Don’t come around here no more: union right of entry under the Fair Work Act 2009 (Cth). The first 10 years.

Jason Raftos

For over a century, Australian unions have held various statutory based rights of access to workplaces for the purposes of ensuring observance of workplace laws, to organise, meet with members and to advance member welfare. This power has often been resisted by employers and others. Yet, there has been relatively little academic attention on the subject. This paper explores the conduct, strategies and behaviour of unions and employer responses to union entry under the Fair Work Act 2009 (Cth) to 2019. It considers instances of misuse, unlawful obstruction and identifies legislative inadequacies. The paper initially considers the historical development of Australian unions and their Federal rights of entry. Each class of union right of entry under the Act is then analysed in turn; namely, entry to investigate compliance, entry in relation to safety, and entry to hold discussions. Ancillary provisions supporting these rights, including the permit system, are also reviewed. A number of interesting findings are made. Broadly, regulation of most union entry rights has shifted from a jigsaw of rights in the early 20th century to a relatively uniform regime. Abuse of entry rights and unlawful obstruction of union officials are not new problems. Despite rights of entry to investigate compliance with workplace laws there continues to be reporting of significant underpayment of employees and wage theft. This raised questions about whether these provisions are adequate. As to union entry rights for the purposes of workplace safety, these appear problematic, allowing for significant misuse. Overwhelmingly allegations of misuse concerned one union. As to union rights of entry to hold meetings, there were repeated reports of unlawful hindering of union officials. Meeting locations and frequency of union entry were also hotly disputed.

Don’t come around here no more: union right of entry under the Fair Work Act 2009 (Cth). The first 10 years.

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