By Megan Flower

Failure to allow entry can be a contravention of the Fair Work Act 2009 (Cth) (Fair Work Act).

There have been recent changes to the right of entry provisions in Part 3-4 of the Fair Work Act that all employers should be aware of.

New ground for obtaining an exemption certificate – suspected underpayments

Generally, a union official is required to give an entry notice to the occupier of the premises and any affected employer prior to exercising a right of entry.[1]

However, a union official does not need to give an entry notice where they have an exemption certificate from the Fair Work Commission (FWC).[2]

This allows the union official to ‘surprise’ an employer with an unexpected visit.

Previously, a union’s application for an exemption certificate would only be granted where the FWC reasonably believed that advance notice of the entry might have resulted in the destruction, concealment, or alteration of relevant evidence.[3]

However, the grounds for obtaining an exemption certificate have been greatly widened. An exemption certificate will also now be granted where the FWC is satisfied that:

• the suspected contravention(s) involve the underpayment of wages (or other monetary entitlements) of a union member whose industrial interests the union is entitled to represent;
• the union member performs work on the premises; and
• the FWC reasonably believes that advance notice of the entry would hinder an effective investigation into the suspected contravention(s).[4]

Employers should be prepared for an increase in unexpected visits from union officials going forward.

Changes to where union officials are assisting health and safety representatives

Under recent amendments to the Fair Work Act, a union official does not need to hold a Fair Work entry permit or to give an entry notice or exemption certificate if they are assisting a health and safety representative (HSR) under a provision of a “State or Territory OHS law” equivalent to section 68(2)(g) of the Work Health and Safety Act 2011 (Cth) (i.e. whereby, in exercising a power or performing a function, the HSR may request the assistance of any person).[5]

This change alters the position from Australian Building and Construction Commissioner v Powell [2017] FCAFC 89, where it was held that union officials assisting an HSR needed to hold an entry permit under the Fair Work Act and comply with the right of entry requirements under the Fair Work Act.

An assistant is no longer required to have a Fair Work entry permit or to give an entry notice or exemption certificate under the Fair Work Act when assisting an HSR.[6] Further, any conditions on their Fair Work entry permit do not apply and they are not necessarily restricted to working hours when assisting.[7]

Some provisions of the Fair Work Act continue to apply to the assistant with minor adjustments, in particular:

• the assistant must follow a reasonable request of the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises;[8]
• the assistant must not intentionally hinder or obstruct any person, or otherwise act in an improper manner, while assisting or seeking to assist;[9]
• a person cannot refuse or unduly delay the assistant’s entry onto the premises;[10]
• a person must not intentionally hinder or obstruct the assistant from assisting the HSR, or otherwise act in an improper manner in relation to the assistant;[11]
• a person (including the assistant) must not take action with the intention of giving the impression (or reckless as to whether the impression is given) that the doing of a thing is authorised by Part 3-4 of the Fair Work Act if not so authorised;[12] and
• the assistant must not use information or a document obtained in the giving of assistance other than for a purpose related to the exercise or performance of the powers or functions of the HSR (unless one of the exceptions in section 504 of the Fair Work Act applies).[13]

Increased protection for Fair Work entry permit holders

Fair Work entry permit holders also now have greater protection from improper conduct.

Previously, under section 502(1) of the Fair Work Act, a person could not intentionally hinder or obstruct a permit holder exercising rights in accordance with Part 3-4. Now, a person is also prohibited from otherwise acting in an improper manner in respect of a permit holder.[14]

A contravention of this section can attract pecuniary penalties.

This amendment is intended to capture a wider range of conduct and depending on the circumstances, may include swearing, making offensive, racist, sexist, or homophobic comments, or acting in a physically aggressive manner.[15]

Under section 500 of the Fair Work Act, the permit holder cannot intentionally hinder or obstruct any person, or otherwise act in an improper manner. The amendment to section 502(1) means that permit holders will now receive an equivalent level of protection from similar conduct by employers.

New sanction option for the FWC in response to certain events

Lastly, the FWC has also gained a new option to impose conditions on entry permits when certain trigger events occur, rather than just suspending or revoking an entry permit.[16]

The relevant trigger events include where:

• the permit holder has contravened the provision regarding misrepresentations about things authorised by Part 3-4 of the Fair Work Act (i.e. right of entry);
• the permit holder has contravened the provisions in Part 3-4 of the Fair Work Act dealing with unauthorised use or disclosure of information or documents obtained when exercising right of entry;
• the permit holder has been found by the Information Commissioner to have breached the Privacy Act 1988 (Cth) in relation to information or documents obtained when exercising right of entry;
• a pecuniary penalty has been imposed in relation to a contravention of the Fair Work right of entry provisions by the permit holder;
• under a State or Territory industrial law, the permit holder has had their right of entry cancelled or suspended, or they have been disqualified from exercising or applying for right of entry; and
• in exercising a right of entry under a “State or Territory OHS law”, a permit holder took action that was not authorised by that law.[17]

This amendment gives greater flexibility to the FWC to ensure that the appropriate sanction is imposed in response to these trigger events.

If you have any questions about how right of entry may affect your business, please contact Tony Smetana or Megan Flower at HLS Legal on (08) 9322 5202.

This article is intended to be informative only and does not constitute legal advice. If you are concerned about your individual circumstances, please contact a lawyer.

[1] Fair Work Act 2009 (Cth), s 487.

[2] Fair Work Act 2009 (Cth), s 487(1).

[3] Fair Work Act 2009 (Cth), s 519(1)(b)(i).

[4] Fair Work Act 2009 (Cth), s 519(1)(b)(ii).

[5] Fair Work Act 2009 (Cth), s 494(4).

[6] Fair Work Act 2009 (Cth), ss 494(1) and (4), 495 and 497.

[7] Fair Work Act 2009 (Cth), ss 494(4), 496 and 498.

[8] Fair Work Act 2009 (Cth), ss 494(5) and 499.

[9] Fair Work Act 2009 (Cth), ss 494(5) and 500.

[10] Fair Work Act 2009 (Cth), ss 494(5) and 501.

[11] Fair Work Act 2009 (Cth), ss 494(5) and 502.

[12] Fair Work Act 2009 (Cth), ss 494(5) and 503.

[13] Fair Work Act 2009 (Cth), ss 494(5) and 504.

[14] Fair Work Act 2009 (Cth), s 502(1).

[15] Explanatory Memorandum, Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth), [790].

[16] Fair Work Act 2009 (Cth), s 510(1).

[17] Fair Work Act 2009 (Cth), s 510(1).