Regulatory guide - WHS entry permits

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 the issuing of a work health and safety entry permit (WHS entry permit) to a person who is an official of a relevant union.^[1]

Regulatory functions relating to WHS entry permits and WHS entry permit holders (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.

EPHs may enter workplaces in connection with work health and safety (WHS) matters that affect workers at the workplace whose interests that the union is entitled to represent and who are:

• members of their union, or
• eligible to be members.

Reasons for entry to a workplace under the WHS Act include to enquire into a suspected contravention of the WHS Act or to consult and advise workers on a WHS matter. While at a workplace an EPH may exercise certain rights as set out in the WHS Act.

However, an EPH must not enter a workplace under part 7 of the WHS Act unless they also hold an entry permit under the Fair Work Act 2009 (Fair Work Act).^[2]

For information about applications for entry permits under the Fair Work Act refer to the Fair Work Commission website: About Fair Work entry permits.

1. Recognition of WHS entry permits

WHS entry permits issued under any corresponding WHS law^[3] is a WHS entry permit for the purposes of the WHS Act.^[4]

2. Application process

A member of a relevant union’s committee of management may apply to the Commission for a WHS entry permit on behalf of a union official. An application can be made via the Commission’s website.^[5] The application must specify the legal name of the union official who is to hold the WHS entry permit and all other information required in the application by the Commission. The application must also include a statutory declaration by the union official declaring that he or she:^[6]

• is an official of the union
• has satisfactorily completed the prescribed training, and
• holds, or will hold, an entry permit under the Fair Work Act.

3. Matters to be considered by the Commission

The Commission must not issue a WHS entry permit unless it is satisfied about that the matters referred to in the unions official’s statutory declaration.  The Commission must take into account:^[7]

• the object of the WHS Act

• the object of allowing union right of entry to workplaces for work health and safety purposes.

The object of the WHS Act is set out in section 3 of the WHS Act and includes:

• providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety
• encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting a business or undertaking and workers to achieve a healthier and safe working environment
• promoting the provision of advice, information, education and training in relation to work health and safety.

Section 480 of the Fair Work Act identifies the need to balance the right of unions to represent their members in the workplace and investigate suspected contraventions of WHS laws with the right of occupiers and employers to go about their business without undue inconvenience.

4. Issuing of a WHS entry permit

WHS entry permits issued by the Commission will include the following information:^[8]

• the section of the WHS Act under which the WHS entry permit is issued
• the full name of the WHS entry permit holder
• the name of the union that the WHS entry permit holder represents
• a statement that the WHS entry permit holder is entitled, while the WHS entry permit is in force, to exercise the rights given to the WHS entry permit holder under the WHS Act
• the date of issue of the WHS entry permit
• the expiry date for the WHS entry permit
• the signature of the WHS entry permit holder
• any conditions on the WHS entry permit.

The Commission may impose conditions on a WHS entry permit including limitations and restrictions.^[9] The WHS entry permit holder must not contravene a condition imposed on the WHS entry permit.^[10]

The Commission must maintain and publish on its website an up to date, publicly accessible register of persons who hold a WHS entry permit issued under part 7 of the WHS Act and the date on which the register was last updated.^[11]

5. Term of WHS entry permit

Unless it is earlier revoked, a WHS entry permit expires at the earliest of the following to occur:^[12]

• a period of 3 years elapses from the WHS entry permit’s date of issue
• the WHS entry permit holder’s entry permit issued under the Fair Work Act expires
• the WHS entry permit holder ceases to be an official of the union that applied for the permit
• the union that applied for the WHS entry permit ceases to be an organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009.

If a WHS entry permit is revoked, suspended or expires, the person to whom it was issued must return the permit to the Commission within 14 days.^[13]

It is not possible to renew a WHS entry permit, but it is possible to apply for the issue of a subsequent WHS entry permit. The application may be made before or after the expiry of a current WHS entry permit.^[14]

6. Revocation

A WHS entry permit can be revoked by the Commission.

Application for revocation

An application to revoke a WHS entry permit may be made to the Commission by:^[15]

• Comcare
• a 'person conducting a business or undertaking' (PCBU) in relation to which the WHS entry permit holder is exercising or proposes to exercise the right of entry
• any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise a right under part 7 of the WHS Act
• any other person affected by the exercise or purported exercise of a right under part 7 of the WHS Act by a WHS entry permit holder.

The applicant must give written notice of the application to the WHS entry permit holder and the union concerned as parties to the application. The written notice must set out the grounds for the application.^[16]

Grounds for an application revocation

The grounds for revocation of a WHS entry permit are:^[17]

• that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Commonwealth Workplace Relations Act 1996

• that the permit holder has contravened any condition of the WHS entry permit

• that the permit holder has acted or purported to act in an improper manner in the exercise of any right under the WHS Act
• in exercising or purporting to exercise a right under part 7 of the WHS Act, the permit holder has intentionally hindered or obstructed a PCBU or workers at a workplace.

Commission's initial decision

Upon receiving an application, if the Commission is satisfied that a ground for the revocation of the WHS entry permit may exist, the Commission must give the WHS entry permit holder a written ‘show cause’ notice stating that the WHS entry permit holder has 21 days to give the Commission written reasons explaining why the WHS entry permit should not be revoked. The show cause notice must be accompanied by a summary of the reasons for the application.^[18]

The Commission may also, if it considers it appropriate, suspend the operation of the WHS entry permit until the Commission decides the application for revocation. If it does suspend the permit, the Commission must include a notice of suspension with the show cause notice.^[19] 

In determining the application for revocation, the Commission must consider whether any of the grounds for revocation exist. If the Commission is satisfied on the balance of probabilities that a ground does exist, it may make one or more of the following orders:^[20]

• an order imposing conditions on the WHS entry permit
• an order suspending the WHS entry permit
• an order revoking the WHS entry permit
• an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked
• an order imposing any alternative action the Commission considers appropriate.

In deciding whether to make any of the above-mentioned orders, the Commission must take into account the seriousness of any findings of the Commission having regard to the object of the WHS Act and any other matters it considers relevant.^[21]

A WHS entry permit holder must return the permit to the Commission within 14 days of a WHS entry permit being revoked or suspended. At the end of a period of suspension the authorising authority must return the permit to the person if there has been an application to return the permit and it has not expired or been revoked.^[22]