entry, among other things, should be
restricted to a written invitation. It
was just not practical in all circumstances.
Instead the Democrats negotiated a scheme that in our view
provided a sensible balance of union, employer and employee rights.
Professor McCallum
in evidence to the 2004 Senate committee hearing into the Building
and Construction Industry raised concerns about watering down the system that
the Democrats negotiated:
What I would say about
right of entry is that, under our system, it is for the arbitration inspectors
and the registered trade unions to have the capacity to police awards and
certified agreements. I do not think
that that ought to be destroyed or watered down. Obviously improper use of right of entry is
another thing.[53]
As the Bills Digest to this Bill
notes, the balance is important:
Union right of entry to
workplaces for the purposes of consulting with members and those eligible to
become members has been seen as fundamental to the core purpose of trade union
organisation, as lawyers Shaw and Walton have observed:
It is plain that
effective trade union organisation of employees cannot occur without access on
the part of the union and its authorised representatives to workplaces in order
to recruit non-unionists, to communicate with union members and take up their
concerns, and to police award prescriptions and occupational health and safety
requirements by inspecting the workplace.[54]
Nevertheless, unbridled intrusion can interfere with the
conduct of business, and as Professor Bill
Ford has also noted, balance is the key to
facilitating entry and preventing intrusion:
the difficult policy
problem [that] right of entry arrangements have always had to address – that of
striking an appropriate balance between the interest unions have in, at the
very least, monitoring compliance with the terms of industrial instruments and
the interest employers have in carrying on business without unreasonable
interference or interruption – remains the same [after the 1996 Act].
The ACTU in their submission refer to the conclusions of the
2000 report of the Senate Standing Committee for the Scrutiny of Bills on Entry
and Search provisions in Commonwealth legislation, which concluded:
No evidence was put before the Committee to suggest that the
unions should not have a right to enter, but some dissatisfaction was expressed
with the way in which the current provisions have operated on some
occasions. Where practical difficulties
such as these arise, they are better addressed through a voluntary code of
practice developed between employers and employees rather than through
legislation.[55]
In our minority report to the Senate Employment, Workplace
Relations and Education References Committee report Beyond Cole- The future of the construction industry: Confrontation or
cooperation?, we rejected the Government's proposed provisions to right of
entry for the building and construction industry and recommended the following
instead:
- Applicants for right of entry permits to be
required to demonstrate a knowledge of the rights and obligations associated
with the permit;
- The Registry be requested to develop, in
consultation with union and employer bodies, a code of practice governing the
right of entry;
- Implement a two tiered approach where on serious
industrial issues or where there is dispute about the right of entry, an
independent third party, such as an inspector, is called to arbitrate the
matter.
- Increase penalties to right of entry provisions
under the WR Act 1996, to act as a deterrent.
The Democrats still hold that these would be sensible
improvements to the law, and the fourth dot-point above has already been
enacted by the Coalition/Democrats.
In 2004 via the Workplace Relations Amendment (Codifying
Contempt Offences) Bill, the Democrats
negotiated a threefold increase in penalties for abuse of the right of entry
system, albeit not to the much higher level the Government was seeking.
However higher penalties are useless unless the WRA is
policed and enforced.
We made a strong case for the Commonwealth Government to
provide for a national workplace regulatory body capable of enforcing the existing law. Most problems that occur in workplaces,
particularly with respect to right of entry, occur because of breaches of
existing statute, and the very inadequate enforcement of essentially sound
laws.
This bill before the Committee is another attempt to further
restrict the rights of all unions with respect to right of entry, for what
appears to be the purpose of preventing a relative few officials from a few
unions from continuing to abuse the system.
These new provisions will affect all unions, yet there is
little evidence that a widespread problem with respect to right of entry
exists. A few court cases identifying
particular problems are not evidence that the system is broken, and that the
whole union movement should face drastic change.
Industry groups representing industries that have a higher
incidence of militancy than other industries gave evidence. When the Committee Chair questioned the
Australian Industry Group (AiG) about hard evidence and to cite cases of misuse
of right of entry, AiG responded:
I would have to say
that I cannot cite particular cases. We
have within the AI Group what we call our BIZ Infoline, which is the equivalent
to a call centre for members to ring in. I would make the observation that right of
entry is a fairly significant issue
when one analyses the nature of the calls that come into the BIZ
Infoline. Just yesterday I got out some
statistics which would be very conservative, and that is that we have had about
350 or more contacts—354, I think it was—in the past 12 months just on the
right of entry issue. I
am not saying that that is evidence of misuse, but certainly it is evidence of
our member companies not properly understanding what the rights are and seeking
clarification. It does demonstrate that,
if nothing else, it is a significant issue that our members
are dealing with.[56]
The Department of Employment and Workplace Relations (DEWR)
provided evidence that:
The Office of the
Employment Advocate, over the period 1997 to 2004, dealt with 284 right of
entry matters. That works out to
about 35 'matters' a year out of probably many thousands of right of entry
activities.
Mr Andrew
Thomas from the Australian Rail, Tram and
Bus Industry Union (RTBU) gave evidence that his union had not had problems
with right of entry as described by the Government and Industry groups:
The RTBU’s submission
identifies that, over a period of three years, the percentage of permits
revoked was 0.007 of a per cent. No RTBU
official has ever had his or her permit revoked, nor has the RTBU been
embroiled in disputes involving a right of entry. We have not been involved in disputes within
the Commission that have not gone on to applications under section 285. I have been a union officer for roughly 20
years. I have never been denied the
right to enter a premise. I have never
been asked to leave a premise. I have
never been involved with a group of other unions and union officials who have
been asked to leave or have been denied entry to a premise.[57]
The Australian Chamber of Commerce and Industry (ACCI) gave
evidence that right of entry is not a widespread problem:
I think it is worth
remembering that, for many employers, they will never receive a right of entry
notice because they do not have any union members and unions are not active in
that particular sector. So we are
talking about a small proportion of the overall work force or of businesses for
whom right of entry is going to be an issue. It is going to be generally the unionised
sectors of the economy, but it does appear that there are niches where right of
entry is a serious issue—say, in building construction and manufacturing.[58]
During the inquiry into the Building
and Construction Industry, we heard evidence from the CFMEU that approximately
two thirds of the 392 breaches identified by the Cole Royal Commission were
industrial matters and that a significant number of these were related to right
of entry:
Of the two-thirds that
are industrial matters, I can point you to the fact that a significant number
involve the union failing to adhere precisely to the right of entry provisions.
One of the common reasons for finding
breaches—a whole litany of them against us—is that we failed to tell the
employer that we had come on site or that we did not come on site during the
prescribed lunchbreak.[59]
The Government Senators also acknowledge that the problems
are not wide spread:
This legislation....should be aimed squarely at a small number of
unions which have a record of abusing the system.[60]
I readily concede that there is irrefutable evidence that
abuses are occurring in a few industries, on behalf of a few unions, and by a
few union officials.
I am not against reasonable changes to the right of entry
provisions in the WRA, so long as they are targeted at affecting the behaviour
of those few who are abusing the system and so long as they do not
inadvertently tip the scale too much in the employers favour, thereby
preventing unions from communicating with union
members, taking up their concerns, monitoring compliance with the terms of
industrial instruments, being equipped to bargain effectively, able to service
members and able to recruit new members.
As I have argued before, it is vital for industrial
democracy and good workplace practice that search and entry provisions are
retained, but better practice is desirable.
Overriding state right of entry jurisdictions
In their submission to the inquiry the Government outlined
several reasons why they believe it is necessary for the federal right of entry
system to override the state right of entry law.
The Government believes that, as far as possible, a single statutory
scheme for RoE should apply to all workplaces. At present, however, some workplaces are
subject to a complex regulatory web of differing RoE standards under concurrent
federal and state industrial laws and instruments. Companies with premises in more than one state
may therefore have to comply with multiple and different state and federal
laws.
The Government is concerned at the scope for confusion and
uncertainty resulting from the regulatory overlap. Unions, employers and employees will benefit
from having a single scheme that sets out their rights and obligations. Additionally, the Bill
will prevent this uncertainty being exploited by union officials to enter the
workplace for proper purposes and subsequently engage in inappropriate or other
wise unlawful behaviour.[61]
The Government cited a case last year in NSW in Boral Masonry Ltd v CFMEU, where the
CFMEU had no rights to enter under federal jurisdiction, but sought to enter
via a state division of the CFMEU, under the state jurisdiction.[62]
Another recent example was in Western
Australia where the unions used state jurisdiction to
enter premises where all employees were under federal AWAs.
The Government's submission highlighted several other
problems:
Union officials use State laws to circumvent federal RoE
obligations by claiming to enter workplaces under their state powers and
subsequently engaging in conduct that would otherwise be in breach of federal
obligations.
Even where federal permits have been revoked, union officials
may still retain rights of entry under state law. This undermines the effectiveness of the
compliance mechanisms in the federal right of entry system.[63]
The Democrats support the idea of a unitary IR system for
productivity, common rights and efficiency reasons. Our preferred method would be for the States,
like Victoria
did in 1997, to refer their powers to the Commonwealth, not just with respect
to right of entry, but their entire IR system.
The Democrats believe that, the jurisdiction shopping and
confusion over which right of entry jurisdiction operates in a workplace, which
currently occurs, should be addressed.
I strongly support ending dual jurisdictions on one
worksite, and support the bill's overall intentions in this regard. The important thing is that either state or
federal right of entry should prevail in workplace right of entry, not both.
Agreement making
The Bill proposes to prohibit
the certification of agreements containing right of entry provisions. The ACTU submitted that:
It is inconsistent with the scheme of the Act, which seeks to
encourage employers and employees to determine matters affecting the
relationship between them at the workplace enterprise level to impose this
restriction upon the subject matter which may be the subject of bargaining. It is incongruous that the Government opposes
applications to amend the award safety net which are clearly supported on
strong policy grounds, such as in the recent Family Provisions Case, on grounds
that these matters are best left to bargaining, yet will intrude on the
parties' agreement making to frustrate collective bargaining.[64]
The ACTU also noted that this issue was neither discussed nor
determined in the High Court decision on Electrolux
Home products Pty Ltd v Australian Workers Union, and to date the issue has been determined
differently in a number of Commission cases.
The Committee also heard evidence that this provision may
force employers and unions to go outside the Workplace Relations system, and
make common law agreements.
I welcome the Government Senators view (at 1.21 of the
majority report) that certified agreements should be able to include right of
entry provisions. The Democrats do not
support the prohibition of right of entry provisions in agreements.
Fit and proper test
The Democrats agree with the concerns raised by Government senators
at paragraph 1.23 of the majority report with respect to imprecise definitions
of 'fit and proper person' and 'appropriate training'.
Concerns were raised at the hearing that the terms outlined
at section 280F were too broad and that union officials could be denied a
permit for a minor infringement.
As we have said in the past all that is necessary is that
the permit holder in some way be able to demonstrate knowledge of the rights
and obligations associated with the permit.
Obviously appearing before a Registrar to 'pass a test' would be too
onerous and time consuming for all. I
recommend the following:
- that the Registrar develop in consultation with
unions and employer bodies a right of entry code of conduct, which will be
reproduced into a booklet for distribution to employers and unions;
- that applicants for right of entry permits certify
that they have read and understood the right of entry code of conduct and have
attended a registered organisation-provided training session; and
- that the union secretary be required to also
certify via the right of entry permit application that the applicant has
undergone training on right of entry and has read and understood the code of
conduct.
I further recommend that employers should be given a
standard card or information sheet when right of entry is being exercised, that
reminds them what their rights and
obligations are. This too should be
developed by the Registrar.
Written notice and evidence
The Department of Workplace Relations refers to anecdotal
evidence of unions entering workplaces, nominally for investigative purposes,
despite having no actual evidence of any breach for the purposes of engaging in
a 'fishing expedition' in the hope of uncovering an actual breach.
However, the FSU argued that the new provisions would lead
to a circular situation that would effectively negate a right of entry as an
investigative tool:
One of the principal reasons for conducting an investigation is
to substantiate a suspicion. Suspected
breaches are often based on verbal advice from members who do not wish to be
identified by putting their concerns in writing or from documents that have
been supplied confidentially.
The unions play a pivotal role in monitoring compliance with
the
terms of industrial instruments, and have been responsible for
recovering millions of dollars of under paid wages and entitlements, and tax
and superannuation avoidance. For
example:
The building industry
suffers from chronic under/non-payment of workers entitlements. A great deal of the union’s time and
resources is devoted to recovering these monies. The following are gross figures for the sum
of entitlements recovered on behalf of workers by our corresponding State
Branches in recent times.