Union right of entry sia conference
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This slideshow is for Doug Wakefield's Wednesday 4 Sept. 2013 presentation at the Safety Institute of Australia Ltd. Sydney Safety Conference 2013. The presentation attempts to capture current issues surrounding union rights-of-entry primarily for safety issues, but also industrial issues. The show has the running commentary embedded in the 'notes' pages. Enjoy this life! Doug
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Union right of entry sia conference
- 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. “Out of this nettle, Danger, May we pluck this flower, Safety” Shakespeare Henry IV Pt.1 www.safemeasure.com.au
- 3. Union RoE: A double-edged sword… Dionysius I of Syracuse & Damocles (4thc. BCE) www.safemeasure.com.au
- 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Unionised workplaces? THREE TIMES SAFER THAN NON-UNIONISED SITES! www.safemeasure.com.au
- 29. ’ www.safemeasure.com.au INFORMED HUMAN BEINGS? NO-BOTS AND BULLDOZERS OR
- 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. 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!
Editor's Notes
- Hi.A couple of disclaimers here.Firstly, my politics. I espouse anarchy, and am neither leftwing nor rightwing.Secondly, even though I say ‘ I don’t know’ to more and more things nowadays, I do present my views here as educated and informed, and highly likely to get you into the ball-park of ‘reasonably practicable’.
- By the way, contrary to some recent parliamentary speeches, even though means of travel and accommodation for an entry permit holder are to be organised by the PCBUs in remote areas, the union has to reimburse the relevant PCBU. Some of us in safety have reflected how that last point is left out of the usual public diatribes by those of an anti-union bent.Also, and to allay many of the unfounded fears of union mis-use of WHS RoE , Samuel Clemens - Mark Twain - once stated: “I’ve had many trials and problems in my life . . . most of which never happened to me.”One of the biggest unions, the CPSU - representing federal and non-Commonwealth licensee workers – told me that in the past 12 months it has issued only four WHS entry permits on PCBUs, and these were for discussion with workers in establishing functional WHS consultative mechanisms.Considering my own safety business charges quite a bit for such assistance to a PCBU, and that good consultative mechanisms save lives and pecuniary assets, I wonder if perhaps a union that has exercised its ‘rights of entry’ should receive a payout for assisting the PCBU to set-up a decent consultative mechanism?So… into the fray…
- Luckily, early in my various careers which include such diverse areas as electrician, salvage diver, accountant, human resource manager – and perhaps most dangerous of all - bass player in a B-grade punk band - I had GOOD governors whom I learned from.I learned of the need for the four pillars of good systems which are even now reflected in the current WHS legislation: the pillars of Information, Instruction, Training and Supervision (along with the two asides that go along with supervision: Discipline and Grievance).A workplace that arms itself knowledgeably with these, greatly increases its performance and quality of the output of its performance, and definitely increases the likelihood of safety for its workers, and – when it all is said and done – survival for itself in this topsy-turvy business environment.This slide is nothing more than a reminder that it pays off to know the lie of the land and what we need to know… along with what we OUGHT to know… BEFORE an occurrence where the wrath of the State can be brought to bear…
- And what does The State have to say? What does it expect? What is the minimal regarding compliance with its laws?At the core of the rights-to-enter in Australia is the Fair Work Act 2009.Much of what I will discuss here relates to the harmonised Commonwealth, State, and Territorial WHS legislation. I will discuss the disharmonised states of Victoria and Western Australia a little later.Overall, the three core uses of a RoE are a) to discuss issues with workers who are, or could become, members of the respective union; b) to investigate industrial instrument matters covering those workers, and c) to investigate H&S matters affecting, or likely to affect, those workers.As touched on before, with many legislative tools, much of the devil - and the double-edged sword - is in the detail…One example being the fact a state-based WHS entry permit holder can enter a Commonwealth PCBU without further approval from the Commonwealth, but a Commonwealth approved WHS permit holder cannot expect reciprocal rights.Considering it is a punishable offence in both acts to impede a fully authorised EPH in his or her duty, just as one small blood clot can bring on a severe health problem, one small compliance clot can bring on a severe wealth problem…In all cases, entry can only be applied in the course of work hours. However, as with a potential to over-ride the 24-hour notice rule, it is possible for an exception to apply if an EPH approaches the Fair Work Commission.The Commission would have to be convinced that an alleged serious breach or potential serious breach would be discovered or prevented only if immediate action were to be taken. It is highly likely the EPH would also be accompanied by an inspector from the relevant jurisdiction where the Commission granted an exemption for a serious concern, and the EPH must produce the exemption certificate as soon as practicable to the PCBU’s representative.
- This slide and next are to provide you an quick overview of what we discussed just now.A PCBU can insist on the industrial EPH meeting with workers in their unpaid break times and in a suitable room. The industrial EPH can be escorted into the area where the meeting is to be held.Workers cannot be forced to attend, but nor can they be prevented from attending, provided their work is covered by that union. It is not considered ‘unreasonable’ for a supervisor to expect some prior notification that a worker may be away from a machine to attend a meeting that fits in with the unpaid break timing.Obviously, prior, respectful, negotiation should be the hallmark here.It is not unreasonable for the EPH to expect a reasonably clean and comfortable area, away from noise and interruptions to conduct the meeting. A room may be considered too small, but the EPH can then run extra meetings to ensure all relevant workers are covered.
- Although only NSW has some rights for unions to instigate WHS prosecutions, any WHS permit holder could decide to report breaches, etc. to the local statutory authority.BEWARE OF THE TERM ‘OFFICIAL’ WHICH SOMETIMES GETS MISSTATED: THE HARMONISED WHS ACT DEFINES AN OFFICIAL OF A UNION AS MEANING: “…a person who holds an office in, oris an employee of, the union…” (S.116)Apart from the general rule for entry during working hours unless FWC exemption applies, the WHS Act 2011 does not place restrictions on time, nor place.A WHS EPH can meet with workers during paid time, and go to their work area. Of course, the WHS EPH must adhere to the good safety practices required by the PCBU, including induction, and must also attempt – so far as is reasonably practicable - to not affect work flow. Again, respectful behaviour goes a long way.
- As Grandmother may have told us: “There is many a slip ‘twixt saucer and lip”, and my discussion over the next 20 minutes or so will reflect some of the possible slips along the way for the uninitiated player in this field of broken dreams…Oh, and remember, much of this is from the point of view of the harmonised states… watch this space…A WHS entry permit holder is a union official who can, upon the request of workers:Represent workers in discussions with PCBUs about: - numbers and make-up of work groups (WGs) - number of HSRs and deputy HSRs per WG [section 52 (4) and (5)]Conduct, or assist to conduct, HSR and deputy HSR elections [section 61(3)] Assist with resolving WHS issues by participating in the issue resolution procedure [section 81(3)]Provide assistance to a HSR upon request [section 68(2)(g)]. The WHS entry permit holder can alsoenter if they have a reasonable suspicion of a failure to comply with WHS legislation, and this can be through their own personal observation. They can also warn workers of any immediate threat to WHS likely to occur.Note: WHS entry permit holders can not provide assistance if their permit is suspended or revoked.
- So who is this character, the ‘entry permit holder’ (EPH)?Unlike a PCBU, the EPH is always a human being.Now let’s look at ‘what makes an EPH?’(SLIDE SAYS IT ALL)
- Firstly, we’ll look at what the registered organisation must do… What are the hoops it must leap through to ensure the EPH can legally and truly and fairly, with all proper reasonableness, represent the best interest of the registered organisation?(SLIDE SAYS IT ALL)I am going to move over the next six slides rather quickly, but want to hammer-home the myriad hoops a union must jump through in its attempt to create an EPH, and what the proposed EPH must, themselves, do.
- Continued from last slide
- Continued from last slide(FW Act Pt. 3.4)
- Continued from last slide
- We previously saw the registered organisation’s duty. Now we look at the individual’s duty…
- Continued from last slide
- Continued from last slidePHEW! So we have just seen what the legal expectations are from the registered employee representative organisations, and their proposed entry permit holders.I almost feel if I received an e-mail asking for my bank and personal details from a Nigerian-based company that assured me I had several billion dollars awaiting those details, I could relax and pass it all over, so long as one of these tried-and-tested folk were the instigators of that request!!!And now I humbly ask you to consider the fact we have looked at the ‘wot about the workers’ rap… now, let’s consider the ‘wot about the bosses’ rap…
- A moment of reflection…In fairness to the PCBU and its officers. if they have complied with the Fair Work Act 2009 requirement to ensure all employees are issued a copy of the ‘Fair Work Information Statement’ and the associated ‘National Employment Standards’ overview, they are certainly part-way there.But I am sure you get my point.Too often we have folk in positions of power, who are poorly instructed, informed and trained in dealing with matters critical to defusing industrial issues.If the ‘industrial issues’ are more specifically ‘health and safety issues’, we can have real problems… and we will look at the RoE re WHS in more detail…
- Now, it is one thing to be generally empowered to enter, but quite another to carry-out the specific deed.The WHS EPH wishing to enter a specific workplace must prepare a notice of entry, with certain things included in the notice. These couple of slides capture the essence of what should appear in a ‘notice of entry’ as a minimum.Though a notice of entry must be produced to the PCBU as soon as possible, it is possible for a WHS EPH to enter in a situation where early production of a ‘notice of entry’ may unreasonably delay or defeat the purpose of the entry. This is another area of subjective consideration requiring delicate and deliberate awareness and consultation between the parties.Essentials to appear on a ‘notice of entry’ include thename of the EPH and the union, as well as the name and address of the workplace to be entered.Date of entry or proposed entry, based on the purpose of the entry, where:□ Section 117 - to inquire into a suspected contravention of the WHS Act that relates to or affects a relevant worker, requires no notice.□ Section 120 to inspect employee records or information held by another person that are directly relevant to a suspected contravention of the WHS Act, and □ Section 121 to consult and advise relevant workers on health and safety matters, requires ≥24 hrs. to ≤14 days.Additional – for entry under sections 117 and 120 Details of the suspected contravention to which this notice relates: (e.g. concerns; part of WHS Act; area of workplace affected, etc.) Do not have to be overly detailed, and supervisory staff need to be aware of this before attempting to restrain a WHS EPH if details of an exact machine are not provided on the notice of entry.Additional – for entry under section 120 only List of the records or documents proposed to be inspected:…… (e.g. injury records; risk assessments; policies; SWMS; SDS; etc.) Note individual workers are not to be named by the EPH without the permission of those individuals.
- NOTICE OF ENTRY (CONTINUED):The final part of the notice of entry is a slightly repetitive signed declaration by the permit holder of her or his rights to enter and represent relevant workers.
- Once the protocols of the ‘notice of entry’ are concluded, generally, under all the jurisdictions, a WHS PH can consider any input, process and/or output involved with the workplace, and which might have some bearing on the workers represented, or likely to be represented, by the union.There are potential conflict areas around access to documents and confidentiality matters, but the Permit Holder does have the right to access these as soon as possible and to expect copies to be provided as soon as possible where these are kept onsite. If the Permit Holder considers something needs to be considered in their inspection, and it is kept offsite, a request can be made for access to that thing with a minimum of 24 hours notice and not more than 14 days. An edgy hypothetical to be sorted-out in a court is whether a Permit Holder who held FWC authority and all relevant state/territory H&S authority, can immediately proceed to the other site with a new WHS ‘notice of entry’, and demand entry for the purpose of viewing the desired object or information, and it can be seen how this could lead to conflict were any party to be ignorant of the relevant law and how it might be interpreted.It is also possible for the FWC to authorise a EPH to access employee records relating to employees unable to become members of that union, but whose records may be essential to the WHS case being investigated. Of course, the FWC must be convinced this is essential at that time.
- Don’t overlook a key work here: ‘include’…The items here are indicative only, and there may be other records legally accessible to the permit holder, including SWMSs, JSAs, asbestos registers, machine maintenance records, labour hire contracts, and so on…
- Similar to the previous slide, do not overlook the word: ‘include’…The items here are indicative only, and there may be other pieces of hardware legally accessible to the permit holder, including stock-on-hand that is either incoming or outgoing, hand tools, machine parts, air-conditioning and ventilation systems, and so on…
- As with WHS matters generally, and whether it is a WHS committee or a HSR inspecting a PCBU’s hardware and software, information gathered is not to be used for any other purpose than addressing WHS matters.An example of ‘confidentiality’ could be if we were considering an allergenic reaction with workers in Kentucky Fried Chicken, where one of the ‘11 secret herbs and spices’ has caused some health issues for a worker. Though an official could access the ‘secret’, he or she could not use the secret for any reason other than to address the WHS issue.
- A quick review of things we have touched on…Under both acts, the permit holder must expect to undergo whatever safe work procedures are required to meet the onsite conditions, including inductions and attire. Also under both acts, entry must be only during working hours.In all cases, an exemption or variation may be granted by the FWC.a) BothWHS and FW permit holders need to provide 24 hours notice to consult with workers.b) WHS permit holders need no prior notice for entry under the WHS Act to inquire into a suspected contravention.FW industrial permit holders need 24 hours notice.c) Under either act, if the object is to access records only, at least 24 hours notice must be given. (A WHS permit holder may already be onsite for other matters without notice, and can expect access as soon as possible.) Once onsite, the permit holders may inspect and copy any relevant document kept at the workplace - including those accessible from a computer - as soon as is reasonably practicable. Access to offsite records for WHS permit holders generally requires at least 24 hours but not more than 14 days notice. Access to offsite records for industrial purposes generally requires 48 hours notice.d) WHS permit holders are allowed access into the area where relevant workers work or any other work area that directly affects the health or safety of those workers. No requirement under the WHS Act for the permit holder to conduct interviews or discussions in a particular room; or take a particular route to reach a particular room (but still needs to be ‘reasonable’).FW Act 2009 requires 24 hours notice, and meeting in unpaid breaks.f) The WHS permit holder can access workers in situ and areas considered relevant without undue limits, even while work is being carried-out. However, must not interrupt work flows.The FW Act 2009 places restrictions on the industrial permit holder to stay within certain boundaries. A room may be reasonably allocated for any meetings, and that permit holder escorted to and from the area.In all cases, use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth (section 120).
- Now, the states of Western Australia and Victoria, where, apart from the obvious legislation, some variations may occur with individual award agreements and so forth.
- An entry permit official has to be a registered ARREO (Authorised Representative Of Registered Employee Organisations) under Section 81 of the Victorian OH&S Act 2004.Vic OHS Act 2004“s.83. Issue of entry permits(1) A member of the committee of management of aregistered employee organisation, or of a branchof such an organisation, may apply to theMagistrates' Court for an entry permit to be issuedto a person who is an officer or employee of theorganisation as an authorised representative of theorganisation.”
- Powers to prosecute are heatedly discussed in various industrial fora surrounding H&S activities, but NSW unions are the only ones to retain some powers to bring about a direct prosecution where – for example – a EPH discovered something serious enough to warrant that direct action.In NSW, low level Category 3 offences - where a WHS duty has been neglected - can attract the attention of a union and lead to a direct prosecution by that union.However, Category 2 re neglectful serious breaches and Category 1 re reckless serious breaches can only be prosecuted by the union where the Director of Public Prosecutions has given the go-ahead for a prosecution, but WorkCover NSW has declined. In other words, the union can take up the slack.With the removal of the earlier ability of a union to receive a moiety of up to fifty percent of any fine in a successful prosecution, the costs associated with prosecution by a union is going to be well and truly considered before a union takes that path.The fact remains however, any union – just like any single human being, whether of the workplace or not – can report a WHS issue to the relevant statutory authority and thus become the catalyst to a prosecution by that authority.
- The purists among us feel it is this sort of datum that encourages unions to stay active for not only members, but potential members, since injuries and illness do not seem to discriminate.Across the industrial world, unionised workplaces generally are three times safer than non-unionised workplaces.
- A security firm I was working with told me of the importance of ‘no-bots’ in their positioning of people at various checkpoints.These are the folk who have one simple instruction which they are to adhere to, come hell or high water. Though human beings, and probably capable of discussion, they can become like a gate you have lost the key for, and that will refuse to open no matter that you own it lock, stock and barrel… No key? NO ENTRY! They become the epitome of the immovable object…Throw into this equation the traditional ‘unstoppable force’ of the Bulldozer, and we have a heady mixture of high level philosophical discussion not dissimilar to that surrounding ‘how many angels can dance on the head of a pin?’ (Usually taking part in an expensive court-room…)Does the PCBU have No-Bots in place? Does the union send along Bulldozers? Let the fun begin!OR…Why not the alternative? Protagonists who are correctly informed and instructed, trained and supervised?Mind you, I am of the opinion the PCBU that HAS ensured right and proper informing, instruction, training and supervision of its Officers, is also going to have minimum need for a union to apply for a WHS notice of entry anyway!
- When all the players know the game and get things right at the start, it is handy to note the final over-archingarbiter in the normal dispute resolution process, the Fair Work Commission, smiles favourably on any party demonstrating a willingness to clarify and exercise its Fair Work Act 2009 rights and responsibilitiesin a true, fair and timely manner.
- With this, my final slide, I simply ask: “Do I have it right?”Whether I am the EPH, or the PCBU representative at the door, these are important questions to ask and to have answered…It is fair to state each of the protagonists needs to get it ‘right’ and both sides are advised to have a checklist on hand as part of the RoE contingency plan.The esoteric elements of respect and forgiveness for oversights are advised and useful in potential conflict situations. However, in an adversarial court-room demand for facts, within the constraints of case-law findings, there may be no room to move, and what might be called ‘common sense’ is an immediate casualty in a ‘point-of-law’ argument.A union official with a ready-to-go EP is highly advised to spend half-an-hour sitting under the gaze of a skilled barista – ideally with a doppiomachiato – and go over the documentation one-more-time before opening the doorway to conflict with the skilled barrister.Personnel representing the PCBU and who are likely to meet-n-greet a EPH are also well advised to be aware of the rights and responsibilities of the protagonists, and themselves have a right to be instructed, informed, trained and – where necessary – supervised - in issues where they may be placed by the PCBU in potential conflict situations.It may even be the directors of a board of a PCBU who get caught-up in the aftermath of a prosecution and fine of an Officer of the PCBU when it is shown the board did not allow resources to the Officer to be correctly informed and trained. I would even argue employer groups could get caught-up in this for some of the misleading (probably innocently misleading) information being supplied to their members, regardless of the waivers such entities publish in their fine-print. But then, as Tom Waits once proclaimed: “The LARGE print giveth, and the small print taketh away…”So, perhaps in the best of interests, it is advisable for ALL parties to sit over a coffee, under the watchful gaze of a single barista and communicate, before a team of barristers has to do it for them?Finally, keep in mind the future legislative paths in WHS reach an interesting crossroads next Saturday. The possible change of government will present some interesting trials for worker safety, and much of what I have touched on today will need severe re-appraisal… ‘Aleajactaest’ indeed!On this note, and in the interest of ensuring we all enjoy this wonderful life - and more to the point: that we all enjoy our next breath in the most beautiful and comfortable way possible - thank you for your precious and irretrievable Time and attention.PAX SPERATA.
- Copyright safemeasure.com.au SYDNEY 2013