Regulatory guide - Dealing with disputes
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.
In order to enter a workplace under part 7 of the WHS Act, a WHS entry permit holder must also hold an entry permit under the Fair Work Act 2009.
Regulatory functions relating to WHS entry permits and WHS entry permit holders are shared by Comcare and the Fair Work Commission (the Commission).
1. Request for assistance from Comcare inspector
If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry, section 141 provides that any party to the dispute may ask Comcare to appoint an inspector to assist in resolving the dispute.[1]
If Comcare is requested to appoint an inspector under section 141, it will appoint an inspector as soon as practicable in light of the precise nature of the dispute and the availability of inspectors given Comcare’s other regulatory activities.
Provisions like section 141 have the effect of creating opportunities for inspectors to engage with persons at workplaces. There is no bright line between inspectors’ activities under these provisions and their other functions such as providing information and advice about compliance with the WHS Act or monitoring compliance with the WHS Act. In the course of engagement with persons at workplaces, inspectors will consider and evaluate whether it may be appropriate to undertake other activities within the range of their functions and powers.
The inspector is not specifically required to attend the workplace to provide assistance under section 141.[2] However, if the issue in dispute is whether there is a serious risk emanating from an immediate or imminent exposure to a hazard, it is very likely that the inspector will attend the workplace. As such, the inspector will have the option of using the powers that are available upon entry.[3]
The inspector will ascertain the nature of the dispute and hold discussions with the parties to explore whether resolution is possible. The inspector may choose to make independent inquiries and is more likely to do so if, for instance, the dispute relates to a suspected contravention of the WHS Act and the inspector considers the contravention may be serious.
As the inspector does not make any decision, there is no reviewable decision that can be reviewed under part 12 of the WHS Act.
Depending on the circumstances, it may be appropriate for an inspector to call on Comcare’s ability to apply to the Commission to have the Commission deal with the dispute. However, such an application is normally best made by one of the parties to the dispute. The Commission has a greater range of options for how to deal with the dispute.
2. Application to Commission
If there is a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry, any of the following parties to whom the dispute relates may apply to the Commission for the Commission to deal with the dispute:
- a WHS entry permit holder
- the relevant union
- the relevant 'person conducting a business or undertaking' (PCBU)
- any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry
- any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder
- Comcare.[4]
The Commission has great flexibility in how it deals with a dispute. It may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration.[5] However, in dealing with the dispute, the Commission is not able to confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under part 7 of the WHS Act.[6]
If the Commission is dealing with a dispute by arbitration, it is specifically given the power to make any of the following orders:
- an order imposing conditions on a WHS entry permit
- an order suspending a WHS entry permit
- an order revoking a WHS entry permit
- an order about the future issue of WHS entry permits to 1 or more persons
- any other order it considers appropriate.
References
[1] Section 141.
[2] Under section 141, the inspector is appointed ‘to attend the workplace’.
[3] For example, section 165 gives an inspector general powers such as power to inspect, examine and make inquiries at the workplace; section 171 gives an inspector the power to require a person who has custody of, or access to, a document to produce that document to the inspector; and section 176 gives an inspector the power to seize the workplace or part of the workplace if the inspector reasonably believes there is a hazard that is likely to cause serious injury or illness or a dangerous incident to occur.
[4] Section 142(1) and (4)(b). The Commission may also deal with a dispute on its own initiative, without an application from any party: section 142(4)(a).
[5] Section 142(2).
[6] Section 142(5).