Guidelines

Right of Entry for WHS Permit Holders - Guidelines

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1. Purpose and Objectives

The Work Health and Safety Act 2011 provides authorised union officers a right of entry to workplaces in order to do certain things. The purpose of this guideline is to assist UQ staff to understand the role of such entry permit holders and advise what to do if an entry permit holder applies their right to enter a UQ workplace.

2.  Definitions, Terms, Acronyms

PCBU – person conducting a business or undertaking

PPE - personal protective equipment

Relevant worker - a worker:

a)  who is a member, or eligible to be a member, of a relevant union; and

b)  whose industrial interests the relevant union is entitled to represent; and

c)   who works at that workplace.

The Act – Work Health and Safety Act 2011   

WHS – work health and safety

3.  Guidelines Scope/Coverage

This document covers entry to all UQ workplaces at UQ campuses and other locations.  This document should be read in conjunction with sections 116 - 151 of the Work Health and Safety Act 2011 and sections 25 - 31 of the Work Health and Safety Regulation.

4.  Guidelines Statement

The University is supportive of the appropriate use of the right of entry provisions under the Act and the entitlements that entry permit holders have according to these arrangements.

UQ must not, without reasonable excuse*, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace.

UQ must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering the workplace or in exercising any rights in the workplace under the WHS Act (for example by requiring workers to advise UQ if they wish to participate in discussions with a permit holder).

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

*A “reasonable excuse” would need to be assessed at the time and would need to be relevant to the case at hand.  By way of example, it may be considered reasonable to refuse entry if the entry was going to place those entering at significant risk to their health and safety; if PPE was a pre-requisite for entering the area and was not immediately available; or if induction was an absolute requirement prior to entry.

5.  When Can a Right of Entry Occur?

The three broad reasons for an entry permit holder to use their entitlements to enter a workplace are set out in sections 5.1, 5.2 and 5.3 below.

5.1 To inquire into a suspected contravention of the Act that affects a relevant worker

A “notice of entry” must be given to a relevant person conducting a business or undertaking (PCBU) and the person with management or control of the workplace as soon as is reasonably practicable after entry. 

However, this does not apply if the notice would:

  • defeat the purpose of the entry (for example providing notice could result in the destruction, concealment or alteration of relevant evidence); or
  • unreasonably delay the WHS 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).

The notice of entry should outline the suspected contravention.

5.1.1 What are entry permit holders entitled to do?

  • Inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention;
  • Consult with relevant workers (who wish to participate in the discussions) in relation to the suspected contravention;
  • Consult with the PCBU about the suspected contravention;
  • Require the PCBU to allow the entry permit holder to inspect and make copies of any documentation directly relevant to the suspected contravention (as long as the documentation is kept at the workplace or is accessible from a computer that is kept at a workplace**);
  • Warn any person whom the entry permit holder reasonably believes to be exposed to a serious risk.

**This is not required if to do so would contravene a law of the Commonwealth or the State.  Additionally, the use or disclosure of personal information obtained is regulated under the Privacy Act 1998 of the Commonwealth.

5.2 To inspect employee records or information held by another person

Where the entry permit holder has a reasonable belief of a suspected contravention, they may enter any workplace for the purposes of inspecting and making copies of employee records and other documents that are directly relevant to the suspected contravention, provided the legislative and regulatory requirements are fulfilled. These regulatory requirements are listed in Regulation 29 and they are:

That a notice of entry must also include—

(a) so far as is practicable, the particulars of the suspected contravention to which the notice relates;

(b) a description of the employee records and other documents, or of the classes of records and documents, directly relevant to the suspected contravention, that are proposed to be inspected; and

(c) a declaration stating—

(i) that the union is entitled to represent the industrial interests of a worker who is a member, or eligible to be a member, of that union; and

(ii) the provision in the union’s rules that entitles the union to represent the industrial interests of that worker; and

(iii) that the suspected contravention relates to, or affects, that worker; and

(iv) that the records and documents proposed to be inspected relate to that contravention.

Notice must be given to the person from whom the documents at that workplace are requested during usual business hours at least 24 hours before the entry.

5.3 To consult and advise workers

A WHS entry permit holder may enter a workplace to consult on WHS matters with, and provide advice on those matters to, one or more relevant workers who wish to participate in the discussions.

Notice must be given to the relevant PCBU during usual business hours at that workplace at least 24 hours before the entry.

6. Who Has The Entitlement to Enter?

A WHS entry permit holder must:

  • be an official of the union; and
  • have satisfactorily completed prescribed training; and
  • hold an entry permit under the Fair Work Act or an industrial officer authority; and
  • only exercise a right of entry to a workplace in relation to the area of the workplace where the relevant workers work, or any other area that directly affects the health or safety of those workers.

7. What You Need To Do

If you are approached by someone purporting to be a WHS entry permit holder:

  1. Ask the entry permit holder to see their entry permit and photographic identification.  Note that an entry permit has effect for a term of three years from the date of issue.  A register of WHS entry permit holders is published at www.qirc.qld.gov.au
  2. If the reason for entry is a suspected contravention of the Act, request a copy of the “notice of entry”.  This notice must also outline the suspected contravention.
  3. Contact the person in management and control of the workplace as soon as possible e.g. the Head of School, Director of Institute (or their representatives).  In cases of a suspected contravention of the Act, it is a requirement for the entry permit holder to provide a notice of the entry to the person in management and control of the workplace.
  4. Contact the local Workplace Health and Safety Manager/Co-ordinator/Officer to inform them of the entry.
  5. The WHS entry permit holder must comply with any reasonable request by the PCBU or the person with management or control of the workplace regarding any work health and safety requirement that applies to the workplace (e.g. any necessary induction or use of personal protective equipment), and any other legislated requirement.
  6. The WHS entry permit holder is not required to disclose the name of any worker at the workplace, unless the worker has consented.
  7. The WHS Act is silent on whether the entry permit holder should be accompanied by a representative of the PCBU.  In most cases, the entry permit holder should be accompanied by a UQ staff member.  However, the staff member must not intentionally and unreasonably hinder or obstruct the entry permit holder in entering a workplace or in exercising any entitlements at a workplace.  Likewise, the WHS entry permit holder must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper way.

Contact the UQ OHS Division on 3365 2365 as soon as possible after becoming aware of the entry, or after receiving the notice of entry.  An OHS Division advisor will attend as soon as possible.

8. Disputes

If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under the WHS Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute.  It should be noted that assistance from an inspector is not mandatory under the WHS Act and that the inspector cannot make a binding decision.

The local work area should contact the UQ OHS Division immediately if a dispute arises.  If necessary, the UQ OHS Division will contact the regulator.

The UQ OHS Division will also inform the Employee Relations Section of UQ’s HR Division.

Custodians
Director, Occupational Health and Safety
Mr Jim Carmichael
Custodians
Director, Occupational Health and Safety
Mr Jim Carmichael