Regulatory guide - Entry to inquire into suspected contraventions

Part 7 of the Work Health and Safety Act 2011 (WHS Act), in conjunction with Part 2.4 of Work Health and Safety Regulations 2011 (WHS Regulations), provides for WHS entry permit holders to enter workplaces in certain circumstances.

One of the circumstances for entry to a workplace under the WHS Act, to enquire into a suspected contravention of the WHS Act, is detailed in this regulatory guide.

1. Preconditions

A WHS entry permit holder (EPH) may enter a workplace under section 117 of the WHS Act if they reasonably suspect that a contravention of the WHS Act or WHS Regulations, that relates to or affects a relevant worker, has occurred or is occurring. The entry is permitted for the purpose of inquiring into the suspected contravention.

The relevant worker must:^[1]

• work at the workplace in question, and
• be a member (or eligible to be member) of the union or a worker whose interests the union is entitled to represent. A 'person conducting a business or undertaking' (PCBU) in relation to which the EPH is exercising or proposes to exercise a right of entry is referred to as a ‘relevant person conducting a business or undertaking’ (relevant PCBU).^[2]

The ‘reasonably suspects’ threshold requires less than a reasonable belief but more than a mere possibility. The question is whether a reasonable person in the position of the EPH would have an actual apprehension that a contravention of the WHS Act or WHS Regulations that relates to or affects a relevant worker has occurred or is occurring. There must be some factual basis for the suspicion, in the form of evidence with probative value, even if it is hearsay or otherwise inadmissible as evidence in court. There must also be reasonable grounds for forming the suspicion on the basis of that evidence.^[3]

If an EPH has formed a reasonable suspicion that a contravention of the WHS Act or WHS Regulations has occurred or is occurring, he or she should consider whether they can properly address the issue. The limited powers available to EPHs may mean that the interests of relevant workers are better served by action taken by health and safety representatives and/or Comcare either in conjunction with, or instead of, the EPH.

2. Workplace entry

2.1 Time and physical extent

Actual entry to a workplace by an EPH pursuant to a right of entry may occur only during the usual working hours at that workplace.^[4] The right of entry does not necessarily extend to the entire workplace and may be exercised only in relation to:^[5]

• the area of the workplace where the relevant workers work
• any other work area that directly affects the health or safety of relevant workers.

An EPH is expressly prohibited from entering any part of a workplace that is used only for residential purposes.^[6]

2.2 Rights that may be exercised

Having entered a workplace for the purpose of inquiring into a suspected contravention based on a reasonable suspicion, an EPH has certain powers to inquire into the suspected contravention. General powers allow the EPH to:^[7]

• inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention
• consult with the relevant workers in relation to the suspected contravention
• consult with the relevant PCBU about the suspected contravention.

A PCBU or worker may decline to consult with an EPH but must not intentionally or unreasonably hinder or obstruct the EPH from consulting with any relevant worker or relevant PCBU.

The powers do not extend to consultation with:

• workers who are not relevant workers
• any  PCBU who is not the relevant PCBU
• any other person.

An EPH may require the relevant PCBU to allow the EPH to inspect and make copies of a document that:^[8]

• is directly relevant to the suspected contravention; and
• is kept at the workplace or is accessible from a computer that is kept at the workplace.

The relevant PCBU must not, without reasonable excuse, refuse or fail to comply with the requirement.^[9] The relevant PCBU is not required to give access to the document if to do so would contravene a Commonwealth or state law.^[10]

THE EPH also has a right while at the workplace to warn any person about a risk that the EPH reasonably believes to be a serious risk to the person’s health or safety emanating from an immediate or imminent exposure to a hazard.^[11]

The ‘reasonably believes’ threshold is greater than ‘reasonably suspects’ and requires credible information which would induce the belief in a reasonable person.^[12]

2.3 Notice of entry

As soon as is reasonably practicable after entering a workplace under section 117, an EPH must give notice of the entry and the suspected contravention to the relevant PCBU and the person with management or control of the workplace.^[13] What is reasonably practicable in a specific case will depend on all the circumstances of the particular situation. Generally, notice of entry should be given immediately upon entering the workplace. If this is not practicable, the notice should be given at the first available opportunity after entry.

The notice of entry must be in writing and must include:^[14]

• the full name of the EPH
• the name of the union that the EPH represents
• the section of the Act (that is, section 117 for entry to enquire into a suspected contravention) under which the EPH is proposing to enter the workplace
• the name and address of the workplace entered
• the date of entry or proposed entry
• so far as is practicable, the particulars of the suspected contravention to which the notice relates a declaration stating
  • that the union is entitled to represent the industrial interests of a relevant 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
  • the provision in the union’s rules that entitles the union to represent the industrial interests of the relevant worker
  • that the suspected contravention relates to or affects the relevant worker.

The declaration within the notice of entry goes towards establishing that there are relevant workers at the workplace and that the suspected contravention relates to or affects one or more of those workers. However, the relevant PCBU is not entitled to know the identity of individuals who are relevant workers. This is because an EPH is not required to disclose the name of any worker at the workplace to the relevant PCBU, although an EPH may do so if the worker in question consents.^[15]

The requirement to give notice does not apply if giving the notice would:^[16]

• defeat the purpose of the entry to the workplace, or
• unreasonably delay the EPH in an urgent case.

There may be situations where considerations of what is reasonably practicable will justify a delay in giving notice of entry. It would only be in the most unusual circumstances that it would be justified to not give notice at all.

2.4 Additional right

If an EPH is entitled to enter a workplace under section 117, the EPH can enter any other workplace to inspect and make copies of:^[17]

• employee records directly relevant to the suspected contravention
• any other document that is directly relevant to the suspected contravention that are not held by the relevant PCBU.

An EPH must give prior notice to the person from whom the documents are requested and the relevant PCBU before entering a workplace under section 120. 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.^[18]

The notice of entry under section 120 must include the requirements for notice of entry under section 117 set out in part 2.3 above (noting that the worker eligible to be represented by the union does not have to work at the workplace being entered), as well as a description of the employee records or other documents, or classes of records and documents, that are proposed to be inspected.^[19]

The declaration within the notice of entry goes towards establishing that there are relevant workers at the primary workplace, which relates to the EPH’s entitlement to enter the primary workplace under section 117. However, the relevant PCBU is not entitled to know the identity of individuals who are relevant workers. This is because an EPH is not required to disclose the name of any worker at the workplace to the relevant PCBU, although an EPH may do so if the worker in question consents.^[20]

2.5 Use of information and documents

An EPH who obtains information or a document pursuant to a right of entry under section 117 or section 120 in an inquiry into a suspected contravention must not use or disclose the information or document for a purpose that is not related to the inquiry or rectifying the suspected contravention, except in very limited circumstances.^[21] The use or disclosure of personal information obtained by an EPH during entry is also regulated under the Privacy Act.