Part 7 [Sections 116 to 151] of the Work Health and Safety Act 2011 (WHS Act) and Part 2.4 [Sections 25 to 31] of the Work Health and Safety Regulation 2011 (the Regulation) came into effect on 1 January 2012 and provides for the right of entry to workplaces by persons appointed as WHS entry permit-holders. For guidance on frequently asked questions, click here.
Who may be appointed a WHS entry permit-holder and by whom?
A Registered Organisation may appoint an official (employee or a person who holds an office in the organisation) to be a WHS entry permit-holder.
The Registered Organisation must apply to WorkSafe ACT for the appointment of a WHS entry permit-holder. WorkSafe ACT has prepared an Application for WHS Entry Permit form for use by Registered Organisations for this purpose.
List of current WHS entry permit-holders
Click here to view a list of current WHS entry permit-holders.
What training and qualifications must the WHS entry permit-holder have?
A WHS entry permit-holder must complete training that is provided or approved by the regulator. The training must be in relation to:
Under what circumstances can a WHS entry permit-holder exercise the right of entry to premises?
A WHS entry permit-holder may enter premises to investigate a suspected contravention of the Act. To exercise the right of entry, the representative must have a reasonable belief that a contravention of the Act has occurred or is occurring, and that persons at that workplace are members of the registered organisation or are eligible to be members. A WHS entry permit-holder may also enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, one or more relevant workers who wish to participate in the discussions.
A WHS entry permit-holder must, at all times that he or she is at a workplace under a right of entry under division 7.2 (Entry to inquiry into suspected contraventions) or division 7.3 (Entry to consult and advise workers), have his or her WHS entry permit and photographic identification available for inspection by any person on request.
The entry permit issued by the Office of Regulatory Services complies with the above provisions.
Ordinary Business Hours
The WHS entry permit-holder may only enter premises at times when work is being carried out, or is usually carried out. A WHS entry permit-holder may not enter premises outside normal working hours.
The WHS entry permit-holder may not enter any part of premises used solely for residential purposes.
Safety Protocols or Inappropriate Clothing
Under the Act persons conducting a business undertaking have a duty to take all reasonably practicable steps to ensure third parties at or near the workplace are not exposed to health or safety risks. Third parties include WHS entry permit-holders. Under this duty, when an occupier receives notice of an intended entry, or when an occupier becomes aware that a WHS entry permit-holder is on the premises, they are required to advise the WHS entry permit-holder of any safety protocols or safety clothing requirements or otherwise act appropriately to ensure the WHS entry permit-holder is not exposed to health or safety risks.
The occupier may also advise the WHS entry permit-holder that they should not enter the premises, or that they should leave the premises for particular safety reasons. This advice must not amount to obstructing, hindering, intimidating or resisting a WHS entry permit-holder in the exercise of his or her functions.
Production or Trading Inconvenience
Denying access by a WHS entry permit-holder to premises on the basis of production or trading inconvenience is not permitted. However, WHS entry permit-holders must take all reasonable steps to ensure they cause as little inconvenience, detriment or damage as possible.
A person may seek compensation from the Registered Organisation if the person suffers loss or expense because of the exercise of a function under the Act by a WHS entry permit-holder.
Non-union membership at the premises is not a basis for denying entry. A WHS entry permit-holder may enter premises to investigate a suspected contravention of the Act if persons at that workplace are members of the Registered Organisation or are eligible to be members.
Section 145 of the Act creates an offence if a person obstructs, hinders, intimidates or resists a WHS entry permit-holder in the exercise of his or her functions.
Can a WHS entry permit-holder, other than from the Registered Organisation party to the award under which the employees are employed, gain entry under this legislation?
A WHS entry permit-holder may enter premises to investigate a contravention of the Act if persons at that workplace are members of the Registered Organisation or are eligible to be members. Eligibility for membership is determined by a Registered Organisation’s rules, which are approved by and available from the Australian Industrial Relations Commission (AIRC). It may be that persons are eligible to be a member of a Registered Organisation that is not party to an award that applies at the premises or where no award applies.
What notice is required to be given by a WHS entry permit-holder prior to entry?
A WHS entry permit-holder may enter premises without notice.
However, the representative must tell the occupier of the premises that they have entered as soon as is reasonably practicable after doing so, unless, doing so would defeat the purpose for which the premises were entered or the occupier has already been told in writing.
What powers of inspection do WHS entry permit-holders have?
While at the workplace WHS entry permit-holders can inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention. The WHS entry permit-holder can also consult relevant workers and persons conducting the business or undertaking about the suspected contravention.
The WHS entry permit-holder may inspect and copy documents that are kept at the workplace, or on a computer at the workplace, and are directly relevant to the suspected contravention.
If the documents are employee records or held by someone other than a person conducting a business or undertaking, the WHS entry permit-holder must give the person at least 24 hours notice of the intention to enter the premises for this purpose.
The authorised representative must take all reasonable steps to minimise damage and inconvenience at the site.
It should be noted that the Act offers protection from misuse of personal or commercial information that might be obtained in the course of investigating a suspected breach of the Act. After the inspection of premises the WHS entry permit-holder has no further powers and must leave. WHS entry permit-holder do not have any enforcement powers.
Are occupiers compelled to answer questions from WHS Entry Permit-holders?
No. WHS entry permit-holder can interview persons who are members, or potential members of their organisation. However such persons must consent to an interview and they are in no way compelled to answer questions.
The occupier is not compelled to answer these questions if, for instance, they believe answering the question may lead to self-incrimination or if the information sought could attract legal professional privilege.
Are WHS entry permit-holders permitted to solicit membership?
No. A WHS entry permit-holder may enter premises to investigate a suspected contravention of the Act only. A WHS entry permit-holder may be disqualified if he or she contravenes the Act, such as soliciting membership during the exercise of their functions under the Act. Applications for disqualification of a WHS entry permit-holder must be made to WorkSafe ACT.
Interpretive Guideline issued by Safe Work Australia
Click here to access Safe Work Australia's Interpretive Guideline on workplace entry by WHS Entry Permit Holders.