercised.

A union official who holds a Work Health and Safety (WHS) entry permit and a Fair Work Act 2009 permit is permitted to enter workplaces to:

  • inquire into suspected work health and safety (WHS) contraventions that affect or relate to relevant workers (ie. a worker who is a member, or eligible to be a member of the union the WHS entry permit holder represents, whose industrial interests that union is entitled to represent and who works at the workplace entered); 
  • inspect employee records or information held by another person, or 
  • consult and advise relevant workers who wish to participate in discussions about WHS matters.

However, as detailed below, a WHS entry permit does not give union officials an unconditional right of entry into workplaces.

When and where can rights be exercised?

A WHS entry permit holder may only exercise a right of entry during the usual working hours at the workplace.

However, under the WHS Act, entry rights to consult with and advise workers about WHS matters are not limited to meal times or other breaks like similar entry rights under the Fair Work Act.

For all entry purposes a WHS entry permit holder can only exercise a right of entry relating to the area of the workplace where relevant workers work, or other work areas that directly affect the health and safety of those workers.

Consequently, WHS entry permit holders are not permitted to enter any part of a workplace that is used only for residential purposes (for example, if a building has a shop on the ground floor and residential premises on the second floor, a WHS entry permit holder only has a right to enter the shop on the ground floor).

WHS entry permit holders are required to comply with any reasonable request from an employer to comply with a work health and safety requirement that applies to the workplace (for example, to not enter an exclusion zone around a crane or an area of the workplace where mobile plant is in operation, or to participate in applicable safety induction or on-site supervision or any other requirement that applies to the workplace).

When 24 hours notice is required

At least 24 hours (but not more than 14 days) written notice is required to be provided to an employer:

  • to inspect employee records held by the employer or information held by a person other than the employer that are directly relevant to a suspected contravention, and 
  • to enter a workplace to consult and advise workers (note, there is no requirement in the WHS Act or Regulations for the notice to include information on what matters will be the subject of consultation or advice).

When 24 hours’ notice is not required

A WHS entry permit holder can enter a workplace where a relevant worker works to inquire into suspected contraventions of the WHS Act without giving any notice. As soon as is reasonably practicable after entering a workplace to inquire into a suspected WHS contravention, written notice of entry must be provided to the employer and the person with management or control of the workplace, unless doing so would:

  • defeat the purpose of the entry, for example providing notice could result in the destruction, concealment or alteration of relevant evidence, or 
  • would unreasonably delay the entry permit holder in an urgent case, for example if the WHS entry permit holder had a reasonable belief that workers were being exposed to a hazard that posed a serious and immediate risk to their health and safety and it was necessary to warn them.

Obligations of WHS entry permit holders

WHS entry permit holders also have obligations while on site not to delay, hinder or obstruct any person or disrupt work.

WHS entry permit holders must also not "otherwise act in an improper manner" while on site. "Otherwise acting in an improper manner" has been held by the courts to include:

  • failing to provide an entry permit for inspection when requested; and, 
  • swearing in discussions with representatives of the employer or acting in an intimidating, abusive or bullying manner.

Resolving disputes about right of entry

If a dispute arises about a right of entry that cannot be resolved between the parties themselves, either of the parties can ask the Regulator to send an inspector to the workplace to assist in resolving the dispute.

Assistance from an inspector is not mandatory. A party may choose instead to apply directly to the authorising authority (for example, WorkCover NSW), to deal with the dispute in any manner it thinks fit which includes mediation, conciliation or arbitration.

If a dispute cannot be resolved with the assistance of an inspector, people to whom a right of entry dispute relates, or who would be affected by the right of entry, including the relevant employer, the relevant union and the entry permit holder, have the right to apply to the authorising authority to deal with a right of entry dispute.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.