Before exercising a right of entry at a workplace to inquire into a suspected contravention, the EPH must reasonably suspect that the contravention:
- involves a risk to the health or safety of a relevant worker
- has occurred or is occurring.
The suspected contravention may include any acts or omissions by a duty holder that impact or may impact on the health and safety of relevant workers. The EPH should provide, where possible, as much detail as can be provided about the suspected contravention. For example:
- plant and equipment – machine being operated with missing guards
- work systems – working at heights with no or inadequate fall protection
- chemicals – workers using certain chemicals without appropriate personal protective equipment
- consultation – workers not consulted on proposed changes to the work system which directly affect their health and safety
- workplace – inadequate lighting or poor ventilation
- workers – placing others at risk by unsafe or reckless practices
- amenities – unhygienic dining or toilet facilities.
The EPH’s role is to inquire into the suspected contravention with both the relevant workers and relevant PCBU, and to provide suggestions on what could be done to resolve identified concerns. An EPH does not have power to determine a contravention has occurred and/or direct what needs to be done to remedy the contravention.
When exercising a right of entry at a workplace to inquire into a suspected contravention, an EPH:
- is not required to give prior notice of entry
- must give written notice upon entry to:
- the relevant PCBU as soon as is reasonably practicable after entering a workplace
- the person with management or control of the workplace
- must consider whether it is reasonably practicable to notify SafeWork SA in order for an inspector to attend the workplace at the time of entry.
There is no requirement to provide a written notice of entry in situations where this would:
- defeat the purpose of entry to the workplace
- unreasonably delay the EPH in an urgent case.
There may be situations where considerations of what is reasonably practicable will justify a delay in giving notice of entry. It would only be in the most critical circumstances that it would be justified to not give notice at all.
These rights do not apply to entry permit holders when exercising their right of entry for the purpose of consulting and advising workers.
When giving written notice, the relevant PCBU will be the PCBU to whom the suspected contravention relates. The notice of entry should be given in person.
If labour hire workers are affected by a suspected contravention by the host business, the relevant PCBU will be the host business. It is not necessary in these circumstances for the EPH to give notice of entry to the labour hire company.
If the relevant PCBU is also the person with management or control of the workplace, only one written notice of entry is needed. Otherwise, both parties must be provided with a written notice.
A principal contractor engages subcontractors on a construction project. The suspected contravention relates to an unsafe system of work by one of the subcontractors. The relevant PCBU will be the subcontractor and the person with management or control will be the principal contractor.
If in Example 1, the principal contractor is suspected of contravening the WHS Act, then the principal contractor will be both the relevant PCBU and the person with management or control.
It is suspected that workers for a cleaning company contracted to clean a public hospital are using cleaning substances in an unsafe manner. The relevant PCBU is the cleaning contractor and the person with management or control is the government department / statutory body in charge of the hospital.
Where the PCBU and the person with management or control of the workplace are entities, the written notice is to be given to the individual the EPH reasonably believes is an appropriate recipient on behalf of the entity, during the time the EPH is present at the workplace.
The ‘reasonable suspicion’ threshold requires less than a reasonable belief but more than a possibility. A ‘reasonable suspicion’ cannot be an EPH’s assumption that things are not compliant at the workplace.
An EPH attended a construction worksite that had non-compliant scaffolding. Based on this interaction the EPH assumes that other construction worksites have the same non-compliances and bases their entry under S.117 on this assumption - this is not considered to be a ‘reasonable suspicion’.
To have a reasonable suspicion, there must be some factual basis for the suspicion. The entry permit holder must have some information about events in the workplace that would lead to a belief that there has been a contravention, or there is a contravention occurring.
This may include:
- a complaint made to an EPH that provides detail of incidents or processes at the workplace
- a direct observation by the EPH, while outside the workplace, of an incident or event that is likely to constitute a contravention
- a report in the media of an incident or event at the workplace, that is likely to constitute a contravention.
There must be reasonable grounds for forming the suspicion on the basis of that information.
If an EPH has formed a reasonable suspicion that a contravention of the WHS Act has occurred or is occurring, they should consider whether it may be appropriate for the issue to be addressed by Health and Safety Representatives (HSR) for the relevant workgroups or SafeWork SA. The limited powers available to EPHs may mean that the interests of relevant workers could be better served by action taken by HSRs or SafeWork SA.
The 'reasonable suspicion' requirement makes entry permit holders accountable for the proper exercise of their right of entry because an inability to provide particulars may call into question the reasonableness of the asserted belief.
Inquiring into a suspected contravention
Having entered a workplace for the purpose of inquiring into a suspected contravention, the EPH can:
- inspect any work system, plant, substance, structure or other thing that is relevant to the suspected contravention
- talk with any worker who is entitled to be represented by the union in relation to the suspected contravention
- consult with the relevant PCBUs
- warn anyone they reasonably believe to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk
- the reasonably believes threshold indicates that there must exist facts which are sufficient to induce a belief in a reasonable person
- ask to look at and make copies of any relevant records or documents relevant to the suspected contravention that is kept at the workplace in hard copy or stored on a computer
- the PCBU is not required to give access to the document if to do so would contravene a Commonwealth or state law.
Rights do not extend to consultation with workers who are not relevant workers, any PCBU who is not the relevant PCBU or any other person.
An EPH must not undertake an audit or phish for non-compliances while at the workplace. An EPH must deal with the suspected contraventions listed in their entry permit only. However, the EPH may raise concerns if other contraventions are observed whilst on site.
At the conclusion of entry, SafeWork SA recommends that the PCBU and EPH undertake a debriefing session to ensure observations and possible remedies are clear and understood by both parties. The PCBU should give consideration to informing the EPH when issues identified have been rectified.
If there are signification safety issues at a workplace that were not resolved during the entry, the EPH should contact the SafeWork SA Help Centre on 1300 365 255 to lodge a complaint.
Entry to a security sensitive workplace
Access to some workplaces is restricted by other legislative requirements. For example, security restrictions under the Aviation Transport Security Act 200 (Cth) require screening and clearance of a person before they can gain access to certain areas of an airport.
SafeWork SA recommends that unions and employers consider establishing contact and operational protocols to facilitate entry to security-sensitive workplaces. This may include an employer notifying security or other point-of-entry workers if an entry permit holder is expected to visit.
An EPH must comply with any reasonable request by the PCBU to comply with security requirements. This may include being escorted around the workplace or undertaking induction training.