HR Highlight: WHS Reps Right of Entry
When, how and where can a WHS Rep access your business
SafeWork Australia has recently released Interpretive Guideline on the operation of the Workplace Entry provisions under the Work Health and Safety Act
The Interpretive Guidelines have been produced to draw on existing case law and the provisions of the Acts and Regulations to provide a working picture of the Right of Entry. The Guidelines highlights that WHS Permit Holders may enter a workplace to “inquire into a suspected WHS contravention” must “have a reasonable suspicion before entering that the contravention has occurred or is occurring” and goes further “the Act does not give WHS entry permit holders an unconditional right of entry” .
Right of Entry WHS v FWA
It is important for all affected businesses to understand that the WHS Right of Entry differs from the similar Right of Entry provisions in the Fair Work Act.
“Under the WHS Act, entry rights to consult with and advise workers about WHS matters are not limited to meal times or other breaks like similar entry rights under the Fair Work Act 2009”.
“The location for discussions is also not necessarily limited to an area or room within the workplace nominated by the PCBU.”
Further it is worth noting that the right to enter to advise employees is not a pass to discuss any and all matters.
“This right of entry is not given for the purpose of holding discussions with workers generally. Entry to consult and advise workers is limited to discussion of WHS matters with relevant workers who wish to participate in the discussions.”Permit Holders who disregard this last provision invalidate their reason for entry and have “no authority to remain at the workplace”.
Permit Holders are also required to comply with a reasonable request from the business in regard to WHS site requirements as well as to give regard to the impact on the operation of the business.
“Under section 146, when exercising any right of entry under the WHS Act, a WHS entry permit holder must not intentionally and unreasonably: delay, hinder or obstruct any person at the workplace, or disrupt any work at the workplace. “
Click here to read the 9-page Interpretive Guideline.
ACAPMA members are reminded that they can access support and advice from the ACAPMAlliance Workplace Relations Professionals on 1300 160 270.