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Employee Representation Act 2009

1) Employees and their representatives have certain rights and protections to enable them to participate fully, effectively and without fear of victimisation as members of a trade union, house union, or specially elected 'bargaining' body.

a) Protection against unfair dismissal and other detrimental treatment

It is automatically unfair for the employer to dismiss any employees wholly or mainly because of:

i. their membership of a trade union, house union, or specially elected 'bargaining' body
ii. their participation as a candidate in an election of employee representatives
iii. their status or activities as representatives

It is also unlawful for the employer to take other detrimental action, short of dismissal, against any employees on these grounds.

b) Access and facilities

The employer is required to allow employee representatives reasonable access to their constituent employees and to such accommodation and other facilities in order to carry out their consultation duties.

i. provide representative(s) with workspace
ii. access to telephone
iii. access to email

c) Right to reasonable time off with pay

i. Employee representatives have a statutory right to reasonable time off with pay during their normal working hours to perform their functions, and also to undergo appropriate training to enable them to do so.
ii. Payment at the appropriate hourly rate for the period of absence from work.

d) Redress where rights of employee representatives are infringed

i. Representatives or candidates who are dismissed or subjected to a detriment as a result of their activities may make a complaint to an NEC tribunal.
ii. A complaint will not normally be considered unless it is made within three months of the date when the alleged infringement occurred (although in exceptional cases where the tribunal considers that it was not reasonably practicable for a complaint to be made in time it can allow a longer period at its discretion).

e) Award of compensation

i. If the tribunal finds that a dismissal was unfair, it may order the employer to reinstate or re-engage the employee and/or make an appropriate award of compensation.
ii. If it finds that other unlawful detrimental treatment occurred, it may order that compensation be paid.
iii. If the tribunal finds that the employer has failed to allow employee representatives reasonable access or appropriate facilities, it shall make a declaration to that effect and may make an award of compensation
iv. If the tribunal finds that a representative was unreasonably refused time off, it shall make a declaration to that effect and award to the representative an amount equal to the pay to which he or she would have been entitled if time off had not been refused.
v. If the tribunal finds that a representative did not receive appropriate pay for time off, it shall order the employer to pay the amount due.

2a) A complaint about a failure relating to an employee may be made by the affected employee.
b) Complaints about a failure relating to the election of empoyee representatives may be made by any of the affected employees.
c) A complaint about any other failure relating to employee representatives may be made by any of the representatives to whom the failure related.
d) A complaint about a failure relating to employees represented by a trade union or trade union representatives may be made by the Trade Union

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3) Penalty for non-compliance

a) Criminal Penalties: If an employer is found to have willfully or repeatedly violated employees' rights the Minister for Labour and Industrial Affairs may institute legal proceedings that could lead, on summary conviction, to a fine of up to $20,000 (this upper limit is subject to review from time to time).
b) Civil Penalties: Provides for civil fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees' rights.

i. Any employee may institute a civil action against his employer if he feels he has been dismissed or subjected to a detriment as a result of his 'union' activities
ii. Employees, representatives, or candidates who are judged by a NEC tribunal to have had their rights wilfully or repeatedly violated may be granted legal representation and a civil action instituted on their behalf.
iii. If such action is successful, any awards of compensation to be deducted from the award of punitive damages and the NEC reimbursed.