Right of entry
Right of entry is the right of a union official to enter a workplace. Where there are employees who are either union members or eligible to become union members, a union official, authorised by the Industrial Relations Commission can enter an employer's premises to: hold discussions with employees in any lunch-time or non-working period; or, investigate any suspected breach of industrial relations legislation or of an award or enterprise agreement.
A union officer is not required to give any notice if he or she is entering a workplace simply to hold discussions with employees.
The union must give the employer at least 48 hours notice if they intend to enter a workplace to investigate a suspected breach of: industrial relations legislation; an award; or an enterprise agreement.
An authorised union official can enter a workplace to investigate a suspected breach without giving 48 hours notice if he or she obtains a warrant from the NSW Industrial Relations Commission. This can only occur if the union officer convinces the Commission that 48 hours prior notice would defeat the purpose of the investigation.
The union official may require the employer to produce any employee's records or other documents kept by the employer that are related to the suspected breach, such as time and wages books. The official is allowed to make copies of the entries in the records that relate to the suspected breach.
It is an offence for anyone to deliberately hinder or obstruct an authorised union official who has right of entry powers.
It is also an offence for any employer to fail to comply with any requirement of an authorised union official who is exercising right of entry powers. This includes not providing access to employees' records or other relevant documents.
Under Commonwealth legislation the situation is a different.
Union Official or Employee Must Have Permit.
The two grounds by which a union official or employee of a union can enter a worksite are to ensure compliance with legislation and to hold discussions with employees. However, before the union official or employee can do either, (s)he must have a permit. Permits are obtained from the Industrial Registrar and are valid for three years. A permit can be revoked if the Registrar is satisfied that the permit holder has used the permit in order to intentionally hinder or obstruct an employer or employee, or who has otherwise acted improperly.
The permit holder must have given the employer 24 hours notice of his/her intention to enter the employer's premises.
Right of Entry To Investigate Suspected Breaches.
A permit holder is entitled to enter an employer's premises if he/she suspects that the employer has breached the Workplace Relations Act, or if he/she suspects that the employer has breached an award or certified agreement to which the permit holder's
union is a party. The permit holder is only entitled to enter the premises during working hours.
Upon entering the premises, the permit holder may:
inspect (and make copies of if required) time sheets, pay sheets, and any other document which is relevant to the suspected breach (note that the permit holder cannot, in any circumstance, inspect an AWA);
inspect or view any work, material, machinery or appliance that is relevant to the suspected breach);
interview any employees who are members of the permit holder's union (or who are eligible to be members) about the suspected breach.
Right of Entry To Hold Discussions.
The other ground upon which a permit holder may enter an employer's premises is for the purpose of holding discussions with on-site union members and employees
who are not union members but who come within the union's eligibility rules. A stated above, the permit holder must have given the employer 24 hours notice of his/her intention to visit and they must be carrying a permit. The permit holder may however, only enter the premises during working hours, and the discussions with employees can only be conducted during the employees' meal-time or other break. Note that the permit holder is not entitled to speak to an employee who does not wish to speak with the permit holder.
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