Australia: Union right of entry - an employer's right to make 'reasonable' requests as to where union discussions can be held

The Working Paper Issue 10
Last Updated: 15 September 2012
Article by Mark Dunphy, Alison Baker and Karl Rozenbergs

In the recent case of Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85, the Full Federal Court (Court) upheld a decision by the Full Bench of Fair Work Australia (FWA) that it was reasonable for an employer to request that a union representative use a training room rather than the lunchroom to hold discussions with its employees.

What does this mean for employers?

  • Under the Fair Work Act 2009 (Cth), a permit holder (in most cases, a union representative) who enters an employer's premises for the purpose of holding discussions with its employees must comply with any reasonable request by the employer to hold discussions in a particular room or area of its premises. An employer's request may be unreasonable where (among other things):
    • the room or area is not fit for conducting interviews or discussions;
    • the employer's request is intended to discourage, intimidate or make it difficult for employees to participate in discussions.
  • When determining whether an employer's request is reasonable, the courts will endeavour to balance the right of unions to enter an employer's premises to represent and hold discussions with their members against the right of employers to go about their business without undue inconvenience.
  • In requesting that a particular room be used for employee meetings, it is 'reasonable' for an employer to consider any inconvenience to employees who may not wish to engage in discussions with a union representative.

The case in brief

The AMIEU exercised its right of entry permit to enter Somerville Retail Services Pty Ltd's (Somerville's) premises to hold meetings with Somerville's employees. The AMIEU preferred that discussions be held in the lunch room so that its representative could have better access to (and meet with a greater number of) Somerville's employees. Somerville requested that the meetings be held in its training room, rather than the lunch room. Somerville objected to union discussions being held in the lunch room on the basis that it would inconvenience employees who did not wish to be involved in those discussions.

At first instance, FWA found that Somerville's request was reasonable. The AMIEU disputed this and appealed FWA's decision to the Court.

In its appeal, the AMIEU argued that Somerville's request that it use the training room was unreasonable because the training room was unfit for the purpose of interviewing and holding discussions with employees.

In particular, the training room only held 20-25 people which the AMIEU contended was too small for it to hold meetings with a large number of employees, and infringed on the right of employees to receive information and representation from the union. Further, it was more difficult for union representatives to directly approach employees and request them to participate in discussions.

The decision

The Court rejected the AMIEU's contention that Somerville's request was unreasonable.

The Court held that the right conferred on union representatives to enter premises should be no greater than is necessary to achieve the objective of allowing unions to represent their members and to hold discussions with potential members. The Court found that the ability to decide where the union representatives could meet with employees was not essential to this right and therefore, the decision was the employer's (provided that its request for a particular room or area to be used for meetings was reasonable and the union representative's rights could be effectively exercised).

Although the Court accepted that the training room was significantly smaller than the lunchroom, it found that it was still fit for the purpose of holding employee discussions. The Court noted that there was no suggestion that Somerville's request had restricted the ability of its employees to meet with and to receive information from their union representatives. The Court also found that there was no suggestion of any intimidation or discouragement of employees by Somerville in making its request.

Tips for employers

  • In making a request for union representatives to hold discussions in a particular room or area, employers should take care to ensure that their request is 'reasonable'.
  • In selecting a particular room or area for union representatives to hold those discussions, it is reasonable for an employer to consider the interests of employees who may not wish to be involved in those discussions.
  • Employers should ensure that the meeting room is easily accessible for employees, so that they are provided with the maximum amount of time to meet with their union representatives. Notably, last year Commissioner Lewin in The Australian Workers' Union v Rio Tinto Aluminium (Bell Bay) Ltd [2011] FWA 3878 held that Rio Tinto's request to hold union meetings in an administration building was not reasonable given the distance that employees had to travel to reach the administration building, and the relatively short breaks that some employees were entitled to.

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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