Broad provisions exist for union officials to enter work premises both under the Fair Work Act 2009 (Cth) (FW Act) and various state and territory Occupational Health & Safety (OHS) Acts (state OHS Acts). The FWA Act provisions supplement the state OHS Acts by imposing certain obligations on union officials seeking to gain entry to worksites on the basis of suspected OHS contraventions. The following article discusses the ability of union officials under the FW Act to enter work premises of ‘national system employers’ in relation to suspected OHS contraventions.
A national system employer generally includes constitutional corporations, most Victorian employers, employers in the Northern Territory and ACT, Commonwealth and Commonwealth authorities, employers of flight crews, maritime and waterside workers, and employers covered by a federal agreement or award before 27 March 2006 that are not constitutional corporations. The new year will also see the extension of the FW Act to cover all private sector employers, regardless of whether they are corporations. This has been achieved by the passage of State laws which refer powers to the Commonwealth, and by equivalent amendments to the federal Act which scraped through just before the end of this year’s parliamentary sitting. The exception will be in Western Australia, whose Liberal government has refused to co-operate in creating a national system, and where accordingly the coverage of the FW Act will continue to be determined by whether an employer is a trading, financial or foreign corporation.
Where a union official suspects an OHS contravention, he or she is entitled under the FW Act to enter the workplace to investigate where:
- the union official holds an entry permit issued by Fair Work Australia to enable him or her to enter the premises, and
- the relevant state OHS Act confers a right on the union official to enter and inspect the workplace or access employee records.
Prior to entering a worksite, the union official must provide the employer with written notice at least 24 hours prior to the entry. The written notice must specify the union official’s intention to enter the premises and the reason for doing so. This provision over-rides any state OHS Act which allows union officials to enter worksites without notice (eg Section 78 of the NSW Occupational Health and Safety Act 2000). The Explanatory Memorandum to the FW Act states that the notice provisions do not apply in the event of an ‘OHS emergency’ however this has not been expressly written into the FW Act. ‘OHS emergency’ is not defined.
Where a union official complies with the notice requirements and has rights to do so under the relevant state OHS Act, he or she is entitled to enter the worksite to exercise an OHS right but only during working hours.
Union officials are also required to adhere to any reasonable OHS requirements of the worksite. For instance, if it is a policy that all persons wear safety glasses whilst on the shop floor, the union official is required to adhere to that policy. If the union official refuses to do so, he or she is not authorised to enter the worksite.
Whilst at the worksite, the union official is generally entitled to:
- inspect work, processes or objects
- interview persons who agree to be interviewed and who the union is entitled to represent, and
- inspect and copy any record or document in relation to the suspected contravention.
Union officials have limited access to records or documents that are directly related to the suspected contravention and do not have the ability to view or copy records that do not substantially relate to the employment of a person who is a member of the union.
Employers (and union officials) who fail to comply with the right of entry provisions may face penalties for breaching the FW Act and should seek legal advice to understand their rights and responsibilities.