Australia: Come again another day? Changes to union right of entry

Labour, Employment and Workplace Safety Alert
Last Updated: 30 April 2014
Article by John Makris, Robert King, Erica Elliott and Sam Jackson

Queensland Government legislates to scrap WHS permit holders' power to issue stop work orders and Federal Government introduces Fair Work Act Amendment Bill to parliament

In the ever changing landscape of industrial relations regulation, there have been two important developments regarding a union official's right of entry to workplaces. The Queensland Parliament has legislated significant changes to right of entry provisions under Queensland's Work Health and Safety Act 2011 (WHS Act) and, in the Federal jurisdiction, proposed changes to the right of entry provisions in the Fair Work Act 2009 (Cth) (Fair Work Act) are currently being debated by the national Parliament.

Queensland WHS Act – Right of Entry Changes

The Queensland Government recently legislated changes that scrap a WHS permit holder's power to direct workers to stop work in the face of an immediate or imminent exposure to a hazard.

The changes, which arose from the Government's review of the national model work health and safety laws also:

  • align the requirement for entry permit holders to give at least 24 hours notice of their intention to enter a workplace with the provisions of the Fair Work Act
  • double the current maximum penalty for permit holders who do not comply with the conditions of their permits to AUD20,000
  • remove the Minister administering the WHS Act's power to approve Codes of Practice
  • significantly increase the maximum penalties for breaching particular electrical safety laws, making the penalties consistent with WHS Act penalty provisions.

These changes also follow concerns in the construction industry about the misuse of union officials' right of entry powers and disruption to their businesses, as well as the large number of workplace disputes which WHS inspectors have been called upon to resolve.

The Queensland's Attorney-General and Minister for Justice noted in his reading speech that

"(f)or too long we have seen construction unions using safety as an industrial weapon in this State ... (s)ites are being hijacked and workers are being held to ransom by the unions. This practice has to end ... (t)he practice of unions using safety to hijack sites and bully contractors on work sites will end."

The new laws are aimed at reducing an employer's WHS compliance costs and the incidence of right of entry disputes, particularly in relation to whether union officials have given proper notice of their intention to enter a workplace.

Fair Work Act – Proposed Right of Entry Changes

The Federal Government's Fair Work Amendment Bill 2014 (Bill) was introduced to Parliament in late February and, if passed, will implement a number of 'key aspects' of the Coalition's Industrial Relations policy.

Importantly, the Bill proposes to change the right of entry provisions by:

  • Repealing changes implemented by the former Labor Government in 2013 that had a significant effect on the resources sector. The 2013 amendments required employers to facilitate and fund union officials' travel and accommodation to remote sites when exercising their right of entry powers under the Fair Work Act.
  • Repealing another amendment made by the Labor Government in 2013 relating to the default location for discussions with employees. The 2013 amendments made the lunch room the default location for discussions with employees if agreement could not be reached on an alternative venue. If the proposed amendments are passed, the pre-existing rules requiring union officials to comply with any reasonable request by the employer to hold discussions in a particular room or area of the workplace and to take a particular route to reach that room or area will be reinstated.
  • Narrowing the circumstances under which a union official can enter a workplace for discussions with employees. Under the proposed changes, right of entry will be based on the relevant union having a recognised representative role at the workplace in terms of the union being covered by an applicable enterprise agreement. If the union is not covered by an applicable enterprise agreement, or no enterprise agreement applies to the relevant work, the union will need to be invited by an employee to attend the workplace.
  • Re-introducing the mechanism of an 'invitation certificate' (formerly available under the Workplace Relations Act) for employees who want to remain anonymous when inviting the union to attend their workplace . Invitation certificates will be granted by the Fair Work Commission and provided to the relevant union.
  • Giving the Fair Work Commission additional powers to make orders resolving disputes between employers and unions over the frequency of union officials' visits.

The Bill is currently being debated by the Parliament.

The key implications for employers are that they will be able to take back some of the control in terms of managing when, where and how often union officials may visit to 'talk' to members or potential members in their workplaces. Businesses may face fewer disruptions and there will be less of a need to call on inspectors mediate union right of entry disputes.

It also signals an important change in Government policy and could be the start of further employer-friendly industrial relations changes.

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.

K&L Gates has been awarded a 2012 EOWA Employer of Choice for Women citation acknowledging our commitment to workplace diversity.

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