Handling a right of entry dispute
Part 3-4 of the Fair Work Act 2009 sets out when and how union officials holding entry permits can enter workplaces. The regime balances the union's right to investigate and communicate with members against the occupier's right to manage their workplace. Disputes are resolved by the Fair Work Commission.
This is an 8-step workflow for handling a right of entry dispute under the Fair Work Act 2009 (Cth). Right of entry allows union permit holders to enter workplaces to investigate suspected contraventions and hold discussions with members. Disputes arise when employers or occupiers restrict or deny entry, or when permit holders exceed their entitlements.
Before you start
- Details of the entry or attempted entry (date, time, premises, permit holder)
- The entry notice (if one was given) and the stated purpose of entry
- The permit holder's Fair Work Commission entry permit details
- Records of any communication between the parties about the entry
The workflow
Identify the type of entry and its legal basis
Determine whether the entry is for investigation of a suspected contravention (s 481), to hold discussions with members (s 484), or under a state or territory OHS right. Each type has different notice requirements and entitlements.
Verify the permit holder's credentials
Confirm the person holds a valid entry permit issued by the Fair Work Commission and that the permit has not been suspended or revoked. The permit holder must produce the permit for inspection on request.
Check compliance with notice requirements
For discussion entries, the permit holder must give at least 24 hours' and no more than 14 days' notice (s 487). For investigation entries, no notice is required but the permit holder must have a reasonable suspicion of a contravention. Verify the notice complies with the statutory requirements.
Assess the scope of the entry right
Determine what the permit holder is entitled to do on the premises. Discussion entries are limited to meal breaks and other break times in areas agreed or determined by the FWC. Investigation entries allow inspection and copying of relevant records. The permit holder must not unreasonably hinder or obstruct work.
Document the dispute
Record the facts of the dispute — whether entry was refused, restricted, or the permit holder exceeded their entitlements. Collect contemporaneous notes, emails, CCTV footage, and witness accounts. Documentation is critical for any FWC application.
Apply to the Fair Work Commission
If the dispute cannot be resolved directly, apply to the FWC for a determination. The occupier can apply to restrict or revoke entry rights (s 507-508), or the permit holder can apply where entry has been unreasonably refused. The FWC can deal with the matter urgently if necessary.
Attend the FWC hearing or conference
Present the client's case at the FWC conference or hearing. The FWC will consider whether the entry or refusal was reasonable, whether notice requirements were met, and whether either party contravened their obligations. The FWC can make orders about future entry arrangements.
Implement the FWC determination
Comply with the FWC's orders regarding entry arrangements. If the FWC suspends or revokes an entry permit, advise the client on the consequences. If the FWC establishes entry protocols, ensure they are communicated to site management and the union.
What you will have at the end
A Fair Work Commission determination resolving the right of entry dispute, establishing clear entry protocols and ensuring both parties comply with their obligations under Part 3-4.
Common issues
- Refusing entry without a valid legal basis, exposing the occupier to civil penalties
- Permit holders entering outside permitted hours or accessing areas beyond their entitlement
- Failing to provide the 24-hour notice for discussion entries
- Not distinguishing between investigation entries and discussion entries (different rules apply)
- Misuse of entry rights for purposes other than those permitted by the Act
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Quillio analyses right of entry requirements under the Fair Work Act and identifies whether the entry complies with the statutory framework. See /practice-areas/employment-lawyers or start a free trial.
This workflow covers right of entry under the Fair Work Act 2009 (Cth). State and territory OHS right of entry regimes have separate requirements. Some workplaces have additional security or access restrictions.
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