Australia: Workplace relations update - Union right of entry and safety, social networking, transitional arrangements for Division 2B State Awards

Contents

• Union right of entry and safety
• Facebook and social networking
• Transitional arrangements for Division 2B State Awards

Union right of entry and safety
By John-Anthony Hodgens

A spate of recent cases provides fresh guidance on the interpretation of the union right of entry rules under the Fair Work Act 2009 (FW Act).  Under the FW Act, a union official holding a permit has a right to enter a workplace during working hours to:

• Investigate a suspected contravention of the FW Act, if the suspected contravention relates to a member's interests
• Investigate a suspected contravention of state and territory safety laws, if a worker at the site is a member of the union
• Hold discussions during meal times and other breaks with employees who wish to participate in these discussions and are entitled to be represented by the union.

Entry for safety inspections

Two recent decisions of the Federal Court and the Federal Magistrates Court have considered the right of a union official holding a permit to enter an employer's premises on safety grounds.

In the first decision, the Federal Court confirmed that union officials can lawfully refuse to provide details of the safety breaches they are relying on to enter work sites.  In this case, the Australian Building and Constructions Commissioner (ABCC) commenced proceedings against three CFMEU officials, alleging they were in breach of the former Workplace Relations Act 1996 (Cth) (WR Act) provisions that required a union official exercising a right of entry not to 'intentionally hinder or obstruct any person, or otherwise act in an improper manner.'  

In late 2008, three officials from the CFMEU's construction division entered a building site, purporting to exercise their rights to investigate contraventions of safety laws.  While on site, the union officials refused to identify the specific safety concerns that underpinned their right of entry, refused to undergo inductions and were found to have been rude in their manner.  While on site, they also told employees to stop work and leave the site for purported safety reasons, parked two cars near a crane that was being dismantled and drove into a wire fence close to where a manager was standing. 

The ABCC argued that the union officials' entry to the site was improper and hindered the employer's operation.  Conversely, the union officials argued their actions did not amount to hindering and obstructing the employer's business.

The court found that a right of entry to inspect safety contraventions must be used for a bona fide purpose and the exercise of the power must not be excessive in all the circumstances.  However, the court found a failure to specify details of the safety breaches they were relying on to exercise a right of entry entering a work site did not mean that the power was not used for a bona fide purpose.

Justice Flick found that the evidence did not support a finding that the union officials had used their right of entry power for an improper purpose.  Despite this, there was sufficient evidence to support the finding that the union officials had hindered or obstructed the employer when it ordered the employees to stop work and leave the site.

In the second decision, a construction company was fined $12,000 due to the conduct of a construction manager who was inadequately trained on union safety entry rights.

When three union officials with valid permits entered a construction site to inspect safety risks, the union officials were repeatedly told by a construction manager to 'get the f--- off my site'.  Whilst one of the officials was sitting at a desk writing up a safety notification, the construction manager grabbed the edge of the desk, lifted it up and threw it against a wall. When the union officials left the site, they were told 'Keep off my site. Don't come back.'

The union commenced proceedings seeking the imposition of penalties for contraventions of the WR Act, alleging that the construction company refused, delayed, hindered or obstructed duly authorised union officials from entering the construction sites and from exercising their rights of investigation of suspected breaches of safety legislation.

The construction company admitted it was liable for the conduct of its construction manager, who was acting under a misapprehension as to the union's right of entry powers.  It also agreed with the union that the court should impose a penalty of $12,000 payable to the union.

Federal Magistrate Smith accepted that while there might have been some confusion in the building industry, that cannot completely excuse the admitted breach. The construction manager 'responded in an inappropriately emotional and abusive manner' and made insufficient inquiries as to the union officials' presence before demanding that they leave.   Federal Magistrate Smith stated that:

'it is of great public importance that construction company managers, whether off site or on site, should have accurate knowledge of the legal conditions attaching to the OH&S right of entry by authorised union officials, and should have acquired that knowledge before – not during or after – an attempt by an official to exercise that right. There will be circumstances where lives may be put at risk if site managers fail to appreciate and recognise the very substantial limitations on their powers to refuse or delay immediate entry.'

Federal Magistrate Smith considered that $12,000 was an appropriate penalty and ordered that it be paid to the union.

Entry to hold discussions

In a recent Federal Court decision, an employer was fined $9,000 for breaching right of entry provisions when it refused access to union officials of the CFMEU to hold discussions with workers.

The CFMEU had previously exercised its right of entry powers at the employer's premises to conduct a recruitment drive, signing up 13 workers by July.  In August, all 13 employees handed in their resignations of membership with the CFMEU.

The CFMEU gave notice to enter the site to hold further discussions.  When they arrived on site, the senior manager informed the delegates that they could not come into the building and would not be given a room for discussions.  Instead, the senior manager informed the union officials that they could hold discussions in an undercover parking area and if they wanted to speak to a particular employee, they would have to identify the employee and they would be brought out.  After a 'heated discussion', the senior manager made it clear to the union officials that they should leave the premises, which they did.

The employer pleaded guilty to hindering or obstructing a union official in the exercise of their statutory right of entry.  In fining the employer $9,000, to be paid to the CFMEU, Justice Tracey said: 

'It must be made clear to employers that they are not entitled to deny access to their premises to union officials who are exercising lawful rights of entry under the Act'

In a similar decision of Fair Work Australia, the tribunal found that an employer's request for a union official to hold discussions with employees in a training room, located in the main administration building and adjacent to management offices, was unreasonable. Importantly, employees were not ordinarily provided with access to this building.

The proximity of the room to management offices discouraged employees to attend discussions with the union official.  An arrangement which discourages employee participation because of a reasonable apprehension that employees may be observed by management, or because it requires unreasonable effort on the part of the employees, to go into areas of the workplace which are not normally accessible to them, would undermine the objects of the right of entry provisions in the applicable legislation.

The employer was ordered to provide the union with reasonable access to the lunchroom to hold discussions with employees during their meal breaks.

Implications for employers

To avoid penalties, which under the FW Act can be up to $33,000 for a body corporate and $6,600 for a natural person, employers need to ensure that their employees, including managers and supervisors, are properly trained about union right of entry, particularly, the right of authorised representatives to enter workplaces for the purposes of investigating breaches of safety legislation.

When a union official exercises their right of entry, employers should:

• ask for the production of the permit and confirm it is current
• ask the reason for the visit:
  • if the visit is to inspect safety breaches, you can ask the union official to specify their concerns, but cannot deny entry if the union official does not provide details
  • if the visit is to hold discussions, proper notice must have been given 24 hours in advance
• accompany the union official on site when conducting inspections and travelling to and from meeting rooms, ensuring all necessary visitor sign-in procedures and induction process are completed
• remember that if the entry is to hold discussions, you can specify the locations where discussions are to be held and the route the union official should take to get to the room, however this must be reasonable.

Facebook and social networking
By John-Anthony Hodgens

As a general rule of thumb, an employee cannot be disciplined or terminated because of their behaviour outside of the workplace unless 'the conduct complained of...is of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.'  However, the popularity of social media sites, such as Facebook, Twitter and YouTube, is blurring the lines between 'work conduct' and 'out of hours conduct', and is posing a minefield of employment issues for employers to navigate.

Fair Work Australia recently considered an unfair dismissal case where an employee was dismissed for purportedly posting disparaging comments on her Facebook profile about her employer.  Commissioner Bisset noted that the general use of social networking sites by individuals to display displeasure at their employer or co-workers is becoming more common.

The Commissioner said:

'A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences...It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.'

Although the employee's comments on Facebook were found to be insufficient to justify termination in this case, it is clear from the decision that there may be circumstances where inappropriate comments on social media sites may be sufficient to justify termination.

Further, there is an increasing acceptance that comments made on social media sites may expose employees to disciplinary action or termination.  The flip side to this is that comments made by employees relating to other colleagues, clients or competitors on social media sites may also amount to defamation, bullying and harassment or discrimination.  Depending on the circumstances, the employer could be held to be vicariously liable for posts on social media sites, potentially exposing the employer to litigation and large damages awards.

Implications for employers

One of the best ways employers can manage the use of social media sites and ensure they are not exposed to social media litigation is to implement and regularly update a social media policy.  An effective social media policy will set out the employer's approach to social media and what the employer expects from the employee, both on and off the job, and should, at a minimum, address the following issues:

• Use of employer resources: addressing prohibitions or limitations employees using the employer's networks and equipment or work time to write or publish personal content
• Policies and procedures:  informing employees that policies such as those which go to preventing discrimination, bullying and harassment will apply to the employee if their posts are sufficiently connected to their work
• Use of company name and trademarks: addressing who, how and in what context employees are allowed/not allowed to refer to the company's name, trademarks, logo and other images
• Confidential information: reminding employees that obligations in respect of confidential information continue to exist in the virtual world
• Inappropriate comments: although it would seem self evident, employees should be cautioned against making inappropriate, unkind, embarrassing or defamatory comments about other employees, customers, clients or competitors
• The consequences of breaching the policy: which in some circumstances may be sufficient to warrant termination, should also be addressed in the policy

Gadens Lawyers has expertise in managing employment issues associated with the use and misuse of social media.  We are happy to assist you to tailor a social media policy for your organisation to manage the risks. 

Transitional arrangements for Division 2B State Awards
By Michael Cooper

Fair Work Australia has recently handed down its decision explaining how employers who are currently covered by a Division 2B State Award, primarily being unincorporated employers who were not covered by the Work Choices regime (see our previous update here), will transition to modern awards.

As a result of the decision of Fair Work Australia, employers who are covered by a Division 2B State Award are required to continue to comply with the terms of the Division 2B State Award until the start of the first full pay period to commence on or after 1 February 2011 (Transition Date).

From the Transition Date, an employer who was covered by a Division 2B State Award will be required to comply with the terms of the modern award that applies to the employer and its employees.  Despite this, Fair Work Australia has imposed a number of significant transitional provisions to assist in the transfer from the Division 2B State Awards to the modern awards, although in many circumstances these transitional provisions will be complicated.

In short, an employer who is currently covered by a Division 2B State Award will be required to identify the pre-reform award or the notional agreement preserving a State award that would have applied to them immediately prior to 1 January 2010, if that employer had been an employer who was covered by the federal workplace relations scheme on 1 January 2010.

The employer will then have to 'transition' its employees from the terms of the pre-reform award, or the notional agreement preserving a State award, to the modern award in the same manner as an employer who was covered by modern awards from their commencement on 1 January 2010, with some additional transitional conditions.  In our previous updates here and here, we have explained these transitioning provisions.

Implications for employers

Employers who are currently covered by a Division 2B State Award should carefully review how the transitional provisions will apply to modern awards that will cover them and determine the appropriate transitional arrangements for their workplace.

For more information, please contact:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.