Right of entry. A permit, a purpose and a notice.

1. The union applies, not the official. The Commission "may, on application by an organisation, issue a permit ... to an official of the organisation if the FWC is satisfied that the official is a fit and proper person to hold the entry permit" (s 512).
2. The official completes right of entry training. Whether the official "has received appropriate training about the rights and responsibilities of a permit holder" is the first permit qualification matter (s 513(1)(a)).
3. The union discloses each permit qualification matter in s 513(1), set out below, with the official's declaration. The Commission publishes the current forms on its website.
4. The Commission decides. A permit issued since 1 July 2019 carries the holder's full name, the union's name, an expiry date, a recent full-face photograph and the holder's signature (FW Regulations reg 3.26).

In deciding whether the official is fit and proper, the Commission must take into account (s 513(1)):

1. whether the official has received appropriate training about the rights and responsibilities of a permit holder;
2. whether the official has ever been convicted of an offence against an industrial law;
3. whether the official has ever been convicted of an offence, under Australian or foreign law, involving entry onto premises, fraud or dishonesty, or intentional violence against a person or intentional damage or destruction of property;
4. whether the official, or any other person, has ever been ordered to pay a penalty under the FW Act or another industrial law in relation to action taken by the official;
5. whether a federal permit held by the official has been revoked, suspended or made subject to conditions;
6. whether a State or Territory industrial or OHS body has cancelled, suspended or conditioned the official's State entry right, or disqualified the official from exercising or applying for one; and
7. any other matters the Commission considers relevant.

The Commission must not issue a permit while a State or Territory suspension or disqualification of the official's entry right is in force (s 514). The Commonwealth spent convictions scheme applies to what the Commission may be told and may take into account (s 513(2)).

1. Fitness for a permit, not fitness at large. The words "fit and proper person" in s 512 are "confined to an inquiry as to fitness and propriety for the purposes of holding an entry permit" ([2015] FCAFC 56 at [18]).
2. But past contraventions of any industrial law count, not only misuse of entry rights. The Full Court rejected a union's argument to the contrary ([2015] FCAFC 56 at [19]-[25]). The weight given to each contravention is for the Commission (at [25]).
3. Conditions may answer a concern. The Full Court held that conditions under s 515 "may be imposed ... to remedy or address deficiencies or reservations in respect to an officer of an applicant, which deficiencies or reservations could otherwise lead to the conclusion that the person was not 'fit and proper'" ([2015] FCAFC 56 at [43]; see [30]-[36]). It rejected the approach that conditions arise only after the official has been found fit and proper (at [32]-[36]), though it refused relief on discretionary grounds (at [39]-[41]). A later Full Bench left open whether the Commission must consider conditions the union has not proposed, and refused permission to appeal where the union had proposed none (Appeal by Construction, Forestry, Mining and Energy Union [2016] FWCFB 5067 at [17]-[20]).
4. Untested allegations carry no weight. The Full Bench said "bare allegations of contraventions should not be given any weight in assessing fitness and propriety of a prospective permit holder" (Construction, Forestry, Mining and Energy Union v Fair Work Commission [2017] FWCFB 4141 at [50]). Proceedings that have not finished are not findings.
5. The union's record does not automatically raise the bar for each official. A majority of a Full Bench held it is wrong to let an organisation's past contraventions "automatically" impose "a 'higher bar than normal'" on an official, though the applicant's track record is "highly relevant" (CFMEU v Director of the Fair Work Building Industry Inspectorate [2016] FWCFB 6058 at [86]). A context of "continuing disobedience of the law by an organisation" can be addressed through the Commission's power in s 508 to restrict a union's rights (at [89]).
6. A finding of guilt without a conviction is not a mandatory matter under s 513(1)(c), but may still be weighed under s 513(1)(g). In Application by the United Workers' Union for an entry permit for Shane Reside [2025] FWC 538, an organiser found guilty, with no conviction recorded, of an offence at a protest rally unrelated to union work was found fit and proper, and the offence was treated as neutral (at [8]-[10], [12]).
7. A refusal is not final. A union may apply again later, and the Full Court treated that as a reason to refuse relief in [2015] FCAFC 56 (at [41]).

1. Conditions. The Commission may impose conditions when it issues a permit, taking the permit qualification matters into account (s 515(1)-(2)). Conditions are recorded on the permit, and a permit on which a later condition is imposed is not in force until the condition is recorded (s 515(3)-(4)). A holder must not contravene a condition (s 488).
2. Expiry. A permit expires 3 years after it is issued, or earlier when the holder stops being an official of the union that applied for it (s 516(1)). An organiser who moves to another union needs a new permit applied for by the new union.
3. Renewal without a gap. If the union applies for a new permit at least 1 month before the old one would expire, and the Commission is satisfied the old permit is likely to expire before it decides, the Commission may extend the old permit for no longer than it needs (s 516(2)-(3)). It must not extend if the union or holder has, without reasonable excuse, not provided information the Commission asked for (s 516(4)).
4. Return. The holder must return the permit to the Commission within 7 days after it is revoked, suspended, made subject to new conditions, or expires (s 517(1)). That is a civil remedy provision with a maximum of 60 penalty units (s 539, item 26).
5. A lost or stolen permit. The Commission has said it does not appear to have a general power to replace one. The existing permit is revoked and a new permit can be issued only if the official is again found fit and proper (Australian Nursing and Midwifery Federation-Victorian Branch [2023] FWC 1276 at [3], [8], [12]-[14]).

A holder may enter to investigate "a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member" of the union (s 481(1)). Four conditions apply:

1. the member must be one whose industrial interests the union is entitled to represent, and who performs work on the premises (s 481(1)(a), (b));
2. the fair work instrument must apply or have applied to the member (s 481(2));
3. the holder "must reasonably suspect that the contravention has occurred, or is occurring", and the person asserting that the suspicion is reasonable must prove it (s 481(3));
4. the particulars of the suspected contravention must be in the entry notice or exemption certificate (note 1 to s 481(1)).

A holder who enters without a reasonable suspicion risks contravening s 503(1) (note to s 481(3)) and, if that is found in proceedings under the FW Act, mandatory action against the permit (s 510(1)(a)).

The member need not be named. On the union's application the Commission must issue an affected member certificate if satisfied that a member works on the premises, the union may represent the member, and the suspected contravention affects the member; the certificate "must not reveal the identity of the member" (s 520). The form is Form 4 (reg 3.29).

While on site, the holder may (s 482(1)):

1. inspect any work, process or object relevant to the suspected contravention;
2. interview anyone about it who agrees to be interviewed and whose industrial interests the union is entitled to represent; and
3. require the occupier or an affected employer to allow inspection and copying of records directly relevant to the suspected contravention that are kept on the premises or accessible from a computer there, other than non-member records, unless that would breach another law (s 482(1)(c), (1A)).

Records later, and non-member records:

1. On site or within 5 days after the entry, the holder may by written notice require an affected employer to produce or give access to directly relevant records on a day at least 14 days after the notice (s 483(1)-(3)). The records are inspected at the premises or another agreed place (s 483(5)).
2. A non-member record is one that relates to a non-member's employment and does not also substantially relate to a member's (s 482(2A)). The holder may apply to the Commission for an order allowing access to specified non-member records. The Commission may make the order "if it is satisfied that the order is necessary to investigate the suspected contravention", having regard to the permit's conditions (s 483AA).
3. Information and documents obtained may be used or disclosed only for a purpose related to the investigation or to rectifying the suspected contravention, subject to listed exceptions (s 504). The Privacy Act 1988 (Cth) also applies (notes to ss 482 and 483).

Textile, clothing and footwear outworkers have their own entry rights in Subdivision AA (ss 483A to 483E), which this page does not cover in detail.

A holder may enter "for the purposes of holding discussions with one or more employees or TCF award workers" (s 484):

1. who perform work on the premises;
2. whose industrial interests the union is entitled to represent; and
3. who wish to participate in those discussions.

The employees need not be members: the object of the Part includes discussions "with potential members" (s 480(a)). Three limits matter in practice.

1. The right is to meet those who wish to take part. "The right of entry is not given for the holding of discussions with employees generally" (Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85 at [16], Jessup J).
2. Discussions may be held "only during mealtimes or other breaks" (s 490(2)).
3. A discussion entry gives no right to inspect anything or see records. Those rights belong to an entry under s 481.

1. Check the permit is current and the conditions on it.
2. Identify the purpose (s 481 or s 484) and the rule of the union's rules that covers the workers.
3. Give the notice: for an entry under s 481, to the occupier and any affected employer; for an entry under s 484, to the occupier (s 487(1)).
4. Give it during working hours, at least 24 hours and no more than 14 days before the entry (s 487(3)).
5. Enter only on a day specified in the notice, and only during working hours (s 490(1), (3)).

The entry notice is Form 2 in Schedule 3.3 of the FW Regulations (reg 3.27). It is a public form. It opens with the holder's full name, the union, a statement that the holder has been issued an entry permit under s 512, the premises and the date of the proposed entry. Section 518 requires:

1. in every notice: the premises, the day of entry and the union of which the holder is an official (s 518(1));
2. for an entry under s 481: s 481 as the authorising provision; the particulars of the suspected contravention or contraventions; a declaration that the union is entitled to represent the industrial interests of a member who works on the premises and to whom the contravention relates or whom it affects; and the provision of the union's rules that gives that entitlement (s 518(2));
3. for an entry under s 484: s 484 as the authorising provision; a declaration that the union is entitled to represent the industrial interests of an employee who works on the premises; and the rule (s 518(3)).

A notice that does not comply is not an entry notice (s 487(2)), and Subdivisions A, AA and B "do not authorise a permit holder to enter or remain on premises, or exercise any other right," if the holder contravenes Subdivision C (s 486). A holder who enters without a valid notice needs the occupier's permission to be there (CFMMEU v ABCC (The Broadway on Ann Case) [2018] FCAFC 126 at [30], Logan J).

The Commission must issue an exemption certificate for an entry under s 481, on the union's application, if either (s 519(1)):

1. it reasonably believes that advance notice "might result in the destruction, concealment or alteration of relevant evidence"; or
2. it is satisfied that the suspected contravention involves the underpayment of wages or other monetary entitlements of a member the union may represent who works on the premises, and it reasonably believes that advance notice "would hinder an effective investigation".

The certificate names the premises, the union, the day or days of entry, the particulars and s 481 and, for the underpayment ground, the names of the holders who may enter (s 519(2)). The form is Form 3 (reg 3.28). The holder gives a copy to the occupier and any affected employer before entering or as soon as practicable after, if they are present (s 487(4)).

There is no exemption certificate for an entry to hold discussions.

The Commission may condition or ban underpayment-ground certificates for a union that has misused its rights (s 508(2)(da), (ea)).

"A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner" (s 500). It is a civil remedy provision with a maximum of 60 penalty units for an individual (s 539, item 25). The courts have said:

1. Improper conduct is judged objectively. It need not be intended to be improper, and it is a breach of the standards that reasonable people, knowing the duties and authority of the position, would expect of a person in it (ABCC v CFMEU (Castlemaine Police Station Case) [2018] FCAFC 15 at [38]-[39]). What was said, its effect and how it was said may all count (at [41]).
2. It does not depend on how the other person reacted. Impropriety "cannot depend on the reaction of the person or persons to whom the action is directed" (at [49]).
3. The test is not politeness. The allegation is "not that he had departed from the standards of polite society" but that the holder acted contrary to the standard of propriety in s 500 (at [52]).
4. Skipping notice is not a way around s 500. A holder cannot "immunise him or herself from the operation of s 500 by the simple device of refusing to give notice under s 487" (ABCC v CFMEU (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88 at [99], Tracey J).
5. Whether a bare slip with notice or permit production is itself improper is unsettled. The judges in [2018] FCAFC 88 differed:
   1. Tracey J said a holder who exercises a right without complying with a requirement of Subdivision C acts improperly, and if the failure is inadvertent, "liability will still arise", with inadvertence going to penalty (at [122]);
   2. Allsop CJ said "An accidental oversight leading to a failure to comply with a statutory obligation may well not be capable of being characterised as improper", while "An egregious, flagrant and defiant flouting of the statute is likely to be so characterised" (at [7]); and
   3. White J said the case did not require that question to be decided (at [192]).
6. If there is no right at all, s 500 does not apply. Where officials had no State safety entry right, and did not mistakenly believe they had one, they were not exercising or seeking to exercise a Part 3-4 right, so s 500 did not apply to them; a court must be clearly satisfied that it does ([2016] FCAFC 64 at [45], [61], [64]; distinguished in [2018] FCAFC 88 at [101]). The conduct may still breach other laws.

Where accommodation or transport to the premises is not reasonably available unless the occupier provides it, and the union asks within a reasonable period, the occupier must make an accommodation or transport arrangement if it would not cause undue inconvenience, and may charge no more than its cost (ss 521C, 521D). The Commission may treat the holder's conduct while using it as part of the exercise of entry rights (ss 521C(4), 521D(4)).

1. Who may start one. The Commission may deal with "a dispute about the operation of this Part" on its own initiative or on application by a permit holder, the holder's union, an employer or an occupier (s 505(1), (3)). The dispute may be about whether an OHS or route request is reasonable, or about remote accommodation and transport (s 505(1)).
2. How the Commission deals with it. By mediation, conciliation, recommendation or opinion, or by arbitration, including orders imposing conditions on, suspending or revoking a permit, orders about future permits, and "any other order it considers appropriate" (s 505(2)).
3. The limits. It must take fairness between the parties into account (s 505(4)), and must not confer rights beyond Part 3-4 except on OHS and route requests and remote sites (s 505(5)).
4. Compliance. Contravening an order made to deal with a dispute is a civil remedy provision (s 506; s 539, item 25B).

The Full Bench has held that a s 505 order "must be able to be characterised as an order that deals with the dispute at hand in order to be validly made" (CFMEU v Bechtel Construction (Australia) Pty Ltd [2015] FWCFB 946 at [32]). Suspending permits "as a sanction for past conduct" was beyond power (at [33]). A suspension could be appropriate "where a finding is made that it is likely that the permit holder will repeat the behaviour that gave rise to the dispute unless the permit is suspended" (at [34]).

An employer or occupier may dispute how often a union's holders enter under s 484 (s 505A). The Commission may arbitrate and make orders about the union's permits, but "may only make an order ... if the FWC is satisfied that the frequency of entry by the permit holder or permit holders of the organisation would require an unreasonable diversion of the occupier's critical resources" (s 505A(4)).

On application by an inspector or a person prescribed by the regulations, the Commission may impose conditions on, suspend or revoke a holder's permits, taking the permit qualification matters into account (s 507).

The Commission may restrict the Part 3-4 rights of a union or its officials if satisfied that the union or an official "has misused those rights" (s 508(1)). Only a Vice President, Deputy President or Full Bench may act (note to s 508(1)). It acts on its own initiative or on an inspector's application (s 508(3)). The orders include (s 508(2)):

1. conditions on, suspension of or revocation of permits;
2. conditions on permits issued to the union in future;
3. conditions on, or bans of, exemption certificates on the underpayment ground;
4. bans on issuing permits to the union, generally or to named people, for a period; and
5. any other order it considers appropriate.

Without limiting the idea, an official misuses rights by exercising them repeatedly with the intention or effect of hindering, obstructing or harassing an occupier or employer, or, in a discussion entry, encouraging people to join in a way that is unduly disruptive (s 508(4)).

The Commission must impose conditions on, revoke or suspend each permit held by a holder if satisfied that, since the first of those permits was issued (s 510(1)):

1. the holder was found, in FW Act proceedings, to have contravened s 503(1) (misrepresentation);
2. the holder contravened s 504 (misuse of information or documents);
3. the Information Commissioner found substantiated a privacy complaint about information obtained on entry;
4. the holder, or another person, was ordered to pay a pecuniary penalty under the FW Act for a contravention of Part 3-4 by the holder;
5. a court or other body under a State or Territory industrial law cancelled or suspended the holder's right of entry for industrial purposes under that law, or disqualified the holder; or
6. the holder, exercising a right under a State or Territory OHS law, took action not authorised by that law.

The rules that follow:

1. For grounds (d) and (f) only, the Commission need not suspend or revoke if satisfied that would "be harsh or unreasonable in the circumstances" (s 510(2)).
2. A circumstance already acted on is not counted again (s 510(3)).
3. A suspension must be at least 3 months if there has been no earlier action under s 510(1), 12 months after one, and 5 years after more than one (s 510(4)).
4. If it revokes or suspends, it must also ban the issue of further permits to the holder for at least that minimum period (s 510(5)-(6)).

The Full Bench has identified the discretions: revoke or suspend, the harsh or unreasonable exception for grounds (d) and (f), and the length of the suspension and ban above the minimums (Perkovic v Director of the Fair Work Building Industry Inspectorate [2015] FWCFB 5867 at [21]). The decisions found describe a choice between revocation and suspension. They pre-date the present text, which also allows conditions. In choosing, the Commission has weighed that revocation requires a fresh application and a fresh fit and proper finding, whereas "suspension will usually result in the permit holder being able to immediately exercise rights" when it ends (In the matter of the Entry Permit of Blake Patrick Hynes [2020] FWC 97 at [30]).

A suspension is for a specified period and does not change the permit's expiry date (s 511). After it ends, the Commission must return an unexpired permit on application (s 517(2)).

The FW Act does not give a right to enter for safety. Its Division 3 "sets out requirements for exercising rights under State or Territory OHS laws" (s 478). The rule is: "An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder" (s 494(1)).

A State or Territory OHS right is a right to enter premises, or to inspect or access an employee record on premises, conferred by a prescribed State or Territory OHS law, where there is a federal link (s 494(2)). The links include:

1. the premises are occupied or controlled by a constitutional corporation, the Commonwealth or a Commonwealth authority;
2. the premises are in a Territory or a Commonwealth place;
3. the right relates to what such a body does as an employer, or to its employees or contractors; or
4. exercising the right will directly affect such a body as an employer, or a person it employs or engages.

Once s 494 applies, the holder must (ss 495-499):

1. before inspecting or accessing an employee record, give the occupier and any affected employer at least 24 hours' written notice of the intention, with reasons (s 495(1));
2. not contravene a permit condition (s 496);
3. produce the permit when asked (s 497);
4. exercise the right only during working hours (s 498); and
5. comply with any reasonable request to follow an OHS requirement that applies to the premises (s 499).

The prohibitions in ss 500 to 504 apply too. Taking action not authorised by the State law while exercising a right under it is a ground for mandatory action against the official's permits (s 510(1)(f)).

The rules for an official helping a health and safety representative have changed:

1. in 2017 the Full Court held that s 494(1) caught an official who entered as the person a health and safety representative had asked for assistance ([2017] FCAFC 89 at [56]);
2. the Act now says s 494(1) and ss 495 to 498 "do not apply to an official of an organisation assisting a health and safety representative on request" under a State or Territory provision equivalent to s 68(2)(g) of the Work Health and Safety Act 2011 (Cth) (s 494(4)); but
3. ss 499 to 504 still apply to that official, whether or not the official holds a permit, and information obtained may be used only for the representative's powers and functions, subject to the exceptions in s 504 (s 494(5)).

In WA, a health and safety representative may, whenever necessary, "request the assistance of any person" (WA WHS Act s 68(2)(g)). The steps are:

1. The representative gives notice of the assistant's proposed entry to the business and to the person with management or control of the workplace, during usual working hours, at least 24 hours and not more than 14 days before the entry (s 68(3A)-(3B)).
2. The business must allow the assistant access where that is necessary for the assistance (s 70(1)(g)).
3. The business need not do so if the assistant's "IR entry authority" has been revoked or is suspended (s 71(4)), and may refuse on reasonable grounds, which include the representative's failure to give the notice (s 71(5)-(5A)).
4. If access is refused, the representative may ask the regulator for an inspector to help resolve it (s 71(6)).

An IR entry authority is a WAIRC right of entry permit under IR Act s 49G(1) or an FW Act s 512 permit (WA WHS Act s 4).

Part 7 of the WA WHS Act, which in the model law deals with entry by WHS entry permit holders, is headed "Not used". There is no WHS entry permit in WA.

The right is in IR Act s 49I. An "authorised representative of an organisation" may enter, during working hours, any premises where relevant employees work to investigate any suspected breach of listed laws, which include the WA WHS Act (IR Act s 49I(1)). The representative may require production of records, copy them, and inspect, photograph or record relevant work, material, machinery or appliances (s 49I(2)). Production of records needs 24 hours' written notice if they are on the premises and 48 hours' if kept elsewhere, unless the WA Industrial Relations Commission (WAIRC) waives notice on an application made without notice to the employer (s 49I(6)-(8)).

The federal regulations prescribe this as WA's State OHS law: IR Act ss 49G and 49I to 49O, "but only to the extent to which those provisions provide for, or relate to, a right of entry to investigate a suspected contravention" of the WA WHS Act, together with the WA WHS Act (FW Regulations reg 3.25, table item 4).

Who needs what depends on the union and the employer.

1. An official of a WA registered union who is also an official of its federal counterpart, entering a company's premises for safety: a WAIRC right of entry permit for s 49I, and an FW Act permit because s 494 applies.
2. The same official at a WA state system employer that is not a constitutional corporation, such as a government department: the WAIRC permit, unless another s 494(2) link applies.
3. An official of a federal union that has no WA state counterpart has no s 49I right, and so no WA safety entry right of its own. The text settles it:
   1. the right belongs to "an authorised representative of an organisation" (s 49I(1)), meaning an officer or employee of the organisation who holds a WAIRC right of entry permit (s 49G(1)), and an organisation is one registered under the IR Act (s 7);
   2. only "the secretary of an organisation of employees" may apply for a WAIRC permit (s 49N(1));
   3. s 49G(2) treats an officer or employee of a WA organisation's federal counterpart as an officer or employee of the WA organisation, but a federal union with no WA organisation has nothing to be the counterpart of. Counterparts are those under RO Act s 9A or prescribed in the Industrial Relations (General) Regulations 1997 (WA) r 16; and
   4. entry is only to premises where "relevant employees" work, meaning members of the WA organisation or those eligible to be members (s 49G(1)).

The WAIRC Full Bench said the same under the earlier version of these provisions, in an application under s 72A: it "has no power to confer a state OHS right of entry on the CFMEU Branch, as s 49G of the Act only confers a state OHS right of entry on representatives of organisations that are registered under the provisions of the Act" (The Australian Workers' Union, West Australian Branch, Industrial Union of Workers v (Not applicable) [2012] WAIRC 00032 at [163]; see [157]). Such an official's safety route in WA is assisting a health and safety representative at the representative's request, as set out above.

At a workplace covered by the Work Health and Safety Act 2011 (Cth) (Commonwealth agencies and employers in the Comcare scheme), Part 7 of that Act provides for WHS entry permit holders to enter to inquire into a suspected contravention (s 117) and to consult and advise workers (s 121), with notice rules (ss 119, 122). Section 124 is headed "WHS entry permit holder must also hold permit under other law".

1. The FW Act provisions differ in what they catch:
   1. a cancellation, suspension, condition or disqualification of a State industrial or OHS entry right is a permit qualification matter (FW Act s 513(1)(f));
   2. a State suspension or disqualification that is in force stops the Commission issuing a permit (s 514); and
   3. cancellation, suspension or disqualification of a right of entry for industrial purposes under a State industrial law is a ground for mandatory action (s 510(1)(e)).
2. The WAIRC's own permit criteria include whether a right of entry under any industrial or WHS law has been revoked, suspended or conditioned, and whether the official has been disqualified (IR Act s 49P(2)(e)-(g)).