News & Insights

Restrictions on access to workplaces aimed at bringing COVID-19 under control cannot be used to prevent unions from entering worksites.

In a recent case, a business unsuccessfully attempted to prevent the union from entering the worksite due to concerns relating to COVID-19. The Fair Work Commission confirmed that businesses cannot rely on a blanket rule that no entry be permitted during the current state of emergency, but also encouraged a collaborative approach where consideration is given to dealing with concerns raised remotely if practicable.

Governed by the Fair Work Act 2009 and State and Territory workplace health and safety legislation, right of entry provisions exist to balance the rights of employers and union representatives.

Generally, the provisions exist to enable employers to conduct their business without unexpected or unwarranted disruption, while at the same time allowing unions to represent members, hold discussions with potential members, and investigate suspected contraventions of workplace laws.

As a result of COVID-19, businesses operating in Victoria face restrictions in relation to which and in what circumstances individuals may attend a worksite, and must have developed and implemented a COVIDSafe Plan to reduce the risk of COVID-19 transmission within the workplace. These precautions impact many aspects of a business, including managing visitors on site.

The current Stage 4 restrictions in Victoria allow ‘Union/peak body/employer organisation officials [to attend] a worksite as permitted by law or for Occupational Health and Safety (OHS) advice’. However, union permit holders are still subject to reasonable requests to comply with OHS requirements themselves when entering worksites.

The laws governing right of entry are technical and employers should carefully consider their rights and obligations before refusing entry. It is best practice to communicate and adopt a cooperative approach with unions to determine whether a lawful right of entry is safe, or whether alternative arrangements are available and practicable.

If you have any queries regarding right of entry laws and their impacts on your business, particularly in light of the COVID-19 restrictions, please contact our Employment, Safety and Migration team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.