Changes to union entry powers

What is the application that can be made?

Under s 118 of the Work Health and Safety Act 2011 (NSW) (“WHS Act”), Work, Health and Safety Entry Permit holders have the power to take measurements, conduct tests and capture photographs or videos to collect evidence of suspected WHS contraventions. If they are prevented from doing so, they can make an application to the Commission. They may also seek civil penalties through the Industrial Court.

Can I make such an application?

Under s 142 of the WHS Act, the following parties can make applications pursuant to s 118:

1. A WHS entry permit holder;
2. The relevant union;
3. The relevant person conducting a business or undertaking;
4. Any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry;
5. Any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder (ie, affected workers); and
6. The regulator.

The onus is on defendants to show that they had a reasonable excuse to refuse or fail to comply with such requirements: WHS Act s 118(3)–(4).

Regulators, inspectors with written authorisation of regulators and industrial organisations representing persons affected by any contraventions can bring proceedings for civil penalties. Individuals cannot bring such proceedings.

What will the Commission consider?

In determining whether to make an order or apply a civil penalty in such matters, the Commission will consider whether the measurements, photos or videos taken by the WHS Entry Permit holder were directly relevant to the suspected contravention.

What relief can be granted?

Pursuant to s 142(3) of the WHS Act, if the Commission chooses to deal with the dispute by means of arbitration, it can make the following orders:

1. An order imposing conditions on a WHS entry permit;
2. An order suspending a WHS entry permit;
3. An order revoking a WHS entry permit;
4. An order about the future issue of WHS entry permits to one or more persons; and
5. Any other order it considers appropriate.

If a civil penalty claim is made, the maximum penalty for individuals is 121 penalty units, and the maximum penalty for body corporates is 607 penalty units. The Court may also order an injunction: s 259(b) WHS Act.

What is the procedure that the Commission will adopt to deal with such claims?

Section 142(2) of the WHS Act empowers the Commission to deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration.

Claims for civil penalties will be dealt with by the Industrial Court through arbitration.