The representative also has no right to address the disciplinary hearing if the employee indicates at the hearing that they do not wish the representative to do so. The ACAS Code of Practice describes the role of the union representative being to: [1] When the employee Vong was called into a disciplinary meeting, he brought a union official with him. When contemplating disciplinary action, you should begin by determining whether or not the person is a trade union official. This doesn’t mean that an employer can’t discipline or dismiss an employee when their union representative is in the room. This means employers should never refuse the presence of a support person, except in rare circumstances where it would be reasonable to do so (for example, if allowing the support person would mean rescheduling at the last minute). You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. Health and safety representative– has statutory rights to cover many aspects of health, safety and welfare in the workplace and attends health and safety committee meetings. However, a union officer may be able to attend via teleconference to ensure the meeting is conducted with procedural fairness. If a union official who is acting as a support person starts to act more like a union representative during the meeting, you should consider pausing the meeting to remind them of their role, and record this in your notes. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. Employers are entitled to restrict the choice of companion to a trade union official or fellow worker. Copyright @ Australian HR Institute, Click the subscribe button below to go to our subscribe page or. What you need to know about the new IR reform bill, What’s a “complaint”? $1 million Federal Court appeal holds lessons for HR, Talk their talk: becoming more convincing through ‘linguistic mirroring’, Manager/subordinate romances: what HR needs to know, 2 reasons why there aren’t more women in tech, Video: Recruiting top talent, and how to recruit women. Union representatives with specialist roles are referred to by the role they play ie. The news site of the Australian HR Institute. Employers should never refuse the presence of a support person, except in rare circumstances where it would be reasonable to do so, for example, if allowing the support person to attend would mean rescheduling the meeting at the last minute. If a colleague cannot go with you and you’re not in the union you can ask to bring a family member or a Citizens Advice worker. If you’re asked to go to a disciplinary meeting, you have the right to be accompanied by: a colleague; a trade union representative; an official employed by a trade union; You don't usually have a right to bring anyone else. In practice, this means if even a fraction of the reason an employer took adverse action against an employee was because the employee wanted union representation, that employer can be hit with a general protections claim in the Fair Work Commission. Hall & Wilcox can assist with all aspects of the employer-union legal relationship, as well as all stages of the disciplinary process. For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. It is illegal under the Fair Work Act 2009 (Cth) for an employer to take adverse action against an employee because that employee sought to be represented by their union. [1]Please note that it is different at the pre-disciplinary meeting (aka Loudermill hearing). In this practical guide, we’ll take a look at the differences between a support person and a union representative, and share tips on complying with your legal obligations. The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. What should you do next? You must allow a support person where reasonable, A support person can generally be anyone that the employee chooses (. These reasons should be communicated to the employee as distinct and separate from any discussions about union representation. The role of a support person is to provide the employee with emotional support during the meeting, take notes and adjourn the meeting for a break if required. The Role of the Union Representative. Some agreements oblige the employer to remind the employee of his/her rights to representation. To understand more about how we can help, use the contact details below. 15 Sep 2019. Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes. The employer’s HR manager asked the union official to sign a document which required him to act as an observer, rather than as a representative. 1) To assist and represent employees at grievance and disciplinary proceedings, at their request. It’s illegal under the Fair Work Act 2009 (Cth) for an employer to take adverse action against an employee because they sought union representation. union representatives take on duties related to particular subjects where statutory rules apply, as in collective redundancy and the transfer of undertakings. I find it handy to have a fact sheet that describes the union representative’s role during the interviews to hand out at the start of the interview. The presence of a support person at a disciplinary meeting is important, to offer emotional support and/or to ensure your workplace rights are protected. A well-trained and effective representative of a trade union will guide you through every stage of tackling any work problem. Know your role as a Steward and/or Union representative. [1] http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2010/1021.html. Under Section 10 of the Employment Relations Act 1999, workers have a statutory right to be accompanied by a trade union representative or a fellow work colleague of their choice at a disciplinary or grievance hearing. the seriousness of the disciplinary issue; the employee’s disciplinary record, general work record, work experience, position and length of service; getting a medical opinion on whether the employee is fit to attend the meeting (with the employee’s permission) We use cookies to personalise content, provide social media features, and analyse traffic. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. For example, the rep can clarify the facts, provide additional information, or suggest possible witnesses. Given the legal advice that two members have been given that a Union Rep is only permitted to act as a Union Rep during a dispute, and not during a performance counselling meeting, it would be good to get a response to these comments and clarification from AHRI. In most unions the union representative and the health and safety repr… Their role is not to speak on behalf of, or advocate for the employee. Role of a Union Representative. Your staff representative can also act as a support person in the meeting. Karl advises his clients in adverse action claims at the Fair Work Commission, implementing and negotiating enterprise agreements, unfair... You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. This could be a trusted colleague, friend, family member, union representative or lawyer. LSL accrues at a rate of one week for every 60 weeks of continuous employment, and applies to full time, part time, casual and seasonal employees, apprentices and trainees (workers). The advice I have received in the past both from Fair Work and from 2 different law firms, and the practice followed by the usually very militant unions that I’ve dealt with, was that even as a delegate, their role is still as an observer to ensure fairness and equity of the process, to ensure clarity of the issue and that all parties are clear on the intended outcomes of the meeting and next steps in the process, and to challenge the employer representative only when they believe there is questionable evidence, etc in regards to the issue,… Read more ». union learning representative, union environmental representative and union equality representatives. In terms of Section 14 of the LRA trade union representatives (shop stewards) have the right to carry out the following functions in the workplace. Vong’s claim was successful, on the basis that his employer effectively forced him to relinquish his right, as a union member, to be represented by the union. It can play a key role in negotiations on pay and conditions and the production and implementation of policies. Under s.10 of the Employment Relations Act 1999, the companion must be permitted to address the hearing in order to put the worker's case, sum up the case and respond on the worker's behalf to any view expressed at the hearing. If you’re not sure about the role of a union official in disciplinary meetings, you should seek legal advice. 11 October 2019. The employer was ordered to reinstate Vong, compensate Vong for lost wages, re-credit his leave entitlements, and pay a penalty to the union. Vong argued that he had been unfairly dismissed because he was a union member. I would be happy to provide you with a copy. Where do we stand on this? Karl Rozenbergs is a partner, and Gemma Hallett a lawyer, at Hall & Wilcox. Vong argued that he had been unfairly dismissed because he was a union member. Rather, an employer must be able to demonstrate that when the decision to take adverse action was made, the employee’s desire to be represented by their union was not a reason for that decision. Disciplinary procedures may involve something as simple as an informal chat, and escalate to involve letters, meetings and appeals. The importance of clarifying the union official’s role. Unions are involved in far more than organizing campaigns to convince employees to join their ranks, and they do more than negotiate labor union … The District Court of Western Australia has found in favour of patient Sandy Lazarevski and held that the defendant North Metropolitan Health Service (NMHS) breached its duty of care by failing to administer a standard blood test and detect an eventuating heart attack despite finding that the possibility of a heart attack on the patient’s presentation was low. | Can workplaces mandate COVID-19 vaccines? When the employee Vong was called into a disciplinary meeting, he brought a union official with him. Fair Work Act of 2009 If Fair Work only provides for the right of an employee to have access to a support person (and the nature of that role) how can a Union official have the ability to choose what role they play at the start of the meeting? Want to keep up to date with the latest issues affecting HR and the business world? You should discuss this option with your union prior to the meeting. The employer’s HR manager asked the union official to sign a document which required him to act as an observer, rather than as a representative. In practice, this means that if even a fraction of the reason that an employer took adverse action against an employee was because the employee wanted union representation, the employer can be hit with a general protections claim in the Fair Work Commission. Here we focus on the role of a Rep at both a disciplinary and grievance hearing. However, employers should be prepared to be flexible. What you can do if you think your disciplinary or grievance outcome is not right. It’s illegal under the Fair Work Act 2009 (Cth) for an employer to take adverse action against an employee because they sought union representation. The union official refused to sign, and stated that he was there to act as Vong’s union representative. You should also ask the employee if they’d like to nominate a support person to attend their meeting with at least 24 hours’ notice. You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. These are known as Weingarten rights (from a 1975 Supreme Court case). A disciplinary meeting is a confronting experience for any employee and the presence of a support person may help the employee feel more relaxed. Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. A trade union “official” includes officers of the union as well as appointed representatives of union members. At the third meeting, the HR manager left the room and returned with a notice of dismissal. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings, and commencing disciplinary processes. Rather, an employer must be able to demonstrate that when the decision to take adverse action was made, the employee’s desire to be represented by their union was not a reason for that decision. Their role is not to speak on behalf of, or advocate for, the employee. A support person can generally be anyone that the employee chooses, and their role is generally to provide emotional support, take notes, and clarify questions. | Strictly speaking, there is no legal obligation on the employer to allow the doctor to be accompanied at a disciplinary hearing by someone who does not meet the statutory definition. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. In the workplace a trade union representativeu0007u0007 (2)bb is an employee who will represent and defend the rights of workers. For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. The union official refused to sign, and stated that he was there to act as Vong’s union representative. You can disable cookies at the browser level, however this can limit your experience with our website. A support person can generally be anyone that the employee chooses (up to and including clowns, apparently). The employer may be required to furnish grounds to an employee prior to imposing a disciplinary measure. This is because the range of activities in which a trade union official can participate on behalf of the union is much wider than for an ordinary member. If the employee brings a union official to the meeting, it’s important to establish whether their intended role is as a support person or as the employee’s union representative. At the third meeting, the HR manager left the room and returned with a notice of dismissal. It is also worth bearing in mind that there is a duty on employers to make reasonable adjustments for disabled employees in certain circumstances, which could include allowing a disabled employee to be accompanied at meetings other than disciplinary or grievance hearings, or allowing a companion other than a colleague or trade union representative (see below). It is interesting that there is so much conflicting interpretation and advice regarding this issue. Thinking The employee will be required to do most of the speaking as the support person cannot represent the employee … The Trade Union officials are normally very balanced and objective, and providing you follow our guidance in relation the meeting there is nothing to be concerned about. When considering whether an employee was unfairly dismissed, the Fair Work Commission will look at whether the employer unreasonably refused to allow a support person to assist in any discussions relating to an employee’s potential dismissal. What should you do next? This is best illustrated by the case of Vong v Sika. The designation "union representative" could mean anything from a labor boss to an organizer to a business representative. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. Their role is not to speak on behalf of, or advocate for the employee. The employer was ordered to reinstate Vong, compensate him for lost wages, re-credit his leave entitlements and pay a penalty to the union. Privacy Policy | Terms & Conditions There are several types of union representative, with separate roles, although sometimes different names are used to describe them: 1. Representatives are entitled to raise any concerns with management on behalf of union members. http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2010/1021.html, Changes to long service leave in Victoria for employers in community, cleaning and security industries, District Court chips away at discretion for clinical judgement. Their role is generally to provide emotional support, take notes and clarify questions. If the employee brings a union official to the meeting, it is important to establish whether their intended role is as a support person or as the employee’s union representative. The employer’s HR manager asked the union official to sign a document which required him to act as an observer, rather than as a representative. The rep is present only to assist the employee. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. This is best illustrated by the case of Vong v Sika. 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