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

A WHS entry permit holder must give notice of the entry and the suspected contravention to the PCBU (person conducting a business or undertaking) and the person with management and control of the workplace, as soon as is reasonably practicable after entering the workplace (unless the notice would defeat the purpose of the entry or cause unreasonable delay in an urgent case).

The requirement to give the notice does not affect the ability of the WHS entry permit holder to enter the workplace before giving the notice. Where a notice sufficiently identifies a person or relevant union it is valid, 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.

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