Union right of entry under the Fair Work Act 2009 (Cth)

Union right of entry under the Fair Work Act 2009 Cth What are your rights as an employer

Recently we have seen an increase in the exercise of rights of entry by various unions to our clients’ workplaces, resulting in the need for education and training for managers and supervisors, as well as ‘on the ground support’.

While we have been able to assist in resolving minor disputes concerning rights of entry for our clients, not all disputes can be so resolved. Many disputes which have escalated to court proceedings have resulted in pecuniary penalties being ordered against either a union, their officials or employers.

On 30 April 2024, the Federal Court of Australia (Federal Court) ordered a construction company to pay a pecuniary penalty of $25,000 to the Construction, Forestry and Maritime Employees Union (CFMEU) after one of its employees was found to have unduly delayed a union official from entering a building site.¹ As the delay occurred in circumstances where the union official held a valid entry permit and was entitled to enter the site in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) (FW Act), this conduct amounted to a contravention of section 501 of the FW Act.

More recently, on 21 June 2024, the Federal Court ordered three union officials to each pay a pecuniary penalty to the Commonwealth, ranging from $3,330 to $6,660, after contravening section 500 of the FW Act by engaging in improper conduct when exercising statutory entry rights.² The CFMEU was ordered to pay pecuniary penalties to the Commonwealth totalling $95,000 as an accessory to the contraventions committed by its union officials.

These cases highlight that the consequences of non-compliance with right of entry provisions can be costly. This serves as a timely reminder for employers to ensure that employees have a comprehensive understanding of statutory entry rights and are adequately prepared to manage and respond to union officials entering, or seeking to enter, the workplace.

This article provides employers with an overview of union right of entry under the FW Act, including requirements for entry and rights and obligations that arise. We also examine the recent amendments to the FW Act, which requires a delegates’ rights term to be included in modern awards, enterprise agreements and workplace determinations.

When can permit holders enter the workplace?

Under the FW Act, a union official who holds an entry permit may enter a workplace and exercise various rights for the purposes of:

• Investigating a suspected contravention under the FW Act or other related industrial instrument relating to, or affecting, members of the union whose industrial interests they are entitled to represent and who performs work on the premises; or
• Holding discussions with workers (who are not necessarily members of the union).

Whilst this article focuses on right of entry under the FW Act, employers must also be aware of entry rights regulated by state and territory work health and safety (WHS) laws. Officials seeking to exercise a right of entry under state and territory WHS laws do not always need to provide the employer with notice prior to entry. For information about right of entry under WHS laws, please contact our Employment and Labour team.

Requirements for entry to the workplace

Under the FW Act, there are two circumstances in which a union official may enter the worksite to investigate a suspected contravention(s) or hold discussions with workers. The first is if the following requirements are satisfied:

• The official has a valid entry permit issued by the Fair Work Commission (FWC);
• The official provides the employer or occupier of the worksite with a notice of entry at least 24 hours (but not more than 14 days) before the entry, and during working hours;
• Entry is sought during work hours;
• Entry is to investigate a contravention, the notice provides the particulars of the alleged contravention; and
• Entry is to hold discussions, the notice specifies that the reason for entry is to hold discussions.

The second circumstance arises if there is a risk that notice of entry to investigate a contravention might compromise the evidence or investigation of the contravention. In this case, a union official may enter the workplace without giving prior notice to the employer if they have an exemption certificate issued by the FWC.

As of 1 July 2024, the FWC has the power to issue exemption certificates if the suspected contravention involves the underpayment of wages to a member of the union who works on the premises, and the FWC reasonably believes that advance notice of the entry would hinder an effective investigation. This is in addition to the existing exemption ground of reasonable belief that advance notice of entry might result in the destruction, concealment or alteration of relevant evidence.

What can permit holders do in the workplace?

The FW Act limits the sorts of rights that may be exercised by a union official while on premises.

Suspected contraventions

When a union official has a right of entry to investigate a suspected contravention of the FW Act or fair work instrument, they may do any of the following:

• Inspect any work, process or object relevant to the suspected contravention;
• Interview any person about the suspected contravention, provided the employee consents and is entitled to be a member of the union the official represents;
• Require the production of any record or document that is directly relevant to the suspected contravention, provided the document is on the premises or is accessible from a computer on the premises. However, this does not include records or documents that are subject to legal professional privilege or would otherwise contravene a state or territory law if produced; or
• Make a further written request for documents within 5 days of the visit.

A union official is not permitted to access documents or records that relate to non-union members, or which do not ‘substantially relate’ to the employment of a union member, except with the non-member’s written permission or an order from the FWC.

Discussions with workers

When a union official has a right of entry to hold discussions, they may only hold discussions with employees who:

• Perform work on the premises;
• Are entitled to be represented by the official’s union; and
• Are willing to participate in those discussions.

Interviews or discussions may only be held during meal or other breaks (rather than during paid work time) and must be conducted in rooms or areas agreed with the occupier of the premises. If an agreement cannot be reached, discussions may take place in any room or area where the employee normally takes meal or other breaks, and which is provided by the occupier of the premises for breaks.

Notwithstanding the reason for entry onto an employer’s premises, a union official must not:

• Intentionally hinder or obstruct any person, or otherwise act in an improper manner;
• Give the impression, or be reckless as to giving the impression, that they are authorised to do something that they are not;
• Enter any part of the premises that is mainly used for residential purposes; or
• Use information for any purposes other than the investigation or inquiry.

Each of the prohibitions set out above are civil remedy provisions which could result in pecuniary penalties being ordered against the union official and/or union for breach, as was the case in the Federal Court’s decision handed down on 21 June 2024 involving the CFMEU. Penalties can be ordered up to a maximum of $19,800 against individuals and $99,000 against body corporates for any breach.

What are an employer’s rights and obligations when a permit holder enters the workplace?

Once a union official has entered the worksite, employers or occupiers of the premises may:

• Require the union official to complete a safety induction and comply with WHS procedures;
• Require that interviews or discussions be held in a particular room or area;
• Require that the union official takes a particular route to reach the selected room or area of the premises;
• Accompany the union official during their visit (without unduly hindering or delaying entry); and
• Take notes of the union official’s movements while on site, including who they speak to, where and when.

Similar to the prohibitions that apply to union officials which constitute civil remedy provisions and are subject to the same maximum penalties set out above, an employer, occupier of premises or other person must not:

• Improperly refuse or unduly delay entry onto the premises by a permit holder who is entitled to enter;
• Intentionally hinder or obstruct a permit holder from exercising their right of entry to a workplace;
• Refuse or fail to comply with a permit holder’s lawful request to produce or provide them with access to records or documents; or
• Misrepresent that something they are doing (or something that someone else is doing) is authorised by the right of entry provisions of the FW Act.

Recent changes to workplace delegates’ rights: Is your organisation prepared?

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 amended the FW Act to include a new requirement that, from 1 July 2024, a delegates’ rights term must be included in workplace determinations, enterprise agreements (made on or after 1 July 2024) and all modern awards. The FWC has handed down its determination containing the final model delegates’ rights term to be inserted in all modern awards.

A workplace delegate is a person appointed or elected, in accordance with the rules of the relevant union, to be a representative for members of the union who work in a particular enterprise. A workplace delegate is entitled to represent the industrial interests of union members, and others eligible to be members, including in disputes with their employer.

These amendments provide statutory rights and protections for workplace delegates in representing the industrial interests of union members and those eligible to be members, and include the following entitlements:

• Reasonable access to communication with members (and potential members) in relation to their industrial interests;
• Reasonable access to the workplace and workplace facilities; and
• Reasonable access to paid time during normal working hours for the purpose of attending relevant training (this entitlement does not apply to workplace delegates who are employees of small business employers).

Employers are prohibited from:

• Unreasonably failing or refusing to deal with a union delegate;
• Knowingly or recklessly making a false or misleading representation to a union delegate; or
• Unreasonably hindering, obstructing or preventing the exercise of the rights of a union delegate.

From 26 August 2024 (or an earlier date fixed by proclamation), the new entitlements for workplace delegates will extend to cover a workplace delegate who is a ‘regulated worker’ (i.e. an “employee-like” worker).

Employers should review existing processes for dealing with workplace delegates and ensure that they comply with the new rights and protections included in workplace determinations, enterprise agreements and modern awards. This is noting that, if an enterprise agreement that is made on or after 1 July 2024 does not include a delegate right term, or its delegates’ rights term is less favourable than any relevant modern award, the (most favourable) term set out in the relevant modern award will be incorporated into the agreement.

What next?

There are several things that employers should do to ensure they comply with the law on right of entry and workplace delegates’ rights.

• Knowledge: It is important that all employers, particularly those in heavily unionised industries, have a sound understanding of rights of entry obligations, as well as the recent changes relating to workplace delegates’ rights. Employers should seek advice if they are unsure about their rights and legal obligations when dealing with union officials and workplace delegates.
• Training: Employers must also ensure that their managers and employees are well-equipped to deal with union officials who seek to enter the workplace or make requests for the production of documents (including education on who can enter and when, verification of entry permits and notification requirements) or in relation to the exercise of workplace delegates’ rights. Managers who are involved in contraventions of the FW Act or fair work instruments may also be subject to civil penalties for breaching the law.
• Capability: Employers should develop policies and procedures that assist managers to deal with union entry to the workplace and with delegates who seek to exercise their rights. For example, employers should consider developing a policy on workplace delegates’ rights to ensure that there is no misunderstanding about rights afforded to workplace delegates and the facilities that they will be provided with, which will assist in avoiding disputes and inadvertent contraventions of the law.

Our Employment and Labour team is well placed to support employers and occupiers of premises in providing advice, training and documentation to support employers comply with the law.