Information about powers of authorised representatives of registered employee organisations (ARREOs) to take photographs, measurements, sketches or recordings.
Changes to the ARREO powers under the OHS Act
On 22 September 2021 the powers of ARREOs under Part 8 of the Occupational Health and Safety Act 2004 (OHS Act) were amended.
Powers on entry
Under section 89(1) of the OHS Act, an ARREO can now take photographs or measurements or make sketches or recordings (including audio and video) following entry to a workplace under section 87 of the OHS Act.
This power can only be used to the extent that it is reasonable for the purpose of enquiring into the suspected contravention described on the notice provided to the employer upon entry. These new powers are intended to assist ARREOs to better undertake their existing role under the OHS Act, including bringing workplace hazards to the attention of an employer and working together to come to a solution.
Using or disclosing information
A new section 91(ca) has been inserted into the OHS Act to clarify that ARREOs must not intentionally use, disclose or provide to another person any photographs or measurements taken or sketches or recordings made under section 89 for a purpose not reasonably connected with the exercise of their powers under Part 8 of the OHS Act.
This means an ARREO can only use or disclose photographs, measurements, sketches or recordings made in the workplace for a purpose that is reasonably connected with their role as an ARREO.
An ARREO may, for example, share photographs, measurements, sketches or recordings with:
an HSR or the employer, to support employers and employees to discuss and resolve health and safety issues
WorkSafe, to assist in resolving a health and safety issue
It is unlikely that sharing photographs, measurements, sketches or recordings through media or social media is a purpose reasonably connected with the exercise of an ARREO’s powers under Part 8 of the OHS Act.
The maximum penalty for committing any offence under section 91 is 60 penalty units.
Limits on powers
There is no change to the power of entry to a place by ARREOs. ARREOs may still only enter if they reasonably suspect that a contravention of the OHS Act or Occupational Health and Safety Regulations 2017 has occurred or is occurring, and the other requirements of section 87 of the OHS Act are met. Upon entry, section 88 of the OHS Act requires an ARREO to take all reasonable steps to give notice and produce their entry permit for inspection.
Existing limits on the exercise of ARREO powers continue to apply to the new powers in the OHS Act.
If, after they exercise their power of entry, the ARREO makes observations or obtains information which makes them reasonably suspect a further contravention of the OHS Act (ie different to the contravention(s) described on the notice of suspected contravention), the ARREO cannot make enquiries, or take photographs, measurements, sketches or recordings, without leaving and re-entering the workplace with a new notice of suspected contravention.
Dealing with disputes
If an ARREO has entered a workplace and an issue arises between the ARREO and an employer about the exercise of an ARREO’s power, an employer may ask WorkSafe to arrange for an inspector to attend the workplace and enquire into the issue. This includes in relation to the taking of any photographs, measurements, sketches or recording. If asked, WorkSafe must arrange for an inspector to attend the workplace as soon as possible and enquire into the issue.