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28 November 2008
This is the second in a series of articles about the Federal Government’s proposed new workplace legislation known as the Fair Work Bill 2008. The first of these articles was an overview of the new workplace legislation.
The Government intends for the new laws to be fully introduced by 1 January 2010, with some aspects taking affect from 1 July 2009. At the date of this article there have been no changes in the law.
This article considers aspects of the Bill with respect to union entry to the workplace. It is possible that there will be changes to the legislation as it moves through the Senate. We will report on any substantial changes as they occur.
If a union is entitled to represent the industrial interests of employees at a particular workplace, an official of that union will be able to gain access to that workplace to hold discussions with those employees. However, there are several conditions which must be satisfied in order for the official to gain access for discussions. Most importantly, the union official will need to hold a valid entry permit issued by Fair Work Australia, and give at least 24 hours’ advance notice in writing to the employer.
Discussions may only occur during non-working time such as meal times and other breaks. Employee participation in the discussions is voluntary. As with current law, a union official will be required to comply with any reasonable request from the employer to conduct the discussions in a particular room or area of the workplace. An employer is also within its rights to ask the official to take a particular route to reach a particular room or area of the workplace. The room or area must be fit for the purpose, otherwise the request will not be reasonable.
Unions do not currently have a right of entry for discussion purposes unless there is an award or agreement at the workplace which binds the union. The new legislation does not have this condition. As a result, a union will be able to enter a workplace as long as the union can show it has the ability to represent the industrial interests of the employees. This represents a significant change from the current laws.
In many cases, employers will not be in a position to know whether a particular union has the legal ability to represent the industrial interests of employees. In view of this, the union official seeking entry will need to declare in the written entry notice that the union is entitled to represent the industrial interests of the employees concerned. The declaration must also identify that part of the union’s eligibility rule which supports the declaration. The declaration must be genuine, and misrepresentation can expose the union to penalty.
In addition to the right to enter workplaces for discussions, a union official holding an entry permit will be able to gain access to employment records to investigate a suspected breach of an award, agreement or the workplace laws. The union official will be able to investigate a suspected breach affecting any person the union is entitled to represent. However, there must be some substance to the suspicion. A union carries the burden of proving that it has reasonable grounds to support the suspicion.
Amongst the critical conditions for exercising the right to investigate, the union must give the employer advance written notice of at least 24 hours. While at the workplace, the union official will be able to inspect any work relevant to the suspected breach and will be able to inspect and copy any documents relevant to the suspected breach. This would appear to allow access to records of employees other than union members - as long as those records are relevant to the suspected breach. The union must deal with any information it obtains in accordance with national privacy laws, and there are penalties for misuse of information.
A union official holding an entry permit may be able to enter the workplace for occupational health and safety purposes. This right can only be exercised during working hours and advance written notice of at least 24 hours must be given to the employer and occupier of the premises. The union official must comply with any health and safety requirement at the work premises.
As with the current laws, various acts are prohibited. Relevantly, a union official cannot hinder or obstruct any person while at the workplace and cannot act in an improper manner. Entry permits can be removed for breach.
If a union official has complied with the necessary obligations, entry must be allowed. In those circumstances, it will be an offence to refuse or delay entry or to hinder or obstruct a union official. Again, penalties are available for breach.
Unions will not be able to use modern awards to gain more generous rights of entry. In fact, modern awards will not be able to include any terms about rights of entry. A similar restriction does not apply to enterprise agreements, but any right of entry conditions in an enterprise agreement will be unlawful if inconsistent with the legislation.
Employees will be able to elect a union as a bargaining agent to negotiate an enterprise agreement. This means that there could be an increased level of union involvement at the workplace. Further, if a union is appointed as a bargaining agent, an employer must bargain with that representative in good faith (i.e. meet with, discuss etc). If an employer refuses, Fair Work Australia may intervene. Good faith bargaining will be addressed in a forthcoming article.
The Fair Work Bill enshrines freedom of association laws to ensure that employees remain free to be represented by unions. Sanctions will apply for adverse actions taken against an employee who exercises these rights. Freedom of association aspects of the Bill will also be covered in more detail in a forthcoming article.
If you have any questions about the new laws and how they may affect your business, please do not hesitate to call your usual contact at Australian Business Lawyers or our Managing Partner, Tim Capelin on (02) 9458 7497.
NOTE: This is for information purposes only.
It does not purport to be comprehensive or to render legal advice.
