Managing Right of Entry – WHS Perspective
In a previous article, we detailed managing Right of Entry (ROEs) of union officials from the industrial perspective [click here]. This article will address what is becoming more common in our workplaces, entry to workplaces from WHS entry permit holders (who are also union officials).
Unlike industrial right of entry, WHS permit holders in Queensland do not have to provide advance notice prior to their physical arrival to the workplace. To have a consistent approach, builders must have an employee sufficiently skilled to deal with these situations. At point of entry, the following should be sighted for each official and the Site Manager should be notified immediately of the proposed entry:
· WHS entry permit and ensuring they are currently registered;
· Federal entry permit and ensuring they are currently registered;
· Photographic identification; and
· Reviewing their notice of entry, ensuring it contains the following:
o Full name of the WHS permit holder;
o The name of the union that the WHS entry permit holder represents;
o The section of the WHS Act under which the WHS entry permit holder is entering or purporting to enter the workplace;
o The name and address of the workplace entered, or proposed to be entered;
o The date of entry or proposed date of entry; and
o The particulars of the suspected contravention.
Entry is only required to be given to valid entry permit holders. To confirm whether the official holds a valid permit, simply input their details into the following link.
Queensland WHS right of entry permits can also be checked at this link.
A recent Queensland court case confirmed the requirement for WHS entry permit holders to also possess Federal entry permits in order to validly enter a workplace. Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2)  FCA 1737 (23 October 2019)
On occasions, the permit holders may be accompanied or followed soon after by a government WHS inspector. In these situations, the inspectors are subject to the same compliance measures as any other visitor to the site (i.e. requirement to follow directions, route, appropriate PPE, and comply with exclusions zones etc.).
In addition to the normal tips in handling union officials entering workplaces (being cordial, clear in instructions, etc.), it is recommended that the employer escort, either have some knowledge of safety or have the ability to access this knowledge at short notice. This will assist in both challenging obstructive claims from the union and also identifying issues that may need to be dealt with in an expeditious manner.
All issues identified during the entry should be formally noted in writing and acted upon accordingly with due diligence. The successful closing out of issues raised should be communicated to WHS Inspectors and other as needed. Traditionally unions have raised safety non-observance to drive a wedge between employers and their employees, particularly in the construction industry.
For queries about managing WHS Right of Entry or any other employment matters, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or firstname.lastname@example.org