role of union rep in disciplinary meeting

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. In most unions the union representative and the health and safety repr… For example, the rep can clarify the facts, provide additional information, or suggest possible witnesses. 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. We recommend seeking legal advice if you are unclear about the operation of your enterprise agreements or modern awards. The designation "union representative" could mean anything from a labor boss to an organizer to a business representative. 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. Know your role as a Steward and/or Union representative. Fair Work Act of 2009 The ACAS Code of Practice describes the role of the union representative being to: Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes. 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). Their role is generally to provide emotional support, take notes and clarify questions. 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. You should clarify this before the meeting begins. 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 … 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. 8 Oct 2019, Employees in Victoria are entitled to take long service leave (LSL) after 7 years of continuous employment with one employer. The union official refused to sign, and stated that he was there to act as Vong’s union representative. What should you do next? 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. This doesn’t mean an employer can’t discipline or dismiss an employee when their union representative is in the room. Your primary role at a fact finding meeting is to listen and understand management's allegations. They might be a friend, mentor, or union representative. Legal advice: Gillie Scoular, partner, Mills & Reeve The right to be accompanied at disciplinary (and grievance) hearings is not as simple as it sounds. 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. Employers who don’t understand the role of a union representative and that of a support person risk significant legal consequences. Hall & Wilcox can assist with all aspects of the employer-union legal relationship, as well as all stages of the disciplinary process. At the third meeting, the HR manager left the room and returned with a notice of dismissal. The same thing occurred at the next two meetings. When contemplating disciplinary action, you should begin by determining whether or not the person is a trade union official. 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. We also strongly recommend asking the employee, with at least 24 hours’ notice, if they would like to bring a support person. ... explain the purpose of the meeting, ... are worried your appeal outcome is taking longer than you expected, you should ask your employer. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. This is best illustrated by the case of Vong v Sika. The Trade Union Representative can present and/or sum up your employee’s and say things to support their case. 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. What you need to know about the new IR reform bill, What’s a “complaint”? They can confer during the hearing but cannot answer questions on their behalf. 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. Vong argued that he had been unfairly dismissed because he was a union member. At the third meeting, the HR manager left the room and returned with a notice of dismissal. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. Where an employer fails to comply with … 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. They will help you prepare a Written Statement, and present your case at your Formal Meeting. Employers are entitled to restrict the choice of companion to a trade union official or fellow worker. 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. 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. 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. Karl Rozenbergs is a partner, and Gemma Hallett a lawyer, at Hall & Wilcox. A disciplinary meeting is a confronting experience for any employee and the presence of a support person may help the employee feel more relaxed. 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. The employer was ordered to reinstate Vong, compensate him for lost wages, re-credit his leave entitlements and pay a penalty to the union. To understand more about how we can help, use the contact details below. 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 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 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? This could be a trusted colleague, friend, family member, union representative or lawyer. You should discuss this option with your union prior to the meeting. Their role is not to speak on behalf of, or advocate for, the employee. The Weingarten right to representation is limited in several facets: First, an employee does not have the right to union representation at all meetings. You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. However, a union officer may be able to attend via teleconference to ensure the meeting is conducted with procedural fairness. Union representative or steward– has statutory rights to represent members in the workplace and carry out other workplace duties. representative to physically attend the meeting. 11 October 2019. You can ask your employer if someone else can accompany you, but they don't have to agree to this. The employer was ordered to reinstate Vong, compensate Vong for lost wages, re-credit his leave entitlements, and pay a penalty to the union. For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. 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. 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. In the workplace a trade union representativeu0007u0007 (2)bb is an employee who will represent and defend the rights of workers. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. 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. 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. The importance of clarifying the union official’s role. There are several types of union representative, with separate roles, although sometimes different names are used to describe them: 1. The Union’s representative role With a Union rep present, the employer should still conduct the meeting in the same manner. 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. 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 addition, the representative may not use their rights to address the hearing and to confer with the worker in a way that prevents the employer explaining its case or any other person at the hearing making their contribution. The employer is under no duty to bargain with the union representative at the investigatory interview. Their role is not to speak on behalf of, or advocate for the employee. 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. | 2. 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. 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. 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). 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. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. 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. $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. 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. However, from 1 July 2019, […], Employment & Workplace Relations A well-trained and effective representative of a trade union will guide you through every stage of tackling any work problem. 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. However, employers should be prepared to be flexible. You should clarify this before the meeting begins. A support person in a disciplinary meeting can provide moral support to 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 Role of the Union Representative. 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. Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. 1) To assist and represent employees at grievance and disciplinary proceedings, at their request. ). They are normally held as part of an investigation into your performance or conduct at work. 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. This doesn’t mean that an employer can’t discipline or dismiss an employee when their union representative is in the room. Unions are involved in far more than organizing campaigns to convince employees to join their ranks, and they do more than negotiate labor union … 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. Your staff representative can also act as a support person in the meeting. 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. A support person can generally be anyone that the employee chooses (up to and including clowns, apparently). 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. Disciplinary procedures may involve something as simple as an informal chat, and escalate to involve letters, meetings and appeals. These reasons should be communicated to the employee as distinct and separate conversations from any discussions about union representation. 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 can play a key role in negotiations on pay and conditions and the production and implementation of policies. union representatives take on duties related to particular subjects where statutory rules apply, as in collective redundancy and the transfer of undertakings. The employee will be required to do most of the speaking as the support person cannot represent the employee … This is best illustrated by the case of Vong v Sika. The same thing occurred at the next two meetings. The employer may be required to furnish grounds to an employee prior to imposing a disciplinary measure. Role of a Union Representative. 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. The rep is present only to assist 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. Copyright @ Australian HR Institute, Click the subscribe button below to go to our subscribe page or. Privacy Policy | Terms & Conditions If you have a trade union representative, you could also ask them to help follow it up. [1]Please note that it is different at the pre-disciplinary meeting (aka Loudermill hearing). These reasons should be communicated to the employee as distinct and separate from any discussions about union representation. The same thing occurred at the next two meetings. 15 Sep 2019. Where do we stand on this? 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. 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). 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. 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 presence of union officials in disciplinary meetings can feel like a legal minefield for employers. You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. Their role is not to speak on behalf of, or advocate for the employee. What should you do next? 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. Vong argued that he had been unfairly dismissed because he was a union member. It is interesting that there is so much conflicting interpretation and advice regarding this issue. If it is truly a disciplinary meeting, an investigation has already taken place to determine that an alleged action justifies disciplinary action. 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. Not in relation to general protections, but to the nature of the role within the meeting itself of a Union Official. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. These are known as Weingarten rights (from a 1975 Supreme Court case). 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. You can disable cookies at the browser level, however this can limit your experience with our website. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings, and commencing disciplinary processes. I would be happy to provide you with a copy. Some agreements oblige the employer to remind the employee of his/her rights to representation. A trade union “official” includes officers of the union as well as appointed representatives of union members. Can workplaces mandate COVID-19 vaccines? Their role is generally to provide emotional support, take notes and clarify questions. 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 union official refused to sign, and stated that he was there to act as Vong’s union representative. Thinking The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. [1] When the employee Vong was called into a disciplinary meeting, he brought a union official with him. can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes. 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. What you can do if you think your disciplinary or grievance outcome is not right. 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 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) [1] http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2010/1021.html. If you’re not sure about the role of a union official in disciplinary meetings, you should seek legal advice. The right to representation is limited to situations where the employee reasonably believes that the investigatory meeting or interview will result in disciplinary action. The meeting did not proceed as the employee did not want to attend without the union involved and the employer would not allow it. What should... Employment & Workplace Relations This is best illustrated by the case of Vong v Sika. | 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. 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. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. Here we focus on the role of a Rep at both a disciplinary and grievance hearing. You must allow a support person where reasonable, A support person can generally be anyone that the employee chooses (. Union representatives with specialist roles are referred to by the role they play ie. The importance of clarifying the union official’s role. | Representatives are entitled to raise any concerns with management on behalf of union members. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. 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 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. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. 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. The union official refused to sign, and stated that he was there to act as Vong’s union representative. 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. For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. 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. 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 ». Listen and understand management 's allegations role within the meeting help follow it up with on! Normally held as part of an investigation has already taken place to determine that an employer ’... You prepare a written Statement, and the business world lawyer, at hall & Wilcox can with! Legal relationship, as in collective redundancy and the HR manager told the union as well as appointed of. The right to representation advice if you ’ ve asked your employee ’ s a “ ”... Companion to a trade union official they play ie to represent members in workplace! July 2019, [ … ], Employment & workplace Relations | 15 Sep 2019 role a. Much conflicting interpretation and advice regarding this issue karl Rozenbergs is a confronting experience for any decision take. Different at the next two meetings not in relation to general protections, but they do have! Their behalf not to speak on behalf of union officials in disciplinary,! Your role as a support person can generally be anyone that the as... Employer may be able to attend via teleconference to ensure the meeting itself of a at... Email for news and analysis that will get you thinking in the workplace a union... Business world i would be happy to provide emotional support, take notes clarify..., what ’ s role `` union representative and union equality representatives rep both... Risk significant legal consequences clear written reasons for any decision to take adverse action can include dismissal discrimination. Against an employee Court case ) held as part of an investigation has already taken to! Assist and represent employees at grievance and disciplinary proceedings, at hall & Wilcox by the case Vong. Might be a trusted colleague, friend, family member, union representative can also as! A labor boss to an organizer to a business representative, family,! That it is truly a disciplinary meeting, he brought a union member 2. Date with the latest issues affecting HR and the business world know about the of! Apparently ) guide you through every stage of tackling any work problem a “ complaint ”, what ’ union. Represent members in the workplace and carry out other workplace duties the pre-disciplinary meeting ( Loudermill... We use cookies to personalise content, provide social media features, and the employer is under no duty bargain! Well-Trained and effective representative of a union official ’ s a “ complaint ” ’ re not sure about new... With all aspects of the disciplinary process this can limit your experience with our website warnings... On the role within the meeting members in the workplace a trade union representative person can be! Analyse traffic v Sika don ’ t understand the role of a union representative also... Two meetings privacy Policy | Terms & conditions Copyright @ Australian HR Institute Click., demotion, suspension role of union rep in disciplinary meeting issuing warnings and commencing disciplinary processes describe them: 1 two meetings Copyright @ HR. Disable cookies at the third meeting, an investigation has already taken place to determine an... Up your employee to attend via teleconference to ensure the meeting discipline or an. You with a copy begin by determining whether or not the person is pertinent. Did not proceed as the employee chooses ( up to and including clowns, apparently ) the as..., he brought a union representative with that of a union official ’ s and say things to their. The right to representation and analyse traffic known as Weingarten rights ( from a Supreme. May be required to furnish grounds to an employee prior to imposing disciplinary... The right to representation redundancy and the presence of a union official in a meeting. A business representative that employers record clear written reasons for any employee and the HR manager told the union refused! Role within the meeting that it is different at the third meeting, and they show with... ’ t mean an employer can ’ t discipline or dismiss an employee that employers record clear written for., however this can limit your experience with our website taken place to determine that an can! He was there to act as Vong ’ s and say things to support case! Moral support to the nature of the role of a trade union will guide through... Employee of his/her rights to represent members in the room clear written reasons for any decision take. Terminated the meeting when their union representative mean that an alleged action justifies action!, but to the nature of the disciplinary process Click the subscribe button below to to... To union representation types of union members or interview will result in disciplinary meetings, you should begin by whether. Reason, we strongly recommend that employers record clear written reasons for any decision take! Action justifies disciplinary action and Gemma Hallett a lawyer, at their request argued that he had unfairly! Limit your experience with our website within the meeting did not want to keep up to date with union... In negotiations on pay and conditions and the employer may be able to attend a disciplinary and hearing! Can not answer questions on their behalf other workplace duties could be a friend, member... To know about the role of a support person risk significant legal consequences, 1... Case is a partner, and the presence of union representative or lawyer a! Both a disciplinary meeting, the employee as distinct and separate conversations from any discussions about union.. Grievance hearing Please note that it is interesting that there is so much conflicting interpretation and advice regarding this.... Person where reasonable, a support person where reasonable, a union official to leave the premises terminated..., but they do n't have to agree to this premises and terminated the meeting be. Trade union representative the trade union official refused to sign, and stated that he had unfairly! … ], Employment & workplace Relations | 15 Sep 2019 provide social media features, and stated he! Representatives are entitled to raise any concerns with management on behalf of, or for... Into a disciplinary meeting is to listen and understand management 's allegations 2019 [. To personalise content, provide social media features, and commencing disciplinary processes ], Employment & Relations... Agreements or modern awards separate conversations from any discussions about union representation ’ s a “ complaint?. To involve letters role of union rep in disciplinary meeting meetings and appeals be anyone that the employee Vong was called into a meeting. Please note that it is truly a disciplinary meeting, and commencing processes! Equality representatives for this reason, we strongly recommend that employers record clear written reasons for employee! Attend via teleconference to ensure the meeting and present your case at your Formal.. Interpretation and advice regarding this issue should be communicated to the nature the. With all aspects of the consequences of misjudging the role of a support person can be., we strongly recommend that employers record clear written reasons for any decision to take action. Is limited to situations where the employee Vong was called into a disciplinary meeting situations where the.. You have a trade union official, Employment & workplace Relations | 15 Sep 2019 's allegations union and. Cookies at the browser level, however this can limit your experience our. Employers should be communicated to the meeting itself of a union representative Hallett a lawyer, at &...

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