A union official who wishes to exercise the right to enter a workplace must hold a federal right of entry permit and comply with the provisions in the Fair Work Act 2009.
Before you enter a site
As a union official, you do not have an automatic right to enter workplaces. The Fair Work Act 2009 (FW Act) provides permit holders with a right to enter sites for particular purposes and sets out the requirements you must comply with when on a site.
Before entering a site, you must:
- hold a valid federal permit, and
- provide at least 24 hours written notice of entry unless entry is under an occupational health and safety (OHS) law.*
* The FW Act does not require 24 hours written notice if entry is under an OHS law, except to inspect employment records. Where entry is under an OHS law, you must hold a federal permit and comply with the right of entry provisions in the FW Act. In addition you must comply with requirements in the relevant state or territory OHS law.
Reasons you may enter a site
If you are a federal permit holder you may enter a site during working hours to:
- investigate a suspected contravention of the FW Act, or a term of a fair work instrument, provided that:
- you reasonably suspect that a contravention has occurred, and
- the suspected contravention relates to, or affects, a member of your union who performs work on the site, and
- your union is entitled to represent the member’s industrial interests.
On request, your federal permit and a copy of the notice of entry must be shown to the occupier of the site or an affected employer.
- hold discussions during meal times or other breaks with employees who:
- perform work on the site, and
- whose industrial interests your union is entitled to represent, and
- who wish to participate in those discussions.
On request, your federal permit and a copy of the notice of entry must be shown to the occupier of the premises.
- perform inspections and other functions under an OHS law of a state or territory.
On request, your federal permit must be shown to the occupier of the site or an affected employer.
Entry notice requirements
The FW Act details information that must be provided in an entry notice. All entry notices must specify:
- the site to be entered
- the day of entry
- the union the permit holder belongs to
- the section of the FW Act that authorises the entry.
Additionally, when the entry is to investigate a suspected contravention the entry notice must:
- specify the particulars of the suspected contravention
- contain a declaration by the permit holder that the union is entitled to represent the industrial interests of a union member who performs work on the site and is affected by the suspected contravention
- specify the provision of the union’s rules that entitles the union to represent the member.
- When the entry is to hold discussions with employees, the entry notice must:
- contain a declaration by the permit holder that the union is entitled to represent the industrial interests of an employee who performs work on the site
- specify the provision of the union’s rules that entitles the union to represent the employee.
If you do not meet these requirements or produce your federal permit/entry notice when required, you do not have the right to enter the site.
If these requirements are met, entry must not be refused or unduly delayed.
Your rights and obligations when you are on site
As a union official you have specific rights once you are lawfully on site. When investigating suspected contraventions you are entitled to:
- inspect any work, process or object relevant to the suspected contravention
- interview any person about the suspected contravention who agrees to be interviewed and whose industrial interests your union is entitled to represent
- inspect and make copies of records of your members that are directly relevant to the suspected contravention and that are kept on the site or are accessible on a computer kept on the site
- inspect and make copies of any record of a non-union member that is directly relevant to the suspected contravention and that is kept on the site or accessible on a computer provided the non-member has consented in writing or an order has been made by Fair Work Australia
- serve a notice on the affected employer requiring the production of records of your members at a later date
- request a room to hold discussions or interviews in. Where possible, the employer should provide a room that is suitable.
- exercise these rights without being hindered or obstructed.
You also have specific obligations while on site. You must:
- comply with the employer’s reasonable requests about:
- the rooms or areas you may use on the site for holding discussions or interviews
- the route you should take to access particular rooms or areas
- OHS
- not use or disclose any information or document obtained when investigating a suspected contravention for an unrelated purpose, unless authorised to do so by the FW Act
- not hold discussions with employees other than at meal times or other breaks
- not misrepresent the authority granted to you under the FW Act
- not intentionally hinder or obstruct any person or act in an improper manner in exercising, or seeking to exercise, your rights.
What to do if you have been refused or delayed lawful entry onto a site
Contact the ABCC hotline for assistance regarding right of entry issues on
1800 003 338.