Fair Work Commission

This page provides information on using federal permits only. There are 2 types of permit in the federal industrial relations system.

Reasons for entering premises

A Fair Work entry permit allows an official to enter premises for the purpose of:

• investigating suspected breaches of the Fair Work Act 2009 and other instruments
• investigating breaches relating to textile, clothing and footwear industry outworkers
• meeting with employees
• exercising rights under occupational health and safety laws.

The WHS entry permit allows the official to enter premises for the purpose of:

• inquiring into suspected contraventions of the Work Health and Safety Act 2011 (Cth)
• inspecting documents directly relevant to a suspected contravention
• consulting and advising workers.

Notice for entry under the Fair Work Act 2009

Under the Fair Work Act 2009 (the Act) written notice (a Fair Work entry notice) is required to be given before entering a workplace. The written notice should be provided no less than 24 hours and no more than 14 days before the proposed visit.

Less notice can be provided if an exemption has been given by the Fair Work Commission or if the entry is in relation to textile, clothing and footwear (TCF) award workers (s.483A of the Act). In these cases, written notice or a copy of the exemption certificate must be provided either before or as soon as possible after entering the premises.

What does a Fair Work entry notice include?

A Fair Work entry notice will look different depending on the section of the Act that authorises entry, and must include details of:

• the premises to be entered
• the day of entry
• the organisation the permit holder belongs to
• the section of the Act that authorises the entry, for example:
  • investigate contraventions – subdivision A, s.481
  • investigate contraventions (TCF) – subdivision AA, s.483A(1)(a) or s.483A(1)(b), or
  • hold discussions – Subdivision B, s.484.
• details of the suspected contravention (for s.481 and s.483A(1)(a) only)
• a declaration by the Fair Work entry permit holder:
  • that they are entitled to represent the industrial interests of an employee who works on the premises (for s.481, s.483A(1)(a) and s.484 only)
  • that they are entitled to represent industrial interests of TCF award workers (for s.483A(1)(b) only)
  • to whom the suspected contravention relates, or who is affected by the suspected contravention (for s.481 and s.483A(1)(a) only)
  • the provision in the organisation's rules that details the organisation's right to represent the employee.

Exercising a right under occupational health & safety laws

At least 24 hours notice must be given when exercising a right under a state or territory occupational health and safety law for the purpose of inspecting or accessing employee records. Notice must be written and set out the intention to exercise the right and the reasons for doing so.

Notice must also comply with the relevant occupational health and safety law.

Notice for entry under the Work Health and Safety Act 2011 (Cth)

Under the Work Health and Safety Act 2011 (the WHS Act) written notice of entry (a WHS entry notice) for the purpose of inquiring into a suspected contravention of the WHS Act must be given as soon as reasonably practicable after entering a workplace.  This does not apply if it would defeat the purpose of entry, or if it would unreasonably delay the permit holder in an urgent case.

Written notice of entry for the purpose of inspecting or making copies of documents, or for the purpose consulting and advising workers notice must be provided no less than 24 hours and no more than 14 days before the proposed visit.

What does a WHS entry notice include?

A WHS entry notice will look different depending on the section of the Act that authorises entry, and should include details of:

• the full name of the WHS permit holder
• the name of the union that the WHS permit holder represents
• the section of the Act that authorises the entry, for example:
  • inquire into suspected contraventions of the Act – s.117 of the WHS Act
  • inspect records or documents – s.120 of the WHS Act, or
  • consult and advise workers – s.121 of the WHS Act
• the name and address of the workplace entered or proposed to be entered
• the date of entry or proposed entry
• details of the suspected contravention (s.117 and s.120 of the WHS Act only)
• a description of the records or documents to be inspected (s.120 of the WHS Act only)
• a declaration stating:
  • that the union is entitled to represent the industrial interests of a worker at the workplace and who is, or is eligible to be, a member
  • the provision in the union’s rules that entitles the union to represent the industrial interests of that worker
  • that the suspected contravention relates to, or affects, that worker (s.117 and s.120 of the WHS Act only)
  • that the records and documents proposed to be inspected relate to that contravention (s.120 of the WHS Act only).

To find a template WHS entry notice go to the Comcare forms and publications website.

Rights while on the premises

Entering to hold discussions

If entering to hold discussions a Fair Work entry permit holder may:

• hold discussions during meal times or breaks with employees or TCF workers:
  • who perform work on the premises
  • whose industrial interests the permit holder is entitled to represent, and
  • who wish to participate.

Entering to investigate a contravention of the Act

If entering to investigate a contravention of the Act, a Fair Work entry permit holder may:

• inspect any work, process or object relevant to the suspected contravention
• interview any person about the suspected contravention whose interests the permit holder's organisation is entitled to represent and who agrees to be interviewed
• inspect and copy any record or document that is directly relevant to the suspected contravention, that is:
  • kept on the premises, or
  • is accessible from a computer that is kept on the premises (however, this obligation does not require an employer to allow inspection and copying if it would breach a federal or state law, eg privacy laws).

Note: documents that relate to a person who is not a member of the union and that do not substantially relate to the employment of a member are not documents that may be inspected or copied. A permit holder may apply to the Commission to inspect such documents, or written consent may be given by that person.

The Fair Work entry permit holder may also request within five days of the entry, by written notice of not less than 14 days, access to records and documents at a later time.

If accommodation is not reasonably available (location)

If a Fair Work entry permit holder is entering premises located where accommodation is not reasonably available, the occupier of the premises must enter into an arrangement for the provision of accommodation if:

• the provision of accommodation would not cause the occupier undue inconvenience
• the permit holder, or the union, requests the provision of accommodation
• the request is made within a reasonable period before the accommodation is required, and
• the permit holder and the union have not been able to enter into an arrangement for accommodation with the occupier by consent.

The occupier must not charge a fee more than necessary to cover the costs. Conduct of the permit holder while at the accommodation is considered conduct engaged in as part of the exercise of right of entry.

If premises are not reasonably accessible (transport)

If a Fair Work entry permit holder is entering premises in a place that is not reasonably accessible, the occupier of the premises must enter into an arrangement for the provision of transport to assist the permit holder exercise to enter premises if:

• it would not cause the occupier undue inconvenience
• the permit holder, or the union, requests the provision of transport
• the request is made within a reasonable period before transport is required, and
• the permit holder and the union have not been able to enter into an arrangement for transport with the occupier by consent.

The occupier must not charge a fee more than necessary to cover the costs.

Conduct of the permit holder whilst in transport is considered conduct engaged in as part of the exercise of right of entry.

Entering to inquire about a contravention of the WHS Act, or consult workers

If entering inquire about a contravention of the WHS Act or to consult workers, a WHS entry permit holder may:

• warn any person of a risk where the permit holder reasonably believes that person to be exposed to a serious risk to their health or safety.

Entering to inquire about a contravention of the WHS Act

If entering to inquire about a contravention of the WHS Act, a WHS entry permit holder may:

• inspect any work system relevant to the suspected contravention
• consult relevant workers about the suspected contravention
• inspect or make copies of documents, including employee records, that are directly relevant to the suspected contravention.

Entering to inspect records or information to inquire into a contravention of the WHS Act

If entering to inspect employee records or information for the purpose of inquiring about a contravention of the WHS Act, a WHS entry permit holder may:

• inspect or make copies of documents, including employee records, that are directly relevant to the suspected contravention.

Obligations in relation to right of entry

All entry permit holders must:

• abide by conditions imposed on their permit
• comply with reasonable occupational health and safety requests
• not enter any part of the premises used for residential purposes
• visit a workplace during working hours.

A Fair Work entry permit holder must:

• have their original permit and a copy of the notice of entry (or exemption certificate) available for inspection
• conduct interviews or hold discussions in rooms or areas agreed with the occupier (if the location cannot be agreed, they may do so in a room or area in which person(s) interviewed ordinarily take their meals or other breaks)
• comply with reasonable requests that certain routes be taken to a room or area
• act in a proper manner and not intentionally hinder or obstruct others.

A WHS entry permit holder must:

• also hold a Fair Work entry permit
• have their original WHS entry permit and photographic identification available for inspection.

No entry permit holder may:

• intentionally hinder or obstruct any person, or otherwise act in an improper manner
• be refused or delayed entry to the premises
• be refused the right to inspect and copy records or documents regarding a suspected contravention (unless it would breach a federal or state law, e.g. privacy laws)
• be hindered or obstructed from exercising their rights
• give the impression that they are authorised to do things they are not, nor be reckless about giving that impression
• use information for any purposes other than the investigation or inquiry.

Penalties may apply for refusing, delaying or obstructing entry, as well as for other contraventions of the legislation.

Documents to be carried

Section 489 of the Act requires a Fair Work permit holder to produce their authority documents on request when entering premises. The authority documents are the original entry permit and a copy of the entry notice (or an exemption certificate).

Section 125 of the WHS Act requires a WHS entry permit holder to have their original WHS entry permit and photographic identification available for inspection.

Both Acts state that the relevant permit, not a copy (whether certified or not), must be produced.

All entry permits issued on or after 1 July 2019 must include the following:

• the permit holder's full name
• the name of the organisation that applied for the entry permit
• an expiry date for the entry permit
• a recent photograph of the permit holder that
  • shows the holder's full face, and
  • meets requirements that are considered appropriate by the Commission, and
• the permit holder's signature.

Design of entry permits

Fair Work right of entry permits issued from 1 July are the size of your driver's licence.

The permits also include:

• a permit number
• an expiry date
• any conditions imposed on the permit
• a QR code leading to our list of current permit holders

new-entry-permit-card.png

Note: Existing entry permits in the previous form will continue to be valid until they expire (unless they are revoked or suspended).