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An overview for the Safety Institute of
Australia’s Safety 2013 Sydney Conference
UNION RIGHTS OF ENTRY FOR
WORK HEALTH & ...
“Out of this nettle, Danger,
May we pluck this flower, Safety”
Shakespeare Henry IV Pt.1
www.safemeasure.com.au
Union RoE: A double-edged sword…
Dionysius I
of Syracuse
& Damocles
(4thc. BCE)
www.safemeasure.com.au
“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 Ca...
POWERS TO ENTER
Covered by:
• Fair Work Act 2009
• Federal, State and Territorial Industrial Laws
• Federal, State and Ter...
POWERS TO ENTER
USING F.W. Act 2009
Mainly used for outright industrial relations purposes
Entry generally ≥24 hours & ≤14...
POWERS TO ENTER
USING WHS Act 2011
(HARMONISED STATES)
Only to be used for WHS purposes
Entry generally ≥24 hours & ≤14 da...
WHAT IS A ‘WHS ENTRY PERMIT
HOLDER’? (Harmonised states)
www.safemeasure.com.au
An authorised union official who can:
Upon...
Individual Entry Permit Hoder
MUST:
• BE A MEMBER OF AN ORGANISATION:
– REGISTERED UNDER Fair Work (Registered
Organisatio...
THE ORGANISATION MUST (i):
MAKE PROPER ENQUIRY RE PROPOSED PERMIT
HOLDER (PPH) INCL.:
• REVIEW OF ORGANISATION RECORDS
• E...
THE ORGANISATION MUST (ii):
• TAKE ALL REASONABLE STEPS TO ENSURE THE PPH
HAS (cont.):
– NEVER BEEN CONVICTED OF AN OFFENC...
THE ORGANISATION MUST (iii):
TAKE ALL REASONABLE STEPS TO ENSURE THE PPH
HAS:
• NEVER BEEN ORDERED TO PAY A PENALTY UNDER
...
THE ORGANISATION MUST (iv):
TAKE ALL REASONABLE STEPS TO ENSURE THE PPH
HAS (cont.):
• NOT HAD CANCELLED, ETC. ANY RIGHT O...
THE PROPOSED PERMIT HOLDER MUST
DECLARE (i):
• TRAINING RE RIGHTS & RESPONSIBILITES OF A PH
HAS BEEN RECEIVED
• NO CONVICT...
THE PROPOSED PERMIT HOLDER MUST
DECLARE (ii):
• NEVER BEEN ORDERED TO PAY A PENALTY UNDER
FW ACT OR ANY OTHER IR LAW IN RE...
THE PROPOSED PERMIT HOLDER MUST
DECLARE (iii):
• NOT HAD CANCELLED, SUSPENDED OR HAD
IMPOSED CONDITIONS ON A RIGHT OF ENTR...
WHAT ABOUT THE PCBU & OFFICERS
REPRESENTING THE PCBU?
ANY SIMILAR CONSTRAINTS OR
REQUIREMENTS? E.G.:
• DOES PCBU HAVE A PU...
Notice of Entry:
www.safemeasure.com.au
• Full name of EPH
• Name of union
• Name & address of workplace being entered
• D...
Notice of Entry (CONT.):
www.safemeasure.com.au
• Declaration: The above union is entitled to represent the
industrial int...
ONCE ONSITE, WHS POWERS INCL:
• INSPECT INPUTS, PROCESSES & OUTPUTS,
PROVIDED THESE HAVE EFFECT, OR MAY HAVE
EFFECT, UPON ...
Documents?
A document that is directly relevant to a suspected
contravention could include:
• Risk assessments
• WHS polic...
Plant, equipment, etc.?
Plant, machinery, buildings that are directly relevant to a
suspected contravention could include:...
CONFIDENTIALITY:
• MUST ONLY USE DISCOVERED INFORMATION
FOR RESOLVING ALLEGED BREACH OR
POTENTIAL BREACH
&
• ABIDE BY PRIV...
FWAct vs. WHS Act?
www.safemeasure.com.au
Notice for ‘consult & advise’ entry:
• WHS & FW ≥24 hrs. (unless FWC exempted).
...
W.A. variables
• Fair Work Act 2009
• W.A. I.R. Act 1979
• During working hours
• Relevant employees work there
• Discussi...
Victorian variables
• Fair Work Act 2009; Workplace Relations Act 1996 and the
Outworkers (Improved Protection) Act 2003
•...
Union Power to Prosecute?
Only in NSW, unions still have some prosecution
powers from alleged breaches of NSW WHS Act 2011...
Unionised workplaces?
THREE TIMES SAFER
THAN NON-UNIONISED
SITES!
www.safemeasure.com.au
’
www.safemeasure.com.au
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 ‘W...
Ready! Set!! GO???
• Right legislation?
• Right permits?
• Right notice of entry?
• Right reasons?
• Right place?
• Right ...
www.safemeasure.com.au
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Doug Wakefield

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Doug Wakefield

  1. 1. 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
  2. 2. “Out of this nettle, Danger, May we pluck this flower, Safety” Shakespeare Henry IV Pt.1 www.safemeasure.com.au
  3. 3. Union RoE: A double-edged sword… Dionysius I of Syracuse & Damocles (4thc. BCE) www.safemeasure.com.au
  4. 4. “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? www.safemeasure.com.au
  5. 5. 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) www.safemeasure.com.au
  6. 6. 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. www.safemeasure.com.au
  7. 7. 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 www.safemeasure.com.au
  8. 8. WHAT IS A ‘WHS ENTRY PERMIT HOLDER’? (Harmonised states) www.safemeasure.com.au 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
  9. 9. 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 www.safemeasure.com.au
  10. 10. 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 www.safemeasure.com.au
  11. 11. 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 www.safemeasure.com.au
  12. 12. 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 www.safemeasure.com.au
  13. 13. 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. www.safemeasure.com.au
  14. 14. 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 www.safemeasure.com.au
  15. 15. 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 www.safemeasure.com.au
  16. 16. 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. www.safemeasure.com.au
  17. 17. 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… www.safemeasure.com.au
  18. 18. Notice of Entry: www.safemeasure.com.au • 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
  19. 19. Notice of Entry (CONT.): www.safemeasure.com.au • 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
  20. 20. 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. www.safemeasure.com.au
  21. 21. 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 www.safemeasure.com.au
  22. 22. 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 www.safemeasure.com.au
  23. 23. 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 www.safemeasure.com.au
  24. 24. FWAct vs. WHS Act? www.safemeasure.com.au 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
  25. 25. 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) www.safemeasure.com.au
  26. 26. 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) www.safemeasure.com.au
  27. 27. 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. www.safemeasure.com.au
  28. 28. Unionised workplaces? THREE TIMES SAFER THAN NON-UNIONISED SITES! www.safemeasure.com.au
  29. 29. ’ www.safemeasure.com.au INFORMED HUMAN BEINGS? NO-BOTS AND BULLDOZERS OR
  30. 30. ‘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… www.safemeasure.com.au
  31. 31. 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!
  32. 32. www.safemeasure.com.au

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