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

The 1996 Changes and Beyond

Twenty four hours’ notice

The 1996 WR Act entry regime represented a fundamental departure from previous statutory schemes governing workplace access. It introduced into the law for the first time a scheme of permits authorising entry which was administered by the AIRC. It also introduced mandatory requirement that entry to workplaces only occur after a minimum period of 24 hours’ notice had been given to the occupier of the premises.⁷¹⁰ There was no significant policy debate or rationale advanced to justify the introduction of these changes.

The most obvious point about the introduction of a requirement to give 24 hours’ notice is that it immediately alerted those employers who were inclined to, to the possibility of altering, destroying or concealing relevant material and avoiding the consequences of what might follow from an unannounced inspection. This is particularly so where the purpose is to investigate suspected contraventions of industrial instruments. Notice in that instance defeats the very purpose for which the power to enter and inspect is given.

Where the purpose is to hold discussions with employees, some employers have taken the notice as an additional opportunity to create barriers to any reasonable discussions by, for example, transferring employees to other worksites, monitoring employee participation or insisting on inadequate venues to discourage attendance. More will be said about his below.

Further, the requirements in relation to notice have steadily expanded since the obligation was first introduced in 1996.

Originally, the requirement was simply for 24 hours’ notice per se, to the occupier.⁷¹¹ The current requirement is for written notice in a prescribed form to the occupier (and any ‘affected employer’ in the case of entry to investigate suspected contraventions).⁷¹²

Section 518 now also sets out a comprehensive list of entry notice requirements, some of which are common to all notices and others which vary depending on the purpose for which entry is sought. Notices require declarations as to capacity to represent the industrial interests of the employees concerned (and penalties for misrepresentations about that aspect) and, in the case of notices relating to suspected contraventions, particulars of the suspected breach. The notice must be given during working hours and at least 24 hours, but not more than 14 days before, entry.

Quite aside from the administrative burden of attending to the number of these notices for union officials who are required to visit multiple workplaces each day, the notice requirements themselves have provided fertile ground for arguments about technical and other deficiencies.

Employers regularly take issue with the level of particularity required to be given in the case of entry for suspected contraventions and delay or refuse entry on that basis. Employer disputed union coverage rights can take time to resolve, often diverting scarce resources away from the underlying compliance issues for which entry is sought, such as unpaid wages or even health and safety problems.

Even the question of which part of a workplace an entry notice permits access to has been contentious. In Molina v. Zaknich⁷¹³ a Full Court of the Western Australian Supreme Court held that in the case of a multi-employer construction site where numerous subcontractors and their employees were engaged, the ‘premises’ to which entry was permitted could be that particular part of the site occupied by subcontractors on which members performed work.

Determining who are the occupiers and affected employers in multi-employer workplaces, or in the increasingly common situation where the employing entity is different to the owner or lessee of the premises where work is carried out, can be a difficult, time consuming and costly exercise.

Suspected contraventions that relate to or affect, a member…

Trade union access to workplaces and to employment records obviously reflects an important role that unions have played in establishing and enforcing employment standards on behalf of their members.

For many years in the federal jurisdiction, unions were the main, and for the most part under the C&A Act, effectively the only, organisations responsible for enforcing the terms of industrial awards which the unions themselves had obtained through the dispute settlement processes of the C&A Commission and the AIRC.

The capacity to enter workplaces to inspect wage and other records helps to ensure that individual employees receive their lawful entitlements without recrimination. It also ensures that disputes about rates of pay are effectively and efficiently resolved and that employment standards more generally are not undermined through non-compliance. It discourages wages and conditions being used to unfair competitive advantage by employers who are prepared to flout the law. As the Federal Court of Australia said when discussing an earlier statutory provision relating to the inspection of employment records:-

“The rights given by s. 286 are a vital part of the process of enforcement of awards, which in turn are at the very heart of the system of conciliation and arbitration which is set up by the Industrial Relations Act 1988.”⁷¹⁴

That statement applies with equal force to the present system under which enterprise agreements play a more prominent role in the regulation of employment standards.⁷¹⁵

Since the 1996 amendments, entry for what might be called ‘enforcement purposes’ has been limited to the process of investigating specific suspected contraventions. This is a much narrower role than entering to monitor compliance with awards and orders more generally which was the prevailing situation before 1996. In the latter case, there did not have to be an actual or suspected breach, let alone a particularised one, before entry could occur.⁷¹⁶

There is a further important limitation which has developed since the statutory right of access was introduced. Under the FW Act, entry rights for investigating suspected contraventions are not at large but are confined to those that relate to or affect a member of a permit holder’s union.⁷¹⁷ This restriction was introduced by the 2006 ‘WorkChoices’ amendments and carried over to the FW Act.

Whilst there is some capacity to seek access to non-member records,⁷¹⁸ there is no doubt that the present limitation significantly detracts from the capacity of unions to oversee compliance with industrial instruments when there is a clear public interest in ensuring that the law is being complied with. There is an economic efficiency in having unions identify and rectify these matters without the necessity for court proceedings or the intervention of public authorities such as the Fair Work Ombudsman.

The Cole Royal Commission into the Building and Construction Industry concluded that in that industry at least, underpayments, whether inadvertent or deliberate, were a substantial problem and that union officials should be able to enter work premises to investigate suspected breaches. The final report of the Royal Commission said:

‘It is unrealistic to expect statutory authorities to intervene each and every time a dispute arises in relation to compliance with statutory or award obligations, or obligations under workplace agreements.’⁷¹⁹

Trade unions are central to the award and agreement-making processes and the enforcement of industrial instruments and legislation is a core union function. Unless compliance with these instruments is observed, the integrity of the industrial safety net, supplemented by enterprise agreements, established under the FW Act, is seriously undermined. Moreover, ensuring the integrity of the industrial system is a matter affecting trade union members and non-members alike. Both have an interest in ensuring that minimum standards are monitored and legally enforced.

The limitation on entry for compliance purposes relating to trade union members only should be removed.