Thinking of renewing your Enterprise Agreement?

You may be thinking of renewing your current enterprise agreement or looking to negotiate one with your workers. With reports of increased union activity within the ACT region, it is important that you know your rights and obligations around freedom of association when it comes to agreement making.

It has been known that the building and construction industry unions are renowned for applying undue pressure upon businesses and in some cases, workers.  Whilst workers should be paid in accordance with the relevant Award and should be able to work in an environment that is safe, sometimes the messages being delivered by delegates and interpretation by industry can be misconstrued.

It is important to know your rights when dealing with a union. Here are a few tips:

• You and your workers have the right to freedom of association under the Fair Work Act 2009 (Cth).
• You do not need to have an enterprise agreement to do works in the building and construction industry. If having an enterprise agreement is not right for you, don’t feel pressured to sign up to one.
• A union is the default bargaining representative for an employee who is also member an eligible union. However, an employee can appoint another person or even themselves as their bargaining representative, regardless of their union membership status, but this appointment must be done in writing.  Employers can have a bargaining representative, such as an employer association like Master Builders, during the bargaining process.
• You do not need to allow access to your site or records without a valid right of entry permit and applicable notice being provided.
• It is the recommendation of Master Builders that you should not allow any person to enter your premises without a valid and lawful reason for doing so. If there is no valid reason for a union delegate to be present on your premises/site, you can ask them to leave.
• If there is a suspected safety breach, an entry permit holder must exercise correct right of entry to obtain access to your site.  You should not refuse, hinder, delay or obstruct entry to site for the purposes of an entry permit holder investigating a suspected safety breach.  If you are concerned about the suspected safety breach, or where there is a dispute that arises as to how to remedy the suspected safety breach, you can call WorkSafe ACT.  Please note that in the ACT, the WHS legislation allows an entry permit holder to investigate another suspected safety breach where there is a reasonably suspicion that another suspected contravention has or is occurring.

Some frequently asked questions:

What does freedom of association mean?

Employers, employees and subcontractors are free to choose whether or not they become a member of a relevant association such as a union or employer association.  There should not be undue pressure to become a member of such associations placed on any person, nor should they be subject to discrimination for being a member.

What is the difference between an Enterprise Agreements and just paying under the Award?

An Award sets out the minimum rates of pay, allowances and entitlements (such as paid leave, notices of termination, etc.) for a particular industry, such as the Building and Construction General On-Site Award 2020.  Employers can pay above the minimum rates prescribed in the Award but cannot pay less.

An enterprise agreement is an agreement registered with the Fair Work Commission and usually applies to a particular business or group of businesses.  The Agreement will set out rates of pay and entitlements for these employees but these rates and entitlements cannot be less than what is prescribed under the relevant Modern Award and/or the National Employment Standards (NES).

Bargaining Representatives

A bargaining representative is a person or organisation that represents a party to an enterprise agreement.  This can be an employer, a trade union or a person specified in writing by a party to the enterprise agreement.

Right of Entry

Right of entry powers are provided under either the Fair Work Act 2009 (Cth) and/or the relevant State/Territory Work Health and Safety legislation and allow an entry permit holder to investigate a suspected breach of the relevant legislation.

If a ‘right of entry’ power is being exercised by an entry permit holder, there are certain questions that you should ask prior to allowing them access.

1. Does the person have a valid entry permit and have they shown this to you?
2. What is the reason for their ‘visit’? Depending on the reason will depend on the notice to be provided:

• For a suspected safety contravention – where the entry permit holder is exercising his/her rights to investigate the suspected safety contravention and the exercise of this power is within work hours, access should be provided as soon as the PCBU or person in control of the site has been notified of the entry permit holder’s presence at site.  It is important that entry is not refused, delayed, hindered or obstructed when correct right of entry process has been followed.
• To hold discussions with employees – at least 24 hours’ notice but not more than 14 days before entry; or
• To investigate matters concerning the Award, industrial agreement and/or the Fair Work legislation – at least 24 hours’ notice but not more than 14 days before entry.

When exercising right of entry powers under the WHS legislation, an entry permit holder must produce their entry permit under the Fair Work Act 2009 (Cth) and the Work Health and Safety Act 2011 (ACT).

An entry permit holder cannot intentionally hinder or obstruct works on-site, nor can they be reckless or give the impression that they can do something that they are not authorised to do.  The entry permit holder must also comply with any reasonable requests by the PCBU to comply with any WHS requirements, such as inductions or safety briefs that might apply to the site.

Please note that you cannot refuse or unduly delay, hinder or obstruct entry to an entry permit holder where correct right of entry process has been followed.

Want more information regarding right of entry?

Master Builders run workshops for members who would like to know more about their rights and obligations when it comes to providing access to site. If you would like more information on setting up a workshop for your employees reach out to the Workplace Relations and Legal Team to arrange your private session.

For more information on enterprise agreement making our Workplace Relations and Legal Team are here to help. Reach today on (02) 6175 5900.