Regulatory guide - Entry to inquire into suspected contraventions

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. Preconditions

A WHS entry permit holder may enter a workplace under section 117 of the WHS Act if he or she reasonably suspects that a contravention of the WHS Act or WHS Regulations that relates to or affects a relevant worker has occurred or is occurring. The entry is permitted for the purpose of inquiring into the suspected contravention.^[1]

The relevant type of worker must work at the workplace in question. In addition, the worker must have a specified relationship with the union that the WHS entry permit holder represents. In particular, the worker must be a worker:

• who is a member, or eligible to be a member, of the union, and
• whose industrial interests the union is entitled to represent.^[2]

A 'person conducting a business or undertaking' (PCBU) in relation to which the WHS entry permit holder is exercising or proposes to exercise a right of entry is referred to as a ‘relevant person conducting a business or undertaking’ (relevant PCBU).

The ‘reasonably suspects’ threshold requires less than a reasonable belief but more than a possibility. The question is whether there would be created in the mind of a reasonable person in the position of the WHS entry permit holder an actual apprehension that a contravention of the WHS Act or WHS Regulations that relates to or affects a relevant worker has occurred or is occurring. There must be some factual basis for the suspicion, in the form of material that has some probative value even if it may be hearsay or inadmissible in evidence. There must also be reasonable grounds for forming the suspicion on the basis of that material.^[3]

If a WHS entry permit holder has formed a reasonable suspicion that a contravention of the WHS Act or WHS Regulations has occurred or is occurring, he or she should consider whether it may be appropriate for the issue to be addressed by health and safety representatives for the relevant workgroups and/or Comcare. The limited powers available to WHS entry permit holders may mean that the interests of relevant workers could be better served by action taken by health and safety representatives and/or Comcare either in conjunction with, or instead of, the WHS entry permit holder.

2. Workplace entry

2.1 Time and physical extent

Actual entry to a workplace by a WHS entry permit holder pursuant to a right of entry may occur only during the usual working hours at that workplace.^[4] The right of entry does not necessarily extend to the entire workplace. Rather, the right of entry may be exercised only in relation to:

• the area of the workplace where the relevant workers work, or
• any other work area that directly affects the health or safety of those workers.^[5]

A WHS entry permit holder is expressly prohibited from entering any part of a workplace that is used only for residential purposes.^[6]

2.2 Rights that may be exercised

Having entered a workplace for the purpose of inquiring into a suspected contravention based on a reasonable suspicion, the WHS entry permit holder has certain powers to inquire into the suspected contravention. The most general powers allow the WHS entry permit holder to:

• inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention
• consult with the relevant workers in relation to the suspected contravention
• consult with the relevant PCBU about the suspected contravention.^[7]

Note that the powers do not extend to consultation with workers who are not relevant workers, any 'persons conducting a business or undertaking' who are not the relevant PCBU or any other persons.

A more specific power relates to any document that is directly relevant to the suspected contravention. Provided that the document is kept at the workplace or is accessible from a computer that is kept at the workplace, the WHS entry permit holder may require the relevant PCBU to allow the WHS entry permit holder to inspect and make copies of the document.^[8] However, the relevant PCBU is not required to give access to the document if to do so would contravene a Commonwealth or state law.^[9]

If a WHS entry permit holder requires a relevant PCBU to allow the WHS entry permit holder to inspect and make copies of a document, the relevant PCBU must not, without reasonable excuse, refuse or fail to comply with the requirement.^[10] Examples of a reasonable excuse might include situations where:

• giving access to the document does not amount to contravention of a Commonwealth or state law, but could make the relevant PCBU liable for contractual or other remedies
• the relevant PCBU reasonably believes that documents are not directly relevant to the suspected contravention.

The WHS entry permit holder also has a right that can be exercised while at the workplace in relation to any person. This allows the WHS entry permit holder to warn a person about a risk that the WHS entry permit holder reasonably believes to be a serious risk to the person’s health or safety emanating from an immediate or imminent exposure to a hazard.^[11]

The ‘reasonably believes’ threshold indicates that there must exist facts which are sufficient to induce a belief in a reasonable person.^[12]

2.3 Notice of entry

As soon as is reasonably practicable after entering a workplace under section 117, a WHS entry permit holder must give notice of the entry and the suspected contravention to the relevant PCBU and the person with management or control of the workplace.^[13] What is reasonably practicable in a specific case will depend on all the circumstances of the particular situation. Generally, notice of entry should be given immediately after entering the workplace. If this is not practicable, the notice should be given at the first available opportunity after entry.

The notice of entry must be in writing and must include:

• the full name of the WHS entry permit holder
• the name of the union that the WHS entry permit holder represents
• the section of the Act (section 117) under which the WHS entry permit holder is proposing to enter the workplace
• the name and address of the workplace entered
• the date of entry
• so far as is practicable, the particulars of the suspected contravention to which the notice relates
• a declaration stating
  • that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace proposed to be entered and is a member, or eligible to be a member, of that union
  • the provision in the union’s rules that entitles the union to represent the industrial interests of that worker
  • that the suspected contravention relates to or affects that worker.^[14]

The declaration within the notice of entry goes towards establishing that there are relevant workers at the workplace and that the suspected contravention relates to or affects those workers. However, the relevant PCBU is not entitled to know the identity of individuals who are relevant workers. This is because a WHS entry permit holder is not required to disclose the name of any worker at the workplace to the relevant PCBU, although a WHS entry permit holder may do so if the worker in question consents.^[15]

The requirement to give notice does not apply if giving the notice would:

• defeat the purpose of the entry to the workplace, or
• unreasonably delay the WHS entry permit holder in an urgent case.^[16]

There may be situations where considerations of what is reasonably practicable will justify a delay in giving notice of entry. It would only be in the most unusual circumstances that it would be justified to not give notice at all.

2.4 Additional right

If a WHS entry permit holder is entitled to enter a workplace under section 117 (the primary workplace),^[17] the WHS entry permit holder may have an additional right to supplement the power to require the relevant PCBU to allow the WHS entry permit holder to inspect and make copies of any document that is directly relevant to the suspected contravention.

The additional right allows the WHS entry permit holder to enter any workplace to inspect and make copies of:

• employee records that are directly relevant to a suspected contravention, or
• other documents that are directly relevant to a suspected contravention and that are not held by the relevant PCBU.^[18]

While the additional right entitles a WHS entry permit holder to enter any workplace for the purpose of inspecting and copying documents, it is not supported by a specific penalty provision for the event that a 'person conducting a business or undertaking' (PCBU) (or other person) refuses or fails to allow the inspection or copying.^[19] The WHS entry permit holder requests access to the documents, but cannot compel that access.

A WHS entry permit holder must give prior notice to the person from whom the documents are requested and the relevant PCBU before entering a workplace under section 120. The notice must be given during the usual working hours at that workplace. It must be given at least 24 hours before the entry, but not more than 14 days before.^[20]

The notice of entry must be in writing and must include:

• the full name of the WHS entry permit holder
• the name of the union that the WHS entry permit holder represents
• the section of the Act (section 120) under which the WHS entry permit holder is proposing to enter the workplace
• the name and address of the workplace proposed to be entered
• the date of proposed entry
• so far as is practicable, the particulars of the suspected contravention to which the notice relates
• 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
• a declaration stating:
  • that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace proposed to be entered and is a member, or eligible to be a member, of that union
  • the provision in the union’s rules that entitles the union to represent the industrial interests of that worker
  • that the suspected contravention relates to, or affects, that worker, and
  • that the records and documents proposed to be inspected relate to that contravention.^[21]

The declaration within the notice of entry goes towards establishing that there are relevant workers at the primary workplace, which relates to the WHS entry permit holder’s entitlement to enter the primary workplace under section 117. However, the relevant PCBU is not entitled to know the identity of individuals who are relevant workers. This is because a WHS entry permit holder is not required to disclose the name of any worker at the workplace to the relevant PCBU, although a WHS entry permit holder may do so if the worker in question consents.^[22]

2.5 Use of information and documents

A WHS entry permit holder who obtains information or a document pursuant to a right of entry under section 117 or section 120 in an inquiry into a suspected contravention must not use or disclose the information or document for a purpose that is not related to the inquiry or rectifying the suspected contravention, except in very limited circumstances.^[23]