Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T3870

 

TASMANIAN INDUSTRIAL COMMISSION

DECISION APPEALED - SEE T4000

Industrial Relations Act 1984
s.23 application to vary an award

Tasmanian Confederation of Industries
(T.3870 of 1992)

METAL AND ENGINEERING INDUSTRY AWARD

 

COMMISSIONER P.A. IMLACH

28 August 1992

Industrial unions - Entry, Right of

REASONS FOR DECISION

This was an application made by the Tasmanian Confederation of Industries (the Confederation) for an amendment to be made to the Right of Entry clause in the Metal and Engineering Industry Award (the Award).

The Confederation sought the amendment because a number of its employer members had voiced strong criticisms of the terms of the present Right of Entry provision which had been put into the Award as an agreed item during recent restructuring exercises. The employer members complained that the agreed clause gave too much latitude to union representatives. The Confederation's proposed amendment was said to restore the reasonable rights of employers as to the entry of union representatives on the work sites.

Specifically the Confederation disputed the following conditions where:

  • A representative "may enter during working hours" the employer's premises.

Even though there was a qualification specified later in the Clause, the Confederation submitted that this provision was wrong in that it gave the representative carte blanche to enter in the first instance. The Confederation said that this took away the right of the employer to decide whether or not any person should be permitted onto the work site and at what time such persons should enter.

  • If the person in charge is absent or unavailable contact may be made with the person "apparently in charge" of the worksite.

This provision was unacceptable also to the Confederation on the grounds that it was too general and vague, again giving too much latitude.

The Metals and Engineering Workers' Union (the MEWU) opposed the Confederation's amendment application saying that the present provision represented an agreed position reached after many negotiations previously and it had not been questioned before: the Union was happy for it to remain as it was.

On the first day of hearing after some submissions the matter was adjourned as the parties felt some settlement might be reached if negotiations took place.

However, when the hearing resumed at a later date the parties reported that no settlement had been reached. The parties did produce separate, proposed replacement clauses which differed only in that the Confederation's proposal made entry subject to any "reasonable conditions set by the employer" whereas the MEWU proposal permitted entry during working hours subject only to notice being given.

Neither side would advance/withdraw from its key position.

The Confederation sought and was granted leave to amend its application to the following:

25. RIGHT OF ENTRY OF UNION OFFICIALS

(a) For the purpose of interviewing or conducting meetings of employees in connection with any of the business or affairs of the organisation an authorised representative of any of the registered employee organisation subject to reasonable conditions set by the employer may enter any factory, shop, office or other premises or land in or which an employer to whom this award applies carries on business.

(b) The representative shall make contact with the person in charge of the factory, shop, office, premises or land or other such persons appointed by the employer.

(c) If any employer alleges that a representative is unduly interfering with the work or is causing dissatisfaction among the employees or is offensive in their manner, or is committing a breach of any of the conditions set out in this clause, such employer may refuse to allow the representative to enter into or to remain on the place, but the representative shall have the right to bring such refusal to the attention of the Tasmanian Industrial Commission who will arbitrate on the dispute.

(d) If requested, an official must produce a copy of the declaration of secrecy required by Section 77(3) of the Industrial Relations Act 1984 signed by the official, before any inspection of times and wages records.

(e) The duly accredited union official, is required to serve written notice to inspect the records, if requested, on the employer. On receipt of such written notice served on them by the officer, the employer shall produce the record for inspection by the officer at a mutually convenient time.

The Confederation said its amended proposal reflected conditions it was happy to accept and it endorsed items discussed on and off the record with the Commission at the previous hearing. It did not see that its amendment was onerous and submitted that it satisfied the employers' requirements as to safety, security and efficiency.

In any case, the Confederation argued, its amendment reflected what actually happened in the industry and it did not go beyond basic courtesies.

The MEWU again opposed the amendment saying that the existing provision was adequate and was working. However, if the Commission was minded to make changes, the MEWU indicated an alternative to that proposed by the Confederation, the draft clause it had earlier produced.

The MEWU said that its proposal was consistent with that found in some other awards of the Commission albeit they were agreed clauses.

It was further argued, again by the MEWU, that in practice there had been no problems with the present provision in the Award.

The other unions present, the Federated Clerks Union of Australia, Tasmanian Branch and the Electrical Trades Union of Australia, Tasmanian Branch supported the MEWU's submissions and opposed the claimed amendment.

It seems to me that, subject to the prescriptions of the Act, the conditions governing the right of entry of union officials in the first place ought to be agreed between the parties. Unfortunately, agreement has not been sustained in this case, but with what I have said in mind, I believe, in a situation of arbitration, a minimum provision is advisable.

On the grounds that an employer has the primary and ultimate responsibility for the proper and efficient running of an industrial operation, a provision as to the right of entry of union representatives ought to be premised by the unwritten statement that any employer has the right, or prerogative, to decide whether or not and under what conditions such representatives may enter the workplace.

Deriving from this primary statement then, the onus would be on the employer (the union having made a complaint) to justify a refusal to permit entry.

The proposal put forward by the MEWU seems to presuppose that the union has the prior right of entry and the onus is on the employer to provide that the union representative (having already entered the workplace) has abused that right.

Subject to some minor technical corrections, the Award will be amended in the form sought by the Confederation. The significant words in the new clause will be, "an authorised representative ... subject to reasonable conditions set by the employer, may enter ..."

It seems to me that the new Right of Entry clause will truly reflect both the spirit and the letter of the Act.

An order is attached, operative from the date of this decision.

 

P.A. Imlach
COMMISSIONER

Appearances:
S. Clues for the Tasmanian Confederation of Industries.
P. Baker for the Metals and Engineering Workers' Union.
H. Dowd for the Federated Clerks Union of Australia, Tasmanian Branch.
R. Randall for the Electrical Trades Union of Australia, Tasmanian Branch.

Date and Place of Hearing:
1992.
Hobart:
August 6, 13.