Union rights of entry08 January 2009 Topics: Workplace relations and safety
“Fair Work” and “Work Choices”
Substantial “employer-friendly” reforms concerning the right of union officials to enter workplaces were introduced by the Howard Government as part of Work Choices. The election of the Rudd Government in November 2007 signalled a short life for these reforms, and they now appear to represent but a brief departure from the traditional, more “union friendly” approaches of the past.
This legal alert examines the effect of yet further reform to workplace laws introduced to the parliament by the Deputy Prime Minister as the Fair Work Bill 2008. The bulletin addresses right of entry specifically. Later bulletins will aim to provide clients with information concerning other aspects of the suite of changes expected to become law later next year, or in early 2010.
“Fair Work” reforms
The new legislation (Fair Work Bill 2008) aims to retain a “fair and balanced framework for right of entry for officials of organisations and empower FWA [“Fair Work Australia” – the new industrial umpire and self-styled “one stop shop”] to deal with abuses of rights by officials, unreasonable requests by employers and disputes.” (Explanatory Memorandum).
Some of the key clauses of the Fair Work Bill with respect to the right of entry rules concern right of entry rules in industrial instruments (awards and agreements), and the specific rules governing the right of entry where breaches are suspected, and the right of entry to “hold discussions”.
Right of entry in modern awards and enterprise agreements
The Bill prohibits a modern award from including terms that require or authorise an official of an organisation to enter premises to hold discussions with, or interview, an employee or to inspect any work, process or object (clause 152).
The Bill also (clause 194, paragraph (f)) states that a term of an enterprise agreement is an unlawful term if it provides for an entitlement that is inconsistent with the provisions dealing with right of entry in relation to:
(a) Entry to premises for a purpose referred to in clause 481 (which deals with investigation of suspected breaches); or
(b) Entry to premises to hold discussions of a kind mentioned in clause 484. Clause 484 entitles a permit holder to enter premises for the purposes of holding discussions if one or more persons:
• Perform work on the premises;
• Are entitled to be represented by the permit holder’s organisation; and
• Wish to participate in those discussions.
The Bill limits when discussions can be held to mealtimes or other break periods. Discussions cannot occur during paid work time.
Importantly, however, the Explanatory Notes to the Bill (page 131) advise:
“It is intended that agreements can include terms allowing for union officials to enter the employer’s premises for purposes other than those set out in paragraphs 194(f) and (g). An agreement might, for example, provide an entitlement to enter the employer’s premises for a range of reasons connected to the terms of the agreement, such as:
• To assist with representing an employer under a term dealing with the resolution of disputes or consultation over workplace changes; or
• To attend induction meetings of new employees; or
• To meet with the employer when bargaining for a replacement to the current agreement.”
Terms of these kinds would have been prohibited under Work Choices.
Right of entry where contravention suspected
The Bill provides that a term of an enterprise agreement is an unlawful term if it provides for the exercise of a State of Territory OHS right (as defined in clause 494) otherwise than in accordance with the right of entry provisions in Part 3-4 (clause 194(g)).
Broadly, the Bill provides:
(a) Authority to a permit holder to enter premises to investigate a contravention of the Bill or a “Fair Work instrument” (modern award, enterprise agreement, workplace determination or FWA order), if the following entry conditions are met:
(i) The suspected contravention relates to or affects a member of the permit holder’s organisation;
(ii) The organisation is entitled to represent the industrial interests of that member, and
(iii) That member performs work on the premises.
(b) Rights which may be exercised while on the premises, including the right to:
(i) Inspect work, processes or objects;
(ii) Interview certain people who agree to be interviewed;
(iii) Require the occupier or an affected employer to allow the inspection and copying of any record or document kept on, or accessible from, the premises.
The Bill places a number of apparent restrictions on organisers, for example:
(i) Sub-clause 481(3), which places the burden of proving reasonable suspicion of a contravention on the permit holder;
(ii) Clause 482, which requires that the inspection of any work, process or object must be relevant to the suspected contravention.
(iii) Limits to the collection of information because the use, disclosure or storage of that information may be regulated by the Privacy Act 1988 (Cth).
By sub-clause 482(3) though, an occupier of premises or an affected employer who is required to allow the inspection and copying of records or documents must comply with that requirement. Importantly, this is a civil penalty provision, meaning that an employer who fails to comply may be brought before a court and penalised, for example, by fine.
Presumably, an employer who does not wish to comply retains the right to decline where sufficient grounds can be established. This is particularly important in the circumstances of an abuse perpetrated by a union official by, for example, demanding to inspect the records of managerial employees.
Secondly, unions apparently now have the right to inspect non-member records (whereas before, by s.748(4), non-member records were excluded). This right exists in circumstances where suspected breaches are being investigated.
Right of entry to hold discussions
The Bill also authorises a permit holder to enter for the purposes of holding discussions.
That particular right may now apparently be exercised in circumstances where there are no union members at the workplace – the legislation entitles a permit holder to enter to hold discussions with one or more persons:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent;
(c) who wish to participate in those discussions.
Rights of entry under Work Choices
The law at present (i.e. until the new legislation comes into effect) is found in the current Workplace Relations Act 1996 as amended by the Work Choices Act 2005.
The 2005 reforms introduced a number of new provisions restricting union right of entry and inspection. In addition, rights of entry were not stated to be an allowable award matter and constituted prohibited content for the purposes of any workplace agreement.
Examples of the Work Choices reforms which aimed to prevent or diminish what was regarded by the then Government as abuse of entry rights included:
(a) The introduction of a “fit and proper person” test – formerly there were no defined criteria for issuing right of entry permits. According to Work Choices, fitness and propriety are determined by reference to specific considerations, for example, whether the official has any convictions for offences under industrial laws, and whether the official has received training about the rights and responsibilities of permit holders; with the idea being to place restrictions on rogue union organisers; and
(b) In relation to the right of entry by union officials to hold discussions with employees, the Work Choices reforms introduced:
(i) A 24 hour notice requirement for the exercise of the right by a union to enter business premises;
(ii) The right of employers to issue directions about where the meeting is to occur and, for example, the route to be taken through business premises;
(iii) A liberalisation of the rules concerning the issue of conscientious objection certificates for employers;
(iv) Rules relating to the exercise of the managerial prerogative. Where reasonable requests are made by employers of union permit holders, a failure to comply with those requests effectively removes the permit holder’s authority to remain on site.
(v) An expansion of the prohibition on (and offence of) hindering or obstructing. The former requirement that “any employer or employee” not be intentionally hindered or obstructed was expanded by Work Choices to include “any person”. In addition, there is another requirement: that the permit holder “must not… otherwise act in an improper manner”
(vi) Additional powers for the Australian Industrial Relations Commission to make orders it deems appropriate in the event that an organisation or official has abused any right provided for in the Act; and, finally,
(c) Reform can also be found in parliament’s statement of the object of the legislation; i.e. to establish a balance between the rights of unions to represent members, hold discussions with potential members, and investigate breaches, with the right of occupiers and employers to conduct business “without undue interference or harassment” .
A comparison of the two sets of provisions reveals a number of other minor changes (in addition to the more significant reforms). The latter are canvassed above.
The most obvious observation which may be made about the reforms is that while the Government has retained the bulk of the detailed right of entry provisions from the previous legislation, the overall effect is, perhaps unsurprisingly, to water down the effect of the 2005 reforms.
This bulletin is not intended to be a substitute for specifically tailored legal advice. For further information, please contact a member of our workplace relations team on 3231 2444.