Q&A with Malvin Khaira
Q: Union Officials are harassing me to sign up to a Union enterprise agreement. They have threatened me by claiming that I will lose future contracts with a particular builder if I decide not to sign up. It feels like I do not have a choice but to obey the Union. Is it lawful for them to do this?
A: No. The Building and Construction Industry (Improving Productivity) Act 2016 (BCIIP Act) and the Fair Work Act 2009 (Cth) (FW Act) protects your business from adverse action by the Union. It is unlawful for the Union to take action or threaten to take action against your business if you do not sign up to an enterprise agreement. By threatening that you lose jobs with a particular builder, the Union has taken unlawful action and may face penalties. The maximum penalty per contravention under the BCIIP Act is $210,000 for a body corporate and $42,000 for an individual. The maximum penalty under the FW Act is $63,000 for a body corporate and $12,600 for an individual. The ABCC is here to assist Building and Construction entities with the plague of unlawful Union conduct. If you are a faced with such a situation, please contact the Australian Building and Construction Commission at 1800 003 338 to lodge a report and possibly attain an injunction to prevent the Union from further harassing you and your business.
Q: Union Officials recently exercised Right of entry on one of the sites we were working on. They had the valid entry permits and had provided the required notice, however, they were aggressive and verbally abusive towards me and some of my workers. Is this acceptable behaviour for a Union Official?
No. Right of Entry is not meant to be a license to abuse or intimidate anyone on site. On 1 November the Federal Circuit Court imposed penalties totalling $39,050 against the CFMEU and one of its official in Queensland, Mr Blake Hynes, after he acted in an aggressive manner and abused a general manager at a project site. Mr Hynes had approached the manager and yelled “you f….ing, dog, c..t”. As the general manager continued towards a parking area, the official continued shouting at him and acted in an aggressive manner and at one point crossed his path.
Right of Entry is a privilege and the conduct of the union official was in every way an abuse of this privilege as a permit holder. Such abuse is unacceptable at any workplace and should not be tolerated. Judge Jarratt in that case said: “The conduct of by Mr Hynes was unprovoked. The words he used were objectively offensive. They were unprovoked and aggressive. Mr Hynes conduct was, I accept, antithetical to the rights of entry regime established under the Fair Work Act and was a gross abuse of the entitlements given to Mr Hynes by his entry permit. His conduct was plainly deliberate.”
The Australian Building and Construction Commission has brought the CFMEU to task on numerous occasions. If you find yourself in a similar situation, please contact the ABCC to lodge a report at 1800 003 338.
Q: Do I need to keep employment records of my employees? What happens if I fail to do so?
Yes you are required to keep proper employment records of employees. If you fail to do so, then you as the employer bear the burden of disproving any underpayment allegation made by an employee. It is not for the employees to prove the underpayments or the amount of hours worked. A failure to keep proper employment records could cause you significant penalties.
Generally, there is an obligation on you to keep the following records:
- Pay records
- Hours of Work records
- Leave records
- Superannuation contributions records
- Individual flexibility arrangement records
- Guarantee of annual earnings records
- Termination records
- Transfer of business records
- Comply with payslip obligations
A comprehensive list of your obligations and the records can be found on the Fair Work Ombudsman website here.
If you are an MBA ACT member and have any Industrial Relations or Legal queries please feel free to contact Malvin at 6175 5900.