Lawful entry by union officials

A union official can apply to 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)
  • hold discussions with eligible employees
  • exercise a right to enter that is conferred on them under a state or territory OHS law.

Detailed descriptions of the conditions for lawful entry are outlined below.

Investigating a breach of the FW Act or a fair work instrument

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 FW Act
  • a term of a Fair Work instrument which applies or has applied to a member of the official's union.

When may a union official enter a site?

A permit holder only has the right to enter a site to investigate a breach of workplace law if all the following conditions are met:

  • The suspected breach relates to or 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 there has been a breach.

What must a union official do before they enter a site?

The permit holder must provide an entry notice to the site occupier and any other affected employers at least 24 hours but not more than 14 days before the entry.

The permit holder must also produce the entry notice when entering the site if the occupier requests.

A permit holder must also produce their entry notice and entry permit to an affected employer when they require an occupier or affected employer to allow them to inspect or make copies of a record or document.

The FWC can issue an exemption certificate which exempts an official from the requirement to provide prior notice of their entry—but the exemption certificate must be given to the site occupier and the affected employer as soon as possible after entry.

While on site the permit holder must comply with any reasonable OHS requirement made by the occupier.

What must be included in the entry notice?

The entry notice must include:

  • the address or location of the site or premises to be entered
  • the day of entry
  • which union the permit holder belongs to
  • the section of the FW Act 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
  • the provision of the union's rule that entitles the union to represent the industrial interests of the member.

Where to access relevant forms for entry

Forms relating to entry to premises such as an entry permit, entry notice or exemption certificates are available on the Fair Work Commission website.

Holding discussions with employees

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 hold discussions with employees. The employees must be members of the union or be eligible to be members and wish to participate in those discussions during meal/break times.

Which employees can a union official hold discussions with?

A permit holder can hold discussions with employees who meet all of the following criteria:

  • work on that site
  • are entitled to be represented by the permit holder's union
  • wish to participate in discussions.

What must a union official do before they enter a site?

The permit holder must give the entry notice to the occupier of the site at least 24 hours but not more than 14 days before the entry.

The permit holder must also produce the entry notice when entering the site if the occupier requests.

While on site the permit holder must comply with any reasonable OHS requirement made by the occupier.

What must be included in the entry notice?

The entry notice must include:

  • the address or location of the site or premises to be entered
  • the day of entry
  • which union the union official belongs to
  • the section of the FW Actthat authorises entry
  • a declaration by the union official that they are entitled to represent the industrial interests of an employee who performs work on the site
  • the provision of the union's rules that entitles the union to represent the employee.

Where to access relevant forms for entry

Forms relating to entry to premises such as an entry permit, entry notice or exemption certificates are available on the Fair Work Commission website.

Exercising a state or territory OHS right

A union official may have a right to enter premises for an OHS purpose under state or territory OHS legislation. In order to exercise such a state or territory OHS right, union officials must ensure they meet requirements under both:

  • relevant state or territory OHS legislation
  • the FW Act.

An official must not exercise a state or territory OHS right unless the official is a federal permit holder.

What must a union official do before entering a site to use a state or territory OHS right?

Upon request, a permit holder must show the occupier of the premises or an affected employer their federal permit.

Further, a permit holder:

  • may only exercise a state or territory OHS right during working hours
  • must comply with any reasonable on-site OHS practices required by the occupier when exercising a state or territory OHS right.

Can the union official inspect or access employee records?

A permit holder must give written notice if they wish to exercise a state or territory OHS right to inspect or access an employee record.

The written notice must be provided to:

  • the occupier of the premises
  • any affected employer.

The written notice must:

  • set out the permit holder's intention to exercise the right and reasons for doing so
  • be delivered at least 24 hours before exercising the right.

Example: A union official's responsibility on site 

Amaira is a union official. She suspects that an employer who is operating as a subcontractor on a building site isn't allowing union members to take the rostered breaks they're entitled to under their award.

Amaira holds a valid right of entry permit and she decides to enter the site to investigate the suspected contravention. At least 48 hours before her planned entry time, she prepares an entry notice and emails it to the head contractor (the occupier of the premises). She also emails the notice to the employer in question.

While Amaira is on site, a union member approaches her and says he is being underpaid. The union member works for a different subcontractor on the site (not the subcontractor Amaira is investigating that day).

What Amaira should do

Amaira should not investigate the alleged underpayment during this visit because she hasn't provided the required notice of entry with respect to this suspected breach to both the occupier or the employer of the union member who approached her.

To enter at a later date and investigate the second suspected contravention, she would need to provide a separate entry notice that complies with the requirements of the FW Act to the occupier and to the employer of the union member who approached her.

OHS in your state

There is a separate OHS body for each state and territory:

State Body Contact number
Australian Capital Territory WorkSafe ACT (02) 6207 3000
New South Wales SafeWork NSW 13 10 50
Northern Territory NT WorkSafe 1800 019 115
Queensland Workplace Health and Safety 1300 362 128
South Australia SafeWork SA 1300 365 255
Tasmania WorkSafe Tas 1300 366 322
Victoria WorkSafe Vic (03) 9641 1444 or 1800 136 089 (toll free)
Western Australia WorkSafe WA 1300 307 877

Example: An employer's responsibility on site

Marek is a head contractor who is the occupier of a commercial building site. Marek receives an entry notice from two union officials. The notice states that the officials wish to enter the site in two days' time to hold discussions with members of their union during a meal break. 

After the union officials have entered the site,  a site representative asks them to hold their discussions in a particular area of the site.

The union officials inspect the area and say that it isn't suitable for holding discussions with employees. They say they wish to hold their discussions in the lunch-room during the lunch break. 

If Marek and the union officials cannot agree on the room or area of the premises where the discussions should be held, then the union official is authorised under the Fair Work Act to hold discussions in any room or area that is normally used to have a meal or to take a break.