Right or Wrong – That is the Question?

Access to workers by unions has not always generated the best of relationships between employers and the agency. There have been underlying perceptions that by letting the union come into their business premises the priority of the visit is to recruit new members. There is truth to this and nevertheless, union representatives have the right to access the employer’s workplace so long as certain conditions are met.

Consideration of rights

In our industry we need to consider the contractor’s rights and obligations, the forest owner’s obligations and the union’s rights here, as well as the privacy of disclosing employer’s details without seeking permission. 

With the international certification system FSC and our own Safetree Certification, an integral part of our industry, there has been discussion raised around access to the employees by unions.

Employer clarification 

Importantly FICA must also clarify that a contractor working for a forest principal is an employer in their own right as they are most generally on contractor agreements, so reference to ‘employer’ in this article pertains to the ‘Forestry Contractor”.

Relevant legislation and guidelines

There are three very important guidelines we can reference to clarify any situation that might arise:

1. Privacy Act 2020
2. Employment Relations Act 2000
3. Employee right of choice to join the Union

To cover off the privacy duty of care let’s start by quoting the Privacy Act 2020 and Part 3 – Information privacy principles and codes of practice. There are thirteen principles but the first two give us enough information to state that no one can pass on personal information to any third party without seeking the consent of that person or entity. It’s simple, the forestry corporate or management company cannot pass on the employer’s name without the contractor’s consent, so must seek the contractor’ permission for any request of information about the employer whether it be from the union or other third party.

Check out the Information privacy principles and codes of practice here 

The right to access the workplace

Then let’s get the access to the workplace clear for our contractors, forest principals and the unions. According to the right to access the workplace under section 20 of the Employment Relations Act 2000, union representatives have a right to access 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.

Entitlement of access

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 (see below). 
• 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

However, the union representatives must get the employer’s consent before entering a workplace. This is subject to the fact that employers cannot unreasonably deny them access. 

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.

If the employer does not respond to the request within two working days, consent is deemed to be given.  

Unreasonable withholding of consent 

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.

Exemption certificates 

Employers can provide reasons to deny access if they have an exemption certificate stating:

• It might prejudice national security or defence.
• It might prejudice the investigation or detection of offences; or
• Their religious beliefs effectively preclude membership of any organisation such as a union.

For the religious beliefs exemption to be valid, there must be no union members on site, and less than 20 employees. If an employer, without lawful excuse, refuses to allow a union representative to enter a workplace, or obstructs a union representative in entering a workplace, they may be liable to a penalty (imposed by the Employment Relations Authority).

Maintaining integrity around Health & Safety

It is important for all parties, and especially the union, to realise that taking one or more employees off their tasks could compromise the safety of the crew that is left to run the job – so with this in mind the contractor has to have some control on when and how this happens. It must be clear that the visit does not interfere with safe production or needing to either stop the whole crew or rotate people in and out of skill tasks.

There must be acknowledgement of the need to maintain integrity around Health & Safety on site and escorting the visitors and it is important to note that the Registered office or workshop of the contractor is deemed as the worksite for Union visits, not the forest site.

The object is to allow access to the Union to the contractor and his employees from a practicable sense and there is no advantage in having them on site. Union people would have at best limited knowledge of the day-to-day workings on a forestry site so there is little value for anyone to be in that situation.

Employee choice

Then, the final part of this discussion is that as an employee, they have the right to choose whether or not to become a union member. No-one (employers, managers, colleagues, union members or union officials) can threaten, or put (directly or indirectly) undue pressure on you:

• to be or not to be a union member, or
• to not act on behalf of other employees, or
• to leave your job because you are or aren’t a union member.

Know your rights

There’s a lesson to be taken on by all parties here but the key to this article is that there is a right and a wrong way. It’s pretty clear when you read through the legal jargon of the regulatory acts and it comes down to knowing your rights and having access to the right information. Keep this stored away - you may need to reiterate your rights or provide others with the correct information, so everyone gets the same message, from the same sources and entities don’t take on another interpretation that can be seen to be biased.