Jurisdiction - Australia
News
Australia – Open Sesame: When To Give A Union Right Of Entry.

25 March, 2014

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

Recent decisions and proposed amendments regarding right of entry laws.

 
What You Need To Know

 

  • Employers should not impose conditions on right of entry that prevent permit holders from approaching employees (in the dedicated discussion room) for the purpose of holding discussions.
  • Employers may restrict permit holders to a particular area of the discussion room.
  • Employers may impose conditions on the behaviour of permit holders exercising a right of entry to hold discussions.
  • Employers should consider their rights when faced with a permit holder’s request to enter an area adjacent to the premises to which the right of entry relates.
  • Employers may impose conditions limiting the right of entry (in appropriate circumstances such as where there is a risk to public order) if the conditions do not cause an excessive delay to entry.
  • Proposed amendments to right of entry laws are currently before Parliament. If passed, meal rooms will no longer effectively be the default location for permit holders to hold discussions with employees.

 
What You Need To Do

 

  • Review, and if appropriate amend, existing protocols that may impose restrictions on a union’s right of entry for the purpose of holding discussions with your employees.
  • Ensure employees are aware of their rights when approached by permit holders exercising a right of entry to hold discussions.
  • Keep up-to-date with the proposed amendments to right of entry laws.

 
Right of entry continues to be an evolving and contentious issue in tribunals and courts, and amongst political parties.

 
The issue has recently gained momentum due to amendments to the Fair Work Act 2009 that came into effect on 1 January 2014. Importantly, the amendments allow:

 

  • right of entry permit holders to hold discussions in the meal room if agreement cannot be reached on another location; and
  • the Fair Work Commission to deal with disputes about the frequency of right of entry visits, and disputes and union conduct about accommodation and transport arrangements.

 
This Alert discusses two recent right of entry decisions and the Coalition government’s proposed amendments to right of entry laws.

 
NUW v Coles

 
In National Union of Workers v Coles Group Supply Chain Pty Ltd [2014] FWC 1674 (12 March 2014), the FWC considered the validity of an employer policy that imposed right of entry conditions on the NUW. The conditions were that the NUW permit holder must:

 

  • Remain at a particular table in the meal room
  • Not roam around the meal room
  • Not approach workers to initiate discussions or see if they are interested in discussions; and
  • Leave the premises if the above conditions are not accepted.

 

Commissioner Roe held that:

 

  • The right of entry to hold discussions only extends to those employees who wish to participate in those discussions
  • This does not exclude a permit holder from approaching employees to see if they want to participate in discussions; and
  • An employer does not have a general right to prevent such conduct.

 
Accordingly, Commissioner Roe held that the employer’s policy was inconsistent with the rights of permit holders under the FW Act.

 
Commissioner Roe clarified that:

 

  • This does not mean employers do not have a right to impose conditions on the behaviour of permit holders exercising a right of entry to hold discussions; and
  • There may be instances where an employer may reasonably restrict the way a permit holder accesses the meal room. For example, if there is more than one meal room, it may be reasonable to restrict access to only one room.

 
However, Commissioner Roe refused to make an order to prevent the employer from imposing the restrictions in the policy. Instead, he recommended that:

 

  • The employer not impose conditions preventing permit holders from approaching employees in the meal room for the purpose of holding discussions; and
  • It is reasonable for the employer to restrict permit holders to a particular area of the meal room.

 
CFMEU v Gittany

 
In Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164 (3 March 2014) the Federal Court illustrates an employer’s potential rights:

 

  • When dealing with right of entry to adjacent premises; and
  • To impose conditions on right of entry (in appropriate circumstances) so long as the conditions do not cause an excessive delay to entry.

 
The case concerned three CFMEU representatives who entered a construction site (and subsequently a car park next to the site) to investigate potential breaches of occupational health and safety legislation. After a heated discussion and violent conduct between the CFMEU representatives, workers and the company director, the police were called to the site. The company director prevented the CFMEU representatives from re-entering the site until the police arrived (approximately 15 to 30 minutes later).

 
The case (an appeal from a Federal Circuit Court decision) considered:

 

  • Whether the CFMEU’s right to enter the construction site under section 502 of the FW Act extended to entering the adjacent car park; and
  • Whether the delay amounted to a refusal of, or undue delay to, entry in breach of section 501 of the FW Act.

 
Right Of Entry To Adjacent Premises

 
Justice Cowdroy held that the CFMEU failed to prove that the car park was occupied or controlled by a constitutional corporation such as to establish a right of entry on occupational health and safety grounds.

 
Justice Cowdroy found that “[a]s a matter of law, once the CFMEU representatives departed the premises [the construction site], the statutory right of entry ceased”.

 
Refusal Of, Or Undue Delay To, Right Of Entry

 
Justice Cowdroy found that:

 

  • A refusal is an unconditional denial of entry whereas a conditional denial of entry may be permitted where it does not amount to an undue delay
  • The situation presented too much of a risk to public order to permit the CFMEU representatives to re-enter the premises before the police arrived (agreeing with the decision in first instance); and
  • the delay was prudent and appropriate (agreeing with the decision in first instance).

 
Accordingly, Justice Cowdroy held that there was no refusal by the company director of re-entry and the delay was not undue.

 
Proposed Amendments To Right Of Entry Laws

 
The Federal government has proposed the following amendments to existing right of entry laws:

 

  • Meal rooms will no longer effectively be the default location for permit holders to hold discussions with employees. Rather, permit holders will be required to comply with reasonable requests by employers to hold discussions in particular rooms;
  • Employers will no longer be required to facilitate union access (transport and accommodation) to remote workplaces;
  • In making an order on frequency of visits, the FWC will no longer need to be satisfied that the frequency of visits would require an unreasonable diversion of the employer’s critical resources; and
  • Unions will only have a right of entry for discussions purposes if:
    • an enterprise agreement applies at the workplace and the union is covered by that agreement; or
    • a worker who is a member or prospective member of the union has invited the union to visit the workplace.

 
The changes form part of the Fair Work Amendment Bill 2014 (Cth), which was referred by the Senate on 6 March 2014 for inquiry and report by 5 June 2014.

 
Updating Protocols

 
As a result of these developments, employers should review their right of entry protocols and update them where necessary. Employers should also ensure employees are aware of their rights when approached by permit holders insisting a right of entry.

 
Making The Case: Insights from Geoff Giudice

 
Section 484 of the Fair Work Act gives a permit holder the right to enter the employer’s premises to hold discussions with employees.

 
In NUW v Coles, the Commission decided that a permit holder lawfully on premises for discussions with employees does not have to wait until approached but may take the initiative and approach employees him or herself. An employer policy to the contrary will be ineffective. It should not be assumed that this right is unqualified. For example, section 500 of the FW Act provides that a permit holder must not intentionally hinder or obstruct any person or otherwise act in an improper manner. But, subject to compliance with that and any other obligation, it appears that an employer cannot lawfully require a permit holder not to approach employees for discussions.

 
CFMEU v Gittany was also concerned with right of entry but dealt with a question about the operation of section 501 of the FW Act. Under section 501 a person must not refuse or unduly delay entry by a permit holder. In this case, the employer had refused to allow permit holders onto the premises until the police arrived because of an apprehension of violence which the Federal Court subsequently found to be soundly based. The case shows that the court will distinguish between a delay in allowing a permit holder to enter premises and a refusal to allow entry at all. In the circumstances, the Court decided that the employer had not breached section 501 of the FW Act because:

 

  • it had not refused entry in the relevant sense; and
  • the delay resulting from the employer’s decision not to allow entry until the police arrived was not “undue”.

 
The fact that the employer had earlier permitted entry and the permit holders had left was effectively irrelevant. While the case provides a useful insight into the operation of the section, whether a delay in allowing entry is undue will depend on all of the relevant circumstances. That should be borne in mind when reviewing protocols or considering whether to delay entry.

 
Another point decided in CFMEU v Gittany about the definition of premises to which a right of entry arises under State or Territory OHS laws, is a reminder to always check the basics.


Ashurst Logo

 

For further information, please contact:

 

Marie-Claire Foley, Partner, Ashurst
marie-claire.foley@ashurst.com

 

Geoffrey Giudice, Ashurst
geoffrey.giudice@ashurst.com

 

Brad McLean, Ashurst
brad.mclean@ashurst.com

 

Ashurst Labour & Employment Practice Profile in Australia

 

Homegrown Labour & Employment Law Firms in Australia

 

Comments are closed.