How to deal with unions: The future without AWAs

The rights of union officials to enter a worksite is always a touchy subject for employers. ANDREW DOUGLAS reports on the first decision about union site access since the introduction of WorkChoices.

By Andrew Douglas

Unions won’t be marching on to worksites to take over, but industrial relations have come out of the woodwork as a key consideration for employers. SmartCompany clears the air on what to expect.

Last month, the CFMEU (Construction Forestry Mining Energy Union) sought to enter a worksite to hold discussions with employees. All the employees were employed under AWAs and the new Rudd-styled workplace agreement, the individual transitional employment agreement (ITEA). The company, upon my advice, refused the union entry and the CFMEU took the matter to the Australian Industrial Relations Commission.

On 28 April, the Commission ruled that the union was not allowed on site to hold discussions. This is the first decision since WorkChoices on this issue.

So when is a union allowed on site, and what are the limitations in such circumstances?

The union may come on site to investigate a breach of the AWA. However, the union organiser must have a permit, there must be evidence that an employee has made a request for the union to investigate, an entry notice must be served by the union on the employer at least 24 hours before, the entry notice must state the alleged breach and entry can only be affected during work hours.

If the notice process is correct, the union may interview people who are either members or eligible to be members of that union, inspect records of members (not non-members unless authorised by the Commission) and make copies. The union may not be shown an AWA, and it is an offence to hinder the union if it acts in accordance with the law.

The union may come on site to investigate an OH&S breach. The same preconditions exist, as with a breach of the AWA, except that the union official must have a right to inspect under state OH&S law. These officials must comply with reasonable OH&S requirements of the employer, but they can conduct interviews, inspect machinery and take copies of relevant records. Again, it is an offence to hinder the union if it acts in accordance with the law.

What does this mean if your worksite is entirely covered by an AWA? Work closely with your employees, pay in accordance with the AWA, and ensure the site is safe, and you will have a union-free business.

And if you would prefer to maintain a non-union workplace for the future, start planning now. As AWAs and ITEAs expire on 31 December 2009, you can start planning now to use non-union collective agreements to preserve a non-union site.

However, non-union collective agreements (called employee collective agreements) permit employees to nominate unions as bargaining agents with the employer. So there are real risks if you do not undertake the process carefully. How do you achieve this?

The answer is simple but requires some skill.

All AWA employees whose AWAs have expired can be involved in negotiations and voting up a non-union collective agreement. Further, new employees not on an AWA or an ITEA can be involved. This provides you with a rare opportunity in the business to effect lasting change with a small number of key employees to protect the conditions for the business and for all employees after 31 December 2009.

Encourage the employees who can vote to nominate a key person to act as a bargaining agent for all employees who can vote.

Prepare an agreement with the bargaining agent, explain it and circulate it to the employees who can vote and in accordance with the Workplace Relations Act have the employees vote the agreement up.

The agreement will secure the non-union status of the site well into the future and ensure employees and the employer will have shared future business goals with an empowered committee structure.

Andrew Douglas is the director of Douglas Workplace and Litigation Lawyers