Right of Entry, Unions and Industrial Relations on Civil Sites

For a civil contractor doing council and state road work with a crew of twenty, industrial relations is largely a question of paying the right rates under the right instrument — the subject of our guide to enterprise agreements and labour rates. Union officials are not a feature of the working week.

Then the business takes a subcontract package on a major project, or a job in a metropolitan area with a different industrial culture, and a person arrives at the gate holding a card and asking to speak to the workers. What happens in the next fifteen minutes is governed by law in some detail, and the two common failures are opposite: refusing an entry that is lawful, and permitting one without checking anything at all. Both create problems, and the first can carry a penalty.

This guide sets out the framework so that the person at your gate is met by someone who knows the rules. It describes the structure of the law in general terms — it is not a substitute for advice on a specific entry, and where an entry becomes contentious, the right response is to call your employer association or your lawyer at the time.

When this becomes your problem

• Subcontracting onto a major project, where a union presence is established and the head contractor’s arrangements apply across the site — the route described in our guide to subcontracting to Tier 1 civil contractors.
• Working in a metropolitan market with a stronger industrial culture than the region you came from.
• Growing past the point where the owner knows every worker personally.
• An enterprise agreement being sought, negotiated or applied.
• A safety incident or a genuine safety concern being raised on your site.
• A pay dispute — an underpayment allegation is one of the most common reasons for an entry.
• Government-funded work carrying code or policy conditions about industrial relations behaviour.

The most common trigger by a distance is a worker raising something — pay, safety or conditions. That is worth internalising, because it means the primary control is not gate procedure. It is whether your people have a way to raise a problem internally and see it dealt with.

Two separate rights of entry, under two different laws

This is the distinction that resolves most confusion at the gate, and very few civil contractors know it.

	Workplace relations entry	Work health and safety entry
Purpose	Investigating a suspected contravention of workplace law or an instrument; or holding discussions with workers who are eligible members	Inquiring into a suspected contravention of work health and safety law affecting a worker the union is entitled to represent
Permit required	A federal entry permit	A WHS entry permit, generally requiring the holder to also hold a federal permit
Notice	Written notice, usually a defined period in advance	Notice requirements differ, and entry to inquire into a suspected contravention may be permitted without advance notice
Where they may go	Defined by the purpose and the notice	Where relevant to the suspected contravention
Who regulates it	The national workplace relations tribunal	The work health and safety regulator, with the tribunal dealing with permit disputes

The practical significance is the notice difference. A contractor who insists on advance written notice for every entry will be wrong in the safety case, and refusing a lawful entry is itself a contravention. Establishing which right is being exercised is the first question to ask, and it should be asked politely and in those terms.

What a permit holder may and may not do

The rights are specific rather than general, and so are the limits.

• They may enter for the stated purpose, during working hours, holding a valid permit which they must produce on request.
• They may hold discussions with workers who wish to participate and who are eligible to be members — who wish to participate being the operative words. Workers are not required to speak to them.
• They may inspect work and processes relevant to a suspected contravention, and inspect and copy certain records relevant to it.
• They must comply with reasonable work health and safety requirements — inductions, personal protective equipment, site rules.
• They must not intentionally hinder or obstruct any person, or otherwise act improperly.
• They must not misrepresent what they are entitled to do.
• Discussions occur in defined places and times — generally meal or other breaks, in a location agreed or, failing agreement, determined by the rules.

The right to require a permit to be produced is yours and you should exercise it every time, without hostility. It is routine, expected, and it establishes that the entry is being conducted properly.

Notice, and the exception that removes it

Notice periods and their exceptions are prescribed, and this guide does not state the periods — they are defined in the legislation, they differ between the two entry rights, and quoting a number invites the error of applying it to the wrong situation. Confirm the current requirements from the national workplace relations tribunal’s material and your work health and safety regulator, or from your employer association.

What is worth understanding structurally:

• Workplace relations entries generally require advance written notice specifying the premises, the day and the basis for entry.
• A safety entry to inquire into a suspected contravention may occur without advance notice, though notice is generally required as soon as reasonably practicable after entering.
• The notice tells you a great deal. It should identify the suspected contravention and the basis for it, which tells you what to prepare and which of your records may be sought.
• Notice can sometimes be waived in limited circumstances on application, which is unusual but not unknown.

When a notice arrives, read it and act on it. Contractors frequently file the notice and are then unprepared on the day, which converts an ordinary process into a difficult one.

What you must do, and what you must not

Your obligations are as specific as theirs, and the penalties for getting them wrong are real.

• You must not refuse or unduly delay a lawful entry. This is the most serious error available and it carries penalties.
• You must not hinder or obstruct a permit holder exercising rights properly.
• You may require the permit to be produced, and you may require compliance with your genuine site safety requirements.
• You must provide a suitable room or area for discussions or interviews where required, if one is available.
• You must not coach, pressure or monitor workers about whether to participate in discussions. Standing over a conversation is an obvious problem.
• You must not take adverse action against a worker because they engaged with a union or exercised a workplace right. This is a general protections matter and is a significant exposure.
• You must produce records that must lawfully be produced, and no more than that.

The adverse action point is the one that turns a routine entry into litigation. A worker who spoke to an official and is subsequently moved off a job, given the worst tasks, or not called back for the next project has a general protections claim available, and the burden in such claims can operate in a way that requires the employer to prove the reason for its action. Behave as though every decision about that worker will be examined, because it may be.

At the gate: a practical sequence

A simple, calm sequence handles almost every entry.

• Be courteous. Hostility at the gate is the single biggest determinant of how the rest goes, and it achieves nothing.
• Ask to see the permit, and record the name, the organisation, the permit number and its expiry.
• Ask which right is being exercised and the purpose of the entry.
• Ask whether notice has been given, and check it against what you have received.
• Contact your nominated person immediately — the owner, the HR adviser or your employer association. Do not have the leading hand manage this alone.
• Require the site induction and PPE, as you would for any visitor — the visitor management discussed in our guide to on-site traffic and plant-pedestrian separation.
• Accompany them for safety purposes, which is legitimate — but do not obstruct, and do not stand over conversations with workers.
• Record what happened — times, areas visited, who was spoken to in general terms, what was requested, what was provided.
• If something seems wrong, do not escalate at the gate. Note it, comply, and take advice afterwards. An entry conducted improperly can be dealt with later; a refusal cannot be undone.

That last principle is the most useful in this guide. The asymmetry is real: complying with an entry that later proves improper costs you little, while refusing one that proves lawful is a contravention.

The WHS entry, which is the one civil contractors meet

In civil construction, safety-based entries are more common than pay-based ones, and they behave differently.

• The permit holder must reasonably suspect a contravention affecting a worker their organisation is entitled to represent.
• They may inspect the relevant work, plant and systems, take photographs and measurements where relevant, and consult workers.
• They may inspect and copy certain WHS records relevant to the suspected contravention.
• They may issue or seek regulator involvement, and an inspector may attend.
• They must not direct your workers to stop work. Workers have their own right to cease unsafe work in defined circumstances, and health and safety representatives have their own powers, but a permit holder is not your supervisor.

The most constructive posture is to treat a safety entry as information. If someone has raised a concern about your site, the concern exists whether or not the entry is welcome. A contractor whose documents are in order — the SWMS, the plans, the inspection records described in our guides to WHS management plans and SWMS and tickets, VOCs and competency records — has a straightforward morning. One whose paperwork is a fiction has a difficult one, and the entry is not the cause of that.

Where an entry follows an incident, the notification and preservation obligations run in parallel and are covered in our guide to incident notification, site preservation and investigation.

Records, privacy and the request to inspect

Requests for records need care, because both over-disclosure and under-disclosure create problems.

• The entitlement is limited to records relevant to the suspected contravention, not to your records generally.
• Records of non-members attract restrictions, and there are rules about what may be accessed and how.
• Privacy obligations apply to you in respect of employee information, and disclosing more than is required can breach them.
• Take the request in writing, and take advice before producing anything if the scope is unclear or broad.
• Keep a record of what was provided, to whom and when.

The underlying protection is having records that are accurate in the first place. Time and wage records, superannuation, and the instrument you are paying under are the things most likely to be examined, and they are the things a well-run business can produce without anxiety — the record-keeping obligations set out in our guide to enterprise agreements and labour rates.

Disputes, stoppages and industrial action

Work stopping is the outcome contractors fear most, and the legal position is more structured than the reputation suggests.

• Industrial action is only lawful (“protected”) in defined circumstances, essentially in connection with bargaining for a new enterprise agreement and after prescribed steps including a ballot and notice. Outside those circumstances it is generally unprotected, and unprotected action has consequences for those taking it.
• Payment during industrial action is regulated, and there are strict rules about payments that must not be made.
• A genuine cessation of unsafe work is not industrial action. Workers have a right to cease work where there is a reasonable concern about a serious risk from an immediate or imminent exposure, and characterising a safety stoppage as industrial action is a mistake that escalates matters quickly.
• Dispute resolution procedures apply. Almost every enterprise agreement and modern award contains one, and following it is both an obligation and the fastest route to resolution.
• The tribunal can deal with disputes and stoppages quickly where required.

Distinguishing a safety stoppage from industrial action is the judgement that matters, and it should be made with advice rather than at the gate. Meanwhile, the commercial consequence — delay — needs to be recorded contemporaneously and assessed against the contract, since whether it gives relief depends entirely on the terms, as discussed in our guide to extension of time and delay claims.

Enterprise agreements and the pressure to sign

A civil SME entering a major-project market is sometimes told that an enterprise agreement is required to work there. The position is more nuanced and warrants a considered commercial decision rather than a reactive one.

• An agreement must be genuinely agreed with the employees who will be covered, and must pass the statutory tests before it is approved. Agreements made without proper process can be refused approval.
• Bargaining carries obligations — good faith bargaining requirements apply to all parties.
• The commercial effect is long-lived. Rates, allowances, conditions and consultation obligations bind you for the life of the agreement and beyond its nominal expiry until replaced or terminated, which affects the labour rates in every bid you price.
• Understand what you are being asked to sign. Pattern terms drafted for a different kind of business can impose costs and obligations that do not fit a civil SME.
• It may genuinely be a commercial gateway for certain work, and that is a legitimate reason to consider one — with advice, and with a clear view of the cost.

Take advice before signing anything. This is a decision with a multi-year cost attached, and it belongs alongside the other structural decisions in our guide to scaling a civil contracting business.

Government codes and procurement conditions

Governments have historically imposed codes and procurement conditions regulating industrial relations conduct on publicly funded construction, and these have been introduced, amended and repealed repeatedly over the years at both federal and state level.

Because this area changes with government policy, this guide states no current code requirements. What persists across the changes is the shape of the obligation:

• Conditions may attach to publicly funded work regarding agreement content, conduct, and reporting.
• They flow down to subcontractors, so a civil SME can be bound through a head contract without ever dealing with the agency.
• Compliance may be a condition of eligibility to be awarded work.
• Some states operate their own frameworks alongside or instead of federal ones, with their own reporting.

Check the tender documents for what applies to that project, rather than assuming continuity from the last one — the same discipline as the policy overlays covered in our guides to local content, skills and training requirements and the Commonwealth Procurement Rules.

What tenders ask about industrial relations

• Which instrument covers your workforce — award, enterprise agreement, or both for different groups.
• Compliance declarations regarding workplace law and any applicable code.
• Disclosure of proceedings — findings, orders or proceedings involving your business.
• Dispute history and management, on some major project tenders.
• Industrial relations management plans, on larger projects.
• Consistency with your rates. An evaluator comparing a labour rate against the instrument you have named will notice a mismatch, which is why the two must agree.

Answer these accurately and conservatively. A declaration made carelessly is a misrepresentation with contractual consequences, and this is one of the areas where a false statement is straightforward for a client to discover.

Preparing before it happens

• Write a one-page procedure for right of entry and put it where the site supervisor can find it: ask for the permit, ask the purpose, call this number, comply, record.
• Nominate the person to call, with an alternate, and make sure they are reachable.
• Join an employer association. For a civil SME this is the single most useful preparation — access to advice at the moment it is needed, and the industrial relations support offered by the state civil contracting bodies covered in our guide to Civil Contractors Federation membership.
• Get your records right — time and wages, superannuation, the correct instrument, correctly applied.
• Brief supervisors not to argue, not to refuse, and not to stand over conversations.
• Fix the underlying issues. Most entries follow a worker raising something. An internal route to raise concerns, and evidence that concerns get dealt with, is the real preventive control — and it overlaps directly with the reporting and support arrangements in our guide to psychosocial hazards in civil construction.

Checklist

• Is there a written right of entry procedure available to site supervisors?
• Is a person nominated to be called, with an alternate, and are they reachable?
• Do supervisors know to ask for the permit and record its details?
• Do they know to ask which right is being exercised, and that notice requirements differ between them?
• Do they know that refusing or delaying a lawful entry is a contravention?
• Do they know not to stand over conversations between officials and workers?
• Is there a room or area available for discussions where required?
• Are time and wage records, superannuation and the applicable instrument accurate and producible?
• Do you take record requests in writing and check scope before producing anything?
• Are you conscious of privacy obligations regarding employee information?
• Is there an internal route for workers to raise pay and safety concerns, and does anything happen when they do?
• Are your SWMS, plans and inspection records genuine rather than nominal?
• Do you understand the difference between a safety cessation of work and industrial action?
• Do you know the dispute resolution procedure in your applicable instrument?
• Are delays from any stoppage recorded contemporaneously and assessed against the contract?
• If asked to enter an enterprise agreement, have you taken advice on its multi-year cost?
• Have you checked the tender documents for code or procurement conditions applying to that project?
• Are industrial relations declarations in tenders accurate?
• Are you a member of an employer association that provides advice at short notice?

Sources and further reading

This guide is general information for Australian civil construction businesses and is not legal or industrial relations advice. It deliberately states no notice periods, penalty amounts, permit conditions or code requirements: those are set in Commonwealth workplace relations legislation and in work health and safety legislation in each jurisdiction, they differ between the two entry rights, and government construction codes and procurement conditions have been introduced, amended and repealed repeatedly. Take the current requirements from the national workplace relations tribunal, your work health and safety regulator, and the tender documents for the specific project. Right of entry, industrial action, general protections, adverse action and enterprise bargaining are technical areas where the consequences of an error are significant and where the burden of proof may operate in ways that are not intuitive. Refusing or hindering a lawful entry carries penalties. Obtain advice from an employment or industrial relations lawyer, or from your employer association, at the time an entry occurs or a dispute arises, and before entering into any enterprise agreement.

• Right of entry under Commonwealth workplace relations legislation, referenced in §02 to §06 — entry to investigate a suspected contravention, entry to hold discussions with eligible workers, permit requirements, notice requirements, the obligation to comply with reasonable work health and safety requirements, and the prohibitions on hindering or obstructing and on improper conduct. Notice periods, permit conditions and penalties are set in the legislation and are not reproduced here; the national workplace relations tribunal publishes current guidance.
• Right of entry for work health and safety purposes, referenced in §02 and §07, arises under the model work health and safety framework as enacted in each jurisdiction, including the requirement for a WHS entry permit and the circumstances in which entry to inquire into a suspected contravention may occur without advance notice. Each jurisdiction’s regulator is the operative source. The separate rights of workers to cease unsafe work, and the powers of health and safety representatives, also sit in that framework.
• Protected and unprotected industrial action, the prescribed steps including ballots and notice, restrictions on payments during industrial action, and general protections and adverse action provisions, referenced in §09 and §05, arise under Commonwealth workplace relations legislation and are described here in structural terms only.
• Enterprise agreement making, approval tests and good faith bargaining obligations, referenced in §10, are governed by the same legislation; whether a particular agreement is appropriate for a business is a commercial and legal question requiring advice.
• Related TenderBuilt guides carrying the primary-source detail referenced above: enterprise agreements and labour rates, WHS management plans and SWMS, incident notification and investigation, tickets, VOCs and competency records, psychosocial hazards in civil construction, on-site traffic and plant-pedestrian separation, subcontracting to Tier 1 contractors, extension of time and delay claims, local content, skills and training, scaling a civil contracting business and Civil Contractors Federation membership.