The Fair Work Act, (the Act) provides for a national standard for union right of entry to workplaces of National System Employers and other employers covered by the Act.The Fair Work Amendment Act 2013 introduced a number of amendments to the right of entry provisions set out in the Fair Work Act, which are incorporated into the provisions discussed in Section B.

Employers not covered by the Act will remain under state and territory right of entry laws. State and territory occupational health and safety laws will continue to operate in conjunction with the federal right of entry provisions, but will be overridden in respect of any inconsistency. These provisions are discussed in Section C.

For easy reference the applicable section number of the respective Act is indicated next to the titles on the right-hand side.

Provisions for employers covered under the Act

Summary of provisions

The Act has established a substantially different environment for dealing with the right of entry to the workplace.

1. Entry to inspect a breach of industrial laws continues to require a suspicion on reasonable grounds of such a breach.
2. Entry to engage in discussions with employees is now extended to include any employees on the premises who carry out work on the premises and whose industrial interests the permit holder’s organisation is entitled to represent. Notice is still required for entry into the workplace.

The Fair Work Commission (FWC) will only issue permits to fit and proper persons and permits may be suspended, revoked or have conditions of entry imposed. Unions may still gain right of entry under certain state OHS legislation.

What is right of entry?

A union official (which includes an employee) of a registered union, has the right to enter premises if he or she holds a valid right of entry permit and has provided any written notice required by the Act to the employer and/occupier, for the purposes of:

• investigating suspected contraventions of the Act, or fair work instruments
• holding discussions with certain employees
• exercising a right under a prescribed state or territory occupational health and safety (OHS) law.

Applying for a right of entry permit

The FWC may issue a permit (an entry permit) to a union official upon application. In determining whether the official is a fit and proper person to hold a permit, the FWC must take into account a number of matters including the following:

• whether the official has received appropriate training about the rights and responsibilities of a permit holder;
• whether the official has been convicted of certain offences against an industrial law;
• whether the official has ever been convicted of an offence against a law of the Commonwealth, a state, a territory or a foreign country involving:
  1. 1. entry onto premises; or
     2. fraud or dishonesty; or
     3. intentional use of violence against another person or intentional damage or destruction of property
• whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;
• whether a permit issued to the official under Commonwealth law has been revoked, suspended or made subject to conditions; and
• whether a court, or other person or body, under a state or territory industrial law or a state or territory OHS law has:
  1. 1. cancelled, suspended or imposed conditions of entry on a permit the official held; or
     2. disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law.

Entry to investigate suspected contravention (s.481)

An official who holds a right of entry permit is entitled to enter work premises if that person suspects, on reasonable grounds, a contravention has occurred of:

• the Act
• a term of a fair work instrument (i.e. a modern award, an enterprise agreement, a workplace determination or an order made by FWC),

The contravention must relate to a member of the official’s organisation and that organisation must be entitled to represent that employee who must perform work on the premises.

The visit must be for the purpose of investigating the suspected contravention and must occur during working hours.

If an employer doubts the legitimacy of the official’s right to enter, the employer may be able to apply to FWC to revoke, suspend or impose conditions on the permit holder’s permit. The union would then have to satisfy FWC that its belief in a suspected contravention was reasonable. Care should be taken in exercising this option and CCI should be consulted before doing so.

Rights on entry

A permit holder whilst on the premises may do the following:

• inspect any work, process or object relevant to the suspected contravention;
• interview any person about the suspected contravention, provided that:
  1. 1. they agree to be interviewed; and
     2. the permit holder is entitled to represent the industrial interests of that person; and
• require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly related to the suspected contravention and that:
  • 1. is kept on the premises; or
    2. is accessible from a computer that is kept on the premises.

* Note: If a permit holder believes that non-member records are relevant to the suspected contravention, he or she may make an application to FWC for an order to allow the permit holder to inspect and make copies of those records. Additionally, the non-member may also provide their consent in writing that the record or document be inspected or copied by the permit holder.

Entry to hold discussions with employees (s.484)                

An official who holds a right of entry permit is entitled to enter work premises to hold discussions during a break with one or more persons who:

• perform work on the premises; and
• whose industrial interests the permit holder’s organisation is entitled to represent; and
• who wish to participate in those discussions.

Rights on entry

The permit holder and occupier of the premises must come to an agreement on the room or area used to conduct interviews or hold discussions. If agreement cannot be reached, the permit holder may use the room or area where the relevant employees ordinarily take their meal or other breaks. The permit holder must comply with any reasonable request by the occupier to take a particular route to reach a room or area on the premises. However, a permit holder:

• is not authorised to enter any part of the premises of the employer that is used for residential purposes; and
• may only enter a workplace during working hours; and
• may only hold the discussions during the employees’ meal or other breaks.

An official is not authorised to remain at a workplace if they fail to comply with an employer’s reasonable request to take a particular route to reach the agreed area or comply with an OHS requirement.

Giving entry notice

Unless FWC has issued an exemption certificate, a permit holder must give between a maximum of 14 days and minimum of 24 hours written notice, in the form complying with s. 518 of the Act, to an employer before entering their premises to investigate a suspected contravention or to hold discussions with employees.

The notice must specify:

• the day of entry
• the premises that are proposed to be entered
• the organisation of which the permit holder for the entry is an official
• the purpose of the right of entry
• the notice must also contain a declaration by the permit holder that the permit holder’s organisation is entitled to represent the industrial interests of a member, who performs work on the premises; and
• specify the provision of the organisation’s rules that entitles the organisation to represent the person/s.

Entry for OHS purposes (s494)

The legislation imposes conditions on persons seeking to exercise right of entry under prescribed state or territory OHS laws, to premises owned or occupied by a constitutional corporation or the Commonwealth, or located in a territory, or where the right relates to contractors providing services to a constitutional corporation or the Commonwealth. The provisions operate in addition to the state or territory law.

Current legislation applies to entry under Western Australian OHS legislation as prescribed in Sections 49G, 49I to 49O of the Industrial Relations Act 1979 (the IR Act) makes provision for right of entry, but only to the extent to which those provisions provide for or relate to a suspected breach of:

1. the Occupational Safety and Health Act 1984; and
2. the Mines and Safety Inspection Act 1994.

An official, who is entitled under one of the prescribed state or territory OHS laws to enter a workplace, must now also have a valid right of entry permit issued under the Fair Work Act 2009; right of entry can only be exercised during working hours. If the employer requests, the official will also need to supply an ‘authority’ issued by the Western Australian Industrial Relations Registry (see Section 49L of the Industrial Relations Act 1979).

Rights on entry

A permit holder whilst on the premises may do the following:

• inspect any work, process or object relevant to the suspected contravention;
• interview any person about the suspected contravention, provided that:
  1. 1. they agree to be interviewed; and
     2. the permit holder is entitled to represent the industrial interests of that person
• require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly related to the suspected contravention and that:
  • 1. is kept on the premises
    2. is accessible from a computer that is kept on the premises.

Additionally, the permit holder must:

• enter only during working hours
• produce a permit on request
• comply with a reasonable occupational health and safety request.

Giving notice on an OHS contravention

If the official seeks to exercise a right to inspect or access employment records under the state or territory OHS law, then they must give written notice, specifying the reason, at least 24 hours before entering to exercise that right. If the purpose of the visit is to inspect machinery or a place on a site where there has been a suspected breach there is no requirement to give the 24 hours notice.

The official’s rights and responsibilities are also subject to any conditions that have been imposed on their permit by FWC. If there is any dispute over whether the request of the employer is reasonable, either party may make an application to FWC for an order to resolve the matter. FWC is empowered to make whatever orders it chooses.

Prohibitions

An employer must not:

• refuse or unduly delay a permit-holder’s entry to the premises, if they are entitled to enter the premises
• refuse or fail to comply with a requirement to allow a permit holder to inspect and make copies of the documents in relation to a suspected contravention
• from the time written notice is given, intentionally hinder or obstruct a permit holder exercising their right to enter the premises to investigate a suspected contravention or hold discussions with employees or to exercise their rights to enter the premises in accordance with State or territory OHS laws.

Unions must not:

• misrepresent themselves by intentionally giving the impression that they are authorised to do things that are not stipulated in the Act
• hinder or obstruct any person, or otherwise act in an improper manner
• enter any part of the premises of the employer that is used for residential purposes.

An example of hindrance would be if an employer destroys, conceals or manufactures evidence relating to the suspected breach after receipt of the written notice. The failure of the parties to agree on a place to inspect documents that are not available in the workplace does not constitute hindering or obstructing a permit-holder.

Disclosure of information

A person must not use or disclose information, or a document obtained in the investigation of a suspected contravention for a purpose that is not related to the investigation or rectifying the suspected contravention, unless:

• the person reasonably believes that the use or disclosure is necessary to lessen or prevent a serious and imminent threat to an individual’s life, health or safety or serious threat to public health/safety
• the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and discloses the information or document as a necessary part of an investigation of the matter
• the use or disclosure is required or authorised by or under law
• the person reasonably believes that the use or disclosure is reasonably necessary by, or on behalf of, an enforcement body.

 Fair Work Amendment Act 2013

As of January 1, 2014, further changes have been introduced to the right of entry provisions. These changes are outlined below.

Room or area for discussions

As discussed above in section 5.1, the right of employers to determine the location of the room or area for interviews or discussions has been removed. The permit holder and occupier of the premises must now come to an agreement on the particular room or area to be used. If no agreement is reached, the default location is the area where the relevant employees usually take their meal or other breaks.

Dispute regarding frequency of entry to hold discussions

The FWC can now deal with a dispute regarding the frequency with which a permit holder enters premises for the purpose of holding discussions. The FWC may make an order if it is satisfied that the frequency of entry by the permit holder would require an unreasonable diversion of the occupier’s critical resources.

Accommodation arrangements in remote areas

If accommodation is not reasonably available in a remote area, occupiers are required to enter into accommodation arrangements with permit holders, unless the occupier provides the accommodation. These arrangements must be entered into if:

• The permit holder requests the occupier to provide accommodation
• Providing accommodation would not cause the occupier undue inconvenience
• The request is made within a reasonable period before the accommodation is required; and
• The permit holder has been unable to enter into an accommodation arrangement with the occupier by consent.

The occupier must not charge the permit holder a fee for accommodation that is more than is necessary to cover the cost to the occupier of providing the accommodation. This fee is not intended to include incidental costs such as electricity costs. The FWC may deal with a dispute about the accommodation arrangements.

Transport arrangements in remote areas

The occupier may be required to enter into transport arrangements with the permit holder if the location they are seeking to enter is remote or not easily accessible, unless the occupier of the premises provides the transport. These arrangements must be entered into if:

• The permit holder requests the occupier to provide transport to the premises
• Providing transport would not cause the occupier undue inconvenience
• The request is made within a reasonable period before the transport is required; and
• The permit holder has been unable to enter into a transport arrangement with the occupier by consent.

The occupier must not charge the permit holder a fee for transport that is more than is necessary to cover the cost to the occupier of providing the transport. This fee is not intended to include incidental costs such as insurance premiums. The FWC may deal with a dispute about the transport arrangements.

Right of entry provisions covered by state legislation

Overlap with the Act

An official, who is entitled under one of the prescribed state or territory OHS laws to enter a workplace, must now also have a valid right of entry permit issued under the Fair Work Act 2009. They can only exercise the right during working hours.

The other area of interface between state and federal right of entry laws is in relation to state OSH laws which continue to regulate right of entry for OSH purposes.

Current legislation applies to entry under Western Australian OHS legislation as prescribed in Section 49I of the Industrial Relations Act 1979 that makes provision for the right of entry, but only to the extent to which those provisions provide for or relate to investigate a suspected breach of:

1. the Occupational Safety and Health Act 1984; and
2. the Mines and Safety Inspection Act 1994.

Need to know more?

Union right of entry provisions may be complex under both the Act and state legislation. Should you have any questions or are unsure which provisions will apply to your particular situation please contact the CCI Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].