Fair Work Commission

Who can hold a WHS entry permit

Under the Work Health and Safety Act 2011 (the WHS Act) a permit holder must be:

• an elected officer of the union, or
• an employee of the union,

And must:

• have satisfactorily completed prescribed training, and
• hold an entry permit under the Fair Work Act 2009 (the Act).

Who can hold a Fair Work entry permit

Under the Act a permit holder must be:

• an elected officer of the union, or
• an employee of the union, and
• a fit and proper person to hold a Fair Work entry permit, as determined by the Fair Work Commission.

Fit & proper person

The Delegate of the Commission must be satisfied that the proposed permit holder is a 'fit and proper person' before a Fair Work entry permit can be issued. Section 513 of the Act details criteria for assessing whether a proposed permit holder is a 'fit and proper person' to hold a permit.

Section 513 includes discretionary considerations such as:

• whether the proposed permit holder has received appropriate training
• whether the proposed permit holder has ever been convicted of an offence against an industrial law
• whether the proposed permit holder has ever been convicted of an offence involving entry onto premises, fraud, dishonesty, violence against another person or intentional damage or destruction of property
• whether the proposed permit holder, or any other person, has been ordered to pay a penalty under the Act or other industrial law in relation to action taken by the proposed permit holder
• whether a permit issued to the proposed permit holder has been cancelled, suspended or made subject to conditions
• whether the proposed permit holder has been disqualified from exercising or applying for right of entry, and
• any other matters that the Commission considers relevant.

For full details please see s.513 of the Act.

Note: The member of the Committee of Management making the declaration when an application for an entry permit is made has an obligation to make 'proper inquiries' into the matters included in the declaration.

For more information about inquiries that the member of the Committee of Management should make, please go to Apply for a Fair Work entry permit.

Appropriate training

For more information about appropriate training for a Fair Work entry permit, please go to Right of entry training.

Relevant penalties & convictions

A relevant penalty or conviction will not automatically disqualify the proposed permit holder from being issued with a Fair Work entry permit, however further submissions from the union and the proposed permit holder will be required. These submissions will need to address the question of whether the proposed permit holder is a fit and proper person to hold the entry permit, having regard to the objects of the Act.

The facts in relation to relevant penalties or convictions must be disclosed in both of the declarations that are part of the application for a Fair Work permit.

Cancellation or suspension of a permit, or conditions imposed on a permit

If a Fair Work entry permit has been cancelled or suspended, there will likely be an associated ‘ban period’ during which a new entry permit cannot be issued. For full details see s.510 of the Act.

Cancellation or suspension of a previous permit will not automatically disqualify the proposed permit holder from being issued a Fair Work entry permit after the 'ban period' has expired. Also the imposition of conditions on an entry permit will not automatically disqualify the proposed permit holder from being issued a Fair Work entry permit.

However further submissions from the union and the proposed permit holder will be required. These submissions will need to address the question of whether the proposed permit holder is a fit and proper person to hold the entry permit, having regard to the objects of the Act.

The facts in relation to the cancellation, suspension or conditions imposed must be disclosed in both of the declarations that are part of the application for a Fair Work permit.

Disqualified or suspended from applying for or exercising right of entry

Section 514 provides that Fair Work entry permits cannot be issued to officials who are disqualified or suspended from exercising right of entry under industrial or occupational health and safety laws. This is not at the discretion of the Delegate. In these circumstances a permit cannot be issued.

For full details please see s.514 of the Act.