WHS entry permits – The “unfettered” right of entry?

The right of union officials to enter a workplace is strictly regulated by the Fair Work Act 2009 (Cth) (“the FW Act”) and the relevant work health and safety legislation in your state (in this article, we refer to and focus on the Work Health and Safety Act 2011 (NSW) (“the WHS Act”)).

Although the right is strictly regulated, we frequently see WHS permits and rights of entry being abused and/or used by the permit holder for inappropriate purposes. In this article, we examine the essential rights and obligations of permit holders and persons conducting a business or undertaking (“PCBU”), and the potential consequences for breach of the same.

The purpose of a WHS entry permit is to provide the WHS entry permit holder with the right to enter the workplace to inquire into a suspected contravention of the WHS Act that relates to a member worker or worker eligible to become a member (together, “the Worker”). However, prior to entering the workplace, the WHS entry permit holder must reasonably suspect that a contravention of the WHS Act has or is occurring.

Once lawfully in the workplace, the WHS entry permit holder may exercise various rights, such as inspection of work systems and plants, consulting with the workers and the relevant PCBU, and inspecting and making copies of relevant documents.

Entry to a workplace under a WHS entry permit is regulated to the extent that:

• The right of entry must be exercised only during normal working hours;

• The location is restricted to where the relevant worker conducts work and/or areas where the worker’s health and safety is directly affected;

• The WHS entry permit holder must comply with the relevant PCBU’s reasonable request to adhere to the health and safety practices and procedures of the workplace;

• As soon as reasonably practicable after the entry (and subject to certain exceptions) the WHS entry permit holder must provide notice of the entry and suspected contravention; and

• At least 24 hours (and not more than 14 days) before entry to a workplace, the WHS entry permit holder must provide notice of their proposed entry if the purpose is to inspect or make copies of documents, such as employee records.

A frequent difficulty that arises for PCBUs is in what situations the PCBU can block a WHS entry permit holder’s entry to part or all of its workplace? This question was recently considered by the Industrial Relations Commission of NSW (“the IRC”) in CFMEU (NSW Branch) v Acciona Infrastructure Australia Pty Limited and Ferrovial Agroman (Australia) Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1000.

In deciding to grant, in part, the CFMEU’s application for entry-related orders, IRC Commissioner John Murphy clarified the WHS entry permit rules and usefully reaffirmed that right of entry should be exercised responsibly and for its intended purposes.

The issue in dispute arose from whether the Respondent (“Pacifico”) was entitled to refuse CFMEU entry permit holders, Mr Rigby and Mr Kelly, entry to its worksite.

The CFMEU claimed that Mr Kelly and Mr Rigby had received reports from employees at the site that Pacifico’s employee, “Doc”, had engaged in conduct that amounted to bullying and harassment, and which was causing mental distress to the employees (“the Alleged Conduct”). The Alleged Conduct included making threatening comments such as “don’t join the CFMEU” and “if you do join the CFMEU there will be consequences”.

Pursuant to section 122 of the WHS Act, Mr Rigby and Mr Kelly gave notice of their intention to enter the worksite and consult and advise workers. Mr Rigby and Mr Kelly discussed the employees’ concerns with Pacifico’s HR Manager and later provided notice pursuant to section 119 of the WHS Act for the purpose of inquiring into a suspected contravention of the WHS Act and sought inspection of Pacifico’s bullying and harassment policy. Pacifico declined the request. However, the IRC determined the notice was sufficient.

In determining to decline the CFMEU’s request for orders that would confirm the CFMEU WHS permit holders as having “reasonably suspect[ed] contraventions” of the WHS Act, Commissioner Murphy observed: “the question to be answered was whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, section 19 of the WHS act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the [worksite]…The formation of a reasonable suspicion [of a contravention] requires more than hearsay evidence and direct observation of workers feeling stressed, anxious and uncomfortable at work.” [Emphasis added]

The take home message for employers, despite the low bar for meeting the WHS Act’s notice requirements, is WHS entry permit holders cannot enter your workplace for inappropriate purposes, and must hold a reasonable suspicion of a contravention of the WHS Act.

If you would like to further discuss the conduct of WHS entry permit holders at your workplace, please do not hesitate to contact Nick Stevens, Megan Cant or Jane Murray.