One of the stated objects of the right of entry provisions under the Fair Work Act 2009 is to establish a balance between:
- The rights of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of the Fair Work Act, Awards and Workplace Safety laws on the one hand; and, on the other hand
- The rights of occupiers and employers to conduct their businesses without undue interference or harassment.
Who Has A Right Of Entry Under the Act?
Permit holders (e.g. a union official) may enter premises to:
- Investigate suspected breaches of industrial laws and fair work instruments in relation to, or affecting, their union members working on the premises (where they reasonably believe that a breach has occurred);
- Hold discussions with employees who are, or are eligible to be, members of their union; or
- Investigate breaches of State or Territory work health and safety laws.
What May The Permit Holder Do While On The Premises Where There Is A Suspected Breach?
Where there is a suspected breach, a permit holder may:
- Inspect work, processes or objects relevant to the suspected contravention;
- Interview people who agree to be interviewed and whom the official’s organisation is entitled to represent;
- Require the occupier or an affected employer to allow the inspection and copying of any member’s record (or record of any non-member who consents in writing) or document relevant to the suspected breach, kept on, or accessible from the premises.
Can A Permit Holder Seek Documents After A Visit?
Yes. The permit holder may give written notice to the employer for production of access to a document directly related to the suspected breach and may inspect and copy the records. The records must be kept in accordance with the Privacy Act 1988.
A permit holder may seek an order from the Fair Work Commission to access records of non-members.
Are There Any Rights & Obligations In Relation To The Exercise Of A Right Of Entry?
Written notice (known as an entry notice) may be required to be given before entering a workplace and should be provided no less than 24 hours and no more than 14 days before the proposed visit. An exemption may be given by the Fair Work Commission under certain circumstances. A visit to a workplace must take place during working hours.
What Does An Entry Notice Include?
An entry notice should include details of:
- The premises to be entered;
- The day of entry;
- The organisation the permit holder belongs to;
- The section of the Act that authorises the entry;
- Details of the suspected breach (where relevant);
- A declaration by the permit holder that they represent an employee who works on the premises and to whom the suspected breach relates or who is affected by the suspected breach; and
- The provision of the organisation’s rules that details the organisation’s right to represent the employee.
Can An Employer Ask To See The Permit?
Yes. Union officials must have a permit to enter a workplace. When requested to do so by an employer representative, the permit must be produced by the union official. In a situation where the permit is not produced upon request, the employer can deny access to the workplace.
Who Can Obtain A Permit?
Before a person can be granted an entry permit, they must pass the new test of being a ‘fit and proper’ person under the Act. The Industrial Registrar will decide which union officials are ‘fit and proper’ to represent workers taking into account training and previous conduct. There may be conditions imposed upon a permit, such as the time that the permit operates.
Conduct Of Permit Holders In Relation To A Right Of Entry
Permit holders must:
- Abide by conditions imposed on their permit;
- Comply with reasonable work health and safety requests;
- Comply with reasonable requests to hold discussions in a particular room or area;
- Comply with reasonable requests that certain routes be taken to a room or area;
- Act in a proper manner and not intentionally hinder or obstruct others; and
- Not enter any part of the premises used for residential purposes.
A permit holder must not:
- Be refused or delayed entry to the premises;
- Be refused the right to inspect and copy records or documents regarding a suspected breach;
- Be hindered or obstructed from exercising their rights;
- Give the impression that they are authorised to do things they are not, nor be reckless about giving that impression; or
- Use information for any purposes other than the investigation.
What About Entry To Hold Discussions With Members & Eligible Members?
A permit holder may enter premises to hold discussions with members or eligible members. A union official must give 24 hours’ notice before entering a workplace, for any purpose, as well as give a detailed reason for entering a workplace except for a suspected breach of work health and safety legislation.
The union official can only enter the employer’s premises during working hours. Discussions with employees can only take place during non-work time.
The employer can request that meetings with the union official take place in a designated area.
What About Entry To investigate A Suspected Breach Of State or Territory Work Health & Safety Laws?
A permit holder may enter premises to investigate a suspected breach of a work health and safety law, provided that at least 24 hours notice is given and a written notice has been provided setting out the reasons for exercising the right.
Penalties may apply for refusing, delaying or obstructing entry of a permit holder.
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The information provided in this knowledge base article is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.