Union Right of Entry

The following information sheet will provide guidance as to obligations of permit holders who seek entry to a workplace. Also attached in an easy to use checklist of things to consider if a permit holder validly enters your site.

When can a union official enter a workplace?

A union official who has a valid right of entry permit (a permit holder) may enter your workplace and exercise rights whilst in the workplace for the purpose of investigating a contravention of the FW Act, or an industrial instrument for example, an enterprise agreement. The permit holder must have reasonable grounds for suspecting a contravention has occurred or is occurring.

The permit holder may only enter the workplace when: 

• the suspected contravention relates to or affects a least one member of their union;
• the union is entitled to represent the industrial interests of that member;
• that member performs work on the premises; and unless an exemption certificate is issued by the Fair Work Commission (Commission), an entry notice is given to the occupier of the premises and any affected employer, during working hours at least 24 hours, but no more than 14 days before the entry.

When a permit holder seeks access to the workplace and/or access to documents, you have right to request a copy of the officials entry permit. If the official fails to produce the requested permit, they are not entitled to remain at the workplace.

In addition to rights of entry under the FW Act, permit holders generally have a right of entry to investigate suspected breaches of Work, Health and Safety Laws. These rights vary from State to State; please speak with your HIA Workplace Adviser for further information. 

Entry permits

The Commission can only issue an entry permit to an official of an organisation if they are satisfied that they are a fit and proper person. A permit may be issued with certain conditions, which limits the use of the entry permit.  Further, the Commission can revoke, suspend or impose conditions on an entry permit.

An entry permit must include the following:

• the permit holder’s full name;
• the name of the organisation (name of union) that applied for the entry permit;
• an expiry date for the entry permit;
• a recent photograph of the permit holder-  it must show the holder’s full face; and
• the permit holder’s signature.

Entry notice

An entry notice must be provided to you before entry (unless an exemption obtained) and must contain the following information:

• detail the premises /workplace to be entered;
• the date of entry;
• the name of the organisation permit holder belongs to;
• the section of the FW Act that authorises the entry;
• reasons for entry – if entry is to investigate a suspected breach, the entry notice needs to detail the suspected allegation;
• a declaration by the permit holder that they are entitled to represent the industrial interests of an employee who performs work at the premises; and
• provision of the union’s rules which entitles the organisation to represent the member.

An entry notice must also include an ‘information box’, detailing: 

• the rules the permit holder, occupier of the premises, and affected employer must follow when rights of entry are being exercised;
• consequences for failing to comply with a right of entry related obligation; and
• contact details for the appropriate regulator in the event of any queries.

Right of Entry to investigate suspected breaches

Whilst on the premises to investigate suspected breaches, a permit holder can:

• inspect work, processes or objects; and
• interview those who have agreed to be interview, whose industrial interests the union is entitled to represent.

The investigation also gives the permit holder the ability to inspect and copy any documents in relation to the suspected breach, which may trigger the right to investigate non-member employment records. Pay records can only be obtained with the consent of the non-member or an order of the Commission. Any information obtained under these circumstances should be treated in accordance with the Privacy Act 1988.

Right of entry to hold discussions

Unions may also enter a workplace to have discussions with employees regardless of whether there is union member at the workplace. Discussions may only occur during non-working time such as meal times and other breaks.

You and a permit holder must agree on the location for these discussions. Where agreement cannot be reached, the permit holder can carry out these discussions in a lunchroom or another area where breaks are ordinarily taken.

The Commission can hear disputes in relation to the frequency with which a particular union/organisation is requesting entry to hold discussions.

What to do if you receive an entry notice?

Remember a permit holder cannot enter the workplace without first giving notice. 

If you receive a notice of entry, you should call the HIA. We can discuss whether the notice is valid, and where possible give practical guidance in responding to the request for entry.

To find out more, contact HIA InfoCentre

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