Rights of a union official while on site
Union officials with a valid federal right of entry permit may enter premises to investigate suspected breaches of the FW Act or Fair Work instrument that relates to or affects a member of the union they are representing.
When union officials are investigating suspected breaches, they have the right to:
- inspect any work, process or object relevant to a suspected breach
- interview any person about a suspected breach, as long as that person agrees to be interviewed and the union is entitled to represent them
- inspect and make copies of records that are directly relevant to the suspected breach and kept on the site or accessible on a computer kept on the site (other than documents which are 'non-member records')
- inspect and make copies of any record of a person who is not a union member that is directly relevant to the suspected breach and kept on site or on a computer accessible on site with either the non-member’s consent in writing or an order made by the FWC
- serve a notice on the employer to produce records or documents at a later date
- use the employee’s regular meal room to hold discussions or interviews
- exercise these rights without being hindered or obstructed.
A non-member record is a record or document that relates to the employment of a person who is not a member of the permit holder’s organisation and does not substantially relate to the employment of a person who is a member of the permit holder’s union.
Responsibilities of a union official while on site
While on site, union officials should comply with the site occupier’s reasonable requests:
- to comply with any applicable OHS requirement
- about the route they should take to access rooms or areas in which interviews or discussions with employees are to be held under section 492 of the FW Act.
Union officials must also produce their authority documents for inspection:
- when requested to do so by the occupier of the premises or an affected employer
- when inspecting or requesting records.
While on-site permit holders should not:
- hold any discussions with employees at times other than during meal times or breaks
- misrepresent the authority granted to the union official under the FW Act
- enter any part of a premises that is mainly used for residential purposes
- intentionally hinder or obstruct any person or act in an improper manner.
A person must 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.
Responsibilities of employers for site inspections
An employer, site occupier or other person must not:
- refuse or unduly delay entry to a permit holder with the right to enter the site
- refuse or fail to comply with a permit holder’s lawful request to produce or provide access to records or documents
- intentionally hinder or obstruct a permit holder who is exercising their right of to enter a site or premises
- intentionally or recklessly give an impression that something they’re doing (or something someone else is doing) is authorised by the right of entry provisions of the FW Act when it is not.
Example: Rights and responsibilities when on site
Max is a union official. He holds a right of entry permit and decides to enter a building site to hold discussions with members of the union. Max does not provide at least 24 hours’ notice of entry.
Wei, the site representative, meets Max at the site entrance and asks to see Max’s entry permit and a copy of the required entry notice. Max refuses and tells Wei that he is coming on site whether he likes it or not.
After entering the site, Max starts talking to a number of workers who are in the middle of a concrete pour. The rostered break time is not due for another hour, but work stops while the discussion takes place.
Wei approaches Max and requests that he leave the site because he is disrupting work and has not provided the required entry notice. Max swears at Wei and tells him he will leave the site when he is ready.
What did Max do wrong?
Union officials must not hinder or obstruct any person or act in an improper manner while exercising or seeking to exercise entry rights under the Fair Work Act.
The union official in this scenario:
- did not provide at least 24 hours’ notice prior to entry
- did not provide an entry notice
- did not produce an entry permit for inspection when requested to do so
- spoke to workers during rostered working hours
- stopped building work being performed
- used offensive language towards the site representative
- refused to comply with the site representative’s request to leave.
Wei should contact the ABCC for advice.