Unions & WorkChoices Bill

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Unions & WorkChoices Bill

There has been much discussion regarding the Federal Government's proposed workplace relations legislation with respect to the impact it will have on the activities of trade unions, with anticipated changes expected to place a greater restriction on the way trade unions operate in the workplace.

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There has been much discussion regarding the Federal Government's proposed workplace relations legislation with respect to the impact it will have on the activities of trade unions, with anticipated changes expected to place a greater restriction on the way trade unions operate in the workplace. Here's a summary of the likely impact of the proposed legislation on unions.

Right of entry

The proposed workplace relations legislation is expected to maintain the right of entry to workplaces of accredited union officials to investigate a suspected breach of the Act and to hold discussions with employees. However, there will be more stringent requirements regulating the activities of union officials.

These more stringent requirements include:

  • the introduction of a 'fit and proper person' test when granting an entry permit to a union official;
  • there will be no right of entry for discussion purposes where all employees are on Australian Workplace Agreements (AWA);
  • entry to investigate a breach of an AWA is only allowed if the employee party to the AWA provides written consent;
  • there will be a requirement for a union official to provide particulars of a breach that he or she is proposing to enter to investigate to the employer;
  • a union official will only be able to access the records of union members when investigating a breach, unless an order is made by the Australian Industrial Relations Commission (AIRC) that non-member records can be inspected;
  • there will be a requirement on a union official to comply with a reasonable request by an employer that the meeting or interview should be conducted in a particular room or areas of the premises and that a specified route should be taken to that venue.

Revoking/suspending right of entry permit

The grounds on which a permit may be revoked are expected to be expanded. The revocation or suspension of a permit will be mandatory in cases where the permit holder has:

  • been found by the AIRC to have breached the prohibition on making misrepresentations about his or her powers under their right of entry permit;
  • had their right of entry under a state law cancelled, suspended or has been disqualified from exercising or applying for right of entry under a state law;
  • been ordered to pay a penalty in respect of a contravention of the right of entry provisions; and
  • when exercising a right of entry under an Occupational Health and Safety law engaged in conduct that was not authorised by that law.

In respect of the last two categories, the permit holder may apply to the AIRC to have the revocation or suspension quashed on the grounds that it is harsh or unreasonable in the circumstances. The AIRC will be given the power to make orders if it is satisfied that a union or one of its officials has engaged in such conduct.

The type of orders the AIRC may make include revoking or suspending all permits that have been issued in respect of the union or imposing limiting conditions on some or all of the permits. The powers will only be able to be exercised by the President of the AIRC, a Presidential Member nominated by the President or by a Full Bench.

The right of entry provisions will still allow a union permit holder entry for occupational health and safety purposes under state legislation where the union official has a federal right of entry permit and the official has complied with all requirements of the relevant state OHS legislation.

Prohibited conduct

The proposed legislation prescribes prohibited reasons for certain conduct if it is carried out because the employee, independent contractor or other person concerned:

  • is, has been, proposes to become or proposes to be an officer, delegate or member of an industrial association; or
  • is not, does not propose to become or proposes to cease to be, a member of an industrial association; or
  • in the case of a refusal to engage another person as an independent contractor - has one or more employees who are not, or do not propose to become, a member of an industrial association; or
  • has not paid, or does not propose to pay, a fee to an industrial association; or
  • has refused or failed to join in industrial action; or
  • in the case of an employee - has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or
  • has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or
  • has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or
  • is entitled to the benefit of an industrial instrument, an order of an industrial body or the Australian Fair Pay & Conditions Standard; or
  • has made or proposes to make any enquiry or complaint to a person or body having the capacity under an industrial law to seek compliance with that law, or the observance of a person's rights under an industrial instrument; or
  • has or proposes to participate in a proceeding under an industrial law; or
  • has given or proposes to give evidence at a proceeding under an industrial law;
  • in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or
  • applying for and being unreasonably refused leave without pay to attend to their duties as an officer of an industrial association; or
  • undertaking a lawful act that is within the limits of authority expressly conferred on the person by an industrial association's rules for the purposes of furthering the interest of the industrial organisation; or
  • in the case of an employee or independent contractor - has not paid, has not agreed to pay, or does not propose to pay, a bargaining services fee.

Related

Analysis of Federal Workplace Relations Amendment (WorkChoices) Bill 2005:

  • Wages/conditions & WorkChoices Bill
  • Long service leave & the new legislation
  • Annual leave & the WorkChoices Bill
  • Personal/carer's leave & WorkChoices Bill

Union officials in the workplace - current

 

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