Managing Right of Entry – Industrial Perspective
A key element of effectively managing industrial relations is the management of Right of Entry (ROEs) by union officials onto your construction sites and workplaces. Handled well, they will contribute to a harmonious workplace and add value in identifying non-compliance within your systems, handled badly it will disrupt productivity and damage your operations.
This article will concentrate solely on entry under industrial law – a separate article covers entries related to WHS. [Click here]
ROEs are a provision of the Fair Work Act 2009 (“the Act”) and have long been a part of the Australian industrial landscape. The provisions enable union officials, who hold valid entry permits, to lawfully enter your workplace to either investigate a suspected breach of the Act, or more commonly, hold discussions with workers.
As the Act sets out, the legislative intent is to balance the rights of unions to represent and meet with members, and to investigate suspected contraventions, with an employer’s right to conduct business without undue inconvenience.
During the right of entry, unions typically seek to meet with eligible members of their union. It is important to understand that workers participation in the discussions is voluntary. Our suggestion would be to simply notify relevant supervisors to notify their work teams of the impending visit. The decision to attend is then left to the individual employee. Discussions with employees can only occur during designated work or meal breaks.
The ROE process commences with the receipt of an entry notice, traditionally received by the employer through facsimile, but more typically these days, via e-mail. The notice should include the following key particulars:
· The premises to be entered;
· The date of entry;
· The union the permit holder is representing;
· The section of the Act authorising the entry;
· If entering for a suspected breach, details of the breach; and
· The provisions of the union’s rules that detail their representation rights.
Entry is only required to be given to valid entry permit holders. To confirm whether the official holds a valid permit, simply input their details into the following link.
The entry notice must be provided to the employer at least 24 hours’ but not more than 14 calendar days prior to the intended entry. Entry can only occur during working hours and on the day (or days) specified in the notice. If any of these conditions have not been complied with, you are entitled to refuse the ROE. Obviously, it is recommended that you convey the reasons for your refusal to the relevant official.
On the day of entry, it is recommended that you organise a supervisor or manager to meet with the union at the entry point, ask to view their permit and arrange to escort them to the relevant work area. The Act mandates several obligations on the permit holder, including:
· A requirement to comply with reasonable WHS requests (i.e. wearing of appropriate PPE);
· A requirement to comply with reasonable requests to hold discussions in a designated area;
· A requirement to comply with reasonable requests that certain routes are taken to the area;
· To act in a proper manner and not intentionally hinder or obstruct others in the workplace; and
· To abide with all conditions imposed on their permit (i.e. not talking to workers who they have no industrial coverage over).
At the same time, the Act prescribes obligations on the employer. These include:
· Not refusing or delaying the permit holder entry to the premises;
· Not refusing the right to inspect or copy documents relating to a suspected breach; and
· Not hindering or obstructing them from exercising their rights.
Entering workplaces for discussions or to investigate suspected contraventions may be convened in areas where workers ordinarily take meals or other breaks and that are provided for those purposes. In the normal situation of a single-use lunchroom, it is that room which is the default location for discussions, in the absence of agreement between the permit holder and the occupier.
Some tips for managing the ROEs include, ensuring your representative remains cordial towards the official and refrains from engaging in heated exchanges by remaining calm and collective at all times. When issues are raised, the representative should formally note them in writing, resolve any issue that can be immediately addressed, and agree a schedule to resolve other issues that may take more time. The objective should be to minimise the need for officials to return to the workplace in the short term by clear communication and confirming that issues raised have been resolved.
If you have several separate workplaces, it would be beneficial to consider whether issues raised may occur at other areas, and hence may need to be discussed and reviewed by the wider team.
For queries about managing Right of Entry or any other employment matters, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or email@example.com