Know Your Rights When it Comes to the Union

Posted 18 January 2019

Know Your Rights When it Comes to the Union

 

We are concerned with the feedback received from members about recent interactions with various unions in the ACT region.

The building and construction industry unions are renowned for applying undue pressure upon businesses and in some case, workers. Whilst Master Builders agrees that workers should be paid in accordance with the relevant Award and should be able to work in an environment that is safe, sometimes the messages being delivered by delegates and interpretation by industry can be misconstrued.

It is important to know your rights when dealing with a union. Here are a few tips:

  • You and your workers have the right to freedom of association under the Fair Work Act 2009 (Cth).
  • You do not need to have an enterprise agreement to do works in the building and construction industry. If you don’t want one, don’t feel pressured to sign up to one!
  • A union is the default bargaining representative for an employee who is also member of the union. An employee can appoint another person or even themselves as their bargaining representative but this appointment must be done in writing. Employers can have a bargaining representative, such as the Master Builders, during the bargaining process.
  •  You do not need to allow access to your site or records without a valid right of entry permit and applicable notice being provided.
  •  It is my recommendation that you should not allow any person to enter your premises without a valid and lawful reason for doing so. If there is no valid reason for a union delegate to be present on your premises/site, you can ask them to leave.
  •  If there is a suspected safety breach, you can call WorkSafe ACT to also inspect the suspected safety breach. The appropriate right of entry permit and notification will still need to be provided. Once you have inspected the suspected breach, there is no reason to then continue around site looking for other ‘issues’.

 

Some frequently asked questions:

What does freedom of association mean?

Employers, employees and subcontractors are free to choose whether or not they become a member of a relevant association such as a union or employer association. There should not be undue pressure to become a member of such associations placed on any person, nor should they be subject to discrimination for being a member.

What is the difference between an Enterprise Agreement and just paying under the Award?

An Award sets out the minimum rates of pay, allowances and entitlements (such as paid leave, notices of termination, etc.) for a particular industry, such as the Building and Construction General On-Site Award 2010. Employers can pay above the minimum rates prescribed in the Award but cannot pay less.

An Enterprise Agreement is an agreement registered with the Fair Work Commission and usually applies to a particular business or group of businesses. The Agreement will set out rates of pay and entitlements for these employees but these rates and entitlements cannot be less than what is prescribed under the relevant Modern Award and/or the National Employment Standards (NES).

Bargaining Representatives

A bargaining representative is a person or organisation that represents a party to an enterprise agreement. This can be an employer, a trade union or a person specified in writing by a party to the enterprise agreement.

Right of Entry

Right of entry powers are provided under either the Fair Work Act 2009 (Cth) and/or the relevant State/Territory Work Health and Safety legislation and allow an entry permit holder to investigate a suspected breach of the relevant legislation.

If a ‘right of entry’ power is being exercised by an entry permit holder, there are certain questions that you should ask prior to allowing them access.

1. Does the union official have a valid entry permit and have they shown this to you?

2. What is the reason for their ‘visit’? Depending on the reason will depend on the notice to be provided:

a. For WHS issues – depending on the nature of the WHS issue, where it is for a suspected safety concern or breach on site and it is within work hours, access should be provided as soon as the PCBU has been notified of the union official’s presence at site.

b. To hold discussions with employees – at least 24 hours’ notice but not more than 14 days before entry.

c. To investigate matters concerning the Award, industrial agreement and/or the Fair Work legislation – at least 24 hours’ notice but not more than 14 days before entry.

Please note that an entry permit holder cannot use their entry permit under the Fair Work Act 2009 (Cth) to investigate a suspected WHS breach and vice versa.

A union official cannot intentionally hinder or obstruct works on site and must comply with any reasonable requests by the PCBU to comply with any WHS requirements, such as inductions etc. that might apply to the site. Please note that you cannot refuse or unduly delay entry to a union official.

The Right of Entry app is available for free through the iTunes App store.

MBA will be running member sessions to ensure that members are aware of their rights surrounding right of entry. 

The details of these sessions are as follows: 

Date: Tuesday, 12 February 2019
Time: 7:30am
Location: Master Builders, 1 Iron Knob Street, Fyshwick

Date: Thursday, 14 February 2019
Time: 7:30am
Location: Master Builders, 1 Iron Knob Street, Fyshwick.

Registrations are essential. Please RSVP to mbameetings@mba.org.au

If you have specific questions, please do not hesitate to contact me on 6175 5919 or kburt@mba.org.au.

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