Union right of entry for work health and safety issues

The Work Health and Safety (National Uniform Legislation) Act 2011 and Regulations 2011 (the WHS Act and the WHS Regulations) outline the rights and responsibilities of union officials using their work health and safety (WHS) entry permit to enter a workplace.

Who is eligible for a WHS entry permit?

To be eligible to hold a work health and safety entry permit issued under the WHS Act, a person must be an official of the union applying for the permit, have completed the prescribed training and hold an industrial entry permit issued under the Fair Work Act 2009 (Cth).

A WHS entry permit is valid for three years unless:

  • the permit holder ceases to work for the union that applied for the permit
  • the permit holder’s Fair Work permit is no longer current
  • the permit is revoked by the Regulator.

A WHS entry permit can be revoked or suspended or have conditions applied by the Regulator if the permit holder:

  • no longer meets the eligibility criteria, or is found to have contravened any condition of the WHS entry permit
  • acted in an improper manner in the exercise of any right under the WHS Act, or
  • in exercising or purporting to exercise a right under Part 7 of the WHS Act, the permit holder has intentionally hindered or obstructed a person conducting a business or undertaking (PCBU) or workers at a workplace.

A request to revoke a permit can be made to the regulator by a PCBU or other affected person(s) by the exercise or purported exercise of a right under by a WHS entry permit holder.

Requirements for WHS entry permit holders

  1. A WHS entry permit holder must not contravene a condition imposed on the WHS entry permit.
  2. A WHS entry permit holder must not enter a workplace unless he or she also holds an entry permit issued under the Fair Work Act 2009 (Cth).
  3. A WHS entry permit holder must, at all times that he or she is at a workplace under a WHS right of entry have his or her WHS entry permit and photographic identification available for inspection by any person on request.
  4. A WHS entry permit holder may only enter a workplace during the usual working hours at that workplace.
  5. A WHS entry permit holder may only enter 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.
  6. A WHS entry permit holder must comply with any reasonable request in relation to work health and safety requirements for that workplace or any other legislated requirements that apply to that workplace.
  7. A WHS entry permit holder must not enter any part of a workplace used only for residential purposes.
  8. A WHS entry permit holder is not required to disclose to the PCBU or the person with management or control of a workplace the names of relevant workers for whom the right of entry is being exercised. The names may only be disclosed with the consent of the workers themselves.

*Relevant worker (in relation to a workplace) is defined as a worker:

(a) who is a member, or is eligible to be a member of the union the WHS entry permit represents; or

(b) whose industrial interests the union is entitled to represent; or

(c) who works at the workplace.

Rights upon entry

When 24 hours’ notice is not required

Inquiring into a suspected contravention of the WHS Act

A WHS entry permit holder can enter a workplace where a relevant worker works to inquire into suspected contraventions of the WHS Act without giving 24 hours’ notice. However, as soon as is reasonably practicable after entering a workplace, they must give written notice of the entry and details of the suspected contravention to the PCBU and the person with management or control of the workplace, unless to do so would defeat the purpose of the entry or unreasonably delay the WHS entry permit holder in an urgent case.

A WHS entry permit holder must reasonably suspect before entering the workplace that a contravention has occurred or is occurring. For instance, witness a contravention or be informed of a contravention by a worker at the workplace or other persons that have witnessed or suspect a contravention that affects a relevant worker.

While at the workplace a WHS entry permit holder may do any or all of the following in relation to the suspected contravention:

  • inspect work systems, plant, substance, structure or other thing relevant to a suspected contravention
  • consult with relevant workers in relation to the suspected contravention
  • consult with relevant PCBUs in relation to the suspected contravention
  • inspect and make copies of any document directly relevant to the suspected contravention and is:
    • kept at the workplace
    • accessible from a computer kept at the workplace
  • warn any person the WHS entry permit holder reasonably believes to be exposed to a serious risk to health and safety emanating from an immediate or imminent exposure to a hazard

However, the PCBU is not required to allow the WHS entry permit holder to inspect or make copies of a document if doing so would contravene a law of the Commonwealth or a law of a State.

When 24 hours’ notice is required

Inspect employee records or information held by a person other than the relevant PCBU

A WHS entry permit holder who wants to inspect or make copies of employee records or documents that are directly relevant to a suspected contravention that are not held by the relevant PCBU, must give at least 24 hours, but not more than 14 days’ notice of entry. The notice must be given to the person from whom the documents are requested as well as the relevant PCBU and must comply with the WHS Regulations. The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.

Entry to consult and advise workers

A WHS entry permit holder who wants to enter a workplace to consult with or advise relevant workers (who wish to participate in the discussions) on WHS matters must provide notice to the relevant PCBU at least 24 hours, but not more than 14 days, before the entry. The notice must be provided during usual working hours for that workplace and comply with WHS Regulations.

While in the workplace for the purposes of consulting and advising workers on WHS matters, a WHS entry permit holder may warn any person whom they reasonably believe to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.

Prohibited Actions

  1. A person must not, without reasonable excuse, refuse or unduly delay entry into a workplace by a WHS entry permit holder who is entitled to enter the workplace.
  2. A person must not intentionally or unreasonably hinder or obstruct a WHS entry permit holder in entering a workplace or exercising any rights at a workplace.
  3. A WHS entry permit holder 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. A WHS entry permit holder must not give an impression in their actions that they are authorised to do things they are not actually authorised to do, such as direct work to cease or claim they have the right to direct work to cease.
  5. A person must not use or disclose information or a document obtained under right of entry, unless for a reason outlined in Section 148 of the WHS Act. For instance, to lessen or prevent a serious risk to a person's health or safety or serious threat to public health or safety; or expose, prevent or assist in the prosecution of a criminal act or breach of a State or Federal Law.

Disputes arising out of WHS EPH exercising their rights under the WHS Act

If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under the WHS Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. The inspector can provide advice and recommendations to help the parties understand their rights and obligations as set out in the WHS Act, however; the inspector is not empowered to make any determination about the dispute.

If the dispute is unable to be resolved, and the inspector forms the view that the suspected contravention is substantial and warrants attention, they may enter the workplace and exercise their own powers.

NT WorkSafe can deal with a dispute about a WHS entry permit holder’s exercise of a right of entry. It can deal with such a dispute on its own initiative as well as on application by a party to the dispute. NT WorkSafe may deal with the dispute in an appropriate manner by mediation, conciliation or arbitration.

If NT WorkSafe deals with the dispute by arbitration it can revoke or suspend a WHS entry permit or make any other order it considers appropriate.

Content of a Notice of Entry

Notice of Entry

Although the written Notice of Entry is not in a prescribed form, it must include the following general information:

  • the full name of the WHS entry permit holder;
  • the name of the union that the WHS entry permit holder represents;
  • the section of the WHS Act under which the WHS entry permit holder is entering or proposing to enter the workplace;
  • the name and address of the workplace entered or proposed to be entered, and
  • the date of entry or proposed entry.

In addition, the WHS Regulations require additional information to be included for each type of entry:

Entry to inquire into suspected contraventions

  • notice must include, as far as is practicable, details of the suspected contravention
  • notice must include a declaration stating:
    • that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace 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; and
    • that the suspected contravention relates to, or affects, that worker.

Entry to inspect employee records or information held by another person

  • notice must include, as far as is practicable, details of the suspected contravention
  • notice must include a description of the employee records or other documents (or the classes of records or documents), directly relevant to the suspected contravention that are proposed to be inspected
  • notice must include a declaration stating:
    • that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace 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; and
    • that the suspected contravention relates to, or affects, that worker, and
    • that the records and documents proposed to be inspected relate to that contraventionEntry to consult and advise workers
  • notice must include a declaration stating:
    • that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace 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

Entry Permit Training

The prescribed training required for a WHS entry permit is delivered only by NT WorkSafe. An application for training must be made by the union. A reasonable number of participants are required before a training session is scheduled.

Contact us

For further information please contact us on 1800 019 115, via email at ntworksafe@nt.gov.au or go to the NT WorkSafe website at www.worksafe.nt.gov.au.

Document type:
Information bulletin
Topics:
Legislation
Last updated:
13 October 2022
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