The union’s at the gate…

If a union official knocks on your door, do you have to let them in? By PETER VITALE of VECCI.

By Peter Vitale

Many small and medium-sized employers operate in an environment where few if any employees are members of trade unions.

Trade union membership has been falling consistently for many years. In April, the Australian Bureau of Statistics published figures showing that private sector membership of unions was at about 15% of the workforce.

But unions still have a right to enter your workplace – subject to guidelines contained in the Workplace Relations Act.

The behaviour of some union officials has generated a lot of ink in the past couple of months, but many union officials comply with the requirements of the act. If you’re managing an SME, it pays to know the rules. As the act says, the rules aim to balance the rights of union members against the rights of business not to be interfered with or harassed.

1. The first thing to note is that a union official must have a permit issued by the Australian Industrial Relations Commission, giving them the right to enter your premises.

These permits are subject to supervision by the commission and it has the power to revoke or suspend a permit or put conditions on its use.

The commission may revoke a permit if there is a failure to give proper notice of entry, threats, if the permit holder has been convicted of an offence under industrial laws or laws relating to fraud, dishonesty, violence or damage to property. The commission can also consider whether the official has “abused the rights” given to them by the law.

A union official who enters the employer’s premises without the proper permit may be considered to be trespassing. The recent case of a WA union official who had his permit revoked by the AIRC has drawn some media attention. He faces six charges of trespass after entering various Perth building sites without a permit.

2. Union officials are not entitled to enter an employer’s premises unless they have given at least 24 hours notice in writing. That notice must specify the reason for the desired entry to the premises, which must be one of the limited purposes allowed by the act. These purposes fall into three broad categories:

First, the purpose of investigating a suspected breach of a workplace agreement, including an AWA, the act or an award. Critically, the alleged breach must affect an employee or work done by employees who are a member of that official’s union.

In the course of investigating the breach, the official may interview employees or view work being done or machinery or equipment being used. Employers can also be required to produce union members’ employee records, which relate to the alleged breaches. The burden is on the union to prove that there were reasonable grounds for suspecting a breach.

Second, to hold discussions with employees. Before the WorkChoices legislation, there was a substantial amount of litigation relating to the times meetings were to be held and where on the employer’s premises they could be held. It was a popular tactic for union officials to hold meetings in the employees’ lunch room to ensure contact with the maximum number of employees.

The act as it stands contains some important restrictions on the rights of union officials:

• The meeting can only be with employees who are members of that official’s union and are performing work under an award or agreement which binds that union.
• Meetings can only be held during meal times or other breaks.
• The employer is entitled to require the official to observe reasonable health and safety rules.
• The employer can impose a reasonable requirement that the official hold the meeting in a particular room and enter that room by a particular route, even if the official disagrees. For example, the employer may be able to prevent the official walking through a factory floor or an office space.

Earlier this year, the AIRC rejected arguments by the Australian Services Union that the allocation of rooms by the employer, in that case the Australian Taxation Office, was not sufficient for them to properly exercise the union’s rights of entry. The commission also refused to allow the union official in that case to approach employees at their workstations.

Third, union officials are entitled to seek entry when they have a right to do so under state OHS laws. Importantly, officials with rights under state law must still have a permit issued by the AIRC.

The right-of-entry rules also have general provisions requiring employers not to hinder or obstruct a union official with a permit entering the premises and conducting the business that had been specified in the entry notice. Fines of up to $33,000 can apply to employers who don’t observe the rules.

The lessons for employers:

• Union officials must usually give at least 24-hours written notice of their intention to enter your premises. If you haven’t received a notice, then you may be able to prevent entry. Consider carefully your obligations not to hinder or obstruct a union official with a right-of-entry permit.
• When entering the premises the union official must provide copies of his or her right-of-entry permit and the notice of intention to enter the premises. If they don’t produce the paperwork, demand that they do so before entry is permitted. Make sure you understand exactly why they have come to your workplace and what papers or aspects of your operation you are obliged to show them.
• If you are in doubt about whether a particular union has rights to enter your workplace, seek independent advice about whether you are bound by a relevant award. You should also find out, if you don’t already know, whether that union has members among your employees.
• If you have concerns that an entry to your premises is unauthorised or is causing disruption to your workplace, seek advice about setting conditions about when and where the union can meet with employees.
• Never take matters into your own hands. If you believe a union official is not properly authorised to enter your premises, they may be committing trespass: report the matter to the police or if you are in the constructions industry, to the Australian Building and Construction Commission