The exercise of union right of entry is a source of contention between unions and employers.
Once it is established that a union does have right of entry, there is little legislative guidance as to what the union may do on the employer’s premises.
One well-known practice used by unions involves conducting a "walk through" at the employer’s premises.
Although conducted under the guise of an inspection for the purpose of investigating award breaches, the walk through is an important part of the union recruitment process.
In a case currently under consideration, the ANZ Bank challenged the right of officials of the Finance Services Union to conduct a walk through at its premises.
ANZ accepted FSU officials had a right of entry but requested the union conduct interviews with employees in a meeting room chosen by the employer.
The FSU refused to comply with the request and the bank responded by seeking orders from the Australian Industrial Relations Commission requiring compliance.
Although this case is ongoing, ANZ has obtained interim orders preventing the FSU conducting a walk through until the dispute is resolved.
ANZ argued that the FSU had no right under the Workplace Relations Act to conduct a walk through and that this could expose the bank to liability under Federal privacy legislation on the basis that ANZ’s business involves confidential customer information.
The bank argued that allowing union officials to enter areas where client information was exposed could breach confidentiality.
The AIRC held that those arguments had sufficient merit to support interim orders.
Another aspect of union access was recently considered in a dispute involving Channel 7 and the Media, Entertainment and Arts Alliance.
After protracted negotiations for a collective agreement stalled, Seven decided to offer employees the choice of a non-union collective agreement.
Some years earlier the MEAA acquired Seven’s internal telephone directory.
After marking the names of employees the union thought might be covered by the non-union agreement, the MEAA gave the list to ACTU Member Connect.
Connect, a telemarketing company, then used the list to canvass the views of the Seven workforce about the agreement on the MEAA’s behalf.
Seven then commenced proceedings against both the MEAA and Connect.
It argued that in using the internal contact list the MEAA and Connect breached Seven’s copyright.
Justice Gyles accepted Seven’s argument, ordering the MEAA to pay $10,000 in damages for breach of copyright and Connect $2,500 in damages.
Seven claimed the MEAA infringed the privacy of its employees under the National Privacy Principles.
The court agreed, saying the MEAA should have obtained permission from Seven’s employees before collecting and using their contact information.
Importantly, Justice Gyles found Seven was entitled to pursue the claim for breach of the Privacy Principles, even though it was the privacy of its employees that had been breached.
A further union recruitment strategy involves the union having a role in the employer’s induction procedures.
Unions have no statutory right to such involvement.
However, some unions, such as the Transport Workers’ Union, have sought to include in new enterprise agreements a term that obliges the employer to notify the union of any new starters.
This enables the union to meet with the new employee and attempt to recruit them as union members.
So what does it mean?
Even where unions have right of entry their conduct in the workplace is not unfettered.
Employers can request unions to exercise their right of entry in a way that minimises disruption to the employer’s business.
Legal obligations to third parties, such as protecting client confidentiality, may limit the way unions exercise their right of entry.
Whether pursuant to a right of entry or not, unions do not have any entitlement to collect and make use of employee records for recruitment purposes without the employees’ consent.
Collecting and storing personal information is subject to national privacy principles, which a union may breach if these activities are carried out in an unauthorised manner.
Employers faced with proposed access clauses in enterprise bargaining agreements should be careful to avoid any requirements of disclosure of employee information, such as the names of new starters, which might contravene privacy legislation.
Kathy Reid, senior associate - 9429 7695