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

History of Entry Provisions

Awards

For many years, federal industrial awards conferred a legal right on trade union officials to enter Australian workplaces. The constitutional basis for these types of provisions was recognised by the High Court at least as early as Archer’s case in 1919.⁷⁰⁴ In that matter the Court held that a claim for an award provision authorising a union officer to enter premises, on notice, where an award breach was suspected and to have access to time and wage records, could form the basis of an ‘industrial dispute’ within the meaning of s. 51(xxxv) of the Constitution.

Clauses of this kind proliferated and became a common feature in many federal awards. Typically, these clauses were simply worded provisions which authorised an accredited official to enter premises to interview employees and investigate award breaches or safety conditions provided they presented themselves to management before they conducted their union business and did not unduly interfere with work.⁷⁰⁵ These award clauses reinforced the legitimate role unions had in representing employees and enforcing the award conditions that had been obtained by using the award-making machinery of the system.

By 1997, the Workplace Relations and other Legislation Amendment Act 1996 (Cth) inserted a section into the re-named Workplace Relations Act 1996 (Cth) rendering these clauses unenforceable.⁷⁰⁶ That section, in combination with the introduction of the concept of “allowable award matters”,⁷⁰⁷ meant that so-called ‘right of entry’ clauses were progressively stripped out of awards during the award simplification process which followed in the late 1990s. From that point onwards, employee access to union officials in the workplace has been predominantly regulated by legislation.

Statutory Rights of Access

There was a period when workplace access provisions could be found in both awards and statutes in federal and state jurisdictions. Federally, from November 1973⁷⁰⁸, statutory entry provisions existed alongside those in awards.

Section 42A of the C&A Act provided:

(1) An officer of an organization authorized in writing by the secretary of the organization or of a branch of the organization to act under this sub-section may, at any time during working hours, but subject to any conditions provided by the relevant award, enter any premises in which work to which an award binding on the organization is applicable is being carried on, being premises specified in the authority, or premises occupied by an employer who is bound by the award and is specified in the authority, for the purpose of ensuring observance of the award, and may for that purpose inspect any work, books or documents and interview any employee, being a member or a person eligible to be a member of his organization, on those premises, but an officer so authorized shall not hinder or obstruct an employee in the performance of his work during working time.

(2) If an officer of an organization proposing to enter, or being in or on, premises in pursuance of this section is required by the occupier or person in charge of the premises to produce evidence of his authority to that occupier or person, the officer is not entitled to enter or remain on the premises unless he produces to that occupier or other person the authority in writing referred to in sub-section (1).

(3) A person shall not hinder or obstruct an officer of an organization in the exercise of a power conferred by this section.

Penalty: $100.

(4) In this section –

“officer”, in relation to an organization, means a person holding office in, or

employed by, the organization or a branch of the organization;

“premises” includes any building, structure, mine, mine working, ship, vessel or

place.
A section in similar terms was re-enacted in s. 286 of the IR Act.
“Organisation may authorise inspection

286. (1) An officer of an organisation authorised in writing by the secretary of the organisation or of a branch of the organisation to act under this subsection may, for the purpose of ensuring the observance of an award or an order of the Commission binding the organisation:

(a) at any time during working hours, but subject to any conditions provided by the award or order, enter prescribed premises that are specified in the authority or occupied by an employer specified in the authority;
(b) inspect or view any work, material, machinery, appliance, article, document or other thing on the prescribed premises; and
(c) interview, on the prescribed premises, an employee who is a member, or is eligible to be a member, of the organisation; but an officer acting under this subsection shall not hinder or obstruct an employee in the performance of work during working time.
(2) If an officer of an organisation proposing to enter, or being on, premises under subsection (1) is required by the occupier to produce evidence of

authority to enter or be on the premises, the officer is not entitled to enter

or remain on the premises without producing to the occupier the authority

referred to in subsection (1).

(3) In this section:
"officer", in relation to an organisation, means holding an office in, or

employed by, the organisation or a branch of the organisation;

"prescribed premises", in relation to an organisation bound by an award or an

order of the Commission, means:

(a) premises in which work to which the award or order applies is being

carried on; or

(b) premises occupied by an employer bound by the award or order. “

By the time the new statutory scheme for access to workplaces was introduced into the WR Act in 1996, the scale of the regulation in this area and the detail into which the legislation had descended had increased many times over.

Section 286 (and section 306 which governed contraventions of s. 286) of the IR Act was replaced by an entire new Part IX Division 11A, consisting of seven sections with twenty seven sub-sections between them.

Parliament, it appeared, had decided to take over this area and comprehensively and prescriptively regulate it itself⁷⁰⁹, even though there was little if any evidence to suggest that the existing laws required the fundamental overhaul that the changes represented.

A pre-election commitment by the then Labor Opposition prior to the 2007 election to maintain the substance of the workplace access laws meant that the scheme of the WR Act carried over into the FW Act as a matter of politics but without any proper reconsideration of the effectiveness of these laws.