An EPH must give at least 24 hours (but not more than 14 days) notice to the relevant PCBU (that is, the PCBU who engage the workers at the workplace) of a proposed entry to a workplace to consult or provide advice on work, health and safety matters to one or more relevant workers[1].

There is no requirement for the notice to include information on what matters will be the subject of consultation or advice.

The relevant type of worker must:

  • work at the workplace in question
  • have a specified relationship with the union that the EPH represents.

In particular, the worker must:

  • be a member, or be eligible to be a member, of the union, and
  • have industrial interests that the union is entitled to represent.

EPHs should conduct discussions in a way which only involves those workers who wish to participate in the discussions.

Right of entry to hold consultations and advise workers is not permitted for the purpose of holding discussions with workers generally. Entry to consult and advise workers is limited to discussion about WHS matters with relevant workers who wish to participate in the discussions.

An EPH cannot force a worker to participate in consultations when the worker has made it clear that they do not wish to, and in these circumstances, the EPH would not be permitted to remain at the workplace.

The EPH and the relevant PCBU’s should negotiate a suitable time for the discussion with relevant workers. This negotiation may take place:

  • during the period after the ‘notice of proposed entry’ is provided and before the EPH enters the workplace, or
  • after entry has taken place at the end of the notice period but before the EPH acts to consult and advise.

The EPH must bear in mind that they cannot intentionally and unreasonably disrupt work. A suitable time may include relevant workers’ meal breaks, rest periods or pauses in work. While the WHS Act does not limit the right of entry to consult with and advise workers about WHS matters to meal times or other breaks, an EPH should not read this as a right to enter a workplace without regard to the effect on the work that is being carried out at the workplace.

A PCBU cannot refuse or delay entry to consult and advise workers solely on the grounds that it is outside of meal times or other breaks in work. A PCBU will need to be able to demonstrate that the refusal or delay to entry is reasonable because the disruption to work would be unreasonable.

Consultation with workers needs to take place in a room or area that is safe and appropriate. Holding discussions in the normal working environment may not always be safe or appropriate and the EPH must comply with reasonable requests relating to work health and safety requirements applying to the workplace or any specific legislated requirement that applies to that type of workplace.

Advising on risks to health and safety

While at the workplace, the EPH may also warn any person whom the EPH reasonably believes to be exposed to a serious risk to their health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.

The EPH has no power to direct the person to stop work or remove themselves from the risk, however can warn them of the risk they are exposed to.

Example 1

An EPH while on a building site to consult workers observes a person working or about to work at height without fall protection. The EPH may inform that person of the serious risk arising from the work practice and bring this to the attention of the PCBU or person with management and control of the workplace.

Example 2

An EPH while at a manufacturing facility to consult workers observed a person working or about to work with an unguarded piece of plant. The EPH may inform that person of the serious risk arising from the work practice and bring this to the attention of the PCBU or person with management and control of the workplace.

Unreasonable conduct

When considering whether an EPH has acted reasonably, all relevant circumstances should be taken into account:

  • whether there was any urgency in the need for consultations with relevant workers
  • whether the relevant PCBU was consulted with a view to agreeing on a time for the consultations, or
  • whether the entry took place at a time when critical work was disrupted and the consultations could reasonably have taken place at another time that was acceptable to both the PCBU and the EPH.

The events taking place at the workplace on the day of entry need to be taken into account when determining whether or not the disruption to work is unreasonable. Relevant considerations in determining whether or not the disruption caused by the entry would be unreasonable could include whether:

  • the consultations would disrupt the whole or a substantial part of the work
    • a PCBU may put forward an alternative arrangement which enable consultation to occur in a staged manner which minimises or eliminates disruption to work
  • the consultations will impact on time critical work, particularly busy working periods or result in failure to meet contractual deadlines
    • for example, a concrete pour, the dispatch/delivery of a product or the lunchtime rush at a bank
  • having regard to all relevant circumstances, consultations are unduly lengthy or protracted, either on a single day or over a period of time
  • consultations with some workers will prevent other workers who do not wish to participate in the consultations and discussions from working. The involvement of safety critical workers or workers with specialised knowledge and expertise in consultations may mean that other workers cannot undertake their work

Example 3

A rigger, who would like to participate in consultations, is directing a crane that is lifting tilt-up panels. For the rigger to participate both the work being performed by the crane driver and rigging workers would have to cease. Consultation during this time would be disruptive as it would mean other workers cannot undertake their work or undertake it safely.

Example 4

A PCBU receives notice of entry and advises the EPH, on reasonable grounds, that the proposed entry will unreasonably disrupt work because it is during a large concrete pour. They propose an alternative time.

If the EPH proceeds with entry at the original notified time knowingly disrupting the work without explaining why the proposed time is not acceptable or without trying to negotiate an alternate time agreed by both parties, they will have breached their entry rights by intentionally and unreasonably disrupting work at the workplace.

[1] Entry to consult and advise workers is permitted under Part 7, Division 3, Work Health and Safety Act 2012 (SA)