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Workplace reform in focus: union access to workplaces

AS part of AREEA’s advocacy for a modern, flexible workplace relations system that supports employment and investment, AREEA has developed ‘5 workplace relations reforms over 5 years’ as the focus of our pre-election campaign for 2016.

These reform priorities have been identified by AREEA members as key areas for workplace change and confirmed in the recent 2016 AREEA Federal Election Survey.

This week, we take a look at the second of our five key reform priorities: Returning balance to union workplace entry laws by creating an enforceable code of conduct and removing union access to employee lunch rooms when other suitable meeting rooms are available.

Union access to workplaces under the Fair Work Act

Union access to workplaces (right of entry) has consistently rated as one of the top concerns of AREEA members since the Fair Work Act took effect in 2009.

In short, the Fair Work legislation removed longstanding rules around when, where and how frequently unions could legally access workplaces to conduct union business. As a result, many resource industry workplaces not previously exposed to union site entry requests were suddenly dealing with multiple entry requests, often from competing unions, with some requests numbering in the hundreds per year.

This became even more problematic with further expansive changes made to union access provisions on 1 January 2014 by the former Labor government.

Labor’s 2014 changes fell into three main areas:

  • Removing employers’ ability to designate reasonable meeting places for union interviews and discussions, giving unions default access to lunch rooms in the absence of agreement between the parties;
  • Requiring employers to ‘facilitate’ accommodation and transport for union officials to access remote sites to hold discussions with employees; and
  • Marginally expanding the Fair Work Commission’s (FWC) powers to rule against too frequent entry by unions.

The Coalition government tabled a bill in early 2014 to repeal the first two of the above Labor changes. However, those changes were removed from the Fair Work Amendment Act 2015 before it passed through parliament and took effect in November 2015.

The Productivity Commission Review and other Inquiries

The resource industry then looked to the 2014 / 2015 Productivity Commission (PC) review of Australia’s workplace relations framework to make much needed changes, with AREEA identifying 25 specific reforms that needed to be made to union entry laws. AREEA’s recommendations included that the 2014 changes relating to lunch room and remote site access should be removed, with the suite of reforms having three main aims:

  • Limit union entry for discussion purposes to only those unions who are party to an existing enterprise agreement or are attempting to reach one (with entry precluded altogether where another union has an agreement covering the site);
  • Introduce a code of conduct for union permit holders to ensure reasonable and decent standards of conduct are observed when unions enter commercial premises and engaged with employees and management; and
  • Expand / clarify the circumstances under which a union entry permit could be suspended or revoked following a breach of the rules.

According to AREEA-commissioned analysis by KPMG in 2015, AREEA’s suite of reforms could reduce administrative and compliance costs for employers, including reducing productive time lost during visits. As cited in the KPMG report, it is estimated that each union visit costs businesses the equivalent of two hours of labour (and in AREEA’s view that is a conservative estimate). Across 100 major projects, the cost saving associated with reducing excessive union visits was therefore estimated to be in excess of $5 million a year.

Disappointingly, the PC’s draft report released in August 2015 made just two recommendations for reform in the area of union access to workplaces (Draft Recommendations 19.7 and 19.8). The PC also put out a call to employers to provide further evidence of operational difficulties experienced with the default lunchroom provisions, which AREEA provided in our follow-up submission.

In the PC’s final report released in December 2015, one of its two initial recommendations had disappeared, which would have linked union access to unions either being covered by an agreement onsite or being in the process of negotiating one (as per AREEA’s recommendation).

This was disappointing to say the least given the high priority the resource industry gives these issues and the real problems, disputes and costs the current entry rules are creating in Australian workplaces.

The only formal recommendation that remained in the PC’s final report was Recommendation 28.1 which would, if adopted, lower the bar for employers and occupiers to successfully dispute entry based on cumulative frequency of all union visits. While that change would be welcome, AREEA is urging the next federal government to go much further based on evidence of widespread concerns and disruptions across the resource industry.

The final report of the Royal Commission into Trade Union Governance and Corruption was also released in December 2015 and in the wake of numerous findings involving breaches of the existing right of entry regime, it was recommended for a significant increase in the penalties for breaching laws regarding right of entry and proposed introducing additional limits on right of entry permit holders.

AREEA 2016 Federal Election Survey

In AREEA’s 2016 Federal Election Survey report released in April 2016, survey respondents cited the following concerns with current union access laws:

  • 79% were concerned due to difficulties interpreting union eligibility rules to determine union entry rights;
  • 79% were concerned about the frequency of union visits to their sites;
  • 83% were concerned with unions insisting on lunch room access for discussions with employees;
  • 70% had concerns with having to provide transport and accommodation for union officials visiting remote sites;
  • 77% were concerned about the misuse of entry rights whilst onsite;
  • 73% had concerns about complaints from employees about disruptions from union visits and union conduct onsite; and
  • 86% were concerned about the costs of facilitating union entry, including chaperoning and transport costs.

Where to from here?

Given the size, location and type of machinery on various resource projects as well as employers’ enormous safety obligations, AREEA is strongly advocating that employers must retain the capacity to reasonably direct permit holders in relation to location and conduct during visits.

In our ‘5 Reforms over Five Years’ campaign, we argue that a sense of proportion and reasonableness needs to be inserted back into the Fair Work Act’s union entry rules.

As a starting point, the provisions contained in the Fair Work Amendment (Remaining 2014 Measures) Bill 2015, which lapsed with the ceasing of parliament earlier this year, should be reintroduced and passed after this year’s federal election.

Following that, the next priorities for reform should be to tie union access to agreement coverage and to implement an enforceable code of conduct.

AREEA looks to the next federal government and parliament to make those essential changes as a matter of urgency following the 2 July 2016 federal election.

For regular updates on AREEA’s workplace relations advocacy during the 2016 Federal Election campaign, visit our ‘Getting Back on Track’ campaign page.

Stay tuned for next week’s AREEA News Update, where we’ll explore the third of AREEA’s ‘5 Reforms over 5 Years’ – agreement-making options.

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