What is right of entry?

What do right of entry rules cover?

Union right of entry rules are specified under the Fair Work Act (FW Act) and the Work Health and Safety Act.

Rules under the Fair Work Act 2009

The FW Act outlines the rules regarding right of entry as follows:

• Union officials have the right to organize discussions in the workplace with employees in the textile, clothing, and footwear industries (TCF workers) and investigate suspected breaches of workplace laws.
• Employers have the right to run their business without undue interference.

Rules under the Work Health and Safety Act 2011

Some Commonwealth (Cth), State, and Territory work health and safety laws allow union officials to enter the workplace under the following conditions: 

• The union official must hold a valid entry permit issued according to the Fair Work Act (and meet other entry requirements) unless they go to a workplace to assist Safe Work Australia (WHS) representatives on request.
• The union official must hold a valid WHS entry permit.
• The union official must provide a lawful WHS entry notice to the affected employer.

Who is allowed to enter a workplace?

Union officials and Fair Work inspectors are permitted to enter a workplace under specific conditions. 

A union officer must be elected by the registered union under the FW Act (Registered Organisations) 2009 to enter a workplace lawfully. They must also: 

• Have a valid and current Fair Work entry permit
• Provide a Fair Work entry notice to the employer or the workplace occupier

Fair Work inspectors can enter business premises for compliance purposes if: 

• The Fair Work Act applies to that workplace
• Documents required for compliance are located on the premises (either in hard copy or electronic form)

Overall, permit holders are allowed to:

• Organize meetings with employees and hold discussion
• Investigate potential breaches of enterprise agreements and other Fair Work instruments
• Perform an investigation if they suspect a violation of workplace laws

Obtaining right of entry permits

Prior to granting an entry permit, the Commission examines whether a proposed union official or employee of a union is a “fit and proper person” to hold an entry license.

The proposed individual must attend and complete training regarding their rights and responsibilities as a permit holder. Once they receive a permit, they must carry it whenever they enter a workplace and show it to the occupier or employer upon request. 

The entry license includes:

• The permit holder’s first and last name, photo, and signature
• The permit holder’s union name
• The permit number and expiry date
• A QR code that can be used to check whether the permit is on the Commission’s list and valid

The Fair Work Commission (FWC) has the right to add specific conditions to each entry permit and suspend or revoke it. 

Rules to hold discussions

Before entering a workplace to hold discussions with employees who are members of the union—or are eligible to be members and are willing to participate in discussions—entry permit holders must send a written notice, also known as a notice of entry, to their employer. The notice must be sent during working hours at least 24 hours prior to the visit but not more than 14 business days in advance. 

The notice includes information regarding:

• The premises the union official wants to visit
• The planned day of entry
• The permit holder’s union
• The section of the FW Act authorising the entry
• The union official’s declaration outlining their rights to represent and protect workers’ industrial interests in the workplace

When an official enters the workplace, they can organize discussions with workers during breaks. These discussions can be held in rooms designated by the employer (except premises used for residential purposes). Union officials must comply with an employer's request to take a particular route to reach these meeting areas. Alternatively, the conversations can occur in a room where employees have lunch breaks.

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Investigating the suspected contravention of workplace laws

A union official can perform an investigation of a potential breach of workplace law if they:

• Are licensed according to the Fair Work Act
• Have firm reason to suspect that a violation of the Fair Work Act or instrument has occurred 
• Suspect that at least one employee is affected by a potential breach of the law
• Are authorised to represent workers employed in that workplace

Prior to entering a workplace to investigate a suspected breach of a law, the union representative must send a written notice to a premises occupier or an affected employer informing them about their intention to visit the workplace. The notice of entry must be sent at least 24 hours before the visit but no more than 14 business days in advance. Also, the notice must be sent during working hours, and should include: 

• Information about the workplace the union officer intends to visit
• The planned day of entry
• The official’s union
• Details of the suspected breach
• The section in the FW Act authorising the entry
• The union official’s declaration outlining their rights to protect workers’ industrial entitlements in the workplace

Once they are on the premises, the union official can:

• Investigate any work and processes relevant to the suspected breach
• Require an affected employer or premises occupier to deliver relevant documents (kept on the premises or on a computer kept on the premises), and review and make copies (if necessary)
• Interview workers from the company, if they are willing to discuss the potential violation of the law 

When less notice is allowed

A union official can provide less than 24 hours’ notice of entry if the FW Commission grants an exemption (known as an exemption certificate). The Commission must issue an exemption certificate if the union shows strong arguments that early notice could harm workers or disrupt the investigation. For instance, if: 

• Giving early notice may result in evidence being hidden, changed, or destroyed
• Early notice could provoke additional contraventions, including underpayment of the union member working at that workplace

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Failure to comply with right of entry provisions

Anyone—a worker, employer, or union official—who suspects that a violation of the right of entry provisions occurred should contact the FW Commission for legal advice. Alongside the Fair Work Ombudsman investigating right-of-entry complaints, the FW Commission is authorized to handle right-of-entry disputes.

What happens when union officials fail to follow right of entry rules

When six officials from the Construction, Forestry, Maritime, Mining, and Energy Union (CFMEU) failed to adhere to right of entry procedure requirements in 2018, the union was forced to pay a fine imposed by the Federal Court of Australia. 

The Australian Federal Court ruled that these six CFMEU officials violated section 500 of the FW Act. What happened? When officials entered the Logan and Gateway Motorways construction site, they didn’t show entry permits upon the site occupier’s request. They also refused to leave the property after being asked to do so. Their misconduct resulted in $275,000 in penalties for a total of 11 contraventions.

FAQ about right of entry

What are the employer obligations under the right of entry provisions?

Employers must allow a licensed union official access to company records when the request is reasonable and relevant to a suspected workplace law breach or modern award provision. Employers must also provide adequate space for discussions between union officials and employees, ensuring minimal disruption of workplace operations. 

Can employers refuse the entry of permit holders?

No. Employers are not allowed to refuse entry if a union official meets all legal requirements, such as holding a valid permit and providing proper notice. However, the official must also comply with right of entry provisions to avoid legal issues and losing their permit.  

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