Employers fight ‘new wave’ of industrial relations war

The Albanese government has proposed new laws enshrining rights for union delegates and enhancing their ability to conduct snap inspections of pay records.

Workplace Relations Minister Tony Burke says the government is looking at ‘how we can make sure that we advance the rights of delegates at the workplace’. Picture: NCA NewsWire / Martin Ollman

New laws enshrining rights for union delegates and enhancing the ability of unions to conduct snap inspections of pay records are being proposed by the Albanese government, sparking employer claims that companies will be forced to fund a “new wave of industrial activism”.

The Australian can reveal the two proposals, which employers argue exceed Labor’s electoral mandate, were disclosed during confidential briefings given to employers and unions by the ­Department of Employment and Workplace Relations about the government’s proposed second wave of workplace changes.

While attendees signed non-disclosure agreements preventing them from commenting on the proposals, The Australian has confirmed the government wants to legislate to advance the rights of union delegates and clarify the ability of unionists to conduct payroll inspections without notice where they suspect workers have been underpaid.

Australian Industry Group chief executive Innes Willox said employers would be “outraged” if the government proposal resulted in companies having to provide additional paid leave or other ­entitlements to union delegates, given that just 8 per cent of private sector workers were now union members.

Australian Resources and Energy Employer Association chief executive Steve Knott accused the government of seeking to turn union delegates into union ­officials, and engaging in a “ruse to have employers saddle the cost for a new wave of industrial activism”.

In a previously unreported ­address last week to the Health Services Union, Workplace Relations Minister Tony Burke said the government was looking at “how we can make sure that we advance the rights of delegates at the workplace”.

“We don’t put laws through the parliament for the thrill of seeing words on a page,” Mr Burke, a one-time delegate with the shop assistants union, said.

“We put them through because we want to have an impact on people’s lives, and we know, I know from my days as an organiser as well, and my days as a union delegate … I know how many issues just go through to the keeper.

“You can’t expect somebody who’s flat out with their personal life and keeping their head above water with their job to also be an expert on all their workplace rights.

“It’s never going to happen.

“But to have people at a workplace who are trained, who have the rights to be able to look at, to be able to talk to you and let you know what your rights are, those concepts aren’t some, you know, radical agenda or anything like that, it’s about making sure that the laws we pass reach every workplace in Australia. So you’ll hear more, you will hear me saying more about that.”

Workers who are union members will usually be represented at the workplace by a colleague who is a union delegate.

The delegate is an employee of the company and not a full-time paid official of the union.

Mr Knott said employers “should not have to fund and facilitate de facto union officials among their workforces”.

Under the changes, the government is proposing to amend the Fair Work Act to provide delegates with a general protection from employers who refuse to deal with them, mislead them or hinder or obstruct the exercise of their rights as a delegate.

A mandatory term would be included in awards or enterprise agreements giving effect to primary and ancillary delegates’ rights, and the Fair Work Commission would make the model term for enterprise agreements.

The proposed primary rights include representing the industrial interests of members, and potential members, to the employer, and representing one or more union members, and potential members, in disputes with their employer.

The proposed ancillary rights include reasonable access to communicate with members and potential members about matters of industrial concern, workplace facilities, paid time and training as well as delegates having paid time to undertake these functions.

The government also wants to amend the Fair Work Act to clarify the ability for a right of entry permit holder to enter a workplace to investigate suspected wage underpayments without the required 24-hour notice.

If satisfied a contravention involves wage under-payments, the Fair Work Commission will be required to issue an exemption certificate to a permit holder that allows them to enter premises without 24 hours’ notice, and conducting the discussions in a room or area that a permit holder considers appropriate.

Workplace lawyers questioned the need for the amendment, saying existing provisions allowed for entry without notice when certain conditions were met.

In its briefing to employers and unions, the department said the change to enable permit ­holders to exercise entry rights without providing 24 hours’ notice would reduce the capacity for the “concealment of underpayments”.

Under the amendment, the commission must be satisfied there was a reasonable prospect of wage underpayments before grating the application.

Mr Burke declined to comment on the proposals when approached by The Australian. They will be subject to further consultation ahead of the government introducing the second wave legislation in September.

In a statement on Sunday, the ACTU said the “government was elected with a mandate to improve and update the work laws in light of a decade of wage ­suppression”.

“It is great that we have a government that cares about supporting working people in the face of a cost-of-living crisis,” an ACTU spokesman said

“We have advocated to modernise our work laws to stop wage theft, to improve protections for casual and insecure workers and to close loopholes that allow big companies to drive down wages using outsourcing.”

Mr Willox said “any changes to require employers to provide additional pay for the performance of union training or activities would be viewed as a shameless and shockingly in­appropriate gift to the unions”.

“The government never foreshadowed this as part of their pre-election commitments and shouldn’t seek to now slip it through among a wave of other radical changes to workplace laws,” he said.

Mr Willox said many enterprise agreements already provided union delegates with various rights at workplace levels.

Mr Knott said workplaces in the resources sector were not in a position to respond to unnotified union right of entry requests.

“These are major industrial sites,” he said. “Visitors can’t just roam around the site; 24 hours’ notice works well and helps with right of entry being facilitated in an orderly fashion.

“Records will still be there when union officials arrive after appropriate notification.”