Help, how do I deal with the Union?

Often this question comes up when a right of entry notice has been issued out of the blue or a union rep has been notified as the support person for a disciplinary meeting or investigation. So…if you thought you wouldn’t have to deal with the Union in your business, or you haven’t before, here’s some thoughts from me.

Representation

In all of the following situations, your interaction with someone from a union is going to be as the representative of one of your staff:

• Disciplinary Meetings
• Performance Management
• Dispute Resolution
• Consultation eg: redundancy or significant change to employment

It’s likely you don’t even know your staff member is a member of a union until you instigate these activities (check out other articles about these topics!) and then you’re informed that the union rep will be attending your meeting as a support person.

For some reason, it seems a lot scarier when a union rep attends as a support person, but it’s really no different to someone’s parent, spouse or lawyer friend. A support person’s role is usually to provide emotional support, take notes and clarify any comments or questions. Their role is not to speak on behalf of or advocate for your staff member.

You can not refuse the presence of a support person, except in really rare circumstances (ask about this before acting!)

If a staff member nominates their union rep to attend as their support person, I always establish before the meeting begins that they are attending in the support person capacity and not as a representative. Union officials obviously know the difference between the two roles and if, during the meeting, they start acting like a representative instead of a support, I’ll pause the meeting, remind them of their role and seek confirmation they understand before continuing (and document the exchange in my notes). There are some interesting cases (most notably Vong v Sikg) where it’s really mattered when the employer got the nature of the role wrong.

My personal view is, if the union rep wants to act as an official and not a support person, you’ve ceased being able to have an effective two-way conversation with your staff member and in most circumstances, the interaction may be better served through written correspondence.

Right of Entry

The other circumstance where you’re likely to interact with a union official, whether you have any staff who are members, or not, is when you are issued with a right of entry notice. You can not ignore a right of entry permit or deny the Union entry to your workplace in accordance with the Fair Work Act or State Work Health and Safety legislation. There’s an interesting case (CFMEU v Hanssen Pty Ltd), where penalties of $79,000 (ouch!) were imposed, payable by Hanssen to the CFMEU; a caution to not end up here.

Permits can be used to conduct investigations into contraventions of workplace rights. The permit holder (the union rep) must have reasonable suspicion and sufficient information about the wrongdoing that is affecting members eg: to reasonably suspect underpayment of Award entitlements, you would expect payslips or rosters prior to entry.

You will usually receive 24 hours notice of the entry, however, for alleged breaches of work health safety legislation, notice is able to be provided after an immediate entry.

Strategy

My top tips for managing the Union once they arrive (during work / operational hours) are:

1. Greet them and request they produce their permit and right of entry notice. Request to make a copy of their permit for your records (you can do this by simply taking a photo on your phone)
2. Show them to a location to conduct their business. Depending on the layout of your workplace, this is ideally a table and chairs in the corner of a room or a lounge out of the way somewhere. If you have an office that is not being used, that is acceptable also. Note: I prefer this location is not somewhere staff usually gather or a thoroughfare
3. Give the Union representative a thorough direction about complying with work health and safety while in your workplace, including where the bathrooms are and the route/direction they must travel to them, from their assigned location, should they need the bathroom.
4. Offer them a glass or bottle of water and bring it to them and ask if they need anything else to conduct their business.
5. Brief them on any COVID-safe expectations such as wearing a mask, sanitising their hands etc, if relevant

A permit holder can interview any staff member who agrees to be interviewed (as long as they work in a position within the union’s coverage) – so if you’re a hospitality venue, they can interview Bartenders, Chefs, but not necessarily the Gardener or the Sales & Marketing Manager.  A permit holder is also allowed to inspect work, processes or assets if they are relevant to the investigation they have entered for and require the business to produce documents that are relevant.

Remember, being a member of a union is a protected attribute. You can not take adverse action (eg: suspension, demotion, disciplinary action, discrimination or termination) against a staff member because they are a union member or involved with union officials.  You are risking a General Protections claim if even a tiny part of the reason you acted adversely against your staff member was related to the union’s involvement. But don’t worry, being a union member doesn’t make a staff member invincible. You can still discipline, manage or dismiss someone with a union rep present, as long as you clearly articulate the (valid) reason and follow a fair process.

The time to seek support about union activity is as soon as you are aware of it so you can remain in control of the situation and follow a strategic plan of action.

At the end of the day, we all have a job to do and if everyone does theirs appropriately, we can all get along nicely!