Prior to the introduction of the Employment Relations Act 2000 ("ERA"), a union representative’s right of access was severely limited - an employee simply did not have the right to insist on their representative having access to the workplace.
The ERA has significantly widened union access provisions to enable union representatives to enter a workplace at reasonable times during working hours, in a reasonable way. But what is reasonable and when is enough, enough?
A recent Employment Court decision provides us with a helpful insight:
National Distribution Union Inc v Carter Holt Harvey Ltd, 03/12/01, Goddard CJ, Travis, Colgan JJ, AC 70/01
This case revolved around the central issues of ERA compliance, union access and reasonableness. The Employment Court was asked to decide:
whether Carter Holt Harvey ("CHH") had denied the Union a right of entry into the workplace; and whether this constituted a refusal or a failure to act in good faith.
This case shows that union access does not have to be purely for discussions with members on restricted matters, such as member recruitment. It now includes a number of monitoring functions, the ability to ensure ERA compliance, as well as access for safety and health matters.Helpful Insights"Workplace" now has a broader definition under the ERA. It means not only the employee’s workstation, but the whole work place. Employers cannot restrict where a union official can go.
A union official does not need to wait for an employer’s permission to access the workplace. The only time permission must be given is in regards to:
the security or defence of New Zealand; or the investigation or detection of offences.Union officials must comply with existing reasonable procedures and requirements which apply in the workplace (i.e. health and safety, security). Although an employer cannot refuse entry into the workplace for these reasons.
The concept of good faith applies to all parties in the employment relationship - the employer, the employee and the union.
The "reasonableness" test under the Employment Contracts Act 1991 has not changed under the ERA. Therefore "reasonable time" will often depend on:
the degree of disruption involved; the length of time that is to be taken by the union; the frequency of claims to exercise the right of entry; the actual time of the request; whether or not prior notice has been given by the union; and how long it will be before the employee will be free from what they are doing.
It is all a matter of striking a fair balance between the employer’s interests and those of employees and their representatives.
What Happens if Access is Refused
The maximum penalty for a breach of the access provisions in the ERA is $10,000.
In this case, Carter Holt was found to have breached the access provisions by not allowing the union to have access to the workplace. This breach was both "considered and deliberate" and not in accordance with good faith principles.
It is interesting to note that the Court took into account the "bad" behaviour of the union and its members during the strike and decided to reduce the penalty imposed on Carter Holt to $5,000.
This case is a good example of how all parties to an employment relationship must act in good faith towards one another.
The contents of this article are for information purposes only and should not be acted upon without specific legal advice. KPMG Legal does not accept any liability other than to its clients and only then in relation to specific requests for advice. KPMG Legal is an independent law firm.
If you would like further information please contact:
Peter Churchman - pchurchman@kpmg.co.nz
Jane Latimer - jelatimer@kpmg.co.nz
Clayton Kimpton - clkimpton@kpmg.co.nz
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