The Fair Work Act 2009 (FW Act) provides federal right of entry permit holders with a right to enter sites for particular purposes and sets out the requirements you must comply with when on a site.
What must a union official do before entering a building site?
Before entering a site, a union official 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 a union official may enter a site
There are three main reasons a union official would enter a building site. A union official who is a federal permit holder may enter your site during working hours to:
1. investigate a suspected contravention of the FW Act, or a term of a Fair Work instrument, provided that:
- the official reasonably suspects that a contravention has occurred, and
- the suspected contravention relates to, or affects, a member of the official’s union who performs work on the site, and
- the official’s union is entitled to represent the member’s industrial interests.
On request, the federal permit and a copy of the entry notice must be shown by the official to the occupier of the site or an affected employer.
2. hold discussions during meal times or other breaks with employees who:
- perform work on the site, and
- whose industrial interests the official’s union is entitled to represent, and
- who wish to participate in those discussions.
On request, the federal permit and a copy of the entry notice must be shown by the official to the occupier of the site.
3. perform inspections and other functions under an OHS law of a state or territory.
On request, the federal permit must be shown by the official to the occupier of the site or an affected employer.
What must an entry notice include?
The FW Act states that 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
- contain a declaration 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 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.
Rights and obligations when a union official is on site
Union officials have specific rights once they are lawfully on site. When investigating suspected contraventions, an official is 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 their union is entitled to represent
- inspect and make copies of records of union 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 union members at a later date
- request a room to hold discussions or interviews in. Employers should consider their request and, where possible provide a room that is suitable
- exercise these rights without being hindered or obstructed.
Union officials also have specific obligations while on site. They must:
- comply with the employer’s reasonable requests about:
- the rooms or areas they may use on the site for holding discussions or interviews
- the route they 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 them under the FW Act
- not intentionally hinder or obstruct any person or act in an improper manner in exercising, or seeking to exercise, their rights.
When should you contact the ABCC?
- Union officials – if you meet the above requirements, entry must not be refused or delayed. The ABCC can provide assistance 1800 003 338.
Site owners - If a union official does not meet these requirements or fails to produce a federal permit or entry notice when required, you have the right to refuse entry. The ABCC can provide assistance 1800 003 338.