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Ask our specialist: Union right of entry – what can employers do?

Ask our specialist: Union right of entry – what can employers do? (Last Updated On: October 31, 2017)

A terrifying moment for any employer can be the knock on the door from a union official wanting access to the workplace. The most worrying aspect could be as simple as not knowing how to respond, especially with the rules and guidelines around what employers are to do and how the official is to conduct themselves.

Rights of the permit holder.

Under the Fair Work Act, provided the official wishing to enter the workplace has the correct permit issued by the Fair Work Commission (FWC), the permit holder can enter the workplace to investigate a breach of the Fair Work Act or a relevant instrument, such as a Modern Award or Agreement. However, to enter the workplace the permit holder must have reasonable suspicion that a breach has occurred; a member of the permit holder’s organisation must be impacted by the breach; the organisation must be entitled to represent that member; and that member must work at the premises. Further, generally speaking, 24 hours’ notice must be given before the entry.

In addition to entry under the above circumstances, a union official may also enter the workplace to hold discussions with employees that are (or are eligible to be) members of the union and that wish to participate in discussions. Further, health and safety legislation also provides for right of entry in specific circumstances not addressed in this article.

What must be on an entry notice?

The union official must provide an entry notice prior to entering the workplace which outlines:

  • The location of the workplace to be entered
  • Date of entry
  • The organisation the permit belongs to
  • The section of the Fair Work Act authorising the entry
  • A declaration by the permit holder outlining they are entitled to represent the employee
  • The section of the organisation’s rules allowing the official to represent the member

What can a permit holder do to investigate?

The permit holder can inspect any work, process, or item relevant to the suspected contravention. The permit holder may also interview anyone about the breach provided the person agrees to be interviewed and they are covered by the organisation of the permit holder.

When is a permit holder kicked out?

There are some things which can prompt a union official to be asked to leave a workplace. If the official fails to produce any document relating to their authority to inspect the workplace when requested, or fails to comply with reasonable requests around workplace health and safety, the official may be asked to leave the workplace.

A visit by a union can be an intimidating experience for an employer, and staff, but having a procedure in place and the confidence to handle the situation can make the experience much easier for all involved.

For advice on how to manage right of entry provisions in the workplace, call Employsure on 1300 651 415.

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