Investigating a breach of a workplace law
A union official, who holds a valid federal right of entry permit, known as a permit holder, has the right to enter building sites and other premises to investigate a suspected breach of:
- the Fair Work Act 2009
- a term of a fair work instrument.
What must be satisfied to enter a site?
A permit holder can only exercise these rights on a specific site if all the following conditions are met:
- the suspected breach affects at least one member of that union
- the union is entitled to represent the industrial interests of that member
- the member works on that site
- the union official reasonably suspects that a breach has occurred or is occurring
- if the suspected contravention relates to a fair work instrument (which includes a modern award, or an enterprise agreement), that instrument must apply or have applied to the member.
What must a union official do before entering a site to investigate a breach of workplace law?
An entry notice must be given to the site occupier and any other affected employers at least 24 hours but not more than 14 days before the entry. A permit holder must also produce the right of entry notice and their entry permit on request by the site occupier upon entry to the site. A permit holder must also produce the right of entry notice and their entry permit to an affected employer when:
- inspecting any work, process or object relevant to the suspected breach
- interviewing any person about the suspected breach who agrees to the interview and who the permit holder is entitled to represent.
The Fair Work Commission can issue an exemption certificate from the right of entry requirements. However the exemption certificate must be given to the site occupier and the affected employer as soon as practicable after entry.
What must be included in the entry notice?
The entry notice must include:
- the site or premises to be entered
- the day of entry
- which union the permit holder belongs to
- the section of the Fair Work Act 2009 that authorises the entry
- details of the suspected breach
- a declaration by the permit holder that they are entitled to represent the industrial interests of an employee who performs work at the premises, whom the suspected breach relates to or who is affected by the suspected breach
- specify the provision of the union’s rule that entitles the union to represent the industrial interests of the member.
NOTE: Forms relating to entry to premises such as an entry permit, entry notice or exemption certificates are available on the Fair Work Commission website.
Need more information?
For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au.