The new financial year sees the commencement of many of the substantive provisions of the Fair Work Act 2009 (Cth). One of the more controversial aspects of the Act, and one which attracts opportunity for employer and union lawyers alike, is the “union right of entry” laws.
Often a right of entry issue requires immediate and precise advice, usually over the telephone. A good lawyer will not just address the “who” and the “what”; but the “how” – and will be prepared to offer their client practical advice on limiting (or maximising) the benefit from entry.
It will be important for lawyers to understand the different bases of entry, because different notice requirements and inspection rights flow from the particular legal basis of entry.
For example, if an official is entering to hold discussions with employees, or to investigate a suspected breach of the Act or an industrial instrument, then they must give the employer written notice between 24 hours and 14 days before the visit.
However, in some cases officials will not be required to give any notice if they are entering premises to investigate a suspected breach of occupational health and safety laws and do not require access to employee records. This will depend on the OHS laws in each state or territory.
Because right of entry will now rely on registered union rules rather than relevant industrial instruments, lawyers must refamiliarise themselves with relevant union rules and what they mean for whether a union is “entitled to represent” certain employees. These are often awkwardly worded and many purport to cover similar categories of workers.
Getting across the laws is one thing, but anticipating how your client can use them to best position themselves is another.
The areas which are most interesting in this regard are Fair Work Australia's (FWA) powers to issue orders. These include exempting unions from providing prior notice for entry, and about inspecting member and non-member records – some of which may be made on an ex-parte basis.
How this power will apply in practice remains to be seen – FWA may refuse to issue exemption certificates unless unions can give solid evidence that the employer will destroy, conceal or alter evidence.
Alternatively, FWA may rely on little evidence or untested assertion by the union, and readily issue exemption certificates. In the worst-case scenario, unions may routinely apply for an exemption certificate any time that they plan to visit a worksite to investigate a breach.
This area of the new laws will no doubt be watched closely, especially as employers will not be represented when the FWA decides to issue an exemption certificate and as there will effectively be no right of appeal from FWA's decision.
Lawyers will need to consider also how privacy laws intersect the right of entry laws, because documents in the hands of a union will not be an “employee record” and will be therefore subject to rules about use and disclosure.
The full effect of the new right of entry laws will only become apparent over time, but lawyers should be prepared to be able to offer immediate and accurate advice in a situation where a union official, or officials from different unions, are asserting a right of entry at the front gate.