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Business & Industry LicensingAUTHORISED REPRESENTATIVES
Division 5.4 of the Occupational Health and Safety Act 1989 (the Act) came into effect on 1 January 2005 and provides for right of entry to workplaces by persons appointed as Authorised Representatives. These provisions are part of broader changes dealing with the compliance framework under the Act.
Who may be appointed an Authorised Representative and by whom?
A Registered Organisation may appoint an employee of the organisation or a person who holds an office in the organisation to be an Authorised Representative.
A Registered Organisation is an organisation registered by the Australian Industrial Relations Commission (AIRC) under the Commonwealth Workplace Relations Act 1996. (See List of Registered Organisations on the AIRC website at http://www.airc.gov.au/organisations/list/list.html.) This extends to ‘employee’ organisations ie. registered unions, and ‘employer’ organisations ie. registered business associations. This ensures that only persons from formally recognised organisations can enter workplaces to inspect OHS breaches, not unregistered associations that may have some interest in OHS matters.
ACT WorkCover must be advised within 1 week of the appointment of an Authorised Representative by the Registered Organisation. ACT WorkCover has prepared a Notice of Authorisation form
for use by Registered Organisations for this purpose.
A list of Authorised Representatives
is attached. This list is as advised to date.
What training and qualifications must the Authorised Representative have?
An employee or officer of a Registered Organisation must have undertaken an approved training program for Health and Safety Representatives before they can be appointed as an Authorised Representative under Division 5.4 of the Act . If an employee or officer of the Registered Organisation has been disqualified from being an Authorised Representative in accordance with section 76 of the Act, they cannot be reauthorised until that disqualification is revoked.
Persons appointed as an Authorised Representative must have completed Health and Safety Representative training provided at a date and by a provider approved under the Occupational Health and Safety Regulation 1991 as set out in the table below.
Approved Providers of Health and Safety Representatives Training under
Occupational Health and Safety Regulation 1991 – Section 3 and 3A
Provider |
Timeframe |
ACT Trades and Labour Council / WorkWatch Occupational Health and Safety Training |
From 1991 |
ANUTECH |
1993 to 1994 |
National Safety Council of Australia |
From 1993 |
Parasol EMT |
From 1999 |
ACT WorkCover and the OHS Commissioner do not have any discretion in determining the training programs that meet the Regulation. It is an offence under the Act for a registered organisation to appoint an Authorised Representative who has not completed training specified by the Act and Regulation.
Under what circumstances can an Authorised Representative exercise the right of entry to premises?
An Authorised Representative may enter premises to investigate a contravention of the Act. To exercise the right of entry, the representative must have a reasonable belief that a contravention of the Act may have happened, be happening or is likely to happen, and that persons at that workplace are members of the registered organisation or are eligible to be members.
Can entry be denied for lack of identification, safety reasons, production or trading inconvenience, inappropriate clothing or non-union membership?
While entry cannot be denied under the legislation as such, there are several qualifications to this.
Regulations made by the Federal Government under the Workplace Relations Act 1996 place a number of requirements on Authorised Representatives seeking to exercise the right of entry to premises. Details may be found on the AIRC website at: http://www.airc.gov.au/wc2k6/fact_sheets/right_of_entry.html.
Identification
The Authorised Representative must not remain on premises if they are requested by an occupier to produce his or her authorisation and the Authorised Representative does not do so. The authorisation should be in the form of a letter or document from the Registered Organisation clearly identifying the person as a duly appointed Authorised Representative. ACT WorkCover has prepared a recommended format for these letters for use by Registered Organisations.
See "Letter of Authorisation - pdf format" (or "Letter of Authorisation - MS Word format")
Ordinary Business Hours
The Authorised Representative may only enter premises at times when work is being carried out, or is usually carried out. An Authorised Representative may not enter premises outside normal working hours.
Residential Premises
The Authorised Representative may not enter any part of premises used solely for residential purposes.
Safety Protocols or Inappropriate Clothing
Under the Act employers have a duty to take all reasonably practicable steps to ensure third parties at or near the workplace are not exposed to health or safety risks. Third parties include Authorised Representatives. Under this duty, when an occupier receives notice of an intended entry, or when an occupier becomes aware that an Authorised Representative is on the premises, they are required to advise the Authorised Representative of any safety protocols or safety clothing requirements or otherwise act appropriately to ensure the Authorised Representative is not exposed to health or safety risks.
The occupier may also advise the Authorised Representative that they should not enter the premises, or that they should leave the premises for particular safety reasons. This advice must not amount to obstructing, hindering, intimidating or resisting an Authorised Representative in the exercise of his or her functions.
Production or Trading Inconvenience
Denying access by an Authorised Representative to premises on the basis of production or trading inconvenience is not permitted. However, Authorised Representatives must take all reasonable steps to ensure they cause as little inconvenience, detriment or damage as possible.
A person may seek compensation from the Registered Organisation if the person suffers loss or expense because of the exercise of a function under the Act by an Authorised Representative.
Non-union Membership
Non-union membership at the premises is not a basis for denying entry. An Authorised Representative may enter premises to investigate a contravention of the Act if persons at that workplace are members of the Registered Organisation or are eligible to be members.
Section 85 of the Act creates an offence if a person obstructs, hinders, intimidates or resists an authorised representative in the exercise of his or her functions.
Can an Authorised Representative, other than from the Registered Organisation party to the award under which the employees are employed, gain entry under this legislation?
An Authorised Representative may enter premises to investigate a contravention of the Act if persons at that workplace are members of the Registered Organisation or are eligible to be members. Eligibility for membership is determined by a Registered Organisation’s rules, which are approved by and available from the Australian Industrial Relations Commission (AIRC). It may be that persons are eligible to be a member of a Registered Organisation that is not party to an award that applies at the premises or where no award applies.
What notice is required to be given by an Authorised Representative prior to entry?
The Federal Government has introduced regulations under the Workplace Relations Act 1996 that place additional requirements on the right of entry to workplaces by Authorised Representatives. These regulations came into effect on 6 June 2006. Details of the requirements are set out on the AIRC website at: http://www.airc.gov.au/wc2k6/fact_sheets/right_of_entry.html.
What powers of inspection do Authorised Representatives have?
When entering premises Authorised Representatives can view or inspect work, systems or plant and can take measurements, photos or drawings. Upon production of their authorisation, the Authorised Representative can also examine and copy documents, can interview persons who are members or potential members of their organisation if they consent, and require the occupier, an employee or anyone else working at the premises, to give them reasonable assistance.
It should be noted that the Act offers protection from misuse of personal or commercial information that might be obtained in the course of investigating a suspected breach of the Act. After the inspection of premises the Authorised Representative has no further powers and must leave. Authorised representatives do not have any enforcement powers.
Are occupiers compelled to answer questions from Authorised Representatives?
No. Authorised Representatives can interview persons who are members, or potential members of their organisation. However such persons must consent to an interview and they are in no way compelled to answer questions.
The Authorised Representative has the power to require the occupier, an employee, or anyone else working at the premises to give reasonable assistance. This may amount to seeking answers to questions, such as to determine the location of a relevant document. The occupier is not compelled to answer these questions if, for instance, they believe answering the question may lead to self-incrimination or if the information sought could attract legal professional privilege.
Are Authorised Representatives permitted to solicit membership?
No. An Authorised Representative may enter premises to investigate a contravention of the Act only. An Authorised Representative may be disqualified if he or she contravenes the Act, such as soliciting membership during the exercise of their functions under the Act.
What information is the Authorised Representative obliged to give the occupier of the premises about their inspection?
Within two days after the Authorised Representative enters the premises they are obliged to give the occupier and ACT WorkCover a written notice telling the occupier whether the Authorised Representative believes that the Act has been, or may have been, contravened at the premises. ACT WorkCover has prepared a “Notice of Findings - pdf format” report form for use by Authorised Representatives for this purpose.
