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Issue #1448      24 March 2010

Right of entry

Rudd govt’s restrictive anti-union laws

A simple decision by Commissioner Ryan of Fair Work Australia approving an enterprise agreement recognising the common law right of an employer to determine who enters their workplace sent a major employer body and Labor’s Workplace Relations Minister Julia Gillard into a spin last week. The Commissioner approved an enterprise agreement between the National Union of Workers (NUW) and Dunlop Foams which included a clause on right of entry.

Gillard let loose, warning that the Fair Work Act’s “right of entry provisions” were needed to deal with sectors of the trade union movement that have a “track record of breaking the law”. The employers carried on as though the highly restrictive, pro-employer provisions of Labor’s Fair Work Act (based on Howard’s WorkChoices) would be rendered inoperative and unions would be able to freely enter workplaces at will. Unfortunately, that is not the case.

The Australian Industry Group representing employers immediately announced they would be challenging Commissioner Ryan’s decision. Gillard wasted no time committing the government to intervening on their behalf.

The clause in the enterprise agreement simply states: “An authorized NUW representative is entitled to enter at all reasonable times upon the premises and to interview any employee, but not so as to interfere unreasonably with the Employer’s business.” (Clause 44)

It is in stark contrast to the highly restrictive provisions of the “right of entry” provisions of Labor’s Fair Work Act. Under the Act a trade union official cannot enter a workplace without first gaining a permit from Fair Work Australia as a “fit and proper person”. The union official must give at least 24 hours notice in writing with full reasons for the visit! There are only three possible purposes for entry:

Investigating, “on reasonable grounds”, a suspected breach of the Fair Work Act 2009 or other workplace related legal instruments that affects a member of your union who works on the premises; or

Holding discussions with workers who are members or eligible to be members of your union; or

Exercising a union’s rights under state or territory occupational health and safety (OH&S) laws.

The union official investigating a suspected breach of industrial relations law must “provide sufficient details and facts which give rise to the breach on the notice”, and enter on the day specified in the notice, during working hours. The employer cannot prevent the entry but does control where the union official is allowed to go, where he or she may talk with members or other workers who are eligible to be represented by that union.

Union officials have limited rights to inspect any work, process or object relevant to the suspected breach. They may interview members of their union who agree to be interviewed about the breach and make copies of relevant documents to those members.

Non-member records directly relevant to the suspected breach cannot be inspected or copied by the union official unless the non-member gives written consent or if (on appeal) Fair Work Australia agrees that access to the records is necessary to investigate the breach.

There are fines of up to $6,600 for individuals and $33,000 for unions for misuse of information, and any permit holder found to have breached the restrictive laws governing right of entry must have their permit revoked or suspended.

The so-called “right of entry provisions” are designed to restrict union access to information and protect employers who might be in breach of the law. They give employers time to clean up their act, doctor their records, intimidate employees who might dare to speak to the union representative. In a workplace, for example, where half the workforce might be non-unionised, foreign labour on 457 Visas, talking to the union would not only mean the sack, but could lead to deportation. These workers might be earning $30,000 less than the award rate, but the right of entry provisions of the Act make this very difficult to expose.

Obstructive and even violent employers have been known to call in the police, have union officials not only forcibly ejected but then face the courts with hefty fines and suspension of their entry permits. Removing a trade union official’s entry permit is similar to cancelling a taxi driver’s licence.

Countering trespass

Commissioner Ryan points out that “where an official of an organisation who holds a valid permit and enter premises in accordance with the requirements of the [Fair Work] Act, then the employer or occupier cannot prevent that right of entry being exercised. In fact the Act specifically prohibits a person from refusing or delaying entry (s501) or hindering or obstructing a permit holder exercising a right of entry (s502).”

By their very nature the rights provided to permit holders “are intended to be exercised against the occupier or employer regardless of the attitude of the employer….”

“The right of entry provisions of the [Fair Work] Act operate to counter the common law of trespass.”

The Commissioner continues by pointing out that “at common law an occupier of premises can invite anyone on to their premises and can do so either impliedly or specifically.”

The Fair Work Act effectively gives a government agency the right to determine who may enter a workplace as a representative of a trade union. It is nothing short of corporate state politics. It provides through its penal provisions a system of suspending and denying permits to the most active and militant trade unionists – a means of preventing trade union officials from carrying out their work. That is one of its main aims. Hence the angry response from Gillard and her employer patrons to an agreement that cuts out the government’s ability to deny union officials their right of entry.

The NUW-Dunlop agreement also removes a number of other vicious aspects of the Act such as the singling out and naming of individuals who the official might speak to. There is no 24-hour notice. At the same time the company retains certain controls over when and how the union official’s visit is conducted.

Gillard’s Fair Work Act deliberately sets out to severely restrict the entry of union representatives to workplaces and their ability to defend members, organise and recruit.

ABCC

In the building and construction industry the Rudd/Gillard government retained the industry police force – the Howard’s government’s notorious Australian Building and Construction Commission – which spends millions of dollars a year hounding union officials attempting to enter workplaces over safety, underpayment, loss of entitlements, and other issues. They cost unions hundreds of thousands of dollars in fines, accusing unions and their officials of “breaking the law”. The law they are “breaking” is the “right of entry” law that prevents them from legally carrying out their legitimate trade union business and protecting their members from the criminal actions by employers who are rewarded with the guarantee of no more union visits.

For decades trade union officials freely entered workplaces, checked out working conditions of all employees, inspected wages and working hours books, attended to safety issues, assisted members with problems and ensured that employers were complying with their legal obligations.

They were free to talk to workers during meal and other breaks and actively recruit and organise in the workplace. They exercised one of the most fundamental basic trade union rights – right of entry.

Up until the mid-1980s a system of centralised union-negotiated awards governed minimum wages and working conditions.

Awards not only covered wages, hours or work, penalty rates and many other important condition of work, but contained “Time Record” and “Right of Entry” clauses which gave union representatives (authorised by the union secretary) considerable rights to enter workplaces, speak to workers and inspect time and wages records where a breach of the award was suspected.

The Hawke-Keating Labor governments commenced the process of dismantling the comprehe nsive system of centralised awards in the 1980s, with a shift in focus to enterprise-based determination of wages and working conditions. But it took the Howard government and its Workplace Ministers Peter Reith, Kevin Andrews and Tony Abbott to emasculate the centralised system of trade union-negotiated awards and gut awards to “20 allowable matters”. Amongst the key provisions that were not just removed from awards but outlawed in enterprise agreements were basic trade union rights including the right of entry and free access to rime and wage records of all employees.

When the Rudd Labor government was elected in 2007 there were expectations in trade union circles that the right of entry would be restored; it was not.

The NUW-Dunlop agreement may be of assistance to some of the larger and more militant unions, but it does not restore the right of entry for all unions.

The union movement still has a fight on its hands to restore right of entry, and now possibly an additional battle in the courts on the question of trespass and right of occupants to determine who they allow to enter their premises.

Next article – Editorial – Coal and credibility

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