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Union Rights And Workplace Safety Bureaucracy

Union Rights And Workplace Safety Bureaucracy

Baking industry employers are increasingly becoming the target of union interest as the Fair Work Act expands the rights of unions. Many employers don’t fully understand the rights of union representatives under the Fair Work Act to enter their workplace and speak to employees.

One of the issues is unions exercising rights where an employer has not allowed the union to meet employees in a suitable location. Two recent cases show that there is some scope for the employer to insist that union representatives do not meet employees except in specified areas of the employer’s premises.

Under the Fair Work Act, unions have a right to enter an employer’s premises to investigate a suspected breach of industrial laws or a breach of awards or an agreement.

Union organisers must comply with ‘reasonable’ requests by the employer to hold discussions or conduct interviews in a particular room or part of their premises. ‘Unreasonable’ requests include when the area is not fit for a meeting or that the employer is intending to intimidate or discourage employees from meeting with the union. Many employers don’t insist on exercising their right to make such a request, despite employee or employer concern that the union is excessively disruptive in the workplace.

In Somerville Retail Services, a Full Bench of Fair Work Australia upheld the employer’s direction preventing the union from meeting employees in a lunchroom. The alternative venue was a training room located immediately opposite the offices of the company’s management. A majority of the Full Bench found that the Commissioner at first instance was wrong to infer that the location of the room had the effect of making it difficult or discouraging employees from meeting with the union.

In TWU v DHL Supply Chain, Fair Work Australia found that the employer’s request that the union meet employees in a boardroom was reasonable, even though it had previously let representatives of a different union meet with employees in the lunchroom.

Employers should remember that the laws regarding rights of entry by union representatives are designed to balance the interests of members of the union, employees who don’t wish to meet with the union and the employer. Most union representatives are familiar with and prepared to comply with the requirements of the Act. Sometimes that is not the case, and it can be disruptive to the employer’s business.

Make sure you seek advice when the union issues a notice seeking to enter your premises.

Are you ready for safety changes in 2012?

There are many changes to health and safety legislation commencing on 1 January, 2012, which is to become a national scheme.

Firstly, the Act and regulations are meant to be all encompassing and are hundreds of pages long. In addition there is a policy on transition from the old acts to the new Act. The regulations are designed to complement and expand upon the duties imposed by the Model Act and flesh out details so compliance is easier.

Secondly, there is a sizable increase in paperwork compliance required and, as a result, the due-diligence duties to be imposed on company officers. There will need to be a significant improvement in both practice and paperwork reporting to the board and relevant officers of the business. Fines can be imposed on those that are responsible for safety in the business.

Thirdly, OH&S committees will become work groups with a stronger role for the HSR. The HSR will have an entitlement to intrude upon management prerogative and decision-making about risk and can require review of company decisions on safety.

anton duc is workplace relations manager for the baking industry association (nsW employers) and industrial relations advisor for the baking industry association of victoria. anton advises the baa on award modernisation and is also a practicing solicitor with a sydney law firm.


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