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Regulatory guide - General obligations of other persons

For: Employers and managers Information seekers

We publish this regulatory guide to assist the organisations and entities we regulate.


Part 7 of the Work Health and Safety Act 2011 (WHS Act), in conjunction with part 2.4 of the Work Health and Safety Regulations 2011 (WHS Regulations), provides for WHS entry permit holders to enter workplaces in certain circumstances.

1. Refusing or delaying entry

A person 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.[1]

What constitutes a reasonable excuse will depend on all the circumstances of a particular case, but examples could include:

  • the person has a reasonable belief that the WHS entry permit holder does not in fact hold a valid WHS entry permit [2]
  • an incident has occurred at the workplace that makes it unsafe for anyone (including a WHS entry permit holder) to be at the workplace
  • a non-disturbance notice has been issued, affecting the part of the workplace that is relevant to the WHS entry permit holder.

The person to whom the prohibition applies could be a 'person conducting a business or undertaking' (PCBU) in relation to which the WHS entry permit holder is trying to exercise the right of entry (a relevant PCBU), but could also be the person with management or control of the workplace, a worker or any other person.

2. Hindering or obstructing WHS entry permit holder

A person must not intentionally and unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or in exercising any rights at a workplace in accordance with part 7.[3] Examples could include:

  • making repeated and excessive requests that a WHS entry permit holder show his or her WHS entry permit
  • failing to provide access to records that the WHS entry permit holder is entitled to inspect.[4]

Again, the person to whom the prohibition applies could be a relevant PCBU, the person with management or control of the workplace, a worker or any other person.

3. Compliance

The provisions creating the obligations mentioned above are WHS civil penalty provisions. This means that they can be enforced through civil proceedings that can be commenced by Comcare or an inspector, potentially leading to the imposition of a civil penalty.[5]

The obligations described above are balanced by obligations owed by WHS entry permit holders when exercising rights under part 7, which are also created by WHS civil penalty provisions.

In the event of disagreement about workplace entry by a WHS entry permit holder, both sides need to be careful not to breach their obligations. A contravention by one party may affect whether another party’s behaviour itself constitutes a contravention, but does not necessarily provide an excuse.

It is therefore an important feature of part 7 of the WHS Act that it provides specific mechanisms for dealing with disputes about the exercise or purported exercise by a WHS entry permit holder of a right of entry.[6] Parties to a dispute are advised to make use of these mechanisms rather than trying to ‘take the law into their own hands’.


References

[1] Section 144(1), which is a WHS civil penalty provision. If proceedings are brought for a contravention of the WHS civil penalty provision, the evidential burden is on the respondent: section 144(2).

[2] See Explanatory Memorandum to the Work Health and Safety Bill 2011, paragraph 472.

[3] Section 145.

[4] See Explanatory Memorandum to the Work Health and Safety Bill 2011, paragraph 473.

[5] See WHS civil penalty provisions.

[6] Sections 141-143. See Dealing with disputes.

Page last reviewed: 16 December 2019
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Comcare
GPO Box 9905, Canberra, ACT 2601
1300 366 979 | www.comcare.gov.au

Date printed 05 Jul 2020

https://www.comcare.gov.au/scheme-legislation/regulating-scheme/regulatory-guides/general-obligations-of-other-persons