Industrial law has always placed a high priority on freedom of
association, and as part of that, to facilitating union involvement
However, two recent cases illustrate some of the limits on a
union's right of entry to an employer's premises, and
indicate that the rules will be strictly enforced.
"No you can't use the lunch room – go to
the training room": Could the Union insist on meeting in the
In Somerville Retail Services v AMIEU (10
January 2011), the Full Bench of Fair Work Australia upheld the
employer's refusal to allow union officials to meet employees
in the company's lunch room. The employer had suggested the
training room instead.
The union objected because the training room would only hold about
20 people, and because its position near Management would
discourage employees from attending.
The employer argued that the lunchroom was needed to accommodate
staggered shifts of 50 employees at a time for lunch, and that
union use of the room would inconvenience employees who did not
wish to participate in the union meeting.
FWA held that it had to consider all relevant circumstances,
including the legitimate interests of the employer and the
employees (both those attending and those not attending the
meeting) and the union. As there was no other practical venue for
employees to eat lunch, it was reasonable for the employer to
refuse the union access to the lunch room. As the training room was
fit for the purpose, and could have blinds drawn for privacy, it
was a reasonable alternative - the union's preference to meet
in the lunch room did not make it unreasonable.
"I will not move my ?!*! car!" : Right to enter,
but not to disrupt
In Lovewell v Pearson (25 February 2011), the
Federal Magistrates Court imposed penalties on a union official, Mr
Pearson, and his union.
Mr Pearson entered a building site in response to a member's
complaint about safety issues. He had the right to enter in the
circumstances, but while on the site, he used his car to interfere
with a concrete pour which had begun and for which five concrete
trucks were lined up. He refused to respond to reasonable requests
from management to move his car, and when the concrete contractor
had the car towed away by a forklift, Mr Pearson swore at the
forklift driver and refused to move until he had seen documents
regarding the safety issues. He left only after a Police request 40
minutes later. The concrete pour was cancelled causing delay and
over $12,000 in costs.
The penalties were $4,500 for Mr Pearson and $16,500 for his
If a union official wants to enter your premises, you are entitled
to check that he or she has the relevant permits, and to insist on
the proper notice being given, and to impose reasonable controls on
his activity in the workplace (consistent with the different rules
applying to entry to meet actual or potential members, to
investigate suspected breach of industrial law, or to check on
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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