The appearance of a union at the workplace can be challenging for any employer. However, there are clear obligations on union officials and on employers during this process and knowing what is required by each party can make the situation easier to manage.
Requirements on unions before entry
Before a union representative can enter the workplace there are a few criteria to be met, not least of which is the agreement to act in good faith. More specifically, a union representative can only enter if:
- They believe members of the union work on the site, in which case they can enter the site for employment related reasons such as bargaining, health and safety of its members, compliance to the Act, or compliance with a collective agreement among other reasons.
- They believe an employee could be covered by their membership, in which case the representative can discuss union business and recruit new members. Importantly, a union official can meet with an employee for a fair amount of time and the employee cannot be penalised, such as having pay deducted, for meeting with the official.
Process of a union official entering a workplace
For a union representative wanting to enter a workplace they are required to do so at reasonable times, and must ask the employer before showing up and walking in. When an employer is asked by a union representative to enter the workplace, they cannot simply say no; there must be a reason given and it must be provide to the union as soon as reasonably practicable.
If an employer says no they must give fair reasons in writing, no more than one working day later than they were asked. Failing to advise the union of an answer within two working days will be taken as yes and the union representative can enter the workplace. Saying no and not giving a reason can result in the employer receiving heavy penalties from the Employment Relations Authority.
A union representative does not need to obtain consent from the employer before entering the workplace if either:
- a collective agreement is in force that covers work done by employees at that workplace; or
- a collective agreement is being bargained for that covers work done by employees at that workplace
When consent is not required, the current conditions on entry still apply.
When can an employer say no?
There are some reasons an employer may be able to refuse a request for a union representative to enter the workplace. An employer can refuse if:
- There are no union members and less than 20 employees in the workplace, and the employer has a certificate of exemption based on religious grounds.
- A union representative entering the workplace, or a part of the workplace, could jeopardise the security or defence of New Zealand, or the investigation or detection of offences.
Both of these reasons require formal certificates from a government agency.
Union official in the workplace
When in the workplace, a union official must act in a reasonable manner. Meaning they must respect normal business operations and comply with reasonable health, safety and security processes. It also means the union representative must notify the employer of the reasons for their entry, as well as prove their identity and authority to represent the union.If the employer or occupier isn't there or can't be found (despite reasonable efforts), the union representative must leave a written notice saying who they are, the union they represent, date, time and purpose of entry.
Both parties have an obligation to comply with guidelines related to union right of entry, which means employers should be across how they should respond to a request from a union.
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