Union officials 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 requires that they do the following before entering a site:
- hold a valid federal permit
- provide at least 24 hours’ written notice of entry (unless the entry is to exercise a right conferred by a state or territory occupational health and safety law (OHS law)).
Reasons for union officials to enter your site
A union official who is a federal permit holder may enter your site during working hours for the following reasons:
- To investigate suspected contraventions of the FW Act, or a term of a fair work instrument, provided that:
- the official reasonably suspects that a contravention has occurred or is occurring
- the suspected contravention relates to, or affects, a member of the official’s union who performs work on the site
- the official’s union is entitled to represent the member’s industrial interests
- (if the suspected contravention relates to a fair work instrument) - the instrument applies or has applied to the member.
- To hold discussions during meal times or other breaks with employees:
- who perform work on the site
- whose industrial interests the official’s union is entitled to represent
- who wish to participate in those discussions.
- To exercise a right to enter premises that is conferred by a state or territory OHS law.
Rights of entry under state or territory OHS laws
The FW Act recognises the existence of right of entry provisions under state and territory OHS laws. Where an official is going to enter a site or premises under a right conferred by a state or territory OHS law, the official must still hold a federal permit and comply with relevant provisions of the FW Act, as well as any applicable requirements in the relevant state or territory OHS law.
Note that the FW Act doesn’t require 24 hours’ written notice of entry in circumstances where the official is going to enter under a right under a state or territory OHS law, except where the official is seeking to exercise a right to inspect or otherwise access an employee record.
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
- day of entry
- union to which the permit holder belongs
- section of the FW Act that authorises the entry.
Also, when the entry is to investigate a suspected contravention the entry notice must:
- specify the details 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 who the suspected contravention relates to or who 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.
You have the right to refuse entry or ask the official to leave the site if they don’t provide an entry notice that meets these requirements (unless they are entering to exercise a state or territory OHS right) or don’t produce a federal permit/entry notice when asked on site.
If these requirements are met, you can’t refuse or unduly delay entry.
Rights and obligations when a union official is on your site
Union officials have specific rights once they are lawfully on site. When investigating suspected contraventions of the Fair Work Act or a fair work instrument, 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 the official’s union is entitled to represent
- inspect and make copies of records or documents that are directly relevant to the suspected contravention (except for ‘non-member records or documents’ as defined in the FW Act) and that are kept on the premises or are accessible on a computer kept on the premises
- inspect and make copies of any non-member record or document that is directly relevant to the suspected contravention and that is kept on the premises or is accessible on a computer kept on the premises, provided the non-member has consented in writing or an order permitting inspection and copying has been made by the Fair Work Commission (FWC)
- serve a notice on the affected employer while on the premises or within five days after the entry, requiring access to records or documents that are directly relevant to the suspected contravention at a later date (except for ‘non-member records or documents’ as defined in the FW Act)
- exercise these rights without being intentionally hindered or obstructed.
Union officials also have specific obligations while on site. They must:
- produce on request their federal permit and, if required, a copy of the relevant entry notice to the occupier of the site
- conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises. If they have been unable to reach agreement, the union official may conduct interviews or hold discussions in any room or area ordinarily used and provided by the occupier for the purpose of taking breaks
- only exercise their rights of entry during working hours (unless the entry is to exercise a state or territory OHS right)
- only enter premises on a day specified in the entry notice or exemption certificate
- not contravene a condition imposed on their federal permit
- not enter any part of premises that is used mainly for residential purposes
- comply with the occupier’s reasonable requests about:
- the particular route they should take to access a room or area for the purpose of conducting an interview or holding a discussion
- OHS requirements that apply to the premises
- not use or disclose any information or document obtained when investigating a suspected breach for an unrelated purpose, unless authorised to do so by the FW Act
- when entering to hold discussions, not hold those discussions with employees other than during breaks
- not misrepresent the authority granted to them (or to another person) under the right of entry provisions in the FW Act
- not intentionally hinder or obstruct any person or act in an improper manner in exercising, or seeking to exercise, their entry rights.
What to do if a union official does not have a right to enter and is on your site without your consent
- Make it clear the union official does not have your consent to enter on site and ask the official to leave.
- Contact us on the ABCC Hotline for assistance regarding right of entry issues on 1800 003 338.
- Your local state police may also be able to provide assistance if a trespass has occurred.
Need more information?
Contact us directly for more information or advice about your individual circumstances:
- Hotline: 1800 003 338
- Email: enquiry [at] abcc.gov.au
- Website: www.abcc.gov.au