Rights of Entry under the Fair Work Act 2009

What is Right of Entry?

It refers to workplace laws which regulate the rights of organisations' representatives and Union officials to enter premises.

These laws seek to balance:

  • the right of organisations to represent their members in the workplace, hold discussions with potential members, and investigate suspected contraventions of workplace laws and instruments, including workplace health and safety laws;
  • the right of occupiers of premises and employers to go about their business without undue inconvenience; and
  • the rights of employees and other workers to receive, at work, information and representation from organisation officials.

An organisation must be federally registered in accordance with the Fair Work (Registered Organisations) Act 2009. An organisation can be an employee association (for example a trade union), employer association (for example Business SA or similar), or an enterprise association (an association where the majority of members are performing work in the same enterprise).

Who can enter a workplace?

  • Organisation officials; they must have a valid and current entry permit from the Fair Work Commission ("FWC"). When issuing a permit certain conditions are imposed such as being a fit and proper person, whether the official has received training about their rights and responsibilities as a permit holder and whether the official has ever been convicted of an offence against an industrial law. The FWC can revoke, suspend or impose conditions on an entry permit.
  • Government officials; they are Fair Work Inspectors who ensure compliance with workplace rights and obligations under relevant Commonwealth workplace laws. They are authorised to enter premises, without force, when they believe that people are performing work under the Fair Work Act 2009 (the "Act") or a Fair Work instrument and there are records or documents that are relevant to compliance with relevant Commonwealth workplace laws.

The powers of a Fair Work Inspector to enter premises are not regulated by the right of entry provisions under the Fair Work Act 2009. Rather, their powers to enter premises are regulated under separate provisions of the Fair Work Act 2009.

What rights can be exercised by "right of entry permit holders" whilst on the workplace premises?

  • A right-of-entry permit holder may enter premises and exercise rights whilst on the premises, for the purpose of investigating a contravention of the Act. They must have reasonable grounds for suspecting a contravention has occurred, or is occurring.

The permit holder can only exercise these rights if all the following are met:

  • the suspected contravention relates to or affects at least one member of the permit holder's organisation;
  • the organisation is entitled to represent the industrial interests of that member;
  • the member performs work on the premises; and
  • unless the FWC has issued an exemption certificate*, an entry notice (which has specified requirements) is given to the occupier of the premises and any affected employer, during working hours at least 24 hours, but not more than 14 days, before the entry.

*The union has obtained an exemption certificate from FWA (which will only occur in rare circumstances), in which case the permit holder must give the employer a copy of the exemption certificate either before or as soon as practicable after the entering the premises.

If an exemption certificate has been issued, although notice does not need to be given, the certificate must be given to the occupier and the affected employer as soon as practicable after entry.

Whilst on the premises, the permit holder may:

  • inspect any work, process, or object relevant to the suspected contravention; and
  • interview any person about the suspected contravention. That person must agree to be interviewed and have industrial interests the permit holder's organisation is entitled to represent.

A permit holder must not enter any part of premises that is mainly used for residential purposes and not authorised to remain at a premises if they fail to:

  • produce the permit holder's authority documents for inspection when requested;
  • comply with any reasonable request by the occupier of the premises to comply with Work Health Safety (previously referred to as OH&S) requirements, conduct interviews in a particular room or area of the premises or take a particular route to reach a particular room or area.

What records can be accessed by "right of entry" permit holders?

Whilst on the premises, the permit holder may require the occupier or affected employer to allow the permit holder to inspect, and make copies of, any record or document that is directly relevant to the suspected contravention. They may give a written notice requesting the documents which is provided on the premises or within 5 days of the entry and allow at least 14 days from the date of the notice for the records or documents to be provided.

Can an organisation official hold discussions with employees at the workplace?

An organisation official who is a permit holder may enter premises during working hours to hold discussions with one or more employees providing an entry notice to the occupier is provided with at least 24 hours notice, but no more than 14 days notice.

What can "right of entry" permit holders and employers not do?

  • Hinder or obstruct any person or otherwise act in an improper manner when exercising or seeking to exercise their rights
  • Misrepresent themselves by intentionally or recklessly giving the impression they are authorised to do things they are not authorised to do
  • Refuse or unduly delay entry to a permit holder entitled to enter the premises
  • Refuse or fail to comply with a permit holder's request to produce or provide access to records or documents
  • Intentionally hinder or obstruct a permit holder who is exercising their right of entry powers
  • Misrepresent themselves by intentionally or recklessly giving the impression they are authorised to do things they are not authorised to do.

Right of entry contraventions

A person, such as an employer, occupier of a premises, worker, or organisation officials who believe that the right of entry provisions have been contravened can contact the FWC to deal with a dispute about right of entry, including by arbitration.

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