Union right of entry

New harmonised work health and safety (WHS) laws providing for the right of a union official to enter a workplace now apply in the Commonwealth and in all Australian states and territories except Victoria and Western Australia. (In Victoria, union right of entry is provided for in its pre-WHS legislation.)

 
Work health and safety laws, together with the Fair Work Act 2009, give union officials the right to enter workplaces in order to:
  • enquire into a suspected contravention of WHS laws
  • inspect employee records (held by the person conducting the business or undertaking – PCBU) or information held by another person
  • consult and advise workers.
The union representative must be in possession of a WHS entry permit, as well as an entry permit under the Fair Work Act, and must have completed the appropriate training.
 
The entry permit holder must only attempt to enter the workplace during its usual working house, must give notice of entry as required and must not enter any part of a workplace used only for residential purposes.
 
While at the workplace, the entry permit holder must produce their WHS entry permit and identification if requested. They must comply with any reasonable request of the PCBU, and must not intentionally or unreasonably delay, hinder or obstruct anyone or any work in process, or otherwise act in an improper manner.
 
If the entry permit holder is there to enquire into a suspected contravention, they may only visit the relevant part of the workplace.
 
The PCBU must not refuse or unduly delay a permit holder’s entry, without reasonable excuse. Likewise, the permit holder must not be hindered or obstructed in the exercise of their rights under WHS laws.
 
The following commentary refers to Part 7 – Workplace entry by WHS entry permit holders – of the model Work Health and Safety Act 2011
 

Giving notice


A WHS entry permit holder is not required to give prior notice when entering a workplace to inquire into a reasonably suspected contravention of the WHS Act. The permit holder may consult with relevant workers, warn people of a serious or imminent health and safety risk, inspect relevant work systems, etc and inspect and copy documents relating to the suspected contravention that are held by the person conducting the business or undertaking (PCBU) at that workplace. The permit holder must give notice of their entry and details about the suspected contravention to the PCBU as soon as is reasonably practicable, unless to do so would defeat the purpose of entry.
 
If a WHS entry permit holder wishes to inspect or take copies of employee records or information held by a person other than the PCBU, the entry permit holder must give 24 hours’ notice to the PCBU and the person from whom documents or records are sought. 
 
A WHS entry permit holder is also required to give at least 24 hours’ notice to the PCBU before entering a workplace to consult on WHS matters and provide advice on those matters to relevant workers.
 

Eligibility for a WHS entry permit


A WHS entry permit can be issued to an official of a union, on application to the WHS regulator, if that official:
  • has satisfactorily completed prescribed WHS training, and
  • holds, or will hold, a Fair Work Act entry permit or the relevant state or territory industrial law entry permit.
For commentary on Fair Work Act 2009 entry permits, see below.
 

Fair Work Act


An official of an organisation (eg a trade union, employer association or enterprise association) that is federally registered by the Fair Work Commission (FWC) must have a valid and current entry permit from the FWC to enter a workplace for purposes related to their role under the Fair Work Act. A right of entry permit under the Fair Work Act is also required to enter workplaces under WHS laws.
 
Entry under the Fair Work Act can be for one of three reasons:
  • to investigate a suspected contravention of the Fair Work Act or an applicable fair work instrument 
  • to hold discussions with employees who are members of the union or eligible to be members, and
  • to exercise a right under WHS law.
Required notice to gain entry
An official must give at least 24 hours’ written notice of the intention to enter (unless entry is under a WHS law). The notice must be given to the occupier and any ‘affected employer’, and must state when the official proposes to enter.

Conduct on premises
Where a union is conducting discussions with employees, it can only hold discussions with employees whose industrial interests they are entitled to represent. While on site the official must comply with the employer’s WHS requirements.

Suspected breach of Fair Work Act/workplace instrument
Where a union is entering to investigate a breach, it can only inspect work and interview employees for the purposes of investigating the breach, and generally can only view records of employees who are members of the union. Inspection must be at the employer’s premises or some other agreed location.

Access to records or documents
The official must give a written notice to the affected employer to produce records or documents within five days and the notice must allow 14 days for the employer to produce the records or documents.

Holding discussions
A permit holder may enter premises for the purpose of holding discussions with one or more employees:
  • who perform work on the premises; and
  • whose industrial interests the permit holder’s organisation is entitled to represent, and
  • who wish to participate in those discussions.
Further information

Further details on the right of entry and the powers of permit holders are available from WHS regulators on their websites, for example:

SafeWork NSW 
 
Authorised representatives of registered employee organisations also have the right to enter Victorian workplaces under that State’s OHS Act, provided they have a permit under the Fair Work Act. For more information see information provided by WorkSafe Victoria.
 
[Last updated 23 April 2018]