Employer rights and obligations regarding union access to workplaces

With the Employment Relations Amendment Bill proposing to roll back the clock on many aspects of union rights in the workplace, it is timely to consider the law presently, and what are employer rights and obligations regarding union access in the workplace.

The rights of Union representatives to access workplaces

Section 20 of the Employment Relations Act 2000 provides the right for union representatives to have access to workplaces to:

• Discuss union business with its members;
• Recruit new union members;
• Provide union information to any employee on the premises;
• Bargain with the employer for a collective agreement;
• Deal with health and safety issues for its members;
• Check that the employer is complying with the collective agreement;
• Check that the employer is complying with employment law;
• Help an employee with the terms of their individual employment agreement, if the employee has asked them to; and
• Ask the employer to comply with any relevant requirements if non-compliance has been detected.

In order to be entitled to access a workplace, the union representative must:

• Have a reasonable belief that either a member of the union works there, or that someone in the workplace carries out the type of work that is covered by the union;
• Gain the employer’s consent, or implied consent;
• Request access at a reasonable time of day;
• Access the workplace in a reasonable manner, considering normal business operations; and
• Comply with health, safety and security procedures.

Employer consent required to enter a workplace

Union representatives are required to obtain the employer’s consent before entering a workplace. However, union access cannot be unreasonably denied. If a union representative requests access to the workplace, the employer must communicate their decision as soon as reasonably practicable, and at least by the next working day. Consent is deemed to be given if the employer does not respond within two working days.

Employers must not unreasonably withhold consent to access a workplace. If they do withhold consent, then they must give the reason for doing so to the union representative, in writing, as soon as is reasonably practicable, and at least by the next working day after the decision was made. A penalty may be imposed on an employer for unreasonably withholding consent or failing to give reasons in writing for withholding consent.

Reasons to deny union access

Employers cannot deny access unless they have an exemption certificate and meet strict requirements. Refusal of access without lawful excuse, or the obstruction of a union representative in entering in a workplace, may create employer liability to a penalty.

Union action within the workplace

Union representatives must act in a reasonable way in the business, having regard to normal business operations. This includes complying with reasonable health, safety and security procedures, and providing proof of identity and authority to represent the union. A union representative can only talk to an employee for a reasonable amount of time. Employers are not entitled to deduct from an employee’s pay for the time that he/she is talking to a union representative.

Union – employer relationship

Unions can play a positive and constructive role in employment relationships. Clear communication at the outset is the key to ensuring that union representatives accessing the workplace do so in a way that is reasonable and respectful to the business and its operations.