Right of Entry (ROE) is a unique concept. It is the right of a trade union to come onto an employer’s premises to:
- hold employment/industrial discussions with employees under the Fair Work Act 2009 (Cth) (FW Act);
- investigate suspected breaches of the FW Act or a term of a fair work instrument;
- consult with/advise workers on health and safety matters under the applicable workplace health and safety legislation; and
- enquire into suspected safety breaches under the applicable workplace health and safety legislation.
Knowing and understanding your rights and obligations relating to ROE is key to managing your industrial relations. This is especially true in the current COVID-19 environment, where employers are trying to balance the management of their occupational health and safety (OHS) obligations while also complying with ROE requests.
This blog will primarily focus on ROE for discussion purposes under s 484 of the FW Act and how this is challenging to manage during the COVID-19 period.
What is right of entry?
As indicated above, ROE is a trade union’s right to enter a workplace in certain circumstances. Right of entry under OHS legislation and the FW Act aim to balance a union’s right to represent its members, and the right of employers to carry out business without interruptions.
Who can enter a site?
A union official must have a valid and current entry permit from the Fair Work Commission to enter a workplace for discussion purposes under the FW Act. The notice of entry must be provided by the union to the employer/occupier of the premises during working hours and 24 hours before entry (but no more than 14 days prior to entry). The notice must specify the premises to be entered, entry date and the union the permit belongs to.
An official exercising ROE must:
- only enter during normal working hours;
- enter during the workers’ mealtime or breaks;
- obtain a worker’s agreement before speaking with them;
- comply with all OHS requirements; and
- only enter areas of the workplace where relevant workers work or other areas that directly affect the OHS of workers whose industrial interests they represent (not applicable for ROE for discussion purposes).
ROE in the Current Environment
Some businesses that are currently operating have been subject to ROE requests for discussion purposes from unions (especially those in regional Victoria and in states other than Victoria). These requests usually outline that the union intends to physically enter a workplace. This raises several issues given the current health pandemic and an employer’s strict OHS obligation.
The ‘cutting off’ of non-essential external visitors to sites have become a common method (often forced through government intervention) used by employers to prevent unnecessary movement and combat the threat of COVID. Arguably, given ROE is for discussion purposes is not essential, many employers are, in our experience, pushing back on these ROE requests. Notably, allowing an external visitor onsite may be considered irresponsible and inappropriate in the health pandemic. That said, in certain areas, Union organisations can attend worksites as permitted by law.
Given this conundrum, we have found that employers and unions must try to work together and be innovative when conducting ROE to protect the health and safety of everyone. Whilst respecting the union’s ROE rights, the employer may consider offering different methods to conduct ROE (i.e. via videoconference).
There are also several other factors to consider such as time and location of the ROE request.
When you are subject to a ROE request, it is important to remember that as per s 490(2) of the FW Act, the ROE is to be conducted during mealtimes or during other breaks. Therefore, any request to conduct ROE outside of these times can be denied by the employer.
Similarly, regarding location, as per 492(1) of the FW Act, ROE can be conducted in the rooms or areas of the site as agreed with the occupier of the premises. Therefore, if the employer and the union fail to reach agreement, the ROE must be in any room or area in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks, on the condition that that area is provided by the employer for the purpose of taking meal or other breaks.
Therefore, ROE requests in carparks (and other similar areas that are not a room or area in which employees ordinarily take meal or other breaks) do not have to be agreed to and will not be the default area if no agreement is reached.
Whilst traditional ROE may change for the foreseeable future, we encourage employers and trade unions to work together to come to a safe and sensible solution for ROE to be conducted in an appropriate manner. With many previous forms of communication and discussion (i.e. your ‘run of the mill’ meeting) moving online, the current environment may allow for these ROE discussions to be done innovatively, safe and responsible via an online platform. Ultimately, what needs to be at the forefront of everyone’s thinking is the safety of employees.
Need specialised help?
Workplace Wizards provides expert workplace relations, human resources, industrial relations, Workplace Health and Safety and workers’ compensation advice and support on demand and tailored to your business needs. We offer a complete range of employee management and workplace relations services.
For specialist assistance regarding Right of Entry or union correspondence, contact Nathaniel Ganeson on 0447 336 280 or email firstname.lastname@example.org.