Mike Gould, of Gibson Sheat in Lower Hutt and Wellington, gives an outline of union access to the workplace under the Employment Relations Act 2000.
Before 2 October 2000
Under the Employment Contracts Act 1991 where the union had been authorised to represent an employee in negotiations, a representative of the union had the right to enter the workplace at reasonable times to discuss matters relating to the negotiations.
Where a union was seeking to represent any employee or employees in negotiations, with the agreement of the employer, a representative of the union could have access to the workplace for the purpose of obtaining authority to represent those employees.
From 2 October 2000
Under the Employment Relations Act 2000, ("ERA") the unions' right of access to a workplace is greater. A union representative can enter a workplace for two purposes:
1. for purposes relating to the employment of union members; and
2. for purposes relating to the union's business.
Grounds for union access to a workplace
Employment of union members
The purposes relating to the employment of the union's members include:
1. to participate in bargaining for a collective agreement;
2. to deal with health and safety matters;
3. to monitor compliance with a collective agreement;
4. to monitor compliance with the ERA and other Acts dealing with employment matters;
5. with the authority of an employee, to deal with matters relating to an individual employment agreement or an individual employee's terms and conditions; and
6. to seek compliance with any requirements where non-compliance is detected.
A union representative may only enter a workplace for any of the above reasons if that representative has reasonable grounds to believe that a member of the union is working in the workplace.
Union business
The purposes relating to access for the union's business include:
1. to discuss union business with union members;
2. to seek to recruit employees as union members; and
3. to provide information on the union to any employee on the premises.
A representative of the union may enter the workplace for any of the above reasons only if that representative has reasonable grounds to believe that the union's membership rule covers an employee working at the workplace.
When access must be granted, or may be denied
Conditions relating to access to workplace
The right of entry is restricted to reasonable times during the period when any employee is working. The union representative must exercise his or her right of entry in a reasonable way, having regard to normal business operations in the workplace. The representative must comply with any safety or health procedures or requirements and any security concerns of the employer.
At the time of entering the workplace the representative must advise the employer of the purpose of the entry and produce evidence of his or her identity and authority to represent the union concerned. This information must also be supplied at any time after entering the workplace if requested by the employer.
If the representative is unable to find the employer or an employer's representative, the representative must leave in the workplace a written statement of the identity of the person who entered the premises, the union and the employee(s) represented, the date and time of entry and the purpose of the entry.
When access may be denied
There are three situations in which the union may be denied access to a workplace:
1. if entry to the premises might prejudice the security or defence of New Zealand;
2. if entry to the premises might prejudice the investigation or detection of offences; and
3. on religious grounds.
For the security or defence of New Zealand and investigation of offences grounds, the Attorney General may issue a certificate that entry to the premises would be prejudicial. That certificate is conclusive evidence that access may be denied.
The denial of access on religious grounds can only take place if the employer holds a certificate of exemption from the Department of Labour that the employer is a practising member of a religious society or order whose beliefs prevent membership of an organisation other than the religious society.
Provided the employer holds such a certificate and none of the employees in the workplace is a member of the union, and there are no more than 20 employees in the workplace then the union may be denied access to that workplace.
Penalties for denying access
If any person refuses to allow a representative of a union to enter a workplace or obstructs the entry into a workplace, a penalty of up to $5,000 for an individual employer and $10,000 for a company employer may be imposed.
Union meetings
Attendance of union meetings
Every union member is entitled to attend two union meetings of up to two hours duration in each calendar year.
Notice
The union must give the employer at least 14 days' notice of the date and time of the union meeting.
Continuation of business operations
The union is required to make arrangements with the employer necessary to ensure that the employer's business is maintained during the meeting. These arrangements will include, where appropriate, sufficient union members remaining available during the meeting to allow the employer's operations to continue.
Payment
The workers attending the union meeting are entitled to ordinary pay for that maximum period of two hours per meeting.
For the purposes of verifying payment to employees attending meetings, the union must supply the employer a list of the members who attended the meeting and advise how long it was.
Penalty
Failure to allow a union member to attend a union meeting makes the individual employer liable to a penalty of $5,000 and a company employer to a penalty of $10,000.
Conclusion
With the introduction of the ERA, a union representative has wider powers to enter a workplace, and there are serious penalties available if access is denied on improper grounds. Similarly, unions are able to conduct certain union business in a workplace that they were not able to do before the ERA.
Copyright The Lawlink Group Ltd 2000
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Mike Gould is a partner in the Lawlink firm of Gibson Sheat. Mike practises in employment law, trusts, and general commercial work.
Web site: Gibson Sheat
Email: mike.gould@gibsonsheat.com
September 2000
Before 2 October 2000
Under the Employment Contracts Act 1991 where the union had been authorised to represent an employee in negotiations, a representative of the union had the right to enter the workplace at reasonable times to discuss matters relating to the negotiations.
Where a union was seeking to represent any employee or employees in negotiations, with the agreement of the employer, a representative of the union could have access to the workplace for the purpose of obtaining authority to represent those employees.
From 2 October 2000
Under the Employment Relations Act 2000, ("ERA") the unions' right of access to a workplace is greater. A union representative can enter a workplace for two purposes:
1. for purposes relating to the employment of union members; and
2. for purposes relating to the union's business.
Grounds for union access to a workplace
Employment of union members
The purposes relating to the employment of the union's members include:
1. to participate in bargaining for a collective agreement;
2. to deal with health and safety matters;
3. to monitor compliance with a collective agreement;
4. to monitor compliance with the ERA and other Acts dealing with employment matters;
5. with the authority of an employee, to deal with matters relating to an individual employment agreement or an individual employee's terms and conditions; and
6. to seek compliance with any requirements where non-compliance is detected.
A union representative may only enter a workplace for any of the above reasons if that representative has reasonable grounds to believe that a member of the union is working in the workplace.
Union business
The purposes relating to access for the union's business include:
1. to discuss union business with union members;
2. to seek to recruit employees as union members; and
3. to provide information on the union to any employee on the premises.
A representative of the union may enter the workplace for any of the above reasons only if that representative has reasonable grounds to believe that the union's membership rule covers an employee working at the workplace.
When access must be granted, or may be denied
Conditions relating to access to workplace
The right of entry is restricted to reasonable times during the period when any employee is working. The union representative must exercise his or her right of entry in a reasonable way, having regard to normal business operations in the workplace. The representative must comply with any safety or health procedures or requirements and any security concerns of the employer.
At the time of entering the workplace the representative must advise the employer of the purpose of the entry and produce evidence of his or her identity and authority to represent the union concerned. This information must also be supplied at any time after entering the workplace if requested by the employer.
If the representative is unable to find the employer or an employer's representative, the representative must leave in the workplace a written statement of the identity of the person who entered the premises, the union and the employee(s) represented, the date and time of entry and the purpose of the entry.
When access may be denied
There are three situations in which the union may be denied access to a workplace:
1. if entry to the premises might prejudice the security or defence of New Zealand;
2. if entry to the premises might prejudice the investigation or detection of offences; and
3. on religious grounds.
For the security or defence of New Zealand and investigation of offences grounds, the Attorney General may issue a certificate that entry to the premises would be prejudicial. That certificate is conclusive evidence that access may be denied.
The denial of access on religious grounds can only take place if the employer holds a certificate of exemption from the Department of Labour that the employer is a practising member of a religious society or order whose beliefs prevent membership of an organisation other than the religious society.
Provided the employer holds such a certificate and none of the employees in the workplace is a member of the union, and there are no more than 20 employees in the workplace then the union may be denied access to that workplace.
Penalties for denying access
If any person refuses to allow a representative of a union to enter a workplace or obstructs the entry into a workplace, a penalty of up to $5,000 for an individual employer and $10,000 for a company employer may be imposed.
Union meetings
Attendance of union meetings
Every union member is entitled to attend two union meetings of up to two hours duration in each calendar year.
Notice
The union must give the employer at least 14 days' notice of the date and time of the union meeting.
Continuation of business operations
The union is required to make arrangements with the employer necessary to ensure that the employer's business is maintained during the meeting. These arrangements will include, where appropriate, sufficient union members remaining available during the meeting to allow the employer's operations to continue.
Payment
The workers attending the union meeting are entitled to ordinary pay for that maximum period of two hours per meeting.
For the purposes of verifying payment to employees attending meetings, the union must supply the employer a list of the members who attended the meeting and advise how long it was.
Penalty
Failure to allow a union member to attend a union meeting makes the individual employer liable to a penalty of $5,000 and a company employer to a penalty of $10,000.
Conclusion
With the introduction of the ERA, a union representative has wider powers to enter a workplace, and there are serious penalties available if access is denied on improper grounds. Similarly, unions are able to conduct certain union business in a workplace that they were not able to do before the ERA.
Copyright The Lawlink Group Ltd 2000
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Mike Gould is a partner in the Lawlink firm of Gibson Sheat. Mike practises in employment law, trusts, and general commercial work.
Web site: Gibson Sheat
Email: mike.gould@gibsonsheat.com
September 2000
July, 2001
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