23 min read
Unions
Last updated July 2025
What is a union?
A union is either:
- an employee organisation that is registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (Registered Organisations Act); or
- an association of employees or independent contractors that is registered under a state or territory industrial law.
Unions and employer associations registered under the Registered Organisations Act are overseen by the Fair Work Commission (FWC).
There are two types of groups that can form a union under the Registered Organisations Act:
- An ordinary association of employees (i.e. an association that is not restricted to a single workplace or business) that has at least 50 members who have been employees for 6 months prior to registering as a union.
- An enterprise association (i.e. an association consisting of employees who work in the same enterprise) that has at least 20 members who are employees when the association registers to become a union.
Rights and obligations of unions
Generally, a union:
- is free from the control or influence of an employer;
- aims to further or protect the interests of its members, i.e. workers; and
- is formed with a majority of the association’s members present at the general meeting where a resolution in favour of registering the association is passed.
Being a separate legal entity means a union can:
- employ people;
- own property;
- enter into contracts;
- commence legal action; and
- be sued.
Registered unions must follow certain accountability and management standards. For example, under the Registered Organisations Act, a union must comply with provisions that deal with:
- mandatory content in union rules;
- how a union can change its rules;
- the way a union conducts elections for office-holders;
- record-keeping and financial reporting methods; and
- members’ access to records.
Key people in a union
All unions contain:
- officials;
- organisers;
- delegates; and
- members.
Union officials
A union official is an office-holder of a union under the union’s rules. For example, most union rules provide for offices of president, vice president, secretary or assistant secretary.
Under the Registered Organisations Act, members of the union must elect union officials.
Union organisers
A union organiser is an employee of the union who is responsible for representing and advancing the industrial interests of particular groups of members and potential members of the union.
A union organiser may be elected by members or appointed by the management committee. Union organisers work with members and delegates of the workforce for which they are responsible to plan and implement campaigns that build the strength of the union and deliver industrial outcomes.
Union delegates
A union delegate is a union member who represents the union for a particular group of employees at a particular workplace.
A union delegate is usually elected by a show of hands by workers.
A union delegate can:
- raise workplace issues, and communicate to both the union and members about matters affecting the interests of members working at the worksite;
- meet with members and potential members working at the worksite;
- participate in the affairs of the union;
- collect and remit membership dues from employees for the union; and
- have a role in any industrial action, dispute or enterprise bargaining affecting those members who the delegate represents.
Union delegates are entitled to:
- reasonable communication with members, and any other persons eligible to be members, in relation to their industrial interests;
- reasonable access to the workplace and workplace facilities where the enterprise is being carried on; and
- reasonable access to paid time, during normal working hours, for the purposes of related training.
- unreasonably failing or refusing to deal with a union delegate;
- knowingly or recklessly making a false or misleading representation to a union delegate; or
- unreasonably hindering, obstructing or preventing the exercise of the rights of a union delegate.
Union members
All Australian workers are entitled to join a union.
Many workers join unions to have an experienced workplace advocate who can act in their interests to protect their workplace rights.
Unions will act for their members in a variety of areas, including:
- enterprise bargaining;
- work health and safety investigations;
- pay disputes;
- industrial disputes;
- performance management;
- disciplinary matters; and
- unfair dismissals.
To which union should a worker belong?
A worker’s eligibility to become a member of a particular union depends on the union’s coverage (or demarcation).
A union’s coverage or demarcation refers to the classes of employees that are eligible to join a particular union.
Every registered union has an eligibility rule. The eligibility rule should specify the industrial or occupational classifications of employment the union may cover when seeking to enrol members.
The Transport Workers’ Union of Australia has an eligibility rule that only workers in the transport industry can be members. The rule broadly covers those businesses involved in the logistics of moving people and goods around Australia.
The eligibility rule means that the union should consist of an unlimited number of persons employed or seeking to be employed in, or in connection with, the industry of:
- the transport of persons or passengers; goods, wares and merchandise; or any other material whatsoever;
- driving; and
- chauffeurs, conductors and attendants on or about motor vehicles, and employees engaged in or about garages, motor stables and similar places.
Click here to view the FWC's full list of registered organisations.
What happens if a worker is eligible to join more than one union?
A coverage or demarcation dispute is when unions compete for the same members because more than one union has coverage rights over one workplace.
Case Law: Shop, Distributive and Allied Employees Association (SDA) v National Union of Workers (NUW) (2012)
In SDA v NUW (2012), Fair Work Australia (FWA) (now the FWC) considered a demarcation dispute commenced by the SDA, which asserted that it had exclusive rights to represent the industrial interests of workers at a distribution centre in Queensland and that the NUW should be excluded from the site.
The SDA asserted there had been a long-standing arrangement between the unions that even though both unions had coverage under their constitutions, only one union would be involved in each distribution site. The NUW said the arrangement no longer applied.
FWA held that the SDA had not provided it with a strong enough case to justify changing freedom of association rights.
Unions right of entry
Under certain conditions, union officials have the right to enter your workplace. This is called ‘right of entry’.
Right of entry refers to the right given to a particular category of person to enter a workplace for an employment or industrial law purpose.
Union officials have the right to enter a workplace under:
- the Work Health and Safety (WHS) Act (in every jurisdiction except Victoria and Western Australia) (read more);
- Victorian health and safety legislation (read more);
- the Industrial Relations Act 1979 in Western Australia (read more); and
- the FW Act (read more).
Union rights of entry under the WHS Act
In jurisdictions where the WHS Act applies (except in Western Australia), a union official who wishes to enter your workplace for health and safety purposes must be a WHS permit-holder.
A WHS permit-holder is a union official who has been given a WHS permit by the safety regulator because:
- they have satisfactorily completed the prescribed WHS training that relates to the entry permit;
- they hold an entry permit under the FW Act;
- their union has endorsed the application for a WHS permit;
- there are workers at the workplace who are covered by their union; and
- the reason for entry relates to these relevant workers.
A relevant worker is a worker:
- who is a member, or eligible to be a member, of the union that the permit-holder represents;
- whose individual interests the relevant union is entitled to represent; and
- who works at that workplace.
A WHS entry permit is valid for 3 years from the date of issue.
WHS permit-holders must:
- only enter the areas of your workplace where workers relevant to the suspected breach carry out their work, or any other area that directly affects the health and safety of those workers;
- comply with your reasonable requests in relation to a WHS requirement, e.g. site induction; and
- allow you to obtain consent before you disclose to them workers’ names.
WHS permit-holders must not:
- act in an improper manner;
- intentionally or unreasonably delay, hinder or obstruct any person; or
- disrupt the workplace or workers from carrying out their normal duties.
Why a WHS permit-holder may wish to enter your workplace
A WHS permit-holder may exercise rights of entry to:
- investigate a suspected breach of the WHS Act;
- inspect employee records and documents relevant to the suspected breach;
- consult and advise workers on health and safety issues; or
- assist with the election of an HSR, or to assist in workplace negotiations involving an HSR.
Investigating a suspected breach of the WHS Act
A WHS permit-holder may enter your workplace during usual working hours to enquire into a breach of the WHS Act if they reasonably suspect one has occurred or is occurring.
As soon as reasonably practicable after entering the workplace, a WHS entry permit-holder must give notice of the entry and the suspected contravention to:
- the person with management or control of the workplace; and
- the PCBU.
A WHS permit-holder is not required to give prior notice when entering a workplace to enquire into a suspected breach of the WHS Act unless the entry is to inspect records and documents relating to the suspected breach.
In investigating a suspected breach of the WHS Act, the WHS permit-holder may:
- inspect any work system, plant, substance, structure or other thing that is relevant to the suspected breach;
- warn anyone they believe is exposed to a serious health or safety risk;
- talk to any worker who is covered by the union who wishes to participate in the discussion (whether or not they are a union member); and
- request to look at, and make copies of, relevant documents or records kept at your workplace (in hard copy or on computer).
Inspecting employee records and documents
A WHS permit-holder can enter a workplace to inspect or make copies of employee records or documents that are directly relevant to a suspected breach of the WHS Act, e.g. medical records showing lead exposure for workers.
If this occurs, the entry permit-holder is required to give at least 24 hours’ notice to the person conducting the business.
Consulting and advising workers on safety
A WHS permit-holder may exercise a right of entry during the usual working hours of the workplace to consult workers who wish to be consulted on WHS matters and provide them with advice on those matters.
They may also warn any person of a risk to their health and safety when exercising a right of entry at a workplace to consult with and advise workers about safety matters.
Assisting with HSR elections or negotiations
A union official can assist with the election of an HSR if the majority of the work group members agree.
An HSR is a worker who is elected to represent the health and safety interests of workers.
A union official may also enter the workplace to assist with workplace negotiations where the HSR feels it is necessary. For example, a union official can assist if there is no agreement on how an election should be conducted.
Assisting workers and HSRs in Queensland
In Queensland, from 20 May 2024, the law provides that only a ‘relevant union’ can assist a worker or HSR.
A relevant union is a union of which the worker is a member, or is eligible to be a member, and whose rules entitle the union to represent the worker’s industrial interests. The union must be an employee organisation registered under the Registered Organisations Act or Industrial Relations Act 2016 (Qld).
Another entity can also assist if it is authorised by the worker or HSR to represent or assist them, but that entity must not be an excluded entity.
An excluded entity for representing or assisting a worker or HSR includes:
- a union that is not a relevant union for the worker;
- an entity, other than a union, that is an association of employees or independent contractors;
- an entity, other than a union or an association of employees or independent contractors, that represents, or purports to represent, the industrial interests of the worker or HSR;
- an entity that demands or receives a fee from another excluded entity for representing, or purporting to represent, the industrial interests of the workers or HSR; and
- an officer, employee, agent of an excluded entity.
What to do when a WHS permit-holder seeks to enter your workplace
When a WHS permit-holder enters your workplace, you should request to see:
- their WHS permit;
- their photographic identification, e.g. driver’s licence; and
- written notice of entry (read more).
You must also allow for the inspection of documents when at least 24 hours’ notice has been given and there is a suspected breach of the WHS Act (so long as any record either does not identify an individual employee, or the consent of that employee has been obtained).
Case Law: CFMEU v Canberra Contractors (2025)
In CFMEU v Canberra Contractors (2025), a construction company and two senior managers were each fined $60,000, $11,200 and $6,600 respectively for preventing union permit-holders from inspecting a suspected safety contravention. The managers knew the permit-holders had the right to conduct the inspection, but they denied entry regardless.
Case Law: Ramsay & Anor v Menso & Anor (No.2) (2018)
In Ramsay & Anor v Menso & Anor (No.2) (2018), the Federal Circuit Court fined construction company Z Group Pty Ltd $92,500, and its sole director Susan Menso $18,500, for breaching the FW Act when they refused to allow two WHS permit-holders to enter a construction site.
The Court imposed a significant fine as the company and its director not only failed to allow entry on to the site but ignored advice from Workplace Health and Safety Queensland inspectors and the police, who had attended the site to facilitate entry.
What is a notice of entry?
A notice of entry advises you of the relevant details of intent to enter your workplace.
A notice of entry must include the following information:
- the name and address of the workplace entered or to be entered;
- date of entry or proposed entry;
- full name of the entry permit-holder;
- name of the union they represent;
- the section of the Act under which entry to the workplace is proposed; and
- so far as is practicable, the particulars of the suspected contravention to which the notice relates.
Safe Work Australia has stated that a WHS permit-holder is not required to provide such specific detail that individual workers may be identified. In other words, it is sufficient that the permit-holder genuinely holds a reasonable suspicion before entering the workplace that the contravention has occurred or is occurring. However, the particulars of the breach must provide enough information to enable the person with control of the workplace (or their representatives) to determine the scope of the enquiry, including general locations in the workplace. For example, “suspected contravention in the provision of safe plant within production areas of the workplace”.
- must be in writing and contain the things listed above; and
- is not required to provide detail that may result in individual workers being identified.
In Queensland, amendments to the WHS Act 2011, which commenced on 20 May 2024, clarify that:
- a WHS permit-holder can enter the workplace for the purpose of giving notice of entry and they do not have to wait outside the workplace;
- a notice is not invalid simply because it contains a formal defect, irregularity or minor administrative error, e.g. a spelling error or incorrect name of a person or relevant union that is otherwise adequately identified in the notice; and
- when a permit-holder has given notice of entry for a suspected contravention, they have no separate requirement to give additional notice to view relevant employee records or other documents held or accessible at the workplace, or to consult workers about the suspected contravention, if they have already entered and remained at the workplace.
What to do if you believe a WHS permit-holder has abused their rights
If you believe that a WHS permit-holder has abused their rights when entering your workplace, report it to the safety regulator in your jurisdiction and request that an inspector resolve the issue.
You can also make an application to have the WHS permit-holder’s permit revoked.
Case Law: Director, Australian Building & Construction Commission (ABCC) v Hall (2017)
In Director, ABCC v Hall (2017), the Federal Court dismissed proceedings brought against a number of Construction, Forestry, Mining and Energy Union officials finding that their conduct in blockading a worksite in the Australian Capital Territory was a result of genuinely held concerns regarding safety at the site, and not because they wanted the builder to sign up to a union-approved enterprise agreement and to hire a union attendant for the site.
The Court accepted the evidence of the officials, as well as evidence of WorkSafe ACT that attended the site in the relevant period, that there were significant safety issues, including in respect of asbestos.
A declaration remains operational for 2 years, during which time the union cannot seek penalty orders from the SAET. During the period of operation of the declaration, officials of that union who hold a WHS entry permit must notify SafeWork SA before exercising a right of entry to investigate suspected WHS contraventions, and must provide a written report to SafeWork SA within 14 days setting out the details of their investigation. The SAET is also required to automatically presume that an official’s WHS entry permit should be revoked if they breach right of entry rules.
Union rights of entry under Victorian legislation
In Victoria, right of entry for health and safety purposes under the Occupational Health and Safety Act 2004 is very similar to the WHS Act but focuses primarily on the right to enter for suspected contraventions. There is no separate right of entry to consult on safety matters, although this could be exercised under the FW Act.
Union rights of entry under WA legislation
In Western Australia, even though the WHS Act 2020 has commenced operation, the right of entry for health and safety purposes is still provided for under the Industrial Relations Act 1979 as part of the overall right of entry rules. Under this Act, an authorised union official is entitled to investigate any suspected breach of the WHS Act 2020.
The previous law provided that the Registrar of the Industrial Relations Commission must issue an authority to any person nominated by the secretary of a registered union. Importantly, under the old law, the right of entry authority did not expire.
Under the new law, all existing authorities will expire in November 2025.
The new law provides that the Commission may issue a right of entry permit to a nominated official if it is satisfied the official is a fit and proper person to hold the permit.
Any right of entry permit expires after 3 years or if the authorised representative (the holder of the permit) is no longer an officer or employee of the union.
Union rights of entry under the FW Act
The right of entry provisions contained in the FW Act apply to all national system employers.
A national system employer is an employer that is:
- a constitutional corporation;
- the Commonwealth or a Commonwealth authority;
- a body corporate incorporated in a territory; or
- a person who carries on an activity (whether of a commercial, governmental or other nature) in a territory in Australia.
Generally, a union official will have a right to enter a premises if they:
- hold a valid and current right of entry permit issued by the FWC; and
- have provided 24 hours’ notice (but no longer than 14 days’ notice) to your business.
Notice of entry can be either written or oral. Entry permits under the FW Act are valid for 3 years.
Case Law: ABCC v Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (2021)
In ABCC v CFMMEU (2021), the Federal Court imposed fines on the CFMMEU and its officials in an overall amount of $121,000 for failure to show their entry permits to the PCBU when exercising their right of entry.
Case Law: Construction, Forestry, Mining and Energy Union (2018)
In Construction, Forestry, Mining and Energy Union (2018), the FWC rejected an application by a union for an FW Act right of entry permit for its NSW Divisional Branch State Secretary on the basis that he was not a fit and proper person. The official had previously been fined for breaching workplace laws.
If a union official has shown a valid permit for entry to your workplace under the FW Act, you must not:
- refuse or delay entry of the permit-holder;
- refuse the right of the permit-holder to inspect and copy records or documents regarding a suspected breach;
- hinder or obstruct the permit-holder from exercising their rights; or
- recklessly or intentionally give the impression that authorised conduct is not authorised.
Union officials who enter your workplace on an FW Act permit must not:
- engage in recruitment conduct that is unduly disruptive;
- repeatedly enter a workplace with the intention or effect of hindering or otherwise harassing an occupier or employer;
- make misrepresentations suggesting that certain actions are authorised; or
- disclose information in breach of privacy legislation.
Why an FW Act permit-holder may seek to enter your workplace
An FW Act permit-holder may exercise rights of entry in the following situations:
- for health and safety reasons;
- to investigate a suspected breach of the FW Act, modern award or enterprise agreement; or
- to hold discussions with workers.
Entering for health and safety reasons
An FW Act permit-holder may enter the workplace to:
- investigate a suspected breach of health and safety laws;
- consult with and advise employees on safety matters; and
- deal with issues relating to an HSR.
Investigating a suspected breach of the FW Act, a modern award or an enterprise agreement
If the purpose of entry is to investigate a suspected breach of the FW Act, a modern award or an enterprise agreement, the permit-holder must suspect on reasonable grounds that the breach has occurred. It is up to the person seeking entry to the workplace to demonstrate that these reasonable grounds exist.
The permit-holder may inspect any work process or object relevant to the suspected breach as part of their investigation.
An entry notice must set out:
- the specific premises sought to be entered;
- date of entry;
- the section of the FW Act that authorises the entry;
- the suspected breach;
- who the suspected breach relates to, or who is affected by the suspected breach (although it is not necessary to name them);
- the permit-holder’s union;
- a declaration by the permit-holder that their union covers affected workers on the premises; and
- the provision of the union’s rules that details the union’s coverage of the worker.
Engaging in discussions with workers
An FW Act permit-holder may enter a workplace to hold discussions with employees covered by that union.
The right to enter the workplace to hold discussions has the following restrictions:
- the permit-holder must give 24 hours’ notice if they are to enter the workplace to engage in discussions with workers;
- the discussions are limited to only those workers who wish to participate;
- the discussions must take place during the workers’ meal times or other breaks during working hours;
- the employer is entitled to request that the discussions take place in certain rooms in the workplace; and
- the employer is entitled to request that the individual take a particular route through the workplace to get to the discussion room.
Case Law: Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union (2017)
In Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union (2017), the Full Court of the Federal Court rejected an employer’s claim that it was entitled to refuse to allow union officials to meet in an area that was used not only for the purpose of meals, but also for other work-related purposes.
The employees were the operators of two draglines that were used for mining operations at the Caval Ridge mine. Draglines are large excavators that include a cab, behind which is a small room that includes a fridge, some cupboards and a small bench. The room also had a computer and two chairs, and it was used to store safety equipment like earplugs. While not a purpose-built lunch room, the relevant employees used the area for taking meals.
The union argued this area was the default meeting room, but the employer asserted it could not be the room as it was not used solely for having meals.
The Federal Court, both at first instance and on appeal, rejected the employer’s argument and confirmed that the relevant room only needed one purpose to be that of an area ordinarily used for having meals.
What to do if you believe an FW Act permit-holder has abused their rights
If you believe that a union or permit-holder has abused their rights in relation to entering your workplace, you can:
- report it to the FWC, which has significant powers to revoke or suspend a permit if it believes that a union or permit-holder abused their rights; or
- contact the Fair Work Ombudsman if you operate in the construction industry.
Case Law: ABCC v Construction, Forestry, Mining and Energy Union (2018)
In ABCC v Construction, Forestry, Mining and Energy Union (2018), the majority of the High Court held that a federal court can, under the FW Act, restrict a union official from seeking indemnity from the union for any penalty imposed on them personally.
The majority of the High Court judges found that courts may impose personal fines against union officials for their misconduct and breaches of the FW Act, in addition to any fines issued to unions.
Although the Court noted the practical difficulty in ensuring that the union official paid their own fines, the decision affirms that the courts can impose orders on union officials to pay fines personally, rather than have the union pay them on their behalf.
Case Law: Director, Fair Work Building Industry Inspectorate v Myles & Ors (2013)
In Director, Fair Work Building Industry Inspectorate v Myles & Ors (2013), the Construction, Forestry, Mining and Energy Union and some of its officials were the subject of civil proceedings brought by the regulator which alleged misuse of the right of entry powers.
Complaints were made about the conduct of the union official who entered the site of Laing O’Rourke seeking to exercise rights of entry. It was alleged the official acted in an improper manner by being rude and offensive, including swearing at and insulting a manager by saying to him, “I don’t have to answer you, you little grub” after the manager asked the union official about failing to have correct personal protective equipment.
The Court held that the union official had breached the FW Act and it imposed penalties.
Union power to commence prosecution in New South Wales
If they commence a prosecution that is successful, unions can obtain a payment of part of the fine imposed on a PCBU. (This change restores a practice that previously existed in NSW and is likely to see an increase of prosecutions being commenced by unions.)
Unions can also act for individuals who are seeking penalties for breaches of civil penalty provisions, for example, anti-discrimination provisions. Penalties can be ordered to be paid to the union.
Samples
Click here to download the sample document: WHS Entry Notice.
Click here to download the sample document: FW Act Entry Notice.