Part 7Workplace entry by WHS entry permit holders

Part 7—Workplace entry by WHS entry permit holders Division 7 of Part 13 sets out the procedure in relation to the bringing of proceedings in relation to WHS civil penalty provisions. 116—Definitions official of a union means a person who holds an office in, or is an employee of, the union; relevant person conducting a business or undertaking means a person conducting a business or undertaking in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry; relevant union means the union that a WHS entry permit holder represents; relevant worker, in relation to a workplace, means a worker— (a) who is a member, or eligible to be a member, of a relevant union; and (b) whose industrial interests the relevant union is entitled to represent; and (c) who works at that workplace. Division 2—Entry to inquire into suspected contraventions 117—Entry to inquire into suspected contraventions (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is continuing and involves a risk to the health or safety of a relevant worker. (3) Furthermore, a WHS entry permit holder must— (a) give consideration as to whether it is reasonably practicable to give notice to the regulator about the proposed entry before exercising a power under subsection (1) in order to provide an opportunity for an inspector to attend at the workplace at the time of entry; and (b) if it is reasonably practicable to give notice to the regulator about the proposed entry, comply with any requirement prescribed by the regulations in relation to giving such a notice under this section. (4) The regulator must establish and maintain a policy that relates to the circumstances when inspectors will attend at workplaces when notified of the proposed entry of WHS entry permit holders under this section. (5) The regulator must ensure that the policy is published on a website that is maintained or used by the Department and the Minister must cause a copy of the policy to be laid before both Houses of Parliament. (6) If a WHS entry permit holder exercises a power of entry under this section without being accompanied by an inspector who has attended at the workplace in accordance with a policy under subsection (4)— (a) the WHS entry permit holder may furnish a report on the outcome of his or her inquiries at the workplace to the regulator in accordance with the regulations; and (b) on the receipt of a report under paragraph (a), the regulator must— (i) give consideration to what action (if any) should be taken on account of any suspected contravention of this Act outlined in the report; and (ii) if any such action is taken—advise the WHS entry permit holder of the action taken. 118—Rights that may be exercised while at workplace (1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act: (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention; (ab) during the inspection— (i) take measurements or conduct tests directly relevant to the suspected contravention; and (ii) take photos and videos directly relevant to the suspected contravention; (b) consult with the relevant workers in relation to the suspected contravention; (c) consult with the relevant person conducting a business or undertaking about the suspected contravention; (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that— (i) is kept at the workplace; or (ii) is accessible from a computer that is kept at the workplace; (e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk. (1a) In taking measurements and conducting tests under subsection (1)(ab), the WHS entry permit holder— (a) may bring to the workplace and use equipment and materials that are reasonably necessary for the measurements or tests; and (b) must take account of the need to take the measurements and conduct the tests in compliance with this Act and other relevant laws. (1b) Despite subsection (1)(ab)— (a) insofar as is reasonably practicable, a photo or video must not be taken that records the image or voice of a person other than— (i) a relevant worker; or (ii) a worker at the workplace whose actions are directly affecting a relevant worker; or (iii) an inspector or emergency services worker attending the workplace; or (iv) a WHS entry permit holder attending the workplace; and (b) a photo or video must not be live streamed. (1c) Nothing in this section prevents a photo or video being taken for the purpose of documenting a person hindering or obstructing another person in contravention of this Part. (2) Despite subsection (1)— (a) the right of a WHS entry permit holder to require copies of a document under subsection (1)(d) is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder); and (b) the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. See also section 148 and the Privacy Act 1988 of the Commonwealth in relation to limits on the disclosure and use of information collected under this section. (3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1)(d). (4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. 119—Notice of entry (1) A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to— (a) the relevant person conducting a business or undertaking; and (b) the person with management or control of the workplace. (2) Subsection (1) does not apply if to give the notice would— (a) defeat the purpose of the entry to the workplace; or (b) unreasonably delay the WHS entry permit holder in an urgent case. (3) Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120. 120—Entry to inspect employee records or information held by another person (1) This section applies if a WHS entry permit holder is entitled under section 117 to enter a workplace to inquire into a suspected contravention of this Act. (2) For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of— (a) employee records that are directly relevant to a suspected contravention; or (b) other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking. (3) Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking. (4) The notice must comply with the regulations. (5) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. (6) However, the right of a WHS entry permit holder to require copies of a document under this section is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder). Division 3—Entry to consult and advise workers 121—Entry to consult and advise workers (1) A WHS entry permit holder may enter a workplace to consult on work health and safety matters with, and provide advice on those matters to, one or more relevant workers who wish to participate in the discussions. (2) A WHS entry permit holder may, after entering a workplace under this Division, warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk. 122—Notice of entry (1) Before entering a workplace under this Division, a WHS entry permit holder must give notice of the proposed entry to the relevant person conducting a business or undertaking. (2) The notice must comply with the regulations. (3) The notice must be given during the usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. Division 4—Requirements for WHS entry permit holders 123—Contravening WHS entry permit conditions A WHS entry permit holder must not contravene a condition imposed on the WHS entry permit. Maximum penalty: $20 000. 124—WHS entry permit holder must also hold permit under other law (1) A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit under the Fair Work Act or under the Fair Work Act 1994. (2) A person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act for the purposes of subsection (1). 125—WHS entry permit to be available for inspection A WHS entry permit holder must, at all times that he or she is at a workplace under a right of entry under Division 2 or 3 of this Part, have his or her WHS entry permit and photographic identification available for inspection by any person on request. 126—When right may be exercised A WHS entry permit holder may exercise a right under Division 2 or 3 of this Part only during the usual working hours at the workplace. 127—Where the right may be exercised A WHS entry permit holder may exercise a right of entry to a workplace only in relation to— (a) the area of the workplace where the relevant workers work; or (b) any other work area that directly affects the health or safety of those workers. 128—Work health and safety requirements A WHS entry permit holder must not exercise a right of entry to a workplace under Division 2 or 3 of this Part unless he or she complies with any reasonable request by the relevant person conducting a business or undertaking or the person with management or control of the workplace to comply with— (a) any work health and safety requirement that applies to the workplace; and (b) any other legislated requirement that applies to that type of workplace. 129—Residential premises A WHS entry permit holder must not enter any part of a workplace that is used only for residential purposes. 130—WHS entry permit holder not required to disclose names of workers (1) A WHS entry permit holder is not required to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker at the workplace. (2) A WHS entry permit holder who wishes to disclose to the relevant person conducting a business or undertaking or the person with management or control of the workplace the name of any worker may only do so with the consent of the worker. Division 5—WHS entry permits 131—Application for WHS entry permit (1) A union may apply to the authorising authority for the issue of a WHS entry permit to a person who is an official of the union. (2) The application must specify the person who is to hold the WHS entry permit and include a statutory declaration by that person declaring that he or she— (a) is an official of the union; and (b) has satisfactorily completed the prescribed training; and (c) holds, or will hold, an entry permit under— (ii) the Fair Work Act 1994. (3) For the purposes of subsection (2)(c)(ii), a person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act. 132—Consideration of application In considering whether to issue a WHS entry permit, the authorising authority must take into account— (a) the object of this Act; and (b) the object of allowing union right of entry to workplaces for work health and safety purposes. 133—Eligibility criteria (1) The authorising authority must not issue a WHS entry permit to an official of a union unless the authorising authority is satisfied that the official— (a) is an official of the union; and (b) has satisfactorily completed the prescribed training; and (c) holds, or will hold, an entry permit under— (ii) the Fair Work Act 1994. (2) For the purposes of subsection (1)(c)(ii), a person who has a right of entry to a workplace under section 140 of the Fair Work Act 1994 will be taken to hold an entry permit under that Act. 134—Issue of WHS entry permit The authorising authority may issue a WHS entry permit to a person if the authorising authority has taken into account the matters in section 132 and is satisfied about the matters in section 133. 135—Conditions on WHS entry permit The authorising authority may impose conditions on a WHS entry permit. 136—Term of WHS entry permit A WHS entry permit has effect for a term of 3 years from the date it is issued. 137—Expiry of WHS entry permit (1) Unless it is earlier revoked, a WHS entry permit expires at the first of the following to occur: (a) at the end of the term of the WHS entry permit; (b) at the end of the term of the entry permit held by the WHS entry permit holder under— (ii) the Fair Work Act 1994 (being when the relevant person ceases to have a right of entry under section 140 of that Act); (c) when the permit holder ceases to be an official of the union that applied for the permit; (d) the union that applied for the permit ceases to be— (i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the Fair Work Act 1994. (2) An application may be made for the issue of a subsequent WHS entry permit before or after the current WHS entry permit expires. 138—Application to revoke WHS entry permit (1) The following persons may apply to the authorising authority for a WHS entry permit held by a person to be revoked: (a) the regulator; (b) the relevant person conducting a business or undertaking; (c) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under this Part; (d) any other person affected by the exercise or purported exercise of a right under this Part by a WHS entry permit holder. (2) The grounds for an application for revocation of a WHS entry permit are— (a) 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 Workplace Relations Act 1996 of the Commonwealth, or is no longer eligible to exercise a right of entry under section 140 of the Fair Work Act 1994; or (b) that the permit holder has contravened any condition of the WHS entry permit; or (c) that the permit holder has acted or purported to act in an improper manner in the exercise of any right under this Act; or (d) in exercising or purporting to exercise a right under this Part, that the permit holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace. (3) The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned. (4) The person who holds the WHS entry permit and the union that the WHS entry permit holder represents are parties to the application. 139—Authorising authority must permit WHS entry permit holder to show cause (1) If, on an application under section 138, the authorising authority is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2), the authorising authority must— (a) give the WHS entry permit holder written notice (a show cause notice); and (b) if the authorising authority considers it appropriate, suspend the operation of the WHS entry permit until the authorising authority decides the application for revocation. (2) The show cause notice must— (a) contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the authorising authority written reasons explaining why the WHS entry permit should not be revoked; and (b) be accompanied by a summary of the reasons for the application; and (c) if applicable, be accompanied by a notice of suspension of the permit. 140—Determination of application (1) If the authorising authority is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make one or more of the following orders: (a) an order imposing conditions on the WHS entry permit; (b) an order suspending the WHS entry permit; (c) an order revoking the WHS entry permit; (d) an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked; (e) an order imposing any alternative action the authorising authority considers appropriate. (2) In deciding what action to take under subsection (1), in relation to a person, the authorising authority must take into account— (a) the seriousness of any findings of the authorising authority having regard to the object of this Act; and (b) any other matters the authority considers relevant. Division 6—Dealing with disputes 141—Application for assistance of inspector to resolve dispute If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. 142—Authorising authority may deal with a dispute about a right of entry under this Act (1) The authorising authority may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable). (2) The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. (3) If the authorising authority deals with the dispute by arbitration, it may make one or more of the following orders: (a) an order imposing conditions on a WHS entry permit; (b) an order suspending a WHS entry permit; (c) an order revoking a WHS entry permit; (d) an order about the future issue of WHS entry permits to one or more persons; (e) any other order it considers appropriate. (4) The authorising authority may deal with the dispute— (a) on its own initiative; or (b) on application by any of the following to whom the dispute relates: (i) a WHS entry permit holder; (ii) the relevant union; (iii) the relevant person conducting a business or undertaking; (iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry; (v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder; (vi) the regulator. (5) In dealing with a dispute, the authorising authority must not 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 this Part. 143—Contravening order made to deal with dispute A person must not contravene an order under section 142(3). In relation to liability of a body corporate see also sections 244 and 256. Division 7—Prohibitions 144—Person must not refuse or delay entry of WHS entry permit holder (1) 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 under this Part. 145—Person must not hinder or obstruct 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 this Part. 146—WHS entry permit holder must not delay, hinder or obstruct any person or disrupt work at workplace A WHS entry permit holder exercising, or seeking to exercise, rights in accordance with this Part 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. 147—Misrepresentations about things authorised by this Part (1) A person must not take action— (a) with the intention of giving the impression; or (b) reckless as to whether the impression is given, that the doing of a thing is authorised by this Part if it is not so authorised. (2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised. 148—Unauthorised use or disclosure of information or documents A person must not use or disclose information or a document obtained under Division 2 of this Part in an inquiry into a suspected contravention for a purpose that is not related to the inquiry or rectifying the suspected contravention, unless— (a) the person reasonably believes that the use or disclosure is necessary to lessen or prevent— (i) a serious risk to a person's health or safety; or (ii) a serious threat to public health or safety; or (b) the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or (c) the use or disclosure is required or authorised by or under law; or (d) the person reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988 of the Commonwealth): (i) the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law; (ii) the enforcement of laws relating to the confiscation of the proceeds of crime; (iii) the protection of the public revenue; (iv) the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct; (v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or (e) if the information is, or the document contains, personal information—the use or disclosure is made with the consent of the individual to whom the information relates. Division 8—General 149—Return of WHS entry permits (1) The person to whom a WHS entry permit is issued must return the permit to the authorising authority within 14 days of any of the following things happening: (a) the permit is revoked or suspended; (b) the permit expires. Maximum penalty: $2 000. (2) After the end of a period of suspension of a WHS entry permit, the authorising authority must return the WHS entry permit to the person to whom it was issued if— (a) the person, or the person's union, applies to the authorising authority for the return of the permit; and (b) the permit has not expired. 150—Union to provide information to authorising authority The relevant union must advise the authorising authority if— (a) the WHS entry permit holder resigns from or otherwise leaves the union; or (b) the WHS entry permit holder has had any entry permit granted under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth, (no matter when in force) cancelled or suspended or if the holder is no longer eligible to exercise a right of entry under section 140 of the Fair Work Act 1994; or (c) the union ceases to be— (i) an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or (ii) an association of employees or independent contractors, or both, that is registered or recognised as such an association (however described) under the Fair Work Act 1994. 151—Register of WHS entry permit holders The authorising authority must keep available for public access an up to date register of WHS entry permit holders in accordance with the regulations.