Union Vis­its — How does one lim­it unin­vit­ed guests?

In Brief

Union vis­its and the asso­ci­at­ed ten­sion between employ­ers and union offi­cials can be dis­rup­tive and stress­ful for both par­ties. The Fair Work Com­mis­sion has pro­vid­ed rec­om­men­da­tions to clar­i­fy rights of entry vis­its which will be tri­alled for a peri­od of three month. This arti­cle high­lights the rec­om­men­da­tions in more detail and demon­strates what employ­ers can do to man­age right of entry in their workplace.

Employ­ee’s time and lev­el of com­mit­ment are crit­i­cal resources to any busi­ness in pur­suit of pro­duc­tiv­i­ty and busi­ness effi­cien­cy. With this in mind it comes as no sur­prise that the entry of union offi­cials into the work­place can be per­ceived by employ­ers as dis­rup­tive and an unrea­son­able diver­sion of their resources.

In order to com­bat the ten­sion between employ­ers and union offi­cials exer­cis­ing their right of entry, the Fair Work Com­mis­sion was giv­en the pow­er, from 1 Jan­u­ary this year, under the Fair Work Act to deter­mine dis­putes and make orders when sat­is­fied that the fre­quen­cy of entry would ​“require an unrea­son­able diver­sion of the occu­pier’s crit­i­cal resources”.

The Fair Work Com­mis­sion last week was asked by Green­mount­ian Food Pro­cess­ing to clar­i­fy the fre­quen­cy, loca­tion and dura­tion of right of entry vis­its con­duct­ed by AMIEU (ie. meat­work­ers’ union). The par­ties acknowl­edged that they had failed to reach an agree­ment regarding:

(a) Fre­quen­cy of vis­its by per­mit holders;
(b) Dura­tion of visits;
(c) Loca­tion of dis­cus­sions with employees;
(d) Move­ments of per­mit hold­ers dur­ing vis­its; and
(e) Par­tic­i­pa­tion of employ­ees in discussions.

Hav­ing heard from both par­ties, Com­mis­sion­er Lewin, pro­vid­ed rec­om­men­da­tions to be tri­alled for a peri­od of three month with the par­ties report­ing back to the Com­mis­sion after two. The rec­om­men­da­tions inte­grat­ed aspects from the alter­na­tive posi­tions of both parties.

In regard to the fre­quen­cy of vis­its the Com­mis­sion­er rec­om­mend­ed that:

(a) vis­its to hold dis­cus­sions with employ­ees are to be con­duct­ed monthly;
(b) in the event of Enter­prise Bar­gain­ing the par­ties may meet and con­fer to agree on sup­ple­men­tary vis­its in order to facil­i­tate the bar­gain­ing process; and
(c) employ­ees may request addi­tion­al visits.

The dura­tion of vis­its were lim­it­ed to two time slots:

(a) Between 7.50am and 8.10am; and
(b) Between 11.50am and 1.10pm.

The loca­tions of the vis­its and move­ments of the per­mit hold­ers were restrict­ed to:

(a) The lunch room sub­ject to AMIEU pro­vid­ing a pro­to­col explain­ing the pur­pose of their vis­it as well as an under­tak­ing that they would only hold dis­cus­sion with employ­ees who wished to par­tic­i­pate; and
(b) The move­ments of the per­mit hold­ers would be restrict­ed to the lunch room for the whole visit.

The rec­om­men­da­tions of the Fair Work Com­mis­sion fail to pro­vide any clar­i­fi­ca­tion on what is meant by ​“unrea­son­able diver­sion” of an employ­er’s crit­i­cal resources but it does, how­ev­er, demon­strate the types of accept­able restric­tions that an employ­er can seek to imple­ment in order to man­age right of entry in the work­place. Fur­ther, it gives an indi­ca­tion that there are lim­i­ta­tions upon unions wan­der­ing around your premis­es as they see fit.