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Did you hear the one about the "crocodile hunter" who stopped a concrete pour at a construction site? Or the union official who abused a safety manager, threw away his lunch and locked him out of the crib room? How about the HR manager who threatened to confiscate a union newsletter detailing the company's unlawful enterprise agreement?

Workplace interaction between unions and employers provides fertile ground for conflict but what does the law say about a union's right to access your workplace and speak to your workers?

What is right of entry?

Right of entry describes the regulation of a union's right to enter workplaces. Right of entry provisions in the Work, Health and Safety Act 2011 (WHS Act) and the Fair Work Act 2009 (FW Act) aim to strike a balance between a union's right to represent its members by holding discussions and investigating possible contraventions of WHS laws in a workplace, and the right of employers to carry out business without undue interruptions.

When can a union official enter your site?

A union official can enter the workplace to:

  • hold employment/industrial discussions with employees under the FW Act
  • investigate suspected breaches of the FW Act
  • consult with/advise workers on health and safety matters under the WHS Act, and
  • enquire into suspected safety breaches under the WHS Act.

Who can enter a site?

A union official must have a valid and current entry permit from the Commission to enter a workplace. To exercise a right of entry under the WHS Act, the official must also hold an entry permit from the state safety regulator.

Is notice required?

Notice of entry must be provided by the union to the employer/occupier of the premises during working hours and 24 hours before entry (but no more than 14 days prior to entry). The notice must specify the premises to be entered, entry date and the union the permit belongs to.

When entering for a purpose stated in the FW Act, the permit must include the specific section of the FW Act authorising entry.

Notice isn't required for entry under the WHS Act where the permit holder reasonably suspects safety contraventions, or where providing notice would defeat the purpose of entry or unreasonably delay the permit holder in an urgent case, for example, a serious safety incident or risk to workers.

There are penalties for obstructing a permit holder's entry, however, this doesn't prevent you asking legitimate questions or verifying the validity of entry rights, such as "Can I see your entry permit?" or "What is your reason for entering this workplace?"

The importance of asking such questions was confirmed by the finding in Director of the Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668. In June 2013, two Construction, Forestry, Mining and Energy Union officials (one claiming to be Steve Irwin) were fined $20,000 and $27,500 for entering a construction site and obstructing a supposedly unsafe concrete pour. Although both officials possessed permits under the FW Act, neither held a permit under the WHS Act, which is required to investigate unsafe work practices. When attending the site they were not asked to produce their entry permit and, when an employee of the head contractor (Abigroup) went to fetch personal protective equipment for the men, they entered the site unattended.

The officials successfully appealed their fines arguing that upon entering the site they didn't assert they were exercising any rights under the FW Act or the WHS Act. In April 2016, the Federal Court found (on appeal) in favour of the officials and quashed the penalties imposed. It held that Abigroup was not obliged to let the officials enter the site as they were not exercising a right of entry under the FW Act or WHS Act. The Court held Abigroup could have asked the men to leave at any time and that a failure to leave would have been criminal conduct.

What can a union official do at a worksite?

An official must have a specific purpose for entering a workplace. The scope of an official's powers of entry depends on which Act the entry is exercised under.

Under the FW Act, an official can:

  • inspect any work, process or object relevant to a suspected contravention of the FW Act
  • interview any person about the suspected contravention, and
  • hold discussions with one or more employees who perform work on the premises.

Under the WHS Act, an official can:

  • inquire into a suspected contravention
  • inspect or make copies of employee records or documents directly relevant to a suspected contravention of the WHS Act, and
  • consult and advise workers on WHS matters.

Right of entry requirements

An official exercising right of entry must:

  • only enter during normal working hours
  • enter during the workers' meal time or breaks (except when entering under the WHS Act)
  • obtain a worker's agreement before interviewing them
  • comply with all WHS requirements, and
  • only enter areas of the workplace where relevant workers work or other areas that directly affect the health and safety of workers whose industrial interests they represent.

Union coverage

Officials may only enter a workplace where their union is entitled to represent the industrial interests of workers. The union doesn't need to have members at the worksite, but there must be employees that the union could represent. For example, a union official from a professional services union will unlikely have a legitimate right to enter an underground mine to consult with workers. If an official seeks to gain entry in contravention of any of these requirements they will be in breach of their entry permit.

What to do when an official next comes knocking

Entry permits may have certain conditions attached to them by the authorising bodies, so check for any such conditions on the permit.

Entry permits don't have a photo of the union official, but you can request photo identification to verify that the name on the permit matches the person presenting it.

If an official is entering a workplace to consult on WHS matters, they can warn workers they believe are currently exposed to a serious health or safety risk at the workplace. For instance, an official enters to consult with workers but observes a worker working at heights without fall protection. However, they are limited to warning the worker of the risk and cannot direct the worker to stop work.

When entering to hold discussions with workers, the location of the discussions must be agreed between the official and employer/ occupier. If an agreement isn't reached, the discussion can occur in an area where the worker has meal breaks. Courts have found that areas used "in part" for meals or other breaks will satisfy this requirement.

Conclusion

It's important for employers to fully understand their rights (and the rights of union officials) regarding right of entry under the WHS and FW Act, so the rights are exercised in a way that doesn't breach the Acts. Companies that fail to comply with these obligations can be prosecuted and face fines of up to $50,000. For further information on right of entry, seek legal advice.

Note: Victoria and Western Australia are yet to adopt the model WHS legislation. The obligations in the existing state-based safety legislation remain applicable.

We would like to acknowledge the contribution of Joe McCombe to this article.
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