Information for ARREOs about right of entry

How to become an ARREO

To become an ARREO, you must:

• be a permanent employee or officer of a registered employee organisation, for example, a union
• complete a WorkSafe-approved training course
• get an entry permit from the Magistrates’ Court (the Court), known as an Occupational Health and Safety (OHS) entry permit.

These are requirements under the Occupational Health and Safety Act 2004 (OHS Act).

To exercise a state OHS right, you must also hold an entry permit issued under the Fair Work Act 2009, known as a Federal Fair Work entry permit.

WorkSafe-approved training course

Before getting your entry permit from the Court, you must complete a WorkSafe-approved training course, known as the ARREO Part B course. This covers the legislative requirements and practical application of Part 8 of the OHS Act.

Prior to completing this course, you will need to do one of the following:

• attend the ARREO Part A course delivered by Victorian Trades Hall Council (VTHC). This course is based on the WorkSafe-approved HSR initial OHS training course and outlines the OHS legal framework
• attend all days of a WorkSafe-approved 5-day HSR initial OHS training course, or
• demonstrate competency and knowledge of OHS to the same or greater level as either of these courses.

Right of entry to workplaces

As an ARREO, the OHS Act gives you the right to enter a workplace. You can only use this right of entry:

• during working hours, and
• when you reasonably suspect that a contravention of the OHS Act and/or the Occupational Health and Safety Regulations 2017 (OHS Regulations) has occurred or is occurring at the workplace.

The suspected contravention must relate to or affect work being carried out by people who are:

• members of your organisation, or
• covered by a collective, certified or enterprise agreement that binds your organisation, or
• eligible to be members of your organisation and are not covered by a collective, certified or enterprise agreement which binds another organisation.

'Reasonably suspecting' that a contravention has occurred or is occurring means that an ordinary person, with the same knowledge and access to information that you have, would also suspect that a contravention has occurred or is occurring.

You do not have to disclose the names of people who are members of your organisation when entering a workplace.

Workplaces used for residential purposes

You cannot enter any part of a workplace that is used for residential purposes unless you have the consent of the person who lives there. For example, a retail store with a home at the rear. You can enter the store but not the home, unless the person living in the home consents.

Where a workplace is largely residential, such as a Community Residential Unit or aged care facility, the privacy of residents is paramount. Your enquiries should focus on the work practices and other arrangements that affect the health and safety of workers in meeting the needs of residents. You need to respect the privacy of residents while doing this.

Workplaces where access is restricted by law

There are laws other than the OHS Act which can restrict whether a person can access certain workplaces or parts of workplaces, such as quarantine facilities and prisons. There are several reasons access might be restricted, including security, hygiene, and law and order.

Where other legislation restricts access to a workplace or part of a workplace, your right of entry under the OHS Act is overruled, and you must obey the restrictions on entry. This means you cannot enter a workplace or part of a workplace if other legislation restricts you from doing so. However, any restrictions under other legislation should only be applied to the extent necessary to meet the purpose of the restriction.

What you need to do to enter a workplace

You should enter a workplace through the entry normally used by employees or members of the public. You need to comply with any reasonable security and safety requirements at the workplace.

What you can do when you enter a workplace

Once you have entered a workplace, you can make enquiries only to the extent that it is reasonable for the purpose of enquiring into the contravention you suspect.

As part of your enquiries into the suspected contravention, you can:

• inspect any plant, substance or other thing at the workplace, including a document
• observe work
• take photographs or measurements or make sketches or recordings, including audio and video recordings
• consult with employees (with their consent) who are members or eligible members of your organisation
• consult with any employer at the workplace.

You can talk to employees for as long as is reasonably necessary to enquire into a suspected contravention, providing this does not cause work to stop. You can talk to employees either individually or in groups with their consent. You are free to talk to employees during mealtimes or other authorised breaks.

If an employee or group of employees agrees, the employer or their representative can be present while you are talking to them. However, if the employees wish to talk to you without the employer or their representative being present, they can do so. If an employee does not want to talk to you, they do not have to.

What you cannot do when you enter a workplace

On entry to a workplace, you must not:

• cause work to stop at the workplace, without the consent of the employer or other person with management and control
• hinder, obstruct, intimidate or threaten an employer or employee at the workplace
• seize property or copy documents
• use or disclose information acquired in the workplace for a purpose not reasonably connected with your role as an ARREO
• use, disclose or provide to another person photographs or measurements taken or sketches or recordings made in the workplace for a purpose not reasonably connected with your role as an ARREO
• exercise a power other than to enquire into a suspected contravention.

You cannot direct work to cease without the consent of the employer or their representative. But, if you reasonably believe there is an immediate and significant risk of serious injury or death, you can warn employees of that risk.

The right of entry under the OHS Act is limited to OHS matters. If you misuse your right of entry as an ARREO, WorkSafe can investigate.

What to do if you suspect an additional contravention

While making enquiries about a suspected contravention, you may see or learn something that makes you reasonably suspect another, different contravention has occurred or is occurring. If this happens, you cannot make enquiries about the new suspected contravention without leaving and re-entering the workplace and providing a new NoSC. You cannot simply add the further suspected contravention to a NoSC you have already provided. However, you can engage with the employer, who may choose to consult on the other matters without requiring you to leave and re-enter the workplace.

If you do leave and re-enter, you must follow the same entry process you used previously. You must provide a valid NoSC for each further suspected contravention before you can commence enquiries.

Any NoSC that you provided on your original entry does not need to be provided again.

When the right of entry ends

The right of entry ends once you have finished making enquiries about the suspected contravention described on the NoSC you provided on entry. You cannot remain at the workplace after this time without the consent of the employer or their representative.

If you remain at a workplace without consent after the right of entry has ended, you may be considered a trespasser, and in breach of the OHS Act.

It may not always be possible for the issues relating to a contravention to be addressed while you are still at the workplace. In this case, you should work with the employer or their representative to agree on appropriate follow up actions. This could include a further visit or other form of contact to confirm what actions have been taken to address the contravention.

Request for assistance from an HSR

The OHS Act allows an HSR to seek the assistance of any person, whenever necessary.

The person may be:

• within the workplace, for example, another HSR or employee, or
• from outside the workplace, providing they have sufficient knowledge of OHS.

Employers must allow any person assisting an HSR access to the workplace. They can only refuse access if they think the person is unsuitable to assist the HSR because they do not have enough knowledge about health and safety.

You can use your OHS entry permit or evidence of completing ARREO training to demonstrate you have sufficient knowledge of OHS. As you are not acting in the capacity of an ARREO and not exercising ARREO powers when providing assistance to an HSR, you do not need to provide a NoSC or entry permits.

If you do suspect a contravention of the OHS Act and/or OHS Regulations and wish to exercise your powers as an ARREO, you must:

• leave the workplace
• follow the entry procedures and
• provide your permits and a NoSC.