By AMMA executive director Scott Barklamb
As the Productivity Commission reviews Australia’s workplace relations system, resource industry employer group AMMA is providing insight into the key issues for mining, oil and gas, and service sector employers. In this edition, executive director Scott Barklamb talks about union ‘right of entry’ laws.
The Productivity Commission Review of Australia’s Workplace Relations Framework represents a significant opportunity for fundamental reforms and to get Australia back on track as a competitive destination for new project investment, more jobs and improved living standards.
AMMA is leading the resource industry’s representations to the review and has lodged a comprehensive submission, backed by KPMG research as well as the practical evidence and experiences of employers in our sector.
One area where the resource industry is seeking change is that of the laws and regulations governing how, when and for what purpose union representatives can enter a worksite. This area of Australia’s workplace relations system is known as union ‘right of entry’, and can have major implications for productivity, administrative costs, safety and workplace harmony.
Union site entry ‘not a right’
Despite being known as ‘right of entry’, it is important to understand that union representatives or any other third parties do not have an inherent ‘right’ to walk onto a workplace at any time.
Practical laws for unions to enter workplaces are needed for officials to investigate suspected safety contraventions or to hold discussions with union members when their presence is requested. Historically, this has been subject to tight regulation and restrictions that ensured minimal disruption to the productivity and harmony of a workplace.
However, in 2009 a raft of changes were made to union site entry laws with the introduction of Labor’s Fair Work Act 2009. Long-standing rules governing union site access were significantly relaxed.
Such changes included that unions no longer needed to have active members on a worksite and it didn’t matter whether their presence was requested or not. Further changes in 2013 by then-Workplace Relations Minister Bill Shorten required employers to facilitate union access to remote workplaces and to open up private areas that were previously ‘off limits’, such as employee lunch rooms.
In short, the Fair Work system opened the floodgates for unions to frequently visit workplaces to attempt to recruit new members or to compete with other unions for workplace coverage. This has led to a great deal of disruption with some union representatives abusing their extended privileges with little regard for the cost, safety and productivity implications.
Understanding the competitive impacts
In its recent report, Workplace Relations and the Competitiveness of the Australian Resources Sector, KPMG found the increased union access to Australian worksites has been particularly troublesome for the resource and related industries. It includes a commonly used example in the resource sector, relating to Woodside’s Pluto LNG project, which was one of the first new mega-projects to witness extraordinary increases in union visitation.
“During the first two years of construction of the Pluto LNG Project, from 2007-2009, there were no union visits to the site,” KPMG’s report notes.
“Following the implementation of the Fair Work Act 2009 right of entry rules, there were 217 entry requests within four months. Over the following six months, the number of requests increased to 450.”
KPMG also drew on the extreme number of entry requests to BHP Billiton’s Worsley Alumina Plant, where site entry requests jumped from 82 in the years of 2007-2008, to over 1500 in 2010-11.
The research also found that free access to Australian worksites has a broad range of detrimental impacts to organisations, including:
- Costs to facilitate entry
- Compliance costs for work health and safety requirements
- Costs of obtaining additional security
- Time spent providing a safety induction for union officials
- Time spent escorting union officials through workplaces
- Costs of arranging transport and/or accommodation for remote site visits
Advocating for a better system
While acknowledging there is often a legitimate need for unions to access workplaces, AMMA’s representations to the Productivity Commission seek to ensure union workplace entry is again subject to strict regulation to minimise disruption and frequency of unnecessary union access.
Specifically, the industry association recommends a straightforward list of reforms that are largely aimed at restoring the pre-Fair Work rules which were well understood and widely respected. These changes include:
- Stronger obligations for officials to behave lawfully, follow directions, not disrupt work;
- Permission to legally enter workplaces being a privilege, carrying responsibilities, and being revocable if misused;
- Requiring unions to be responding to specific member invitations and concerns;
- Requiring unions to have an appropriate connection to the workplace, such as having members on-site or be included as a party to an enterprise agreement.
With such reforms, KPMG estimates that administrative and compliance costs, including production time lost during union visits, would significantly reduce, and potentially support ‘favourable economic outcomes, including continued investment in resources projects’.
You can read more about the Productivity Commission’s workplace relations review and the role of the resource industry at amma.org.au/backontrack