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

E:amassaro@rk.com.au

Ben Tallboys

Senior Associate

Ph: 8640 2360

E: btallboys@rk.com.au

For more information about the services offered by Russell Kennedy, please visit us at www.rk.com.au