Unions entering the workplace
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Right-of-entry in the workplace
To enter the workplace, a person needs to be a 'permit holder' and have a valid right-of-entry permit. A permit holder must be an:
- elected officer of the union, or
- employee of the union.
A permit holder also needs to be a fit and proper person, as determined by the Fair Work Commission (the Commission).
Permit holders can enter the workplace if a worker wants to speak to them. They can also enter if they think there is a breach of workplace laws, including:
When a permit holder enters a workplace, they can talk with workers if:
- the workers are at the workplace and want to talk with them, or
- they suspect a breach and they're entitled to represent the employee.
There are rules for when a permit holder enters a workplace.
Entry permit requirements
Permit holders must show their right-of-entry permit:
- when they arrive at the workplace, if the employer asks to see it
- when they want to access documents.
From 1 July 2019, all new right-of-entry permits must include a photo and signature of the permit holder.
Permit holders with a valid permit issued before 1 July 2019 can keep using their existing permits until 1 October 2019. From then, they'll either need to:
- get a new right-of-entry permit from the Commission, or
- show their current permit and photo ID.
Acceptable photo ID needs to be either:
- an electronic or a physical Australian driver licence
- an electronic or a physical Australian proof of age card
- an electronic or a physical identification document from Australia Post (such as a KeyPass or ‘Digital iD’), or
- an Australian passport
The photo ID also needs to be current or expired less than 2 years ago in the case of forms of physical identification.
Right-of-entry permits are valid for 3 years and expire as soon as one of the following happens:
- the permit is 3 years old
- the permit holder stops being a union employee or official, or
- the Commission suspends or revokes the permit.
To find out more about right-of-entry permits, go to Entry Permits - the Commission
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Notice of the visit
Permit holders entering a workplace must give written notice at least 24 hours and less than 14 days before their visit.
The Commission can give permit holders an 'exemption certificate', which allows them to enter with less notice. The Commission will allow early entry if they think that any evidence may be:
- hidden, or
The notice must show the rules that everyone needs to follow when the permit holder enters the workplace.
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What permit holders can do in the workplace
Where there's a suspected breach, permit holders can:
- inspect any work, process or object that relates to the suspected breach
- interview any person related to the suspected breach
- meet with workers
- access records relating to the suspected breach.
Permit holder can only interview or meet with workers who are:
- entitled to be represented by the union
- willing to meet with the union.
Permit holders aren't allowed to see the records of non-union members, except with:
- the non-member's permission, or
- an order from the Commission.
Discussions have to be during meal or other breaks. Permit holders can't talk with workers during paid work time.
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Accessing documents and records
A permit holder can inspect and copy any record or document that's directly relevant to the suspected breach where:
- it's kept on the premises, or
- it's accessible from a computer that's kept on the premises.
The records must substantially relate to a union member, unless the permit holder has a Commission order to access non-member records.
The permit holder must show their right-of-entry permit when they want to access documents.
Access to meeting rooms for discussions and interview
When an employer agrees, permit holders can have access to meeting rooms.
If the employer doesn't agree, permit holders can hold discussions and interviews where the workers normally take their breaks.
Visiting remote workplaces
When a permit holder visits remote workplaces, accommodation and transport may not be reasonably available. If this happens, they can ask the employer to help arrange accommodation and/or transport with them.
Sometimes, the employer and the permit holder can't agree on an arrangement. In this situation, the employer needs to provide or arrange accommodation or transport if:
- it doesn't cause undue inconvenience for the employer
- the permit holder gives a reasonable amount of notice.
The employer can charge a fee for the accommodation or transport. It can't be more than it cost.
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Rules for entering a textile, clothing or footwear industry workplace
There are important differences to the rules when unions enter workplaces in the textile, clothing and footwear industry.
Unlike other permit holders, unions representing outworkers can:
- look into suspected breaches of outworkers terms in an award or registered agreement
- enter the workplace without giving advanced notice or the workers being there
- talk to any workers who work on the premises and want to speak to the permit holder
- access records of workers who aren't union members.
While permit holders don't need to provide advanced notice, they still need to provide notice in writing. The notice needs to be before or as soon as possible after they enter the premises.
Stopping a permit holder from entering
Permit holders who've followed the right-of-entry rules shouldn't be stopped or delayed when entering the workplace.
If a person stops or unnecessarily delays the permit holder, they can be fined under the Fair Work Act.
Source reference: Fair Work Act 2009 s.481 - 483AA and 521A-521D
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What to do next
- Visit the commission website to learn more about:
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