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. This is best illustrated by the case of Vong v Sika. Their role is generally to provide emotional support, take notes and clarify questions. 2. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. 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. 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. It can play a key role in negotiations on pay and conditions and the production and implementation of policies. 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. 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. 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. 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. What you can do if you think your disciplinary or grievance outcome is not right. 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 at any discussions relating to an employee’s potential dismissal. 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. Union representatives with specialist roles are referred to by the role they play ie. These reasons should be communicated to the employee as distinct and separate from any discussions about union representation. Their role is not to speak on behalf of, or advocate for the employee. You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. representative to physically attend the meeting. ... explain the purpose of the meeting, ... are worried your appeal outcome is taking longer than you expected, you should ask your employer. Their role is not to speak on behalf of, or advocate for the employee. We use cookies to personalise content, provide social media features, and analyse traffic. The union official refused to sign, and stated that he was there to act as Vong’s union representative. 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. 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. 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 the workplace a trade union representativeu0007u0007 (2)bb is an employee who will represent and defend the rights of workers. Union representative or steward– has statutory rights to represent members in the workplace and carry out other workplace duties. Can workplaces mandate COVID-19 vaccines? 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? They might be a friend, mentor, or union representative. Representatives are entitled to raise any concerns with management on behalf of union members. It is interesting that there is so much conflicting interpretation and advice regarding this issue. Know your role as a Steward and/or Union representative. The ACAS Code of Practice describes the role of the union representative being to: For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. A disciplinary meeting is a confronting experience for any employee and the presence of a support person may help the employee feel more relaxed. 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. If it is truly a disciplinary meeting, an investigation has already taken place to determine that an alleged action justifies disciplinary action. 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. 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. 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. 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. 1) To assist and represent employees at grievance and disciplinary proceedings, at their request. Employers are entitled to restrict the choice of companion to a trade union official or fellow worker. You should clarify this before the meeting begins. They will help you prepare a Written Statement, and present your case at your Formal Meeting. For example, the rep can clarify the facts, provide additional information, or suggest possible witnesses. 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. can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. Fair Work Act of 2009 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. Unions are involved in far more than organizing campaigns to convince employees to join their ranks, and they do more than negotiate labor union … I would be happy to provide you with a copy. These reasons should be communicated to the employee as distinct and separate conversations from any discussions about union representation. 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. Vong argued that he had been unfairly dismissed because he was a union member. What you need to know about the new IR reform bill, What’s a “complaint”? 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. What should you do next? An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. 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. 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. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. Their role is generally to provide emotional support, take notes and clarify questions. The news site of the Australian HR Institute. Legal advice: Gillie Scoular, partner, Mills & Reeve The right to be accompanied at disciplinary (and grievance) hearings is not as simple as it sounds. Copyright @ Australian HR Institute, Click the subscribe button below to go to our subscribe page or. 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. The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. 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. | This doesn’t mean that an employer can’t discipline or dismiss an employee when their union representative is in the room. This doesn’t mean 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). 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 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. Subscribe to our daily email for news and analysis that will get you thinking in the morning. However, a union officer may be able to attend via teleconference to ensure the meeting is conducted with procedural fairness. The rep is present only to assist the employee. Hall & Wilcox can assist with all aspects of the employer-union legal relationship, as well as all stages of the disciplinary process. Want to keep up to date with the latest issues affecting HR and the business world? 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. Some agreements oblige the employer to remind the employee of his/her rights to representation. 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. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings, and commencing disciplinary processes. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. 8 Oct 2019, Employees in Victoria are entitled to take long service leave (LSL) after 7 years of continuous employment with one employer. 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. 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 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) 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. Employers who confuse the role of a union representative with that of a support person risk significant legal consequences.
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