Western Australia’s WHS Right of Entry Permit framework to be aligned with national approach

In other Australian jurisdictions, Work Health and Safety (WHS) legislation allows union representatives to obtain a WHS Entry Permit for purposes including investigating a suspected breach of WHS legislation, provided that the person also holds a valid right of entry permit under the Fair Work Act 2009 (Cth) (FW Act).

To be issued a right of entry permit under the FW Act, the Fair Work Commission must be satisfied the person is a ‘fit and proper person’.

In Western Australia, the requirements dealing with workplace entry permits are addressed in the Industrial Relations Act 1979 (WA) (IR Act) instead of the Work Health and Safety Act 2020 (WA) (WHS Act). 

Presently, under the IR Act:

• if the secretary of an organisation of employees nominates a person to the WA Industrial Relations Commission (WAIRC) to receive an authority allowing the representative to enter a workplace for various purposes, including to investigate a suspected breach of the WHS Act, the WAIRC must issue that authority to the nominated person;
• there is no requirement or option, under the IR Act or the WHS Act, to apply a fit and proper person test to a nominated person;
• the only circumstance contemplated by the IR Act where a nomination for an authority can be refused is where the nominated person has had a previous authority revoked;
• an existing authority can be revoked or suspended in circumstances where the representative acts in an improper manner in the exercise of any power conferred on them by the IR Act, or where they intentionally and unduly hinder an employer or employees during their working time; and
• an authority does not expire and remains in force unless it is revoked or suspended.

The amendments to be made to the IR Act provide that:

• the WAIRC may only issue a right of entry permit to a nominated official if it is satisfied that the official is a fit and proper person to hold the permit;
• the nominated official must be an officer or employee of the organisation of employees;
• the WAIRC, on its own motion, or on the application of any other person, may impose a condition on or change a condition of a right of entry permit, suspend a permit for a specified time or revoke a permit;
• a right of entry permit will expire after three years or when the permit holder is no longer an officer or employee of the organisation; and
• existing permits will expire 12 months after the amendments commence.

The fit and proper person test to be introduced will replicate the existing test in the FW Act.

Before issuing a right of entry permit, the WAIRC must consider the following fit and proper person criteria in relation to a nominated official:

• whether the official has received appropriate training about the rights and responsibilities of an authorised representative;
• whether the official has been convicted of certain offences (which includes pleas of guilty and when no conviction is recorded, and spent convictions), including offences under the WHS Act and offences involving entry onto premises, fraud and dishonesty, the intentional use of violence against another person or the intentional damage or destruction of property;
• if they have ever been ordered to pay a penalty under certain laws including the WHS Act; 
• whether any previous right of entry permits held by the official have been revoked, suspended or made subject to conditions; and
• any other matters the WAIRC considers relevant.

The WAIRC will also be given the power to review any granted right of entry permits where new allegations or evidence come to light in certain circumstances that pertain to a permit holder. When choosing whether to exercise this power, the WAIRC must take into account the fit and proper person criteria, together with:

• whether the permit holder acted improperly in exercising a power in relation to their permit;
• whether the permit holder has intentionally and unduly hindered an employer or employees during their working time; and
• any other matters the WAIRC considers relevant.