Union Right Of Entry – The New Rules

The Fair Work Act 2009 is the third different industrial relations system industry has had to deal with in the last five years. The new union right of entry under this Act largely replicates the provisions in the previous Workplace Relations Act 1996. However, there are some important differences. This article summarized from VECCI material in a recent edition of Business Excellence magazine outlines what this means for your business.

THE Fair Work Act 2009 (FWA) states that the new provisions should enable the right of occupiers of premises and employers to go about their business without undue inconvenience.

Right of entry is now linked to a union’s entitlement to represent the industrial interests of the employee, rather than a requirement that the union be bound to a particular instrument that covers employees at the workplace. This change arises from the introduction of modern Awards from 1 January 2010.

The right of entry provisions in the FWA allows union officials who hold valid entry permits to enter employers’ businesses for certain purposes, where this is related to their representative role.

WHEN CAN A PERMIT HOLDER ENTER A WORKPLACE?

Under the FWA, permit holders may enter premises for two specified purposes. These are:

• To investigate a suspected breach of the FWA, term of a fair work instrument, or a designated outworker term, or
• To hold discussions with employees.

The FWA also imposes additional conditions on a permit holder when entering premises under State OHS laws.

In order to enter a workplace, a permit holder in most situations must provide 24 hours notice of the entry. Th e notice must specify:

• The premises that are proposed to be entered,
• The day of the entry, and
• The organisation for which the permit holder is an official.

MANAGING THE ENTRY RIGHT: WHAT TO DO WHEN THE PERMIT HOLDER IS ON SITE

Where a union official has abided by the requirements related to the entry right, an employer is obligated to allow the permit holder entry to the workplace. The employer can request the permit holder to produce their authority documents.

As with the previous Workplace Relations Act 1996, the employer can make reasonable requests to the permit holder to conduct interviews or hold discussions in a particular room or area of the premises. Such meetings should only be held during work breaks or rest periods.

The FWA defines what is a “reasonable request” and outlines how the area should be “fit for purpose” and that the request to the permit holder may not be made with the intention of intimidating, discouraging or making it difficult to participate in discussions.

Fair Work Australia will have the power to deal with disputes on this and other issues.

COMPLIANCE ISSUES: THE VALID USE OF ENTRY RIGHTS IN YOUR WORKPLACE

The FWA prescribes the use of entry rights. Additionally, civil penalties maybe ordered when a permit holder hinders or obstructs an employer. Fines up to $6,600 for individuals and $33,000 for unions will apply to any person who breaches these prohibitions.

Fair Work Australia may revoke or suspend the entry permit of officials who abuse their rights or who are no longer a fit and proper person to hold a permit.

A series of briefings on The Implementation of the Fair Work Act 2009: Managing the Changes will be conducted by VECCI at their East Melbourne office during February and March. Please contact VECCI on Ph. 8662 5333 or visit www.vecci.org.au for more details.

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