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An overview for the Safety Institute of Australia’s Safety 2013 Sydney Conference
UNION RIGHTS OF ENTRY FOR
WORK HEALTH & SAFETY MATTERS
Presented by Doug Wakefield CPMSIA RSP(Aust.)
Safe Measure Pty. Ltd
www.safemeasure.com.au
“Out of this nettle, Danger, May we pluck this flower, Safety”
Shakespeare Henry IV Pt.1
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Union RoE: A double-edged sword…
Dionysius I
of Syracuse
& Damocles (4thc. BCE)
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“Would you tell me which way I ought to go from here?”
“That depends a good deal on where you
want to get to,” said the Cat.
“I don't much care where,” said Alice.
“Then it doesn't matter which way you go.” said the Cat.
Lewis Carroll "Alice's Adventures in Wonderland"
QUO VADIS?
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POWERS TO ENTER
Covered by:
• Fair Work Act 2009
• Federal, State and Territorial Industrial Laws
• Federal, State and Territorial H&S Laws
Three main uses:
• Hold discussions with workers (Industrial law & H&S law)
• Investigate H&S matters (Industrial law & H&S law)
• Investigate breaches of industrial matters (Industrial law)
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POWERS TO ENTER
USING F.W. Act 2009
Mainly used for outright industrial relations purposes
Entry generally ≥24 hours & ≤14 days notice for entry in
working hours
Main application:
• Suspected breach of FWAct 2009 or an industrial
instrument such as an agreed award;
• To hold discussion with employees
Secondary application:
• Breach or potential breach of a Commonwealth or state or
territory H&S act.
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POWERS TO ENTER
USING WHS Act 2011
(HARMONISED STATES)
Only to be used for WHS purposes
Entry generally ≥24 hours & ≤14 days notice for entry in
working hours
However, entry without notice also possible.
Mainly for WHS issues requiring immediate action, including:
• Suspected breach of WHS Act 2011
• Inspect WHS matters (incl. hardware & software)
• Warn Workers of any potential WHS dangers
• Hold discussion with Workers regarding WHS issues
including consultative mechanisms
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WHAT IS A ‘WHS ENTRY PERMIT
HOLDER’? (Harmonised states)
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An authorised union official who can:
Upon the request of workers -
• Represent workers in discussions with PCBUs WHS
matters, including consultative processes e.g. composition of
work groups (WG); numbers of HSRs & deputies per WG;
assist with elections, etc.
• Assist with resolving WHS issues by participating in the
issue resolution procedure
• Provide assistance to a HSR upon request
Upon personal observation –
• Enter & inspect
• Warn workers of impending danger
Individual Entry Permit Hoder
MUST:
• BE A MEMBER OF AN ORGANISATION:
– REGISTERED UNDER Fair Work (Registered
Organisations) Act 2009, OR
– TRANSITIONALLY RECOGNISED under Schedule 1 to
the Fair Work (Registered Organisations) Act 2009, OR
– THAT IS A State-registered association recognised under
Schedule 2 to the Fair Work (Registered Organisations)
Act 2009.
• BE A FIT & PROPER PERSON
• BE INSTRUCTED & TRAINED BY AUTHORISED
PERSON, USING AUTHORISED COURSE
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THE ORGANISATION MUST (i):
MAKE PROPER ENQUIRY RE PROPOSED PERMIT
HOLDER (PPH) INCL.:
• REVIEW OF ORGANISATION RECORDS
• ENSURE PPH IS A ‘FIT & PROPER PERSON’
• TAKE ALL REASONABLE STEPS TO ENSURE THE PPH
HAS:
– RECEIVED APPROPRIATE TRAINING RE RIGHTS
&RESPONSIBILITIES OF A PERMIT HOLDER
– NEVER BEEN CONVICTED OF AN OFFENCE
AGAINST AN IR LAW
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THE ORGANISATION MUST (ii):
• TAKE ALL REASONABLE STEPS TO ENSURE THE PPH
HAS (cont.):
– NEVER BEEN CONVICTED OF AN OFFENCE
AGAINST A LAW OF THE COMMONWEALTH, A
STATE, A TERRITORY OR A FOREIGN COUNTRY
INVOLVING:
• ENTRY ONTO PREMISES,
• FRAUD OR DISHONESTY, OR
• INTENTIONAL USE OF VIOLENCE AGAINST
ANOTHER PERSON, OR
• INTENTIONAL DAMAGE OR DESTRUCTION OF
PROPERTY
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THE ORGANISATION MUST (iii):
TAKE ALL REASONABLE STEPS TO ENSURE THE PPH
HAS:
• NEVER BEEN ORDERED TO PAY A PENALTY UNDER
THE FW ACT OR OTHER INDUSTRIAL LEGISLATION
• NOT HAD REVOKED, SUSPENDED OR BEEN SUBJECT
TO CONDITIONS, ANY PREVIOUS PERMIT ISSUED
UNDER THE FW ACT OR SIMILAR LAW OF THE
COMMONWEALTH
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THE ORGANISATION MUST (iv):
TAKE ALL REASONABLE STEPS TO ENSURE THE PPH
HAS (cont.):
• NOT HAD CANCELLED, ETC. ANY RIGHT OF ENTRY
FOR IR OR OHS PURPOSES UNDER A STATE OR
TERRITORY IR OR H&S LAW
• NOT BEEN DISQUALIFIED, BY ANY COURT, OR
OTHER PERSON OR BODY, UNDER A STATE OR
TERRITORY INDUSTRIAL LAW OR AN OHS LAW,
FROM EXERCISING, OR APPLYING FOR, A RIGHT OF
ENTRY FOR INDUSTRIAL OR OCCUPATIONAL HEALTH
AND SAFETY PURPOSES UNDER THAT LAW.
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THE PROPOSED PERMIT HOLDER MUST
DECLARE (i):
• TRAINING RE RIGHTS & RESPONSIBILITES OF A PH
HAS BEEN RECEIVED
• NO CONVICTION OF OFFENCE AGAINST AN IR LAW
• NEVER CONVICTED OF AN OFFENCE AGAINST A LAW
OF THE COMMONWEALTH, A STATE OR TERRITORY
OR FOREIGN COUNTRY RE:
- ENTRY ONTO PREMISES
- FRAUD OR DISHONESTY
- INTENTIONAL USE OF VIOLENCE AGAINST
ANOTHER PERSON OR INTENTIONAL DAMAGE OR
DESTRUCTION OF PROPERTY
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THE PROPOSED PERMIT HOLDER MUST
DECLARE (ii):
• NEVER BEEN ORDERED TO PAY A PENALTY UNDER
FW ACT OR ANY OTHER IR LAW IN RELATION TO
ACTIONS NOR HAS ANY OTHER PERSON BEEN
ORDERED TO PAY A PENALTY IN RESPECT OF SUCH
ACTION
• NOT HAD REVOKED, SUSPENDED OR BEEN MADE
SUBJECT TO CONDITIONS, ANY PERMIT ISSUED
UNDER FW ACT OR A SIMILAR LAW OF THE
COMMONWEALTH
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THE PROPOSED PERMIT HOLDER MUST
DECLARE (iii):
• NOT HAD CANCELLED, SUSPENDED OR HAD
IMPOSED CONDITIONS ON A RIGHT OF ENTRY FOR IR
OR H&S PURPOSES, BY ANY COURT, OR OTHER
PERSON OR BODY, UNDER A STATE OR TERRITORY
INDUSTRIAL LAW OR A H&S LAW
• NOT BEEN DISQUALIFIED, BY ANY COURT, OR OTHER
PERSON OR BODY, UNDER A STATE OR TERRITORY
IR LAW OR A H&S LAW, FROM EXERCISING, OR
APPLYING FOR, A RIGHT OF ENTRY FOR IR OR H&S PURPOSES UNDER THAT LAW.
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WHAT ABOUT THE PCBU & OFFICERS
REPRESENTING THE PCBU?
ANY SIMILAR CONSTRAINTS OR
REQUIREMENTS? E.G.:
• DOES PCBU HAVE A PUBLICISED POLICY RE ‘ROE’?
• ARE OFFICERS INFORMED OF LEGAL ISSUES
SURROUNDING RoE?
• ARE OFFICERS PROVIDED INSTRUCTION AS TO
APPROPRIATE REACTIONS RE. RoE?
• ARE OFFICERS TRAINED IN HANDLING A RoE?
• ARE OFFICERS OF ‘GOOD CHARACTER’, ETC.?
HMMM??? FOOD FOR THOUGHT…
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Notice of Entry:
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• Full name of EPH
• Name of union
• Name & address of workplace being entered
• Date of entry or proposed entry (for entry under ss.120 or
121 - ≥24 hrs.-≤14 days’ notice must be given to PCBU)
• Purpose of entry (s.117? s.120? s.121?)
• Additional (for entry under ss.117 & 120): Details of the
suspected contravention to which notice relates (e.g. what
are the concerns; how do they contravene the WHS Act;
what area of the workplace is affected, etc.)
• Additional – for entry under s.120 only: List of the records or
documents proposed to be inspected
Notice of Entry (CONT.):
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• Declaration: The above union is entitled to represent the
industrial interests of workers at this workplace
• The provisions in the union’s rules that entitles the union
to represent the industrial interests of workers in
workplace
• Ss.117 & 120 only:
□ The suspected contravention relates to workers that
the union is entitled to represent
• S.120 only:
□ The records or documents proposed to be inspected
relate to workers the union is entitled to represent
• Signature of WHS EPH
ONCE ONSITE, WHS POWERS INCL:
• INSPECT INPUTS, PROCESSES & OUTPUTS,
PROVIDED THESE HAVE EFFECT, OR MAY HAVE
EFFECT, UPON ANY WORKERS WHO ARE, OR
COULD BECOME, MEMBERS OF THAT UNION;
• EXPECT REASONABLE COOPERATION TO ACCESS
& INSPECT PLANT, SYSTEMS, ETC. INCL.
PHOTOGRAPHS, COPYING, ETC. ONSITE;
• WITH 24 HOURS NOTICE, CAN REQUEST COPIES,
ETC. OF THINGS KEPT OFFSITE, EVEN IF WITH
ANOTHER FIRM;
• IF FULLY AUTHORISED BY STATE, PERMIT HOLDER
COULD PROCEED TO OTHER FIRM & ACCESS
RELEVANT ITEMS WITHOUT NOTICE.
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Documents?
A document that is directly relevant to a suspected
contravention could include:
• Risk assessments
• WHS policies and procedures
• Hazard registers
• Near miss and hazard reports
• Minutes of HSC meetings
• WHS Inspector reports
• Injury statistics
• Safety Data Sheets
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Plant, equipment, etc.?
Plant, machinery, buildings that are directly relevant to a
suspected contravention could include:
• Passenger vehicles
• Goods vehicles
• Conveyors
• Hazardous materials
• Desks
• Computers
• Partitions
• Testing equipment
• Laboratory enclosures
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CONFIDENTIALITY:
• MUST ONLY USE DISCOVERED INFORMATION
FOR RESOLVING ALLEGED BREACH OR
POTENTIAL BREACH
&
• ABIDE BY PRIVACY ACT 1988 AS WELL AS ANY
RELEVANT STATE OR TERRITORY PRIVACY ACT
Penalties for breach of confidentiality under WHS RoE:
• Up to $10,000 for individuals and $50,000 for unions
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FWAct vs. WHS Act?
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Notice for ‘consult & advise’ entry:
• WHS & FW ≥24 hrs. (unless FWC exempted).
Investigate possible H&S breaches
• WHS: no notice required;
• FW: ≥24hrs. ≤14 days notice.
Documents/take copies/etc.:
• WHS & FW ONCE ONSITE: as soon as possible;
• WHS - OFFSITE: ≥24hrs;
• FW – OFFSITE: ≥48 hrs.
Access to relevant work areas/workers:
• WHS: as soon as possible (within reason);
• FW: ≥24hrs.; Unpaid break time.
Limitations re rooms/routes to be taken/etc.
• WHS – no limitations (within reason – e.g. PPE)
• FW – comply to reasonable requests, incl. rooms/routes
W.A. variables • Fair Work Act 2009
• W.A. I.R. Act 1979
• During working hours
• Relevant employees work there
• Discussion with any of the relevant employees who wish to
participate
• Notice to be given if not precluded by respective award,
otherwise ≥ 24 hours
• Includes right to investigate OHS Act 1984 & Mines Safety &
Inspection Act, 1994
• Similar general rights to other states
• Access to records etc. demands ≥ 24 hrs onsite & ≥ 48 hrs if
offsite (IR Commission can decide the official can over-ride the
rule if purpose of RoE might be compromised)
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Victorian variables • Fair Work Act 2009; Workplace Relations Act 1996 and the
Outworkers (Improved Protection) Act 2003
• Vic. OHS Act 2004 – EPH must be an ARREO
• Assist HSR when requested by HSR (EPH must have
relevant WHS knowledge - disputes go the Magistrate’s
Court of Victoria)
• Not necessary to give notice, but during working hours
• Consult with worker during meal-time or other breaks.
• Relevant workers work there
• Discuss with relevant employees who wish to participate
• Includes right to investigate OHS Act 2004
• Similar rights & responsibilities to other states (but devil in
the detail)
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Union Power to Prosecute?
Only in NSW, unions still have some prosecution
powers from alleged breaches of NSW WHS Act 2011:
• Category 3 – unlimited
• Category 2 & Category 1 – only if WorkCover NSW
declines to follow DPP advice to prosecute
A union no longer has the right to any moiety arising
from a successful prosecution and fine.
HOWEVER:
Any Australian union can report a WHS breach to a
relevant statutory authority for possible prosecution.
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Unionised workplaces?
THREE TIMES SAFER
THAN NON-UNIONISED
SITES!
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’
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INFORMED HUMAN BEINGS?
NO-BOTS AND BULLDOZERS
OR
‘If you want to be rich: be generous…
If you want to be strong: be kind…
If you want to be wise: be humble…’
Prem Rawat ‘Words of Peace’
Pssst! Pass it on…
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Ready! Set!! GO???
• Right legislation?
• Right permits?
• Right notice of entry?
• Right reasons?
• Right place?
• Right PCBU?
• Right work group?
www.safemeasure.com.au
Alea jacta est!
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