Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

Frequency of Workplace Access

One recurring complaint from employers about the current entry regime is that it has resulted in a major increase in the frequency of union workplace visits. Whether or not this is the case, what is clear is that in some cases the approach of the employers themselves has contributed to an increase in the number of entry notices, if not entries, to Australian workplaces. Employers have actively resisted a coordinated and efficient approach to workplace access which would limit the frequency of these visits.

Case Study:

In Pluto FWA dealt with an entry dispute on a major construction site in a remote site in the North Western region of Western Australia. The site, valued at $11b, consisted of over 3,300 workers, an engineering, procurement and construction management contractor (FWW), twelve to fourteen major contractors and from 50 to 70 lower tier subcontractors.

Amongst other things the head contractor, FWW, insisted in its ‘entry protocol’ that unions meet only with the employees of one contractor at a time. In practice, this meant that even where the official visited this remote site every day of the week, the union could meet only 10 contractors’ employees in that week. The employer argued that this was necessary in order to restrict the movement of employees on the site and thereby minimise safety concerns.

The tribunal found that this approach was valid in some circumstances but ‘questionable’ in others. It said that it was not reasonable for the employer to always request that permit holders have discussions with the employees of one contractor at a time.

‘The applicant (union) has an interest in meeting with its members and potential members and doing this efficiently, and these employees have an interest in receiving information from permit holders at their workplace.’⁷²⁷ (emphasis added)

And

‘In many workplaces there would be no basis for an occupier to request that a permit holder meet with anything less than all of its members and all employees eligible to be members at the same time.’⁷²⁸

Options for Reform

The current regulatory regime under which employees are given access to their union representatives in the workplace is extensive, complex and burdensome. The legislation has grown from a single section introduced in 1973 and remaining until 1996, to laws which now comprise an entire Part 3-4 of the FW Act and consist of some 48 sections with numerous sub-sections within each section.

Despite their ever expanding nature - and perhaps because of it - the only certainty that the laws provide is that this area will become even more contestable and litigation will flourish. Simplifying the current system and making it less prescriptive, without diminishing basic rights, is the starting point for any reform.

Entry and Representation by Agreement

A significant amount of interaction in the workplace between employers and trade union employee representatives occurs by mutual agreement and without incident or disruption. Where entry and representation arrangements can be agreed by the industrial parties the law should facilitate and not impede those arrangements.

Whilst it is clear that Part 3-4 of the FW Act is not an exhaustive code regulating entry to workplaces,⁷²⁹ the Act nevertheless limits the circumstances in which agreed entry clauses can be included in enterprise bargaining agreements.

Section 194(f) makes agreement terms that provide for an entitlement to entry for the purposes described in the legislation ‘unlawful terms’ and therefore incapable of approval by the FW Commission. Various decisions have confirmed that clauses authorising entry for other purposes not specified in the legislation, such as representation under a disputes settlement clause or to meet with employers to discuss a replacement agreement or consult over proposed redundancies,⁷³⁰ are permitted in agreements. However, the section still presents a major obstacle to parties agreeing to mutually acceptable clauses on access that accommodate the needs of their particular industry and workplace. Given the range of matters that are able to be dealt with in agreements there is no good policy reason why the parties should be limited to be able to agree to entry for some purposes but not others.

Aside from the statutory provisions, there have been other Government disincentives for the parties to agree to their own arrangements for access and representation in the workplace.

The former Implementation Guidelines to the National Code of Practice for the Construction Industry insisted that no agreement between the parties on this issue was permitted. It provided that no employer was to grant admission to a site by an employee or official of an industrial association other than in strict compliance with the procedures governing entry of these representatives under the WR Act and any relevant and applicable OHS or State legislation.⁷³¹ The penalties for failing to abide by this requirement included a possible suspension or prohibition on tendering for Federal Government construction work. The Government’s proposed Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 is to similar effect.⁷³²

There are also many informal arrangements in place under which union representatives are invited onto work premises by employers/occupiers without resort to the exercise of rights under Part 3-4. Many employers have good longstanding working relationships with union representatives allowing for regular access. Some employers acknowledge the value of union attendance to assist in resolving workplace disputes or to play a positive role in the negotiation of workplace agreements. Many lack the time, resources or inclination to attend to the formalities associated with the statutory regime.

In some cases it can also be difficult to draw a clear line between situations where Part 3-4 rights are being exercised and where they are not. Since civil penalties attach to the improper exercise of those rights, it is important that no party is exposed to penalties where those rights are not being used.

Section 194(f) should be repealed to allow the parties to negotiate the terms of access and representation clauses as part of the enterprise bargaining process. Other obstacles to consensual arrangements, including commercial disincentives like those embodied in the Construction Code, should be discontinued.