Union officials must follow strict procedures with penalties in place for any misuse of their entry rights.
Delaying, hindering or obstructing a person or disrupting work
An EPH exercising, or seeking to exercise, a right of entry 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.
An action that has the effect of intentionally delaying, hindering or obstructing a person, or disrupting any work at the workplace, is one that:
- is done on purpose, usually with some degree of premeditation, or
- in circumstances where the EPH may have reasonably foreseen that the concurrent effect of their actions would be likely to hinder or obstruct.
It is not enough that the act has the effect of delaying, hindering or obstructing a person or disrupting work if it is not deliberately designed to do so, unless it is reasonably foreseeable that the act would have this effect.
To constitute a contravention, the actions of the EPH need to be both:
- intentional and
Actions that may intentionally delay, hinder or obstruct a person, or disrupt work may include:
- preventing persons from carrying out concrete pouring at the workplace
- preventing the PCBU from dealing with identified non-compliances by not allowing the PCBU time to comply
- previous attendances.
An EPH is also prohibited from otherwise acting in an improper manner such as:
- failing to provide WHS entry permit and photographic identification for inspection when requested
- this action indicates an intentional or reckless disregard for the requirements imposed on an EPH
- swearing in discussions with representatives of the PCBU even if the use of such language may be commonly used between such parties at the workplace entered
- intimidating, abusive or bullying behaviour
- this could include situations where the number of entry permit holders seeking to exercise their right of entry at the same time is unreasonable in the circumstances.
A person must not intentionally or recklessly give the impression that their actions are authorised by part 7 of the WHS Act if they are not so authorised. This may be apply to an EPH or other person, for instance, a person who does not hold a WHS entry permit who intentionally or recklessly represents that they hold a valid permit.
An EPH may misrepresent their authority if, for example, they validly enter a workplace but then intentionally misrepresent the extent of the rights by directing workers to cease work until a suspected contravention is rectified.
It is important for an EPH to be clear about which rights they are exercising under the WHS Act and the Fair Work Act.
Unauthorised use or disclosure of information or documents
An EPH who obtains information or a document pursuant to a right of entry in an inquiry into a suspected contravention must not use or disclose the information or document for a purpose that is not related to the inquiry or rectifying the suspected contravention, except in very limited circumstances. For example, they may not release confidential information obtained during a right of entry on any public forums such as websites and social media.
A person, including the person with management or control of the workplace and the relevant PCBU must not:
- without reasonable excuse, refuse or unduly delay an entry permit holder from lawfully entering a workplace
- intentionally and unreasonably hinder or obstruct an entry permit holder from lawfully entering a workplace or exercising their rights
- for example, refusing to allow an EPH to observe an area which is listed on their permit as a suspected contravention, or refusing to provide documents available at the workplace in relation to a suspected contravention which has been listed on the entry permit.
The WHS Act aims to ensure that EPH’s are not prevented from properly exercising their rights by prohibiting people at a workplace from taking the above mentioned actions.
The ability of union officials to enter premises to investigate suspected breaches of WHS is critical in ensuring a safe workplace, and they should not be treated as trespassers when undertaking a valid right of entry.
A PCBU obstructing the purported exercise of a right of entry by a permit holder will not be contravening the civil penalty provisions if the EPH is seeking entry:
- for an extraneous purpose because in such circumstances there is no valid right of entry
- to consult and advise workers and that entry would intentionally and unreasonably disrupt work.
Work health and safety
The PCBU or person with management and control of a workplace can make reasonable requests of the EPH to comply with:
- any work health and safety requirement that applies to the workplace, and
- any other legislated requirement that applies to that type of workplace.
For example, to not enter an exclusion zone around a crane or an area of the workplace where mobile plant is in operation.
A failure to comply with such requests will generally mean that the EPH has no authority to enter or remain at the workplace.
Access to workers
For an EPH to enter a worksite to inquire into a suspected WHS contravention, they must have, so far as is practicable, the particulars of the suspected contravention that relates to, or affects, a relevant worker.
The relevant worker must:
- be a member, or be eligible to be a member, of the union, and
- have industrial interests that the union is entitled to represent, and
- work at the workplace.
However, they EPH is not required to provide details that would identify individual workers.
Refusing or delaying entry to EPH
A person, including the person with management or control of the workplace and the relevant PCBU must not without reasonable excuse, refuse or unduly delay entry into a workplace by an EPH who is entitled to enter the workplace.
What constitutes a reasonable excuse or an unreasonable refusal or delay will depend on all the circumstances of a particular case.
A reasonable delay or refusal may occur where:
- the EPH does not show their permits or photographic identification when requested
- an incident has occurred at the workplace that makes it unsafe for anyone (including an EPH) to be at the workplace
- the PCBU is preserving the incident site or a non-disturbance notice has been issued, affecting the part of the workplace that is relevant to the EPH
- where an EPH tries to enter the workplace to consult and advise relevant workers without providing prior notice of entry at least 24 hours in advance.
Examples of an unreasonable refusal or delay may include where:
- a supervisor attempted to delay an EPH’s entry until the supervisor’s manager returned to the workplace the next day, even though the manager had left the supervisor in charge
- a PCBU refused to allow the EPH until they disclosed the name of the worker who called them.
An EPH only may access a place of work. An EPH is not entitled to enter any part of a workplace that is used only for residential purposes. For example, if a two storey townhouse has a shop on the ground floor and residential premises on the second floor, an EPH only has a right to enter the shop on the ground floor.
Hindering or obstructing an EPH
A person must not intentionally and unreasonably hinder or obstruct an EPH from entering a workplace or in exercising any rights that an EPH has after entry to the workplace. Examples of where an EPH may be hindered or obstructed may include where:
- a manager has refused an EPH access to training documents relating to the suspected contravention which were kept at or accessible from a computer at the workplace
- an EPH is repeatedly and excessively requested to show their WHS entry permit and photographic identification, after first being produced.
A person may refuse to allow an EPH access to documents if it would lead to a breach of the privacy laws. This refusal would not be considered an intentional and unreasonable hindrance or obstruction of an EPH’s exercise of rights.