Union right of entry laws are a cornerstone of our industrial relations system. Unfortunately, many employers can be caught out when a union official tries to visit their premises. It is especially vital for employers to understand their rights and obligations in this area, as unions do not have an unfettered right to enter, but nor can the employer improperly obstruct entry for a proper purpose.
RIGHT OF ENTRY
Union officials do not have an automatic right to enter workplaces.
Union officials can enter the workplace either by consent of the employer or if they have a valid right-of entry permit issued by the Fair Work Commission (“FWC”) and they wish to visit the workplace for the purposes of:
- investigating suspected breaches of the Fair Work Act 2009 (Cth) (“FWA”) and/or other Fair Work instruments (such as a Modern Award or Enterprise Agreement);
- meeting with employees (only those employees the union is entitled to represent) to hold discussion;
- exercising work, health and safety rights (including investigating suspected breaches or safety obligations); and
- investigating breaches relating to textile, clothing and footwear industry outworkers.
Notably, a union official has the right to enter premises for the purpose of exercising rights under the Work Health and Safety Act 2011 (Cth) (“WHS Act”) if they hold both a valid entry permit issued by the FWC (Fair Work entry permit) and a valid Work Health & Safety permit issued by the FWC known as a WHS entry permit.
ENTRY NOTICE REQUIREMENTS
Under the FWA, union officials must provide employers notice no less than 24 hours and no more than 14 days before the proposed entry into a workplace for the purposes of investigating a suspected breach of a workplace law, or to hold discussions with employees. The notice must also meet specific content requirements including the day of entry, the section of the FWA that authorises the entry, particulars of a suspected contravention (if any) and a declaration by the permit holder that they are entitled to represent the industrial interests of an employee who performs work at the premises.
In circumstances of suspected breach of the WHS Act, the requirements for entry are governed by the WHS Act. In such circumstances, prior notice does not need to be provided if entry is for the purpose of inquiring into a suspected contravention of the WHS Act. A WHS permit holder is not required to comply with the above notice requirements for suspected WHS contraventions if it would defeat the purpose of the entry or if it would unreasonably delay the WHS entry permit holder access to the workplace in an urgent case. The WHS permit holder must give written notice “as soon as reasonably practicable” after entering a workplace.
An employer can verify if a union official holds a valid and current entry permit by checking the register on the Fair Work Commission’s website: https://www.fwc.gov.au/registered-organisations/entry-permits/check-entry-permit.
RIGHTS AND OBLIGATIONS WHEN A UNION OFFICIAL IS IN YOUR WORKPLACE
Union officials have specific rights once they have lawfully entered your workplace (or worksite). When investigating a suspected breach of the FWA or Industrial Instrument, an official is entitled to:
- inspect any work, process or object relevant to the suspected breach;
- interview any person who agrees to be interviewed and whom the union is entitled to represent, related to the suspected breach;
- meet with employees if the employees are entitled to be represented by the union and willing to meet with the union;
- access records of union members relating to the breach (records must be either kept on the premises or accessible from a computer kept on the premises); and
- serve a notice requiring the production of records.
In relation to accessing documents and records, records must either be kept on the premises or accessible from a computer kept on the premises. Union officials do not have the right to request records of non-union members, except with the permission of the non-union member or by order of the FWC. Additionally, union officials cannot speak to employees during work time, discussions should be held during meal and other breaks.
The FWA provides that interviews or discussions may be held by union officials in rooms or areas of the premises agreed with the employer. If the union and employer cannot reach mutual agreement about where the discussions may be held, the permit holder is allowed to meet workers in rooms provided for meals or breaks. Furthermore, the union official must comply with any reasonable request by the employer to take a particular route to reach a room or area of the premises to hold the interviews or discussions. Permit holders are not permitted to wander around the premises at their discretion.
Union officials must also comply with any reasonable request by the employer to comply with an occupational health and safety requirement that applies to the site or work premises.
REFUSING ENTRY
It is an offence under the FWA, as well as under the WHS Act, for employers to improperly refuse or delay entry or obstruct a permit holder from exercising their rights of entry to a workplace. There can be significant consequences by way of severe penalties for such action.
RELEVANT CASE LAW
In Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Billiton Nickel West P/L [2016] FWC 3829 the FWC clarified union officials’ right of entry in relation to discussions held during ‘meal times and other breaks’. The CFMEU argued its officials could exercise their right of entry before and after employees’ shifts, as long as work was being conducted in the workplace at the time of the discussions. On the other hand, BHP argued that the period before and after an employee’s shift did not fall under the definition of ‘other breaks’ for the purposes of the FWA. BHP further asserted that the meaning of ‘other breaks’ was not defined in the FWA but that it should be given its ordinary meaning and be construed as a break “in work” and argued the period outside of working hours should be considered as ‘non-working hours’. BHP asserted that the union could meet outside employee’s working hours but the employer should not be unduly inconvenienced or required to facilitate such meetings.
Commissioner Williams applied a strict construction of the FWA provision and held that breaks meant interruptions in the continuity of an employee’s work, the suspension or stoppage of an employee’s work, or a rest from an employee’s work for a brief time. Consequently, the Commissioner sided with BHP and stated ‘other breaks’ does not include a period of time before an employee’s shift begins nor a period after the employee’s shift has ended. The Commissioner found that the CFMEU’s interpretation would create uncertainty as to when permit holders would have the right to enter the workplace and suggested that an interpretation which creates uncertainty as to the parties’ rights and obligations should not be preferred. The decision therefore confirms that occupiers of premises may refuse entry to a permit holder seeking to hold discussions with employees at the premises before or after normal working hours.
The decision of Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 highlights the necessity for employers to confirm that union officials seeking to enter the workplace are actually exercising their rights under the relevant legislation. This matter involved two CFMEU organisers, who entered the Abigroup Sydney airport site in June 2013. Both organisers had federal right of entry permits under the FWA and Queensland work health and safety authority. However, they did not have WHS permits under the New South Wales WHS Act. The CFMEU organisers sought to enter ‘to look at the site’ which was agreed by Abigroup Safety Co-ordinator on the condition they wear personal protective equipment (“PPE”). The union officials did not wait for the PPE and immediately entered the site whilst unaccompanied. The union officials then behaved in a disruptive and abusive manner, directing workers to cease work, stopping a concrete pour and delaying operations. While on site, although the organisers discussed health and safety issues, neither asserted that they were exercising any specific rights under the FWA or NSW WHS Act. Both also refused to produce entry permits when asked, did not advise that they did not have a NSW WHS permit and one of the officials claimed to be Steve Irwin “the crocodile hunter” when asked to identify himself.
Abigroup sought penalties against the union as a result of its officials’ actions. At first instance, Flick J of the Federal Court held that because both officials had purported to exercise a state WHS right under the NSW WHS Act and as a result had breached the right of entry provisions under the FWA. Flick J imposed penalties upon the organisers and fined the union.
The CFMEU and the union officials appealed the decision. On appeal the Full Federal Court overturned the decision of Flick J and held that the men were not exercising (or purporting to exercise) a right of entry under the FWA or NSW WHS Act because they never indicated that they were doing so and they did not have the appropriate right of entry permit. It was held that Abigroup could have refused the officials entry and asked them to leave. Had the officials refused to comply with a request to leave, this would amount to a trespass or criminal conduct to which they could have been prosecuted accordingly. It was found that because the men were not exercising a right of entry under either the FWA or NSW WHS Act they were not subject to the restrictions within the FWA and could not be prosecuted for breaching any of the FWA right of entry provisions. The Full Court quashed the penalties imposed by the Court at first instance.
In light of this decision, employers should ensure that union officials seeking to enter work premises are exercising their rights under the relevant legislation (or at the very least, purporting to do so). This will ensure they will be held accountable and bound to comply with the statutory regime regulating the behaviour of union officials exercising union right of entry powers.
PROPOSED AMENDMENTS TO RIGHT OF ENTRY LAWS
Employers have long complained that unions abuse their right of entry permits and often use trivial WHS issues as a basis to enter premises. Employers are also often frustrated by unions abusing their rights under the FWA to apply industrial pressure during enterprise negotiations.
The re-elected Turnbull government have announced they will pursue changes to workplace laws covering union right of entry. In August 2016, Employment Minister Michaelia Cash in her first speech post the election stressed the importance of “restoring balance to the right of entry laws”. It has since been confirmed the government has their sights on the following matters:
- removing default access to lunchrooms for union officials visiting workplaces;
- place sensible limits on union workplace visits;
- give the FWC capacity to deal with union visits deemed “excessive”; and
- repeal Labor’s changes requiring employers to provide accommodation and transport to union officials visiting remote work sites.
WHAT EMPLOYERS SHOULD TAKE AWAY?
With this mind, employers must ensure they are up to date with the laws in this area and properly understand the rights and obligations with which both employers and unions are required to comply, in relation to right of entry. This can be a valuable tool in managing these situations when they arise and mitigating any relevant disruptions to business operations.
A number of key points to remember include:
- become familiar with right of entry laws and safety laws to ensure your workplace is meeting its obligations;
- review your right of entry practices and policies;
- remember to train your managers on the union right of entry laws to avoid any possibility of breaching the rules and facing severe penalties;
- request to see and carefully inspect, original right of entry permits before allowing union officials into your workplace or on your site;
- ensure that the notice provided by the union permit holder complies with the requirements;
- try and agree with the permit holder a suitable place for meetings with employees;
- escort the permit holder to the relevant meeting room; and
- if there is a genuine work health and safety issue at your workplace, ensure it is taken seriously and reported to the appropriate authorities.
In the event you are faced with a right of entry situation, it is strongly advisable to seek legal advice to ensure compliance is achieved, both by the union concerned and the business.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice