Regulatory guide - General obligations of 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), provides for 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. Permits and identification

A WHS entry permit holder (EPH) cannot require entry to a workplace unless they also hold an entry permit under the Fair Work Act.^[1]

Further, at all times that an EPH is at a workplace pursuant to a right of entry, the EPH must have their WHS entry permit and photographic identification (such as a driver’s licence) available for inspection by any person on request.^[2]

2. Legislative requirements

A WHS entry permit holder must not exercise a right of entry to a workplace unless he or she complies with any reasonable request by the relevant PCBU or the person with management or control of the workplace to comply with any work health and safety requirement, and any other legislated requirement, that applies to the workplace.^[3]

3. Improper behaviour

An EPH exercising, or seeking to exercise, a right of entry 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.^[4]

For example, this prohibition might apply to an EPH who is attempting to consult or advise workers who do not wish to participate in the discussion.

The conduct of an EPH that would hinder or obstruct a person needs to be both intentional and unreasonable to constitute a contravention.

4. Misrepresentation

A person must not intentionally or recklessly give the impression that their actions are authorised by Part 7 of the WHS Act if they are not so authorised.^[5]

This prohibition could apply to an EPH who has validly entered a workplace, but intentionally or recklessly misrepresents the extent of the rights that they are entitled to exercise at the workplace. In this regard, it is important for an EPH to be clear about which rights or powers they can exercise under the WHS Act.

However, the prohibition could potentially apply to other persons, for instance where a person who does not hold a WHS entry permit who intentionally or recklessly represents that they do have a valid permit.

5. 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.^[6]

The obligations described above are balanced by obligations owed by other persons towards EPHs, 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. The behaviour of one party may affect how another party’s contravention is viewed, but does not necessarily provide an excuse to a contravention.

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 a WHS entry permit holder of a right of entry.^[7] Parties to a dispute are advised to make use of these mechanisms rather than trying to ‘take the law into their own hands’.