A Quick Overview
On 1 January 2023, a union’s right to enter a Local Government workplace became governed by the Industrial Relations Act 1979 (WA) (the Act). Under the Act, unions enjoy a much broader right to enter into a Local Government to hold discussions than they did under the Fair Work Act 2009 (Cth).
Under section 49H:
- A union official with an entry permit may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.
- the union official must give at least 24 hours’ written notice.
Section 49J(5) states that a union official’s right of entry permit may be suspended or revoked if they have:
- Acted in an improper manner; or
- Intentionally and unduly hindered an employer or employees.
In addition, union right of entry may be limited or restricted if the union’s visit would raise genuine safety concerns.
CFMEU v Tiwest Pty Ltd (2005) 85 WAIG 1500
Union officials gave notice to the employer that they would be entering the employer’s premises – they gave proper notice and were permit holders.
The site was a hazardous paint manufacturing plant. Safety risks meant that the union needed to be accompanied at all times.
The union were shown to a “dusty dingy room”- and spoke to some “curious employees”.
The union asked to be taken to the lunchroom and to speak to employees at their workstations but were refused.
The union made an application to the WA Industrial Magistrates Court alleging that they had been obstructed in their visit by:
- The employer refusing to permit the union to speak with the employees at places where they take meal breaks.
- The employer refusing to allow the union to discuss issues with employees at their workstations.
Industrial Magistrate Cichini made the following observations:
- Authorised representatives may enter premises occupied by the employer, being the whole of the premises and not just a room or other place therein designated by the occupier.
- The union’s right of entry is one at large – but in some instances representatives cannot wander throughout a workplace without supervision – in the present case constant supervision was permissible due to safety considerations.
- The union may interview the employees at their workstation or at any other place including the place an employee takes his or her meal break. There is no restriction.
- The occupier may not dictate, subject to legitimate safety considerations, where the authorised representative may speak to workers – meetings may occur in crib rooms or lunchrooms.
What to do if the Union informs that they will be entering a Local Government to hold discussions
- Check to see if the union officials hold the necessary right of entry permits and ask to see copies.
- Consider whether the union have given the necessary 24 hours written notice.
- Consider whether the union actually has coverage – Do they have members or anyone eligible to be a member at the worksite?
- Always take safety into consideration – remember the Local Government also has a duty of care to both the union officials and the employees to ensure health and safety.
- Consider accompanying the union and giving the union safety directions while on their visit – for example it may be appropriate to insist that the union wears the appropriate PPE and stays close to an escort in hazardous areas – or it may be appropriate that the Union simply cannot enter certain areas.
- If you refuse the union entry to a particular area for safety reasons – be prepared to defend your decision – take contemporaneous notes for production in court if necessary.
- Remember that the Act only allows for union officials to hold their discussions in work hours and the employees must wish to participate in those discussions. The union cannot hinder an employee from carrying out their duties.