Australia: Union Right Of Entry: What Will It Mean To You?

There are only 15 days to go until the implementation of the Fair Work Act 2009 (Cth) (the Act). One of the more controversial aspects of the Act are the "right of entry" laws.

The significant changes that will be introduced by the Act are:

  • Unions can enter workplaces to hold discussions with employees simply on the basis that their own registered rules provide they are able to represent the employees;
  • Unions cannot be "locked out" by non-union agreements such as employee collective agreements or AWA's; and
  • More than one union may use the right of entry laws for the same group of employees.

This legal update will look at the "right of entry" laws, and the implications of those laws on companies who, up until now, may have had very little to do with unions and right of entry.

When Will A Union Be Able To Use Their "Right Of Entry"?

From 1 July a union official can legally enter an employer's premises if:

  • The official has a valid entry permit
  • The official gives proper notice of the entry (which, sometimes, is no notice at all), and
  • The official is entering for one of the following three reasons:
    1. To investigate a suspected breach of the Act or an industrial instrument;
    2. To hold discussions with employees; or
    3. Under state occupational health and safety laws.

How Much Notice Do Unions Need To Give To Enter?

If an official is entering to hold discussions with employees, or to investigate a suspected breach of the Act or an industrial instrument, then they must give the employer written notice between 24 hours and 14 days before the visit.  The visit must occur during working hours.

The entry notice has to state the following information:

  • Where the official plans to enter
  • The day of entry
  • The union that the official is a member of
  • A declaration that the union can represent the affected employees, and the provision of the union's rules which entitles the union to represent the employees
  • The purpose of the visit (ie. to hold discussions or investigate a suspected breach), and
  • If the notice is to investigate a suspected breach – details of the alleged breach and a declaration that the alleged breach relates to or affects a member.

Entering Without Notice?

An area of interest will be Fair Work Australia's (FWA) power to issue "exemption certificates" – giving officials the right to investigate suspected breaches without giving the employer notice.  To get an exemption certificate, unions will need to convince FWA that "advance notice of the entry ... might result in the destruction, concealment or alteration of relevant evidence".  This hearing would be held without the employer present.  How this power will apply in practice remains to be seen – FWA may refuse to issue exemption certificates unless unions can give solid evidence that the employer will destroy, conceal or alter evidence.  Alternatively, FWA may simply rely on an untested assertion by the union, and so readily issue exemption certificates.  In the worst-case scenario, unions may routinely apply for an exemption certificate any time that they plan to visit a worksite to investigate a breach.  This area of the new laws will no doubt be watched closely – especially as employers will not be represented when the FWA decides to issue an exemption certificate and as there will effectively be no right of appeal from FWA's decision.

As is currently the case, often officials will not be required to give notice if they are entering premises to investigate a suspected breach of occupational health and safety laws and do not require access to employee records.  This will depend on the OHS laws in your state.  For example, in Queensland, officials need only inform the employer of their arrival at the worksite, and of their intentions.  In Queensland officials can only arrive without notice if they are investigating a suspected breach of OHS laws, they cannot simply enter on a "fishing expedition" or if they have no reasonable basis to suspect an OHS breach exists. 

Investigating Suspected Breaches Of The Fair Work Act Or Of An Industrial Instrument

If an official "reasonably suspects" that an employer is breaching the Act or an industrial instrument that relates to or affects a member, the official can enter the employer's premises to investigate the breach.  While on the premises, the official can:

  • Inspect any relevant work, process or object
  • Interview any person who could be a member of the union and agrees to be interviewed, or
  • Require the employer to allow the official to inspect, copy or record relevant documents.

Normally, officials will not be able to inspect or copy records that relate to people who are not members of the union without the employee's written permission.  Officials can only copy these "non-member records" if the document "substantially relates" to a union member, or if FWA issues an order allowing the union to copy the record.  FWA will only issue an order if it is satisfied that copying the document is necessary to allow the union to investigate the suspected breach.

Any documents a union obtains from using these powers is subject to privacy laws and can only be used for the purpose that they were obtained – investigating or prosecuting a suspected breach.  It will be an offence for unions to disclose or use the documents for unauthorised purposes.

Holding Discussions With Employees

Officials can enter an employer's premises to talk to employees during their breaks, provided the employees are eligible to become members of the union.

This is the most significant expansion that the Act makes to right of entry – previously, employers could "lock out" a union by creating a non-union agreement such as an employee collective agreement.  Alternatively, an employer could choose which union they wished to deal with by making a union collective agreement with their chosen union, which would lock out all other unions who could potentially represent the employees.

Entering For Occupational Health And Safety Purposes

The Act keeps in place the existing State and Territory laws for right of entry on occupational health and safety grounds.  This means that employers will still need to be familiar with the relevant laws in their State or Territory, and national employers will need to be familiar with the different laws in each State and Territory.

Limitations On The Behaviour Of Officials And Employers

As under the Workplace Relations Act 1996, it will still be an offence for officials to misrepresent their rights under the laws and for employers to attempt to hinder or obstruct an official validly exercising their powers.

Officials will, however, have to abide by the reasonable directions of the employer, such as to comply with OHS requirements, or to hold discussions in a certain location (within reason).

Permit holders will be subject to a "fit and proper person" test prior to obtaining their permit, and may have their permit revoked or suspended if FWA is satisfied the permit holder has contravened the Act or the Privacy Commissioner has substantiated a breach of privacy.

Clothing, Textile And Footwear Outworkers

Special rules have also been implemented for outworkers in the clothing, textile and footwear industries.  Without going into detail, notable features include the ability for officials to enter premises to investigate contraventions without notice, and broader powers to inspect other locations, where members or potential members may not work.  Employers in these industries should take particular note of the changes.

Implications For Employers

The full effect of the new right of entry laws will only become apparent over time, but possible effects include:

  • Increased union activity and membership in traditionally "non-union" workplaces
  • "Turf wars" between rival unions with coverage of the same group of employees, and
  • Potentially, unions regularly arriving without notice to investigate suspected breaches of industrial laws.

Would You Like To Know More?

Deacons will be holding seminars nationally in June on the Fair Work Act, where we will present a detailed analysis of the new Fair Work Act and provide a written summary of the new laws, allowing quick navigation through the changes.

The following table outlines the dates and times of these sessions around the country. Click here to receive an invitation to this event.

http://Enter URL






Fair Work Act
(paid - $195 plus GST)

16 June

18 June

17 June

16 June

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions