Often when a union expresses its intention to enter a workplace, it is seen by employers as a coercive tactic by the union to seek membership or otherwise gain traction in a particular situation. It is important, however, that employers take union entry rights seriously – not only because sometimes entry is sought to investigate genuine work health and safety concerns, but also because failing to do so can lead to significant penalties (and other collateral consequences) for employers.
For employers, knowing and understanding the rights and obligations which employers and unions each have on and during union entry is absolutely key to appropriately dealing with and managing such situations when they arise.
Below are 10 key things that we think employers should know when it comes to union right of entry.
- Reasons for entry
A union official can enter a workplace to:
- Investigate suspected breaches of the Fair Work Act and other Fair Work instruments (such as an Award or Agreement), which relate to or affect the members of their organisation;
- Investigate breaches relating to textile, clothing and footwear industry outworkers;
- Meet with employees (but only with those employees that their organisation is entitled to represent) to hold discussions; and
- Exercise work/occupational health and safety rights (including inquiring into a suspected breach of work/ occupational health and safety obligations).
- Notice to be given
Under the Fair Work Act, an entry notice must be given no less than 24 hours and no more than 14 days before the proposed entry into a workplace. The notice must also meet specific content requirements, including the date of the entry and particulars of any suspected breaches. If it does not, an employer may be entitled to refuse access.
- Requirements for entry
To enter a workplace pursuant to the Fair Work Act, a union official must:
- Hold a valid and current entry permit;
- Be entitled to represent workers at the workplace; and
- Provide written notice of entry.
If the union official does not (or is not, or cannot – as the case may be) do each of these things, an employer may be entitled to refuse them entry.
- How to know if an entry permit is valid and current:
Employers can check if someone holds a valid and current entry permit by checking the register of permits on the Fair Work Commission's website: (https://www.fwc.gov.au/registered- organisations/entry-permits/check-entry-permit).
- When entry can occur
A permit holder can only gain entry to a workplace during working hours.
- Once on site
Once on site, the permit holder can:
- Inspect any work, process or object relevant to the suspected breach;
- Interview members of their union, or those eligible to become members of their union, about the suspected breach; and
- Require the employer to allow the inspection and copying of any record of a member that is directly relevant to the suspected breach.
- Where to conduct interviews
A permit holder must comply with a reasonable request to conduct interviews or discussions in a particular room or area of the premises, or to take a particular route to reach a particular room or area of the premises. Where agreement cannot be reached as to the location of interviews or discussions, then they can be held in the room where meal breaks are ordinarily taken.
- When interviews can take place
Interviews and discussions are to take place only during meal or other breaks. Employers can refuse entry to a permit-holder for the purpose of holding discussions if he or she seeks to do so before or after work.
- Accessing records
Union officials are only able to access employee records of union members, unless they have the written consent of the non- member to access their records (or an order of the Fair Work Commission in its place).
- Refusing entry
It is an offence under the Fair Work Act as well as under State work health and safety legislation for employers to improperly refuse or delay entry, or hinder or obstruct a permit holder from exercising their access rights of entry to a workplace. The penalties applicable are significant.
Whilst refusing entry can create problems for employers (often in the shape of penalties if the refusal is improper, but potentially also in the form of provoking greater union interest or involvement in the workplace), it is certainly open to employers to refuse entry in the right circumstances - particularly where a union does not seek or gain entry in a way which accords with the relevant laws. It is also important for employers to understand that there are rules as to what a permit-holder can do once on-site, and when and where they can do it.
Properly understanding the rights and obligations which both employers and unions have in union entry circumstances is an important tool in managing such situations and in mitigating relevant risk. If faced with a right of entry situation, it is often best to seek expert legal advice so as to ensure both understanding and compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.