doug wakefield

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


Union RoE: A double-edged sword…

Dionysius I

of Syracuse

& Damocles (4thc. BCE)


“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?


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)


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.


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


WHAT IS A ‘WHS ENTRY PERMIT

HOLDER’? (Harmonised states)


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


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


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


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


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.


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



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



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.


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…


Notice of Entry:


• 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.):


• 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.


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


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


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


FWAct vs. WHS Act?


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)


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)


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.


Unionised workplaces?

THREE TIMES SAFER

THAN NON-UNIONISED

SITES!


’


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…


Ready! Set!! GO???

• Right legislation?

• Right permits?

• Right notice of entry?

• Right reasons?

• Right place?

• Right PCBU?

• Right work group?


Alea jacta est!

doug wakefield

Health & Medicine