Union Right of Entry

Unions have the right to enter workplaces in certain circumstances, provided they have an entry permit from the Fair Work Commission (FWC).

There are two types of permits:

• a Work Health and Safety (WHS) permit under the Work Health and Safety Act 2011 (WHS Act); and  
• a Fair Work entry permit under the Fair Work Act 2009 (the FW Act).

This resource provides guidance as to obligations of permit holders who seek entry to a workplace and provides an easy to use checklist of things to consider if a valid permit holder enters your site.  

Work Health and Safety entry permits

A union official may enter a workplace with a WHS permit if they:

• believe an employer is breaking the WHS Act and they want to investigate.  
• want to inspect documents that relate directly to the suspected contravention. 
• want to consult and advise workers. 

These rights vary from state to state. To find out more about your region, please speak with your HIA Contracts and Compliance Advisor for further information. 

Notice for entry under the WHS Act

A WHS permit holder may enter a workplace to inspect documents, make copies of documents or consult and advise workers. For these purposes, they must provide no less than 24 hours’ notice and not more than 14 days notice.

If there is a suspected contravention of the WHS Act, the permit holder must give written notice as soon as possible after entering the workplace. However, this does not apply if giving notice would either defeat the purpose of entry or cause an unreasonable delay if dealing with an urgent case.

What does a WHS entry notice look like?

A WHS entry notice may look different depending on the section of the WHS Act that authorises entry, however they will generally include the following details:

• Name of the WHS permit holder  
• Name of the union the WHS permit holder represents 
• The section of the WHS Act that authorises entry  
• Name and address of the workplace  
• The date of entry  
• Details of the suspected contravention (only for certain sections of the WHS Act)  
• Description of records or documents to be inspected (only relevant for certain sections of the WHS Act) 
• Declarations by the entry holder regarding the union and entry purpose.  

Right of entry in the workplace under the FW Act

Union officials, who are entitled to represent workers, have a right of entry into the workplace or business premises to:

• investigate suspected contraventions of the FW Act, modern awards or enterprise agreements; or  
• meet with employees. 

What is required for entry?

A union official must:

• have a valid right of entry permit from the FWC;  
• have a valid entry notice (or exemption certificate); and  
• meet other entry requirements.  

FWC entry permits

Before entering a workplace, union officials must obtain a permit from the FWC.  A permit may be issued with certain conditions which limit the use of the entry permit. Further, the FWC can revoke, suspend or impose conditions on an entry permit.

Who can hold a permit?

The FWC can only issue an entry permit to an elected officer of a union or an employee of a union if they are satisfied that they are a fit and proper person.

What does an entry permit look like?

An entry permit is the size of a driver’s licence and shows:

• 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. 

What is required for a valid entry notice?

An entry notice must contain the following information:

• detail the premises/workplace to be entered;  
• the date of entry;  
• the name of the organisation the permit holder belongs to;  
• reasons for entry, this means including the section of the FW Act that authorises the entry (i.e. to hold discussions, to investigate a suspected breach or details of the breach suspected.

The entry holder must declare:

• that they are entitled to represent the industrial interests of an employee who performs work at the premises;  
• who the suspected contravention relates to or who the suspected contravention affects; and  
• provision of the union’s rules which entitles the organisation to represent the member. 

What can a permit holder do?

A permit holder who is investigating a suspected contravention of the FW Act, modern award or agreement can only:

• inspect work, process or objects that are related to the suspected contravention;  
• interview a person in relation to the suspected contravention if they agree to the interview and the permit holder’s union is entitled to represent them; and  
• inspect and make copies of records relating to the suspected contravention; or  
• serve a notice on the employer to produce records at a later date.

The notice to hold discussions must specify the union rules which entitle the union to represent your employees. The union may discuss matters with your employees only during meal and rest breaks.

1. 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 interviewed, 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 FWC. Any information obtained under these circumstances should be treated in accordance with the Privacy Act 1988.

2. Right of entry to hold discussions

Unions may also enter a workplace to have discussions with employees regardless of whether there is a union member at the workplace. Discussions may only occur during non-working time such as mealtimes 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 FWC can hear disputes in relation to the frequency with which a particular union/organisation is requesting entry to hold discussions.

Notice of entry requirements

The permit holder must give written notice in writing during work hours at least 24 hours before their visit, but not more than 14 days before the visit.  

When is notice not required?

A union officer may give less notice if they have an exemption certificate. In that case, they must provide the exemption certificate when entering the premises or as soon as possible after. 

Exemption certificates – Right of entry without notice 

The Fair Work Commission (who issues the right of entry permits) may also provide permit holders with an exemption certificate which allows entry without notice in certain circumstances, including investigating a breach of the FW Act or a modern award or agreement. The permit holder must provide a copy of the exemption certificate either before, or as soon as possible after, the entry.

New exemption certificate – Right of entry without notice for underpayment of wages

From 1 July 2024, union officials who hold a valid entry permit can apply to the Commission for an exemption certificate if there is a suspected contravention that involves the underpayment of wages and notice of entry could result in evidence being destroyed.

This exemption certificate must be provided to any occupier or affected employer who is on the premises either before or as soon as practicable after entry and must specify:

• the premises being entered;  
• the union and permit holders permitted to enter;  
• the date(s) of entry; and  
• details of the suspected contravention.  

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. 

Union Right of Entry Checklist

To permit entry check the following

1. Entry permit - Does the union official hold a valid federal permit, and has this been provided on request?

a. Have you confirmed it is valid by searching the Find An Entry Permit Register?

2. Entry notice - Has the union official provided at least 24 hours’ written notice of entry? Is it in the correct form, specifying:

a. The attending union official’s full name; 
b. The address of the site to be entered; 
c. The proposed date of entry; 
d. The union to which the union official belongs; and 
e. The section of the Fair Work Act that authorises the entry?

3. If no notice has been provided, does the union official have an exemption certificate? If no, no entry is to be provided. 

4. If the entry is to investigate a suspected contravention, the entry notice must specify:

a. The details of the suspected contravention; 
b. A declaration by the union official that the union is entitled to represent the industrial interests of a union member who performs work on the site and who the suspected contravention relates to or who is affected by the suspected contravention; and 
c. The provision of the union’s rules that entitles the union to represent the member.

5. Does the union official reasonably suspect that a contravention has occurred on site, and do these contraventions relate to a member of the official’s union who works on site? 

6. If the entry is to hold discussion with employees, the entry notice must specify:

a. A declaration by the union official that the union is entitled to represent the industrial interests of an employee who performs work on the site; and 
b. The provision of the union’s rules that entitles the union to represent the employee.

While on site check the following

7. Is the union official conducting interviews or holding discussions in the rooms or areas of the premises agreed with the occupier of the premises?

8. Has the union official entered the premises on the day specified in the entry notice?

9. Ensure the union official does not enter any part of premises that is used mainly for residential purposes.

10. Has the union official complied with any reasonable requests about:

a. the particular route they should take to access a room or area for the purpose of conducting an interview or holding a discussion; 
b. OHS requirements that apply to the premises?