Compliance With “Reasonable Suspicion”
An officer or employee of a union who is a WHS entry permit holder has the right to enter your workplace if they have a “reasonable suspicion” that WHS laws are not being complied with. (Section 117 WHS Act)
But what does “reasonable suspicion" mean? One person’s reasonable suspicion could be a PCBU’s “reasonable disbelief.”
This has been clarified in CFMEU (NSW Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia) Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1000, thanks to a judgment by Commissioner Murphy at the NSW Industrial Relations Commission on 17 January, 2017.
The judgment was given in a case between the CFMEU (NSW Branch) and Pacifico Acciona Ferrovial Joint venture. This was an important case.
The Basic Facts of the Case
Two WHS Entry Permit Holders (EPH) from the CFMEU gave PAFJV a notice that they intended to enter the workplace. They believed that their right of entry under the WHS Act was triggered because they had a “reasonable suspicion” that bullying was occurring and section 19 of the WHS Act was being breached.
PAFJV believed that there were insufficient facts to justify the “reasonable suspicion” required by the WHS Act and denied entry to the EPHs. The CFMEU commenced a legal action against PAFJV in the NSW Industrial Relations Commission Court
What is a “Reasonable Suspicion”?
The Commissioner decided that the EPHs were not entitled to enter the workplace and said:
- Genuine beliefs that the WHS Act has been breached are not relevant to the objective assessment of evidence that is needed to form a “reasonable suspicion” (para 64 of Commissioner’s judgement)
- The facts relied upon to arrive at a ”reasonable suspicion” have to be facts that would be acceptable in Court to prove or support proof that there had been a breach of the WHS Act.
“There needs to be some factual basis, some material or materials with probative value which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, section 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of the workers engaged on the Site” (paras 66-67 of Commissioner’s judgement)
Note: The legal term probative value refers to any evidence that serves the purpose of proving something during a Court case
- Hearsay evidence and direct observation of workers who appeared stressed, anxious and uncomfortable did not have the probative value required for a “reasonable suspicion” (paras 68-70 Commissioner’s judgement)
Other resources
SafeWork NSW’s November 2014 publication, Guide to Workplace Right of Entry by WHS Entry Permit Holders, contains examples of situations that might give rise to “reasonable suspicion” but bear in mind what the Commissioner said in the case above regarding the probative value of the evidence of a breach of the WHS Act.
R v Rondo – Reasonable Suspicion Explained mentions how a member of the police force who has a “reasonable suspicion” can stop, search, and detain a person or vehicle. This article from Sydney Lawyers has excellent examples of “reasonable suspicion.”
For more information, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066
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