Regulatory guide - General obligations of WHS entry permit holders

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 (Fair Work Act).

1. Permits and identification

A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act.^[1]

Further, at all times that a WHS entry permit holder is at a workplace pursuant to a right of entry, the WHS entry permit holder must have his or her WHS entry permit and photographic identification (such as a driver’s licence) available for inspection by any person on request.^[2]

2. Legislative requirements

A WHS entry permit holder must comply with any reasonable request by the relevant PCBU or the person with management or control of the workplace to comply with:

• any work health and safety requirement that applies to the workplace, and
• any other legislated requirement that applies to that type of workplace.^[3]

3. Improper behaviour

A WHS entry permit holder exercising, or seeking to exercise, a right of entry must not intentionally and unreasonably delay, hinder or obstruct any person or disrupt any work at a workplace, or otherwise act in an improper manner.^[4]

One example of a WHS entry permit holder’s acts that could potentially come within the scope of the prohibition is behaviour that affects workers who are not members (and are not eligible to be members) of the WHS entry permit holder’s union.

The actions of the WHS entry permit holder need to be both intentional and unreasonable to constitute a contravention.

4. Misrepresentation

A person must not intentionally or recklessly give the impression that his or her actions are authorised by part 7 of the WHS Act if they are not so authorised.^[5]

The prohibition could apply to a WHS entry permit holder who has validly entered a workplace, who intentionally or recklessly misrepresents the extent of the rights that he or she is entitled to exercise at the workplace. In this regard, it is important for a WHS entry permit holder to be clear about which rights or powers he or she can exercise under the WHS Act and which rights and powers he or she can exercise by virtue of the entry permit under the Fair Work Act that he or she must concurrently hold.

However, the prohibition could potentially apply other persons, for instance:

• a person who does not hold a WHS entry permit who intentionally or recklessly represents that he or she has a valid permit
• a union that intentionally or recklessly represents that it is given rights or powers under part 7.

5. 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.^[6]

The obligations described above are balanced by obligations owed by other persons towards WHS entry permit holders, 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.^[7] Parties to a dispute are advised to make use of these mechanisms rather than trying to ‘take the law into their own hands’.