Employment regulation changes from 1 July 2024 – Increased capacity for Unions to enter workplaces without notice

From 1 July 2024, the Fair Work Commission is empowered to issue an exemption certificate to a permit holder (Union), allowing them to enter a workplace or business premises without prior notice if they are investigating a suspected contravention in certain circumstances.

These circumstances include:

• The suspected contravention involves the underpayment of wages to a member of the Union who works on the premises, and
• The Commission reasonably believes that advance notice of the entry would hinder an effective investigation.

The exemption to the Union providing prior notice is premised on preventing an employer from amending or otherwise altering, deleting, or concealing evidence of an underpayment.  

Importantly, for a Union to rely on this new exemption, they must be able to produce an exemption certificate from the Fair Work Commission permitting access to the workplace or business premises without the usual notice period. If the certificate cannot be produced, access can be denied. It is not sufficient for the Union to assert that they have such a certificate; they must produce the certificate and the certificate must contain the following information:

• The premises to which it relates;
• The organisation to which it relates;
• The day or days on which the entry may occur;
• Particulars of the suspected contravention, or contraventions, to which the entry relates;
• That the entry is authorised under section 481 of the Fair Work Act 2009 (Cth).

Entry can be denied if the entry is outside of the parameters contained in the exemption certificate, for example, if the particular premises are not identified correctly, or if the date of entry is different to that provided on the exemption certificate.

Employers will not be given prior notice of an application by a Union to the Fair Work Commission for an exemption certificate.

If you have any questions or concerns about union right of entry to your workplace or business please contact a member of our HR consulting team on 07 3218 3900.