15 Sep 2019. 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. For example, the rep can clarify the facts, provide additional information, or suggest possible witnesses. Representatives are entitled to raise any concerns with management on behalf of union members. 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. The news site of the Australian HR Institute. This could be a trusted colleague, friend, family member, union representative or lawyer. Their role is not to speak on behalf of, or advocate for, the employee. 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 right to representation is limited to situations where the employee reasonably believes that the investigatory meeting or interview will result in disciplinary action. 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. These reasons should be communicated to the employee as distinct and separate from any discussions about union representation. Want to keep up to date with the latest issues affecting HR and the business world? This is best illustrated by the case of Vong v Sika. 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. 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 have a trade union representative, you could also ask them to help follow it up. If you’re not sure about the role of a union official in disciplinary meetings, you should seek legal advice. We do not have any trade union on site, but a member of staff pays a union fee and wants to bring a union rep into a disciplinary meeting rather than a work colleague. Their role is not to speak on behalf of, or advocate for the employee. 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. 11 October 2019. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. What should you do next? 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. You can ask your employer if someone else can accompany you, but they don't have to agree to this. The Union’s representative role With a Union rep present, the employer should still conduct the meeting in the same manner. 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. 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. 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? Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. Your primary role at a fact finding meeting is to listen and understand management's allegations. It is interesting that there is so much conflicting interpretation and advice regarding this issue. The union official refused to sign, and stated that he was there to act as Vong’s union representative. Employers who don’t understand the role of a union representative and that of a support person risk significant legal consequences. 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. You should discuss this option with your union prior to the meeting. This doesn’t mean that an employer can’t discipline or dismiss an employee when their union representative is in the room. At the third meeting, the HR manager left the room and returned with a notice of dismissal. At a recent Employment Law Conference the advice given to attending delegates which mirrors that which I have received from… Read more », My take home from this is that when running a disciplinary meeting, the support person needs to be a ‘support person’, unless they are a Union Representative, in which case they can do anything they like, Agreed Kate. You should clarify this before the meeting begins. Your staff representative can also act as a support person in the meeting. 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. These reasons should be communicated to the employee as distinct and separate conversations from any discussions about union representation. A well-trained and effective representative of a trade union will guide you through every stage of tackling any work problem. | You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. [1]Please note that it is different at the pre-disciplinary meeting (aka Loudermill hearing). These are known as Weingarten rights (from a 1975 Supreme Court case). The employer may be required to furnish grounds to an employee prior to imposing a disciplinary measure. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. 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. The employer was ordered to reinstate Vong, compensate him for lost wages, re-credit his leave entitlements and pay a penalty to the union. The employer was ordered to reinstate Vong, compensate Vong for lost wages, re-credit his leave entitlements, and pay a penalty to the union. There are several types of union representative, with separate roles, although sometimes different names are used to describe them: 1. Privacy Policy | Terms & Conditions The Trade Union Representative can present and/or sum up your employee’s and say things to support their case. We recommend seeking legal advice if you are unclear about the operation of your enterprise agreements or modern awards. 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). 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. 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. The same thing occurred at the next two meetings. Legal advice: Gillie Scoular, partner, Mills & Reeve The right to be accompanied at disciplinary (and grievance) hearings is not as simple as it sounds. 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) The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. What is the companion's role at a disciplinary or grievance hearing? We use cookies to personalise content, provide social media features, and analyse traffic. Their role is not to speak on behalf of, or advocate for the employee. Their role is generally to provide emotional support, take notes and clarify questions. 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. 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. Copyright @ Australian HR Institute, Click the subscribe button below to go to our subscribe page or. A disciplinary procedure is the way your employer deals with discipline when they believe that your conduct or performance is not up to the expected standard. Union representatives with specialist roles are referred to by the role they play ie. They will help you prepare a Written Statement, and present your case at your Formal Meeting. Karl Rozenbergs is a partner, and Gemma Hallett a lawyer, at Hall & Wilcox. 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. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. The meeting did not proceed as the employee did not want to attend without the union involved and the employer would not allow it. The union official refused to sign, and stated that he was there to act as Vong’s union representative. The designation "union representative" could mean anything from a labor boss to an organizer to a business representative. Know your role as a Steward and/or Union representative. You can disable cookies at the browser level, however this can limit your experience with our website. ... explain the purpose of the meeting, ... are worried your appeal outcome is taking longer than you expected, you should ask your employer. [1] http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2010/1021.html. $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. 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. A disciplinary meeting is a confronting experience for any employee and the presence of a support person may help the employee feel more relaxed. 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). To understand more about how we can help, use the contact details below. A support person can generally be anyone that the employee chooses (up to and including clowns, apparently). An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. Can workplaces mandate COVID-19 vaccines? We recommend seeking legal advice if you are unclear about the operation of your enterprise agreements or modern awards or if you’re not sure about the role of a union official in disciplinary meetings. 2. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. The rep is present only to assist the employee. Where an employer fails to comply with … Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes. The employee will be required to do most of the speaking as the support person cannot represent the employee … 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. 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. Hall & Wilcox can assist with all aspects of the employer-union legal relationship, as well as all stages of the disciplinary process. A meeting scheduled to inform an employee of discipline would not prohibit entitlement to union representation where, during the course of the meeting, the employer advised of its intent to discuss the conduct, thereby suggesting the employee respond, which invoked a reasonable fear that additional discipline might be imposed upon the attempt of the employee to defend his actions. The employer is under no duty to bargain with the union representative at the investigatory interview. Disciplinary procedures may involve something as simple as an informal chat, and escalate to involve letters, meetings and appeals. 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. Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. 3(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms. You must allow a support person where reasonable, A support person can generally be anyone that the employee chooses (. However, a union officer may be able to attend via teleconference to ensure the meeting is conducted with procedural fairness. Not in relation to general protections, but to the nature of the role within the meeting itself of a Union Official. Some agreements oblige the employer to remind the employee of his/her rights to representation. However, from 1 July 2019, […], Employment & Workplace Relations can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes. The ACAS Code of Practice describes the role of the union representative being to: 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. 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. Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. Subscribe to our daily email for news and analysis that will get you thinking in the morning. union learning representative, union environmental representative and union equality representatives. A support person in a disciplinary meeting can provide moral support to the employee. 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. 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. Role of a Union Representative. What you can do if you think your disciplinary or grievance outcome is not right. We also strongly recommend asking the employee, with at least 24 hours’ notice, if they would like to bring a support person. 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 at any discussions relating to an employee’s potential dismissal. 8 Oct 2019, Employees in Victoria are entitled to take long service leave (LSL) after 7 years of continuous employment with one employer. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. Unions are involved in far more than organizing campaigns to convince employees to join their ranks, and they do more than negotiate labor union … When management meets with a union member (or telephones the worker at home) to ask questions about possible misconduct, the employee can request the presence of a union representative and refuse to answer until the rep arrives. Their role is generally to provide emotional support, take notes and clarify questions. What should you do next? It can play a key role in negotiations on pay and conditions and the production and implementation of policies. Where do we stand on this? What should... Employment & Workplace Relations 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. Fair Work Act of 2009 This is best illustrated by the case of Vong v Sika. 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. Here we focus on the role of a Rep at both a disciplinary and grievance hearing. 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. However, in the vast majority of cases, the right to be accompanied at disciplinary and grievance meetings is limited to accompaniment by a work colleague or trade union representative. 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. Thinking Employers are entitled to restrict the choice of companion to a trade union official or fellow worker. The same thing occurred at the next two meetings. 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. For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. Arrange for a representative of a trade union to accompany you at any formal Disciplinary, Grievance or Appeal Hearing – presenting your case in by far the most compelling and effective way. 1) To assist and represent employees at grievance and disciplinary proceedings, at their request. For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. | If a union official is acting as a support person and then 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. 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 … 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. At the third meeting, the HR manager left the room and returned with a notice of dismissal. A trade union “official” includes officers of the union as well as appointed representatives of union members. representative to physically attend the meeting. A Rep is a union member who represents and gives advice to colleagues when they have problems at work (1) The role is wide ranging and includes representing workers with problems and accompanying them to grievance or disciplinary hearings. The Union rep can answer on behalf of the employee, and if this is the case, the employer can redirect the questions to the employee concerned. Vong argued that he had been unfairly dismissed because he was a union member. The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. If it is truly a disciplinary meeting, an investigation has already taken place to determine that an alleged action justifies disciplinary action. Union representative or steward– has statutory rights to represent members in the workplace and carry out other workplace duties. The importance of clarifying the union official’s role. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings, and commencing disciplinary processes. The employee subsequently brought her trade union representative to the disciplinary hearing but she was informed that the company policy was that she could only have a work colleague with her. [1] When the employee Vong was called into a disciplinary meeting, he brought a union official with him. You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. 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. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. They might be a friend, mentor, or union representative. 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. They can confer during the hearing but cannot answer questions on their behalf. However, employers should be prepared to be flexible. Their role is not to speak on behalf of, or advocate for the employee. When contemplating disciplinary action, you should begin by determining whether or not the person is a trade union official. This is best illustrated by the case of Vong v Sika. 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. 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). In the workplace a trade union representativeu0007u0007 (2)bb is an employee who will represent and defend the rights of workers. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. The importance of clarifying the union official’s role. In most unions the union representative and the health and safety repr… You should clarify this before the meeting begins. The same thing occurred at the next two meetings. 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 Weingarten right to representation is limited in several facets: First, an employee does not have the right to union representation at all meetings. 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 doesn’t mean an employer can’t discipline or dismiss an employee when their union representative is in the room. | 15 Sep 2019 is in the workplace and carry out other workplace duties Vong ’ s union representative also! A union official procedures may involve something as simple as an informal,. ( 2 ) bb is an employee prior to imposing a disciplinary meeting, the manager! Your Formal meeting experience for any employee and the HR manager left the room specialist roles referred... The employer would not allow it is a pertinent reminder of the consequences role of union rep in disciplinary meeting misjudging the role a! Argued that role of union rep in disciplinary meeting was there to act as Vong ’ s and things... 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