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Union officials need for a permit confirmed

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Right of entry refers to the part of the Commonwealth workplace laws that regulate the rights of an organisation’s employees and their elected officers [such as trade union officials] to enter premises.

For the purpose of the right of entry provisions under the Fair Work Act 2009, an organisation must be federally registered by the Fair Work Commission in accordance with the Fair Work [Registered Organisations] Act 2009.

The Federal Court of Australia has recently clarified the relationship between the Fair Work Act right of entry provisions and the right of entry provisions under state safety legislation.

The Federal Court has confirmed that union officials must hold and provide a valid entry permit to the site operator in order to enter sites under State safety legislation.

The relationship between Federal and State right of entry provisions

The Federal Court noted that this matter hinged on whether or not section 81 of the WHS Act provided a 'State OHS right' for the purposes of the Fair Work Act. If it did, then the union officials were required to provide an entry permit when seeking access to the site. If not, then no entry permit was required.

In summary:

1. The Fair Work Act provisions regulating right of entry extend to any state based laws which authorise a union official to enter a site. This means that irrespective of the basis on which a right of entry is being sought, the Fair Work Act provisions will apply, including the requirement to hold and produce a valid entry permit.

2. Employers should ensure they have a clear documented and commonly known protocol for dealing with right of entry requests to ensure that any such request is lawful and exercised in a manner that minimises workplace disruption.

3. The collection and documenting of each occasion requests and entry or otherwise occurs is important. Managers or supervisors on site should receive instruction in responding to and documenting events during a right of entry.

4. The Fair Work Amendment [Modernising Right of Entry] Regulation 2019 now require a photo and signature on new permits.

5. The permit holder can only exercise these rights if ALL of the following are met:

  • There is a suspected contravention that relates to or affects at least one member of the permit holder’s organisation

  • The organisation is entitled to represent the industrial interests of that member

  • The member performs work on the premises

  • Unless the Fair work Commission has issued an exemption certificate, an entry notice is given to the occupier of the premises and any affected employer, during working hours at least 24 hours, but not more than 14 days before the entry.

6. From July 01, 2019 all right of entry permits shall include ALL of the following:

  • An expiry date for the entry permit

  • A recent full face photograph of the permit holder

  • Permit holder’s signature

7. An organisation official who is a permit holder may hold discussions with one or more employees only at designated official break times during the working period, whose industrial interests the permit holder’s organisation is entitled to represent, and who voluntarily wish to participate.