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Right of entry

Under Part 3 – 4 of the FW Act the FWC may issue a union official, on application, a permit allowing the official to enter a workplace. Such permits are of a general nature and do not differentiate between employers, work sites or awards. Once granted and unless revoked, permits have a life of up to three years or until the permit holder ceases his or her employment with the union concerned, whichever is sooner. Departments and agencies must allow permit holders access to the workplace for the purposes of investigating suspected breaches of the workplace relations laws or to hold discussions with workers who industrial interests the permit holder’s organisation is entitled to represent provided that the permit holder has provided an entry notice at least 24 hours but not more than 14 days before the entry.

In respect to suspected breaches of the agreement or FW Act it should be noted that under s482 of the FW Act a permit holder has a range of rights including inspecting any relevant work, process or object, interview any person who agrees to be interviewed and inspect and copy any document (other than a non-member record) that is directly relevant to the contravention.

It is noted that s492 provides that the permit holder must conduct interviews or hold discussions in the rooms or areas agreed with the employer/occupier of the premises. However, where there is no agreement the default position is that interviews and discussions can be held in the usual place provided for meals or other breaks or where those being interviewed or taking part in discussions ordinarily take their meals or other breaks. Departments and agencies are therefore urged to take a cooperative approach to the location of union meetings. Unless there is some pressing operational or safety reason this should usually be in the lunch room or other location most easily accessible to staff involved and usually frequented by them.

In addition, Part 8 of the Victorian Occupational Health and Safety Act 2004 (Vic) (OHS Act) gives authorised representatives of unions a right to enter Victorian workplaces to enquire into suspected breaches of the OHS Act, or the regulations made under that Act. For the purpose of enquiring into suspected breaches authorised representatives of unions also have right to consult with any employee at the workplace who is the member or is eligible to be their member, with their consent. Departments and agencies must allow access to the workplace for this purpose.