Get ready for Victoria's new right to entry laws which allow unions to record potential breaches

From today, union representatives exercising right of entry powers will have new powers to take photos, measurements, sketches, or recordings (video included) when attending a workplace where a designated member works, except for in certain circumstances, following the assent today of the Occupational Health and Safety and Other Legislation Amendment Act 2021.

The introduction of the Act follows recent disputes which reinforced an employer's capacity to expel Authorised Representatives of Registered Employee Organisations (ARREOs) from sites where their conduct is obstructive, or goes beyond the investigative and information gathering powers expressly conferred on them under the Occupational Health and Safety Act 2004 (Vic) (the OHS Act), for example by taking photographs of personnel on site.

The other key changes in the Act include:

• the prevention of companies from indemnifying individual directors and officers against penalties for safety breaches in certain circumstances (though this would most probably not prevent indemnification of legal defence costs). This change will come into effect in 12 months;
• extending the definition of "employee" and "employer" to allow additional types of workers to be protected by the OHS Act. The definition of employee will include those under a contract of training, and labour hire workers. This change will come into effect in six months; and
• adding provisions to clarify that when a document has been seized by an inspector, it can only be destroyed if it is a copy, if it is forfeited, or by law or court order.

Who are ARREOs and HSRs?

ARREOs are employees of a union who are granted a permit by WorkSafe Victoria to enter a workplace in accordance with the right of entry provisions of the OHS Act.  Health and Safety Representatives (HSRs) are employees who have been elected by their colleagues to represent the interests of other employees on health and safety matters.  In the construction industry, it is common for HSRs to also be union delegates.

The new extended right of entry powers

The OHS Act already gives HSRs a number of powers, rights and privileges, including the power to inspect parts of their workplace; the right to be consulted by their employer on health and safety matters, the power to issue Provisional Improvement Notices to their employer under certain circumstances; and the power to issue a cease work direction under certain circumstances. HSRs can also accompany inspectors during inspections, and interviews.

Currently, when ARREOs suspect a contravention of the Act, they can:

• inspect workplaces at any time after giving reasonable notice to an employer, but immediately if an incident occurs that has an immediate risk of health and safety to any person;
• observe the work;
• consult / interview employees regarding particular matters; and
• consult / interview the employer regarding the particular matter.

ARREOs can also be invited onto a worksite by a HSR to assist the HSR in exercising his or her functions.

The Act now also allows ARREOs and HSRs to also have the power to take photographs, measurements, or make sketches or recordings (Extended Powers) at any part of a workplace.

The exceptions to the Extended Powers are that:

• HSRs cannot take photos, videos, sketches or recordings in an interview that they are attending; and
• Both ARREOs and HSRs can only exercise these powers "to the extent that it is reasonable for the purpose of enquiring into the suspected contravention".

Key takeaways for employers

Employers should:

• be aware that they cannot eject ARREOs from site (or discipline HSRs) simply because they are taking photos or recordings of onsite personnel;
• inform their employees that they may be monitored or recorded by ARREOs and HSRs who are exercising relevant powers under the OHS Act;
• seek confirmation from contractors that their right of entry processes and procedures are updated in accordance with the Act; and
• ensure that processes are up to date regarding taking action against ARREOs and/or HSRs who exercise their power to take videos, photos, sketches or measurements for an improper purpose, or in a way that is objectively harassing or intimidating.

In light of the concurrent changes to indemnification of penalties, we also recommend reviewing your insurance contracts and any indemnities provided to officers.