Check which workplace relations system applies
These guides concern the national Fair Work system. In WA, coverage can depend on the employer's legal identity, activities and arrangements. A business structure alone may not settle the question, particularly for trusts, partnerships and not-for-profit organisations.
Do not use these checklists to decide jurisdiction or whether an action is lawful. Check official Fair Work coverage guidance, or contact us.
The basics
- Membership is a free choice.Employees can join a union or not. You can’t take adverse action against anyone for union membership or lawful union activity.
- Entry needs a permit and notice.A union official needs a valid Fair Work entry permit and, in most cases, written notice. Safety-related entry has separate rules under WA law.
- Delegates have legal rights.Workplace delegates can communicate with members, reasonably use workplace facilities and, unless you’re a small business, take paid time for training.
- Disputes follow your clause.Most disputes run through the dispute clause in your award or agreement, and can end up at the Fair Work Commission.
A union official wants to come on site
For entry under the Fair Work Act to hold discussions or to investigate a suspected breach. Tick what you can confirm.
Why it matters
You can ask to see it, and check it on the Fair Work Commission's website.
Why it matters
The Commission can issue an exemption certificate allowing less notice, but only in limited cases.
Why it matters
The purpose decides what they can do on site.
Why it matters
Entry is limited to working hours, and discussions are held in meal or other breaks.
Why it matters
The room or area is agreed with the permit holder. If you cannot agree, the statutory default is an employer-provided area where the relevant employees ordinarily take meal or other breaks. You may request a reasonable route to that area.
Why it matters
Requirements such as signing in, induction and PPE must be reasonable in the circumstances. Escort or other site rules must not improperly hinder lawful entry.
Why it matters
Hindering a lawful entry is a contravention, with penalties.
Tick each point you can confirm.
Your obligations at a glance
The main areas where the law sets rules for dealing with unions.
- Since 15 December 2023, workplace delegates are entitled to reasonable communication with members and potential members, and reasonable access to the workplace and its facilities to represent them.
- They're also entitled to reasonable paid time for training, unless you're a small business employer.
- Awards include delegates' rights terms. New enterprise agreements voted on from 1 July 2024 must also include a delegates' rights term. Check the applicable instrument.
- You must not unreasonably refuse to deal with a delegate, knowingly or recklessly mislead them, or unreasonably hinder them.
- Employees are free to join a union or not, and to take part in lawful industrial activity.
- Adverse action because of union membership or activity is unlawful, and in a claim you must prove your reason.
- Your award or agreement dispute clause sets out the steps.
- The Fair Work Commission can conciliate and, where the clause allows, arbitrate.
- Disputes about delegates' rights, flexible work and right of entry can also go to the Commission.
- Protected industrial action is subject to strict bargaining, timing and procedural rules. Employee claim action generally requires an authorised ballot and notice. Different rules apply to employee and employer response action. Get advice before taking action or treating it as unprotected.
- The Commission can order unprotected action to stop.
- You can take employer response action, within the rules.
- If you have an enterprise agreement and host labour hire workers, a union or the workers can ask the Commission for a 'same job, same pay' order. It requires the labour hire provider to pay your agreement rates.
- Orders can't be made where the host is a small business employer, or where the arrangement is genuinely for a service rather than a supply of labour.
- Union entry for work health and safety reasons runs under WA law, with its own permits and notice rules.
- When a safety breach is suspected, entry can happen with little or no advance notice.
- Since 31 January 2025, WA permits require a fit and proper person test.
Questions employers ask us
The general position only. Every answer turns on your facts, your award or agreement, and your records.
Can we refuse entry to a union official?
What the law looks at
- Only where there’s no right of entry, for example no valid permit or no proper notice.
- Wrongly refusing, delaying or hindering a lawful entry is a contravention.
- If you’re unsure, talk to us before you refuse.
Do we have to let delegates use our email or messaging systems?
What the law looks at
- Delegates are entitled to reasonable communication with members and reasonable access to facilities.
- What’s reasonable depends on the size and nature of your business and the facilities you have.
- Refusing all access to the channels everyone else uses is risky.
A union has applied for a same job, same pay order. What now?
What the law looks at
- Check whether you’re the host, whether your agreement would cover the work, and whether the arrangement is a supply of labour or a service.
- The Commission must not make an order if it’s satisfied that doing so isn’t fair and reasonable in the circumstances.
- Labour hire providers and hosts both have obligations once an order is made.
Can we talk to employees directly while bargaining with the union?
What the law looks at
- Yes, you can communicate directly with employees.
- Good faith bargaining means you mustn’t undermine the bargaining representatives or collective bargaining.
- Say the same thing at the bargaining table and on the floor.
Do union officials have to follow our site rules?
What the law looks at
- They must comply with reasonable work health and safety requirements that apply to the premises.
- Site rules can’t be used as a pretext to block a lawful entry.
Discuss your results with Vantage
Official sources
Check the current rules and how they apply to your circumstances.