ATTACHMENT A

Details of the Fair Work Amendment (Modernising Right of Entry) Regulations 2019

Section 1 - Name

This section provides that the title of the instrument is the Fair Work Amendment (Modernising Right of Entry) Regulations 2019 (the Amending Regulations).

Section 2 - Commencement

This section provides when the Amending Regulations commence. Sections 1 to 4 of this instrument and Part 1 of Schedule 1 commence on 1 July 2019. Part 2 of Schedule 1 commences on 1 October 2019.

Section 3 - Authority

This section provides the legislative authority for the Amending Regulations. The Amending Regulations are made under the Fair Work Act 2009 (Fair Work Act).

Section 4 - Schedules

This section provides that each instrument that is specified in Schedule 1 to the Amending Regulations is amended or repealed as set out in the applicable items in Schedule 1, and any other item in Schedule 1 has effect according to its terms.

Schedule 1 - Amendments

Part 1 - Amendments commencing 1 July 2019

Fair Work Regulations 2009

Item 1 - Regulation 3.26

This item repeals existing regulation 3.26, which provides that the form of an entry permit is set out in Form 1 in Schedule 3.3 to the Fair Work Regulations 2009 (the Principal Regulations), and inserts new regulation 3.26.

New regulation 3.26 prescribes the information that must be included on a right of entry permit issued by the Fair Work Commission (the Commission) on or after 1 July 2019. This includes:

*         the permit holder's full name;

*         the name of the organisation that applied for the entry permit;

*         the expiry date of the permit;

*         a recent photograph of the permit holder that shows the holder's full face, and meets requirements that are considered appropriate by the Commission; and

*         the permit holder's signature.

Whilst the precise form of entry permits is no longer prescribed and instead left to the discretion of the Commission, it is anticipated that the form will be that of an identity card, similar to a government issued driver's licence. Allowing the Commission the discretion to determine the precise form of entry permits will allow the form of entry permits to be adapted over time to keep up with developments in technology, without the need to further amend the Principal Regulations.

Similarly, it will be a matter for the Commission to determine the requirements for photographs of permit holders as provided for in regulation 3.26(d). The Amending Regulations provide that the photograph must be 'recent' and show the permit holder's full face to ensure that an employer or occupier can readily identify the permit holder. It is intended that 'recent' will have its ordinary meaning. The Commission will have discretion to set any further requirements it considers appropriate for photographs. This will allow the requirements to be periodically reviewed and, if necessary, amended to reflect developments in photographic identification, without further amendments to the Principal Regulations. It is anticipated that the Commission will seek guidance from the requirements pertaining to Australian passport photographs or other forms of government issued photographic identification when determining the requirements for photographs to be attached to the new form of entry permits.   

It is common practice to provide discretion to bodies such as the Commission to determine the form of documents such as entry permits and photographs (for example, see regulation 5.01 of the Airport Transport Security Regulations 2005 in relation to the issuing of Aviation Security Identification Cards). Section 625 of the Fair Work Act only allows the powers of the Commission in relation to the form of entry permits, entry notices and exemption certificates to be delegated to the General Manager of the Commission, an SES employee or an employee prescribed by the regulations. There are no prescribed employees.

The new requirement in regulation 3.26(c) that an entry permit contain an expiry date rather than the currently prescribed issue date allows any person inspecting the entry permit to quickly identify if the permit is valid. Although the expiry date of a permit may change if the Commission grants an extension under subsection 516(2) of the Fair Work Act or earlier revokes the permit under section 510, any such changes can be accommodated on the permit in a manner determined appropriate by the Commission. For example, this could be by way of amendment to the permit to reflect the changed expiry date.

The new requirements in regulations 3.26(d) and (e) respectively to include a photograph and a signature of the permit holder modernise the permits and provide added security measures to ensure that individuals seeking to exercise their statutory entry rights are appropriately identified and authorised.  

Any conditions that are imposed on a permit holder's entry permit by the Commission will continue to be recorded on the new form of entry permit. This is a legislative requirement under subsection 515(3) of the Fair Work Act and is not modified by the Amending Regulations. The manner in which these conditions are recorded is a matter for the Commission to determine, but it is anticipated that the conditions will be recorded on the back of the permit.

Item 2 - Schedule 3.3 (note to heading)

Item 2 repeals the note to the heading in Schedule 3.3 and substitutes a new note drawing attention to the fact that the Forms in Schedule 3.3 cover regulations 3.27, 3.28 and 3.29. This item is consequential to items 1 and 3 and the repeal of Form 1 in Schedule 3.3.

Item 3 - Schedule 3.3 (Form 1)

This item is repeals Form 1 in Schedule 3.3.

Item 4 - At the end of Form 2 of Schedule 3.3

Item 5 - Schedule 3.3 (Form 3, note)

These items insert a text box containing additional information at the end of Form 2 and Form 3 in Schedule 3.3. The additional information restates in a general way a number of the obligations that apply to permit holders, occupiers of premises, affected employers and other persons when right of entry is being exercised under the Fair Work Act. The additional information included in Form 2 and Form 3 does not create or modify substantive rights or obligations that apply to permit holders, occupiers, affected employers or other persons under Part 3-4 of the Fair Work Act. Rather, this information is intended to serve as a general, non-exhaustive reminder to the parties of their obligations when right of entry is being exercised.

Form 2 contains the prescribed form for an entry notice, which is completed by the permit holder and, under s 487 of the Fair Work Act, given to the occupier of premises or affected employer prior to the permit holder exercising right of entry.

Form 3 contains the prescribed form for an exemption certificate. An exemption certificate exempts the permit holder from having to provide an entry notice and is issued by the Commission under section 519 of the Fair Work Act in situations where a permit holder seeks entry to investigate a suspected contravention and the Commission is satisfied that advance notice of the entry notice might result in the destruction, concealment or alteration of relevant evidence.

As already noted, the additional information included in Form 2 and Form 3 by these items does not include an exhaustive list of all of the obligations in Part 3-4 of the Fair Work Act that apply when right of entry is being exercised. This is made clear by the words 'In general terms, these include (but are not limited to) ... ', and also by directing readers to Part 3-4 of the Fair Work Act, the Fair Work Ombudsman and the Australian Building and Construction Commission for further information.

The additional information also includes a reminder that failure by a person to comply with an obligation under Part 3-4 of the Fair Work Act may result in a court ordering the person to pay a pecuniary penalty.

Item 5 also repeals the note to Form 3 as paragraph 519(2)(c) of the Fair Work Act already requires an exemption certificate to specify the day or days on which the entry may occur, and therefore it is not considered necessary.

Part 2 - Amendments commencing 1 October 2019

Fair Work Regulations 2009

Item 6 - After regulation 3.26

Item 6 inserts new regulation 3.26A which commences on 1 October 2019. This regulation is a transitional provision which specifies that the holder of a permit that was issued before 1 July 2019 must produce a document that provides photographic identification along with his or her entry permit, when requested to produce the permit under sections 489 or 497 of the Fair Work Act on or after 1 October 2019.

The document that provides photographic identification must either be issued by the government of the Commonwealth, a State or a Territory or an authority established for a public purpose by or under a law of the Commonwealth, a State or a Territory. The document must also be in force or ceased to have been in force in the last 2 years. This transitional requirement allows a broad range of documents providing photographic identification to be produced, including an Australian passport, a State or Territory driver's licence or another document providing photographic identification, such as a KeyPass ID issued by Australia Post which contains limited personal information but can verify a person's identity.

The purpose of new regulation 3.26A is to provide a transitional arrangement for permit holders who hold a permit issued prior to 1 July 2019. The new regulation facilitates these permit holders being able to produce appropriate photographic identification upon request from 1 October 2019, without any significant additional regulatory burden being imposed upon them. The commencement date of 1 October 2019 for this regulation is to provide permit holders with sufficient time to ensure they have adequate photographic identification to produce alongside their existing entry permit as required by new regulation 3.26A.   

ATTACHMENT B

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Fair Work Amendment (Modernising Right of Entry) Regulations 2019

 

The Fair Work Amendment (Modernising Right of Entry) Regulations 2019 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

Part 3-4 of the Fair Work Act 2009 (Fair Work Act) provides a framework within which officials of registered organisations who hold right of entry permits may enter premises for the purposes of investigating suspected contraventions of the Fair Work Act or fair work instruments or holding discussions with members and potential members of the organisation while on the premises. Part 3-4 also sets out additional requirements officials of organisations must meet when exercising rights under State or Territory Occupational Health and Safety laws. 

 

The Fair Work Regulations 2009 (the Principal Regulations) prescribe the form of entry permits, entry notices and exemption certificates, which are all relevant to the exercise of right of entry under Part 3-4 of the Fair Work Act.

 

Under section 512 of the Fair Work Act, the Fair Work Commission (the Commission) may issue a right of entry permit to an official of a registered organisation if satisfied that a person is a fit and proper person to hold an entry permit, taking into account specified permit qualification matters. Before entering premises, a permit holder must give an entry notice setting out information about the proposed entry, including the premises to be entered and the purpose for the entry unless the Commission has issued an exemption certificate for the entry (section 487). If the Commission issues an exemption certificate, this must be produced by the permit holder when entering premises. A permit holder exercising right of entry must also produce his or her 'authority documents' (being the entry permit and entry notice/exemption certificate) on request (section 489).

 

The Fair Work Amendment (Modernising Right of Entry) Regulations 2019 (the Amending Regulations) amend the Principal Regulations to modernise these forms by:

 

*         repealing the current prescribed form of entry permits and giving the Commission the discretion to determine the precise form of entry permits subject to the requirement that permits include:

 

o    the name of the permit holder;

o    the name of the organisation;

o    the expiry date of the permit;

o    a recent photograph of the permit holder that meets requirements considered appropriate by the Commission; and

o    the permit holder's signature.

 

*         providing a transitional arrangement that would commence on 1 October 2019 that would require existing permit holders (that is, those permit holders with a right of entry permit issued before 1 July 2019) to produce photographic identification along with their entry permit when requested to produce their entry permit under the Fair Work Act; and

*         amending the prescribed form for entry notices and exemption certificates to include additional information highlighting some of the obligations that apply to permit holders, occupiers of premises, affected employers and other persons, when right of entry under the Fair Work Act is being exercised.

 

The effect of the Amending Regulations is that permits issued by the Commission on and after 1 July 2019 will also include a photograph of the permit holder and the permit holder's signature. While the specifications are a matter for the Commission, it is anticipated that the photograph for the purpose of new regulation 3.26 will be similar to a passport photograph. This new requirement will help occupiers of premises and affected employers to identify the person purporting to exercise statutory entry rights with an entry permit. Under sections 489 and 497 of the Fair Work Act, permit holders are required to produce the entry permit upon request and in specified circumstances.

 

The amended requirements for entry permits operate prospectively. Permit holders with permits that were issued by the Commission prior to 1 July 2019 will not be immediately required to obtain a new permit. The Amending Regulations insert a new requirement for existing permit holders, requiring them to produce a document that provides photographic identification for inspection from 1 October 2019, in addition to producing their permit under sections 489 or 497 of the Fair Work Act. The document providing photographic identification  must be issued by the government of the Commonwealth, a State or a Territory or an authority established for a public purpose by or under a law of the Commonwealth, a State or a Territory and must be in force or have ceased to be in force in the last 2 years.

 

Entry notices and exemption certificates will include additional information highlighting obligations that apply while right of entry under Part 3-4 of the Fair Work Act is being exercised. The additional information to be included on these forms does not modify substantive rights or obligations that apply to permit holders, occupiers, affected employers or other persons under the Fair Work Act.  Rather, this information is intended to serve as a general, non-exhaustive reminder to the parties of their obligations when right of entry is being exercised under the Fair Work Act.

 

Human rights implications

 

Amendments to the form of entry permits

 

The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act 2011 relates to the seven core United Nations human rights treaties. The entry permit measures in the Amending Regulations engage with the following rights:

 

*         the right to freedom of association under Article 22 of the International Covenant on Civil and Political Rights (ICCPR); and

*         the right to protection against arbitrary and unlawful interference with privacy under Article 17 of the ICCPR.

 

The right to freedom of association

 

Article 22 of the ICCPR protects the right to freedom of association, including the right to form and join trade unions. Article 8(1) of the International Covenant on Economic, Social and Cultural Rights supports the right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society.

 

The entry permit measures in the Amending Regulations engage the right to freedom of association, and the right of trade unions to function freely.

 

The Amending Regulations have the effect that:

*         new permits issued by the Commission on and after 1 July 2019 must include a photograph of the permit holder; and

*         on and after 1 October 2019 permit holders with a permit issued prior to 1 July 2019 must produce a document that provides photographic identification (such as a driver's licence or passport), where the permit holder is required to produce the permit for inspection in accordance with sections 489 or 497 of the Fair Work Act.

These amendments engage with the right to freedom of association by requiring permit holders to meet additional photographic identification conditions. To the extent that these amendments may limit the right to freedom of association, the limitation is necessary, reasonable and proportionate. The amendments are reasonable and proportionate because they assist in achieving the legitimate objective of public safety by providing greater certainty to all those at a place of work, including occupiers, employers and employees, that individuals seeking to exercise statutory entry rights are appropriately identified and authorised. In circumstances where entry into premises would, in the absence of a valid entry permit, constitute trespass, the new requirements are appropriate and assist in protecting employees, occupiers and affected employers.

For clarity, the amendments do not alter the substantive operation of the right of entry framework under Part 3-4 of the Fair Work Act. A permit holder with the new form of entry permit will be able to exercise the functions and powers conferred by Part 3-4 to represent the interests of the organisation and its members. Similarly, a permit holder with a permit issued prior to 1 July 2019 will also be able to continue to exercise the functions and powers afforded by Part 3-4 by producing satisfactory photographic identification when seeking to exercise statutory right of entry. 

The right to protection against arbitrary and unlawful interferences with privacy

 

Article 17 of the ICCPR provides that no one should be subjected to arbitrary or unlawful interference with their privacy. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and being necessary in the circumstances.

 

The Amending Regulations require a right of entry permit to contain the permit holder's photograph and signature in addition to the continuing requirement that the permit holder's name will be listed. This will need to be shown to affected employers and occupiers when the permit holder is required to produce his or her permit for inspection under sections 489 or 497 of the Fair Work Act.

 

For the purposes of Article 17 of the ICCPR, the collection of the personal information in the permit application process, as well as the recording of the person's name, photograph and signature on a permit if granted, would not be "unlawful" as it would be provided for and authorised under the Fair Work Act. Further, requiring this information would not be an arbitrary interference with the right to privacy, as it would be for the legitimate and necessary objective of ensuring that persons purporting to exercise right of entry functions and powers under Part 3-4 of the Fair Work Act can be visually verified by occupiers of premises and affected employers.

 

The objective of having this information provided as part of the permit application process  and produced for inspection as required is necessary because it will provide confidence for occupiers of premises, affected employers, employees and the Commission that only those appropriately authorised permit holders are exercising statutory right of entry powers. This is necessary given that entry without permission in accordance with Part 3-4 of the Fair Work Act, would constitute an unlawful trespass and disrupt workplaces.

 

Any limitation on the right to privacy is proportionate as the provision of personal information in a permit application would only be triggered if an organisation chooses to apply for a permit on behalf of an official. Further, the requirement to produce a document providing photographic identification (either in the new permit or when a permit holder uses a permit in the old form) would only be triggered when a permit holder is required to produce the permit under section 489 or 497 of the Fair Work Act. The broad definition of the forms of acceptable identification to be produced under the transitional arrangement and the delayed commencement of that requirement will allow permit holders to obtain and show a form of identification that does not constitute an arbitrary or unlawful interference with their privacy.

 

Lastly, the personal information collected by the Commission would be used for the sole purpose of administering the right of entry permit regime. Information collected would be subject to safeguards preventing unauthorised disclosure (such as the Australian Privacy Principles under the Privacy Act 1988; section 122.4 of the Criminal Code 1995; and the Australian Public Service Values and Code of Conduct under the Public Service Act 1999, where applicable). The Australian Privacy Principles will govern all stages of the processing of personal information by the Commission and set out standards for the collection, storage, security, use, disclosure and quality of personal information.

 

In conclusion, any limitations are reasonable, necessary and proportionate to upholding the balancing of all parties' interests under Part 3-4 of the Fair Work Act.

 

Amendments to the form of entry notice and exemption certificate

 

The substantive rights or obligations that apply to persons when right of entry is being under exercised under Part 3-4 of the Fair Work Act are not expanded or modified by the amendments to the form of entry notices and exemption certificates. The inclusion in the entry notices and exemption certificates of additional information highlighting some of the obligations that apply when right of entry is being exercised merely serve as a reminder of the obligations under Part 3-4 of the Fair Work Act that apply.

 

As entry notices or exemption certificates are already required to be given when entry is being exercised, inserting additional information into these forms does not place any additional requirements on permit holders, occupiers of premises, affected employers or other persons. This additional information does not alter or otherwise modify the statutory right of entry framework under Part 3-4 of the Fair Work Act. For these reasons, these amendments do not engage any of the applicable rights or freedoms.

 

Conclusion

 

The Amending Regulations are compatible with the right to freedom of association and protection against arbitrary and unlawful interferences with privacy.

 

The Hon Kelly O'Dwyer, Minister for Jobs and Industrial Relations