Rights & Responsibilities

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Right of Entry and Inspection

• What is 'right of entry'?
• Who can exercise these rights?
• When can union officers exercise right of entry?
• What notice must an authorised union officer give an employer?
• What can an authorised union officer do at an employer's premises to investigate a suspected breach?
• What obligations apply to union officers?
• What obligations apply to employers?
• What is the role of an industrial inspector?
• Are there offences for obstructing an industrial inspector?
• Where to get more information

What is 'right of entry'?

The right of entry provisions of the NSW Industrial Relations Act 1996 provide certain rights for union officers to enter employers' premises, in some circumstances without the consent of the employer.

Who can exercise these rights?

Right of entry can only be exercised by an officer or employee of a union who has applied for and received an appropriate authority from the Industrial Registrar of the Industrial Relations Commission of NSW.

The authority must be produced on request by the occupier of any premises that the officer enters or by any person whom the officer requires to produce a document or answer any question. On application the Industrial Registrar may revoke the authority if the officer using it intentionally hinders or obstructs employers or employees or otherwise acts in an improper manner.

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When can union officers exercise right of entry?

A union officer can enter premises where there are employees who are members of that union or employees who are eligible to be members of that union, for the purposes of:

• holding discussions in any lunch time or non-working time
• investigating any suspected breach of industrial relations legislation, an award or enterprise agreement.

What notice must an authorised union officer give an employer?

Where an authorised union officer is entering an employer's premises to hold discussions with employees, it is not necessary to give  prior notice. Where entry is to investigate a suspected breach of industrial relations legislation or an award or enterprise agreement, then it is necessary to give the employer concerned at least 48 hours notice.

However, an authorised union officer can apply to the Industrial Relations Commission of NSW or the Industrial Registrar to have the 48 hours notice requirement waived, on the grounds that the giving of such notice would defeat the purposes for which it is intended to enter the premises. Where the 48 hours notice is waived, the union officer must obtain a warrant which is required to be shown to the person who is in charge of the premises when entry occurs.

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What can an authorised union officer do at an employer's premises to investigate a suspected breach?

The authorised union officer may require the employer to produce, during the usual office hours at the employer's premises or at any mutually convenient time and place, any employees' records or other documents kept by the employer that are related to the suspected breach. The officer may make copies of the entries in these records that relate to the suspected breach.

What obligations apply to union officers?

While on an employer's premises, it is an offence for an authorised union officer deliberately to hinder or obstruct either the employer or the employees during their working time. It is also an offence for a person who is not the holder of a current authority issued by the Industrial Registrar to purport to exercise right of entry powers to go on to an employer's premises.

What obligations apply to employers?

It is an offence for any person deliberately to hinder or obstruct an authorised union officer who has entered an employer's premises in the exercise of right of entry powers. It is also an offence for any person to fail to comply, without legal excuse, with a requirement of an authorised union officer under the right of entry provisions; for example, to not produce the relevant employees' records and other documents.

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What is the role of an industrial inspector?

Industrial inspectors are responsible for the enforcement of rights and obligations arising from New South Wales industrial laws, predominantly minimum conditions of employment contained in awards, along with associated legislation in relation to employment records, annual holidays, long service leave, parental leave and redundancy. 

Industrial inspectors are provided with Certificates of Authority and are required to produce these if requested to do so by an employer. An industrial inspector is able to inspect the premises of an employer and any work which is being done there.

Serious or continued non-compliance with New South Wales industrial laws by employers can result in the Office of Industrial Relations initiating court procedures  The Office of Industrial relations undertakes the following activities to promote adherence to industrial laws:

Education:  The primary focus is ensuring that employees and employers in New South Wales understand their rights and obligations.  This is achieved through telephone and email information services, seminars, workshops, publications such as this one and workplace visits.

Industry Targeting:  Research and education is conducted to assess where the greatest risk of non-compliance might occur (and in that sense incorporate the notion of anticipation), particularly in industries with a large proportion of employees and that are covered by state awards.

General Investigations:  Industry targeting is supplemented by follow-up campaigns, the use of 'desk audits' and field investigations to ensure compliance is maintained in these industries.  Partnerships with key groups (such as the relevant employer and employee organisations, other Government bodies) also assist in this area.

Complaint Resolution:  The Office of Industrial Relatons attempts to resolve industrial grievances brought to its attention by (ex) employees by way of individual complaint resolution.

An inspector may require an employer to produce any records which are specified under industrial relations legislation or an industrial instrument and may retain these records long enough to make copies of them. An industrial inspector may require an employer to provide specified information about the conditions of employment of his or her employees and may question any employee regarding their conditions of employment.

Industrial inspectors cannot enter residential premises without the permission of the occupier or by first getting a search warrant. This provision does not apply where any part of the residential premises are used for both residential and for work in connection with the clothing trades.

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Are there offences for obstructing an industrial inspector?

It is an offence to deliberately hinder or obstruct an industrial inspector in exercising his or her functions.

WorkCover inspectors also have rights of entry. For more information see WorkCover publications for details or contact WorkCover on 13 10 50.

Where to get more information

Your employer association if you belong to one.

NSW Office of Industrial Relations
Telephone: 131 628
Fax: (02) 9020 4741

NSW Industrial Registry
NSW Commission
Telephone (02) 9258 0866