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11 June 2009 8:45am

From 1 July union officials will have the power to enter premises on suspicion of a workplace breach regardless of whether or not the employees are union members or covered by a union-binding agreement, says Freehills partner Anthony Longland.

This is the “most significant” change to right-of-entry rules – under the Fair Work Act 2009 (FWA) – coming into effect next month, Longland told HR Daily.

But even then, he notes, unions will only be entitled to enter premises where the work is “relevant”, or where there are potential members.

And, as with the soon-to-be-repealed legislation, officials will need to clearly articulate the nature of the suspected breach before they are granted entry.

Indeed, most of the new right-of-entry rules either mirror or expand on the provisions of the Workplace Relations Act 1996, Longland says.

For instance, section 483AA of the FWA – which allows union officials, or permit-holders, to inspect records relating to non-union members – has received “an inordinate amount of press”, but was tempered after Family First Senator Steve Fielding “took exception”, and now closely resembles section 748(9) of the old Act.

From July, permit holders will only be allowed to access such information with the consent of the relevant workers, or by an order of the regulatory body (which will be Fair Work Australia), as is currently the case.

Whether the new provision is interpreted or applied differently from July will depend on the “view” of Fair Work Australia, Longland says.

“But my sense is it will be a non-issue.”

Reasonable and unreasonable requests
Requirements or controls that employers can impose on permit-holders entering premises will also change little in July, Longland says.

However, the new legislation (see section 492) clarifies what constitutes an “unreasonable” employer request.

Under the FWA, the permit holder will still be required to comply with a “reasonable” request by the employer to hold discussions in a specific area or room, and take a particular route to that area.

But the request will be considered unreasonable if the area isn’t “fit for the purpose of conducting the interviews”, or is inaccessible, or if the request is made with the intention of intimidating or discouraging the persons involved in the talks.

As with the current legislation, the regulatory body will have the authority to deal with a dispute over the reasonableness of a request.

Misuse of entry rights
Rules relating to the “misuse” of entry rights will also be much the same, Longland says.

According to section 508, Fair Work Australia will be able to revoke or suspend entry permits if it believes that an official is exercising his or her right to enter with the intention of hindering, obstructing or otherwise harassing an occupier or employer.

Harassment, Longland says, could include putting pressure on employees to partake in talks.

Employers can make complaints to Fair Work Australia or an inspector, Longland says, and should be satisfied, he notes, with the protection the legislation offers them.

Vulnerable singled out
A number of right-of-entry provisions were added to the legislation to strengthen protections for outworkers, Longland says.

He says that textiles, clothing and footwear industries employ large numbers of non-English-speaking workers, who are particularly vulnerable to exploitation.

“There was a need to single them out and provide greater protection,” he says.

Among a range of special provisions under the FWA, union officials will be able to enter outworker premises to investigate suspected contraventions without giving advance notice.

For all the new right-of-entry provisions, see sections 478 to 521 of the Fair Work Act 2009.

http://www.hrdaily.com.au/nl06_news_selected.php?act=2&nav=1&selkey=1181&utm_source=daily+email&utm_medium=email&utm_campaign=Daily+Email+Article+Link

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