In light of some fairly large penalties imposed on employers for breaching right of entry provisions, it’s a good time for a refresher on employers’ obligations.

Who can enter?

Under the Fair Work Act 2009 (Cth) (the “FW Act”), union officials who are entitled to represent a worker have a right to enter the workers’ workplace or business premises to:

• investigate suspected contraventions of the FW Act or related instruments (for example an award or enterprise agreement); or
• hold discussions with employees (if employees wish to participate).

When can they enter?

In order to exercise their right of entry to a workplace under the FW Act, a union offic

• have a valid right of entry permit; and
• have a valid entry notice (or exemption certificate).

ial needs to:

A right of entry permit is issued by the Fair Work Commission (“FWC”). You can check the validity of a union official’s entry permit here. Employers also need to be given notice of the visit. This notice must be given:

• in writing;
• during work hours; and
• at least 24 hours before the visit (but not more than 14 days before the visit).

There are some exemptions to a union official being required to give notice. For example, there may be certain circumstances where there is a risk that advance notice of entry to investigate a contravention might compromise an investigation. In such circumstances, a union official may enter the workplace without giving prior notice if they have an exemption certificate.

What can they do while they are there?

When a permit holder is investigating a suspected contravention, they can:

• inspect any work, process or object that relates to the suspected contravention;
• interview any person in relation to the suspected contravention (if the person agrees and the permit holder’s union is entitled to represent them); and
• inspect and make copies of records and documents relating to the suspected contravention or serve a notice on the employer to produce records at a later date.

When a permit holder is seeking to hold discussions with employees they can only hold discussions with employees who:

• perform work on the premises;
• are entitled to be represented by the union; and
• are willing to meet with the union.

These discussions must only be held during meal or other breaks, not during working time.

Specific employer obligations

When dealing with entry permit holders, employers must not:

• stop or delay a permit holder who has followed the right of entry rules when they are entering, or seeking to enter, a premises;
• refuse or fail to comply with a permit holder’s lawful request to produce or provide access to records or documents;
• intentionally hinder or obstruct a permit holder who is exercising their right to enter a site or premises; or
• misrepresent that something they are doing is authorised by the FW Act.

Breaches can attract court-imposed penalties.

Recent breaches of right of entry

Decisions from both the Federal Circuit and Family Court of Australia (“FCFCA”) and the Federal Court of Australia (“FCA”) highlight the serious implications for employers of failing to comply with the right of entry provisions.

In the first case, a union official sought to access the employer’s lunchroom to speak with employees. The employer refused, allowing the official access only to a smoking area near the site entrance.

The FCFCA found that the employer had intentionally hindered the union official from exercising their rights under the FW Act. The FCFCA noted that the employer’s conduct was deliberate and aimed at preventing the union from engaging with employees the day before an enterprise agreement vote.

A penalty of a $42,500 was imposed against the employer, payable to the union, with the FCFCA emphasising that penalties serve a deterrent purpose ensuring employers understand that such conduct “cannot be treated as the cost of doing business.”

In the second case, the FCA had to determine whether apprentices attending training were “performing work” as required under the FW Act to give a union official right of entry to hold discussions with employees. Union officials were refused entry to the training premises where electrical apprentices were undertaking training to hold discussions with union members.

The FCA found that the apprentices were “performing work” while undertaking training as attendance was a paid and compulsory component of their employment. Accordingly, union officials had a right to enter and hold discussions with the apprentices. Both the employer and the associated training organisation were found to have breached the right of entry provisions and were ordered to pay a total of $30,000 in penalties.

Key takeaways for employers

• It is important that all employers, particularly those in unionised industries, have a sound understanding of right of entry obligations under the FW Act. It is important to note that separate right of entry legislation also exists in relation to work, health and safety.
• Employers must ensure that managers receive training on when union officials can enter the workplace and matters that arise from that entry.
• Employers should be aware of the high-cost implications for non-compliance with Courts having the power to impose significant penalties.