With new Fair Work Act provisions around Workplace Delegates’ rights, it is timely to take a closer look at these rights and how they work.

Words Donna Mogg, Fair Farms

EMPLOYEES have a legal right to belong to a union. While many growers may be unfamiliar with dealing directly with a union, it’s important to understand the rules around workplace delegates and unions more generally. Through the Fair Farms Standards, much emphasis is placed on worker consultation – not only in those areas where it’s required (WHS, change management), but as a positive communication and engagement tool.

Workplace delegates play an important role in your workplace. They can provide a conduit for worker input, can assist with communications and can help make decisions impacting workers. So, it’s important to understand their role, and their rights under law, in order to make the most out of the relationship. So let’s get into the weeds a little … the employee and who may challenge the reasoning or enquiries of the employer. The advocate takes on a representative role and can make arguments and hold discussions on behalf of the employee.

“ … It’s illegal for a person to pressure another person about their choice to join or not join a union ”

If an employee requests to bring a union representative to a formal meeting, it is important for both the employer and the employee to clarify the role of the union representative as support person before the meeting begins, and to remind them of their role if they deviate from it during the meeting.

An employer cannot unreasonably refuse an employee’s request for a support person, as this may result in an unfair dismissal claim. However, anyone involved in the incident would not be appropriate – they may be called as a witness.

“ Set up a consultation framework with your workers, whether formal or informal – and use it. Ensure your consultation is: authentic, regular, targeted and two-way ”

Union Right of Entry

Union officials have a right to enter a workplace or business premises to investigate suspected contraventions of the Fair Work Act, Award or Agreement, or to hold discussions with employees. To exercise their right of entry a union official must have a valid right of entry permit and meet other entry requirements. State and territory WHS laws also provide rights to enter workplaces for WHS purposes and set out the rules for getting a WHS entry permit and exercising this type of entry.

Investigating Suspected Breaches

Union officials have a right to enter workplace or business premises to investigate suspected contraventions of the Fair Work Act, Award or Agreement, or to hold discussions with employees. Permit holders entering a workplace must provide a written entry notice to the site occupier and any other affected employers at least 24 hours, but not more than 14 days, before their visit. The Commission can give permit holders an exemption certificate in some circumstances, which allows them to enter without notice. A permit holder who has entered a premises also needs to produce the entry notice (or exemption certificate) as well as their entry permit on request by the site occupier or an affected employer. Unions must have a WHS entry permit to give written notice to an occupier of a building or premises. Under the WHS Act, they may wish to enter a workplace to:

• Inspect or make copies of documents
• Consult and advise workers.

In these cases, they must give written notice no less than 24 hours and no more than 14 days before they wish to visit. If the giving of notice is unreasonable, notice must be provided as soon as possible after.

While on the Premises

While on the premises to investigate a suspected contravention, the permit holder (union) may do the following:

• Inspect any work, process or object relevant to the suspected contravention and interview any person about the suspected contravention: who agrees to be interviewed; whose industrial interests the union is entitled to represent and who requires copies of certain documents be made available.

• Allow the permit holder to inspect, and make copies of, any record or document that is directly relevant to the suspected contravention, and that : – Is kept on the premises, or – Is accessible from a computer kept on the premises.

Conduct of the Parties

The ‘inappropriate manner’ extension is intended to cover a wider range of conduct than intentionally hindering or obstructing. It may include, depending on the circumstances, swearing, making offensive, racist, sexist or homophobic comments or acting in a physically aggressive or intimidatory manner towards a permit holder.

• It’s illegal under the Fair Work Act 2009 (Cth) for an employer to take adverse action against