Workplace entry by WHS entry permit holders
What is a WHS entry permit holder?
Work health and safety (WHS) entry permit holders are union officials who have completed an approved training course and hold a valid entry permit under the Fair Work Act 2009 (Cth) or Industrial Relations Act 2016, as well as the Work Health and Safety Act 2011(WHS Act).
WHS entry permit holders help to keep workers safe by consulting and advising workers on WHS matters and inquiring into suspected contraventions of the WHS Act.
When can a WHS entry permit holder enter a workplace?
A WHS entry permit holder may enter a workplace if they need to:
- inquire about a suspected WHS contravention of the WHS Act or the Electrical Safety Act 2002 (ES Act)
- inspect employee records/information
- consult or advise workers in relation to WHS matters.
A WHS entry permit holder can only enter a workplace if the suspected WHS contravention relates to a relevant worker.
Who is a relevant worker?
A relevant worker is a person who is a member of a union that the WHS entry permit holder represents, and who works at the workplace the WHS entry permit holder intends to enter. A relevant worker also includes a worker who is eligible to be a member (i.e. they are not currently a member of the union).
A WHS entry permit holder does not need to provide the name of a relevant worker to the person in control of the workplace they are entering.
Notice of entry
Before entering a workplace, a WHS entry permit holder must give at least 24-hours’ notice of their entry and the suspected contravention to the PCBU (person conducting a business or undertaking) and the person with management and control of the workplace.
If the suspected contravention poses an imminent or immediate risk to the health or safety of a worker, a WHS entry permit holder may enter the workplace without waiting 24 hours, but they must still provide a notice to the PCBU as soon as reasonably practicable after entering the workplace.
Work-related violence and aggression are important and deeply concerning WHS issues facing workplaces. While incidents of work related violence and aggression may not always meet the threshold of an imminent and immediate risk to workers, in some instances it may be necessary for a WHS entry permit holder to enter a workplace without waiting 24 hours to allow immediate action and investigation of these serious issues.
A notice of entry is valid if it sufficiently identifies a person or relevant union, despite any other formal defect, irregularity, or incorrect spelling or name of a person in the notice.
A WHS entry permit holder may remain at the workplace for the time necessary to exercise their powers (subject to the usual working hours at the workplace).
Under section 118 of the WHS Act, a WHS entry permit holder may:
- inspect any work system, plant, substance, structure or other thing that is relevant to the suspected contravention
- consult with the relevant workers and PCBU about the suspected contravention
- request to look at, and make copies of, records or documents kept at the workplace in hard copy or on a computer, that are directly relevant to the suspected contravention
- warn anyone they believe is exposed to a serious health or safety risk.
Under section 120 of the WHS Act, a WHS entry permit holder may:
- inspect or make copies of employee records
- inspect or make copies of other documents that are directly relevant to the suspected contravention.
Under section 121 of the WHS Act, a WHS entry permit holder may:
- consult and provide advice on WHS matters to one or more relevant workers who wish to participate in the discussions
- warn anyone they believe is exposed to a serious health or safety risk.
A PCBU and a WHS entry permit holder may also agree for a WHS entry permit holder to enter a workplace without relying on the requirements of section 117 and 119 of the WHS Act.
What are the requirements of WHS entry permit holders?
A WHS entry permit holder is protected under the law. There are penalties for:
- refusing or delaying entry to a workplace that the WHS entry permit holder is entitled to enter
- intentionally and unreasonably hindering or obstructing a WHS entry permit holder.
It is not reasonable to require a WHS entry permit holder to comply with a work health and safety requirement where complying with the request would unduly delay, unreasonably prevent or hinder an entry permit holder from exercising a right of entry to a workplace.
Examples of an unreasonable request could include requiring an off-site induction at a location far from where entry is sought or excessive or unnecessary use of exclusion zones.
A WHS entry permit holder must:
- be a union official who holds an entry permit issued under the legislation
- produce photographic identification when requested to do so
- only enter during the workplace’s usual business hours
- only enter the area of the workplace that relates to the WHS matter being investigated
- not enter any part of the workplace that is used for residential purposes
- not delay, hinder or obstruct any person, or disrupt a worker carrying out their duties or act in an improper manner
- protect the identity of any worker by not disclosing their names unless they have given their consent
- comply with any reasonable request about WHS requirements or other legislated requirements that apply to that type of workplace
- not disclose unauthorised information collected from the workplace for purposes unrelated to the right of entry.
Where a WHS entry permit holder remains at workplace in relation to a suspected contravention, they are not required to give further notice when –
- requesting documents related to the suspected contravention where they are kept at a workplace or are accessible from a computer at the workplace; or
- consulting with a relevant worker in related to the suspected contravention.
Example of workplace entry by a WHS entry permit holder
- Trevor is a worker who has contacted his union regarding a WHS issue at his workplace in the stairwell.
- Kai, a WHS entry permit holder from the union, sends the business owner an entry notice.
- The entry notice contains details of the facts, matters and circumstances relevant to the suspected contravention under the WHS Act.
- *After waiting the required minimum 24-hour notice period, when Kai arrives during business hours and presents proof of his identification and the union he is representing, the business owner refuses to allow him access to the business.
Question:
- Can the business owner refuse Kai entry to the business?
No. The WHS entry permit holder has met the requirements of Part 7 of the WHS Act by waiting the relevant notice period, providing the business owner with proof of his identification and specific information about the rights of entry to inspect the stairwell.
- Can the WHS entry permit holder speak with the business’ staff?
Yes. The WHS entry permit holder can speak with the business’ staff.
- Is the WHS entry permit holder permitted to view the stairwell containing the WHS issue?
Yes. The WHS entry permit holder included the matter on the entry notice he provided to the business owner.
Revoking WHS entry permits
If it is suspected that a WHS entry permit holder has contravened a condition of their permit or has intentionally hindered or obstructed a PCBU at the workplace, an application can be made to have their permit revoked.
This application must be made in writing to the Queensland Industrial Relations Commission (QIRC). A copy must be provided to the WHS entry permit holder and relevant union.
The QIRC can suspend or revoke a permit or impose conditions on it.
Dealing with disputes
The QIRC is the appropriate agency to decide disputes about a right of entry under the WHS Act or ES Act. The QIRC may deal with a dispute in any way it determines, including mediation, conciliation or arbitration.
Further information can be obtained from the QIRC website: WHS right of entry disputes.
Enquiries to the QIRC should be directed to the general enquiry number 1300 592 987. Permit holder information is available via the QIRC website.
The Industrial Registrar of the QIRC maintains a publicly accessible register of WHS entry permit holders.
Any party to a dispute about a right of entry may ask Workplace Health and Safety Queensland to appoint a workplace health and safety inspector to attend the workplace to assist with resolving the matter. To start this process, phone 1300 362 128. An inspector cannot direct or refuse entry to a WHS entry permit holder.
When making a request for assistance, you may be asked to provide the following details:
- your role in relation to the issue or dispute
- your contact details
- details of the business associated with the issue or dispute (including the ABN and name of the principal contractor (if available))
- information about the issue or dispute (e.g. details of any suspected contravention/s or whether assistance is being sought in relation to site entry or to reach consensus on contraventions).