Any request to enter a site should be referred to the company in control of the site. The legal obligations and how to respond to such a request will depend upon what the purpose of the visit is. It is generally one of three:
The right of entry provisions for Unions wanting to visit premises to talk to their members (or potential members) are dealt with in the Fair Work Act 2009 (the FW Act) for employers that are constitutional corporations.
Pursuant to 484 of the FW Act, a permit holder may enter premises for the purposes of holding discussions with employees:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
A permit holder must give the occupier of the premises an entry notice for the entry at least 24 hours and not more than 14 days before entry and this notice must comply with the FW Act requirements. Upon entry the permit holder must produce their authority documents for inspection by the occupier of the premises on request.
This right of entry to hold discussions can only be exercised during mealtimes or other breaks and on the day specified in the entry notice and the permit holder must comply with any reasonable OSH request by the occupier of the premises.
Some Union officials are appointed under legislation to inspect electrical licences and such a request to enter premises is not a right of entry under the FW Act and no notice is required. The following is from the Code of Practice for Inspectors in WA by Building and Energy.
3.2 Licence Inspectors
Certain employed officials of the Electrical Division of the Communications, Electrical and Plumbing Union (CEPU) of Western Australia are designated as Inspectors (Electricity).
These persons have powers of inspection to inspect electrical licences for the purpose of assessing compliance with electrical licensing requirements under the Electricity Act. They
do not have the power to carry out inspections of electrical installing work or electrical installations. The powers of inspection exist only whilst the inspector is a full time paid
employee of the Union. These inspectors have the power to:
5.3 Electrical Licence Inspectors
A Licence Inspector shall:
Furthermore, a Licence Inspector shall refrain from using his/her inspection powers in any way that may be seen as supporting or participating in any industrial disputation. If a site is
subject to an industrial dispute and there is a valid need for a licence inspection, then it is to be referred to the Chief Electrical Inspector at Building and Energy for action.
Some Union officials are authorised by section 49I of the Industrial Relations Act (WA) to enter work sites to investigate suspected breaches of the WA Long Service Leave, Minimum Conditions of Employment, OSH and Mines Safety and Inspection Acts.
Notice of Entry: A permit holder is not required to give notice to enter premises under the WA Industrial Relations Act.
However, to inspect employee records, a permit holder must give the occupier of the premises and any affected employer a written notice of their intention to inspect an employee record at least 24 hours before exercising the right. The notice must set out their intention to exercise the right and the reasons for doing so.
While on the premises
A permit holder must not exercise a State or Territory OSH right unless they produce their entry permit when requested to do so by the occupier of the premises or the affected employer. Permit holder may:
Conditions of entry
Disclaimer: This summary is a guide only and is not legal advice. For more information on employers’ obligations, call NECA Legal (WA) Pty Ltd on 6241 6129 or email email@example.com.