A recent decision by a Full Bench of the Australian Industrial Relations Commission (AIRC) has provided useful guidance about what needs to be included in an entry notice.
The 8 February 2008 decision clarifies how much information should be contained in a notice where a permit holder seeks to enter a site to investigate a suspected breach of an agreement or an award. The decision also defines ‘reasonable grounds’ for suspecting breaches.
The decision makes it clear that:
- a permit holder’s notice should include some details of the suspected breach;
- a permit holder must have ‘reasonable grounds’ for suspecting a breach;
- an employer is entitled to understand the scope of the investigation; and
- in the event of a dispute before the AIRC, the permit holder must establish the existence of ‘reasonable grounds.’
The Full Bench commented:
"An employer might reasonably request further particulars of suspected breach in circumstances where there is some ambiguity or uncertainty about the particulars that have been provided in the Entry Notice…In our view the particulars provided under s.749 (2) (c) should at least disclose the nature of the breach and give the constitutive facts which are said to give rise to it so that the employer understands the scope of the investigation."
In regard to the important ‘reasonable grounds’, issue the Full Bench stated:
"
When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person…"
Permit holders are encouraged to include necessary details in entry notices to improve communication when attempting to gain access to a site. Contractors should also be aware that they may ask for further detail if they are unclear.
Improved interaction and rapport between occupiers and permit holders is a likely outcome of adherence to the advice contained in this decision.
The ABCC has a series of right of entry fact sheets, along with a pocket size 3-step guide to right of entry. Copies can be obtained by going to the ABCC website, sending an email to enquiry@abcc.gov.au or calling 1300 003 338.
Related documents:
AIRC decision
For more detailed information and advice visit abcc.gov.au or contact the ABCC hotline on 1800 003 338.