Union right of entry - Information for employers

This bulletin provides information for a person conducting a business or undertaking (PCBU) to consider when a work health and safety (WHS) entry permit holder exercises a right of entry under Part 7 of the Work Health and Safety (National Uniform Legislation) Act 2011 (the WHS Act).

NT WorkSafe WHS entry permit

A prerequisite for a WHS entry permit to be issued by NT WorkSafe is that a union representative holds a Right of Entry Permit issued under the Fair Work Act 2009 (Cth).

The WHS entry permit holder (EPH) may only exercise right of entry during normal working hours.

Sample front and back of NT WHS entry permit identity card issued by NT WorkSafe

Points to consider when a union representative is to enter (or has entered) your workplace regarding WHS matters

Have you been provided with prior written notice of the union representative’s entry to the workplace (a Notice of Entry)?

Although the written Notice of Entry is not in a prescribed form, it must contain certain information such as:

• the full name of the EPH
• the name of the union the EPH represents
• the section of the WHS Act under which the EPH is entering or proposing to enter the workplace
• the name and address of the workplace entered or proposed to be entered
• the date of entry or proposed entry
• any additional information required by Work Health and Safety (National Uniform Legislation) Regulations 28, 29 or 30

A sample Notice of Entry addressing these criteria is provided.

Are you aware of the conditions that affect notice of entry requirements and production of a NT WHS Entry Permit identity card?

24 hours’ (but not more than 14 days) notice of entry is required:

• to inspect employee records or information held by a person other than the relevant PCBU when the EPH is following up on a suspected contravention of the WHS Act (Section 120)
• to consult with and advise workers (Section 121)

24 hours' notice of entry is not required:

• if the union representative entering (or has already entered) a workplace is attending to investigate a suspected contravention of the WHS Act that has occurred or is occurring (Section 117).

In this circumstance, the union representative must provide a notice of entry as soon as is reasonably practicable after entry.

At any time an EPH is exercising a right of entry under the WHS Act, they must have their WHS entry permit identity card on hand and available for inspection by any person upon request. If the WHS entry permit identity card cannot be provided in either of the above circumstances, the union representative is not entitled to enter, or remain on the premises for WHS matters.

When an EPH enters the workplace to consult with and advise workers on WHS matters, are you aware of when the discussions with employees can take place?

The EPH and the PCBU should negotiate a suitable time for discussions with relevant workers who wish to participate. Right of entry under the WHS Act is not restricted to meal times or other breaks, however, the EPH must not intentionally and unreasonably disrupt work and the PCBU must not intentionally hinder or obstruct the EPH in their efforts to consult with and advise relevant workers.

When the EPH enters the workplace, they must comply with reasonable requests of the PCBU regarding WHS requirements. Are you aware of what “WHS requirement” means?

WHS requirements are the WHS policies and procedures implemented in the workplace including (but not limited to) use of personal protective equipment and participation in site inductions.

When an EPH enters the workplace to investigate a suspected contravention of the WHS Act (Section 117), are you aware of what they may do?

• 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 EPH 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.

Who deals with disputes?

If a dispute arises about the exercise or purported exercise by an EPH of a right of entry under the WHS Act, any party to the dispute may ask the Regulator to appoint a WorkSafe Inspector to attend the workplace to assist in resolving the dispute.

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.