Getting a Foot in the Door: Lessons for the UK from Australian and New Zealand Approaches to Trade Union Right of Entry

Abstract

British trade unions currently have limited statutory scope to enter workplaces and access the workers therein. The importance of facilitating union access has been repeatedly recognised in Australia and New Zealand, where substantive rights of entry are enshrined in legislation. The British Labour Party has recognised the importance of allowing unions to enter workplaces and committed to introducing statutory entry rights as an election promise. This article examines whether the Australian or New Zealand legislative schemes could be used as a blueprint for drafting equivalent British legislation. A comparison of the respective regimes reveals that the Australian laws are more regulated, restrictive and complex than the New Zealand provisions. The article ultimately advocates for the New Zealand legislation to be used as a model framework if analogous rights are enacted in Britain, but acknowledges that some features of the Australian regime might be attractive to employers and stakeholders who are cautious about expanding union rights. The Australian and New Zealand provisions have been subject to frequent reform since their enactment, mirroring the attitudes of successive governments towards trade unions. Any equivalent rights introduced in Britain will likely follow a similar trajectory over time.

1. INTRODUCTION

Under current industrial relations laws in the UK, there is little statutory scope for trade unions to enter workplaces and, by extension, access the workers therein. The importance of facilitating union access has been repeatedly acknowledged in Australia and New Zealand, where substantive rights of entry are enshrined in legislation. Colin Fenwick and John Howe have stated that ‘[i]n a capitalist economic and legal system recognising private property rights, a legally enforceable right on the part of a union and its officials to enter the property of an employer … is essential to the effective operation of trade unions’.¹ J. W. Shaw and C. G. Walton have similarly stated that ‘[i]t is plain that effective trade union organization of employees cannot occur without access on the part of the union and its authorized representatives to workplaces’,² whilst the New Zealand Employment Court described the right of entry as ‘an important buttress of the freedom of association’.³ The broad importance of facilitating union representation in the workplace has been recognised by Alan Bogg, who has observed that ‘we must act to promote unionisation vigorously so that every worker is covered by a system of union representation a matter of right’,⁴ and John Hendy who has asserted that the right of workers to be represented by a trade union is a fundamental human right.⁵ However, at present, there is no real statutory recourse for British trade unions to achieve this objective through workplace access.

Union access in the UK is currently only permitted by legislation in narrow circumstances. For example, the Trade Union and Labour Relations (Consolidation) Act 1992 (UK) (TULRC Act) facilitates access as part of the ballot process associated with union recognition for the purposes of collective bargaining; and for collective consultation about a proposed redundancy. Union representatives can also act as a supporting ‘companion’ for workers at disciplinary or grievance hearings under the Employment Relations Act 1999 (UK) (UK ER Act). However, there is no broader right of access that allows unions to carry out the representative role identified above. By comparison, the right of trade unions to enter workplaces has long been recognised under industrial law in Australia and New Zealand. The current Fair Work Act 2009 (Cth) (FW Act) and Employment Relations Act 2000 (NZ) (NZ ER Act) confer substantive statutory rights of access for investigation and discussion purposes.

In recent years, the British Labour Party has recognised the importance of facilitating trade union access to workplaces and committed to introducing a statutory right of entry as an election promise.⁶ In light of this commitment, this article examines the current Australian and New Zealand right of access provisions, which could potentially be used as a blueprint when drafting British legislation. These jurisdictions were selected because they both have entrenched statutory rights of entry; and because Australia, New Zealand and the UK have legal systems underpinned by common law tradition,⁷ thereby providing a framework within which to undertake a comparative analysis—acknowledging, of course, the limitations of taking a comparative approach in the context of law reform.⁸

There is limited discussion around union entry in Britain, and no substantive comparative literature considering the respective positions on union access in Britain, Australia and New Zealand. This article aims to bridge this gap. As a starting point, the article outlines the current position on union access in the UK and the calls for reform in this area. It then examines the regulatory approaches to union entry adopted in Australia and New Zealand, including an overview of the current laws, a brief history of how rights of access developed in each jurisdiction and a broad acknowledgement of the context within which they operate (with reference to judicial and political attitudes towards union access). As will be seen, although the rights accorded to unions in both jurisdictions are broadly similar, the Australian regime is more regulated, restrictive and complex than its counterpart. The article advocates for the New Zealand legislation to be used as a model framework if right of entry provisions are enacted in Britain, given its comparative simplicity. Notably, the New Zealand approach is already favoured in policy discussions. The comparative analysis also demonstrates how legal rights with similar underpinnings can be shaped and distorted by divergent political attitudes and objectives. Any statutory rights introduced in the UK will likely follow the same trajectory, given the competing interests at play.

2. CURRENT STATUTORY SCOPE FOR UNION ENTRY IN THE UK

Trade unions in the UK have historically had no formal rights of entry to workplaces. In stark contrast to the position in Australia and New Zealand, British unions have very little scope to access employees under current legislation. The absence of any developed statutory rules on union access in Britain is somewhat unsurprising. The traditional notion of ‘collective lassez-faire’ was not conducive to enshrining union rights in legislation and more aligned with unions and employers negotiating entry by consent on a case-by-case basis, whilst statutory supports for trade unions were wound back during the Thatcher-era and, more recently, by the Trade Union Act 2016 (UK) (TU Act).

Although the TULRC Act does not confer broad rights of entry on trade unions, there are circumstances in which representatives are able to access workplaces. One ‘right’ of entry stems from the procedure for trade union recognition found in Schedule A1 of the TULRC Act, which allows a trade union to apply to the Central Arbitration Committee (CAC) for a declaration that the union should be recognised for the purpose of collective bargaining within a workplace where they have the majority support of a group of workers (termed a ‘bargaining unit’).⁹ Where less than 50% of the workers in the bargaining unit are members of the relevant union, majority support will generally be determined through a ballot. As part of the ballot process, employers are required to facilitate the union’s access to the relevant workers. Paragraph 26(3) of Schedule 1A provides that employers must ‘give to the union (or unions) such access to the workers constituting the bargaining unit as is reasonable to enable the union (or unions) to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved’. In turn, paragraph 27(1) relevantly provides that if an employer fails to fulfil any duty imposed on them by paragraph 26, and the ballot is yet to be held, the CAC may order the employer to take steps within a reasonable period to remedy the failure. Analogous provisions apply in the context of derecognition.¹⁰

The statute offers no further guidance on what access for this purpose should entail. However the Department for Business, Energy and Industrial Strategy published a ‘Code of Practice on Access to Workers during Recognition and Derecognition Ballots’ in 2000, which was subsequently revised in 2005 (Access Code).¹¹ The Access Code was issued under section 203 of the TULRC Act, which empowers the Secretary of State to issue Codes of Practice containing practical guidance to promote ‘the improvement of industrial relations’ or ‘desirable practices in relation to the conduct by trade unions of ballots and elections’—guidance on access clearly falls into the latter category. Amongst other things, the Access Code offers ‘practical guidance about the issues which arise when an employer receives a request by a union to be granted access to his workers at their workplace and/or during their working time’.¹² The purpose of the union access provisions is identified at the outset¹³:

The overall aim [of access] is to ensure that the union can reach the workers involved, but local circumstances will need to be taken into account when deciding what form the access should take. Each case should be looked at on the facts. This Code therefore aims to help the employer and the union arrive at agreed arrangements for access, which can take full account of the circumstances of each individual case.

To achieve this objective, the Access Code offers comprehensive practical guidance on ‘preparation for access’, ‘access in operation’ and ‘other access issues’,¹⁴ as well as advice on dispute resolution.¹⁵

Although the content of the Access Code is comprehensive, the fact remains that the rights conferred on unions by paragraph 26(3) are narrow and offer no real scope for unions to effectively recruit or investigate workplace issues. A further impediment is imposed by paragraph 36 of Schedule 1A, which provides that an application for recognition will only be admissible where the CAC determines that members of the union make up at least 10% of the workers in the bargaining unit and a majority of workers in the bargaining unit would be likely to favour recognition of the union for the purposes of collective bargaining. Tonia Novitz observes that this condition ‘requires the union to have virtually won the battle to win over members before the fight for trade union recognition can begin, despite the lack of a statutory right of access for recruitment purposes’.¹⁶ In effect, the requirement imposes an additional hurdle on trade unions well before any access is permitted.

The narrow scope of the provisions is somewhat alleviated by the CAC’s approach to interpreting them. Bogg describes ‘the application and enforcement of union access rights by the CAC’ as having been ‘remarkably successful’. He notes that in formal decisions on the employer’s duty to provide reasonable access the CAC has been willing to strike ‘a pragmatic accommodation between the legitimate interests of management and organised labour’, rather than ‘simply genuflect to the claims of private property and managerial rights’.¹⁷

It is also important to note that the Access Code imposes no legal obligations on employers or unions. The document itself acknowledges that a ‘failure to observe it does not in itself render anyone liable to proceedings’.¹⁸ However, the TULRC Act provides that the content of any Code of Practice issued under section 203 (or similar) will be admissible in evidence and will be taken into account in court, tribunal or CAC proceedings if deemed relevant.¹⁹

The TULRC Act also gives union representatives scope to access workers in connection with a proposed redundancy. Section 188 places a duty on an employer to consult the ‘appropriate representatives’ of affected employees about a proposed redundancy of 20 or more employees within a period of 90 days or less.²⁰ Access for this purpose is narrow and must relate to the consultation process. The legislation clarifies that any consultation should include discussion about ways to avoid or reduce the number of dismissals; and to mitigate the consequences of any which do occur.²¹ Subsection 188(5A) relevantly requires that an employer give ‘the appropriate representatives access to the affected employees’ and provide them with ‘accommodation and other facilities as may be appropriate’.²²

There is further scope for trade union representatives to enter a workplace to act as a support ‘companion’ for a worker at a disciplinary or grievance hearing. An employee’s right to be accompanied is found in section 10 of the UK ER Act. The right to be accompanied is enlivened in circumstances where a worker is required or invited by their employer to attend a disciplinary or grievance hearing, provided that the worker reasonably requests their presence.²³ To be entitled to accompany the worker, the companion must fall within one of three categories of person²⁴:

1. A fellow worker;

2. An official who is employed by a trade union²⁵; or

3. An official who is not employed by a trade union, but whom the union has reasonably certified in writing as being competent to act as the worker’s companion.

The scope of the companion’s powers during a hearing is expressly set out, and limited, by the legislation. Whilst a companion is allowed to address the hearing (specifically to put and sum up the worker’s case, and respond on behalf of the worker to any view expressed) and confer with the worker during the hearing²⁶; an employer is not required to allow them to answer questions on the worker’s behalf, address the hearing if the worker does not wish them to do so or prevent the employer from explaining their case or any other person at the hearing from contributing.²⁷ Evidently, any ‘access’ accorded to trade unions for this purpose is extremely limited.

The narrow statutory scope for union entry means that unions are not guaranteed access to workplaces, and any broader rights must be negotiated between unions and employers (for example, by provision in a collective agreement or informally by consent).²⁸ However, there has been some recent discussion around introducing statutory rights of access in Britain, which is examined in the next section.

3. PROPOSALS TO INTRODUCE RIGHTS OF ENTRY IN THE UK

Although there is no historical basis for granting trade unions access to workplaces under British law, there has been a push by the Labour Party in recent years to introduce statutory rights of entry. Ahead of the general election in 2017, the Labour Party’s policy manifesto ‘For the Many, Not the Few’ included rights of entry as part of its proposed ‘20-point plan for security and equality at work’. The manifesto expressly stated that a Labour Government would, amongst other things, ‘[g]uarantee trade unions a right to access workplaces—so that unions can speak to members and potential members’.²⁹ This promise appeared alongside a number of other pro-union reforms, including the repeal of the TU Act and the roll out of sectoral bargaining.³⁰ Labour ultimately lost the election, but maintained its position on rights of entry ahead of the 2019 general election. The Party’s 2019 manifesto ‘It’s Time For Real Change’ went a step further and pledged to ‘[s]trengthen and enforce trade unions’ right of entry to workplaces to organise, meet and represent their members and to recruit’.³¹ However, these plans did not come to fruition as Labour lost the election to the Conservatives by a landslide.

Nonetheless, the Labour Party has maintained its commitment to supporting the introduction of rights to union access. In its 2022 Employment Rights Green Paper titled ‘A New Deal for Working People’, Labour committed to strengthening ‘trade unions’ right of entry to workplaces to organise, meet and represent their members and potential members, and to contact remote workers’, and ‘establish a reasonable right of entry to organise in workplaces’.³² This remained the Party position ahead of the 2024 general election.³³

Aside from the Labour Party’s election promises, there have been several other developments with respect to rights of entry—although neither has led to any legislative change. In 2018, the Institute for Public Policy Research (IPPR) released two publications discussing union entry, titled ‘Power to the People: How Stronger Unions Can Deliver Economic Justice’ (Discussion Paper)³⁴ and ‘Prosperity and Justice: A Plan for the New Economy’ (Final Report).³⁵ The Discussion Paper made a number of recommendations relating to trade unions and collective bargaining, including with respect to rights of entry, which were broadly endorsed in the Final Report.³⁶ The Discussion Paper relevantly acknowledged that ‘unions should be supported to recruit members and to innovate’ and that collective bargaining ‘works best when union membership is high, and where workers have a meaningful voice in the process’.³⁷ To this end, the author recommended that the Government introduce a statutory right of access (as part of a new Employment Act) to support union recruitment and representation, and ‘improve the quality of work’.³⁸ The right was conceptualised as encompassing ‘a physical right of access as well as a digital right of access to workers’.³⁹

The Discussion Paper proposed that the physical right be based on the current New Zealand right of entry laws which (as discussed below) give unions rights to access workplaces for various purposes related to the employment of the union’s members, the union’s business and/or the health and safety of employees.⁴⁰ Building on the New Zealand model, which is partly premised on employer consent, the author recommended that union representatives be empowered to request access to a workplace with 24 hours’ notice for a permitted purpose, which employers would only be able to refuse ‘with good cause’. The Discussion Paper further suggested that unions and employers should be subject to a code of conduct and face fines for misconduct.⁴¹

The proposed digital right of access was justified as a means of reaching employees within ‘remote and atomised workforces, which can be challenging to organise’⁴² and was conceptualised as a ‘right to contact workers up to twice a year in order to inform them of the union’s activity, of their right to join the union and of the benefit of joining a union’, with an opt-out option for workers.⁴³ It was further suggested that the communications be delivered via a third party, to avoid individual worker data being shared. The notion of digital access currently does not exist in Australia or New Zealand.

The following year, Labour MP Faisal Rashid introduced a Private Member’s Bill to Parliament,⁴⁴ which sought to introduce a statutory right of entry scheme for unions in the UK. When presenting the Bill, Rashid commented that ‘workers in the UK need our employers to provide facility time and space within our workplaces for reps and members to meet and discuss work related issues’, before going on to opine that ‘[t]his is not a far-fetched, unrealisable demand—it is achievable, and I hope that my Bill can achieve it’.⁴⁵ The motion passed without opposition, and moved to the debate stage, where Rashid referred to the New Zealand legislation and observed the right of entry provisions have ‘had a positive impact on the workforce, restoring protections and strengthening the rights of workers without causing disruption to business’.⁴⁶ Despite broad support from Labour members,⁴⁷ the Bill failed to complete its passage through Parliament before the end of the session.

Prior to the 2024 general election, the Labour Party had been in Opposition since 2010, meaning that the proposals with respect to the right of access had little chance to eventuate. However, there is real potential for reform in this area now that the Labour Party holds a parliamentary majority. The balance of this paper will consider the current legislative measures in place in both Australia and New Zealand, which could potentially be adopted in a British context.

4. AUSTRALIAN RIGHTS OF ENTRY

The right of trade unions to enter workplaces has long been recognised under industrial law in Australia. In Director of the Fair Work Building Industry Inspectorate v Powell, Bromberg J of the Australian Federal Court spoke of the ‘long history in Australian industrial law and practice of rights of entry being conferred upon representatives of trade unions … for the purpose of facilitating a representative role accorded to trade unions by the law in question’.⁴⁸ Although powers of entry were not codified in federal legislation until 1973, trade unions were accorded entry rights from the early days of the federation by way of clauses in federal awards pursuant to the Conciliation and Arbitration Act 1904 (Cth).⁴⁹

The 1904 Act introduced a federal system of compulsory conciliation and arbitration as a means for resolving industrial conflict, based on the Commonwealth’s constitutional power to legislate with respect to ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’.⁵⁰ The process was overseen by an independent tribunal,⁵¹ which was empowered to resolve industrial disputes through conciliation or, if that was unsuccessful, exercise arbitral power to impose a final and binding decision on the parties.⁵² Final decisions were embodied in ‘awards’, which prescribed minimum wages and employment conditions across an industry or occupation.⁵³ Rae Cooper and Bradon Ellem have explained that unions would ‘typically … make demands on employers, which would be resolved through tribunals which delivered decisions known as awards to resolve disputes, and set wages and conditions’ and that the ‘system allowed for union-won conditions to be spread through the workforce by covering all workers employed by a company bound by a union claim’, regardless of their membership status.⁵⁴ Unions, therefore, assumed a ‘privileged position’ as the collective representative of Australian workers in the dispute resolution and award-making process.⁵⁵ The role assumed by unions allowed rights of entry to develop organically in awards. Over time, award clauses dealing with rights of inspection and access to records became commonplace and the tribunal came to treat these rights as a standard feature of federal awards.⁵⁶ The broad recognition of entry rights in awards ultimately paved the way for their codification in federal legislation.

The more recent development of statutory rights of entry in Australia has been relatively fraught, and subject to frequent reforms to reflect changing political ideology. Because the exercise of entry rights involves the competing interests of unions and employers, union access is generally treated as a contentious issue. The inherent conflict between union and employer interests was acknowledged by Ford, who spoke of ‘the difficult policy problem right of entry arrangements have always had to address’, being:

…that of striking an appropriate balance between the interest unions have in, at the very least, monitoring compliance with the terms of industrial instruments and the interests employers have in carrying on business without unreasonable interference or interruption.⁵⁷

Nic Kimberley and Shae McCrystal have stated that ‘[a]t the core of this disputation between employers, unions and employees is control of the physical spaces in which work and activities associated with work take place’.⁵⁸ This links back to private property rights, with Shaw and Walton acknowledging that to facilitate access ‘it is obvious that a legislative basis is required to override the common law tort of trespass, which regards it as a civil wrong when a person goes onto the land or premises of another without invitation or permission’.⁵⁹ Thus, right of entry laws must accommodate this tension.

The first statutory rights in Australia were enacted by a Labour Government in 1973, giving all federally-registered⁶⁰ unions a limited entitlement to enter a workplace for the purpose of ensuring the observance of an award.⁶¹ The rights were amended to be given a slightly wider remit in 1988 by a subsequent Labour Government,⁶² but otherwise continued to operate much as they had from 1973 until 1996 when the Howard-led Liberal/Coalition Government came to power. Shortly after being elected, the Coalition introduced significant industrial relations reforms which, amongst other things, curtailed union access to workplaces through a modified right of entry regime which was significantly more elaborate and restrictive than its predecessor.⁶³ Notably, the reforms precluded award-based rights of entry, giving primacy to the statutory regime.⁶⁴ After securing a majority in both houses of Parliament in 2005, the Howard Government introduced further industrial relations reforms through the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices). The broader Work Choices amendments were excessively lengthy and complex.⁶⁵ This was manifest in the new right of entry scheme which heavily regulated union access—the seven sections dealing with union access in the earlier legislation were replaced with 42 new provisions.⁶⁶

The Coalition lost power to the Labour Government in 2007 at an election where industrial relations had become a major dividing issue between the parties.⁶⁷ The Labour Government made a promise to move ‘forward with fairness’ on workplace relations.⁶⁸ The current FW Act, which commenced operation on 1 July 2009, aims to ‘provide a balanced framework’ for workplace relations.⁶⁹ Accordingly, the right of entry provisions—which are housed in Part 3–4 of the FW Act—is underpinned by an objective to balance the competing rights of unions, employers and employees. This objective is enshrined in section 480 of the FW Act, which precedes the operative provisions of Part 3–4. It should be noted that although the right of entry scheme is certainly more sympathetic to union interests than its predecessor, the framework of the Howard-era legislation has been largely retained in the FW Act, as have many of the restraints imposed on unions. At the time of writing, Part 3–4 contains 55 provisions regulating union entry. For brevity, this section of the paper will not address all aspects of the framework.

Part 3–4 does not automatically grant rights of entry to trade union officials. Instead, the scheme is underpinned by a permit system, making the exercise of entry rights contingent on the union obtaining an entry permit from the Fair Work Commission (the Commission).⁷⁰ A permit will only be issued where the Commission is satisfied that the official is a ‘fit and proper person’,⁷¹ as assessed in accordance with qualification criteria.⁷² The Commission may also impose conditions on a permit, by reference to these same criteria.⁷³ Once a permit has been issued, the FW Act confers rights on registered unions to enter workplaces, during working hours, for three purposes.

Firstly, section 481 empowers a permit holder to enter premises and exercise defined statutory rights ‘for the purpose of investigating a suspected contravention’ of the FW Act or a fair work instrument⁷⁴—provided that the contravention relates to or affects a member of the relevant union who performs work on the premises and whose industrial interests the union is entitled to represent.⁷⁵ The permit holder must reasonably suspect that a contravention has occurred and assume the burden of proof to verify their suspicion.⁷⁶ Section 482 sets out the rights of a permit holder whilst on the premises. For example, a permit holder may inspect any ‘work, process or object’ relevant to the suspected contravention and interview any person whose industrial interests the relevant union is entitled to represent, on the condition that they agree to participate.⁷⁷

Secondly, section 484 confers power on a permit holder to enter a workplace to hold discussions with employees who perform work on the premises, provided that they are eligible to be represented by the union and wish to participate.⁷⁸ Discussions may only be held within working hours, during employee mealtimes or other breaks.⁷⁹

Thirdly, permit holders are also permitted to exercise State or Territory occupational health and safety (OHS) rights, under section 494. All Australian States and Territories confer separate legislative rights of entry to trade unions for OHS purposes, which are subject to additional controls imposed by the FW Act.⁸⁰

These provisions allow unions to access workplaces for purposes relating to enforcement and compliance, as well as organising and member representation. The rights are qualified by further comprehensive statutory conditions and limitations, which make up the balance of Part 3–4. The following are of interest for present purposes.

In most cases, employers and occupiers are given forewarning of the proposed entry. Before entering premises for the purposes set out in sections 481 or 484, a permit holder must provide a compliant entry notice to the occupier during working hours, between 24 hours and 14 days before entry occurs.⁸¹ If entry is sought to investigate a suspected contravention under section 481, notice must also be given to the affected employer.⁸² An entry notice will not be valid unless it specifies the relevant premises, the proposed date of entry, the permit holder’s organisation and the statutory provision which authorises the entry.⁸³ Where entry is sought under section 481, the permit holder must also particularise the suspected breach,⁸⁴ declare that they are entitled to represent the industrial interests of a member who works on the premises and is affected by the suspected contravention or to whom it relates and identify the provision of the union’s rules that entitles it to do so.⁸⁵ The conditions for entry under section 484 instead require a declaration that the organisation is entitled to represent the individual interests of an employee who performs work on the premises, as well as identifying the union rule that entitles it to do so.⁸⁶

The Commission is empowered to issue an exemption certificate to a permit holder to facilitate access to investigate a breach without giving notice, where there is a risk that advances warning ‘might result in the destruction, concealment or alteration of relevant evidence’.⁸⁷ After recent amendments, the Commission can also issue an exemption certificate if satisfied that the suspected contravention relates to an underpayment of wages to a member of the union, and reasonably believes that giving notice would ‘hinder an effective investigation’ into the suspected conduct.⁸⁸ Section 490 further provides that entry to premises may only occur during working hours—being the actual operating hours of the premises—on a day specified in the entry notice or exemption certificate.⁸⁹ A failure to comply with any of the aforementioned requirements invalidates the permit holder’s right to enter or remain on the premises or exercise any further rights.⁹⁰

Permit holders are required to comply with certain requests made by employers and occupiers. A failure to comply with any reasonable request of this kind will negate the permit holder’s right of entry and associated powers under Part 3–4.⁹¹ Once on the premises, a permit holder must produce their authority documents if the occupier or affected employer requests to see them.⁹² Permit holders are also subject to reasonable requests by occupiers with respect to OHS requirements.⁹³ Section 492 requires that a permit holder and occupier reach an agreement on holding interviews and discussions at a certain location on the premises.⁹⁴ Where agreement cannot be reached, the permit holder can opt to hold discussions in any room or area in which employees who wish to participate ordinarily have their meals or other breaks, as provided by the occupier for this purpose.⁹⁵ Permit holders must comply with an occupier’s reasonable request to take a particular route to reach a room or area of the premises.⁹⁶

Other provisions deal with prohibited conduct,⁹⁷ which may attract the imposition of civil penalties.⁹⁸ The prohibitions extend beyond the behaviour of permit holders, to employers, occupiers and their representatives. Section 500 provides that a permit holder must not intentionally hinder or obstruct any person, or act in an improper manner, whilst exercising or seeking to exercise their rights.⁹⁹ Section 501 generally prohibits any person from refusing or unduly delaying a permit holder’s entry onto premises,¹⁰⁰ whilst section 502 precludes any intentional hindrance or obstruction of a permit holder who is exercising their rights.¹⁰¹ The latter prohibition extends to conduct occurring after an entry notice is provided but before the permit holder has entered the premises.¹⁰² Section 503 further provides that a person must not intentionally or recklessly act to give the impression that ‘doing a thing’ is authorised by Part 3–4, if this is not the case,¹⁰³ whilst section 504 prohibits unauthorised use or disclosure of information and documents.

The Commission is given substantive powers under the FW Act to oversee the operation of Part 3–4.¹⁰⁴ Amongst other things, it is empowered to deal with disputes about the operation of the scheme¹⁰⁵ and about the frequency of entry for discussion purposes¹⁰⁶; take action against a permit holder in certain circumstances by making orders suspending, revoking or imposing conditions on an issued permit¹⁰⁷ or restrict the powers of an official or organisation if satisfied that either has misused their statutory rights.¹⁰⁸ For the latter purpose, the Commission is empowered to make various orders about entry permits (including to suspend revoke or place conditions on an issued permit) or make any other order it deems appropriate.¹⁰⁹ The Commission is required to revoke or suspend a permit if certain conduct has occurred,¹¹⁰ including, for example, where a permit holder has been ordered to pay a pecuniary penalty for breaching Part 3–4.¹¹¹

Other notable parts of the FW Act right of entry scheme include provisions that require occupiers and employers to assist permit holders with accommodation and transport arrangements to facilitate union access to worksites in remote locations¹¹²; and the extension of modified entry rights to protect outworkers in the textiles, footwear and clothing industry.¹¹³

The above summary of the Part 3–4 framework illustrates its lengthy and relatively complex nature. A significant number of the provisions are directed towards regulating the conduct of trade union representatives whilst they are on the premises and protecting the interests of employers and occupiers. This becomes particularly evident when comparing the Australian provisions to the New Zealand scheme, which facilitates similar outcomes in a simpler way.

5. NEW ZEALAND RIGHTS OF ENTRY

Like their Australian counterparts, unions in New Zealand have enjoyed long-standing rights of entry to workplaces.¹¹⁴ These rights have been described as a ‘fundamental entitlement of union officials’,¹¹⁵ underpinned by the principle that ‘except where expressly authorised … employees do not have the statutory right to insist upon their representatives having access to the employer’s premises’.¹¹⁶ As in Australia, industrial relations were historically regulated by a system of conciliation and arbitration, premised on union involvement as a means of preventing and settling disputes. Where the parties could not reach an agreement through conciliation, the dispute would be referred to the New Zealand Court of Arbitration (the NZ Court), which was empowered to resolve issues by way of final and binding awards.¹¹⁷ The traditional Australian and New Zealand regimes were broadly similar—a consequence of Australian legislators using the Industrial Conciliation and Arbitration Act 1894 (NZ) (1984 Act) (which established the original New Zealand system) as a template when drafting its own legislation.¹¹⁸

Although the Australian and New Zealand systems were broadly similar, entry rights developed in a comparatively less organic manner in New Zealand. Whilst there was scope for individual unions and employers to negotiate entry by consent,¹¹⁹ the NZ Court did not confer entry rights in awards until 1936 when the 1894 Act was amended to expressly empower it to do so.¹²⁰ Amongst other measures, the amending legislation enacted limited rights of entry and interview, which operated under the oversight of the NZ Court. These powers were maintained for around 50 years, with only minor legislative revisions. An attempt in 1983 by a National Government to repeal the provisions and render any existing rights ineffective was unsuccessful,¹²¹ and the rights were subsequently expanded by a Labour Government in 1987 to confer access without judicial oversight.¹²² However, the election of the National Party in 1990 marked a turning point for industrial relations in New Zealand.

The newly-elected Bolger Government swiftly moved to introduce radical reforms, driven by a perceived need to deregulate the labour market and curtail union involvement.¹²³ The Employment Contracts Act 1991 (NZ) (EC Act), which was enacted within a year of the election, abolished the remaining vestiges of the arbitration system, focussing instead (‘almost exclusively’) on direct bargaining between employers and employees at an enterprise level.¹²⁴ Traditional statutory supports for unions were eliminated, such as registration, union-led collective bargaining and industrial action. Pat Walsh, Raymond Harbridge and David Wilkinson explain that ‘unions no longer had official status in the industrial relations system’.¹²⁵ This was manifest in the absence of the term ‘union’ in the EC Act—instead, the legislation broadly recognised ‘employees organisations’.¹²⁶ Although the EC Act did not abolish union entry entirely, the rights were severely curtailed and repackaged as barely recognisable ‘rights of access’ which were conferred on employee ‘representatives’ and only available in the context of bargaining.¹²⁷

The current substantive right of entry scheme was introduced in 2000, following the election of the Labour Party in 1999, which formed a minority coalition with the Alliance party. Both parties had campaigned heavily for the repeal of the EC Act, advocating for legislation that appropriately balanced the competing interests of employers and their workers.¹²⁸ The new Government introduced the NZ ER Act in 2000 which, similar to the FW Act, seeks to establish an appropriate equilibrium between ‘[t]he rights of employers to run their businesses as they see fit with the rights of employees to be treated fairly’ and ‘[t]he rights of individual employees with the rights of groups of collectively organised employees’.¹²⁹ This is reflected in the current right of access provisions.

Part 4 of the NZ ER Act, which governs the recognition and operation of unions, expressly aims to ‘provide the representatives of registered unions with reasonable access to workplaces’ for three distinct purposes.¹³⁰ In turn, section 20 confers an entitlement on a union representative to enter a workplace for purposes related to the employment of its members; purposes related to the union’s business; and purposes related to the health and safety of any non-member employee at a workplace who requests assistance from a union representative.¹³¹ The section designates specific activities relating to organisation, representation and enforcement, as follows:

• (2) The purposes related to the employment of a union’s members include

  • (a) To participate in bargaining for a collective agreement.

  • (b) To deal with matters concerning the health and safety of union members.

  • (c) To monitor compliance with the operation of a collective agreement.

  • (d) To monitor compliance with this Act and other Acts dealing with employment-related rights in relation to union members.

  • (e) With the authority of an employee, to deal with matters relating to an individual employment agreement or a proposed individual employment agreement or an individual employee’s terms and conditions of employment or an individual employee’s proposed terms and conditions of employment.

  • (f) To seek compliance with relevant requirements in any case where non-compliance is detected.

• (3) The purposes related to a union’s business include

  • (a) To discuss union business with union members.

  • (b) To seek to recruit employees as union members.

  • (c) To provide information on the union and union membership to any employee on the premises.

Entry may be exercised for one or more of the three purposes simultaneously.¹³²

The section 20 rights are not unfettered and must be exercised in accordance with conditions set out in section 21. Entry for a purpose relating to the employment of a union’s members is contingent on the representative believing, on reasonable grounds, that a member to whom the entry relates is working or normally works on the premises.¹³³ Entry for purposes relating to union business requires that the representative believe, on reasonable grounds, that the union’s membership rule covers an employee who is working or normally works on the premises.¹³⁴

A representative may only exercise rights of access at a reasonable time when any employee is employed to work at the workplace¹³⁵—meaning that it is not necessary for union members to be present on the premises at the time of entry.¹³⁶ Representatives must also act in a ‘reasonable way’, with regard to normal business operations in the workplace,¹³⁷ and comply with any reasonable safety, health or security requirements.¹³⁸ On entering the premises (and if subsequently requested by the employer), the representative must inform the employer of the purpose for their entry; and produce evidence of their identity and authority to represent the union.¹³⁹ If the employer cannot reasonably be located, the representative must leave a written notice for the employer, disclosing certain details about the entry.¹⁴⁰

Section 20 further provides that any discussion in a workplace between an employee and union representative cannot exceed a reasonable duration¹⁴¹ and that an employer cannot deduct an employee’s wages for time spent in these discussions.¹⁴² Section 22 allows employers to deny access that could prejudice the security or defence of New Zealand or the investigation or detection of offences.¹⁴³ In turn, section 23 gives employers scope to deny access on religious grounds. The Chief Executive of the Ministry of Business, Innovation and Employment is empowered to issue a ‘certificate of exemption’ if satisfied that an employer is ‘a practising member of a religious society or order whose doctrines or beliefs preclude membership of any [other] organisation or body’.¹⁴⁴

Section 25 stipulates a set of penalties related to workplace access, making a person liable to pay a penalty if they, without lawful excuse, obstruct a representative from entering a workplace or doing ‘anything reasonably necessary for or incidental’ to their powers; or wilfully fail to comply with section 21.¹⁴⁵ Several other penalties relate to consent requirements housed in section 20A.¹⁴⁶ These provisions require that, as a general rule, union representatives obtain employer consent before asserting their rights of access.¹⁴⁷ Representatives are only permitted to seek entry without consent where a collective agreement is in force at the workplace between the employer and the union, or where bargaining for an agreement has commenced.¹⁴⁸ The employer must not unreasonably withhold consent,¹⁴⁹ and must notify the representative of their decision within a reasonably practicable time frame (no later than the working day after the request was received).¹⁵⁰ If consent is withheld, reasons for the decision must be given in writing ‘as soon as is reasonably practicable’.¹⁵¹ A person may be liable under section 25 for unreasonably withholding consent in relation to a request by a union representative to enter a workplace; failing to give reasons in writing for withholding consent to access a workplace; or refusing to allow an entitled representative to enter a workplace.¹⁵²

Although the New Zealand and Australian right of entry regimes share some broad similarities, there are some clear differences in their scope and operation. The next section of this article will compare the two and ultimately advocate for the New Zealand provisions to be used as a model for any new British legislation.

6. LESSONS FROM THE COMPARATIVE STUDY

As discussed in section 3, there has been recognition in the UK that statutory rights of entry would benefit both unions and workers. This article advocates for the New Zealand legislation to be adopted as a model framework if analogous rights are enshrined in statute in the UK. Although broad comparisons can be drawn between the Australian and New Zealand schemes, the former is evidently more complex and skewed in favour of employers. This position reflects the fact that the Australian provisions were based on the existing Work Choices scheme, whereas the New Zealand framework was freshly drafted by a Labour Government to restore rights that had been abolished. Consequently, key differences manifest between the two regimes.

For example, although both statutes facilitate entry for investigation and discussion purposes, the NZ ER Act goes further by identifying appropriate reasons for entry which encompass a broad range of conduct. Australian unions are also subject to considerably more regulation under Part 3–4, both prior to entry (through the permit system and ‘fit and proper person’ test) and once they have entered a workplace. The New Zealand legislation seems to implicitly presume that officials will act appropriately, rather than placing limits on their conduct.

A further, significant difference between the regimes is the absence of any notice requirements under the NZ ER Act. This, coupled with the section 20A consent provisions, means that in circumstances where a collective agreement is in force or being negotiated, union officials can enter workplaces without any forewarning. In contrast, the Australian law requiring that permit holders provide at least 24 hours’ notice gives the occupier or employer ‘some forewarning of the proposed entry and of its purpose’¹⁵³ (unless an exemption certificate is obtained from the Commission—however, the bar for obtaining such an order is high).¹⁵⁴ The NZ ER Act allows union access to be used as a powerful tool in the context of compliance, by reducing the scope for employers to hide or obfuscate breaches of workplace laws.¹⁵⁵ There is, however, less justification for allowing unions to enter workplaces without notice for organisational purposes. Giving notice in this context also serves a practical purpose, insofar as it allows employers to facilitate the timing and location of meetings and discussions.

Overall, the New Zealand provisions comprise a simpler framework, which strikes a more even balance between the competing interests of employers and employees and gives unions more autonomy when carrying out their objectives. However, it would be remiss to discuss the different legislative approaches taken in Australia and New Zealand, without acknowledging the broader contexts within which they arise. There is a spate of case law in Australia concerning serious and intentional abuses of the Part 3–4 regime by union officials. In particular, the Construction, Forestry and Maritime Employees Union¹⁵⁶ (CFMEU) has repeatedly—and often purposefully—breached the right of entry provisions, attracting criticism from members of the judiciary.¹⁵⁷ In contrast, there appear to be no reported New Zealand cases that involve serious union abuses of the right of access provisions. This is indicative of the broader approach taken to industrial relations in each jurisdiction. Bradon Ellem and Peter Franks have explained that ‘[w]ith a few exceptions … industrial relations in New Zealand have been more peaceful and less fractious than Australia. In general, the levels of industrial action have been lower and unions and employers less aggressive’.¹⁵⁸ The perceived prevalence of ‘militant’ unions in Australia, like the CFMEU,¹⁵⁹ provides a political justification for maintaining a more restrictive framework and less scope for the legislature to relax the rules and experiment with a New Zealand-esque approach.

This is also manifest in how the judiciary has interpreted the rights in each country. Australian courts primarily aim to balance the competing rights of employers and unions when hearing right of entry disputes, and have repeatedly acknowledged the balancing objective when construing the Part 3–4 provisions,¹⁶⁰ on the basis that ‘[t]he statutory rights … diminish the common law rights of occupiers to determine who may enter and remain upon their property’.¹⁶¹ Accordingly, the rights will be ‘construed no more widely than is necessary to give effect to the statutory object and purpose for which the right is conferred’.¹⁶² Although New Zealand courts undertake a similar balancing approach in union access cases, less weight has been placed on the common law rights of occupiers.¹⁶³ Gordon Anderson has observed that although the judiciary has acknowledged that rights of access are ‘a derogation of the employer’s rights of property as the lawful occupier of land, the statutory provisions have been liberally, rather than restrictively, interpreted by the courts generally including the Court of Appeal’,¹⁶⁴ and that the judiciary has been careful to not ‘artificially restrict[]’ access.¹⁶⁵

In Service Workers Union of Aotearoa Inc v Southern Pacific Hotel Corporation (NZ) Ltd, Goddard CJ of the New Zealand Employment Court acknowledged that ‘[u]ndoubtedly, complying with the requirements as to access involves inconvenience and positive detriment for employers. But it is an inconvenience and a detriment that they are required to bear’.¹⁶⁶ The Employment Relations Authority¹⁶⁷ has similarly held that ‘the statutory right of access must be respected even if it causes some reduction in, or interruption to, the employer’s business’.¹⁶⁸

In contrast, Australian courts have repeatedly stressed that entry rights must be balanced against the interests of occupiers and employers ‘in being able to conduct their business activities without disruption or inconvenience’.¹⁶⁹ In Construction, Forestry, Mining and Energy Union v BGC (Australia) Pty Ltd, the Australian Industrial Relations Commission (an earlier iteration of the Commission) stated that employers and occupiers were entitled to ensure that entry rights were ‘exercised lawfully and without disruption to work on their site’.¹⁷⁰

Given that the UK has moved away from the traditional voluntary underpinnings of its industrial relations system, and regulation of trade union activity has become a legislative norm, there is no barrier to introducing statutory rights of access in this respect. Keith Ewing and John Hendy have advocated for the introduction of entry rights in Britain, stating that ‘the route to trade union revival [in Britain] will always be grass-roots organizing and recruitment, and it should be emphasized that trade unions must have a right of entry to the workplace’.¹⁷¹ Perhaps the biggest potential challenge is the fact that facilitating union access to workplaces is a novel concept in the UK, where there is no historical precedent for doing so, as in Australia and New Zealand.

A strong justification is that the International Labour Organization (ILO) has shown broad support for union access. ILO Conventions 87 and 98 together establish the fundamental principles of freedom of association, the right to organise and the right to collective bargaining,¹⁷² whilst its International Labour Standards on Freedom of Association support the fundamental right of employee representation within the workplace. The ILO’s Committee on Freedom of Association (CFA) holds the view that allowing trade unions to access workplaces is necessary for the operation of Conventions 87 and 98, and has stated that ‘[g]overnments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization’.¹⁷³ The CFA also recommends that representatives should be granted to workplaces ‘where such access is necessary to enable them to carry out their representation function.’¹⁷⁴ There is currently no real recourse for British trade unions to achieve this objective, which justifies the introduction of a statutory right of access.

7. CONCLUSION

This article has examined how rights of entry are regulated in three different jurisdictions: the UK, where minimal rights are enshrined in statute, but the need for reform has been acknowledged; Australia where the rights are strictly controlled by legislation and New Zealand, where a more relaxed approach is taken to a similar set of rights. As discussed above, there has been recognition in the UK that statutory rights of entry for representative and recruitment purposes would benefit both unions and workers. This article advocates for the New Zealand legislation to be used as a model framework if analogous rights are enshrined in statute in the UK. The NZ ER Act offers a relatively uncomplicated scheme, while still striking a balance between the competing interests of employers and employees. If the newly-elected Labour Government fulfils its election promise to introduce statutory rights of entry, the New Zealand legislation provides an established, functional model to look to when drafting equivalent laws.

Some of the more stringent regulatory features of the Australian scheme could also be considered to appease employers and likeminded stakeholders who are cautious about increasing union rights. For example, the permit system and ‘fit and proper person’ test could be worked into new legislation as a threshold requirement for allowing access. Express limits or safeguards around timing and frequency of entry could also be included (for example, the FW Act allows the Commission to determine disputes about the latter). In a broader sense, empowering the CAC to adjudicate disputes about access would be consistent with its existing role under Schedule 1A of the TULRC Act. However, there is no scope to give the CAC the additional statutory powers of oversight vested in the Commission, and no equivalent British statutory body to fulfil this role. Although a detailed discussion of remedies is beyond the scope of this paper, the design of a new legislative scheme should include a statutory avenue for unions to seek compliance orders from a court or tribunal.¹⁷⁵ The inclusion of penalty provisions would also be prudent, to deter misconduct on both sides.

Another key consideration is an appropriate trigger to enliven powers of access, such as a requirement that there be at least one union member who works at the premises where entry is sought for purposes relating to compliance or representation. Access for organising or recruitment might instead be contingent on the union’s entitlement to represent one or more members who work onsite. The Australian and New Zealand statutes take broadly similar approaches in this regard, although the NZ ER Act is less strict insofar as it empowers a union representative to enter a workplace if they reasonably believe that a member or person eligible to be a member works there. Whatever approach is taken, accounting for employer concerns will likely make for a more effective right.

A comparison of the rights in each jurisdiction also reveals the transient nature of entry rights. The Australian and New Zealand provisions have been frequently revised and reshaped by the legislature to reflect prevailing political attitudes towards unions at different points in time. As put by Carolyn Sutherland, the Australian right of entry laws ‘have been repeatedly altered by successive Labor and Coalition Governments to reflect their divergent views about where the balance should lie between the competing rights of unions to represent their members effectively and the rights of employers to run their businesses without undue interference’.¹⁷⁶ This sentiment equally applies to the evolution of rights of access in New Zealand, which has similarly been reformed to mirror the attitudes of successive Labour and National Governments towards unions. This trend no doubt will continue in both jurisdictions in the future and, if equivalent rights are introduced in Britain, there is a high likelihood that their trajectory will follow a similar pattern.

As a final observation, the UK reform proposals discussed above contain a suggestion that could be adopted in Australia and/or New Zealand—the notion of a digital right of access. Facilitating online access would allow unions to maintain communication with willing workers, whilst minimising physical disruptions to employers. Although the practicalities of any such right would need to be fleshed out, the IPPR Commission’s proposals, such as online contact occurring twice a year, with an opt-out option for employees and privacy protections for workers,¹⁷⁷ could be used as a starting point. Drawing a distinction between physical and digital entry rights would acknowledge the prevalence of digital technologies in many modern workplaces; and go towards improving communication between unions and employees, particularly those in remote or dispersed workforces.

Footnotes

Author notes