what to do when a regulator or union shows up at your door
DESCRIPTION
Russell Kennedy Lawyer's Workplace Relations, Employment and Safety team provide handy hints about making site visits from unions and from regulators as painless as possible.TRANSCRIPT
Knock, Knock.Who’s there?What to do when a regulator or union shows up at your door
Anthony MassaroPrincipal
Ben TallboysSenior Associate
19 March 2014
Overview
> Workplace records and document management
> Dealing with the Fair Work Ombudsman
> Dealing with WorkSafe Victoria
> Dealing with unions
> Know your rights> Be practical and polite> No fights
Employee records
> Employment details
> Pay
> Overtime hours
> Averaging arrangements
> Leave entitlements
> Superannuation contributions
> Guarantees of annual earnings
> Individual flexibility arrangements
> Termination of employment
Employee records - rules
> Retention – 7 years
> Employers must provide copies of records or make copies available for inspection
> Employees and former employees can request information about records
> Transfer of business – records must go to the new employer
Contesting access
> Legal professional privilege> Correspondence to/from lawyers for the
dominant purpose of obtaining advice
> Documents created in anticipation of litigation
> Privacy
> Health records
> Access to complaints
Common sense can play a part
Dealing with regulators
Fair Work Ombudsman> Ensure compliance with Fair Work Act 2009
> Cooperative approach
WorkSafe/WorkCover/RTW Inspectorate> Investigate and regulate compliance with
> Occupational Health and Safety Act 2004
> Accident Compensation Act 1985
> Adversarial tendencies
Pointers
> Be polite and courteous
> Speak from your knowledge – not what you believe, or what you’ve been told
> Do not fill in gaps
> Do not give statements
> Do not answer questions which have not been asked
> Do not be afraid of seeking legal advice
Fair Work Ombudsman
Powers of FWO inspectors
Inspectors may> Enter a workplace or a business premises where
records are kept
> Inspect work, processes or objects
> Interview persons
> Require production of documents and records
> Inspect and make copies of documents and records
> Take samples of goods or substances
Compliance options
> Enforceable undertakings
> Compliance notices
> Prosecution> Compensation
> Penalties> Up to $10,200 for an individual
> Up to $51,000 for a body corporate
> (Adverse publicity)
Suggested approach
>Remember the pointers
>Cooperate
>If notified of a breach, get legal advice
>Seriously consider an enforceable undertaking
WorkSafe Victoria
Inspectors
> WorkSafe Inspectors and Investigators police compliance with the Occupational Health and Safety Act 2004 (Vic)
> Return to Work Inspectors police compliance with the return to work provisions in the Accident Compensation Act 1985 (Vic)
Powers of WorkSafe inspectors
> Inspect, examine, make enquiries
> Inspect and examine things
> Seize things for evidence or testing
> Take photographs, measurements, etc
> Request production of documents
> Examine documents
> Require a person to answer questions (about documents?)
> No power to require you to give a statement
Your rights
>Privilege against self-incrimination
>Cannot be required to produce documents which are covered by legal professional privilege
>Legal advice or representation
Compliance options – Safety
> Improvement and prohibition notices
> Prosecution> Penalties
> Up to $259,848 for an individual
> Up to $1,299,240 for a body corporate
> Conviction
> Imprisonment (reckless endangerment)
> Undertakings and good behaviour bonds
Compliance options – RTW
> Improvement notices> Comply with RTW obligations
> Prosecution> Penalties
> Up to $25,984.80 for an individual
> Up to $129,924 for a body corporate
Suggested approach
>Remember the pointers
>Don’t obstruct, but don’t be helpful
>Be very careful about answering questions
>Paranoia can be a good thing
>Get legal advice if you’re not sure
Dealing with Unions
Right of entry
A union official may enter premises to:
> Investigate suspected contraventions of the Fair Work Act 2009 (Cth)
> Investigate suspected safety breaches
> Hold discussions with current/potential union members
Suspected contraventions
Conditions of entry:
> The union official must have a reasonable suspicion that there has been a contravention
> The suspected contravention must relate to a member of the union who performs work on the premises
> Entry notices
> Permits
While on premises, union officials may:
>Inspect premises
>Observe work
>Conduct interviews
>Only by consent
>Only with actual or potential union members
>Only during working hours
Suspected contraventions
Union officials can inspect and copy documents:
> While on premises under an entry notice
> later by giving 14 days’ notice
> Either at the premises or at another place agreed between the union and the employer
> Documents kept or available on site
> Documents must relate to a suspected contravention and substantially relate to a union member
Suspected contraventions
Safety issues
Union officials may enter premises to investigate suspected contraventions of OH&S laws related to work being performed:
> by a union member
> by a person who is covered by an enterprise agreement that applies to the union
> by a person who is eligible to be a member of the union and who is not covered by an enterprise agreement
Safety issues
Conditions of entry
> Union official must have a reasonable suspicion that there has been a contravention
> The employer must be given at least 24 hours’ notice
> Only during working hours
> The union official must take all reasonable steps to produce an entry permit when visiting a site
While on premises, union officials may:
>Inspect premises
>Observe work
>Conduct interviews
>With consent
>With current or potential union members
>Consult with employer
Safety issues
During any exercise of entry powers:
>Union officials must comply with OH&S directions
>Union officials must not intentionally hinder or obstruct any person
>Union officials must not otherwise act in an improper manner
>Other persons must not refuse, delay hinder or obstruct union officials
Behavioural issues
Setka v Gregor (no 2) (2011) 195 FCR 203
>Mr Setka employed by CFMEU
>Sought to exercise OH&S entry powers
>Swore on arrival
>Skipped site induction
>Threatened management
Setka v Gregor [2011]
MR SETKA: “This job’s a f...ing deathtrap and a disgrace. If you kill anyone on this job I am going to quit my f...ing job and get you”
MR McGREGOR: “Are you threatening me?”
MR SETKA: “I’m not f...ing threatening, I’m f...ing promising, I will get you and you”
Setka v Gregor [2011]
Federal Magistrate:
>There were OH&S issues at the site
>Mr Setka’s behaviour was still improper
>Fined Mr Setka $6,000
Full Federal Court:
>Upheld the decision
>Reduced the fine to $3,000
Setka v Gregor [2011]
Director, Fair Work Building Inspectorate v Myles & Ors [2013] FCCA 2229
> CFMEU officials entered site to investigate OH&S issues
> Official refused to show permit
> Officials verbally abused management
> Officials ignored OH&S requirements
> Officials demanded union fees from workers
> Official advised workers to down tools
FWBI v Myles [2013]
MR PEARSON: “You’re a d...head I’m not dealing with you”
MR PEARSON: “I don’t have to put up with this. I can go anywhere I want and do anything I want”
MR PEARSON: “I’m not going on [the site] with him. I’m not going on [the site] with that f...en prick”
FWBI v Myles [2013]
MR ELLIOT: “You’re not going on to the site.”
MR PEARSON:“F... you, I’m going.”
FWBI v Myles [2013]
MR ELEMENT: “Can you show me your right of entry authorisation and tell me why you are on this site?”
MR MYLES: “I don’t have to answer you, you f...ing little grub”
FWBI v Myles [2013]
The Court held:
>Mr Pearson’s and Mr Myles’ behaviour - offensive
>Soliciting union fees - obstructive
>Telling workers to down - obstructive
The Court held the union officials contravened the Fair Work Act 2009 (Cth)
FWBI v Myles [2013]
Penalties:
>Mr Pearson: $4,950
>Mr Myles: $4,950
>Mr Treadaway: $2,200
>CFMEU: $26,400
FWBI v Myles [2013]
Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164
> CFMEU alleged that Hume Highway Constructions and Mr Gittany obstructed their entry to a construction site
> CFMEU representatives left the site they were inspecting to talk to a concrete pump operator
> Heated words and violence ensued
> CFMEU representatives not allowed back in
CFMEU v Gittany [2014]
The appeal was dismissed:
>Once CFMEU representatives left the premises they could not return
>The Court held it was reasonable to refuse access to the site until the police returned
CFMEU v Gittany [2014]
Union officials may enter premises and hold discussions with employees:
>whose interests it is entitled to represent
>who wish to participate in such discussions
Right to hold discussions
Conditions of entry:
> Entry notice
> Discussions can only occur during mealtimes and other breaks
> Discussions can only take place:
> In rooms or areas agreed with employer
> Failing agreement, in a meal or break room
> Employer can provide reasonable directions about route to meeting room
Right to hold discussions
Transport Workers Union of Australia (NSW Branch) v DHL Supply chain [2011] FWAFB 33763
> DHL requested TWU use a meeting or training room to hold discussions with workers
> TWU sought access to DHL’s lunch rooms to hold discussions with workers
> TWU complained to Fair Work Commission
> TWU’s claim and appeal dismissed
TWU v DHL [2011]
National Union of Workers v Coles Group Supply Chain Pty Ltd [2014] FWC 1674
> Coles required NUW to only use a particular table in the lunch room for holding discussions
> Coles advised NUW officials not to approach workers
> FWC held that an employer cannot prevent a union official approaching employees to see if they wish to discuss employment or union matters
> FWC made no orders
NUW v Coles [2014]
The Government intends to amend the Fair Work Act 2009 (Cth) so that:
> Unions can only hold discussions on site if:
> covered by an enterprise agreement which applies to the premises; or
> invited by an employee who is a union member
> Employer may dictate where discussions occur
> No union travel expenses for remote locations
Coalition amendments 2014
45
Summary
>Know your rights
>Know when to be practical
>Know when to stand your ground
>If you don’t know, ask!
Contact details
Anthony Massaro
Principal
Ph: 9609 1501
Ben Tallboys
Senior Associate
Ph: 8640 2360
For more information about the services offered by Russell Kennedy, please visit us at www.rk.com.au