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

Ex-employees

The FW Act confines entry to investigate a suspected contravention only for a member who ‘performs work on the premises’.⁷²⁰ There is no sound public policy reason why this should be the case.

Many employees are reticent to raise underpayment issues whilst they are still employed for fear of retribution. A large number of union wage claims are processed after the employment relationship has come to an end. Again, there are efficiencies in permitting unions to have access to work records for former employees and seeking to resolve disputes about entitlements informally and close to the source.

In 2012 the Fair Work Act Review Panel recommended that the legislation be amended to extend the rights under section 481 to cover the post-employment situation.⁷²¹ Unfortunately that recommendation was not acted upon. It should be adopted.

Discussions

Since the 1996 amendments, union permit holders have had access to workplaces in the federal jurisdiction for the purpose of holding discussions with employees who wish to participate in those discussions. Twenty four hours’ written notice to the occupier is required. Permits must be produced on request.

The legislation does not permit discussions to take place at any time during working hours. The discussions may only be held during mealtimes or other breaks i.e. during the employees’ own free time. This severely limits the time during which employees can have access to union representation.

The Fair Work Act Review Panel observed that the exercise of entry rights in these very limited circumstances is much less likely to impinge on the operations of the employer or require them to devote the resources that might be required to deal with an entry in other circumstances such as to investigate a suspected contravention.⁷²²

On major resource and infrastructure projects where thousands of employees are housed in temporary accommodation camps, the limitation allowing entry to ‘work premises’ during ‘working hours’ and the common refusal of camp owners to allow union access means that employees are effectively denied access to union representation during their own, non-working time. FWA has observed that the laws did not guarantee privacy or anonymity for employees seeking access to union representation. ‘If permit holders and employees wish to have total privacy and anonymity they are able to hold the discussions off-site out of working hours.’⁷²³Unfortunately, even this option is not available for many employees.

Permit holders must also comply with any reasonable request by the occupier to comply with occupational health and safety requirements applying at the premises and reasonable requests as to the route to be taken to get to the meeting place.

As to the venue for discussions, the WorkChoices legislation allowed employers to designate a ‘reasonable venue’ for the first time. The FW Act attempted to address examples of employer recourse to obviously unreasonable venues by setting out some of the circumstances where a request would be unreasonable. This approach was unsuccessful.

In Somerville⁷²⁴ FWA found that occupiers of premises had the right to request permit holders to conduct interviews or hold discussions with employees in a particular room or area of the premises provided the request was reasonable and that a union could only succeed if it established that the employer’s request was objectively unreasonable.

In CFMEU v. Foster Wheeler Worley Parsons (Pluto) Joint Venture⁷²⁵ (Pluto) the tribunal found that notwithstanding that the employer designated meeting areas suffered from intense heat (up to 45 degrees), were uncovered in some cases or covered only by shade cloth, had problems with dust, flies and noise, had limited or no seating and allowed managers to observe the meetings, they were nonetheless ‘fit for the purpose’ of holding discussions. Whether employees were intimidated or discouraged, or found it difficult to participate in discussions, was not the relevant question under the previous provisions. Rather, the union had to show that was the intention of the employer in designating the meeting places to discourage, intimidate etc., in practice a virtually impossible task.⁷²⁶

Since 1 January 2014, permit holders must conduct interviews or hold discussions in areas agreed with the occupier. Lunch rooms have been designated as the default venue in the absence of agreement. Clearly this is appropriate as this is where workers are likely to be located during break times – the only times the union is permitted to engage in discussions with them.

Other Deficiencies with Access to Representation in the Workplace Regime

There are numerous and ongoing issues associated with the existing laws. Some of the problems faced by employees and their representatives have included:

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  refusal of access despite permit holders having properly issued entry notices at least 24 hours in advance of attendance and after covering long distances to get to a workplace;
  
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  claims that entry notices were “invalid” but with no explanation provided as to why the notices were said to be invalid;
  
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  a permit holder who entered a workplace under the legislation then exited briefly to retrieve a pen from his car only to be told that he had already exercised his right of entry and would need to issue a new entry notice and wait a further 24 hours if he wanted to go back to the workplace.
  
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  permit holders being ordered to leave the site and threatened with the police as a result of raising safety issues;
  
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  permit holders being refused access to documentation directly relevant to suspected safety breaches, without explanation;
  
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  employers claiming that permit holders could only enter the site during “business hours” rather than working hours;
  
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  refusing entry to permit holders unless they could produce hard copies of the entry notices issued in advance of attendance, rather than electronic copies of the notices;
  
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  assuring permit holders that rectifications of safety problems would take place and then refusing to allow the permit holder access to check whether the promised rectification work had been done;
  
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  requiring the permit holder to undergo the same visitor’s induction on each visit to site;
  
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  blanket refusals to allow permit holders to consult with workers about safety matters at their work stations; and
  
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  employers refusing to allow an elected health and safety representative (HSR) to receive assistance from permit holders and refusal to acknowledge an HSR at all.