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    Right of entry might not be something you have to deal with often, but when you do, it is important that you know your obligations.

    Right of Entry
    Your business needs to have in place clear processes for dealing with right of entry and ensure that your staff are trained and understand the business’s rights and obligations in that regard. For employers, knowing and understanding the rights and obligations which employers and unions each have is absolutely key to appropriately dealing with and managing such situations when they arise. It is an offence under the Fair Work Act 2009 (Cth) (FW Act) as well as under State work health and safety legislation for an employer to improperly refuse or delay entry, or hinder or obstruct a permit holder from exercising their access rights of entry to a workplace. Blocking or unduly delaying lawful entry to a work site can result in substantial civil penalties being imposed.

    What are the right of entry requirements?

    In setting out the right of entry provisions the FW Act seeks to balance the right of unions to represent and meet with members and investigate suspected contraventions of the FW Act or workplace health and safety laws with an employer’s right to conduct business without undue inconvenience.

    When a union official seeks to exercise a right of entry to a work site, an employer can:

    • request to see the union official’s entry permit
    • request to see a copy of the entry notice or exemption certificate (where relevant)
    • require the official to comply with WHS requirements that apply to the premises
    • agree with the official the rooms or area where interviews or discussions are to be conducted, and
    • require the official to take a certain route to the room or area to hold discussions.

     However, an employer cannot:

    • deny a request for production of or access to a document or record (including electronic) relevant to a suspected contravention of the FW Act or an industrial instrument
    • refuse or unduly delay a lawful right of entry
    • intentionally hinder or obstruct an official exercising lawful right of entry, including after notice of entry is given but before entry.

    A union official who holds a valid federal right of entry permit has the right to enter building sites and other premises to hold discussions with employees. The employees must be members of the union or be eligible to be members and wish to participate in those discussions during meal/break times.

    Which employees can a union official hold discussions with?

    A union official can hold discussions with employees who meet all of the following criteria:

    • work on that site
    • are entitled to be represented by the permit holder's union
    • wish to participate in discussions.

    Can the union official inspect or access employee records?

    A union official must give written notice if they wish to exercise a state or territory OHS right to inspect or access an employee record.

    The written notice must be provided to:

    • the occupier of the premises
    • any affected employer.

    The written notice must:

    • set out the permit holder's intention to exercise the right and reasons for doing so
    • be delivered at least 24 hours before exercising the right.

    When can a union official enter?

    A  union official must give notice before entering a workplace, and entry rights can only be exercised at certain times.

    Union officials are required to give the occupier of premises, and any affected employer, an entry notice at least 24 hours, but not more than 14 days, before the intended date of entry (unless they have an exemption certificate).  The entry notice or certificate must specify the date of entry.

    A union official is only entitled to enter premises during working hours.

    When a union official enters premises for the purpose of holding discussions, they may only hold these discussions during mealtimes or other breaks.  The Fair Work Commission has determined that 'other breaks' do not include periods of time before or after an employee’s shift. 

    How should you respond if a union official attends your workplace?

    Firstly, determine the reason for entry.

    If the union official is purporting to exercise FW Act right of entry powers, regardless of the reason:

    1. Request to see the union official’s entry permit.
    2. Ensure that the official has provided the necessary advance notice.
    3. Ask the official to sign in and complete any necessary induction and workplace health and safety training before entering the premises. The official is required to comply with any WHS requirements that apply to the premises i.e footwear, hearing protection, child protection measures etc.

    If the official is entering premises to hold discussions, ensure that they only hold these discussions during mealtimes or other breaks in a meal break room or other agreed room. It is usual to try to agree on the rooms or an area where interviews or discussions are to be conducted and to require the official to take a certain route to the room or area to hold discussions

    If the official is entering premises to inspect a suspected contravention:

    1. Ask for details of the suspected contravention, and the general reasons for that suspicion. Note that the official is not required to disclose the names of the workers affected by the contraventions.
    2. Ensure that they only hold interviews with those persons they are allowed to interview.
    3. Ensure that they only access documents or records which relate to their members and the suspected contraventions.

    Right of entry involves applicable State Workplace Health & Safety (WHS) laws

    Unlike entry for suspected FW Act contraventions or for union officials to hold discussions with employees, the WHS right of entry involves the applicable State WHS laws.

    In QLD, a WHS entry permit holder can enter a workplace to inquire into suspected contraventions of the WHS Act Qld without giving notice in advance. It is sufficient that the WHS entry permit holder genuinely holds ‘a reasonable suspicion’ before entering the workplace where a contravention is occurring or had occurred. In such circumstances, the entry notice must be provided ‘as soon as is reasonably practicable after entering a workplace’, unless doing so would defeat the purpose of the entry or unreasonably delay the entry permit holder in an urgent case. The WHS Act Qld provides that 24 hours’ written notice is required to inspect employee records or information held by another person, or to enter a workplace to consult and advise workers.

    If the official is entering premises in relation to a suspected safety issue:

    1. Elicit as much information about the safety issue as you can.
    2. Take into consideration any recommendations which the union might make. However you should form your own view as to whether there is a safety problem, and what the possible and appropriate solution might be.
    3. Implement the appropriate solution as soon as practicable.

    Eight CFMMEU officials allegedly breach right of entry laws at Toowoomba Second Range Crossing project

    The Australian Building and Construction Commission (ABCC) recently commenced proceedings in the Federal Court against the CFMMEU and eight of its officials after they allegedly entered the Toowoomba Second Range Crossing Project unlawfully.

    The conduct of the officials resulted in the Queensland Police issuing formal “move on directions” for some entries.

    CFMMEU officials are alleged to have unlawfully entered the site on several occasions in contravention of the Fair Work Act. The officials refused to show their federal entry permits when asked to do so.

    CFMMEU officials, who did not hold valid entry permits, are alleged to have entered the site .

    In a statement of claim filed in the Federal Court in Brisbane, the ABCC alleges:

    • CFMMEU officials attended the site at around and refused to produce their entry permits when asked on several occasions. The HR Manager told the officials they were not permitted to enter the site unless they produced their permits.
    • While on site, the CFMMEU officials walked along the main access road as trucks were entering and leaving and both refused several requests by the HR Manager to leave.
    • On a later date the CFMMEU officials attended the site and refused to produce their entry permits when asked.
    • The CFMMEU officials jumped a concrete barricade to get on site and walked four abreast along an access way at the Gore Highway section for four kilometres. The ABCC alleges this was unsafe as live works were happening at the time.
    • Work stopped due to safety concerns occasioned by the unauthorised and uninducted entry by union officials who proceeded to walk around live construction areas. Queensland Police attended the site and escorted the officials off the site.
    • The CFMMEU officials again attended the site at about 8am and refused to produce their entry permits on several occasions. After walking around the site, they left after a receiving a formal “move on direction” from a Queensland Police officer.
    • The CFMMEU officials subsequently returned to the site in the afternoon and only left after receiving a formal “move on direction” from a Queensland Police officer.

    The ABCC alleges the conduct in this case contravenes right of entry provisions in the Fair Work Act. The maximum penalty for a breach of the Fair Work Act in this case is $63,000 for bodies corporate and $12,600 for individuals.

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