Union right of entry in a post-COVID world

2020 may have been the year the world stood still, but life – and work – continued on for many, albeit changed forever.

While laws to help governments respond to the pandemic came thick and fast, many workplace laws remained effectively untouched except for very particular areas, the most obvious changes being the amendments to the Fair Work Act 2009 (Cth) (FW Act) in support of the JobKeeper program and flexibility provisions in modern awards.

However, some areas of law remain untouched for now, and applying these laws to the new paradigm will remain a challenge for businesses for some time.

Key among these will be the laws regulating union rights of entry, as with additional health and safety measures in place and fewer employees actually working in an employer-controlled space, these laws will be stretched to find application.

While it is doubtless that the law will eventually adapt to address these matters directly, in the meantime employees need to understand exactly where their rights and obligations lie.

 

Right of entry – what is it?

Under the general law, the owner of premises has the right to refuse entry to any person for any reason. If those premises are leased, that right is granted to the tenant of the premises.

Right of entry legislation overrides this general right in some circumstances so that union officials can enter workplaces to discharge their function as the investigator and enforcer of the rights of their members. Specifically, the FW Act allows union officials the right to enter workplaces for three purposes:

• to investigate a suspected contravention of industrial law/s;
• to hold discussions with employees; and
• to exercise a right under State or Territory work health and safety (WHS) legislation.

With the growth of unregistered unions over the last few years, it is important to always bear in mind that only unions registered under the Fair Work (Registered Organisations) Act 2009 (Cth) have enforceable rights of entry under law. Unregistered unions have no such privilege.

 

Exercising a right of entry

Because the exercise of a right of entry is an abrogation of the usual rights of the occupant of premises, there are two key conditions that must be satisfied before a union official may validly exercise their right of entry.

The first of these is that the union official must hold the requisite entry permit/s from the relevant regulators.

The second is that the union official must provide an entry notice, usually at least 24 hours in advance although in some cases the entry notice can be given “as soon as practicable” after obtaining entry. The contents of entry notices vary depending on the right of entry exercised, but generally must include the following information:

• the premises that are to be entered;
• the day of the entry;
• the name of the union; and
• the legislative provision that authorises the entry.

 

The post-COVID landscape

The COVID-19 pandemic, and various lockdowns that it necessitated, taught businesses how to work remotely; in some cases, quite effectively. In practical terms, this means an increasing number of employees working from home.

Despite most States and Territories coming out of lockdown, some businesses are hesitant to have their staff return to the workplace, at least on a full-time basis, with many still operating with a rotating work-from-home roster.

Other businesses have discovered that they are fully capable of functioning without a dedicated office, and have moved to a substantially or wholly-remote working model with a view to making this a long-term structural goal.

As more businesses explore permanent/long-term working from home arrangements, several questions arise:

• Do existing rights of entry grant union officials access to an employee’s home?
• What are the practical implications of this for businesses?
• Are there any limitations to this for unions?
• How might right of entry laws change to deal with the evolving paradigm?

 

Can union officials access an employee’s home under rights of entry?

Under the FW Act, a right of entry may be exercised by a union official in relation to any “premises” at which a worker, whose industrial interests the union is entitled to represent, performs work.

Section 12 of the FW Act defines “premises” in extremely broad, non-exhaustive terms and, importantly, does not require the employer to be in control of the premises to which entry is sought. If this were not subject to any further restrictions, this would almost assuredly include an employee’s home if the employee was working from home.

However, section 493 of the FW Act prohibits the holder of an entry permit from entering “any part of premises that is used mainly for residential purposes”. On its face, this would appear to preclude union officials from exercising a right of entry at an employee’s home.

Despite this apparent prohibition, it is significant that the exclusion is limited only to the “part” of the premises that is used mainly for residential purposes; it does not prohibit entry to the whole of the premises even if, viewed as a whole, the premises are used mainly for residential purposes.

The apparent logical consequence of this is that if the premises are used partly for residential purposes and partly for work purposes, a union official may still exercise a right of entry in relation to the non-residential part of the premises.

Where employees are working substantially or wholly from a home office, it then becomes at the very least arguable that the home office is no longer used “mainly” for residential purposes, and may be subject to the exercise of a right of entry.

 

What are the practical implications for businesses?

In the context of remote work, the key issue that may be faced by businesses is that they may lose sight of when, and where, union officials are exercising their right of entry to hold discussions with employees.

Under section 487(1) of the FW Act, entry notices must be given:

• where the entry is to investigate a suspected contravention of industrial laws – to:
  • the “occupier of the premises”; and
  • “any affected employer”; and
• where the entry is for the purpose of holding discussions with employees – to:
  • the “occupier of the premises”.

Under model WHS laws (applicable in all States and Territories except Victoria and Western Australia) all entry notices for the purposes of those laws must be given to both the “person with management or control of the workplace” and the relevant business.

 

Whither the status quo

Where a union official seeks entry for the purposes of investigating a suspected contravention of industrial or WHS laws, little would appear to change as far as employers are concerned.

This is because in both of these cases, not only is the entry notice required to be given to the “occupier” of the premises, it must also be given to “any affected employer”. This recognises that in some industries (such as the construction industry) the “occupier” of the premises may not be the employer of all workers on the site.

In the case of a home office, this would force unions to provide an entry notice not only to the individual employee as the “occupier” of the premises, but also to their employer. Section 28A of the Acts Interpretation Act 1901 (Cth) requires that the entry notice be “given” to the registered office of the employer, so the employer would continue to have a measure of visibility over such entries.

 

The fly in the ointment

However, where a union official exercises a right of entry only for the purposes of holding discussions with employees under section 484 of the FW Act, section 487(1) requires only that the entry notice be given to the “occupier of the premises” – in the case of a home office, the individual employee. There is no additional provision, in this case, requiring that the employee’s employer to be notified.

This therefore means that union officials could, at least in theory, enter a home office to hold discussions with an employee without their employer being any the wiser.

 

Are there limitations to this for unions?

The practical limitation of this for unions is, of course, the prohibition on unions accessing any part of the premises used for residential purposes under section 493.

Section 486 works alongside section 493 to provide that if a union official enters a residential part of a premises, the union official is no longer allowed to remain on the premises, effectively voiding the right of entry.

This might therefore result in a situation where, if the employee’s home office is not accessible without entering a residential part of the premises, the relevant union is effectively “barricaded out” of the employee’s workplace.

However, this issue does not arise if the employee’s home office is accessible without entering any residential part of the premises, although such architectural considerations are unlikely to feature in many residences.

Where an employer has placed all, or the majority, of their workforce onto a working-from-home basis, this may result in unions being effectively “barricaded out” of workplaces with no ability to exercise a valid right of entry under current laws.

 

How might right of entry laws change in this post-COVID era?

As more businesses turn wholly or partly to remote work, we will likely see pressure from both employers and unions for legislative amendments to remedy these matters.

From the employer perspective, we will likely see efforts to require an entry notice to be given to the employer in all circumstances.

From the union perspective, we may see efforts to lessen the restrictions on entering into residential premises, for example allowing a union official to “pass through” a residential part of a premises without voiding the right of entry.

Legislative change is, as it always has been, slow, and we doubt that any such changes would be made in the immediate future. Employers should, as ever, keep a weather eye on any proposed to changes legislation so that they are prepared to adapt to the evolving paradigm.

 

If your business has any concerns about its rights or responsibilities in relation to anything raised in this article, please don’t hesitate to contact the National Retail Association on 1800 RETAIL (738 245). Businesses which are not members of the National Retail Association can call NRA Legal on 1800 572 679.