Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 494

Official must be permit holder

  (1)   An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.

Note:   This subsection is a civil remedy provision (see Part   4 - 1).

Meaning of State or Territory OHS right

  (2)   A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right if the right is conferred by a State or Territory OHS law, and:

  (a)   the premises are occupied or otherwise controlled by any of the following:

  (i)   a constitutional corporation;

  (ii)   a body corporate incorporated in a Territory;

  (iii)   the Commonwealth;

  (iv)   a Commonwealth authority; or

  (b)   the premises are located in a Territory; or

  (c)   the premises are, or are located in, a Commonwealth place; or

  (d)   the right relates to requirements to be met, action taken, or activity undertaken or controlled, by any of the following in its capacity as an employer:

  (i)   a constitutional corporation;

  (ii)   a body corporate incorporated in a Territory;

  (iii)   the Commonwealth;

  (iv)   a Commonwealth authority; or

  (e)   the right relates to requirements to be met, action taken, or activity undertaken or controlled, by an employee of, or an independent contractor providing services for, any of the following:

  (i)   a constitutional corporation;

  (ii)   a body corporate incorporated in a Territory;

  (iii)   the Commonwealth;

  (iv)   a Commonwealth authority; or

  (f)   the exercise of the right will have a direct effect on any of the following in its capacity as an employer:

  (i)   a constitutional corporation;

  (ii)   a body corporate incorporated in a Territory;

  (iii)   the Commonwealth;

  (iv)   a Commonwealth authority; or

  (g)   the exercise of the right will have a direct effect on a person who is employed by, or who is an independent contractor providing services for, any of the following:

  (i)   a constitutional corporation;

  (ii)   a body corporate incorporated in a Territory;

  (iii)   the Commonwealth;

  (iv)   a Commonwealth authority.

Meaning of State or Territory OHS law

  (3)   A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.

Assisting health and safety representatives

  (4)   Subsection   (1), and sections   495 to 498, do not apply to an official of an organisation assisting a health and safety representative on request under a provision of a State or Territory OHS law equivalent to paragraph   68(2)(g) of the Work Health and Safety Act 2011 .

  (5)   However, sections   499 to 504 do apply in relation to the official:

  (a)   whether or not the official is a permit holder; and

  (b)   for the purposes of sections   499 to 502--if the official is not a permit holder, as if the official were a permit holder; and

  (c)   as if giving the assistance to the health and safety representative were authorised by this Part, or were the exercise of rights under this Part (as the case requires); and

  (d)   for the purposes of section   504--as if that section prohibited the use of information or a document obtained in giving the assistance other than for a purpose related to the exercise or performance of the powers or functions of the health and safety representative (subject to the exceptions set out in that section).