Policy: Work Health and Safety Act Permits and Right of Entry Permits

Purpose

1. This policy aims to inform applicants of the expectations and considerations of the Industrial Relations Commission (IRC) in relation to Work Health and Safety entry permits (WHS Permits) pursuant to Part 7, Division 5 of the Work Health and Safety Act 2011 (WHS Act) and Right of Entry Permits (ROE Permits) pursuant to Chapter 5, Part 7 of the Industrial Relations Act 1996 (IR Act).

Background and objectives

2. The Registrar of the IRC is the authorising authority in relation to applications for the issuance and revocation of WHS Permits and ROE Permits.

3. A union may apply to the Registrar for the issue of a WHS Permit to a person who is an official of that union. A WHS permit provides a person with authority to enter a workplace during the usual working hours of the workplace they seek to enter, in accordance with Part 7, Divisions 2 and 3 of the WHS Act and Chapter 2, Part 2.4 of the Work Health and Safety Regulation 2017. A WHS permit also allows the holder of that permit, in certain circumstances, to advise and consult with members of the union, or workers who are eligible to be members of the union, at the relevant workplace or worksite, in accordance with Division 3.

4. An officer or employee of an industrial organisation of employees may apply for an authority to exercise a right of entry. A ROE permit provides an authorised employee or officer with authority to, where they suspect a breach of industrial legislation or instruments, enter a premises after giving notice, or require the production of records for inspection. A ROE permit also allows union officials to enter premises where relevant employees are engaged during working hours for the purpose of holding discussions with the employees at the premises in any lunch time or non-working time, pursuant to Chapter 5, Part 7 of the IR Act.

5. The Registrar exercises his/her functions in accordance with the objects of the WHS Act and the IR Act, including to:

a. ensure a nationally consistent framework to secure and support the safety of workers and workplaces;
b. promote participation in industrial relations by employees and employers at an enterprise or workplace level;
c. encourage participation in industrial relations by representative bodies of employees and employers; and
d. encourage the responsible management and democratic control of those bodies.

The process

6. Applications must be submitted online via: https://ircpermit.powerappsportals.com/.

7. For WHS Permits, the application by the union must be accompanied by a statutory declaration made by the proposed permit holder declaring that they:

a. are an official of the union; and
b. have satisfactorily completed the prescribed training; and
c. hold, or will hold, an entry permit under either the Fair Work Act 2009 (Cth) or the IR Act; and
d. provide their permit number, if applicable.

8. For ROE Permits, the applicant must provide:

a. An application on the letterhead of the industrial organisation of employees, under the hand of the Secretary.
b. A letter (which can be the same letter), which states:

i. the person is an employee of the industrial organisation of employees registered; OR
ii. the person is an officer of the industrial organisation of employees registered; if so, the letter must identify which rule of the industrial organisation's Rules creates the office to which that officer has been elected in accordance with the IR Act.

c. The full legal name of the person to whom the authority is sought to be issued.
d. An address at which that person may be found (such address may be the registered office of the industrial organisation).
e. A recent passport sized photograph of the person for whom the authority is sought.

9. Once an application has been lodged online it will be considered by the Registrar or her/his delegate.

10. Applications will be reviewed within 5 days of receipt subject to the availability and other commitments of the Registrar.

11. If the Registrar requires more information from you, the Registrar will contact you via email setting out what is required to further consider your application.

What the Registrar will consider when an application is made for a WHS Permit

12. Under s132 of the WHS Act, the Registrar, when reviewing an application, is required to consider:

a. the objects of the WHS Act; and
b. the object of allowing unions a right of entry to workplaces for work health and safety purposes.

13. Those objects include but are not limited to:

a. protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant;
b. providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety;
c. encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment;
d. promoting the provision of advice, information, education and training in relation to work health and safety;
e. securing compliance with this Act through effective and appropriate compliance and enforcement measures;
f. ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under the WHS Act; and
g. providing a framework for continuous improvement and progressively higher standards of work health and safety.

14. To ensure that those who are authorised to exercise the rights of a WHS Permit have up-to-date knowledge of current WHS requirements, the Registrar will consider the currency of the training and the experience of the proposed permit holder when determining whether to approve an application. That can be established by:

a. proof of training including any refresher training conducted in the last 6 years;

b. demonstrating proof of training that is more than 6 years old combined with proof that the permit holder has since the date of training continued to hold and exercise a permit; or

c. otherwise providing a basis for the Registrar to conclude the proposed permit holder retains the requisite up to date knowledge.

15. In circumstances where the proposed permit holder’s training is more than 6 years old and the Registrar is not satisfied the proposed permit holder retains up to date knowledge, a WHS Permit can still be issued with conditions imposed, namely an undertaking from the proposed permit holder that they will undergo prescribed training within the next 6 months following proof of enrollment being provided.

16. Where relying on 14 b. or c. the proposed permit holder will need to include in their statutory declaration with the initial application or otherwise in writing at the request of the Registrar, information sufficient to satisfy the Registrar that they have the requisite and up to date knowledge. In making that assessment, the Registrar may have regard to any of the following:

a. The date they last completed a prescribed training course.
b. Any subsequent relevant training and the nature of that training.
c. Whether, since the proposed permit holder last completed the prescribed training:

i. There has been a material change to the law or to the prescribed training.
ii. The Regulator has revoked approval of the training that the applicant is seeking to rely on.

d. Whether the proposed permit holder has since the last training continuously held such a permit and exercised functions pursuant to that permit.

e. Whether the proposed permit holder has any other kind of qualifications, specialist knowledge or experience which means the Registrar could conclude they have currency of knowledge and are exercising their rights in accordance with the relevant legislation.

f. Other evidence to demonstrate that the proposed permit holder has the requisite knowledge, namely:

i. written answers to questions that the Registrar will set having consulted with Safework NSW; or
ii. records of continual professional development training or supervision that the proposed permit holder has undertaken.

What the Registrar will consider when an application is made for a ROE Permit

17. The Registrar will consider the objects of the IR Act when determining whether to grant an application.

18. Those objects include:

a. promoting participation in industrial relations by employees and employers at an enterprise or workplace level; and
b. facilitating appropriate regulation of employment through awards, enterprise agreements and other industrial instruments.

19. The Registrar will also consider whether or not the applicant has demonstrated their capacity, by virtue of their standing, employment or office, to hold such a permit.

Outcome

20. If an application for a WHS Permit is approved, the relevant permit will be issued for 3 years and will expire:

a. at the end of the 3-year period; or
b. at an earlier date if one is imposed; or
c. when the permit holder ceases to be an official of the union that applied for the permit (where relevant); or
d. the union or organisation is no longer registered.

21. If an application for a ROE Permit is approved, the relevant permit will:

a. remain in force until it is revoked; and
b. expire when the person to whom it was issued ceases to be an officer or employee of the industrial organisation of the employees concerned.

22. If an application for a WHS Permit or ROE Permit is refused, the applicant may:

a. re-apply online upon obtaining further training or documentation; and/or
b. appeal the Registrar’s decision to the Commission.

Applications to replace a permit

23. Applications to replace a lost permit must be made online.

24. Where a physical permit has been lost, the permit holder or organisation must make a new application as there are no details stored in the online system. As part of the application, the permit holder or organisation must upload a statutory declaration which outlines the circumstances as to the loss of the permit. 

25. Where a digital permit has been lost, applications are able to be made via the ‘cancel or reissue a permit’ function.

Checklist for applicants