Union’s remain very active in workplace matters

This month we are looking at two of the more interesting issues to arise out of union ‘interventions’ in workplaces.

Right of entry – does it extend to before and after work?

In a recent case, the Fair Work Commission was asked to consider whether the right of entry laws extended to holding discussions during periods before and after work, and as such an examination of the ‘other breaks’ provision of the right of entry law.  In this case, the CFMEU sought orders that it be entitled to enter a Western Australian nickel refinery to hold discussions with employees before and after work.  These orders were sought on the basis that work was still being conducted in the workplace at the time the right of entry was being sought, as the workplace operated on a mostly 24-hour basis.

The submission from the CFMEU was that the period before and after work constituted ‘other breaks’ as provided for in s490(2) of the Fair Work Act 2009, and on that basis orders for right of entry should be granted.

Commissioner Williams did not agree with that interpretation, finding at [204]-[206] of the decision:

“[204] In my view ‘breaks’ means, interruptions in the continuity of an employee’s work, the suspension or stoppage of an employee’s work, a brief rest from an employee’s work.

[205] A break interrupts, suspends, or stops the employees work for a brief time.

[206] Consequently ‘other breaks’ does not include a period of time before an employee’s shift begins nor a period after an employee’s shift has ended. Work must have begun and must be going to continue for a break to interrupt its continuity or to suspend or stop the work.”

Commissioner Williams then went on to discuss the difficulties that an order in favour of the CFMEU would bring to employers and the conflict of obligations and rights that it would potentially cause:

“[219] The applicant’s interpretation would create uncertainty for the parties as to their rights or obligations. The applicant’s interpretation provides no specificity as to when permit holders have the right to enter the Premises. If the applicant’s interpretation was correct there would be no certainty as to how long before an employee’s shift begins or how long after their shift ends a permit holder could properly exercise a right of entry. Is it 15 minutes, 30 minutes, 2 hours or more? Such an interpretation would involve a further but uncertain encroachment on the common law property rights of an occupier or employer which would be likely to create further disputation. An interpretation which creates uncertainty as to the parties’ rights and obligations should not be preferred.

[220] The uncertainty inherent in the applicant’s interpretation would also be inconsistent with section 480(c) of the Act which says one Object of Part 3-4 is to balance the rights of organisations to hold discussions and “the right of occupiers of premises and employers to go about their businesses without undue inconvenience.” The uncertainty as to the time period an organisations’ permit holders had a right to enter before shifts had begun or after they had finished would in practice involve some inconvenience to occupiers of premises or employers who would be obliged to manage such situations.”

The Application was dismissed.

What you learn from this decision:

This case provides further guidance for Employers (and Unions for that matter) on the right of entry provisions in the Fair Work Act.  There is no doubt that Unions will continue to test the boundaries of the right of entry provisions, and continue to be outspoken on issues relating to fairness in the employment relationship and also on issues relating to their rights to enter workplaces and hold discussions with their members/ prospective members.  All Employers should note that when in receipt of a right of entry notice there are fairly standard checking procedures available, and we stand ready to assist as required.

ETU expresses ‘outrage’ at a Fair Work Ombudsman enforceable undertaking

The ETU have recently expressed their discontent (referencing ‘outrage’) with an Employer agreed FWO enforceable undertaking, claiming that the Directors of the Employer in question should have been prosecuted in the wake of the findings made against the company.

The enforceable undertaking followed findings that an executive decision maker for the employer had signed a blank contract of employment, which a labour hire firm engaged by the employer then used to recruit overseas workers.  It was later discovered that the contract template had a clause that allowed the employer to terminate and deport overseas workers “by reason of their “engaging in trade union activities” during their employment…”. The Employer claimed that it was unaware of such clause and following discussions with the union, took steps to inform the workers that such clause was unlawful in Australia and could not form part of the employment contract.  The letter also confirmed that such workers would not be at risk if they joined a trade union.

Following investigation by the FWO, the FWO found, and the Employer accepted, that:

“(a) [the Employer] engaged in adverse action contrary to section 340 of the FW Act in that, by having the Affected Persons enter into the MEC, they were deprived of the rights that they possessed by virtue of their prior signing of the employment agreement.

(b) [the Employer] made false and misleading representations contrary to section 345 of the FW Act as the MEC purported to convey to the Affected Persons that they were not permitted to join a trade union and that VUS had the right to terminate their employment if they did.”

In unveiling the enforceable undertaking agreed to by the Employer, Fair Work Ombudsman Natalie James indicated that the undertaking “aims to encourage behavioural change and future compliance with federal workplace laws.”

The enforceable undertaking required the Employer to make a $50,000 donation to the Philippines-Australia Community Services Inc to assist it to promote workplace rights.

The enforceable undertaking also required the Employer to take the following steps:

  • “Not use employment contracts that contravene federal workplace laws,
  • Establish a dedicated hotline and email address for affected current and former employees,
  • Enlist human resources specialists to resolve hotline and email inquiries,
  • Develop systems and processes to ensure ongoing compliance with federal workplace laws,
  • Place a notice in the workplace, on the website and in the Weekend Australian newspaper explaining the contraventions and the company’s actions to remedy them, and
  • Organise training for human resources managers related to the recruitment of off-shore workers under the 457 visa program.”

In expressing its ‘outrage’ as to the outcome of the enforceable undertaking, the relevant Branch Secretary for the ETU is reported to have indicated that the ETU was ‘outraged’ that the enforceable undertaking only provided for a donation to an ‘unrelated charity’ as opposed to compensation for those affected, and also that the donation was insignificant for a corporation as large as the Employer in question and therefore would not serve its purpose of being a deterrent.

What you learn from this decision:

Although the ETU expressed ‘outrage’, the enforceable undertaking seems a sensible approach by the parties, and affords a lesson to the Employer with consequences as outlined.  The Fair Work Ombudsman should be applauded and encouraged to act in similar ways, in future and appropriate cases.  It would be most certain that if the Employer contravenes again then prosecution would be swift and the consequences severe.  There is also a lesson that all Employers need appropriate legal advice on their employment and related documentation.

Disclaimer: The information contained this article is general and intended as a guide only. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this update, Aitken Legal does not accept liability for any errors it may contain. Liability limited by a scheme approved under professional standards legislation.