Questions & Answers - Right of entry

Question:

Regarding 'Union right of entry', do they have to give the company prior notice of visit? Should they want to check records of non union members what documentation/authority should they produce?

Answer:

A union official seeking to exercise statutory rights of entry must give an entry notice to the occupier of premises and any affected employer at least 24 hours, but not more than 14 days, prior to entry.

Once on the site, the officials are not able to inspect records or documents relating to non union members unless those records substantially relate to the employment of union members or the affected non union members have given their express consent in writing.

Absent these conditions the official may apply to Fair Work Australia for an order allowing inspection and copying of records or documents relating to non union members. Fair Work Australia may make the order if satisfied that it is necessary to investigate a suspected contravention.

Question:

UNION RIGHT OF ENTRY - I understand that should the Union request details / information on a non union member then the union must provide me with authority from the non union member to disclose or I should receive direction from FWA.

Do I request / require similar authority from a union member before I disclose information to the union?

Answer:

Under the Fair Work Act a condition for the union official's right to request and inspect records relating to your employment of a member of their union is that the record is directly relevant to a suspected contravention of the Fair Work Act, award, enterprise agreement, etc.

If the contravention concerns the employee about whom the record relates, the employee records exemption in the Privacy Act means that the Privacy Act does not prevent you giving the record to the union official without the employee's consent. Absent this, however, the consent of the employee is probably required. Often this consent is given as a condition of union membership.

Question:

If a Union wanted to come into my workplace where there are no union members, can they? Is this what is new or changed under the Fair Work Australia Bill?

Answer:

Yes, a union can enter your workplace for the purposes of holding discussions with your workers even if there are no union members. This is subject to the union official holding a valid permit and showing this permit to the employer if requested to do so. After giving the required notice regarding the entry, a union official can enter the workplace to hold discussions with your employees if:

1. the union is entitled to represent the industrial interests of that employee; and
2. the employee wishes to take part in those discussions.

The union official may only hold discussions with employees during non-work periods such as meal times or other breaks. The union official must also comply with any reasonable requests by the employer regarding safety.

Under the Workplace Relations Act a union official could only hold discussions with employees who carried out work that was covered by a collective agreement or an award. However this requirement is not contained in the Fair Work Act, which means that that a union official can hold discussions with any employee who satisfies the criteria mentioned above in (a) and (b).

Question:

Does the employer have a right to be present if a union rep wants to enter the workplace?

Answer:

There is nothing in the Fair Work Act to prevent the employer from being present.