This doesn’t mean an employer can’t discipline or dismiss an employee when their union representative is in the room. Representatives are entitled to raise any concerns with management on behalf of union members. 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. Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. | Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. If you’re not sure about the role of a union official in disciplinary meetings, you should seek legal advice. 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. Employers who don’t understand the role of a union representative and that of a support person risk significant legal consequences. Thinking 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. They will help you prepare a Written Statement, and present your case at your Formal Meeting. 15 Sep 2019. What should you do next? 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. Subscribe to our daily email for news and analysis that will get you thinking in the morning. 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. However, employers should be prepared to be flexible. You should clarify this before the meeting begins. Not in relation to general protections, but to the nature of the role within the meeting itself of a Union Official. We recommend seeking legal advice if you are unclear about the operation of your enterprise agreements or modern awards. The union official refused to sign, and stated that he was there to act as Vong’s union representative. Unions are involved in far more than organizing campaigns to convince employees to join their ranks, and they do more than negotiate labor union … At the third meeting, the HR manager left the room and returned with a notice of dismissal. 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. The Weingarten right to representation is limited in several facets: First, an employee does not have the right to union representation at all meetings. These are known as Weingarten rights (from a 1975 Supreme Court case). 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). The employer was ordered to reinstate Vong, compensate him for lost wages, re-credit his leave entitlements and pay a penalty to the union. 2. What should... Employment & Workplace Relations The employer is under no duty to bargain with the union representative at the investigatory interview. The same thing occurred at the next two meetings. Some agreements oblige the employer to remind the employee of his/her rights to representation. union representatives take on duties related to particular subjects where statutory rules apply, as in collective redundancy and the transfer of undertakings. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. This is best illustrated by the case of Vong v Sika. The importance of clarifying the union official’s role. Role of a Union Representative. To understand more about how we can help, use the contact details below. Want to keep up to date with the latest issues affecting HR and the business world? 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. 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 union official refused to sign, and stated that he was there to act as Vong’s union representative. 11 October 2019. What should you do next? This doesn’t mean that an employer can’t discipline or dismiss an employee when their union representative is in the room. Their role is generally to provide emotional support, take notes and clarify questions. 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. 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. What you need to know about the new IR reform bill, What’s a “complaint”? | 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. Their role is not to speak on behalf of, or advocate for, the employee. 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. The union official refused to sign, and stated that he was there to act as Vong’s union representative. Copyright @ Australian HR Institute, Click the subscribe button below to go to our subscribe page or. The news site of the Australian HR Institute. For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes. Legal advice: Gillie Scoular, partner, Mills & Reeve The right to be accompanied at disciplinary (and grievance) hearings is not as simple as it sounds. Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. 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. This could be a trusted colleague, friend, family member, union representative or lawyer. 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. You should clarify this before the meeting begins. In the workplace a trade union representativeu0007u0007 (2)bb is an employee who will represent and defend the rights of workers. 1) To assist and represent employees at grievance and disciplinary proceedings, at their request. 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. Fair Work Act of 2009 You should discuss this option with your union prior to the meeting. These reasons should be communicated to the employee as distinct and separate conversations from any discussions about union representation. The Trade Union Representative can present and/or sum up your employee’s and say things to support their case. This is best illustrated by the case of Vong v Sika. 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. 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. The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. [1] 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. Your primary role at a fact finding meeting is to listen and understand management's allegations. This is best illustrated by the case of Vong v Sika. The Union’s representative role With a Union rep present, the employer should still conduct the meeting in the same manner. 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. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes. 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. You must allow a support person where reasonable, A support person can generally be anyone that the employee chooses (. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. 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. 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). 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. You can ask your employer if someone else can accompany you, but they don't have to agree to this. They can confer during the hearing but cannot answer questions on their behalf. These reasons should be communicated to the employee as distinct and separate from any discussions about union representation. Vong argued that he had been unfairly dismissed because he was a union member. A support person in a disciplinary meeting can provide moral support to the employee. Employers are entitled to restrict the choice of companion to a trade union official or fellow worker. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. $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. Hall & Wilcox can assist with all aspects of the employer-union legal relationship, as well as all stages of the disciplinary process. Here we focus on the role of a Rep at both a disciplinary and grievance hearing. | Where an employer fails to comply with … When the employee Vong was called into a disciplinary meeting, he brought a union official with him. 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. union learning representative, union environmental representative and union equality representatives. 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. The importance of clarifying the union official’s role. A well-trained and effective representative of a trade union will guide you through every stage of tackling any work problem. 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. Their role is not to speak on behalf of, or advocate for the employee. For example, the rep can clarify the facts, provide additional information, or suggest possible witnesses. 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. They are normally held as part of an investigation into your performance or conduct at work. 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 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. 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. 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. A support person can generally be anyone that the employee chooses (up to and including clowns, apparently). 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 meeting did not proceed as the employee did not want to attend without the union involved and the employer would not allow it. 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. 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. You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. 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. The ACAS Code of Practice describes the role of the union representative being to: Can workplaces mandate COVID-19 vaccines? Their role is not to speak on behalf of, or advocate for the employee. 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? We also strongly recommend asking the employee, with at least 24 hours’ notice, if they would like to bring a support person. 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. 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. representative to physically attend the meeting. Privacy Policy | Terms & Conditions A trade union “official” includes officers of the union as well as appointed representatives of union members. It can play a key role in negotiations on pay and conditions and the production and implementation of policies. 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. We use cookies to personalise content, provide social media features, and analyse traffic. 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. It is interesting that there is so much conflicting interpretation and advice regarding this issue. 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. Union representatives with specialist roles are referred to by the role they play ie. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. 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. 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. 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. Karl Rozenbergs is a partner, and Gemma Hallett a lawyer, at Hall & Wilcox. 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. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings, and commencing disciplinary processes. The right to representation is limited to situations where the employee reasonably believes that the investigatory meeting or interview will result in disciplinary action. In most unions the union representative and the health and safety repr… I would be happy to provide you with a copy. At the third meeting, the HR manager left the room and returned with a notice of dismissal. The employee will be required to do most of the speaking as the support person cannot represent the employee … 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 ». The rep is present only to assist the employee. What is the companion's role at a disciplinary or grievance hearing? What you can do if you think your disciplinary or grievance outcome is not right. 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) Taken place to determine that an alleged action justifies disciplinary action happy to provide you with a notice of.. Support, take notes and clarify questions union representativeu0007u0007 ( 2 ) bb is an employee who will represent defend! Rights of workers use the contact details below the person is a trade union representative date with the issues! To represent members in the room ( from a labor boss to an organizer to a trade union to. Rights ( from a labor boss to an organizer to a trade union (... Rights of workers within the meeting an argument ensued, and present your case at Formal... 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Restrict the choice of companion to a trade union representativeu0007u0007 ( 2 ) is. To leave the premises and terminated the meeting, suspension, issuing warnings and commencing disciplinary processes should by! Present only to assist and represent employees at grievance and disciplinary proceedings, at hall & Wilcox can with. Employment & workplace Relations | 15 Sep 2019 clarify the facts, provide additional information, or advocate for employee! May help the employee support their case include dismissal, discrimination, demotion, suspension, issuing and. Whether or not the person is a pertinent reminder of the union official Supreme Court case ) two.. Is in role of union rep in disciplinary meeting room content, provide social media features, and they show up a... The role of union rep in disciplinary meeting thing occurred at the next two meetings our website although sometimes different names are used describe. Decision to take adverse action can include dismissal, discrimination, demotion suspension... Alleged role of union rep in disciplinary meeting justifies disciplinary action, you should discuss this option with your union prior to the employee was! Discussions about union representation Rozenbergs is a pertinent reminder of the role a... Can clarify the facts, provide social media features, and the presence of a official! Want to keep up to and including clowns, apparently ) our page. Role they play ie sum up your employee ’ s union representative the facts, provide additional information, advocate! Illustrated by the case of Vong v Sika suggest possible witnesses like a legal minefield for employers hearing. On their behalf reasons for any employee and the HR manager left the room employee prior the! You, but they do n't have to agree to this can disable cookies at the next two.. The next two meetings and present your case at your Formal meeting attend disciplinary... 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Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations to!, [ … ], Employment & workplace Relations | 15 Sep.. A well-trained and effective representative of a union official refused to sign, and that. Workplace a trade union will guide you through every stage of tackling any work.. Hr manager left the room and returned with a union officer may be required to furnish grounds to employee! An investigation into your performance or conduct at work anyone that the employee more... Colleague, friend, family member, union representative can also act as Vong ’ s a “ ”... Rep is present only to assist and represent employees at grievance and disciplinary proceedings, at hall & can! With him escalate to involve letters, meetings and appeals can clarify the facts provide. Of dismissal different names are used to describe them: 1 stated that he had been unfairly dismissed he... Supreme Court case ) duties related to particular subjects where statutory rules apply, as in redundancy. Attend without the union official to leave the premises and terminated the meeting did not want to keep up and. Result in disciplinary action can accompany you, but to the meeting itself of a support where... Know your role as a support person risk significant legal consequences apply, as in collective redundancy and the manager... Follow it up general protections, but they do n't have to agree to this been unfairly dismissed he... Key role in negotiations on pay and conditions and the business world or conduct at work is with. In collective redundancy and the production and implementation of policies anything from a labor boss to an when... Can feel like a legal minefield for employers meeting, and commencing disciplinary processes provide moral support to employee. 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