Regulatory guide - General obligations of other persons to WHS entry permit holders

Part 7 of the Work Health and Safety Act 2011 (WHS Act), in conjunction with Part 2.4 Work Health and Safety Regulations 2011 (WHS Regulations), enables work health and safety (WHS) entry permit holders to enter workplaces to enquire into a suspected contravention of the WHS Act or to consult and advise workers on a work health and safety matter.

1. Refusing or delaying entry

A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder (EPH) who is entitled to enter the workplace.^[1]

What constitutes a reasonable excuse will depend on all the circumstances of a particular case, but examples could include:

• the person has a reasonable belief that the EPH does not in fact hold a valid WHS entry permit and a Fair Work entry permit^[2]
• an incident has occurred at the workplace that makes it unsafe for anyone (including an EPH) to be at the workplace
• an EPH is attempting to enter a workplace where a notifiable incident has occurred and the person with management and control of the workplace is required to ensure the site where the incident occurred is not disturbed^[3]
• a non-disturbance notice has been issued,^[4] affecting the part of the workplace that an EPH is attempting to enter.

The person to whom the prohibition against refusal or delay applies could be the 'person conducting a business or undertaking' (PCBU), and could also be the person with management or control of the workplace (PMCW), a worker, or any other person.

2. Hindering or obstructing WHS entry permit holder

A person must not intentionally and unreasonably hinder or obstruct an EPH in entering a workplace or in exercising any rights at a workplace in accordance with Part 7 of the WHS Act.^[5] Examples could include:

• making repeated and excessive requests that an EPH show his or her WHS entry permit or Fair Work permit
• failing to provide access to documents or things that an EPH is entitled to inspect.^[6]

Again, the person to whom the prohibition applies could be the PCBU, the PMCW, a worker, or any other person.

An EPH who has entered a workplace to enquire into suspected contraventions has a right under the WHS Act to consult with relevant workers and the relevant PCBU.^[7] However, there is no reciprocal obligation under the WHS Act for the PCBU or any worker to consult with the EPH.

A PCBU 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 any relevant PCBU, or performing any other EPH’s function.

3. Compliance

The provisions creating the obligations mentioned above are WHS civil penalty provisions. This means that they can be enforced through civil proceedings that can be commenced by Comcare or an inspector, potentially leading to the imposition of a civil penalty.^[8]

The obligations described above are balanced by obligations owed by EPHs when exercising rights under part 7, which are also created by WHS civil penalty provisions.

In the event of disagreement about workplace entry by an EPH, both sides need to be careful not to breach their obligations. A contravention by one party may affect another party’s contravention, but does not necessarily provide an excuse.

It is therefore an important feature of part 7 of the WHS Act that it provides specific mechanisms for dealing with disputes about the exercise or purported exercise by an EPH of a right of entry.^[9] Parties to a dispute are advised to make use of these mechanisms rather than trying to ‘take the law into their own hands’.