With union behaviour regularly receiving media attention, it is not uncommon for employers to be uncertain and apprehensive when a union official indicates that he or she wants to enter the workplace.
When introduced, the Fair Work Act 2009 (Cth) (FW Act) recognised the need to set out the requirements for the lawful right of entry for officials and the regulation of those rights of entry powers.
In this Special E-Update, we will provide a brief overview of the right of entry powers of union officials for workplaces (except those powers relating specifically to textile, clothing and footwear workers).
Union right of entry
Part 3-4 of the FW Act sets out the right of entry provisions.
This Part provides a framework for officials to enter premises balancing:
1. The right of organisations to:
(a) represent members in the workplace;
(b) hold discussions with members; and
(c) investigate suspected contraventions of the FW Act, industrial instruments and work health and safety (WHS) legislation.
2. The right of occupiers and employers to go about their business without undue inconvenience.
Permit holders
Only an official of a registered organisation (that is, a union official) who holds a valid and current entry permit may exercise a right of entry.
Importantly, there are two types of entry permits:
1. Fair Work entry permit
These permits are granted by the Fair Work Commission (FWC) upon application by a union and a union official.
In accordance with section 512 of the FW Act, the FWC must be satisfied that the union official is a “fit and proper person” to hold the entry permit.
The FW Act also sets out the matters the FWC must consider when deciding if an official is a “fit and proper person” and provides details of the conditions that may be placed on permit holders.
2. Work Health & Safety entry permit
This permit is granted under the Work Health and Safety Act 2011 in the jurisdictions that adopted the harmonised legislation.
To hold this permit, the union official must have completed the necessary training and hold a Fair Work entry permit.
The type of permit granted will be relevant to the right of entry power exercised by the union official, as discussed below.
Right of entry
A union official who holds an entry permit may exercise right of entry in the following circumstances:
(A) Suspected contraventions
Section 481 of the FW Act permits a union official who holds a Fair Work entry permit to enter premises to investigate a suspected contravention of the FW Act or a fair work instrument.
In accordance with subsection 481(3) of the FW Act, a permit holder must reasonably suspect that the contravention has occurred or is occurring before seeking to exercise a right of entry.
This right of entry can only be exercised where the contravention relates to, or affects a member of the union whose interests the union is entitled to represent and who performs work on the relevant premises.
In CSBP Limited v Construction, Forestry, Mining and Energy Union [2011] FCA 917, the employer sought a declaration that the Construction, Forestry, Mining and Energy Union (CFMEU) was not entitled to represent the industrial interests of its Process Technicians.
The issue arose after a CFMEU official and permit holder claimed a right of entry to the employers’ premises under section 418 of the FW Act.
The Federal Court held that the CFMEU was not entitled to represent the industrial interests of the Process Technicians and accordingly could not investigate any suspected contravention of the FW Act.
In accordance with section 482 of the FW Act, where a right of entry is exercised under this section, a union official has the right to:
Further, under section 483 of the FW Act, a union official can require an employer to produce or provide access to a record or document directly relevant to the suspected contravention. This request must be made in writing and given to the employer, either whilst at the workplace or within five days after entering the workplace. The employer must be provided with at least 14 days to produce or provide access to the documents for inspection by the union official.
(B) Hold discussions
Section 484 of the FW Act provides that a union official who holds a Fair Work entry permit may enter a workplace for the purpose of holding discussions with employees.
A union official can only hold discussions with those employees who perform work on the premises, where the union is entitled to represent those employees' industrial interests and with those employees who want to participate in the discussions.
It is not a necessary requirement for there to be a member employee on site before a union official enters the workplace.
These discussions may be held during the mealtimes or other break times of employees and are to be conducted in rooms or areas as agreed with the employer.
Where there is no agreement in relation to location, subsection 492(3) of the FW Act states that a union official may conduct interviews or hold discussions in any room or area where employees ordinarily take meal or other breaks or that is provided for the purpose of taking meal or other breaks.
In Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43, the Full Court of the Federal Court determined a dispute between the CFMEU and the employer regarding the location where discussions could be held.
The CFMEU sought to use the location which was used for a number of purposes, including for the taking of meal and other breaks. The employer argued that a separate mobile crib facility was provided to employees to take lunch breaks and was to be used for such discussions.
The Full Court held that the FW Act did not require the room or area to be for the single or sole use of taking meal or other breaks.
The Full Court dismissed the appeal, with multi-purpose rooms being able to be used to conduct interviews or hold discussions.
(C) State or Territory OHS right
A WHS right of entry under State or Territory WHS legislation is also regulated by the FW Act.
In accordance with section 494 of the FW Act, a union official exercising a “State or Territory OHS right” must hold both a Fair Work and WHS entry permit.
A State or Territory OHS right is a right provided by a “State or Territory OHS law” that authorises the right of entry to the workplace or to inspect or access an employee record at the workplace.
Regulation 3.25 of the Fair Work Regulations 2009 includes in its definition of “a State or Territory OHS law” to include the Model Work and Health and Safety Act (in those jurisdictions where adopted), the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and the Occupational Safety and Health Act 1984 (WA).
In New South Wales, section 117 of the Work Health and Safety Act 2011 allows a WHS entry permit holder to enter a workplace to inquire into a suspected contravention where it is reasonably suspected that a contravention has occurred or is occurring.
The Explanatory Memorandum to the Fair Work Bill 2009 makes it clear that this right of entry imposes additional requirements (but not additional rights of entry) on permit holders and does not override the right of entry under State or Territory work health and safety laws.
The Full Court of the Federal Court of Australia in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 recently confirmed that a union official seeking to enter a workplace under a State or Territory OHS law is required to hold a Fair Work entry permit.
In this matter, a health and safety representative (HSR) sought the assistance of a union official under of the OHS Act and invited him to the workplace. Under section 70 of the OHS Act employers are obliged to allow a person assisting a HSR to access a workplace. The union official entered the workplace on four occasions, notwithstanding that he did not hold a Fair Work entry permit or a WHS entry permit.
The Australian Building and Construction Commission (ABCC) launched civil penalty proceedings against the union official for breaches of the right of entry provisions of the FW Act.
The Federal Court held that section 70 created a right for HSRs to be assisted but not a right for the union official to enter a workplace.
The ABCC appealed this decision.
On appeal, the Full Court held that the OHS Act did confer a right of entry to the workplace. The Full Court held:
The plain words of s 494(1) and (2) and the construction of ss 58(1)(f) and 70 of the 2004 Victorian Act mean that Mr Powell as an official of an organisation required a permit under the FW Act to enter the premises because he was exercising his right to enter the premises or the HS representative’s right to have him enter the premises to assist the HS representative in his task.
Accordingly, the union official was required to hold a permit under the FW Act to enter the workplace.
The interplay between the right of entry provisions under the FW Act and under work health and safety legislation was also highlighted in the recent decision of Ramsay & Anor v Menso & Anor[2017] FCCA 1416. In this matter, two officials of the CFMEU who held both Fair Work and WHS entry permits sought entry to a construction site in Brisbane but were denied entry by the employer, Z Group Pty Ltd and its Director under the Work Health and Safety Act 2011 (QLD).
The two CFMEU officials launched civil remedy provisions under the FW Act for refusing entry to the premises. In her interaction with the union officials, the Director refused entry and claimed that notice was to be given to enter the site under the FW Act.
The Federal Circuit of Australia explained the interplay between the two jurisdictions as, “The combination of being both a Federal permit holder and a State permit holder and then exercising their State power means that there does not have to be any notice given and any refusal results in Federal sanctions”.
Entry notices
In accordance with section 487 of the FW Act, a union official seeking to enter the premises under (A) or (B) above is required to provide an entry notice to the employer.
If the right of entry exercised is to investigate a suspected contravention, an exemption may be given by the FWC, if upon application, the FWC reasonably believes that advance notice of entry may result in the destruction or alteration of evidence.
Generally, the notice must be given during working hours, between 14 days and 24 hours before entry.
Section 518 of the FW Act sets out the required contents of the entry notice, including specifying the workplace, the day of entry and the union to which the union official belongs. Depending on the right of entry exercised, further detail must also be provided, including a declaration that the union official is entitled to represent the industrial interests of a member who works on the premises. For entry under (A), particulars of the suspected contravention must be specified in the entry notice.
Where an exemption certificate has been issued by the FWC, the union official must give a copy to the employer as soon as practicable after entry.
The right of entry exercised under (A) or (B) must be during working hours and on the day specified in the entry notice.
Where a union official seeks to exercise a State or Territory OHS right to inspect or access an employee record, they must give written notice at least 24 hours before, which sets out the intention to exercise the right and the reason for exercising the right.
Requirements for union officials
A union official must not contravene any condition which may be imposed on their entry permit by the FWC.
For example, section 500 of the FW Act requires union officials not to intentionally hinder or obstruct any person, or otherwise act in an improper manner when exercising or seeking to exercise a right of entry.
Upon entry to the workplace, the union official must comply with any reasonable WHS requirements that apply to the workplace. As noted above, interviews must be conducted in rooms or areas as agreed with the employer. The union official must comply with any reasonable request to take a particular route to the room or area and must not enter any part of the workplace that is used as a residence.
Where a right of entry is exercised, the union official must (upon request) produce their entry permit for inspection. The entry permit and the entry notice must also be produced by the union official when seeking to inspect or access documents whilst on site or through written notice at a later date.
Obligations also apply in relation to misrepresentations and the unauthorised disclosure or information or documents obtained.
In some circumstances, penalties may apply, where the breach is also a breach of a civil remedy provision in the FW Act.
Requirements for employers
As noted above, an employer can request to see the union official’s entry permit and a copy of the entry notice or certificate where relevant before the official enters the workplace. An employer can also require the union official to comply with any applicable work health and safety requirements and take a certain route to the room or area to hold discussions.
If there is a request for production or access to a document or record, which is relevant to a suspected contravention, the employer must comply with this request.
The FW Act also places obligations on employers relating to the right of entry of union officials.
Importantly, an employer must not:
These provisions are also civil remedy provisions and penalties may apply where they are found to have been breached.
In Independent Education Union of Australia v Australian International Academy of Education Inc[2016] FCA 140, the Federal Court held that the employer had contravened the requirement to allow two union officials to inspect and copy documents when it refused access to the computer system to inspect the electronic versions of documents under section 482 of the FW Act.
The Federal Court was also satisfied that the employer intentionally hindered and obstructed the two union officials by refusing access to inspect electronic documents and by altering the records after a notice of entry for inspection was given. The employer was fined a total of $50,000 for contraventions of sections 482 and 502 of the FW Act and in addition, the Director General was fined $2,200 for intentionally hindering and obstructing the union officials.
Final comments
While every visit from a union official may not always be a welcome one – employers should be best prepared by having an understanding of the right of entry powers that union officials have under the FW Act and the relevant State or Territory health and safety legislation. Employers should also be aware of their own rights and obligations during such visits.
Media Release
Sydney FC’s Corporate Family has received a boost with Westfield W-League Major Partner Workplace Law having their deal extended for a further season, the club confirmed today.
The deal will see Workplace Law enter their second year with the Sky Blues’ Westfield W-League squad, after they expanded on their Hyundai A-League backing last season with a venture into women’s football.
A specialist law firm providing employers (including sporting organisations) with legal advice, representation and workplace training in all workplace matters, Workplace Law will receive a range of benefits from their one year partnership, with their logo to feature prominently on the front of the Sydney FC Westfield W-League home and away playing shorts, and sleeves as well as on coaches’ apparel.
Sydney FC Acting CEO Adam Santo welcomed Workplace Law’s extension and said it was pleasing to have such a great corporate backing in the women’s game.
“I’m delighted to have Workplace Law extend their support of our Westfield W-League squad,” he said.
“Sydney FC and Workplace Law have enjoyed a mutually beneficial relationship for a number of seasons now in an ever expanding capacity, and this renewal is a further sign of good faith between both parties.
“I’m looking forward to working with Workplace Law for a further season.”
Director of Workplace Law Shane Koelmeyer said he was excited to be renewing with the Sky Blues.
“We thoroughly enjoyed our first season as a Westfield W-League Major Partner and we believe it’s only logical to continue our support of the women’s game,” he said.
“The Sky Blues are one of the most successful clubs in the competition and we are keen to support the club as it continues to build a culture of sustained success.”
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Should you require any further information or assistance, please contact our Managing Director Athena Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.
Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
