The South Australian Employment Tribunal (SAET) can revoke a WHS entry permit if the permit holder:
- no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act 2009 (Cth) or the Commonwealth Workplace Relations Act 1996
- is no longer eligible to exercise a right of entry under section 140 of the Fair Work Act 1994 (SA)
- has contravened any condition of the WHS entry permit
- has acted or purported to act in an improper manner in the exercise of any right under the WHS Act
- in exercising or purporting to exercise a right under part 7 of the WHS Act, has intentionally hindered or obstructed a PCBU or workers at a workplace.
Making an application to revoke
An application to revoke a WHS entry permit may be made to the Commission by:
- SafeWork SA
- the PCBU in relation to which the EPH is exercising or proposes to exercise a right of entry
- any other person in relation to whom the EPH has exercised or purported to exercise a right under part 7 of the WHS Act
- any other person affected by the exercise or purported exercise of a right under part 7 of the WHS Act by a EPH.
The applicant must give written notice of the application to the EPH and the union concerned, who are automatically made parties to the application. The written notice must set out the grounds for the application.
Upon receiving an application, the SAET will consider whether any of the grounds for revocation may exist.
If the SAET finds that there may be grounds for revocation, the SAET will give the EPH:
- a written show cause notice
- a summary of the reasons for the application
- 21 days to provide written reasons explaining why the WHS entry permit should not be revoked.
The SAET may also elect to suspend the WHS entry permit while they consider the application for revocation. If an EPH has their permit suspended, they must return the permit to the SAET within 14 days. The EPH may apply to the SAET for the return of the permit at the end of the suspension period.
In determining the application for revocation, the SAET must consider whether any of the grounds for revocation exist. If the SAET is satisfied on the balance of probabilities that a ground does exist, it can make orders:
- imposing conditions on the WHS entry permit
- suspending the WHS entry permit
- revoking the WHS entry permit
- about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked
- imposing any alternative action the SAET considers appropriate.
In deciding whether to make any of those orders, the SAET must take into account the seriousness of any findings, having regard to the object of the WHS Act. The SAET may also take into account any other matters that it considers relevant.
If the SAET’s decision is to revoke or suspend the WHS entry permit, the permit holder must return the permit to the SAET within 14 days. In the case of a suspension, the permit holder can apply to the SAET for the return of the permit at the end of the period of suspension.