About entry notices

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Right of entry

A permit to enter workplaces and inspect records will only be issued to a union official where a Registrar of the Australian Industrial Registry (the Registry) is satisfied he or she is a fit and proper person to exercise the rights it provides.

Employers and unions have rights and obligations under the Workplace Relations Act 1996 (the WR Act) and may incur penalties for contravention. The Australian Industrial Relations Commission (AIRC) is empowered to make orders in relation to the rights of both union officials and employers.

What is right of entry?

A union official (which includes an employee) of a registered union, has the right to enter an employer's premises if he or she holds a valid and current right of entry permit, and has provided any written notice required by the Workplace Relations Act 1996 (the Act) to the employer, for the purposes of:

An employer must not unreasonably obstruct an official's entry if written notice (where required) has been given, and the official is able to present a valid permit.

Applying for a right of entry permit

Applications for the issue of right of entry permits to union officials are made by the union to a Registrar of the Australian Industrial Registry.

In determining whether the official is a fit and proper person to hold a permit, the Registrar must take into account a number of matters set out in s.742 of the WR Act. These include:

The Registrar may impose conditions on a permit having regard to the above considerations.

A permit may not be issued if a right of entry of the official is under a current disqualification or suspension under federal, state or territory law.

To apply for a right of entry permit use Form R40—Application for permit to enter and inspect premises.

Entry to investigate suspected breaches

An official who holds a right of entry permit is entitled to enter work premises if that person suspects, on reasonable grounds, a breach of:

The visit must be for the purpose of investigating the suspected breach and must occur during working hours. The official may only enter the premises if:

The official may only investigate a suspected AWA breach upon the written request of the employee concerned.

An employer may dispute the reason for the official's entry to the premises for a suspected breach by applying to the AIRC for an order to prevent access or to revoke, suspend or impose conditions on the permit holder's permit. The union would then have to satisfy the AIRC that its belief in a suspected breach was reasonable.

Notice of entry to the premises to investigate breach

An official must give between 14 days and 24 hours written notice to an employer before entering their premises to investigate suspected breaches. The notice must in a form approved by the Industrial Registrar under s.738 of the WR Act (see sample entry notice instrument and entry notice) and must specify:

The notice period can be waived upon application to a Registrar, if an official believes that advance notice of entry onto the premises might result in the employer destroying, concealing or altering relevant evidence. If the Registrar is satisfied that there are reasonable grounds for believing this might occur, an exemption certificate must be issued.

Access to records

An official is entitled to access and inspect and copy, any documentation (other than an AWA) in relation to a suspected breach. The documentation could include:

Such access is normally restricted to the records of members of the union which the official represents.

If the official believes that non-member records are relevant to the suspected breach, he or she may apply to the AIRC for an order to inspect and copy those particular records. Before issuing such an order, the AIRC must be satisfied that the order is necessary for the purpose of investigating the suspected breach.

Entry to hold discussions with employees

An official who holds a right of entry permit is entitled to enter work premises to hold discussions with eligible employees namely those who:

An official is not authorised to enter any part of the employer's premises that is used for residential purposes, unless the employer or occupier of the residential part of the premises agrees.

If all employees at a workplace are covered by AWAs, an official does not have the right to enter the workplace to hold discussions.

An official may only enter a workplace during working hours and may only hold the discussions during the employees' meal or other breaks.

An official is not authorised to remain at a workplace if they fail to comply with an employer's reasonable request to hold discussions in a particular area, take a particular route to that area, or comply with an OH&S requirement.

Notice of entry to the premises to hold discussions

An official must give between 24 hours and 14 days written notice, in the form approved by the Registrar under s.738 (see sample entry notice instrument and entry notice), to an employer before entering their premises to hold discussions with employees. The notice must specify:

Limitation on entry on religious grounds

Certain employers may be able to obtain an endorsement on a conscientious objection certificate from a Registrar, which exempts them under some circumstances from the obligation to provide access to union officials entering a workplace for the purpose of holding discussions with employees (see s.762 of the WR Act). Such employers, however, are not exempt from giving access to an official to enter a workplace to investigate suspected breaches of the WR Act, a workplace agreement or award, or for OH&S purposes.

Entry for Occupational Health & Saftey (OH&S) purposes

The legislation imposes conditions on persons seeking to exercise right of entry under prescribed state or territory OH&S laws, to premises owned or occupied by a constitutional corporation or the Commonwealth, or is located in a territory, or where the right relates to contractors providing services to a constitutional corporation or the Commonwealth (s.755 of the WR Act). The provisions operate in addition to the state or territory law.

Currently the legislation applies to entry under specified New South Wales, Victorian, and Western Australian OH&S legislation, as prescribed in Chapter 2, Regulation 15.1 of the Workplace Relations Regulations 2006.

An official, who is entitled under one of the prescribed state or territory OH&S laws to enter a workplace, must now also have a valid right of entry permit issued under the Act.

They can only exercise the right during working hours.

If the official seeks to exercise a right to inspect or access employment records under the state or territory OH&S law, then they must give written notice, specifying the reason, at least 24 hours before entering to exercise that right.

Conduct

When entering a workplace, an official is required to:

The official's rights and responsibilities are also subject to any conditions that have been imposed on their permit by the Registrar.

If there is any dispute over whether the request of the employer is reasonable, either party may make an application to the AIRC for an order to resolve the matter.

The AIRC is empowered to make whatever orders it deems appropriate if it is satisfied that a request made by either party is not reasonable.

Sections 767 and 768 of the WR Act set out certain prohibitions in relation to the exercise of an official's right of entry to a workplace.

An employer must not:

An example of hindrance would be if an employer destroys, conceals or manufactures evidence relating to the suspected breach after receipt of the written notice.

The failure of the parties to agree on a place to inspect documents that are not available in the workplace does not constitute hindering or obstructing a permit holder.

An union official must not:

Abuse of the permit system

The WR Act empowers the AIRC to make orders to restrict the rights of unions or officials if it is satisfied there has been an abuse of the permit system.

The AIRC may make an order on its own initiative or on application by a workplace inspector. Such orders may include revoking or suspending some or all of the permits that have been issued to officials of the union; imposing limiting conditions on existing or future permits; and banning the issuing of future permits.

The AIRC may also make orders to settle disputes regarding the operation of the permit system and may enter a workplace during working hours to conduct inspections and interview employees in relation to any proceedings before it.

The powers of the AIRC in relation to the permit system are exercisable by the President, a Presidential Member or a Full Bench.

Civil remedies

Certain persons may go to the Federal Court of Australia or the Federal Magistrates Court to pursue a civil remedy for what they believe to be a breach of Part 15 of the WR Act.

Those currently eligible to make such an application are:

In relation to a contravention of the WR Act, the Court may:

Expiry, revocation and suspension of permits

Permits remain in force for three years from the date of issue, unless revoked, or until the official ceases to be an official of the organisation, whichever occurs first.

A workplace inspector may apply to a Registrar for a permit to be revoked or suspended or have conditions imposed upon it.

The Registrar must revoke or suspend a permit if the official:

The suspension periods are:

The official must return the permit to a Registrar within seven days of its revocation, suspension, or expiration or when conditions are imposed on the permit.