Right of entry

Learn about unions entering the workplace under Fair Work Act laws.

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Right of entry in the workplace

Some union officials who are entitled to represent workers have a statutory right to enter the workers' workplace or business premises to:

  • investigate suspected contraventions of the Fair Work Act or related instruments (for example an award or enterprise agreement), or
  • hold discussions with employees (if the employee wishes to participate).

To exercise their right of entry to a workplace, a union official needs to:

State and territory workplace health and safety (WHS) laws also:

  • provide rights to enter workplaces for WHS purposes
  • set out the rules for getting a WHS entry permit and exercising this type of entry.

When exercising a WHS right of entry to premises that are covered by the Fair Work Act, union officials also need to:

  • have a Fair Work Act right of entry permit
  • have a current WHS permit, and
  • give the employer a lawful WHS entry notice.

Officials assisting a Health and Safety Representative on request under a state or territory WHS law don’t need to hold a Fair Work Act right of entry permit to enter a workplace. Certain rules and requirements still apply to those officials, including under state and territory WHS laws.

For more information about right of entry under WHS laws, visit:

In addition to union officials, there are other types of officials who have a legal right to enter a workplace in certain circumstances. This includes Fair Work Inspectors, work health and safety officials and police. For more information, go to:

Tip: Informal entry arrangements

Many workplaces have informal arrangements in place that allow union officials to access the workplace for particular purposes without those officials needing to exercise their statutory right of entry.

Where this is happening, and to ensure all parties know what is expected of them, it’s beneficial for employers to have a documented policy or agreement in place with the union that sets out these guidelines. This might include:

  • arranging suitable times to attend a workplace to minimise disruptions
  • any requirements to provide entry permits and entry notices
  • following appropriate WHS procedures.

Entry permit requirements

Entry permits are issued by the Fair Work Commission (the Commission). The Commission is the national workplace relations tribunal and registered organisations regulator.

To be eligible for an entry permit, a person 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 Commission.

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.

The Commission also has the power to restrict the rights of organisations and officials if those rights are misused. 

Find out more about right of entry permits from Fair Work Commission – Entry permits.

Tip: Find an entry permit 

An entry permit gives a union official the right to enter a workplace, provided certain conditions are met.

The Commission has a free database you can search of all current entry permit holders. Access it at Find an entry permit.

Notice of the visit

Permit holders entering a workplace under the Fair Work Act for the purpose of holding discussions or investigating a suspected contravention must give notice to the site occupier and any other affected employers. This notice should clearly state the purpose of the visit and must be given:

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

This is known as an entry notice.

The Commission can also give permit holders an exemption certificate in some circumstances, which allows them to enter without notice. For more information, visit Exemption certificate to visit without notice.

A permit holder who has entered premises needs to produce:

  • the entry notice (or exemption certificate)
  • their entry permit on request by the site occupier or an affected employer.

Different rules may apply when a permit holder enters a workplace to investigate WHS matters. These rules may be covered by state or territory WHS laws.

Learn more about entry notices at Fair Work Commission – Rules for a Fair Work entry notice.

Exemption certificate to visit without notice

If a permit holder has an exemption certificate from the Commission, they don’t need to give at least 24 hours notice of their visit. They can visit without notice but must give a copy of the exemption certificate either before, or as soon as possible after, entering the premises.

Permit holders can apply to the Commission for an exemption certificate if they’re investigating a suspected breach of:

  • the Fair Work Act, or
  • a related instrument like an award or agreement.

The Commission will issue a certificate if:

  • it reasonably believes that giving advance notice of entry might lead to evidence being destroyed, concealed or altered, or
  • it is satisfied that:
    • the permit holder is investigating the suspected underpayment of a union member
    • advance notice of entry would hinder an effective investigation.

Rules for entering a textile, clothing or footwear industry workplace

There are important differences to the rules when union officials enter workplaces in the textile, clothing and footwear industry.

Unlike other permit holders, union officials who are entitled to represent textile, clothing and footwear workers can also:

  • look into suspected contraventions of outworkers terms in an award or registered agreement
  • enter the workplace without giving advanced notice or the workers being there
  • access records of workers, including those who aren't union members.

Permit holders don't need to provide advance notice in these circumstances but still need to provide notice in writing. The notice needs to be before, or as soon as possible after, they enter the premises.

What permit holders can do in the workplace

Suspected contraventions

When a permit holder enters a workplace to investigate a suspected contravention of the Fair Work Act or an award or agreement, they can only:

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

Permit holders aren't allowed to see the records of non-union members, except with:

  • the non-member's written permission, or
  • an order from the Commission.

A person must not use or disclose any information or document obtained when investigating a suspected breach for an unrelated purpose, unless they’re authorised to by the Fair Work Act.

Discussions with employees

Permit holders can also enter a workplace to hold discussions with employees.

Permit holders can only interview or meet with employees who:

  • work on the site
  • are entitled to be represented by the union
  • are willing to meet with the union.

Discussions must be during meal or other breaks and not during paid work time, unless otherwise agreed.

Access to rooms for discussions and interviews

Permit holders can hold their discussions or interviews in rooms or areas that are agreed with the occupier of the premises.

If there’s no agreed place, the permit holder can hold the discussions or interviews in any room or area that is both:

  • where those employees ordinarily take meal or other breaks
  • provided by the occupier for breaks.

Visiting remote workplaces

When a permit holder visits remote workplaces, accommodation and transport may not be available. If this happens, they can enter into an accommodation or transport arrangement with the employer.

If the employer and the permit holder can't agree on an arrangement, 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 costs.

Permit holder responsibilities

While on site, permit holders need to comply with the site occupier’s reasonable requests to:

  • comply with WHS requirements
  • take a particular route to access areas or rooms for interviews or discussions with employees.

Permit holders must not:

  • intentionally or recklessly misrepresent their authority as a permit holder under the Fair Work Act
  • enter any part of the premises that is mainly used for residential purposes
  • intentionally hinder or obstruct another person or act improperly.

Example: Entry without an entry notice

Jin operates a logistics company with around 80 employees.

Some of his employees are members of the union. Jin has had productive interactions with the union, which has helped create a positive working environment.

Jin arrives at the warehouse one morning and is told that a union official is on the warehouse floor talking to some of the employees. Jin introduces himself to the official, Nick. He asks if Nick has an entry or exemption notice that allows him access to the workplace to meet with union members.

Nick says that he doesn’t have a valid notice, but one of the union members let him in. He tells Jin that there have been some issues with unpaid overtime at other logistics companies and he just wants to look out for his members and have a quick chat.

Jin explains that while he appreciates Nick wants to check in on his union members, the business’ policy is that union officials aren’t allowed in the warehouse without a valid entry or exemption notice.

Jin asks Nick to leave, warning him that if he remains on the premises he will be trespassing and not complying with the Fair Work Act right of entry requirements. Nick reluctantly agrees to leave.

Later that day Jin decides to call Nick. He stresses that he appreciates the union’s efforts to ensure the wellbeing of his employees. They discuss how they can work together to arrange for Nick to speak to members or eligible members in a way that minimises disruption to Jin’s business operations. They discuss:

  • the importance of clearly communicating Nick’s purpose in attending the worksite
  • Nick contacting Jin before any future visits to discuss whether an entry notice is needed for that entry
  • making sure Nick speaks to members at an appropriate time or while they’re on a break.

Responsibilities when dealing with permit holders

An employer, site occupier or other person 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 otherwise act improperly
  • intentionally or recklessly misrepresent that something they’re doing (or something someone else is doing) is authorised by the right of entry provisions of the Fair Work Act.

Example: Employer must not refuse or delay union officials from lawfully entering a work site

Alain is an official of a union in the maritime industry.

Alain receives a call from a union member who is a dock worker at a local wharf. The employee sends photos from his phone to Alain showing faulty electrical switchboards and exposed wiring at the site. They are worried that workers may get seriously hurt. Although they have raised these WHS issues numerous times with the site manager, Derek, over the past 2 weeks, nothing has been done about it.

Alain is concerned and agrees this needs to be investigated promptly. He prepares the relevant documents and arranges to visit the site with his colleague Francene first thing in the morning.

The next day, Alain and Francene arrive at the wharf at 8:30 am. They go to the reception area and show their identification. They also provide their Fair Work Act and Work Health and Safety Act entry permits and notices. They request to speak with the employee who made the complaint, as well as the site manager, Derek. They explain that they are there to investigate suspected WHS breaches, and as they are unfamiliar with the site layout and evacuation points, they will need to be escorted around the site. The receptionist asks them to wait in a meeting room and says that Derek will be with them shortly.

Derek arrives and Alain and Francene again explain the reason for their visit. They ask to be escorted to the area with the alleged electrical faults or, at the very least, to speak with the employee who contacted them. Derek says that WorkSafe did an inspection last month and there were no problems. Derek refuses to let Alain and Francene enter, telling them they need to give him 24 hours notice prior to entry.

Alain and Francene clarify that there are different rules which apply when investigating suspected contraventions of the WHS Act and they’re not required to give 24 hours notice for this entry. They remind Derek that employers must not delay, hinder or obstruct a permit holder who is exercising their rights. They note this is in breach of both the Fair Work Act and the state-based WHS Act.

Aware of their different views, Derek and the union officials agree to contact the relevant state WHS regulator, and a Health and Safety Inspector attends the site to provide advice. The Health and Safety Inspector advises Derek that if Alain and Francene have a reasonable suspicion that a breach is occurring and have their paperwork in order, then Derek must allow them access to the site. The Health and Safety Inspector confirms that in this case, 24 hours notice prior to entry is not required.

After further discussion and inspection of Alain and Francene’s entry permits, Derek allows the union officials to enter the site.

Important

Entering a workplace to deal with workplace health and safety matters is subject to rules set by both State and Federal WHS bodies.

Permit holders and others, including employers and anyone who manages or controls the workplace, have a range of obligations, including in relation to how they behave when entering a site for WHS purposes.

For more information, contact your relevant state or territory WHS body.

Right of entry disputes

Disputes about right of entry under the Fair Work Act are dealt with by the Fair Work Commission or the courts.

WHS threats or trespassing

Issues of immediate threat to health and safety or situations involving trespassing should be reported to emergency services or police immediately.

Fair Work Commission

The Fair Work Commission (the Commission) can help with resolving a wide range of disputes about right of entry. Applications can be made by the:

  • employer
  • permit holder
  • union
  • occupier of the premises.

The Commission’s powers include making orders about whether certain requests are reasonable for permit holders to comply with. They can also make orders that revoke, suspend or impose conditions on a permit.

Find out more about disputes about right of entry from Fair Work Commission – Disputes about entry to workplaces.

Legal action in court

The Federal Court or the Federal Circuit and Family Court can also help with resolving certain right of entry disputes, including in relation to concerns about misrepresentation of entry rights, refusal or undue delay of entry and hindering or obstructing behaviour.

Application to court can be made by a person affected by the behaviour or the Fair Work Ombudsman.

Fair Work Ombudsman

If you ask for our help, we will review the information you provide and decide what action, if any, we will take.

We are guided by the following factors when making our decision:

For further information, you can Contact us.

Tip: Access effective dispute resolution advice

The most effective way to resolve workplace disputes is when parties actively work together to fix the issues, including by following the rules about resolving workplace disputes set out in the relevant industrial instrument.

For strategies and advice on best practice approaches to managing and resolving disputes in the workplace, read our Effective dispute resolution best practice guide.

More information

The Commission plays an important role in administering the right of entry framework under the Fair Work Act. Visit the Commission’s website for more information or help with:

Source reference for page: Fair Work Act 2009 sections 478–521D

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