There are only 15 days to go until the implementation of the Fair Work Act 2009 (Cth) (the Act). One of the more controversial aspects of the Act are the "right of entry" laws.
The significant changes that will be introduced by the Act are:
- Unions can enter workplaces to hold discussions with employees simply on the basis that their own registered rules provide they are able to represent the employees;
- Unions cannot be "locked out" by non-union agreements such as employee collective agreements or AWA's; and
- More than one union may use the right of entry laws for the same group of employees.
This legal update will look at the "right of entry" laws, and the implications of those laws on companies who, up until now, may have had very little to do with unions and right of entry.
When Will A Union Be Able To Use Their "Right Of Entry"?
From 1 July a union official can legally enter an employer's premises if:
- The official has a valid entry permit
- The official gives proper notice of the entry (which, sometimes, is no notice at all), and
- The official is entering for one of the following three reasons:
- To investigate a suspected breach of the Act or an industrial instrument;
- To hold discussions with employees; or
- Under state occupational health and safety laws.
How Much Notice Do Unions Need To Give To Enter?
If an official is entering to hold discussions with employees, or to investigate a suspected breach of the Act or an industrial instrument, then they must give the employer written notice between 24 hours and 14 days before the visit. The visit must occur during working hours.
The entry notice has to state the following information:
- Where the official plans to enter
- The day of entry
- The union that the official is a member of
- A declaration that the union can represent the affected employees, and the provision of the union's rules which entitles the union to represent the employees
- The purpose of the visit (ie. to hold discussions or investigate a suspected breach), and
- If the notice is to investigate a suspected breach – details of the alleged breach and a declaration that the alleged breach relates to or affects a member.
Entering Without Notice?
An area of interest will be Fair Work Australia's (FWA) power to issue "exemption certificates" – giving officials the right to investigate suspected breaches without giving the employer notice. To get an exemption certificate, unions will need to convince FWA that "advance notice of the entry ... might result in the destruction, concealment or alteration of relevant evidence". This hearing would be held without the employer present. How this power will apply in practice remains to be seen – FWA may refuse to issue exemption certificates unless unions can give solid evidence that the employer will destroy, conceal or alter evidence. Alternatively, FWA may simply rely on an untested assertion by the union, and so readily issue exemption certificates. In the worst-case scenario, unions may routinely apply for an exemption certificate any time that they plan to visit a worksite to investigate a breach. This area of the new laws will no doubt be watched closely – especially as employers will not be represented when the FWA decides to issue an exemption certificate and as there will effectively be no right of appeal from FWA's decision.
As is currently the case, often officials will not be required to give notice if they are entering premises to investigate a suspected breach of occupational health and safety laws and do not require access to employee records. This will depend on the OHS laws in your state. For example, in Queensland, officials need only inform the employer of their arrival at the worksite, and of their intentions. In Queensland officials can only arrive without notice if they are investigating a suspected breach of OHS laws, they cannot simply enter on a "fishing expedition" or if they have no reasonable basis to suspect an OHS breach exists.
Investigating Suspected Breaches Of The Fair Work Act Or Of An Industrial Instrument
If an official "reasonably suspects" that an employer is breaching the Act or an industrial instrument that relates to or affects a member, the official can enter the employer's premises to investigate the breach. While on the premises, the official can:
- Inspect any relevant work, process or object
- Interview any person who could be a member of the union and agrees to be interviewed, or
- Require the employer to allow the official to inspect, copy or record relevant documents.
Normally, officials will not be able to inspect or copy records that relate to people who are not members of the union without the employee's written permission. Officials can only copy these "non-member records" if the document "substantially relates" to a union member, or if FWA issues an order allowing the union to copy the record. FWA will only issue an order if it is satisfied that copying the document is necessary to allow the union to investigate the suspected breach.
Any documents a union obtains from using these powers is subject to privacy laws and can only be used for the purpose that they were obtained – investigating or prosecuting a suspected breach. It will be an offence for unions to disclose or use the documents for unauthorised purposes.
Holding Discussions With Employees
Officials can enter an employer's premises to talk to employees during their breaks, provided the employees are eligible to become members of the union.
This is the most significant expansion that the Act makes to right of entry – previously, employers could "lock out" a union by creating a non-union agreement such as an employee collective agreement. Alternatively, an employer could choose which union they wished to deal with by making a union collective agreement with their chosen union, which would lock out all other unions who could potentially represent the employees.
Entering For Occupational Health And Safety Purposes
The Act keeps in place the existing State and Territory laws for right of entry on occupational health and safety grounds. This means that employers will still need to be familiar with the relevant laws in their State or Territory, and national employers will need to be familiar with the different laws in each State and Territory.
Limitations On The Behaviour Of Officials And Employers
As under the Workplace Relations Act 1996, it will still be an offence for officials to misrepresent their rights under the laws and for employers to attempt to hinder or obstruct an official validly exercising their powers.
Officials will, however, have to abide by the reasonable directions of the employer, such as to comply with OHS requirements, or to hold discussions in a certain location (within reason).
Permit holders will be subject to a "fit and proper person" test prior to obtaining their permit, and may have their permit revoked or suspended if FWA is satisfied the permit holder has contravened the Act or the Privacy Commissioner has substantiated a breach of privacy.
Clothing, Textile And Footwear Outworkers
Special rules have also been implemented for outworkers in the clothing, textile and footwear industries. Without going into detail, notable features include the ability for officials to enter premises to investigate contraventions without notice, and broader powers to inspect other locations, where members or potential members may not work. Employers in these industries should take particular note of the changes.
Implications For Employers
The full effect of the new right of entry laws will only become apparent over time, but possible effects include:
- Increased union activity and membership in traditionally "non-union" workplaces
- "Turf wars" between rival unions with coverage of the same group of employees, and
- Potentially, unions regularly arriving without notice to investigate suspected breaches of industrial laws.
Would You Like To Know More?
Deacons will be holding seminars nationally in June on the Fair Work Act, where we will present a detailed analysis of the new Fair Work Act and provide a written summary of the new laws, allowing quick navigation through the changes.
The following table outlines the dates and times of these sessions around the country. Click here to receive an invitation to this event.
Fair Work Act
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.