Plain English Guide on What to do When the Union Comes Knocking

A handy reference guide with all the basic information you need to know at a glance.

When can a union enter your workplace?

Union officials who hold a current right of entry permit (see below) can enter your workplace for three specific reasons:

• to investigate a suspected breach of the Fair Work Act, or a fair work instrument (that is, a modern award, enterprise agreement, workplace determination or Fair Work Commission order) that relates to or affects union members working on the premises (s 481 & s 483A);
• to hold discussions with employees who are, or who are eligible to be members of the union, and who wish to participate in those discussions (s 484); and,
• to investigate breaches of work health and safety laws (s 494).

When a permit holder is exercising its right of entry you must not intentionally hinder or obstruct him or her or act in an improper manner (for example, swearing, being physically aggressive or intimidating or making offensive comments) (s 502). Breaching that provision exposes employers to civil penalties.

Employers are also prohibited from:

• unreasonably failing or refusing to deal with a wokrplace delegate
• knowingly or recklessly making a false or misleading representaiton to a workplace delegate; or
• unreasonably preventing a workplace delegate from exercising their rights

The first reason: to investigate a suspected breach of the Fair Work Act or a fair work instrument

While at your workplace, the union can:

• inspect any work, process or object relevant to the suspected breach;
• interview any person about the suspected breach (subject to that person agreeing and subject to that person being an eligible union member); and,
• inspect or make copies of any record or document (other than a non-union member record or document) that is directly relevant to the suspected breach, and that is kept on the premises and or, that is accessible from a computer that is kept on the premises.

Later access to a record or document:

The union:

• can, either on the day of entry or within five days after the entry, by written notice, require you to produce or provide access to a record or document (other than a non-union member record or document) that is directly relevant to the suspected breach on a later day or day, as specified in the notice (the notice cannot require you to produce anything earlier than 14 days after the notice is given); and,
• must have reasonable grounds to suspect the breach and has the onus to prove those reasonable grounds.

Notice to be given:

• the union must provide a written entry notice, specifying the suspected contravention, during working hours, at least 24-hours (but no more than 14 days) before entry.
• the Union can also apply to the Fair Work Commission for an exemption certificate to waive the 24 hour notice period if they reasonably suspect one of their members has been underpaid and the Commission believes that.

Hours during which the union can attend the workplace:

• the union can only attend the workplace during working hours.

Location of interviews and discussions:

• a room or area mutually agreed as suitable by the union and you. If an agreement cannot be reached then any room or area that is provided for meal or other breaks.

Route to location of interview and discussions:

• you may nominate a particular route to each room and the union must comply, as long as the route requested is reasonable.

The second reason: to hold discussions with union members (or potential union members)

Notice to be given:

• the union must provide a written entry notice, during working hours, at least 24-hours (but no more than 14 days) before entry.

Hours during which the union can attend the workplace:

• the union can only hold discussions during meal times or other breaks.

Location of interviews and discussions:

• a room or area mutually agreed as suitable by the union and you. If an agreement cannot be reached then any room or area that is provided for meal or other breaks.

Route to location of interview and discussions:

• you may nominate a particular route to each room and the union must comply, as long as the route requested is reasonable.

The third reason: to investigate breach of state or territory OHS rights

Notice to be given:

• If the union wants to inspect or access documents only, it must give at least 24-hours written notice of its intention to enter the workplace and the notice must set out its intention to exercise the right and reasons for doing so.
• In NSW, under the Work Health & Safety Act, if the union “reasonably suspects” that a breach of the WHS Act has occurred or is occurring, it may enter the workplace without prior notice, for the purpose of investigating the suspected contravention (provided it has union members at the workplace or the workplace employs people who would be eligible members of the union), and can give notice of entry as soon as reasonably practicable after entering the workplace, unless doing so would defeat the purpose of the entry or unreasonably delay the union in an urgent case.

Hours during which the union can attend the workplace:

• the union can only enter during working hours.

Right of Entry Permit

Only a union official that holds a current right of entry permit can enter a workplace. Such a permit is issued by the Fair Work Commission in circumstances where it is satisfied that the relevant person is a “fit and proper person.” The Fair Work Commissions can revoke, suspend or impose conditions on a permit.

You can check if someone holds a current permit by checking the register of permits on the Fair Work Commission website. To conduct a search you simple need to specify the permit type (which will either be ‘Fair Work entry permit’ or ‘Work, Health & Safety entry permit’), the union official’s full name, and the name of the union he or she belongs to.

Understanding your rights and obligations in any of the above mentioned situations is vital for avoiding penalties and unnecessarily provoking union hostility. If you’re faced with one of the above mentioned situations, use the above guide as a starting point to manage the situation and then immediately seek advice from Coleman Greig’s Employment Law team. We are available to guide you through the process in the particular situation in more detail, to ensure both you and the relevant union comply with the rules.