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Workplace Relations Alert

SURPRISE! The Who, What, When, Where, Why and How of Union Right of Entry

Whether you manage a highly unionised workplace, or only employ one individual who may be a union member, it is vital that you understand union entry rights. It is unlawful to prevent a union official from exercising legitimate entry rights. However, allowing union officials to enter premises when they have no right to do so can also be disruptive.

In this Alert we outline the principles of union entry rights under the Fair Work Act 2009 (Cth).

WHO can enter a workplace?

A union official can enter a workplace and exercise entry rights under the Act if they have a valid and current entry permit issued by the Fair Work Commission.

WHY can they enter?

The Act limits the reasons why a union official can use an entry permit to enter a workplace.

With an entry permit, a union official can enter premises or a workplace to:

  1. investigate a suspected contravention of the Act, a modern award, an enterprise agreement, a workplace determination or a Fair Work Commission order; or
  2. hold discussions with one or more employees who work on the premises, and whose interests the union is entitled to represent, and who wish to participate in the discussions; or
  3. exercise entry rights under State or Territory workplace health and safety legislation, as long as the official also holds a permit under the relevant State or Territory legislation.

WHEN can they enter?

Union officials must give notice before entering a workplace, and entry rights can only be exercised at certain times.

Union officials are required to give the occupier of premises, and any affected employer, an entry notice at least 24 hours, but not more than 14 days, before the intended date of entry (unless they have an exemption certificate).  The entry notice or certificate must specify the date of entry.

Union officials are only entitled to enter premises during working hours.

Where a union official enters premises for the purpose of holding discussions, they may only hold these discussions during mealtimes or other breaks.  The Fair Work Commission has recently determined that “other breaks” do not include periods of time before or after an employee’s shift.  

WHAT can they do once they are there?

Union officials have limited rights when entering a workplace with an entry permit.

If a union official suspects a contravention of the Act or a fair work instrument, once they have entered premises they may:

(a) inspect any work, process or object relevant to the suspected contravention;

(b) interview any person who they are entitled to represent, and who agrees to be interviewed about the suspected contravention; and

(c) inspect and make copies of any record or document which substantially relates to a union member’s employment and is directly relevant to the suspected contravention, and which is kept on the premises or accessible via a computer on the premises.

If the union official has entered premises to hold discussions, they can do so with employees who are capable of being members of that official’s union.

If the union official has entered premises to exercise entry rights under State or Territory workplace health and safety legislation, they may also make enquiries about suspected safety contraventions, and employee records, provided they have given 24 hours’ notice and provided an explanation of the reasons for the exercise of the right.

However, when visiting premises and exercising their right of entry powers, union officials must:

(a) produce their entry permits for inspection by the occupier of the premises, or an affected employer, on request or before requesting documents; and

(a) comply with any occupational health and safety requirements that apply to the premises.

Union officials must not intentionally hinder or obstruct any person in the workplace, or act in an improper manner.

However, in the recent decision of Bragdon v Director of the Fair Work Building In dustry Inspectorate, the Full Bench of the Federal Court of Australia held that union officials were not limited by the above restrictions if they entered premises without exercising entry rights under the Act.

In Bragdon, two CFMEU officials entered Abigroup Sydney airport site to “look at the site”.  They held entry permits, but they did not hold permits under NSW workplace health and safety legislation.  One of the CFMEU officials refused to produce his entry permit whilst on site, and the officials did not comply with Abigroup’s safety procedures, including by refusing to wear the correct personal protective equipment.  The union officials were disruptive while on site.  For example, the officials directed workers to stop pouring concrete due to alleged safety concerns, and one official identified himself as Steve Irwin.  Despite this, Abigroup allowed them to remain on site and did not seek to clarify the entry rights the officials were seeking to exercise.

The Fair Work Building Industry Inspectorate commenced proceedings against the officials on the basis that they were entering to exercise entry powers under the Work Health and Safety Act 2011 (NSW) (WHS Act), but not complying with the Fair Work Act’s restrictions on those entry powers.

The Inspectorate succeeded in the first proceeding, however on appeal a Full Bench of the Federal Court held that the CFMEU officials did not contravene the Fair Work Act because it was not established they were exercising, or seeking to exercise, rights under the WHS Act.  The officials never stated they were doing so, and they were never asked by Abigroup.  The Court commented that Abigroup was therefore not obliged to allow the union officials to enter, or stay on, the site and the officials could have been asked to leave at any time.

WHERE are they allowed to go?

The Act limits where union officials can go while visiting premises or a workplace using their entry permit.

If union officials are entering premises to hold discussions or interview a person in relation to a suspected contravention, they may only do so at a location on the premises agreed with the occupier of the premises (typically the employer), or otherwise a meal break room. 

Occupiers are entitled to request that a union official follow a particular route to reach the designated room.

If a union official attends your workplace, HOW should you respond?

While employers must be careful not to obstruct union officials when they are exercising entry powers, employers should be aware of the limitations on those powers.

First, ask the official to provide a reason for entry. If the official is relying on Fair Work Act right of entry powers, the following considerations will apply. If the official is relying on right of entry powers under workplace health and safety legislation, there will be other considerations you need to take into account. If the official does not purport to be relying on right of entry powers under the Act or workplace health and safety legislation, you are not obliged to allow the official entry to the premises.

If the union official is purporting to exercise right of entry powers, regardless of the reason:

  1. Check the official’s entry permit.
  2. Ensure that the official has provided the necessary advance notice.
  3. Ask the official to sign in and complete any necessary induction and occupational health and safety training before entering the premises. 

If the official is entering premises to hold discussions, ensure that they only hold these discussions during mealtimes or other breaks in a meal break room or other agreed room.

If the official is entering premises to inspect a suspected contravention:

  1. Ask for details of the suspected contravention, and the general reasons for that suspicion. However, the official is not required to disclose the names of the employees affected by the contraventions.
  2. Ensure that they only hold interviews with those persons they are allowed to interview.
  3. Ensure that they only access documents or records which relate to their members and the suspected contraventions.

If the official is entering premises in relation to a suspected safety issue, it may be that the official can be helpful in identifying issues or solutions that you had not previously considered. However, you cannot delegate your safety obligations to the union or anyone else. Therefore, when the official enters the premises:

  1. Try to find out as much about the safety issue as you can.
  2. Take into consideration any recommendations which the union might make, but promptly form your own view, possibly with the assistance of external safety professionals, as to whether there is a safety problem, and what the possible and appropriate solution(s) might be.
  3. Implement the appropriate solution(s) as soon as practicable.

If the official is being disruptive and you believe that they are in breach of their entry rights, you should seek legal advice before taking any action to evict them.

WHAT next?

In a recent address, Minister for Employment Michaelia Cash stated that the Turnbull Government was committed to workplace relations reforms and making changes to the right of entry provisions in the FW Act.

Minister Cash confirmed the Turnbull Government intends to introduce legislation that will:

(a) remove default access to lunchrooms for unions visiting workplaces;

(b) place limits on union workplace visits;

(c) give the Fair Work Commission capacity to deal with excessive visits; and

(d) repeal laws which require employers to provide accommodation and transport for visits to remote work sites.

It is unclear when these changes are expected to be implemented, however we will publish further updates about these proposals when they come to light.

Please contact Russell Kennedy’s Workplace Relations, Employment and Safety Team for advice on dealing with union entry rights.