Download Come Again Another Day? Changes to Union Right of Entry

29 April 2014
Practice Group:
Labour Employment
and Workplace Safety
Come Again Another Day? Changes to Union
Right of Entry
By John Makris, Robert King, Erica Elliott, and Sam Jackson
Queensland Government legislates to scrap WHS permit holders' power to
issue stop work orders and Federal Government introduces Fair Work Act
Amendment Bill to parliament
In the ever changing landscape of industrial relations regulation, there have been two
important developments regarding a union official's right of entry to workplaces. The
Queensland Parliament has legislated significant changes to right of entry provisions
under Queensland's Work Health and Safety Act 2011 (WHS Act) and, in the Federal
jurisdiction, proposed changes to the right of entry provisions in the Fair Work Act 2009
(Cth) (Fair Work Act) are currently being debated by the national Parliament.
Queensland WHS Act – Right of Entry Changes
The Queensland Government recently legislated changes that scrap a WHS permit
holder's power to direct workers to stop work in the face of an immediate or imminent
exposure to a hazard.
The changes, which arose from the Government's review of the national model work
health and safety laws also:

align the requirement for entry permit holders to give at least 24 hours notice of
their intention to enter a workplace with the provisions of the Fair Work Act

double the current maximum penalty for permit holders who do not comply with
the conditions of their permits to AUD20,000

remove the Minister administering the WHS Act's power to approve Codes of
Practice

significantly increase the maximum penalties for breaching particular electrical
safety laws, making the penalties consistent with WHS Act penalty provisions.
These changes also follow concerns in the construction industry about the misuse of
union officials' right of entry powers and disruption to their businesses, as well as the
large number of workplace disputes which WHS inspectors have been called upon to
resolve.
The Queensland's Attorney-General and Minister for Justice noted in his reading speech
that
"(f)or too long we have seen construction unions using safety as an industrial
weapon in this State … (s)ites are being hijacked and workers are being held to
ransom by the unions. This practice has to end … (t)he practice of unions using
safety to hijack sites and bully contractors on work sites will end."
The new laws are aimed at reducing an employer's WHS compliance costs and the
incidence of right of entry disputes, particularly in relation to whether union officials have
given proper notice of their intention to enter a workplace.
Come Again Another Day? Changes to Union Right of Entry
Fair Work Act – Proposed Right of Entry Changes
The Federal Government's Fair Work Amendment Bill 2014 (Bill) was introduced to
Parliament in late February and, if passed, will implement a number of 'key aspects' of
the Coalition's Industrial Relations policy.
Importantly, the Bill proposes to change the right of entry provisions by:

Repealing changes implemented by the former Labor Government in 2013 that
had a significant effect on the resources sector. The 2013 amendments required
employers to facilitate and fund union officials' travel and accommodation to
remote sites when exercising their right of entry powers under the Fair Work Act.

Repealing another amendment made by the Labor Government in 2013 relating
to the default location for discussions with employees. The 2013 amendments
made the lunch room the default location for discussions with employees if
agreement could not be reached on an alternative venue. If the proposed
amendments are passed, the pre-existing rules requiring union officials to
comply with any reasonable request by the employer to hold discussions in a
particular room or area of the workplace and to take a particular route to reach
that room or area will be reinstated.

Narrowing the circumstances under which a union official can enter a workplace
for discussions with employees. Under the proposed changes, right of entry will
be based on the relevant union having a recognised representative role at the
workplace in terms of the union being covered by an applicable enterprise
agreement. If the union is not covered by an applicable enterprise agreement, or
no enterprise agreement applies to the relevant work, the union will need to be
invited by an employee to attend the workplace.

Re-introducing the mechanism of an 'invitation certificate' (formerly available
under the Workplace Relations Act) for employees who want to remain
anonymous when inviting the union to attend their workplace. Invitation
certificates will be granted by the Fair Work Commission and provided to the
relevant union.

Giving the Fair Work Commission additional powers to make orders resolving
disputes between employers and unions over the frequency of union officials'
visits.
The Bill is currently being debated by the Parliament.
The key implications for employers are that they will be able to take back some of the
control in terms of managing when, where and how often union officials may visit to 'talk'
to members or potential members in their workplaces. Businesses may face fewer
disruptions and there will be less of a need to call on inspectors mediate union right of
entry disputes.
It also signals an important change in Government policy and could be the start of further
employer-friendly industrial relations changes.
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Come Again Another Day? Changes to Union Right of Entry
Authors:
John Makris
[email protected]
+61.2.9513.2564
Robert King
[email protected]
+61.7.3233.1265
Erica Elliott
[email protected]
+61.2.9513.2346
Sam Jackson
[email protected]
+61.3.9640.4336
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