An EPH who is entitled to enter a workplace for the purpose of inquiring into suspected contraventions also may have the right to inspect and make copies of any document that is directly relevant to the suspected contravention[1].

The EPH may enter any workplace to inspect and make copies of:

  • employee records that are directly relevant to a suspected contravention, or
  • other documents that are directly relevant to a suspected contravention and that are not held by the relevant PCBU.

Some documents may be held at the workplace of another person.

The EPH must give prior notice to:

  • the person from whom the documents are requested (that is, the individual or entity who the EPH believes is in possession of the records or documents), and
  • the relevant PCBU (the PCBU to whom the suspected contravention relates).

The notice must be given:

  • during the usual working hours at that workplace
  • at least 24 hours before the entry
  • no more than 14 days before the entry.

The types of documents that may be of interest to the EPH include:

  • a contractor holding records on repairs and maintenance of plant and equipment
  • a hygienist holding records relating to the workplace
  • designers, manufacturers or suppliers of plant or substances holding records relating to tests undertaken
  • a shopping centre manager holding records of air-conditioning tests and maintenance
  • a document storage provider holding training records of employees.

Making copies of records or documents directly relevant to the suspected contravention may involve:

  • taking notes about the information within the inspected records or documents
  • photographing records or documents
  • photocopying relevant records or documents
  • sending relevant records or documents electronically to themselves (e.g. by email).

Except in very limited circumstances, an EPH who obtains information or a document must not use or disclose the information or document for a purpose:

  • that is not related to the inquiry, or
  • rectifying the suspected contravention.

For example, they may not release confidential information obtained during a right of entry on any public forums such as websites and social media.

PCBU rights

While an EPH may have the right to ask to look at and make copies of any relevant records or documents relevant to the suspected contravention, a PCBU also has rights in this respect.

The PCBU is not required to give access to the document if to do so would contravene a Commonwealth or state law. However, the relevant PCBU must not, without reasonable excuse, refuse or fail to comply with the requirement. A reasonable excuse might include situations where:

  • giving access to the document does not amount to a contravention of a Commonwealth or state law, but could make the relevant PCBU liable for contractual or other remedies
  • the relevant PCBU reasonably believes that documents are not directly relevant to the suspected contravention.

Additional considerations

The right of an EPH to request copies of a document is subject to any direction that may be given by an Inspector. This may include the direction to withhold access to documents.

While the EPH may request access to documents, there is no specific WHS civil penalty provision for the event that a PCBU (or other person) refuses or fails to allow the inspection or copying. Therefore the EPH cannot compel the PCBU to give the access to the requested documents.

[1] Accessing records and documents is permitted under Part 7, Division 2, Section 120, Work Health and Safety Act 2012 (SA) and must be in conjunction with Section 117.