ufuq - review of industrial relations laws and tribunals ... · 5. wage fixation there needs to be...
TRANSCRIPT
Submission to the
Review of Industrial Relations Laws and Tribunals - Queensland
United Firefighters’ Union of Australia, Union of Employees, Queensland
21 October 2015
Contact: Mr John Oliver
State Secretary
2
286 Montague Road West End
Queensland 4101
1. Public submission
United Firefighters’ Union of Australia, Union of Employees, Queensland (the UFUQ)
provides this submission on behalf of our members to the Review of Industrial Relations
Laws and Tribunals – Queensland. UFUQ authorise publication of the submission by the
Industrial Relations Legislative Reform Reference Group for the purposes of the review.
2. The UFUQ
The UFUQ is an industrial organisation of employees registered under the Industrial
Relations Act 1999 (Queensland) (the Act), representing our members employed in urban
firefighting (both permanent full-time and auxiliary firefighters), as well as scientific officers
and communications officers.
UFUQ members, due to their roles in preventing, suppressing and assisting in recovery from
fires and many other emergency situations are amongst the most highly regarded members of
their communities across Queensland.
The UFUQ currently has approximately 2600 members from the ranks of permanent and
auxiliary firefighters, scientific officers and communications officers.
The UFUQ is bound by awards of the Queensland Industrial Relations Commission (the
commission) and is party to a number of certified agreements made and registered under the
Act.
UFUQ has a proud and strong history of representing our members across the state in matters
in the industrial commission and the Industrial Court of Queensland, and at other tribunals
(such as QCAT and the Workers’ Compensation MAT).
3. Opportunity to provide a submission
The UFUQ appreciates the Industrial Relations Legislative Reform Reference Group
providing our opportunity to provide this submission and to contribute to the critical task of
reviewing the existing Queensland industrial relations laws and tribunals.
4. Overview of UFUQ position
UFUQ operates primarily within the state industrial relations system.
3
UFUQ is supportive of a comprehensive review and modernisation of the existing state
industrial relations system and institutions operating in the Queensland jurisdiction.
UFUQ believes that the existing legislation and institutions need significant modernisation
for the contemporary industrial landscape.
We believe that there should be new legislation enacted, with transitional provisions where
necessary, to manage issues arising under existing legislation.
UFUQ believes that there ought to be an independent industrial tribunal empowered to deal
with a comprehensive range of industrial matters.
It is critical that consumers of the system and its institutions have confidence in the system
and its processes.
UFUQ believes that thorough consideration needs to be given to wage fixation within state
public sector entities. It is our view that there needs to be a process to facilitate public sector
wage setting, in addition to processes about industrial dispute resolution.
5. Wage fixation
There needs to be a modernised, transparent, consultative process of state public sector wage
fixation.
Existing industrial tribunals are restricted in their capacity to fix wages for state public sector
employees, other than occasional exceptions based determinations of discrete matters.
Consideration ought to be given to a statutory process which guides public sector wage
fixation and treasury budget allocation.
A process could be legislated which allows for the involvement of unions with
representational coverage of public sector employees in negotiating public sector wage
outcomes and treasury allocation. A process could involve a step of mediation by a suitable
body.
Exception based matters could be dealt with by a separate, specialist industrial or
remuneration tribunal, independent from the executive government.
6. Independent industrial tribunal
UFUQ is of the view that there is benefit in having a modern independent tribunal to deal
with industrial matters affecting state government employees.
4
Such a tribunal could be instituted under new legislation as being independent from
government.
Consideration might be given to instituting an industrial division of QCAT, with a capacity to
appoint suitably qualified persons to deal with industrial matters.
Another option may be to expand the Industrial Court, to allow for industrial court cases, as
well as an option for alternative dispute resolution by judicial or non-judicial officers. An
expanded court capacity may also allow for supervision of an industrial tribunal.
Consideration may also be given to an option of restoring the independence to the
Queensland Independent Remuneration Tribunal (QIRT), and expanding its capacity to deal
with remuneration of public sector employees.
The extent and degree of independence from government needs to be carefully considered,
however UFUQ is of the view that a significantly high degree of independence would be
suitable for supporting industrial relations between the state government as employer and its
employees.
On that basis, consideration may be given to instituting a tribunal under legislative provisions
such as applicable to other independent tribunals.
For example, Section 162 of the QCAT Act, and section 9 of the QIRT Act, attempt to
legislate for independence:
Queensland Independent Remuneration Tribunal Act 2013 – Section 9
9 Independence of tribunal and tribunal members
(1) In performing or exercising its functions or powers, the
tribunal— (a) must act independently, impartially and fairly; and
(b) is not subject to direction or control by any entity, including any
Minister.
Queensland Civil and Administrative Tribunal Act 2009 - Section 162
162 Independence
In exercising its jurisdiction, the tribunal—
(a) must act independently; and
(b) is not subject to direction or control by any entity, including any
Minister.
Further examples are evident within the provisions of the QCAT Act which provide for
independence:
5
Queensland Civil and Administrative Tribunal Act 2009 - Section 196
196 Independence
(1) An adjudicator when constituting the tribunal is not subject to direction or
control, other than as provided under this Act.
(2) However, an adjudicator must comply with the procedural directions
given by the president. Note—
Under section 203, an adjudicator may be removed from office if the adjudicator
contravenes this subsection.
Queensland Civil and Administrative Tribunal Act 2009 - Section 217
217 Influencing participants
A person must not improperly influence, or attempt to improperly influence, a
person in relation to the person's participation in a proceeding, whether as a
member, adjudicator, a party or a witness, to act other than in the course of the
person's duty in relation to the proceeding.
Queensland Civil and Administrative Tribunal Act 2009 - Section 172
172 President's functions generally
(1) The president has the functions conferred on the president under this Act or an
enabling Act that is an Act.
(2) The functions of the president include—
(a) managing the business of the tribunal to ensure it operates efficiently;
and
(b) giving directions about the practices and procedures to be followed by
the tribunal; and
(c) managing the members of the tribunal and adjudicators including—
(i) developing a code of conduct for members and adjudicators;
and
(ii) ensuring the members and adjudicators are adequately and
appropriately trained to enable the tribunal to perform its
functions effectively and efficiently; and
(iii) undertaking performance management for members and
adjudicators; and
(iv) deciding selection criteria for appointment of members and
adjudicators, and overseeing the selection process; and
(d) adjudicating in the tribunal; and
6
(e) advising the Minister about the appointment of members of the
tribunal and adjudicators, and the suspension and removal of the
members and adjudicators from office; and
(f) developing a positive cohesive culture throughout the tribunal's
organisation.
(3) It is also a function of the president to advise the Minister about—
(a) how the tribunal could improve the carrying out of its functions to
ensure the way it deals with matters is fair, just, economical, informal
and quick; and
(b) how this Act or an enabling Act could be made more effective.
(4) The president may do all things necessary or convenient to be done for the
performance of the president's functions.
(5) In performing the president's functions, the president is not subject to direction
or control by the Minister
7. Codes of conduct
It is also common for tribunal members to be required by legislation to adhere to a code of
conduct.
The codes of conduct essentially publicise the standard of integrity and independence
required, and require that the tribunal is able to demonstrate that it is able to regulate the
actions of its own members without relying on executive oversight.
The QCAT Act, for example, directs the president of the tribunal to develop its own code of
conduct, which contributes to a perception of functional independence, as the tribunal has
considered and determined its own professional standards.
Examples of codes of conduct applicable to tribunals are attached to this submission.
Another example of legislated standards is the Local Government Remuneration and
Discipline Tribunal. The tribunal is established by section 183 of the Local Government Act
2009.
The tribunal performs its responsibilities in accordance with the principles outlined in section
4 of the Local Government Act, including:
• transparent and effective processes, and decision-making in the public interest
• delivery of effective services
• meaningful community engagement
• good governance
• ethical and legal behaviour.
Local Government Act 2009 – Section 183
183 Establishing the tribunal
7
The Local Government Remuneration and Discipline Tribunal (the tribunal) is
established. As well as the responsibilities mentioned in section 176, the tribunal is
responsible for—
(a) establishing the categories of local governments; and
(b) deciding which category each local government belongs to; and
(c) deciding the maximum amount of remuneration that is payable to the
councillors in each of the categories; and
(d) any other functions that the Minister directs the tribunal to perform.
Local Government Act 2009 – Section 4
4 Local government principles underpin this Act
To ensure the system of local government is accountable, effective, efficient and
sustainable, Parliament requires—
(a) anyone who is performing a responsibility under this Act to do so in
accordance with the local government principles; and
(b) any action that is taken under this Act to be taken in a way that—
(c) is consistent with the local government principles; and
(d) provides results that are consistent with the local government principles, in as
far as the results are within the control of the person who is taking the action.
(e) The local government principles are—
(f) transparent and effective processes, and decision-making in the public
interest; and
(g) sustainable development and management of assets and infrastructure, and
delivery of effective services; and
(h) democratic representation, social inclusion and meaningful community
engagement; and
(i) good governance of, and by, local government; and
(j) ethical and legal behaviour of councillors and local government employees.
Consideration could be given to legislating for tribunal independence.
8. Other considerations about independence
There are a range of indicia and options that may be considered when instituting
independence in a tribunal.
These matters may be considered in relation to the extent to which independence is a feature
of independent industrial tribunals.
8
The degree of independence can vary depending upon the statutory basis underpinning a
particular tribunal.
Appointment:
The method and criteria for appointment is a factor to be considered.
Where members are appointed by the government executive, independence is more apparent
if the process is rational, merit based and transparent. In practice this might require public
advertising of vacancies and the development of clear criteria from which applicants will be
compared.
An expert panel might be considered as suitable for drawing up recommended candidates.
Traditional notions as to a broad make up of tribunal members from diverse relevant
backgrounds still seems to hold favour with consumers of the system. For example, industrial
tribunals often include appointments of people having held positions with industrial
associations or law firms, having a background in industrial work, commonly in industrial
tribunals. This diversity assists to present independence.
Appointments are an integral consideration of independence.
Tenure:
Other factors relevant to institutional independence include:
• tenure or fixed term appointments;
• secure remuneration; and
• protections against arbitrary removal.
These factors are indicators of judicial independence as required by the courts. It may be
worth considering whether the operation of tribunals would benefit from more flexible
arrangements.
For example, fixed term appointments of between 3 and 7 years are commonly used for
tribunal members to allow for independent reviews of performance and flexibility for the
changing functions of the office.
Adjudicative independence relates to the integrity of tribunal members with regard to making
decisions free from external influence. Many tribunals are subject to statutory regulations that
require members to act independently and without fear or favour.
A complementary consideration would be whether a similar obligation could be imposed on
the executive, as the body most likely to influence the tribunal.
9. The government as employer
9
An industrial tribunal dealing essentially with disputes between the government as an
employer and its employees, could be viewed as an in house grievance procedure.
There is a tension between the government executive being the employer and the legislator. A
consideration of how much independence is instituted depends upon the government
executive views as to its role of employer.
There is merit in the government adopting a role as a model employer which in part, would
support an independent option for employee relations.
10. Dispute resolution
UFUQ is of the view that there is benefit in having modern independent bodies assist with
dispute resolution between the government as employer and its employees. While there is a
role for the courts, including an industrial court, there is value in having an independent
layperson’s tribunal to assist in alternative dispute resolution.
In our view, an independent layperson’s tribunal should be able to assist with the resolution
of a wide range of disputes about industrial matters.
The union is not convinced that there needs to be multiple prescriptive legislative provisions
designed for conciliation of various categories of disputes that employees might have with the
government as their employer.
Whilst some exceptions might be considered useful, in matters such as unfair dismissal, or
remuneration matters, by and large, we expect that a broad, flexible generic jurisdiction to
assist in resolving disputes about industrial matters would suffice.
Conciliation by consent about a broad subject scope of industrial matters should be available.
Conciliation by consent does not need to be subject to a prescriptive process, or necessarily
distinct between disputes about bargaining, dismissals, freedom of association, remuneration
etc.
A simple jurisdiction allowing for a wholly without prejudice conciliation or mediation about
any industrial matter is worth considering.
Consideration should be given to allowing a facility for a truncated, simpler mediated
outcome process under the umbrella of conciliation.
Tribunal members involved in conciliation ought to be required to maintain confidentiality.
11. Recommendations by consent – expedited processes
10
Legislative provisions for parties to agree to accept private recommendations by consent to
determine matters in dispute could be introduced as an alternative to proceeding to
arbitration. This would provide a convenient and expedient alternative and would not
necessarily require comprehensive written reasons in all cases.
This option could be used where the parties are not seeking a lengthy case (e.g. including
numerous witnesses and contested evidence) and would prefer an expedited decision rather
than waiting a year for a case to be heard and another year for a decision (for example in
unfair dismissal claims).
12. Arbitration
Arbitration of industrial matters by consent should be available.
Arbitration, other than by consent, in most circumstances, should be an absolute last resort.
In general, arbitrations should only occur upon application by a party, and other than in
agreed expedited processes, be subject to regular, public, transparent proceedings.
Tribunals ought not to commence proceedings of their own motion.
13. Collective Bargaining
UFUQ supports an option for collective bargaining about industrial matters.
Settled bargains ought to be able to be reflected in enforceable industrial instruments,
including awards and agreements.
Bargains ought to be immune from statutory amendments which alter agreed content.
Bargains ought to be able to be entered into by registered industrial associations on behalf of
members.
14. Simple system
UFUQ is supportive of a modern, simple system allowing for collective agreements to be
made about industrial matters.
Processes for negotiating and making agreements should be simple and not overly
prescriptive.
We believe that an incorporation of ‘good faith’ and ‘best endeavours’ bargaining would
assist.
11
15. Bargaining conciliations
There should be an option for assistance with bargaining negotiations.
The existing system of bargaining conciliation should not be retained.
Currently under section 148, there does not have to be a ‘breakdown in negotiations’ as a
matter of fact. Any party can simply file a form and an expansive, inflexible and prescriptive
jurisdiction is enlivened.
In particular, current processes accommodate bargaining conciliations in the absence of all
parties’ consent. Such an approach ought to be discouraged.
It is especially important to modernise the current approach where faux ‘conciliation’ is
utilised to dilute parties’ rights to freely negotiate and bargain.
The government as employer, has often engaged in ‘surface bargaining’.
The existing bargaining conciliation provisions were never intended to operate in the manner
they evolved into (refer in particular to the Gardner report1).
Tribunal processes ought to be focussed upon assisting with process matters, and good faith,
and/or best endeavours bargaining and adopt facilitative support to parties who wish to reach
their own bargain.
Some outdated notions which confuse bargaining with illegitimate, or irregular industrial
conflict need to be completely extinguished.
A system of collective bargaining must respect and facilitate bargaining parties’ rights to
apply bargaining pressures, including legitimate protected action.
Antiquated confusion about the motive of industrial tribunals, when conciliating disputes, to
inhibit industrial action, has no place in a modern system of collective bargaining and
protected industrial action.
A tribunal must be required to uphold parties’ rights to take protected industrial action. A
system of bargaining conciliation should not allow orders to be made which remove parties’
rights during bargaining.
Assisting parties by conciliating negotiations should not lead to an automatic process of
arbitrating a 3rd party conclusion.
1 Review of Industrial Relations Legislation in Queensland – Industrial Relations Taskforce Report, December
1998, Professor Margaret Gardner et al.
12
Legislation and tribunals should be open and flexible to assisting parties by consent, but be
restricted and reluctant to impose either conciliation or arbitration in the absence of consent
of the parties.
16. Tribunal intervention
Tribunal intervention in matters should be heavily circumscribed.
There should be little or no reason to provide powers for a tribunal to act of its own motion,
or conduct matters contrary to the wishes of the parties involved.
17. Bargaining arbitration
There should be a capacity for an independent tribunal to arbitrate remuneration and
employment conditions by consent of all parties.
Arbitration in the absence of consent should be available only under last resort circumstances.
The existing system of arbitrating alternative outcomes to bargained settlements should not
continue in its current practices.
The current system does not operate as suggested by the Gardner report (refer in particular to
page 109)2.
No ‘principles’ have been issued for the arbitration of agreements, despite the existing
principles first issued in 2000, contemplating this prospect.
Currently, bargaining arbitrations result in comprehensive orders inclusive of ‘agreed’ and
‘arbitrated’ matters which blur the distinction.
Arbitrations can occur too easily without consent.
The existing system should not be retained.
18. Bargaining industrial action
Employees should be free to take industrial action in accordance with ILO conventions.
Whilst legally ‘protected action’ has evolved for bargaining processes, in effect legal rights to
strike are severely limited.
2 Gardner, 1998. As at footnote 1.
13
The current laws diminish employees’ rights to take industrial action and restrict protection to
action taken during a limited bargaining period.
There should at the very least be a genuine right to take protected industrial action to support
or defend bargaining claims.
That right should be respected and acknowledged and not be unnecessarily fettered by
industrial institutions.
It should be understood that ‘protected action’ is not unwelcome ‘industrial disputation’,
which needs ‘resolving’, but is integral to ‘bargaining’.
Bargaining must be allowed to continue in a free and unfettered manner.
At the very least, employees ought to be entitled to take protected industrial action during
bargaining, negotiations and conciliation. The right to take protected action during
conciliation is especially important when the employer can invoke conciliation without the
consent of employees.
Placing limits on industrial action during arbitrations might be easier to justify, particularly
during a period of consent arbitrations.
In essence, subject to extraordinary circumstances, an industrial system should allow for
robust, vigorous bargaining with industrial action, or as a distinct alternative, a system of
arbitrating deadlocked disputes.
An industrial tribunal should have limited circumstances where they can curtail protected
industrial action.
There should not be a requirement for formal ballots for protected industrial action. There
should be a requirement for industrial action to be properly authorised by a registered union
on behalf of their members.
19. Industrial action
UFUQ supports the rights of employees to strike in a democratic society. In our view, the
basic right should not be artificially restricted to periodical bargaining rounds.
The right ought to be able to be exercised to defend industrial rights.
Our members are practically limited to the extent to which they will take industrial action,
given their critical role in maintaining community safety.
As long as robust bona fide contingency arrangements are in place, we should be able to
exercise democratic rights, subject to community safety not being compromised.
14
The parliament ought to give better effect to relevant ILO conventions.
20. Legal representation
UFUQ believes there are benefits in instituting a modern layperson’s tribunal to deal with
industrial matters.
Previous attempts to deal with the issue of legal representation within industrial tribunals
have been confused and unsatisfactory.
Consideration should be given to allowing legal representation by all parties, if all parties
consent.
Note that some existing tribunals like ADCQ and QCAT, and to a lesser extent QIRC, have
restrictions on representation, including legal representation.
UFUQ believe that there should only be very limited, clearly specified circumstances, if any
at all, where an industrial tribunal should allow parties to be legally represented in the
absence of consent.
‘In house’ lawyers directly employed by the parties should be permitted.
21. Minimum Employment Conditions
Minimum employment conditions should be enshrined in industrial legislation.
There should be a statutory minimum wage.
UFUQ believe that some of the provisions of the existing Industrial Relations Act 1999
applicable to pre-modernisation instruments ought to form part of new minimum employment
standards under a new statute.
In particular, we believe that the standards of section ‘9A: working time under industrial
instruments made after September 2005’, should be minima for all employees in a new
statute –
[Ordinary hours no more than 6 in 7 days, 38 hour week, 7.6 hour day, overtime no
less than 150% for day workers 200% for shift workers, break times, shift loadings,
weekend rates, and casual loadings].
The Act should also include minimum statutory standards relating to Sick Leave, Carer’s
Leave, Domestic Violence Leave, Bereavement Leave, Cultural leave, Jury Service Leave,
Annual leave, Family Leave, Long Service Leave, and Public Holidays.
15
22. Job security and unfair dismissal protection
A modernised industrial system should have greater job security protection. There should be
adequate protection against unfair dismissal.
There should be termination, change and redundancy (TCR) protections and entitlements.
There should be protections against unfair contracts which prejudice job security, such as
long term consecutive fixed term arrangements.
A simple ‘recommendations by consent’ option could be included in the conciliation powers
of an industrial tribunal.
There should be an expedited process option.
Existing ADCQ powers could be boosted to provide better remedies.
23. Wages and underpayment recovery processes
A modernised structure should incorporate a system to deal with disputes about
noncompliance with payment obligations.
The general issue should also be covered by a broad option for conciliation about industrial
matters by an industrial tribunal.
Consideration may be made to expanding the jurisdiction of the industrial court, and
including a facility for alternative conciliation and mediation prior to a judicial process.
24. Minimum wage adjustments
The state industrial system currently has a system of awards, including minimum wage rates.
The capacity to incorporate bargained wage increases into awards ought to be reinstated. That
practice had maintained the relevance of award rates.
Certified Agreement (CA) rates were usually higher than award rates, although at lower
classification levels it was not unusual for CA rates to fall below awards rates.
Currently, there is a state wage case every year. The relevance of this process should be
considered.
A simple mechanism could be implemented whereby there is an option for minimum rates in
all state awards to be adjusted by the amount or percentage granted by the commonwealth
wage fixing body.
16
Consideration could be given to empowering an independent remuneration tribunal to adjust
award rates in line with a commonwealth tribunal decision.
The onus could be to adopt the decision, unless an objection is received, and then the tribunal
can consider the objection.
Consideration should also be given to empowering an independent remuneration tribunal, or
industrial tribunal, with a broad power to examine work value, or comparative wage justice
inquiries.
There is little or no benefit in retaining outdated ‘wage fixing principles’ as currently
prescribed.
25. Freedom of Association
Freedom of association (FOA) rights protections should be clarified and strengthened. There
are currently some patchy protections in the IR Act 1999 and the Anti- Discrimination Act
1991.
The Australian system of compliance with ILO conventions, by enacting a system of
registered industrial organisations, should continue into the state system.
Consideration ought to be given to bolstering the capacity for demarcation orders against
non-registered organisations, who hold themselves out as performing industrial functions
without adopting the obligations arising from registration under the laws of the land.
The current FOA provisions are inadequate.
Careful consideration should be given to adopting some of the protections in the federal act.
Union members ought to be protected from any obstruction of their being able to benefit from
all incidents of union membership in the workplace.
It is especially important for state government employees to be able to enjoy full protection of
freedoms of association, given the power relationship between employees and the state
government as employer.
26. Right of entry
It is critical that the government as employer recognises and accepts that its employees have
the right to the benefit of all incidents of union membership.
The right to meet with union officials is an important right that should be protected.
17
UFUQ disagrees with the suggestion in ‘Issues Paper 2’ that powers provided in section 373
of the Act have always been contingent on the power to inspect and request information and
employee discussion provisions were incidental to that power.
Refer to appendix one to this submission for more details on our view on the existing
legislative provisions set out in the Act.
It may however, be prudent to draft simpler provisions which set out that union officials can
enter workplaces to hold discussions with employees.
27. Registration of state based unions
UFUQ is supportive of a system of registration of state based unions.
Unregistered associations should not maintain unlimited privileges without obligations.
There should restrictions on the registration of new unions when an existing union already
has coverage.
28. Unfair contracts
A modernised system should allow for a review of contracts of employment, including a
basic capacity to have disputes about contracts settled.
Currently, the Act is drafted in relation to ‘award free’ employees, although it seems arguable
that unfair contracts about matters not dealt with by awards could also be reviewed, even
where a person is covered by an award.
There may be scope to prescribe powers for the industrial court, with alternative dispute
resolution procedures such as conciliation or mediation at an industrial tribunal.
There ought to be a capacity to examine unfair employment contracts such as rolling ‘fixed
term’ contracts.
29. Industrial court
Consideration needs to be given as to the capacity of the industrial court.
The Gardner review recommended that the court have full time officers3.
The court has since reverted to part time.
3 Gardner, 1998. As at footnote 1.
18
The number of court matters has increased over the past three years, possibly attributable to
increased industrial conflict requiring litigation.
The time taken for decisions to be issued following the final hearing dates of matters might
need to be examined.
Currently UFUQ has two matters awaiting a decision.
One matter, C/2015/6, concluded in April 2015 and no decision has been issued six months
later.
Another matter, C/2014/39 concluded in January 2015 and no decision has been issued some
nine months later.
An option under a modernised system might be to expand the court and include more
alternative dispute resolution functions.
An industrial tribunal requires supervision of a court and broader appeal rights.
The initiation of matters in a court with alternative dispute resolution options might influence
regular processing and directions to deal with industrial matters, by an associated, supervised
tribunal.
__________________________________________________________________________
Appendix 1 – Existing union right of entry and inspection of records
The current Industrial Relations Act includes provisions about right of entry (ROE) of union
officials.
The relevant provisions are located in Chapter 10, Div. 4: ‘Power to Inspect Certain
Records’. While this might suggest a reading down of the provisions for that purpose, the sub
sections in the division are not consistent with such a narrow intention.
The existing provisions provide inter alia:
372 Right of entry—authorised industrial officer
(1) An authorised industrial officer may, to exercise a power under section 373,
enter a place if—
373 Rights of authorised industrial officer after entering place
(9) The officer may discuss matters under this Act with the following persons
during working or non-working time— (a) the employer;
(b) a member employee, or an employee who is eligible to become a
member of the officer’s organisation.
(10) The officer may discuss any other matter with a member employee, or an
employee who is eligible to become a member of the officer’s
organisation, during non-working time.
19
The existing section 373 provides more rights than simply inspecting time and wages records.
There may be an argument that the general right to meet and discuss matters with employees
that are not ‘matters arising under this Act’, is confined to breaks times.
(10) The officer may discuss any other matter with a member employee, or an
employee who is eligible to become a member of the officer’s organisation,
during non-working time.
Reference to ‘any other matter’ can only sensibly be a matter unrelated to time and wages
inspections.
Reference to ‘right of entry’ is not only or strictly empowered by a motive to inspect time and
wages records with broader rights following after entry has been gained for that purpose.
Entry is allowed for the purpose of exercising any ‘power’ under section 373. Here, ‘power’
means ‘right’ as described in 373.
Note also: section 372A:
372A Notice of entry
(1) This section applies if an authorised industrial officer proposes to enter a
workplace at which an employer carries on a calling of the officer’s
organisation to exercise a power under section 373.
(2) The officer must give the employer or the employer’s representative a written
notice (an entry notice)—
(a) during the employer’s business hours; and
(b) at least 24 hours, but not more than 14 days, before the entry.
(3) The entry notice must be signed by the officer and state the following—
(a) the workplace the officer proposes to enter; (b) the day and time
of the proposed entry;
(c) the officer’s name and organisation;
(d) the powers the officer proposes to exercise under section 373,
including, if the officer intends to inspect records, the records to be
inspected;
(e) if the records to be inspected include the time and wages records of
employees—
(i) each employee, or class of employees, whose records are to be
inspected; and
(ii) that the officer’s organisation is entitled to represent the
industrial interests of the employee or class; and
20
(iii) the provision of the organisation’s rules that entitles the
officer’s organisation to represent the industrial interests of
the employee or class.
The above entry notice requirements contemplate broader powers than the inspection of
records.
The powers the officer intends to exercise might include the inspection of records. Then, ‘if’
the officer intends to exercise that power, certain requirements must be notified, and ‘if’ the
officer does not intend to inspect records, then they are notifying of an intention to exercise a
different ‘power’ (i.e. ‘right’), such as meeting with members and potential members during
non-working time (as per previous long standing rights to enter workplaces and hold
discussions with employees).
The ‘employer notice in response’ provisions also fortify an argument that Right Of Entry
may be exercised for broader purposes than inspecting records:
372B Employer notice in response to entry notice
(1) This section applies if an employer or an employer’s representative receives
an entry notice from an authorised industrial officer.
(2) The employer or employer’s representative may give the officer a written
notice (an employer notice) stating the place or places the officer may enter to
exercise the powers under section 373 that are stated in the entry notice.
(3) For subsection (2), a place may be—
(a) a particular part of the workplace, or a particular route to be used to
access the part, stated in the entry notice; or
(b) if the entry notice states that the officer intends to inspect records—
another place where the records detailed in the entry notice are kept or
may be accessed, if the employer or employer’s representative is, or has
the consent of, the occupier of that place; or
(c) a particular route to be used to access another place stated in the notice.
(4) The employer notice must be given before the day and time of entry stated in
the entry notice.
(5) If an employer notice given to the officer under this section states a place or
places where the officer may inspect the records detailed in the entry notice,
the employer or the employer’s representative must ensure the records can be
inspected at, or accessed from, that place.
Section 372B(c) contemplates the union providing notice of an intention to access a place
other than where records are kept (e.g. a lunch room) and the employer being able to specify
the route to be taken by the official to get there. The ‘notice’ referred to in the sub section is
unlikely to mean the employer’s notice.
21
There have been some disputes about the interpretation of the existing provisions.
It would be prudent to include redrafted provisions which make it simpler to understand that
union officials have a right to enter workplaces and hold discussions with employees.
___________________________________________________________________________
Appendix 2 –Examples of codes of conduct
(a) Victorian Civil and Administrative Tribunal – Conduct Guide for VCAT Members.
(b) Fair Work Commission – Member Code of Conduct.
(c) New South Wales Civil and Administrative Tribunal – Member Code of Conduct.
(d) South Australian Civil and Administrative Tribunal – Appendix 2: Code of Conduct for
Tribunal Members.
(e) Queensland Crime and Corruption Commission – Code of Conduct.
22
_____________________________________________________________
Bibliography
Review of Industrial Relations Legislation in Queensland – Industrial Relations Taskforce
Report, December 1998, Professor Margaret Gardner et al.