This is a new provision of the 2004 OHS Act, although the concept of right of entry for representatives of registered employee organisations (such as unions) is not new, having been in place in NSW for some time. This right of entry provides another option for addressing workplace health and safety issues.
Note: a union official's existing right to enter workplaces when their assistance is requested by an OHS rep continues - Section 58 of the OHS Act 2004 allows a rep to seek the assistance of any person, whenever necessary. Under Section 70, an employer must allow any person assisting a rep access to the workplace, unless the employer believes that the person is unsuitable because they lack sufficient knowledge of health and safety. ARREOs must have completed a WorkSafe-approved training course, and have obtained an entry permit from the Magistrates' Court, and would therefore be deemed to have 'sufficient knowledge of OHS'.
Part 8 Authorised representatives of registered employee organisations (ARREOs)
Who can become an ARREO?
To hold an entry permit as an ARREO, a person must:
- be a permanent employee of a registered employee organisation
- have completed a WorkSafe-approved course
- have satisfied the Magistrates' Court that she/he meets the requirements and has not been disqualified from holding a permit.
An entry permit is valid for 3 years, unless the person ceases to be an employee or the organisation ceases to be registered. The Authority or an employer may apply to the Magistrates' Court for an entry permit to be revoked if they believe an ARREO has misused the right of entry (eg by intentionally hindering or obstructing an employer or an employee, by acting unreasonably or by intentionally misusing or disclosing information).
Entry to the workplace
ARREOs can enter a workplace during 'normal working hours' (that is any time when work is either being carried out or would usually be carried out) if they suspect a contravention of the OHS Act or regulations has occurred/is occurring for the purpose of enquiring into the contravention. The ARREO has the right to represent workers who may be affected by the contravention. ARREOs have this right if the workers are:
- members of their organisation; or
- workers who are covered by a certified agreement which binds their organisation; or
- workers eligible to be members and whose employment is not currently covered by an agreement which binds any other employee organisaton.
ARREOs do not have to disclose to anyone the names of their members.
While ARREOs can enter any workplace (including a car, ship, boat, airplane), they cannot enter any part of a place that is used for residential purposes except with the consent of the occupier; nor can they enter places where access is restricted by law.
Immediately upon entering a workplace, the ARREO must produce his/her entry permit and give a Notice (using the form approved by the Authority) to the employer/s and the relevant health and safety rep. If there is more than one suspected contravention, then each must be described - either on the same Notice or separate Notices.
An employer cannot obstruct the entry of an ARREO into the workplace.
Powers on entry
After entering a workplace, ARREOs have the right to 'enquire into' the suspected contravention/s described in the Notice, and to do this they can:
- inspect any plant, substance or other thing at the workplace
- observe work
- talk to workers (with their permisison)
- talk to the employer about anything relevant to the suspected contravention/s
Unless the employer agrees, ARREOs cannot cause work to stop at the workplace. The exception to this is that if an ARREO reasonably believes there is an immediate and significant risk of serious injury or death to one or more workers, they can warn the worker/s, even if this leads to work stopping.
ARREOs do not have the power to require anyone to answer questions or produce documents, they cannot search for or seize things, nor take photographs or make copies. However, they can inspect anything at the workplace related to the suspected contravention/s.
If there is a dispute about any issue related to the entry of an ARREO, then either the ARREO or the employer should contact WorkSafe which will provide advice immediately, and send out an Inspector if necessary.
Offences and Sanctions:
Interference with ARREOs
It is an offence for a person (including an employer) to:
- refuse an ARREO entry to a workplace
- intentionally hinder, obstruct, intimidate or threaten an ARREO or induce or attempt to induce any other person to do so
- impersonate an ARREO
Offences by ARREOs
It is an offence for an ARREO to:
- intentionally and unreasonably hinder or obstruct any employer or worker
- intimidate or threaten any employer or worker
- use or disclose information that was acquired in the workplace for a purpose not reasonably connected with the exercise of their powers
- exercise or purport to exercise a power under the Act other than for the purpose of equiring into a suspected contravention.
More Information:
WorkSafe Victoria has produced the following:
- an information leaflet on Part 8 - Right of Entry [pdf document] and
- a 16 page Guide to Right of Entry by Authorised Representives.
The 2004 OHS Act can be downloaded (in both Word and pdf format) on the Victorian government legislation repository website.