Chapter 11 - Schedule 13 - Right of entry
The Chapter examines the Bill’s proposed
amendments to the right of entry provisions of the WR Act. The proposed changes
attracted attention from many witnesses, particularly unions.
Outline of proposed amendments
This Schedule introduces new requirements for
entry to places of employment by union officials, consistent with the principal
that unions have a role in representing employees, but which does not extend to
allowing interference with the operation of businesses.
Currently, a holder or a permit under the WR Act
is authorised to enter premises, on 24 hours notice, in order to hold
discussions with union members, or employees who are eligible to be members.
Visits may only take place during meal breaks or other breaks.
Under the proposed amendments, a union official
may enter a workplace only upon written invitation from an employee who is a
union member. Provision is now made to ensure the confidentiality of the
employee issuing the invitation. The Commission has slightly increased powers
to revoke a permit given to a union official if there is evidence that the
powers of entry are being abused.
Abuse of right of entry provisions
In support of these amendments the Master
Builders’ Association of Western Australia (MBAWA) supplied written evidence
that on occasions the Construction, Forestry, Mining and Energy Union had
advised employers of their intention to send up to ten named union officials to
building construction sites, in their view, for the purposes of intimidating
builders and their employees and sub-contractors. The MBAWA reported that six
union officials who had forced their way onto a building site for the purpose
of holding a meeting during working hours had been charged with trespass.
Matters outlined in the submission of the MBAWA
were raised with the organisation by members of the Committee when the MBAWA
appeared at the hearings in Perth. The MBAWA told the Committee that
circumstances occasionally arose when police had to be called to building sites
to deal with union officials who abused their right of entry; that the matter
could not usually be resolved by any approach to the Industrial Commission
because of unacceptable time delays. Recourse to civil law was necessary in
order to dispel the heat from confrontations.
Since the commencement of the WR Act the Office
of the Employment Advocate has received 55 complaints and inquiries in relation
to right of entry provisions. All the complaints were from employers. The
overwhelming majority of complaints were resolved without recourse to legal
Although only one case has proceeded to court, the Department’s submission
indicates that the problem of abuse of entry permits is probably worse that
collected data indicates.
Anecdotal evidence from the Office of the Employment Advocate suggests that
some union officials are entering building sites on ‘fishing expeditions’.
Union opposition to the amended provisions of
the Act is based on two major premises: that employees may not understand
awards and conditions sufficiently well to know when to use their rights to
call in a union official; and that there is insufficient enforced compliance of
workers’ rights in the absence of union involvement.
The Shop Distributive and Allied Employees Union
argues in its submission that while the current law at least ensures that right
of entry for the purpose of having discussions with employees is conducted in a
civil and reasonable manner, the proposed amendments will have the effect of
significantly restricting right of entry because of the written invitation
provision. The SDA considers this to be a potential invitation for management
intimidation as employers will know that one of their employees has a
grievance. A union visit may be seen a threatening act rather than a routine
and acceptable tradition in the Australian workplace.
Another submission claimed that the proposal to
require a written invitation was particularly unfair to casual, part-time,
young, female and NESB workers.
Some witnesses criticised the amendment
requiring that meetings be held in places designated by the management
suggesting that such venues may not offer sufficient privacy and may be under
the surveillance of employers. The International Centre for Trade Union Rights
(ICTUR) has submitted that the ILO has recognised that access to the workplace
must involve ‘due respect for the rights and property of management’, but that
an element of balance is required. The ICTUR argued that the provisions of this
Bill are unbalanced, being excessively geared in favour of employers and
Several case studies alleging intimidation were
cited in evidence presented in a number of submissions. The Committee majority,
however, notes that unscrupulous, intimidatory and illegal practices may be
found on both sides of the workplace divide.
A majority of the Committee further notes that
the submission from the Australian Chamber of Commerce and Industry advocated
more stringent conditions on right of entry than are provided for in this Bill,
including a restriction on the number of visits that can be made to a work site
and safeguards against the improper use of invitations to organisations. The Committee majority believes
that there are adequate safeguards for employer rights in this Schedule.
A majority of the Committee recommends
the provisions of Schedule 13 be enacted.
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