Workplace Rights and Responsibilities
New concepts of:
- “adverse action” cannot be taken against an employer, employee, union or independent contractor;
- protection for those asserting a “workplace right”;
- industrial action provisions re-written but principally the same as those that currently apply under WorkChoices;
- right of entry powers expanded for Union Officials to include a right to enter premises for discussions where they do not have any Union members. The provisions are very similar to those that existed prior to 2006
In relation to rights and responsibilities, the Bill mirrors much of the current legislation but there are some important changes.
One of the most important new provisions relates to a general protection against what is called adverse action.
Adverse action on the part of an employer includes dismissing an employee, altering the position of an employee, injuring the employee in his/her employment or discriminating against an employee.
Employers, employees or unions, must not take adverse action against another person because that other person has a workplace right, or proposes to exercise a workplace right.
Secondly, a person must not take adverse action against another person (the second person) because a third person has exercised or proposes to exercise a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs. A workplace right includes the following:
- the entitlement to or the benefit of a role or responsibility under a workplace law, workplace instrument or order made by an industrial body; or
- the ability to initiate or participate in a process of proceedings under a workplace law or workplace instrument; or
- the ability to make a complaint or enquiry to:
- a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
- if the person is an employee in relation to his or her employment.
For example, such workplace rights could be asserted through:
- conferences conducted by the FWA;
- court proceedings;
- protected industrial action;
- making, varying or terminating an enterprise agreement;
- agreeing to cash out paid annual leave;
- making a request for flexible working arrangements, or
- any other proceedings dealing with workplace law.
This is a very broad new avenue for relief available to employees and is also extended to prospective employees. A prospective employee is taken to have the workplace rights he or she would have had if he or she were already employed.
The protection against adverse action also applies to independent contactors. A principal who has entered into a contract for services with an independent contractor cannot terminate the contract or injure, alter or prejudice the position of the independent contractor because that person has asserted a workplace right. This has important consequences for industries such as construction and transport where there are large numbers of independent contractors.
Another new concept is the prohibition against exercising undue influence or pressure. The Bill prohibits an employer exerting undue influence or undue pressure on an employee in relation to decisions affecting their terms and conditions of employment. Similarly, the Bill makes it unlawful to make a misrepresentation about the workplace rights of another person or the exercise or the effect of an exercise of a workplace right by another person. This includes representations that are knowingly or recklessly made.
For all applications involving adverse action the onus of proof will be reversed and the party against whom the allegation is made will have to prove that the reason for the action did not include one of the reasons creating the unlawful grounds.
The Bill contains a division dealing with sham arrangements in relation to independent contractors. Currently, this is dealt with largely by the Independent Contractors Act 2006. The Bill appears to cover the types of arrangements already outlawed by that Act. For example, it will be an offence to misrepresent employment as an independent contracting arrangement. It will also be an offence to make misrepresentations to independent contractors in order to entice an individual to enter the contract for services. Given these are civil penalty provisions employers will need to take extra care when designing independent contracting arrangements.
There is a lot more detail in the Bill than currently exists regarding the industrial activities of unions and workers. There is a general prohibition protecting an employee’s freedom of association but there is also an expanded definition of what it means to engage in industrial activity. Employers are prohibited from taking adverse action against employees for engaging in this activity.
Industrial activity includes:
- being a member of a union;
- establishing a union;
- organising or promoting lawful activities for or on behalf of a union;
- encouraging or participating in lawful activities on behalf of a union;
- complying with a lawful request made by a union;
- representing or advancing the views, claims or interests of a union; or
- seeking to be represented.
In addition, industrial activity for which an employer is not able to take adverse action against an employee also includes when employees take part in unlawful activities organised by industrial associations, or complies with unlawful requests made by a union or takes part in industrial action. As is currently the case, parties are prohibited from coercing people to organise or to take action, be involved in industrial activity, or make misrepresentations about a person’s obligation to engage in industrial activity.
The Bill also reflects the general prohibition against the discrimination of people on certain grounds. It includes the exception of when action is taken because of the inherent requirements of a particular position. It will also be unlawful to take adverse action against an employee because of their temporary absence from work because of illness or injury. Currently this protection only exists on termination of employment or through the anti-discrimination legislation.
While the proposed provisions do not differ greatly from those contained in the current legislation, there are some new terms that we will need to get used to.
Employee claim action is industrial action for a proposed enterprise agreement that is being taken for the purpose of supporting or advancing claims in relation to the agreement. In order to take industrial action in these circumstances employees will still need to apply for a secret ballot from FWA and be successful in obtaining a vote in favour of taking industrial action.
Further, industrial action must not be taken in support of pattern bargaining. However, the Bill does give unions and employers significant flexibility when it comes to this area. For example, the exception to a prohibition on pattern bargaining is that it will not be pattern bargaining if the union is genuinely trying to reach an agreement with that employer. For the purposes of determining what is “genuine” the Bill looks at whether the union is demonstrating a preparedness to bargain taking into account the individual circumstances of the employer. The Bill also inserts a requirement for parties to generally try and reach an agreement. This must occur before any protected industrial action is proposed. Once a secret ballot has been successfully held, as is currently the case, unions will be required to give an employer three working days notice of the intention to take industrial action.
The Bill also introduces the concept of employer response action and employee response action. Employee response action is action that is organised or engaged in response to industrial action by an employer such as a lockout. Employer response action means action that is engaged or organised by an employer as a response to industrial action taken by employees. If an employer engages in employer response action, the employer may refuse to make payments to the employees for the period of the action.
As now, it will be unlawful to take industrial action before the nominal expiry date of an enterprise agreement. If the union or employees do engage in industrial action prior to the nominal expiry date of an enterprise agreement, the employer or any other affected person may make an application to the Federal Court or Federal Magistrates Court to either grant an injunction or to make any other orders available under the Act.
FWA will also have a similar power to that currently exercised by the AIRC and must make an order to stop unlawful industrial action if it appears that it is happening, threatened or being organised. This provision is in almost identical terms to the current Section 496 orders. In addition, FWA is also able to order industrial action by non-national system employees to stop. This means that FWA can exercise jurisdiction over those workers not currently covered by the national system. Contravening such an order is a civil penalty provision, and it appears there is no barrier to an employer going directly to the Court in order to obtain an injunction.
The Bill introduces the concept of a partial work ban that may be engaged in by employees, and clearly details the very restricted circumstances in which an employer may deduct wages from an employee for participating in a partial work ban. As with the current legislation, a minimum four hour deduction of wages for unlawful industrial action will still apply. This means that it is mandatory to deduct four hours pay from employee’s pay when they take industrial action which is less than four hours in duration.
Right of Entry
While there has been a lot of discussion of the right of entry provisions in the Bill, for most employers there will be very little change. The proposed right of entry provisions largely reflect those that already exist under the law. That is, union officials will be able to enter premises in one of three circumstances. Firstly, to hold discussions, secondly, to inspect documents where a breach is suspected, and thirdly for OH&S purposes.
The right of entry to inspect suspected breaches of the law or industrial instruments, only applies where that union official has a member within the workplace whose industrial interest the union is entitled to represent. The union official must give 24 hours notice in writing and must reasonably suspect that the employer has breached legislation or a provision of an enterprise agreement or award. While investigating the suspected contravention, the union official may require the employer to produce documents for inspection that are relevant to the contravention and are kept on the premises or are accessible by computer. Currently, this only applies to members of the union which the official is representing. While the union official in question must have a union member at the workplace, the right of inspection of documents have been extended to non-members as well.
The second type of right of entry, to enter and hold discussions with employees has been extended to workplaces where a union official may have no members. A union official may enter premises to hold discussions with people who perform work on the premises whose interest the union is entitled to represent and to wish to participate in those discussions. As with the previous type of entry, a union official will have to give at least 24 hours notice of their intention to enter. Further, if requested they must produce their right of entry permit for inspection by the occupier or the employer.
The Bill also contains detail about where the discussions between union members and union officials may be held to better clarify the parties’ positions with respect to what is reasonable and what is not. For example, an employer cannot require a union official coming in to hold discussions in a room or area which is not fit for the purpose of conducting interviews or holding discussions.
The final type of right of entry is that for occupational health and safety purposes. As with the current legislation, the Bill leaves the regulation of this right of entry to State or Territory OH&S law. However, as is presently the case, a union official must not exercise a State or Territory OH&S law unless they have a Federal Permit issued under the Fair Work Bill. If they do, permit holders will be able to enter premises without notice to inspect a suspected breach of occupational health and safety regulation.
The Bill also makes it an offence to make a misrepresentation about right of entry provisions or the ability of a union official to enter a particular workplace. FWA is given the power to deal with disputes that arise out of right of entry and to make decisions about who is a fit and proper person to hold a right of entry permit. The Bill proposes a reasonable amount of flexibility for FWA in this regard, giving it a scope of different penalties that can be imposed upon permit holders who misuse their powers. For example, union officials will be exposed to losing their permit for up to five years if they have had FWA take action against them on two prior occasions. There are also very detailed provisions about the qualifications of union officials in order to qualify for an entry permit.