What to do when the union comes knocking…
A guide for employers from an Industrial Law perspective
The union’s ability to exercise entry rights is a frequent cause of apprehension for employers. Managed poorly, there will be an increased possibility for work to be disrupted and tension created between the union, employees and the employer.
On the other hand, a right of entry which has been managed effectively will contribute to a harmonious relationship between the employer, employees and the union and can also assist in identifying and rectifying potential contraventions of the Fair Work Act in the workplace.
It is key to understand the roles and obligations that both the employer and the union have for a successful right of entry process.
What is a Right of Entry?
The Fair Work Act 2009 (“the Act”) contains a provision which permits union officials to lawfully enter workplaces if they hold a valid right of entry permit. The permit is issued by the Fair Work Commission (“the FWC”) upon satisfaction that the union official is a “fit and proper person” to hold the permit.
Reasons the union may have to enter your workplace
Union officials may have grounds to enter your workplaces subject to the following provisions.
- Fair Work Act s 481 – To investigate a suspected breach to a Fair Work Instrument (Contract of Employment, Enterprise Agreement or Award)
Union officials can enter your workplace if they suspect a breach, a contravention of the Act, or a term of an industrial instrument that affects their members or those who are eligible to be their organisation members. The union official must provide evidence that they reasonably suspect a contravention has occurred or is occurring.
- Fair Work Act s 484 – To meet and hold discussions with employees
Union officials can exercise a right of entry for the purposes of holding discussions about employment conditions with their members or employees who are eligible to become members of their union.
- Applicable State or Territory OH&S Legislation – Enter for the purposes of OH&S
Union officials can enter your workplace if they would like to consult and advise workers on OH&S or suspect a contravention of the relevant state or territory OHS Act, or regulations made under the Act. Notice is not required in the instance that the union needs to investigate a suspected OH&S contravention.
The intention of the Act is to create a balance between right to represent and speak to its members and the employer’s right to continue its operations without disruption. This means that discussions between the union officials and their members should only occur during the meal or other breaks and not before or after work on the employer’s premises.
Checking Union Requirements Before Entering
Pursuant to the Act, a union official must fulfil the following requirements to enter the workplace:
- Hold a federal right of entry permit which is valid and current.
- Provide a notice of at least 24 hours and a maximum of 14 days to the employer; and
- Have an entitlement to represent the workers at the workplace.
As the employer, you may have an entitlement to refuse entry if the union official does not fulfil any of these requirements. To verify the validity of the union’s entry permit, simply click here.
Checking Union Requirements After Entering
Union officials must conduct their meetings with as little hindrance caused to the workplace as possible. It is considered best practice to allocate a representative with the role of meeting up with the union officials upon their entry into the workplace and checking the validity of their entry permit before guiding them to the location that they can conduct their meetings.
Once they have entered the workplace, union officials need to:
- Comply with the employer’s reasonable request to hold the meetings in a specific room or area of the workplace and/or take a specific route to the meeting area. Where an agreement cannot be reached, the meetings can be held in the area in which meal breaks are ordinarily taken.
- Act in a proper manner and not intentionally hinder or obstruct others in the workplace.
- Comply with reasonable requests relating to workplace health and safety (i.e., wearing of appropriate protective clothing) and;
- Comply with all the requirements mandated by their permit, including the prohibition of holding meetings with workers who they have no industrial coverage over.
Union officials who do not comply with these requirements may be reported to the FWC who may make orders to suspend or revoke the official’s entry permit.
Like unions, employers also have responsibilities and obligations in the right of entry process.
This includes the requirement to:
- Allow the union to exercise their right to enter the workplace, subject to holding a valid entry permit and other requirements without any unreasonable delays.
- Allow the union to access and make copies of relevant employee records that are directly related to any suspected contraventions (i.e., payslips or timesheet records).
- Allow the union to exercise any other legitimate rights they have under their permits.
Any breaches of these requirements may be regarded as an offence under the Act which can result in fines of up to $66,000 for a body corporate and up to $13,320 for an individual.
It is best practice to aim to build a rapport with the union officials and maintain a good relationship. If the union alerts you of any reasonable and lawful issues, you should attempt to resolve them immediately or arrange a schedule by agreement to have the issues resolved.
With the complexities surrounding the right of entry process, it is vital to understand the obligations which both the union and the employer have.
If you are presented with a right of entry circumstance, it is best practice to seek expert advice that is specifically tailored to the needs and requirements of your business.