Information for employers about right of entry by ARREOs

Understand who ARREOs are

Authorised representatives of registered employee organisations are known as ARREOs.

A registered employee organisation, such as a union, is registered under the Fair Work (Registered Organisations) Act 2009.

To become an ARREO, a person 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, 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, ARREOs are also required to hold an entry permit issued under the Fair Work Act 2009. This is commonly known as a Federal Fair Work entry permit.

ARREOs have the right to enter workplaces

The OHS Act gives ARREOs the right to enter a workplace in the following circumstances.

ARREOs can only enter a workplace:

• during working hours, and
• when they 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 the ARREO’s organisation, or
• covered by a collective, certified or enterprise agreement that binds the ARREO’s organisation, or
• eligible to be members of the ARREO’s 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.

An ARREO does not have to disclose the names of people who are members of their organisation when entering the workplace.

If you are unsure if an ARREO has the right to represent people at your workplace, you can:

• ask the ARREO for more information
• obtain advice from your employer organisation or legal advisor
• contact the Fair Work Ombudsman.

An unreasonable delay in seeking advice may be considered refusal of entry.

Workplaces used for residential purposes

An ARREO cannot enter any part of a workplace that is used for residential purposes unless they have the consent of the person who lives there. For example, a retail store with a home at the rear. The ARREO 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. The ARREO’s enquiries should focus on the work practices and other arrangements that affect the health and safety of workers in meeting the needs of residents. The ARREO needs 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, an ARREO’s right of entry under the OHS Act is overruled, and they must obey the restrictions on entry. This means an ARREO cannot enter a workplace or part of a workplace if other legislation restricts them 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 to expect when an ARREO enters your workplace

An ARREO should enter your workplace through the entry normally used by employees or members of the public. You should ensure that any security, reception or front desk staff are aware that ARREOs may seek entry to your workplace. ARREOs need to comply with any reasonable security and safety requirements of your workplace.

What ARREOs can do when they enter a workplace

Once an ARREO has entered your workplace, they can make enquiries only to the extent that it is reasonable for the purpose of enquiring into the suspected contravention.

As part of their enquiries into the suspected contravention, an ARREO can:

• inspect any plant, substance or other thing at your 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 their organisation
• consult with any employer at the workplace.

An ARREO 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. They can talk to employees either individually or in groups with their consent. ARREOs are free to talk to employees during mealtimes or other authorised breaks.

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

What ARREOs cannot do when they enter a workplace

An ARREO must not:

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

An ARREO cannot direct work to cease without your consent, or the consent of your representative. But, if they reasonably believe there is an immediate and significant risk of serious injury or death, they can warn employees of that risk.

The right of entry under the OHS Act is limited to OHS matters. If an ARREO misuses their right of entry, WorkSafe can investigate.

Additional suspected contraventions

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

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

Any NoSC that the ARREO provided on their original entry does not need to be provided again.

When the right of entry ends

The right of entry ends once the ARREO has finished making their enquiries about the suspected contravention described on the NoSC provided on entry. This means they no longer have a right to remain at your workplace without you or your representative’s consent.

If an ARREO remains at your workplace without consent after their right of entry has ended, they may be considered trespassing, and in breach of the OHS Act.

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

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

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

If the union official does want to use their ARREO powers at any point, they must:

• leave the workplace
• follow the entry procedures, and
• provide you with their entry permits and a NoSC.

What to do if there is a dispute with an ARREO

If you are unsure about the ARREO’s right to represent people at your workplace, you can:

• get advice from your employer organisation or legal advisor
• contact the Fair Work Ombudsman.

You can contact the WorkSafe Advisory Service if:

• it is not clear whether an ARREO has a right to enter your workplace
• there is a dispute about the ARREO’s right to enter your workplace
• there is an issue about the ARREO’s exercise of powers once they have entered your workplace.

WorkSafe will make enquiries and take appropriate action. This may include an inspector attending your workplace and issuing an improvement notice if you refuse entry to an ARREO who has a valid right of entry.