Union membership in Australia started to increase soon after Kevin Rudd won power in 2007 after declining for nearly 20 years. The Fair Work Act 2009 certainly makes it difficult for employers to avoid dealing with unions who wish to represent members in the employer's workplace.
At the frontier of expanding union membership in Australia is the unions' right to enter workplaces to hold discussions with employees, including to promote the benefits of union membership and to sign up new members.
Two recent decisions of Fair Work Australia have maintained, if not strengthened, unions' rights once they have entered a workplace for the purpose of holding discussions with employees.
AMIEU v Dardanup Butchering Company Pty Ltd
In AMIEU v Dardanup Butchering Company Pty Ltd [2011] FWAFB 3847, a Full Bench of FWA upheld a ruling of Deputy President McCarthy that it was reasonable for a company to require the union to meet workers in a training room next to the Human Resources Manager's office. The company's HR Manager had told DP McCarthy that the workers valued their lunchtime and 'would just feel not as relaxed if they had someone else there that wasn't part of them or their environs'. The Full Bench found that it was open to DP McCarthy to make a decision that the company's requirements were reasonable, however the Full Bench said that FWA should treat with caution hearsay evidence from a manager about the attitude of employees to participating in discussions with a right of entry permit holder. The Full Bench said that this was particularly so where there was little or no union penetration in the workplace and 'thus little or no justification for fearing some form of reprisal for making a public stand against the union'.
The Full Bench said that where the employer makes a request to the permit holder to hold discussions in particular room or area, FWA should make the employer's reasons for the request its primary focus. 'Obviously, a request that is made for arbitrary or capricious reasons will not be a reasonable request. It also follows that a mere preference by the employer that the discussions occur in one room rather than another will not be sufficient to ground a reasonable request ... [t]he employer must be able to identify the manner in which its interests are adversely affected by allowing the discussions to proceed in the place preferred by the permit holder, including, if it be the case, how the room or area nominated by the permit holder would be likely to cause 'undue inconvenience'.'
The Full Bench went on to say that there was nothing in the FW Act that prevents a permit holder from speaking to an employee who is on a break for the purpose of identifying the issues that the permit holder wishes to discuss and asking the employee whether the employee is prepared to participate in those discussions.
An employer could only use the interests of employees who didn't want to participate in discussions as a basis for making a request to the permit holder where 'there is a proper evidentiary basis for concluding that this adversely affected the employer's business, or otherwise unduly inconveniences the employer, or that the permit holder will disregard their statutory duty to hold discussions only with employees who wish to participate'.
AWU v Rio Tinto Aluminium (Bell Bay) Limited
In AWU v Rio Tinto Aluminium (Bell Bay) Limited [2011] FWA 3878, Commissioner Lewin found that the employer's request to the union to use the administration building of its Tasmanian Bell Bay aluminium smelter was not reasonable.
Commissioner Lewin found that employees would have to travel between 8 and 15 minutes to get to the administration building from their work stations and this meant that there would be insufficient time to meet with permit holders during an average break.
Commissioner Lewin rejected Rio Tinto's submission that the meal rooms around the aluminium smelter site were not large enough for discussions to be held between union officials and employees without disturbing other workers who were in the room during their breaks, but not part of the meeting.
Implications for employers
Both of these decisions underline the importance for employers to have a well thought out right of entry protocol in place prior to receiving any entry notice from a union permit holder. That right of entry protocol should specify the locations of places that the employer would request the permit holder to go to to hold discussions with employees. The employer should also have ready a justification for the request for the discussions to be held at that location so that the employer's request would be found to be reasonable by FWA and not arbitrary or capricious.
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