Union Right of Entry
A union official who holds a permit under the Fair Work Act 2009 and the Work Health and Safety Act 2012 may enter a workplace, subject to certain conditions.
Under the Fair Work Act 2009, a permit holder may enter a site to hold discussions with current or potential union members, or to investigate a suspected breach of the Act, or an enterprise agreement or award. Under the Work Health and Safety Act 2012, a permit holder may enter a site to inquire into a suspected contravention of that Act (without notice), or to consult and advise workers in respect of a work health and safety matter.
It is important for site managers and other relevant persons to understand their rights and obligations, prior to entries occurring. We can provide resources to members and assist with managing entries when they occur. We also provide comprehensive right of entry training.
Master Builders SA can provide advice and assistance to members in relation to enterprise agreement and bargaining strategy.
We can assist members with enterprise agreement negotiations, including by acting as a bargaining representative in negotiations with employees and the union.
It is a requirement of the Fair Work Act 2009 that all bargaining representatives bargain in good faith in respect of a proposed enterprise agreement. This generally requires each party to: attend and participate in meetings; disclose relevant information; respond to requests for information and consider proposals from the other party; and not engage in unfair or unreasonable behaviour.
Industrial action is behaviour or actions that disrupt or stop the performance of work.
Industrial action is defined in the Fair Work Act 2009 to include the following:
- the performance of work by an employee in a manner that is different from how the work is customarily performed;
- the adoption of a practice that restricts, limits or delays the performance of work;
- a ban, limitation or restriction on the performance or acceptance of work;
- a failure or refusal to attend for work or perform work.
To be lawful, industrial action must be “protected”, for the purpose of the Fair Work Act 2009. Protected industrial action can only occur to support bargaining for a proposed enterprise agreement, once the current enterprise agreement has passed its nominal expiry date.
Once bargaining for a new agreement has commenced, employees or their union may apply to the Fair Work Commission (“FWC”) for a protected action ballot. The FWC will generally grant the application if it is satisfied that the union has been genuinely trying to reach agreement with the employer, and the other requirements for protected action have been met. If the application is approved by FWC, eligible workers will vote on the proposed action, and will be entitled to take the industrial action identified in the protected action ballot application, if there is a majority vote in support of it.
We can assist your business to understand its options when industrial action is occurring, or is likely to occur. We can prepare applications in response to unprotected industrial action, and represent you in the Fair Work Commission.
Need more information?
Contact our Industrial Relations team today to find out more about how we can help.