How do you Respond to a Right of Entry Request?

Upon application by an organisation official (ie union official), the Fair Work Commission can issue permits to allow entry to your premises for specific purposes outlined in the Fair Work Act 2009 (Act). Generally you cannot refuse or unreasonably delay entry without breaching a civil penalty provision of the Act. However you can take steps to scrutinise this process to ensure the right of entry is properly exercised by the permit holder.

1. Why are entry permits granted?

Entry permits allow organisations to exercise their right to represent members in the workplace, hold discussions with potential members and investigate suspected contraventions of workplace laws.

They also seek to balance your right to carry on your business without too much inconvenience.

An entry permit can be granted to a permit holder for the following purposes:

1. to investigate a suspected contravention of the Act (or a modern award, enterprise agreement, workplace determination or FWC order) that:
   • relates to a member of the permit holder’s organisation;
   • whose industrial interests the organisation is entitled to represent; and
   • who works on the premises; or
2. to hold discussions with one or more employees:
   • who work on the premises;
   • whose industrial interests the permit holder’s organisation is entitled to represent; and
   • who wish to participate in the discussions.

Unless revoked, the entry permit will expire 3 years after the date it was issued or when the permit holder ceases to be an official of the relevant organisation.

2. Who is authorised to enter the premises?

The entry notice will confirm who is authorised to enter the premises.

You should read the notice carefully to ensure there is no reference to “we” or any other person. If there is, you can refuse entry to anyone other than the permit holder.

3. Is the entry notice compliant?

In all cases, the permit holder must:

1. give you an entry notice during working hours at least 24 hours, but no more than 14 days, before the entry;
2. exercise the right of entry only during work hours; and
3. enter the premises on a day specified in the entry notice.

The entry notice must be in a Form 2, which is located in Schedule 3.3 of the Fair Work Regulations 2009. The form is highly prescriptive and must refer to the section of the Act which authorises the entry.

For entry to investigate a suspected contravention, the notice must:

1. particularise the suspected contravention(s); and
2. contain a declaration that the permit holder’s organisation is entitled to represent the industrial interests of a member who works on the premises to whom the suspected contravention relates or who is affected by the suspected contravention.

For entry to hold discussions, the notice must contain a declaration that the permit holder’s organisation is entitled to represent the industrial interests of an employee who works on the premises.

4. What can a permit holder do to investigate a suspected contravention?

To investigate a suspected contravention, the permit holder may:

1. inspect any work, process or object relevant to the suspected contravention;
2. interview any person about the suspected contravention:
   • who agrees to be interviewed; and
   • whose industrial interests the permit holder’s organisation is entitled to represent; and
3. inspect or obtain copies or records that directly relate to the directly relevant to the suspected contravention, subject to certain restrictions.

5. How can you respond to an entry notice for discussions?

Discussions can only occur during mealtimes or other breaks in rooms or areas that you agree to.

You should write to the permit holder to confirm the facilities you will make available and why they are reasonable, subject to the permit holder’s compliance with the Act.

If you require any assistance in this regard, please contact the Employment and Business team.