Right of Entry does not give the freedom to be able to organise.Employees say that a difficulty is not being able to have their union organiser have right of entry.
But the WorkChoices limitations stricter than earlier awards and what was in agreements remains in that the organiser must still have a valid permit to obtain a right of entry; must still give a minimum of twenty four hours notice before exercising the right of entry; must still abide by the route and room specified by the employer in exercising the right.
I see this has been slightly ameliorated in that the employer cannot exercise this power unreasonably and the union can go to FWA in case of dispute, meaning more litigation.
The union has a right to enter premises to hold discussions or to investigate breaches of workplace obligations that affect a member or members of a union and that a union is able to get access to non-member records to investigate breaches of workplace obligations, a most reasonable measure of compliance, but still with the uses of that information strictly limited.
It should be that the parties can agree for whatever right of entry suits the parties, such as whenever needed, showing the courtesies reasonably expected, that I have experienced as a union official for 27 years.
The FWB requires the union to first establish that there are one or more eligible persons at the workplace who ‘wish to participate’ in discussions. It is not clear which ‘purposes’ a union can enter a workplace. There is no doubt that anti-union employers will have their corporate lawyers frustrate the rights of employees by litigating this point.
What is worse is that the employer and employees cannot agree on right of entry provisions that suit them.
There is legal complexity on whether the union honestly thought a claim to be lawful, but which turns out not to be so. This may prevent a party from obtaining FWA orders, taking protected industrial action, or having an agreement approved; and will force parties to enter into frustrating ‘side deals’.
General protections good, but…
The FWB does ensure protections for workers engaging in union activity such as representing other employees or bargaining. It provides sanctions including the power to obtain injunctions to restrain the conduct. It seeks to protect unionists who suffer adverse treatment because they have or will exercise a ‘workplace right’ such as being entitled to an award or agreement or making a complaint or inquiry. These are an important part of the freedom of association.
Where the continuation of WorkChoices is kept is the false notion of freedom of non-association. This is a non-sense in practice, but a major feature of right-wing corporate anti-unionism supporting the ‘right’ of workers not to combine, to be individuals, for a non-unionist not to join in with union activities.
This is not in conformity with ILO freedom of association provisions. Corporate lawyers, as in the past, will focus on freedom of non-association, ensuring an anti-union regime.
A FWB omission is that there is no legal recognition of workplace employees (union) delegates to organise and represent their workmates, nor to support their work with resources such as paid time to perform their roles, union training and access to facilities. These are normal in good industrial relations agreements (at the moment forced into side agreements). Why not as a NES standard? What about those who are just joining a union? Other countries have legislation that provides for statutory employee rights. The FWB makes a union strictly liable for the actions of its delegates, even if the union took reasonable steps to prevent the delegate from acting in an unlawful fashion. But there is no minimum Charter of Delegate Rights.
The unfair $100,000 rule
I am strongly opposed to MPs arbitrarily taking away existing hard won award rights, built up over fair arbitral processes and accepted by employers. I refer to the unfair, arbitrary removal of existing legal award rights for all employees over $100,000.
Despite reasonable arguments presented by professional and high skilled workers, the DPM continues to assert this injustice without good reason, other than a tactical political move to appease powerful anti-union mining companies during the election.
The dismantling of their awards is not even argued in the AIRC, but by legislative political decree. Also, the DPM should not be able to reduce this threshold through regulation. Important rights deriving from award coverage, such as the right to be represented, to be consulted about significant change and to access the dispute settlement procedure is for no good reason denied. This has serious consequences for high-income workers’ rights. It should be deleted.
The DPM says these are high paid employees and can negotiate agreements, and some can, but many cannot. These employees ought to be free to have an award. They do not like being disadvantaged.
The FWB may preserve their unfair dismissal rights. But litigation is predictable.
In the alternative, there could be an amendment that if the employer agrees that employees over $100,000 have award rights, then they remain.
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