CPSU, the Community and Public Sector Union-PSU Group
[2023] FWCD 10
•25 JULY 2023
| [2023] FWCD 10 |
| FAIR WORK COMMISSION |
| DECISION |
Work Health and Safety Act 2011
s.131—Application for WHS entry permit
CPSU, the Community and Public Sector Union-PSU Group
(WHS2023/11)
| BILL STEENSON | SYDNEY, 25 JULY 2023 |
Application for a WHS entry permit
On 9 June 2023, the CPSU, the Community and Public Sector Union (CPSU) lodged with the Fair Work Commission (the Commission) an application for a Work Health and Safety entry permit (WHS entry permit) under the Work Health and Safety Act 2011 (WHS Act) for Melissa Anne Gregory. Ms Gregory is an official of the CPSU.
On 4 and 10 July 2023, further materials in support of the application were provided to the Commission.
The circumstances regarding this application warrant further discussion.
Statutory Framework
Section 131 of the WHS Act provides:
131Application for WHS entry permit
(1)A union may apply to the authorising authority for the issue of a WHS entry permit to a person who is an official of the union.
(2)The application must specify the person who is to hold the WHS entry permit and include a statutory declaration by that person declaring that he or she:
(a)is an official of the union; and
(b)has satisfactorily completed the prescribed training; and
(c)holds, or will hold, an entry permit under the Fair Work Act (my emphasis added).”
For the purposes of the WHS Act, the authorising authority refers to the Commission.[1]
As the Delegate, I must consider section 132 of the WHS Act, which stipulates:
132Consideration of application
In considering whether to issue a WHS entry permit, the authorising authority must take into account:
(a)the object of this Act; and
(b)the object of allowing union right of entry to workplaces for work health and safety purposes.
I also must assess a permit holder’s eligibility to hold a WHS entry permit under the WHS Act. Section 133 relevantly states:
133Eligibility criteria
The authorising authority must not issue a WHS entry permit to an official of a union unless the authorising authority is satisfied that the official:
(a)is an official of the union; and
(b)has satisfactorily completed the prescribed training; and
(c)holds, or will hold, an entry permit under the Fair Work Act.
(my emphasis added)
A WHS entry permit has effect for a term of three years from the date that it is issued.[2] In relation to the expiry of a WHS entry permit, section 137 provides:
137 Expiry of WHS entry permit
(1)Unless it is earlier revoked, a WHS entry permit expires at the first of the following to occur:
(a)at the end of the term of the WHS entry permit;
(b)at the end of the term of the entry permit held by the WHS entry permit holder under the Fair Work Act;
…
(my emphasis added)
As the Delegate, I am authorised to issue a WHS entry permit to a person if I have taken into account the matters in section 132 of the WHS Act and am satisfied about the matters listed in section 133.[3]
Additionally, as indicated in subsection 137(1)(b) of the WHS Act set out above, a WHS entry permit expires when the corresponding entry permit that is issued under the Fair Work Act 2009 (the FW Act) has expired or has been revoked. In other words, if an official who holds a right of entry permit under the FW Act ceases to hold that permit then, by operation of section 137 of the WHS Act, that the corresponding WHS entry permit held by that official is taken to have also expired.
Background and Consideration
Ms Gregory is employed by the CPSU as a Field Organiser.[4] In its application, the CPSU noted that on 21 October 2019, Ms Gregory satisfactorily completed the WHS Entry Permit Holder (WHS-EPH) Training provided by Future Skills Ltd.[5] Future Skills Ltd is an approved provider of prescribed training in relation to the WHS Act.[6] Ms Gregory also currently holds an entry permit issued under the Fair Work Act 2009 (FW Act); RE2022/1243, which was issued on 14 November 2022.
Notwithstanding the points noted in paragraph [11] above, it is worth discussing the circumstances concerning a previous WHS entry permit that was held by Ms Gregory.
On 10 August 2021, Deputy President Dean issued right of entry permit RE2021/772 to Ms Gregory. On 2 May 2022, the corresponding WHS entry permit, WHS2022/16, was issued to Ms Gregory by Delegate Ailsa Carruthers.
On 24 October 2022, the Commission was advised, by way of statutory declaration, that Ms Gregory’s right of entry permit (RE2021/772) had been lost. The CPSU advised the Commission that it received the entry permit at the CPSU Melbourne office, but that it was apparently lost in transit when the permit was later posted to Ms Gregory’s work address in Brisbane. The CPSU also provided a new application for a right of entry permit to be issued to Ms Gregory, which would replace the lost permit.
Consequently, on 14 November 2022, Deputy President Gostencnik revoked RE2021/772 under section 603 of the FW Act and a new right of entry permit, RE2022/1243, was subsequently issued.
A ramification of RE2021/772 being revoked was that WHS2022/16, as the corresponding WHS entry permit, expired as a result of the right of entry permit revocation, consistent with section 137 of the WHS Act. On 22 June 2023, Commission staff wrote to the CPSU to advise that WHS2022/16 had yet not been returned to the Commission following its expiry because of the right of entry permit revocation.
On 4 July 2023, the CPSU provided submissions in response to the Commission’s correspondence. The return of WHS2022/16 and an accompanying statutory declaration was received by the Commission on 10 July 2023. The permit was, therefore, returned nearly eight months after it had expired.
In the submissions made by the CPSU and in the statutory declaration completed by Ms Gregory, an ‘administrative oversight’ was indicated to be the cause of the late return of WHS2022/16.[7] Ms Gregory also declared that she had not exercised entry rights under WHS2022/16 since 14 November 2022 (the date on which the entry permit had been revoked).
As noted earlier, it is a statutory requirement for an official to return an expired WHS entry permit to the Commission within the statutory timeframe as outlined in section 149 of the WHS Act, namely 14 days. I further note that section 149 of the WHS Act is a civil penalty provision which may leave a permit holder themselves open to such penalties.
However, the circumstances in this matter are such that Ms Gregory did not exercise entry rights under the WHS Act after WHS2022/16 expired and it also appears that Ms Gregory and the CPSU took steps to return the expired WHS entry permit as soon as practicable after being notified by the Commission of the previous omission to do so.
In addition, based on the Commission’s records, the CPSU and Ms Gregory have a good record of ensuring that both right of entry and WHS entry permits are returned within the statutory timeframes as set out by the FW Act and the WHS Act respectively.
Noting the above issues, this matter should serve as a reminder to the CPSU and Ms Gregory of their statutory obligations in respect of WHS entry permits, particularly, the expiry of WHS entry permits (and the accompanying requirement to return) in circumstances where the corresponding FW Act right of entry permit has been revoked.
Aside from the above, there is nothing which indicates that issuing a permit to Ms Gregory would be contrary to the objects of the WHS Act and the object of allowing union right of entry to workplaces for health and safety purposes. As confirmed in paragraph [11], Ms Gregory meets the eligibility criteria, as outlined in section 133 of the WHS Act, to hold a WHS entry permit.
Based on the information outlined above, I approve this application. I have determined to not impose any conditions on the permit under section 135 of the WHS Act, which limit the circumstances to which this permit has effect.
I hereby issue the permit to Ms Gregory.
DELEGATE OF THE FAIR WORK COMMISSION
[1] Work Health and Safety Act 2011 (Cth), s.4.
[2] Ibid, s.136.
[3] Ibid, s.134.
[4] Form F42A – Application for a work health & safety entry permit dated 9 June 2023.
[5] Ibid.
[6] ‘Work health and safety entry permit holders’, Comcare (Web Page) <
[7] Statutory Declaration of Melissa Gregory dated 7 July 2023.
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