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17:45 AEDT Thu Jun 7 2012
A fall in the number of strikes in Australia proves the Fair Work Act does not need to be overhauled, according to a state union.

Commenting on the latest Australian Bureau of Statistics figures showing a national fall in the number of days lost to industrial disputes over the past three quarters, UnionsWA secretary Simone McGurk said it proved the Fair Work Act was effective.

“This is a reality check for the campaign of myths by some employers who wrongly claim that Australia’s industrial system needs radical change in favour of employers,” Ms McGurk said in a statement on Thursday.

The union secretary said March quarter figures showed the number of days lost to industrial disputes in WA fell to 300, down from 2,300 in the corresponding period last year, and 5,900 in December 2011.

“This is one of the lowest recorded levels of industrial disputes in WA,” Ms McGurk said.

“If we look at days lost through disputes in WA over the full years to March 2010, 2011 and 2012, these have fallen from 25,500 to 16,700 and now 8,100.”

Ms McGurk said the trend was Australia-wide.

“Nationally, days lost due to industrial disputes have fallen for three consecutive quarters.”

While the Fair Work Act was “working”, Ms McGurk said it still needed to be finetuned.

“Unions are now required to give notice of industrial action, which is fair enough,” she said.

“However, there is no similar requirement for employers to give notice if they lock out staff, as was the case with the recent Qantas dispute.”

May 18, 2012

...BHP chairman Jac Nasser. Photo: Michael Clayton-Jones

BHP Billiton has one key goal in demanding reform of industrial relations law: it wants its managers to be free to manage the business as they see fit.

The issue is not primarily about wages, or productivity, but power. BHP wants to get the unions out of its decision making.

In the wake of BHP chairman Jac Nasser’s broadside on Wednesday against the Fair Work Act, the mining tax and Australia’s high-cost economy, Employment Minister Bill Shorten hit back, blaming BHP itself for its problems.

”If a company is struggling to persuade its long-standing workforce of the case for change, then perhaps the problem isn’t just the law, maybe it’s the way the case is being put, and the engagement of the workforce,” Mr Shorten said.

The ACTU Congress condemned ”BHP’s pursuit of safety deregulation, that would transfer vital safety roles from qualified workers on the job to management”. It declared support for the 3500 coalmine workers in Queensland’s Bowen Basin in their 18-month campaign of industrial action against the BHP Billiton Mitsubishi Alliance (BMA).

BHP sees it differently. The list of complaints in its submission to the review of the Fair Work Act is mind-numbing in detail. Most relate to just one of its five key principles of industrial relations: ”management’s retention of the ultimate responsibility and right to run the business – with employee consultation not elevated to a right of veto over operational decision making”.

”BHP Billiton contends that the legitimate sphere of enterprise agreements is entitlements for employees in respect of their wages and conditions of employment,” it says. The Fair Work Act, it argues, goes beyond that, to allow ”interference with managerial decision making”.

The submission was lodged in February, two months before BMA took the drastic step of closing its Norwich Park coalmine, in part due to industrial action led by the Construction, Forestry and Mining Employees Union over a proposed enterprise bargaining agreement.

The agreement, which would cover the mines operated by the BMA in central Queensland, offers annual wage rises of 5 per cent for the next three years, plus a production bonus of $15,000 a year. It was rejected overwhelmingly by workers at meetings last October. But a postal ballot approved by Fair Work Australia is now under way to seek a second opinion from workers.

In its submission, BHP lists 18 union claims in the dispute that it calls ”beyond what is reasonable or necessary for the protection of employees”.

They include union demands that:

■Delegates be paid for time off to deal with member issues, attend union meetings, including preparation time for meeting conveners.

■Delegates be able to use mobile phones at all times, regardless of safety rules.

■Employees not be suspended during investigations into their conduct, or disciplined for breaching BHP’s code of conduct.

■Contractors and labour hire workers – now most of BHP’s workforce – be paid the same as the minority of employees.

The submission goes well beyond that. BHP wants to be free to conclude individual agreements with high-income employees (such as miners). It wants to tighten the rules on pattern bargaining, union officials’ right of entry, union representation and a dozen other issues.

The review, headed by Reserve Bank board member John Edwards – who 20 years ago was point man for then prime minister Paul Keating in the reforms to introduce enterprise bargaining – will hand its report to Mr Shorten by May 31.

Its terms of reference, however, aim to limit it to reporting whether the act is working as intended.

Tim Colebatch is economics editor.

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Industrial action – can happen anytime, any place, even in jurisdictions not covered by the Fair Work Act. Believe it or not.
May 17, 2012 – 11:05AM 

The topless dancers at Paris's famed Crazy Horse night club have walked off the job.The topless dancers at Paris’s famed Crazy Horse night club have walked off the job. Photo: AFP

Topless dancers at the renowned Crazy Horse night club in Paris have gone on strike, saying they are not being paid enough to take the shirts off their backs.

The Crazy Horse, one of the most popular establishments of its kind in the world, said on Wednesday it was forced to cancel performances on Tuesday and again on Wednesday for the first time since the cabaret was created in 1951.

The night club, which declined to give details on salary demands or current wages, said in a statement that it had always taken the wellbeing of its artists very seriously and that talks were continuing to resolve the dispute.

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“It’s an exceptional place which has the specialty of presenting a fully naked show,” Suzanne, one of the dancers, told RTL radio.

“What’s wrong is that we are asked to work 24 days per month for a pay that is worse than miserable,” she said.

The cabaret’s management said it was doing everything possible to reopen.

“Everything is done to give the Crazy Horse show back to its public,” it said.

In the meantime, clients with tickets for a show on Tuesday or Wednesday will be offered a new date or a refund, a spokeswoman said.

The Crazy Horse, Lido and Moulin Rouge – where topless dancers perform in carefully orchestrated shows – have been top attractions for generations of tourists and locals.


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May 3, 2012 – 5:11PM

The NSW Premier, Barry O’Farrell, says his government will seek to pass urgent legislation to ensure an administrator can be appointed to the NSW branch of the Health Services Union after doubts were raised about the Federal Court’s jurisdiction to make orders relating to a state union.

But the Federal Minister for Employment and Workplaces Relations, Bill Shorten, said the proposed legislation could prolong the factional dispute plaguing the HSU East branch, which is haemorrhaging hundreds of members a day.

As the state and federal government argued today over how to handle the scandal-plagued union, the Commonwealth Director of Public Prosecutions announced it would forward a report from Fair Work Australia into financial impropriety in the HSU’s national office to police.

Mr Shorten has asked the Federal Court to appoint an administrator to take over the day-to-day functions of the HSU East and to declare all offices vacant.

He said he has received legal advice that the offices of the NSW Union would be similarly vacated.

However, Federal Court judge Geoffrey Flick questioned the jurisdiction of the court to take action regarding a NSW organisation.

During a hearing this morning Justice Flick said a federal minister had not made such an application “in 100 years”.

Under the leadership of the HSU acting national president, Chris Brown, six branches of the HSU have also applied for an administrator to be appointed to the HSU East branch.

The court heard the jurisdictional issue could be resolved by the minister intervening in this application, rather than initiating his own.

Mark Irving, for Mr Brown, said the branch had ceased to function effectively, evidenced by the mass resignations and harassment and intimidation of members and the disruption of meetings.

Shortly after the hearing was adjourned, Mr O’Farrell told the NSW Parliament he did not want a “legal technicality to stop the appointment of an administration to a union that so desperately and badly needs one”.

In question time, Mr O’Farrell said the government would introduce urgent legislation to allow “an administrator proposed by the NSW government under NSW law to a NSW-registered union”.

The NSW Finance Minister, Greg Pearce, criticised Mr Shorten for not consulting him before “significantly intrud[ing] into the NSW industrial relations jurisdiction”.

In response, Mr Shorten said he welcomed Mr O’Farrell’s “belated support” for an administrator but stood by his decision to launch action in the Federal Court.

Justice Flick ordered the parties enter into mediation. If an agreement on an administration scheme is not reached, he will preside over a three-week hearing beginning on June 5.

He said the dispute should be heard as quickly as possible, given the damage being done to the union.

Earlier, the acting national secretary of the HSU, Chris Brown, said the branches had told the court that the East branch, covering NSW and parts of Victoria, was “dysfunctional”.

Outside the court, Mr Brown said if the application failed, he feared the other branches would withdraw from the HSU, which would spell the end of the union.

“If the application doesn’t work there will be so much reputational damage that it’s probably impossible to recover.

“If this fails, we’re probably pretty close to saying game over.”

An administrator would run the union from day to day in matters including finances. All elected positions would be declared vacant.

Justice Flick is also hearing a legal challenge by the National Secretary of the HSU, Kathy Jackson, to the voting entitlements of salaried members of HSU East.

She alleges up to 20 of the 70 members of the HSU East branch are not entitled to vote at union council meetings.

Justice Flick said he feared that hearing could become futile if the HSU East branch was placed into administration.

He said he was inclined to defer Ms Jackson’s case until the question of administration was heard.

Outside the court, Ms Jackson said she would not enter mediation with Mr Brown, despite the court order.

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May 3, 2012

grfdeChef Michael Bacash in his South Yarra restaurant: ”Why is the work you do on a Sunday so much more expensive than the work you do on a Wednesday?” Photo: Angela Wylie

RESTAURANT owners and caterers have launched a bid with the workplace umpire to effectively cut weekend penalty rates for hospitality staff.

Restaurant and Catering Australia represents 7000 hospitality businesses around the country, and says penalties are crippling the industry and bankrupting many restaurants.

But the union representing the sector argues the bid is an attempt to impose ”poverty” wages on already low-paid workers.

Current laws require restaurant owners to pay permanent staff time-and-a-quarter on Saturdays and time-and-a-half on Sundays. Restaurant and Catering Australia has made an application to change the Restaurant Industry Award.

It wants penalty rates paid to restaurant workers only if they have already worked five consecutive days. A sixth day of work would be paid at time-and-a-quarter, and a seventh time-and-a-half.

Casuals, who make up more than half of the employees in hospitality and work more on weekends, would still get 25 per cent extra on all seven days.

The group’s submission is part of a wider review of awards being undertaken by Fair Work Australia. Restaurant and Catering Australia chief executive John Hart said penalty rates were shutting down restaurants.

Among 16 businesses to sign up to the application is Matteo Pignatelli, who runs North Fitzroy’s Matteo’s. ”We don’t want them to abolish penalty rates, that’s not our agenda at all,” he said. But he said it had become increasingly tough in the industry.

Michael Bacash, who runs a South Yarra seafood restaurant and has not signed up to the application, said there should be recognition that weekend work had changed. ”Nobody is suggesting people should get underpaid, but why is the work you do on a Sunday so much more expensive than the work you do on a Wednesday?”

But Louise Tarrant, national secretary of union United Voice, said businesses could not be viable ”off the back of poverty wages”. She said penalty rates had been in place for decades in Australia for the sector, and should remain.

”Reliable and professional staff can’t come at minimum wages in a sector that has unsociable hours and physically demanding jobs,” she said.

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Ben Schneiders
June 30, 2009

UNIONS expect a new era in industrial relations and a more conciliatory relationship with employers from tomorrow as they seek to take advantage of new laws that finally consign WorkChoices to history.

ACTU secretary Jeff Lawrence said yesterday unions would seek to “strategically” take advantage of Labor’s Fair Work laws and the improved bargaining rights and protections provided to workers.

He said it was a good day for workers and unions would “exploit” the laws to the maximum.

Their introduction follows a long union-led campaign against WorkChoices that was regarded as an important factor in the election of the Rudd Government.

Mr Lawrence said unions would test important elements of the new laws such as the requirement that parties bargain in good faith.

Companies such as Cochlear, which he said had sought to bypass unions in talks, would be targeted.

Mr Lawrence said the ability of unions to grow would depend on how well they targeted particular industries and employers using the new laws. “New industrial legislation doesn’t mean unions automatically grow.”

Victorian Employers’ Chamber of Commerce and Industry workplace relations head Alex Marriott said smaller businesses were likely to face the biggest challenges from the new laws.

She said the reintroduction of unfair dismissal laws for businesses with fewer than 100 staff would add to pressures and costs for business.

A recent poll conducted for the VECCI found that 70 per cent of respondents agreed with the proposition that “small business employers need the ability to sack workers who are not pulling their weight”.

Construction, Forestry, Mining and Energy Union national secretary John Sutton said the new laws were a step forward in some areas but kept some of the restrictions on unions and bargaining from WorkChoices.

“The Fair Work Act and other pieces of industrial legislation fall short of the trade union movement’s legitimate expectations,” he said.

A government-funded program has offered $12.9 million to employer groups and unions to educate their members about the new laws. Most of the money is allocated to business groups, with about $2.5 million going to the ACTU.

01 July 2009 8:16am

Elements of the new workplace relations legislation – including new unfair dismissal, right of entry and bargaining laws – come into effect today.

In this article, HR Daily provides an update and links to recent articles that tell employers all they need to know about the Fair Work Act 2009.

Unfair dismissals
As of today employees with more than six months’ service with large employers (>15 full-time workers) or 12 months’ service with smaller organisations will be entitled to make unfair dismissal claims.

Employees will have 14 days to lodge claims in the event of a dismissal.

Deacons partner Stuart Kollmorgen says that redundancies will be illegal if redeployment options go unexplored.

Good faith bargaining
Business stakeholders are now obliged to bargain in good faith.

Throughout the bargaining process, all parties must attend and participate in meetings at “reasonable times”, respond to proposals in a “timely manner” and disclose relevant, non-confidential information.

Adelaide University Professor of Law, Andrew Stewart, says that employers must determine the kind of information unions are likely to ask for and what they can claim to be confidential.

Freehills partner Chris Gardner says that there are numerous grey areas in the new bargaining laws that must be tested before employers can be assured of clarity.

But CoSolve director Clive Thompson says that the good faith laws could herald a new era of productive bargaining if stakeholders let go of the traditional adversarial approach.

From January next year, collective agreements will have to pass the better off overall test, or the BOOT, before being approved by Fair Work Australia. Under the current rules, the Workplace Authority need only be satisfied that classes of employees won’t experience a reduction in their overall terms and conditions.

According to Kollmorgen, the BOOT could mean that employers are faced with the onerous task of proving that every employee is advantaged under a new agreement. He says that some employers are taking steps to have new agreements approved as soon as possible to avoid the uncertainty that is likely to surround the test from 1 January.

Right of entry
As of today, 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.

However, Freehills partner Anthony Longland notes that officials can only enter premises after clearly articulating the nature of the suspected breach and where employees are “potential” members.

Transfer of business
The definition of “transfer of business” expands significantly today. For the purposes of the Act, a transfer will occur when an employee is engaged by a new employer within three months of a termination where the new and old employers have at least “one connection” and the work the employee performs is “substantially the same”.

Deacons partner Sally Woodward says that this might give rise to the “difficult situation of a new employer potentially being bound by different enterprise agreements in relation to employees performing the same work.”

She says that HR must conduct a thorough due diligence process to identify potential conflicts (where workers on one agreement perceive workers on another to be at an advantage), and to determine the circumstances where they can apply to Fair Work Australia for permission to discontinue old agreements.

And the rest?
Other elements of the Fair Work Act, such as the National Employment Standards and modern awards, will come into effect on 1 January 2010.

More legislation news
For more Fair Work information and news, click here and follow the “legislation” link.

Alternatively, enter key words in the HR Daily search engine, or visit HR Daily’s associate publication, Workplace Express.

Also, see the Federal Government’s new online entry point for the IR system: Fair Work Online.

18 June 2009 6:37am

With less than a fortnight to go before the national workplace relations changes begin to take effect, all recruiters must ensure they’re aware of their responsibilities and obligations. Here, Deacons partner Stuart Kollmorgen highlights the key issues.

Unfair dismissals
Under the Fair Work Act, parts of which take effect on 1 July, a larger number of employees – including on-hired workers – will be eligible to bring unfair dismissal claims against their employer.

Currently, only “large employers” (employing 100 workers or more) face these claims, but the threshold is being reduced to 15 employees. The minimum employment period before bringing a claim is six months for large employers (15+ workers) and 12 months for small ones.

When making employees redundant under the new laws, an area Kollmorgen says is “obviously critical at the moment”, there are a couple of extra tests that employers will need to satisfy in order for a dismissal to be fair.

The employer has to consider redeployment options within the company and associated entities, he says, which could include host companies.

An employer also has to comply with all consultation obligations under awards or collective agreements with employees affected by redundancies. “If they haven’t done those two things [the dismissal] could be unfair.”

Recruiters should also be aware that there will be a new decision maker – Fair Work Australia – determining these claims, Kollmorgen says.

“It’s going to be less formal, but we don’t really know yet what differences there will be in the way Fair Work Australia conducts mediation and final hearing phases.”

View the federal government’s fact sheet on unfair dismissals for small employers here.

Right of entry
There are some minor changes to unions’ right of entry to workplaces which will affect recruitment and labour hire companies, Kollmorgen says.

“It used to be the case that if you had a collective agreement applying to a workplace which had a union party to it, then that made it clear which union could enter to meet with potential new members and investigate breaches.

“That’s changed. Now if you’re a union whose eligibility rules cover an employee, you can enter the workplace to meet with employees whether or not you’re bound by a collective agreement there. So another union could come in and meet with your employees.”

Why it’s important: The changes give unions increased ability to organise within the on-hire industry, Kollmorgen says, with implications for bargaining (see below).

Check out the right of entry fact sheet here.

Good faith bargaining
The good faith bargaining elements of the new laws pose significant issues for the recruitment industry, Kollmorgen says.

“An employer can no longer say, ‘I’m not interested in bargaining’. If it’s approached by a bargaining representative for an employee – in reality a union – and the union is able to show there is majority support within that group of employees for a collective agreement, then the employer… has to bargain in good faith.

“What that seems to mean is that there is a presumption that an agreement will be reached and that the employer has to approach negotiations in good faith, provide information, and meet at reasonable times, etc.”

Why it’s important: A labour hire company might be quite large with employees “all over the place in different pockets”, Kollmorgen points out. The test for “majority support” could be met if most workers at a worksite, or across a couple of regions, or right across a whole workforce indicate they want a collective agreement.

“If there is majority support within a group, whatever it is, those employees could force the employer to the table to negotiate.”

Labour hire providers are most likely to be affected when their employees are working alongside directly employed workers who are covered by an agreement with attractive conditions, he says.

They can protect themselves against bargaining requests by “making sure that their employees are happy with the terms and conditions that they’re on and the sort of flexibility that labour hire employment gives them.

“If that’s the case, there doesn’t appear to me to be a reason why they’d want to change their terms and conditions just because a union comes along and says ‘join up and we’ll represent you’,” Kollmorgen says.

View the good faith bargaining fact sheet here.

Modern awards
Currently, the recruitment industry is providing workers to lots of industries with minimal award coverage, but under the new system, modern awards will apply as a common rule to all employees in a particular industry or occupation.

Therefore, Kollmorgen says, “I believe there’ll be very few non-managerial employees who will not be covered.”

The terms and conditions of modern awards are quite similar to the awards that commonly apply under state systems (or in Victoria under the federal system), “so in many cases there won’t be a great deal of surprise in terms and conditions, but the fact there is award coverage is the impact there”.

Modern awards come into force from 1 January, and some have already been developed (including those for clerical, retail, cleaning, graphic artists, IT, restaurants and construction).

What to do: Labour hire providers should check the relevant modern awards for the industry they provide staff to and ensure they understand the new terms and conditions that they’re going to have to meet, Kollmorgen says, and identify any potential problems.

If labour suppliers want more flexibility than is provided in the awards, they have the option of making an enterprise agreement, which will over-ride the award but must pass a “better off overall” test (the BOOT).

An agreement might, for instance, change an entitlement such as a penalty rate or an overtime rate, in exchange for a higher base rate of pay.

Read about the BOOT here.

Transfer of business
The transfer of business provisions in the new Act, which come into effect in July, make it more likely that labour hire employers that transition on-hire employees will be bound by the agreements of the temps’ previous employer, Kollmorgen says.

The test for whether a business has transferred will, under the FWA, be satisfied in a greater number of cases where employees move from one employer to another, he says.

It will apply to host employers in temp-to-perm cases as well as labour hire employers that transition on-hire workers after a supply contract changes hands.

If the employees becoming permanent or being transitioned are covered by a collective agreement, “that agreement will go across with them and bind the employer for an indefinite period of time – not just the 12 months under Work Choices but indefinitely”.

The test for whether an agreement goes across with the employees is firstly whether the work being conducted by the employees is “substantially the same”.

“It used to be the case that it needed to be the character of the business that was substantially the same, and on-hire was different to, say, construction or manufacturing, whereas now it’s the work. So if an employee is doing construction or manufacturing work for the on-hire employer and then the same work for the direct employer, that test would be satisfied.”

The second part of the test is whether there has been a transfer of some assets, “which could easily be satisfied in a typical transfer of business”, Kollmorgen says.

This could create problems for the on-hire industry because “you can have two groups of employees working alongside each other, doing the same work, but being paid differently”.

What to do about it: A labour hire employer’s solution to the problem is to do a new collective agreement covering “everyone”, Kollmorgen says.

“They could effectively be forced into that, so if you’re going to take on employees, and transfer them across to you, then you need to be aware that you may in the future need to do a collective agreement in order to regularise all the terms and conditions.”

Employers are “grappling” with that now, he says, “because a 12-month transition period [under the Work Choices regime] was manageable, but if you’ve got to have two payroll systems indefinitely, and maybe not just two, that is a major problem in an organisation”.

Read more about agreements here.(

Font Size: Decrease Increase Print Page: Print Ewin Hannan and Patricia Karvelas | June 16, 2009
Article from: The Australian

FORMER ACTU president and now federal Labor MP Jennie George has declared building unionists have fewer rights than “most hardened criminals”, underlining ALP caucus unrest over plans to keep coercive powers for the construction industry.

Tasmanian Labor MP Dick Adams also hit out at the retention of the powers and Victorian senator Jacinta Collins said she was yet to be convinced the government would introduce adequate safeguards to deal with her concerns.

Several other Labor MPs raised concerns about the proposed laws at a special briefing of the employment caucus group last night, with some vowing to push their opposition in a broader caucus meeting today.

Despite the unrest, Workplace Relations Minister Julia Gillard is expected to succeed in getting a bill retaining the powers through caucus. One prominent left-winger, who would not be named, said the government had “stitched up” the issue and it would be difficult to seriously oppose it. “They’ve locked everyone in,” the MP said. “None of the left-wing ministers or parliamentary secretaries can say anything now.”

The bill’s final passage faces delay, as the Greens will refer it to a Senate committee when it comes before the upper house next week. A day after former union leader and now senator Doug Cameron attacked the coercive powers, Ms George differed from fellow former ACTU presidents, Simon Crean and Martin Ferguson, who have both backed their retention.

“Like many people, of course, I have concerns about the use of coercive powers against trade unionists, powers that don’t even apply in the case of most hardened criminals, who under our laws still have the right to silence,” Ms George told The Australian.

She said she would have a more detailed position once she had examined the legislation, including proposed safeguards.

“As a matter of principle, I think the use of coercive powers in the manner that has been used hitherto, where people are hauled before people and asked to dob in their mates and if they don’t there is the threat of penalty, it just seems to me that is not something that I would condone.”

Ms Gillard will highlight an array of safeguards that were recommended by former judge Murray Wilcox.

It is expected any notice to compulsorily interrogate a person would be issued only by a presidential member of the Administrative Appeals Tribunal, who would have to be satisfied that the worker had information or documents relevant to an investigation; that the information was important to the investigation’s progress; and if there was no other way of obtaining the information.

The Commonwealth Ombudsman would monitor the compulsory interrogations and report to parliament annually. The legislation governing the interrogation powers would be subject to a five-year sunset clause.

Mr Adams said it was wrong to have two sets of laws and they would be resisted.

“I believe that everybody should be treated equally,” he said.,25197,25642552-2702,00.html

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.