In the recent case of Australasian Meat Industry
Employees' Union v Fair Work Australia  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
the employer's request is intended to discourage,
intimidate or make it difficult for employees to participate in
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
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
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
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
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 
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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).