Union Right of Entry: what you need to know!

By Samantha Manovski
Key Business Advisors HR Advisor

Despite some negative perceptions of unions, the role of unions is to ensure safe and fair working conditions for their members. Business owners need to understand their obligations in relation to working with union representatives, as well as understand union representatives’ level of authority.

For managers and business owners who are dealing with unions, there are a number of changes to be aware of, as set out in the Fair Work Amendment Act 2013, specifically changes to Part 3-4 of the Fair Work Act 2009 (Cth) (FW Act).

Right of Entry – Defined
First, let’s look at how a right of entry works. A union representative must provide notice to the occupier (the occupier is the owner of the premises or the person in charge of the premises). The entry notice must specify the premises that will be entered, the date of entry, the organisation the permit belongs to, the section of the FW Act that authorises the entry, information of the suspected contravention, a declaration by the union representative that they are entitled to represent the industrial interests of an employee who performs work at the premises, and the provision of the organisation’s rule which entitles the organisation to represent the member.

To enter a site, union representatives or officials must hold an entry permit and need to be federally registered by the Fair Work Commission. They also need to have a purpose to enter the premises. Section 481 of the FW Act states that “a permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation.” Section 482 of the FW Act outlines the rights of a permit holder when they enter the premises. “While on the premises, the permit holder may do the following:

(a) inspect any work, process or object relevant to the suspected contravention;
(b) interview any person about the suspected contravention:
(i) who agrees to be interviewed; and
(ii) whose industrial interests the permit holder’s organisation is entitled to represent;

(c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention and that:
(i) is kept on the premises; or
(ii) is accessible from a computer that is kept on the premises.”

Amendments effective January 2014
Section 492 of the FW Act would be amended to provide that the permit holder and the occupier need to agree on a room where the discussions will be held on the occupier’s premises. If an agreement cannot be reached, the room in which employees take their meals and other breaks and which the occupier has provided for the purpose of taking meal or other breaks will become the default location to hold the discussion.

A new Division 7 would be added to Part 3-4 of the FW Act to outline the terms in relation to accommodation and transport arrangements that cannot be agreed upon. Proposed sections 521A and 521C outline the obligations of the occupier to provide accommodation arrangements, while sections 521B and 521D outline the terms in relation to transport arrangements. This section would ensure the occupier and permit holder reach an agreement in regards to accommodation and transport arrangements, where the permit holder has made a request within a reasonable period, and the transport and accommodation arrangements would not cause any undue inconvenience to the occupier (Tuck & Forsyth 2013). The permit holder’s union would be responsible for the cost of the accommodation or transport.

Section 505 of the FW Act, which deals with Fair Work Commission’s powers to resolve disputes about the operation of Part 3-4, would be amended to include disputes about the venue of meetings with employees on an occupier’s premises, as well as disputes about the occupier’s provision of accommodation or transport to facilitate right of entry in remote areas. An additional section, 505A, would allow the Fair Work Commission to deal with disputes about the frequency with which permit holders from the same union seek to exercise entry rights to hold discussions with employees under section 484. This section is intended to address permit holders who use their entry rights excessively, and could result in orders to restrict, suspend or revoke a union official’s right of entry permit (Tuck & Forsyth 2013).

References:
Fair Work Act 2009. Retrieved 27-08-2013.
Fair Work Amendment Act 2013. Retrieved 27-08-2013.
John Tuck and Anthony Forsyth (28 March 2013). “Fair Work Amendment Bill 2013 introduced into Parliament”. Retrieved 27-08-2013.