28 November 2013
When the union comes knocking ... right of entry to workplaces
The Federal Government has recently flagged it will be making changes to the rights of entry to workplaces, and also undoing the changes made by the former Labor government that are starting on 1 January 2014. In these times of change it is worth recapping the current situation and what you need to do when a union official comes knocking at your door.
The Fair Work Act 2009 grants certain rights of entry to union officials provided they hold an entry permit. These rights do not provide a union official unfettered access to premises - there are certain requirements that must be met.
A permit holder, during working hours and with 24 hours notice, may enter premises for three reasons:
to investigate a suspected contravention of the Fair Work Act or an industrial instrument: section 481;
to hold discussions with one or more employees who perform work on the premises, whose industrial interests the union is entitled to represent, and who wish to participate in those discussions: section 484; and
to exercise a health and safety right: section 494. However, if the purpose of the visit is to inquire into suspected breaches of the Work Health and Safety Act then 24 hours notice is not required, and notice need only be given as soon as practicable.
If entering to investigate a suspected contravention, that contravention must relate to, or affect, a member of the permit holder’s organisation on the site. The permit holder has to have first given 24 hours’ notice and must reasonably suspect that the contravention has occurred or is occurring. The Fair Work Commission can assist in dealing with disputes about those matters.
Once on site the permit holder may:
inspect any work, process or object relevant to the suspected contravention;
interview workers about the suspected contravention, provided the worker agrees and is somebody who could be represented by the union; and
require the employer to allow inspection and copying of any record of a member that is directly relevant to the suspected contravention.
Whilst on the premises, a permit holder must be ready to produce their permit for inspection if requested to do so, or if seeking to inspect and/or copy any documents kept on the premises that are directly related to the suspected breach.
Union officials with a permit can enter premises to hold discussions with employees who perform work on the premises, and whose industrial interests the union is entitled to represent, although it is not necessary there be a member of the union on site. Discussions are to take place only during meal or other breaks.
Requirements for union officials
Regardless of the purpose of the visit, a permit holder must not hinder or obstruct or otherwise act improperly when on the premises, must comply with any health and safety requirements, and must comply with a reasonable request to conduct interviews or discussions in a particular room or area of the premises, or to take a particular route to reach a particular room or area of the premises.
An employer also has certain obligations when a permit holder exercises a right of entry. An employer must not refuse or delay entry of a permit holder, must not intentionally hinder or obstruct a permit holder, and must comply with a proper request to inspect or copy documents.
The employer is entitled to see the entry permit to confirm that the person seeking to exercise a right of entry can legitimately do so. A list of permit holders is also available on the Fair Work Commission’s website.
If proper notice has not been given, entry can be refused.
Changes to the right of entry provisions brought about by the Fair Work Amendment Act 2013 are set to come into effect on 1 January 2014.
From 1 January 2014, where agreement cannot be reached as to the location of interviews or discussions, then they can be held in the room where meal breaks are ordinarily taken.
In remote locations there will be a requirement that a permit holder be provided with transport and accommodation in order to facilitate the entry to premises.
The Fair Work Commission will also be able to exercise greater powers to deal with disputes in relation to the frequency of entry to hold discussions and the new accommodation and transport arrangements.
The Government has flagged its intention to limit the existing arrangement and also wind back the proposed changes. We will have to wait until next year to see what happens but, in the meantime, it is important to make sure that all parties comply with the requirements and their obligations when a union official seeks to exercise a right to enter a workplace.