Introduction

On 27 June 2013 the Federal Senate passed the Fair Work Amendment Act 2013, an Act that has had many twists and turns, with various items being dropped and reinstated in the Bill as the Government attempted to get the numbers to ensure passage through the lower house.

One of the more contentious of those changes is in relation to Right of Entry, an aspect that was only re-instated in the bill at the last minute with the support of the Greens and independents.

The changes, if they come into effect, will:

  • allow unions to hold meetings in lunch-rooms;
  • require employers in “remote areas” to provide officials with transport and/or accommodation; and
  • expressly grant the Fair Work Commission (FWC) powers to deal with certain entry disputes, including disputes over excessive entries.

Meetings in lunchrooms

Currently, if an official exercises right of entry onto any premises to hold discussions or interviews, the occupier of those premises can “request” that the official hold those discussions or interviews in any place of the occupier’s choosing1,. The official must comply with that request, provided it is “reasonable”.

Practically, this has led to many disputes between union officials, who often want to use a lunch-room, and employers, who often “request” that some other location be used. The new amendments have finally resolved that dispute, although not in a way that will be to most employers’ liking.

Under the new provisions, a union official exercising right of entry can automatically use the employee’s lunch-room for any entry discussions or interviews. The only limits on this right are:

  • the lunchroom must be provided by the “occupier” of the premises for the purpose of taking breaks;
  • at least one of the people being interviewed or met with must ordinarily take their breaks in the room being entered; and
  • the official must still comply with the other limitation of their right of entry (so they cannot, for example, speak to employees that are not covered by the official’s union).

Remote areas – transport and accommodation

The new amendments expressly provide that employers in “remote areas” assist officials with both transport and accommodation when exercising right of entry. The obligations for transport and accommodation are very similar, but are technically distinct.

The obligation to provide transport only arises where the premises are “not reasonably accessible”. In that case, the “occupier” and the union (or the union official) must agree on a “transport arrangement” in which the official is given assistance in reaching the site.

The obligation to provide accommodation is similar, in that it only applies where accommodation is “not reasonably available”, and that, where the obligation applies, the “occupier” and union (or union official) must agree on an “accommodation arrangement” in which the union is provided with accommodation.

The occupier can charge the union or the official a fee for transport and/or accommodation, but the fee cannot be more than is necessary to cover costs. Charging more than necessary is an offence, attracting a penalty, per breach, of up to $51,000 per breach for corporations, and up to $10,200 for individuals.

The union’s rights to transport and accommodation are subject to a number of limitations, which include:

  • the right only exists if providing accommodation or transport would not cause the occupier undue inconvenience;
  • the request must be made a reasonable time before the entry; and
  • the official must comply with their normal right of entry obligations (such as the obligation to not hinder or obstruct others) while using the accommodation or transport.

FWC has the express power of being able to settle any disputes over whether premises are “reasonably accessible”, whether accommodation is “reasonably available”, and whether providing transport and/or accommodation would cause “undue inconvenience”.

FWC and Right of Entry Disputes – excessive entries

Finally, the amendments introduce a new section 505A, which states that FWC may deal with disputes about the frequency with which a permit holder enters premises.

Under section 505A, FWC may issue orders against a union official, or even an entire union, if FWC is satisfied that the official, or representatives of the official’s union, enter so frequently that it requires “an unreasonable diversion of the occupier’s critical resources”.

The practical effect of this addition remains to be seen. FWC already had powers under section 505 to deal with disputes about the operation of the Right of Entry provisions, so FWC already had power to deal with disputes about the frequency of exercise of rights of entry. On the other hand, the amendments now specifically give occupiers and employers a right of redress should a particular permit holder or union exercise entry so frequently as to be oppressive.

It would have been preferable if the new section 505A was broader, in that the new section 505A only deals with the number of entries by a permit holder, as opposed to the number of entry notices. A common complaint of employers is receiving numerous entry notices from union officials over a number of days, of which only a few will be actioned, but not knowing which notices will be actioned and therefore needing to prepare for all of them.

Other changes to the Fair Work Act

The amending Act will make other amendments, apart from changes to Right of Entry. These changes include:

  • introducing a new bullying jurisdiction for FWC (commencing 1 January 2014);
  • expanding the total amount of concurrent parental leave available to parents from 3 weeks to 8 weeks;
  • dramatically expanding the category of workers who can request flexible working arrangements to, for example, parents of any school age child;
  • including a list of potential “reasonable business grounds” that an employer  may use for refusing a request for a flexible working arrangement;
  • requiring all modern awards and enterprise agreements from 1 January 2014 onwards to require employers to consult with employees about  proposed changes to rosters or ordinary hours of work;
  • allowing pregnant employees who are not otherwise entitled to parental leave to access “unpaid no safe job leave”, if it is unsafe for them to continue to work in their current position, and no safe jobs are available;
  • requiring modern awards from 1 January 2014 to take into account the need to provide employees with additional remuneration for overtime, shifts, and other irregular or unsocial hours;
  • allowing FWC to make a recommendation or express an opinion at the end of a conciliation conference; and
  • granting FWC the power to, with the consent of the parties, arbitrate adverse action claims that involve dismissal and unlawful termination disputes (commencing 1 January 2014)

While this article focuses on the changes to Right of Entry, you can read our previous article on the new bullying jurisdiction here

Critical issues for Employers

The proposed amendments in relation to right of entry will not commence until 1 January 2014. The Coalition has stated that should they win government at the September election, they will limit the current right of entry regime, which includes reversing the new amendments in relation to providing accommodation or transport.

However, this does not mean that employers can afford to be complacent. Even if the Coalition gains power and reverses the changes, there is no guarantee that this will occur prior to 1 January 2014.

Employers can expect that if there is any delay in revising these provisions, unions will be quick to take advantage of these arrangements while they last. This means that employers should:

  • consider which lunch rooms are used by different areas of their workforce, which unions could enter those lunch rooms, and what measures can be put in place to lawfully manage to whom union officials speak;
  • consider whether management or supervisors can or should change their regular lunch rooms as a result of the potential for union meetings;
  • consider whether they have workers engaged on a site that is “not readily accessible” or where accommodation is “not reasonably available”;
  • explore their options in relation to transport and accommodation for union officials, including whether transport can be used to avoid the need to provide accommodation;
  • if accommodation will be necessary, consider what accommodation is available for union officials, and what measures can or should be taken to monitor their activities outside of normal working hours;
  • consider what fee should be charged for providing any transport or accommodation, remembering that it will be a civil offence to charge a fee that is higher than the cost incurred; and
  • consider whether they can use the new section 505A as a means to address excessive entries by an official, or a number of officials from the same union.