Lawful entry by union officials
A union official can lawfully enter a site or premises in order to:
- investigate a suspected breach of the FW Act or a fair work instrument (which includes a modern award or enterprise agreement) that relates to, or affects, a member of the permit holder’s organisation that they are entitled to represent
- hold discussions with eligible employees
- exercise a right to enter that is conferred on them under a state or territory OHS law.
Right of entry under the Code
The Code imposes obligations on code covered entities in relation to right of entry.
Code covered entities must, in relation to premises where building work is performed, comply with all applicable right of entry laws. This means that code covered entities must not breach a right of entry law, for example, by refusing or unduly delaying entry onto a premises by a permit holder, who is entitled to enter.
The Code also requires code covered entities to, so far as is reasonably practicable, ensure that:
- entry by an officer of a building association to premises where building work is performed, must be for a purpose for which a right of entry could be exercised under the FW Act or a relevant state or territory OHS law; and
- when an officer of a building association seeks to enter premises, the officer must strictly comply with all legislative requirements in the FW Act or OHS law, including permit and notice requirements.
Example: a contractor could permit entry for the purpose of holding discussions with workers where the permit holder provides the requisite notice and complies with all requirements in the FW Act. However, inviting an officer of a building association to enter the site other than as could be permitted by the right of entry requirements would breach the Code.
These obligations apply to code covered entities on both Commonwealth funded projects and private projects entered into after becoming a code covered entity.
What is ‘reasonably practicable’?
What is ‘reasonably practicable’ will depend on the circumstances of the entry. However, the Explanatory Statement to the Code provides some guidance and states that reasonably practicable actions may include:
- issuing policies and instructions to workers and subcontractors about when union officials are permitted to enter a building site
- ensuring that the site is secure from trespassers
- having appropriate processes in place and taking appropriate action in response to unauthorised access
- requiring unauthorised entrants to leave immediately
- calling police if a trespasser enters without providing notice and refuses to leave when asked and required to do so.