this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Union rights of entry to the workplace

Feature Articles

Cite as: (2005) 79(11) LIJ, p. 35

The Workplace Relations Amendment (Right of Entry) Bill 2004 (Cth) will confine union rights to enter premises for investigation and discussion, but at state level, OHS legislation contains new powers.

By Sean Millard and Peter Harris

The Workplace Relations Amendment (Right of Entry) Bill 2004 (Cth) (Right of Entry Bill) currently before the Senate will confine a union’s right to enter work premises to investigate suspected breaches of industrial law and to hold discussions with employees. The changes are likely to accelerate the continuing decline in the role of unions in a number of industry sectors. However, at a state level, occupational health and safety (OHS) legislation arms the regulator and unions with new powers to enter premises to investigate suspected breaches of health and safety obligations.

Data released by the Australia Bureau of Statistics in 2004 shows that while aggregate union membership has slightly increased during the past few years, membership density in many industries continues to fall. While nearly 50 per cent of public sector employees are union members, the level declines to 17.6 per cent in the private sector.[1]

Many aspects of workplace relations will continue to be deregulated, but in specific areas such as compliance with minimum employment conditions and OHS obligations, all participants in the modern workplace face a more prescriptive legislative environment.

Governments should be trying to strike a legislative balance between monitoring compliance with industrial laws and the interests of employers in carrying on business without unreasonable restraint or interruption.

Why are you knocking at my door?

In order to be competitive in a global market, companies strive for increased efficiencies in work practices to contain overheads and maximise production or service levels. Any disruptions to a workplace caused by a visit from government regulators or unions are, to say the least, unwanted.

On the other hand, consulting with members and those eligible to become members is a fundamental role of unions. Access to workplaces has been considered necessary to assist in ensuring compliance with awards and industrial agreements and in maintaining communications with members and potential members about matters relevant to employment.

Under federal as well as state industrial relations systems, unions have rights of access to the workplace. Since the 1990s, in consequence of the repeal of the Employee Relations Act and the cessation of awards made under that Act, many Victorian employers have not been required to provide a right of entry to union officials. As many federal awards have applied by common rule in Victoria since 1 January 2005, Victorian workplaces are again exposed to unions exercising their right of entry to investigate potential award breaches and hold discussions with existing and potential members.

The Victorian Occupational Health & Safety Act 2004 (the Act) largely commenced operation on 1 July 2005. The Occupational Health and Safety Review 2004 (the Maxwell Report), which preceded the Act, stated the case for unions to be entrusted with the legislative right to enter workplaces to investigate suspected breaches of the Act.[2]

This was considered necessary as it was expected it would take some time before desired levels of consultation and participation with workers on OHS issues were achieved.

The Victorian Trades Hall Council sought a right of union entry comparable to that available to unions under OHS legislation in NSW. The Maxwell Report noted that while 1000 union officials in NSW held permits, employers had made only four applications to have permits revoked. While Victorian employers opposed such a right on the basis that it might be abused by unions, Maxwell concluded that the NSW experience did not justify that concern.[3]

The Maxwell Report made no comment on the different culture of industrial relations that has existed in Victoria.

Neither did it, nor could it at the time, take into account the pending shift of power in the Senate from 1 July 2005 and the repercussions for unions under a changed legislative environment.

Only time will tell whether a traditionally more militant Victorian union movement will use its new power of entry on OH&S matters responsibly and in the best interests of workers.

Rights of entry under the Act

In both NSW and Victoria the right of entry to investigate OH&S issues now conferred on union representatives is subject to a number of limitations and conditions.

Sections 81 and 83 of the Act set out the eligibility criteria for union officers to obtain a permit to enter premises.

Further, s85 of Act provides that either the Victorian WorkCover Authority or an employer may apply for revocation of the permit where the union permit holder has abused the power of entry.

Under s87 a union permit holder who reasonably suspects that a contravention of the Act is occurring or has occurred may enter a workplace to investigate the matter where it relates to or affects:

  • a union member;
  • persons whose employment is subject to an enterprise bargaining agreement to which the union is party; or
  • persons not subject to an enterprise bargaining agreement but eligible to be a union member.

On entry reasonable steps must be taken to give notice of entry and the union official must produce the permit either to the employer or to the person who has control and management of the work and to any relevant health and safety representative.

This right of entry does not entrust any enforcement role to the union permit holder. The function is primarily one of investigation and consultation. If any dispute arises, for example concerning the issue of an improvement notice, either the employer or the permit holder may request a Victorian WorkCover Authority inspector to attend to inquire into that dispute.

Section 90 provides an important limitation on the power of entry: without the consent of the employer, the permit holder must not cause any work to cease.

If a union permit holder abuses the power, there is the potential for fines and awards of compensation against the union. Employees and employer-occupiers of workplaces must not hinder a legitimate exercise of powers by a union permit holder.

Rights of entry under the WRA

The Workplace Relations Act 1996 (WRA) regulates the system of federal awards and industrial agreements. Under Part IX, union officials must make application to the Australian Industrial Relations Commission (AIRC) for the issue of an entry permit. This allows an official to enter premises:

  • pursuant to s285B, where union members work, in order to investigate a suspected breach of the WRA, awards, certified agreement or orders of the AIRC; or
  • pursuant to s285C, to hold discussions with members or those eligible to be members of the union where work is covered by a federal award which binds the union. Discussions can only occur during work breaks.

The Right of Entry Bill, aimed at tightening these existing rights of entry, repeals the current right of entry provisions in Part IX and excludes them from enterprise bargaining agreements (s170LU(2B)). The following amendments will seek to limit the potential for interruption by union entry to a workplace by:

  • allowing the AIRC to impose conditions when issuing entry permits by limiting the range of premises to which the permit applies (s280E);
  • prescribing circumstances in which an application for a permit might be refused (s280F);
  • prescribing circumstances in which a permit may be suspended or revoked (ss280F–K);
  • limiting investigations of breaches of awards, agreements and orders of the AIRC to those affecting only union members or work carried out by those members (s280M(1)), which will allow unions to interview non-members but will restrict access to non-member time records etc. (s280N) unless ordered by the AIRC (s280P);
  • requiring that a notice identify details of a suspected breach give at least 24 hours notice but not more than 14 days notice of entry (s280 P(2)) unless the AIRC is satisfied that there is a risk of evidence being destroyed (s280Q);
  • providing that access is unauthorised where the union permit holder fails to present the permit for inspection, where OH&S site requirements are not complied with, or where a reasonable request by the employee to conduct interviews at a designated location is not followed (s280R and s281B); a union may seek an order from the AIRC that an employer’s request is unreasonable and access to particular areas is permitted. Section 280R addresses a decision of the AIRC establishing that an employer is not permitted to place extra restrictions on a union right of entry in addition to those already set out in the WRA;[4]
  • requiring that a person seeking entry to investigate a suspected breach must establish reasonable grounds for doing so – a significant change to the existing situation, where a union need only identify potential breaches of specific sections of the WRA;
  • placing further restrictions on entry for the purpose of holding discussions during work hours to recruit new members: the entry notice must be given on 24 hours notice, specify that entry is for recruitment purposes (s280Z(2)) and actually take place on the specified date; the employer need not grant entry for recruitment purposes more than once in each six month period (s280W); or
  • increasing the level of penalties where entry powers are abused.

The difficulties that can occur in prosecuting a permit holder were demonstrated in Pine v Doyle,[5] where a CFMEU organiser was prosecuted for misusing the right of entry to hold discussions with members or potential members of the union. The builder was not party to any industrial agreement with the CFMEU in relation to work being carried out on the site and had engaged a number of subcontractors. One subcontractor was party to a CFMEU enterprise bargaining agreement (EBA), which gave the union the right of entry to any premises in which the subcontractor was carrying out work. That right of entry was exercisable for the investigation of safety conditions.

It was alleged that on one occasion the project manager was intentionally diverted away from his normal duties to deal with the entry by the organiser. On prosecution of the organiser an intentional hindrance and obstruction of the employer in breach s285E(1) was alleged.

The union sought to rely on the sub-contractors’ EBA to found its rights of entry to investigate safety concerns. The builder denied entry on the basis that it was not a party to an EBA with the CFMEU and there was no obligation under the WRA to provide entry for safety purposes. The organiser, along with the sub-contractor CFMEU member, confined the inspection to safety issues.

The Court found that, as no award bound the CFMEU with respect to work being carried out on the site, a condition of s285C(1)(a) was not satisfied and the inspection was unlawful.

However, the Court refused to impose a penalty under s285E(1) in the absence of evidence of an intentional hindering or obstruction of the employer. The builder conceded that no positive active hindrance or obstruction had occurred, despite the organiser knowing that the project manager would most likely be diverted from his duties.[6]

Also relevant to the issue of intent was the union’s belief that it had the right to enter under its EBA with the sub-contractor for the purposes of reviewing safety requirements. That right arguably gave the CFMEU an implied licence to enter any premises where that subcontractor was engaged. Unfortunately, the Court was not required to resolve this issue, given that the real dispute concerned whether the right of entry asserted under the EBA was for an improper purpose and, if not, whether that right could be exercised at the site.

One might now expect unions to seek access to workplaces pursuant to permits held under the Act in preference to exercising permit rights under the WRA or EBAs.

Globalisation

Australia ratified the International Labour Organization (ILO) Convention on Freedom of Association and Protection of the Rights to Organize following the Second World War. This convention seeks to protect the rights of employees and employers to form and join organisations for the purpose of representing their interests in workplace relations.

Participation in the global market has entailed a general deregulation of labour organisation in many countries. The ILO has recently reported on economic insecurity as a global crisis.[7] It identified as critical to economic security the right of any individual or group of individuals to be represented by unions.

As far as union representation is concerned, the ILO report found that:

  • globalisation has coincided with a weakening of workers’ collective strength, with the unionisation rate in some industrialised countries falling below 10 per cent;
  • governments have strengthened individual rights while curtailing collective rights, thereby reducing the capacity of trade unions to participate in wage and conditions negotiations;
  • the risks of injury and accident remains very high, and has grown in many places because of the weakening of institutional safeguards including unions rights; and
  • harassment in and around the workplace remains.

The community benefits in many ways from global markets. However, individuals are left vulnerable when companies implement global operational restructures and utilise intense or simply unsafe work practices. A number of the ILO conventions have in the past underpinned beneficial changes to the WRA, but the standards created by international conventions are being marginalised in many countries including Australia. The amendments proposed in the Right of Entry Bill will be seen in light of the ILOs assessment as “chipping away” at unions and collective bargaining.

As governments introduce self-regulating legislative schemes requiring greater resourcing from employers, it becomes critical that the employer and union participants in the workplace have a level of knowledge and experience of OH&S and workplace relations necessary to foster fair and safe working environments.


SEAN MILLARD is an accredited workplace relations specialist and senior associate at Rigby Cooke. PETER HARRIS is a member of the Victorian Bar with an established practice in workplace relations law.


[1] R Cooper, “Trade Unionism in 2004”, JIR June 2005 Vol. 47.

[2] The Maxwell Report was published in March 2004. Electronic copies can be obtained from http://www.dtf.vic.gov.au.

[3] Note 2 above, chapter 12.

[4] ANZ v FSU (2004) PR946294. The ANZ had sought to direct the Finance Sector Union to interview employees about a suspected breach of the WRA in a designated room rather than at workstations.

[5] [2005] FCA 977.

[6] Leonard v Morris (1975) 10 SASR 528 of 531; MEAA v Advertiser Newspaper Ltd (1996) 41 AILR 3-504.

[7] Economic Security for a Better World, ILO, Geneva, 2004.

Comments




Leave message



 
 Security code
 
LIV Social
Footer