Fair Work Act of 2009 The role of a support person is to provide the employee with emotional support during the meeting, take notes and adjourn the meeting for a break if required. The importance of clarifying the union official’s role. These are known as Weingarten rights (from a 1975 Supreme Court case). A well-trained and effective representative of a trade union will guide you through every stage of tackling any work problem. 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. It can play a key role in negotiations on pay and conditions and the production and implementation of policies. 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 should... Employment & Workplace Relations 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. To understand more about how we can help, use the contact details below. The Role of the Union Representative. What you need to know about the new IR reform bill, What’s a “complaint”? | Vong argued that he had been unfairly dismissed because he was a union member. 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. Karl Rozenbergs is a partner, and Gemma Hallett a lawyer, at Hall & Wilcox. 11 October 2019. [1] When the employee Vong was called into a disciplinary meeting, he brought a union official with him. Their role is not to speak on behalf of, or advocate for the employee. 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 … Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. 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 employee will be required to do most of the speaking as the support person cannot represent 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. 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. At the third meeting, the HR manager left the room and returned with a notice of dismissal. Where an employer fails to comply with … 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. However, employers should be prepared to be flexible. 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. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. 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 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. Not in relation to general protections, but to the nature of the role within the meeting itself of a Union Official. What should you do next? The union official refused to sign, and stated that he was there to act as Vong’s union 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. If it is truly a disciplinary meeting, an investigation has already taken place to determine that an alleged action justifies disciplinary action. Vong argued that he had been unfairly dismissed because he was a union member. 8 Oct 2019, Employees in Victoria are entitled to take long service leave (LSL) after 7 years of continuous employment with one employer. You can ask your employer if someone else can accompany you, but they don't have to agree to this. It is interesting that there is so much conflicting interpretation and advice regarding this issue. ... explain the purpose of the meeting, ... are worried your appeal outcome is taking longer than you expected, you should ask your employer. $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 same thing occurred at the next two meetings. Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. [1]Please note that it is different at the pre-disciplinary meeting (aka Loudermill hearing). 15 Sep 2019. You should clarify this before the meeting begins. A support person can generally be anyone that the employee chooses (up to and including clowns, apparently). They might be a friend, mentor, or union representative. The ACAS Code of Practice describes the role of the union representative being to: This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. For example, the rep can clarify the facts, provide additional information, or suggest possible witnesses. The news site of the Australian HR Institute. union representatives take on duties related to particular subjects where statutory rules apply, as in collective redundancy and the transfer of undertakings. 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 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. Legal advice: Gillie Scoular, partner, Mills & Reeve The right to be accompanied at disciplinary (and grievance) hearings is not as simple as it sounds. We recommend seeking legal advice if you are unclear about the operation of your enterprise agreements or modern awards. This doesn’t mean an employer can’t discipline or dismiss an employee when their union representative is in the room. 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. representative to physically attend the meeting. Know your role as a Steward and/or Union representative. 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 a support person at a disciplinary meeting is important, to offer emotional support and/or to ensure your workplace rights are protected. Representatives are entitled to raise any concerns with management on behalf of union members. 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. The employer is under no duty to bargain with the union representative at the investigatory interview. If you’re not sure about the role of a union official in disciplinary meetings, you should seek legal advice. We also strongly recommend asking the employee, with at least 24 hours’ notice, if they would like to bring a support person. A disciplinary meeting is a confronting experience for any employee and the presence of a support person may help the employee feel more relaxed. 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. They are normally held as part of an investigation into your performance or conduct at work. What should you do next? 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