Regulatory guide - Entry to consult and advise workers

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 (WHS) entry permit holders to enter workplaces in certain circumstances.

One of the circumstances for entry to a workplace under the WHS Act, to consult and advise workers on WHS matters, is detailed in this regulatory guide.

1. Preconditions

1.1 Consulting with, or providing advice to, relevant workers

A WHS entry permit holder (EPH) may enter a workplace under section 121 of the WHS Act 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 with the EPH.

The relevant worker must work at the workplace in question. In addition, the worker must have a specified relationship with the union that the EPH represents, namely a worker:^[1]

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

1.2 Notice of entry

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

An EPH must give prior notice to the relevant PCBU before entering a workplace under section 121. 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.^[2]

The notice of entry must be in writing and must include:^[3]

• the full name of the EPH
• the name of the union that the EPH represents
• the section of the Act under which the EPH is proposing to enter the workplace (section 121)
• the name and address of the workplace proposed to be entered
• the date of proposed entry
• 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, and
  • the provision in the union’s rules that entitles the union to represent the industrial interests of that worker.

The declaration within the notice of entry goes towards establishing that there are relevant workers at the workplace. However, the relevant PCBU or the person with management or control of the workplace is not entitled to know the identity of individuals who are relevant workers who wish to participate in the discussions with the EPH. This is because an EPH is not required to disclose the name of any worker at the workplace to the relevant PCBU or the person with management or control of the workplace, although an EPH may do so if the worker in question consents.^[4]

2. Workplace entry

2.1 Time and physical extent

Actual entry to a workplace by an EPH pursuant to a WHS Act right of entry may occur only during the usual working hours at that workplace.^[5] The right of entry does not necessarily extend to the entire workplace. Rather, the right of entry may be exercised only in relation to:^[6]

• 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.

An EPH is expressly prohibited from entering any part of a workplace that is used only for residential purposes.^[7]

2.2 Rights that may be exercised

In accordance with the purpose of entry under section 121, an EPH who has entered a workplace under the section may consult and provide advice on work health and safety matters to one or more relevant workers who wish to participate in the discussions.

An EPH also has a general right after entering the workplace to warn any 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.^[8]

The ‘reasonably believes’ threshold means that there must exist facts which are sufficient to induce the belief in a reasonable person.^[9]