Closing loopholes no.2 – Right of entry powers

From 1/7/24 the right of entry rules for registered organisations have been expanded. These changes are intended to complement the Fair Work Ombudsman’s existing role of identifying and dealing with underpayment of wages.

What are the changes?

Traditionally right of entry rules have required union officials to hold a permit and give the employer at least 24 hours’ notice before they enter a workplace/site and they would then be able to investigate suspected breaches of workplace health and safety obligations, suspected breaches of the Fair Work Act and other matters typically dealt with during these visits like freedom of association etc.

The changes allow for a union official holding an entry permit to apply to the Fair Work Commission (FWC) for an exemption certificate which would allow them to waive the 24-hour notice period normally required before they enter a workplace/site.

The Fair Work Commission will only grant these exemptions in the following scenarios however:

• The Commission must be satisfied that there is a suspected underpayment of wages affecting one of the members of that union in the workplace; and
• The Commission has to believe that advance notice would be detrimental in regard to any investigation into the prospective breach i.e. that the employer would actively hamper the investigation in some way should they receive the normal 24 hours notice.

What does it mean?

The changes mean that unions now have another avenue they can use to investigate businesses and one that could allow them to turn up with no notice. Businesses who are aware that they have union membership in their workplace, or work on projects where there is a union presence,  take this as an opportunity to review their current payment practices to ensure that they don’t have any exposures in this area.

Employers that have a good relationship with their staff and have developed trust should have no real reason to worry too much about these changes as they are only relevant where there are potential breaches of workplace laws. An exception may be employers who operate in industries that have a history of collective bargaining (building and construction, childcare and manufacturing for example). Employers in those industries will want to ensure that they don’t have any reason for employees or a union to use any suspected breaches to begin a forced enterprise bargaining situation. Even then employers who have a good relationship with their employees will likely have no issues with these changes as it is less likely that an employee will go to a union with a concern before discussing it with their employer.

One of the ways we can help employers is by doing a workplace relations compliance survey where we compare their current practices against their obligations under Fair Work Act and Modern Awards and compile a report on the changes needed to be compliant which would mean that they can have confidence that they are meeting their obligations to their employees.

If you need any assistance with reviewing your current payment practices or any other related matter, please don’t hesitate to contact us on 1300 108 488 or by emailing us at enquiries@ridgelinehr.com.au