Assistance of SafeWork SA to resolve disputes
If a dispute arises about a right of entry that cannot be resolved between the parties themselves, either the EPH or another party to the dispute (e.g. the relevant PCBU or the person with management or control of the workplace) can ask SafeWork SA to appoint an Inspector to assist in resolving the dispute. For example, assistance from an Inspector may be requested when:
- the EPH believes that a PCBU is unreasonably refusing them entry to a workplace
- the relevant PCBU thinks that an EPH’s suspected contravention is too broad and will unreasonably and intentionally disrupt work at a workplace if entry is allowed.
In the event of disagreement about workplace entry by an EPH, both parties need to be careful not to breach their obligations. A contravention by one party may affect whether another party’s behaviour itself constitutes a contravention, but does not necessarily provide a reasonable excuse.
If one party requests the assistance of a SafeWork SA, an Inspector will be appointed to the case as soon as practicable with consideration to:
- the precise nature of the dispute
- the availability of an Inspector given SafeWork SA’s other regulatory activities.
The Inspector will:
- ascertain the nature of the dispute
- hold discussions with the parties to explore whether resolution is possible
- attempt to assist in the resolution of the dispute between the parties but cannot make a binding decision
- as the decision is non-binding, it cannot be reviewed under the reviewable decision provision of the Act.
The Inspector may choose to make independent inquiries and is more likely to do so if, for instance, the dispute relates to a suspected contravention of the WHS Act and the Inspector considers the contravention may be serious.
Applying to SAET to resolve disputes
Assistance from a SafeWork SA Inspector is not mandatory. A party may choose instead make a request to the South Australian Employment Tribunal (SAET) to deal with the dispute in any manner it thinks fit which includes mediation, conciliation or arbitration. The SAET has great flexibility in how it deals with a dispute.
A party to the dispute may also apply to SAET if there has not been a successful resolution following the involvement of a SafeWork SA Inspector.
SafeWork SA may also apply to SAET to have the Commission deal with the dispute. However, this occurrence is very rare as it is normally best for one of the parties to the dispute to make the application to SAET.
A party to the dispute may be anyone to whom a right of entry dispute relates or who would be affected by the right of entry. This includes:
- the relevant PCBU
- the relevant union
- the EPH
- any other person the right of entry relates to or is affected by the right of entry.
In dealing with the dispute, the SAET is not able to confer any rights on the EPH that are additional to, or inconsistent with, rights exercisable by the EPH under part 7 of the WHS Act.
Disputes by arbitration
If the SAET is dealing with a dispute by arbitration, it is specifically given the power to make an order:
- imposing conditions on a WHS entry permit
- suspending an WHS entry permit
- revoking a WHS entry permit
- about the future issue of WHS entry permits to one or more persons
- it considers appropriate.