Regulatory guide - WHS entry permits

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 work health and safety entry permit (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).

Regulatory functions relating to WHS entry permits and WHS entry permit holders are shared by Comcare and the Fair Work Commission (the Commission).

1. Requirement to hold WHS entry permit

In order to exercise powers of workplace entry under part 7 of the WHS Act, a person must hold a current WHS entry permit. A WHS entry permit may be a permit issued by the Commission under part 7 or an equivalent permit issued under the equivalent part of a corresponding WHS law.^[1]

In practical terms, many more permits are issued under corresponding WHS laws than are issued by the Commission under part 7 of the WHS Act, so it may not be uncommon to encounter holders of equivalent permits exercising powers of entry under the WHS Act. The entities that issue equivalent permits under corresponding WHS laws are:

• Australian Capital Territory: WorkSafe ACT^[2]
• New South Wales: the Industrial Relations Commission of New South Wales^[3]
• Northern Territory: NT WorkSafe^[4]
• Queensland: an industrial registrar appointed under the Industrial Relations Act 1999 (Qld)^[5]
• South Australia: the Industrial Relations Commission of South Australia^[6]
• Tasmania: WorkSafe Tasmania^[7]
• Victoria: the Magistrates’ Court of Victoria^[8]
• Western Australia: the Registrar for the purposes of the Industrial Relations Act 1979 (WA).^[9]

2. Application process

A WHS entry permit may be issued upon application made to the Commission by a union.^[10] The application relates to a WHS entry permit to be held by a person who is an official of the union, who must be specified in the application. ^[11]

The application must include a statutory declaration by the official of the union declaring that he or she:

• is an official of the union
• has satisfactorily completed the prescribed training, and
• holds, or will hold, an entry permit under the Fair Work Act.^[12]

The last of these matters relates to the requirement that a WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act.^[13]

3. Matters to be considered

Before issuing a WHS entry permit to an official of a union, the Commission must consider two factors.^[14]

First, the Commission must take into account:

• the object of the WHS Act
• the object of allowing union right of entry to workplaces for work health and safety purposes.^[15]

The object of the WHS Act as a whole is set out in section 3. The WHS Act does not contain any express statement of the object of allowing union right of entry to workplaces for work health and safety purposes. However, the object can be described in general terms as establishing a framework for union officials to enter workplaces in a way that balances:

• the interests of unions to:
• consult with and advise their members on work health and safety matters, and
• inquire into suspected contraventions of work health and safety duties and obligations that affect their members
• the right of 'persons conducting a business or undertaking' (PCBU) and other persons at workplaces to conduct their affairs without undue inconvenience.^[16]

Second, the Commission must be satisfied that the official:

• is an official of the union
• has satisfactorily completed the prescribed training, and
• holds, or will hold, an entry permit under the Fair Work Act.^[17]

4. The Commission's decision

If the Commission decides to issue a WHS entry permit to a person, it will issue a permit that includes the following information:

• the section of the WHS Act under which the WHS entry permit is issued
• the full name of the WHS entry permit holder
• the name of the union that the WHS entry permit holder represents
• a statement that the WHS entry permit holder is entitled, while the WHS entry permit is in force, to exercise the rights given to the WHS entry permit holder under the WHS Act
• the date of issue of the WHS entry permit
• the expiry date for the WHS entry permit
• the signature of the WHS entry permit holder
• any conditions on the WHS entry permit.^[18]

As alluded to in the last point, the Commission may impose conditions on a WHS entry permit.^[19] The conditions could relate to what the WHS entry permit holder does when at a workplace, but could relate to more general matters such as reporting to the Commission about the number of times the WHS entry permit holder exercises a right of entry during a specified period. The WHS entry permit holder must not contravene a condition imposed on the WHS entry permit.^[20]

The Commission must publish on its website an up to date register of persons who hold a WHS entry permit issued under part 7 of the WHS Act.^[21]

5. Duration

A WHS entry permit expires at the earliest of the following to occur:

• a period of 3 years elapses from the WHS entry permit’s date of issue
• the WHS entry permit holder’s entry permit issued under the Fair Work Act expires
• the WHS entry permit holder ceases to be an official of the union that applied for the permit
• the union that applied for the WHS entry permit ceases to be an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009.^[22]

If a WHS entry permit expires, the person to whom it was issued must return the permit to the Commission within 14 days.^[23]

It is not possible to renew a WHS entry permit, but it is possible to apply for the issue of a subsequent WHS entry permit. The application may be made before or after the expiry of a current WHS entry permit.

6. Revocation

A WHS entry permit can be revoked by the Commission. The potential grounds for revocation of a WHS entry permit are:

• that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Commonwealth Workplace Relations Act 1996
• that the permit holder has contravened any condition of the WHS entry permit, or
• that the permit holder has acted or purported to act in an improper manner in the exercise of any right under the WHS Act, or
• in exercising or purporting to exercise a right under part 7 of the WHS Act, that the permit holder has intentionally hindered or obstructed a 'person conducting the business or undertaking' (PCBU) or workers at a workplace.^[24]

An application to revoke a WHS entry permit may be made to the Commission by:

• Comcare
• the '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
• any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under part 7 of the WHS Act, or
• any other person affected by the exercise or purported exercise of a right under part 7 of the WHS Act by a WHS entry permit holder.^[25]

The applicant must give written notice of the application to the WHS entry permit holder and the union concerned, who are automatically made parties to the application. The written notice must set out the grounds for the application. ^[26]

Upon receiving an application, the Commission will consider whether any of the grounds for revocation may exist. If the Commission is satisfied that a ground may exist, the Commission must give the WHS entry permit holder a written show cause notice stating that the WHS entry permit holder has 21 days to give the Commission written reasons explaining why the WHS entry permit should not be revoked. The show cause notice must be accompanied by a summary of the reasons for the application.^[27]

If the Commission considers it appropriate at this stage, it may suspend the operation of the WHS entry permit until the Commission decides the application for revocation. If it does so, the Commission must include a notice of suspension with the show cause notice.^[28] The WHS entry permit holder must return the permit to the Commission within 14 days, but can apply to the Commission for the return of the permit at the end of the period of suspension.^[29]

In determining the application for revocation, the Commission must consider whether any of the grounds for revocation exist. If the Commission is satisfied on the balance of probabilities that a ground does exist, it can select from a number of orders to dispose of the application:

• an order imposing conditions on the WHS entry permit, and/or
• an order suspending the WHS entry permit, and/or
• an order revoking the WHS entry permit, and/or
• an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked, and/or
• an order imposing any alternative action the Commission considers appropriate.^[30]

In deciding whether to make any of those orders, the Commission must take into account the seriousness of any findings of the Commission having regard to the object of the WHS Act. The Commission may also take into account any other matters that it considers relevant.^[31]

If the Commission’s decision is to revoke or suspend the WHS entry permit, the permit holder must return the permit to the Commission within 14 days. In the case of a suspension, the permit holder can apply to the Commission for the return of the permit at the end of the period of suspension.^[32]