Many businesses may be unaware of their legal rights and obligations when approached by a union official wishing to gain entry into the workplace. There is no automatic right of entry for union officials; however, if employers are not aware of their own rights in relation to unions’ right of entry, it is possible that entry may be granted where there is no legal obligation to do so.
TheFair Work Act 2009 (the ‘Federal Act’) contains many restrictions on union right of entry, including the need for an official to obtain a permit and to conduct themselves in an appropriate manner to keep that permit, give notice prior to entry and only use information they gather for the legitimate reasons they obtained it for.
When Approached by a Union Official Wishing to Gain Entry:
- Have you been notified in writing on the required form of the official’s visit at least 24 hours beforehand?
- Does the official have a valid reason for the visit?
- Have they provided you with a valid entry permit?
Reasons for Entry
Under the Federal Act, there are four valid reasons for requesting right of entry into a workplace:
- suspected breach of the Federal Act or an industrial instrument;
- general discussions;
- to exercise rights under occupational health and safety laws; or
- suspected breach specifically relating to textile, clothing and footwear outworkers.
Union officials wanting to enter on occupational health and safety grounds must refer back to applicable State legislation for right of entry provisions. In South Australia, the Occupational Health, Safety and Welfare Act 1986 does not have right of entry provisions; therefore, unions do not have right of entry for occupational health and safety purposes in South Australia.
In order for a union official to gain access to the premises of an employer covered by the Federal workplace relations system, a relevant entry permit is required, which Fair Work Australia may issue if it is satisfied that the union official is a ‘fit and proper person’ to hold a permit.
In determining whether a person is a fit and proper person, Fair Work Australia must consider a number of matters, including:
- whether the person has received appropriate training in the rights and responsibilities of a permit holder;
- whether the person has been convicted of an offence against a workplace relations law or a Federal, State or Territory law involving entry into premises, fraud or dishonesty, violence, or damage or destruction of property; and
- whether the person has had previous permits which have been revoked or suspended.
Generally, a permit is valid for up to three years.
Requirements for Entry
Before a union official (permit holder) can enter an employer’s premises, the permit holder must provide an entry notice in the required format determined by Fair Work Australia to inform the employer of the permit holder’s intention to enter the premises at least 24 hours and no more than 14 days before the intended entry. The permit holder can only enter the premises on the day specified in the entry permit.
An entry notice is required to include the following information:
- the premises proposed to be entered;
- the date of entry; and
- the permit holder’s organisation.
A phone call, email or letter is not a sufficient substitute for a written entry notice.
Entry notices relating to discussion purposes or to investigate a suspected breach of workplace relations laws must include the following additional information:
- the specific provision of the Act that authorises the entry; and
- a declaration that the permit holder’s organisation is entitled to represent the industrial interests of a member of the organisation to whom the breach relates to or affects and specify the organisation’s coverage that entitles the organisation to represent the member.
In addition, entry notices relating to investigating a suspected breach must include particulars of the suspected breach.
A permit holder must comply with the following requirements:
- produce an entry permit on the arrival of the premises;
- only enter the premises during working hours;
- comply with a reasonable request regarding occupational health and safety requirements;
- cannot enter any part of the premises used for residential purposes; and
- must comply with a reasonable request to use a particular room or particular part of the premises or take a particular path in reaching the room or area.
An Exemption Certificate issued by Fair Work Australia bypasses the need for a permit holder to provide an entry notice in advance of entering the premises. However, the exemption certificate must be produced at the time of entry. This will be granted where Fair Work Australia is satisfied that advance notice of entry may result in the destruction, concealment or alteration of relevant evidence.
Right of Entry in Enterprise Agreements
An enterprise agreement may provide for right of entry for other purposes than those specified in the Federal Act. For instance, an enterprise agreement may give a union the right to enter the workplace to attend induction meetings for new employees or to assist with dispute resolution.
How can Business SA Help?
For assistance on right of entry enquiries, call Business SA’s Telephone Advisory Service on 8300 0101.