Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Division 4.3A Entry to workplaces by authorised representatives
57A Definitions for div 4.3A
In this division:
"authorised representative" means a person authorised under section 57B (1).
"registered" organisation means an organisation registered under the Workplace Relations Act 1996 (Cwlth), schedule 1B.
"office", in a registered organisation, means an office of the organisation, or a branch of the organisation, under the Workplace Relations Act 1996 (Cwlth), schedule 1B, section 9.
57B Authorised representatives
(1) A registered organisation may, in writing, authorise a person for this division.
(2) However, the registered organisation must not authorise a person unless—
(a) the person—
(i) is an employee of the organisation; or
(ii) holds an office in the organisation; and
(b) the person has completed the training required under the regulations; and
(c) the person is not disqualified under section 57C (1).
(3) A registered organisation commits an offence if—
(a) the organisation authorises a person under subsection (1); and
(b) when authorised—
(i) the person was not an employee of the organisation and did not hold an office in the organisation; or
(ii) the person had not completed the training mentioned in subsection (2) (b).
Maximum penalty: 10 penalty units.
(4) A registered organisation commits an offence if—
(a) the organisation authorises a person under subsection (1); and
(b) the person has not completed the training required under the regulations to continue to be authorised; and
(c) the organisation does not revoke the authorisation.
Maximum penalty: 10 penalty units.
(5) An authorisation under subsection (1) ends if—
(a) the person authorised stops being an employee of the registered organisation that authorised the employee and does not hold an office in the organisation; or
(b) the person authorised stops holding an office in the registered organisation that authorised the person and is not an employee of the organisation.
Note The power to make a statutory instrument (including an authorisation) includes power to amend or repeal the instrument (see Legislation Act, s 46).
(6) A registered organisation commits an offence if—
(a) the organisation authorises a person under subsection (1); and
(b) the organisation does not give the chief executive written notice of the authorisation as soon as practicable after the person is authorised, but not later than 1 week after the day the person is authorised.
Maximum penalty: 5 penalty units.
(7) A registered organisation commits an offence if—
(a) the organisation authorised a person under subsection (1); and
(b) the authorisation ends; and
(c) the organisation does not give the chief executive written notice of the authorisation's end as soon as practicable after the person is authorised, but not later than 1 week after the day the authorisation ends.
Maximum penalty: 5 penalty units.
(8) An offence against this section is a strict liability offence.
57C Disqualification of authorised representatives
(1) The chief executive may disqualify an authorised representative if the chief executive believes, on reasonable grounds, that the representative—
(a) has contravened this division; or
(b) is likely to contravene this division; or
(c) has, in exercising a function under this division, intentionally hindered or obstructed an employer or employee or otherwise acted improperly.
(2) Before disqualifying an authorised representative under subsection (1), the chief executive must give the representative written notice—
(a) that the chief executive intends to disqualify the representative; and
(b) telling the representative why the chief executive intends to disqualify the representative; and
(c) telling the representative that the representative may, within 14 days after the day the representative is given the notice, give a written response to the chief executive about the matters in the notice.
(3) In deciding whether to disqualify an authorised representative under subsection (1), the chief executive must take into account any response given by the representative within the 14-day period.
(4) If a person is disqualified under subsection (1), the chief executive must, in writing—
(a) tell the person about the disqualification; and
(b) tell a registered organisation about the disqualification if the chief executive knows, or believes, that the person is an employee of, or holds office in, the organisation.
(5) The chief executive may revoke a disqualification under subsection (1) if the chief executive believes, on reasonable grounds, that it is no longer appropriate for the disqualification to remain in force.
(6) The chief executive may take action under subsection (5) on application or on the chief executive's own initiative.
57D Entry to workplaces by authorised representatives
(1) This section applies if an authorised representative of a registered organisation suspects on reasonable grounds that—
(a) a contravention of this Act may have happened, may be happening or is likely to happen at premises; and
(b) the premises are a workplace where members of the organisation (or people who are eligible to be members of the organisation) work.
(2) The authorised representative may enter the premises to investigate the contravention.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3) However, the authorised representative may enter the premises only at a time when work is carried on, or is usually carried on, at the premises by those members (or people).
(4) Also, this section does not authorise entry into a part of premises that is being used only for residential purposes.
57E Notice of entry by authorised representative
(1) This section applies to an authorised representative who is authorised to enter premises under this division.
(2) The authorised representative may enter the premises without notice.
(3) The authorised representative must tell the occupier of the premises that the representative is on the premises as soon as reasonably practicable after entering the premises.
(4) However, the authorised representative need not tell the occupier of the premises that the representative is on the premises if—
(a) to do so would defeat the purpose for which the premises were entered; or
(b) the occupier had been told in writing when the representative would enter the premises.
57F Production of authorised representative's authorisation
An authorised representative must not remain at premises entered under this part if the representative does not produce his or her authorisation for inspection when asked by the occupier.
Note An authorisation must be in writing (see s 57A, def authorised representative ).
57G Powers available to authorised representative on entry
(1) This section applies if an authorised representative enters premises under section 57D (Entry to workplaces by authorised representatives) to investigate a suspected contravention of this Act.
(2) The authorised representative may investigate the contravention by doing 1 or more of the following:
(a) inspect or view work, materials, plant or systems at the premises;
(b) interview members of the registered organisation (or people who are eligible to be members of the organisation) with their consent;
(c) take measurements and make sketches, drawings or any other kind of record (including photographs, films, or audio, video or other recordings) at the premises;
(d) require the production for inspection of documents relating to occupational health and safety at the premises;
(e) examine and copy, or take extracts from, any document produced as required under paragraph (d);
Note It is an offence for a person (including an authorised representative) to disclose protected information obtained while exercising a function under this Act (see s 88).
(f) require the occupier, an employee or anyone else working at the premises, to give the representative any assistance reasonably needed to exercise a function under this part at the premises.
(3) However, the authorised representative must not make a requirement of a person under subsection (2) (d) or (f) unless the representative has shown the person his or her authorisation.
57H Damage etc to be minimised by authorised representative
(1) In the exercise, or purported exercise, of a function under this division, an authorised representative must take all reasonable steps to ensure that the representative causes as little inconvenience, detriment and damage as is practicable.
(2) If an authorised representative damages anything in the exercise or purported exercise of a function under this division, the representative must give written notice of particulars of the damage to the person whom the representative believes, on reasonable grounds, is the owner of the thing.
(3) If the damage happens at premises entered under this division in the absence of the occupier, the authorised representative may give the notice by leaving it secured in a conspicuous place at the premises.
57I Compensation for exercise of function by authorised representative
(1) A person may claim compensation from a registered organisation if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this part by an authorised representative of the organisation.
(2) Compensation may be claimed and ordered in a proceeding for compensation brought in a court of competent jurisdiction.
(3) A court may order the payment of reasonable compensation for the loss or expense only if it is satisfied it is just to make the order in the circumstances of the particular case.
(4) The regulations may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.
57J Authorised representative to tell occupier about findings
(1) This section applies if an authorised representative enters premises under section 57D.
(2) Within 2 days after the day the authorised representative enters the premises, the representative must give the occupier and chief executive a written notice telling the occupier whether the representative believes that this Act has been, or may have been, contravened at the premises.
57K Pretending to be authorised representative
A person commits an offence if the person pretends that the person is an authorised representative.
Maximum penalty: 100 penalty units.
57L Obstructing etc authorised representative
(1) A person commits an offence if the person obstructs, hinders, intimidates or resists an authorised representative in the exercise of his or her functions as an authorised representative.
Maximum penalty: 50 penalty units.
(2) Strict liability applies to an offence against subsection (1).