Managing Audio/Visual Recordings during Right of Entry
Managing audio and visual recordings during Right of Entry provisions affects construction businesses that have to work with unions. Here’s what you need to know.
The Fair Work Act confers a right to a union official to be able to enter premises in accordance with the relevant state law on safety grounds.
The Industrial Relations Act (WA) allows an authorised representative of a union to enter premises where relevant employees work during working hours to investigate a suspected breach of the Work Health and Safety Act 2020 (WA).
What has changed?
When exercising right of entry to investigate a suspected safety breach a permit holder is permitted to inspect or view any work, material, machinery, or appliance, that is relevant to the suspected breach.
On June 20, 2022, this right has been extended to allow a permit holder to also take photographs, films and audio, video or other recordings of any relevant work, material, machinery, or appliance.
“This amendment is intended to allow union officials to take photographs and video recordings as evidence of alleged safety issues,” CCIWA Principal Industrial Relations Consultant Paul Moss said.
What can be recorded
Recordings can be made of any work, material, machinery, or appliance that is relevant to the suspected breach.
“The subject matter of the recording must be relevant to the suspected breach,” Moss said. “A recording is not authorised if there is not sufficient relevancy.”
When managing safety right of entry visits some of the issues that need to be considered are:
- What is the alleged safety breach?
- Is the work, material, machinery, or appliance being recorded relevant to the safety breach?
- If the photograph or video will also include people, is their presence necessary?
- Is the recording of commercially sensitive equipment or machinery? If so, how can this be managed to best protect your intellectual property?
Union officials must comply with reasonable safety instructions when making recordings. This includes using appropriate devices where safety grounds restrict the use of particular forms of electronic equipment.
How can recordings be used?
Recordings should only be used for the purpose of investigating a suspected safety breach. This may involve sharing the recordings with WorkSafe WA, using it as part of legal proceedings, or seeking legal or expert advice.
“Sharing of information in other ways, such as on social media or providing it to the press, may constitute a misuse of their right of entry,” Moss said.
Like to know more?
Our Right of Entry training explores the current requirements for right of entry under the Fair Work Act 2009 and provides a range of practical techniques and strategies aimed at helping employers effectively manage the process.
Union right of entry provisions are complex under both the Federal and State legislation. Should you have any questions or are unsure which provisions will apply to your situation, further assistance should be sought.