A union official who holds a permit under the Fair Work Act 2009 may enter a workplace (or site), subject to certain conditions.

Under the Fair Work Act 2009, a permit holder may enter a site to hold discussions with current or potential union members, or to investigate a suspected breach of the Act, or an enterprise agreement or award. A permit holder may also enter a site under the Work Health and Safety Act 2012 (SA) to inquire into a suspected contravention of that Act, or to consult and advise workers.

We can assist your business understand its obligations in respect of union right of entry, and provide on-site assistance if required. Members can notify Master Builders SA of any instances of union entry on site by logging into the Members Portal and completing the Record of Union Entry form.

Entry to hold discussions (s 484 FW Act)

A permit holder may enter a site to “hold discussions” with current or potential union members, during breaks from work. The permit holder must provide an entry notice to the site occupier (i.e. principal contractor) at least 24 hours and up to 14 days prior to the entry.

The entry notice must:

  • specify the premises that are proposed to be entered;
  • specify the date of the entry;
  • specify the name of the union that the official represents; 
  • refer to the relevant section of the Fair Work Act 2009, and
  • contain a declaration by the official and the section from the union rules that entitles the union to represent the workers.

The permit holder can only hold discussions with workers who:

  • work on site;
  • wish to participate; and
  • are or could be members of the union that have provided the notice.

Discussions can only take place during meal/break times in lunchrooms, or other areas agreed with the site occupier. The route taken to lunchrooms or agreed areas must be the route requested by the site occupier.

Upon request, the permit holder must:

  • produce their original A4 size Entry Permit to the site occupier for inspection, and
  • comply with all work health and safety requirements that apply on the site.

Entry to investigate suspected breach of FW Act or workplace instrument (s 481 FW Act)

A permit holder may enter a site to investigate a suspected breach of the Fair Work Act 2009 or a workplace instrument (i.e. an enterprise agreement). The permit holder must provide notice to the site occupier (i.e. principal contractor) at least 24 hours and up to 14 days prior to the entry.

The entry notice must:

  • specify the premises that are proposed to be entered;
  • specify the date of the entry;
  • specify the name of the union that the union official represents; 
  • refer to the relevant section of the Fair Work Act 2009;
  • contain a declaration by the union official and the section from the union rules that entitles the union to represent the workers; and
  • contain details of the suspected breach.

A permit holder can only investigate a suspected breach that relates to or affects a member of the union, who the union is entitled to represent. The permit holder must reasonably suspect that a breach has occurred or is occurring.

While on site, the permit holder may:

  • inspect any work, process or object that is relevant to the alleged contravention;
  • interview a person about the suspected contravention (provided that the union is entitled to represent the person’s interests and the person has agreed to be interviewed);
  • require the occupier to allow the permit holder to inspect and make copies of a document or record that is directly relevant to the suspected contravention that is kept on the premises or is accessible from a computer that is kept on the premises (unless this would contravene a Commonwealth or State law).

Upon request, the permit holder must:

  •  produce their original A4 size Entry Permit to the site occupier for inspection, and
  • comply with all work health and safety requirements that apply on the site.

Entry to inquire into suspected contravention of Work Health and Safety Act 2012 (s 117 WH&S Act)

A union official must hold both a WHS entry permit and an entry permit under the Fair Work Act 2009 to enter a workplace under the WH&S Act.

Before entering the site, the permit holder must reasonably suspect that a contravention of the WH&S Act has occurred or is continuing and involves a risk to the health or safety of workers.

Prior to the entry, the permit holder may notify SafeWork SA of the entry, who may arrange for an Inspector to attend at the time of entry.

A written entry notice must be provided to the person conducting a business or undertaking (PCBU), or person in control of the site, as soon as practicable after the entry.

The notice must contain:

  • the full name of the permit Holder and the Union;
  • the relevant section of the WHS Act;
  • the name and address of the worksite;
  • the date of entry;
  • details of the suspected contravention;
  • a declaration including the section in the union’s rules that entitles the union to represent the worker.

Upon request, the permit holder must produce their WHS entry permit and photographic identification.

If all of the requirements have been satisfied, the site occupier must not refuse or hinder the entry.

The permit holder must comply with any reasonable request by the PCBU or person in control of the worksite to obey any WHS requirements or any other legislated requirement that applies to visitors.

When exercising a right of entry, a permit holder must not delay, hinder or obstruct any person, or disrupt work on site, or act in an improper manner.

The permit holder may inspect any work system, plant, substance, or structure that is relevant to the suspected contravention, and consult with workers (whose interests the union is entitled to represent), and the PCBU, in relation to the suspected contravention. The permit holder can request to inspect and copy documents that are relevant to the suspected contravention (subject to any direction given by an inspector and applicable legal obligations).

Entry to inspect employee records (s 119) and consult and advise workers (s 121 WH&S Act)

A permit holder who is entitled to enter a workplace to enquire into a suspected contravention of the Act may enter the workplace for the purpose of inspecting or making copies of employee records or other documents that are directly relevant to the suspected contravention.

A permit holder may enter a workplace to consult and provide advice to workers who they are entitled to represent in respect of work health and safety matters.

The notice of entry under these provisions must be provided at least 24 hours and not more than 14 days before the entry.