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 0f the Work Health and Safety Regulations 2011 (WHS Regulations), provides for work health and safety (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 (EPH) must also hold an entry permit under the Fair Work Act 2009.
Regulatory functions relating to WHS entry permits and EPHs are shared by Comcare and the Fair Work Commission (the Commission). The Commission is the ‘authorising authority’ that assesses applications and issues WHS entry permits under the WHS Act. WHS entry permits issued under state and territory corresponding WHS laws are also recognised under the WHS Act.[1]
1. Request for assistance from Comcare inspector
If a dispute arises about the exercise or purported exercise by an EPH of a right of entry, any party to the dispute may ask Comcare to appoint an inspector to assist in resolving the dispute.[2]
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.
There is no bright line between inspectors’ activities under these provisions and their other functions such as providing information and advice or monitoring compliance with the WHS Act. While assisting in the resolution of disputes under section 141 of the WHS Act, inspectors will also consider whether it may be appropriate to undertake other activities within the range of their functions and powers.
Comcare is not specifically required to attend the workplace to provide assistance under section 141.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 likely that an inspector will attend the workplace and will have the option of using any of their inspector powers that are available upon entry.[3]
As section 141 does not empower the inspector to make a decision, in the absence of other inspector powers being exercised, an inspector's assistance in resolving a dispute under section 141 is not a 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 a right of entry dispute.
2. Application to Commission
The Commission may deal with a right of entry dispute under the WHS Act either on its own initiative or upon application by any of the following to whom the dispute relates:
- An EPH
- the relevant union
- the relevant 'person conducting a business or undertaking' (PCBU)
- any other person in relation to whom the EPH 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 an EPH
- Comcare.[4]
The Commission 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 EPH that are additional to, or inconsistent with, rights exercisable by the EPH 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 one or more of the following orders: [7]
- 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] See the definition of ‘WHS entry permit’ in section 4.
[2] Section 141.
[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).
[5] Section 142(2).
[6] Section 142(5).
[7] Section 142(3).
