In recent times, unions have increasingly utilised the 'right of entry' provisions under the Workplace Relations Act 1996 (Cth) (WR Act) as a means of improving their workplace profile, to recruit new members and to attack employer sponsored workplace initiatives. Not surprisingly, this development has resulted in a number of disputes coming before the Australian Industrial Relations Commission (AIRC) in relation to the operation of the right of entry provisions.
The two provisions to receive particular attention have been sections 285B and 285C of the WR Act. These sections provide, in turn, the right for a union representative to enter a premises to investigate 'suspected breaches' of an award, certified agreement or the WR Act (section 285B) and to hold discussions with employees during breaks (section 285C).
Sections 285B and 285C are not prescriptive in terms of the 'rules' that are to apply when a union representative purports to enter an employer's premises under these provisions. This has inevitably resulted in some uncertainty in the manner in which the provisions are to apply. The situation has not been helped by a number of inconsistent decisions from the AIRC which has only added to the confusion confronting employers when met with a request for entry under the WR Act.
Thankfully, there have been a number of recent decisions of the AIRC which go some way to substantially clarifying the boundaries of these provisions. Although the news is not all good for employers, the upside is the greater certainty surrounding the manner in which the AIRC will interpret the provisions in the event of a dispute. The decisions do helpfully impose some limitations on the 'rights' union representatives have traditionally asserted and provide some encouragement that abuses of the provisions will be dealt with by way of revoking the offending union representative's entry permit.
It is not uncommon for employers to be suspicious about a union wanting to enter their premises to investigate a 'suspected breach' of their award or certified agreement, or a provision of the WR Act. This is because the request often comes 'out of the blue', without any issue or concern having been raised at the workplace level by employees. A common response from employers has been to put the union to the 'test' and require them to provide particulars of the 'suspected breaches'. This is generally done to ensure that the rights which are exercised are confined to the purpose of the entry.
The practice of employers requiring a union to disclose particulars of suspected breaches prior to entering the premises was considered recently by a Full Bench of the AIRC in Victorian Association of Forest Industries v Construction, Forestry, Mining and Energy Union. The Full Bench held that a union was under no obligation to particularise the nature of their 'suspected breach' as a pre-condition to entry under section 285B.
The decision does not mean that employers cannot ask a union to provide details of their 'suspected breach' in circumstances where the employer is suspicious themselves of the union's motivation for seeking entry. It does mean however that an employer cannot compel those particulars as a pre-condition to entry.
However, that is not the end of the matter. The Full Bench recognised that the right of entry under section 285B can only be exercised for the purpose for which it is conferred (ie to investigate a 'suspected breach'). They went on to sound a clear warning to union representatives who seek to abuse their rights by seeking to enter premises for an ulterior or improper purpose by suggesting that the appropriate course of action in such circumstances is to consider revoking the permit of the relevant union representative.
A union representative must have a permit in order to exercise right of entry powers. Accordingly, the revocation of the permit will have serious consequences for the union representative. Traditionally, the AIRC has been reluctant to exercise their power to revoke permits, but the Full Bench decision provides encouragement for a more robust approach to be adopted in cases where an abuse of power arises.
One of the pre-conditions to the right of entry under section 285C to hold 'discussions' with employees is that work must be performed on the premises 'to which an award applies'.
A number of recent decisions have focused on the meaning of 'applies'. The leading Full Bench authority on this point (Maintenance Resource Engineering Pty Ltd v Construction, Forestry, Mining and Energy Union) has held that 'an award applies to work when the employer is bound to apply the terms and conditions of the award to employees'. This means that a union has no right to enter premises under section 285C in circumstances where an employer is not required to have reference to a federal award for the purposes of relevant terms and conditions at their workplace, despite being a party to the award. In other words, mere respondency to a federal award does not get a union across the line under section 285C.
In reliance on the Full Bench decision in Maintenance Resource, the AIRC has subsequently held that a union did not have a right to enter under section 285C where:
- the applicable certified agreement excluded the operation of the underpinning award, ie the agreement 'covered the field' and operated to exclude the application of the award (Construction, Forestry, Energy and Mining Union v Ensham Resources Pty Ltd)
- all award covered employees at the workplace were covered by Australian Workplace Agreements (National Union of Workers v ALDI Foods Pty Ltd).
The recent approach by the AIRC to the scope of section 285C requires an examination of the applicable industrial instruments to determine whether the federal award 'applies'. The unions find this approach unsatisfactory (for obvious reasons) and will no doubt challenge the decisions moving forward. However, for now, employers in appropriate circumstances can legitimately regulate entry under section 285C in reliance on the AIRC decisions. Care must of course be exercised in relation to any purported refusal of entry, mindful of the powers of the Federal Court and the AIRC in relation to any dispute that may arise.
Assuming the union has a right of entry under section 285C, a significant issue which often arises is the 'location' for the discussions to occur and whether employers have a right to allocate a particular venue. Unions will generally want to have a presence in a lunchroom or a crib/break room, whereas employers prefer to allocate an alternative venue in order to permit employees to enjoy their privacy in rooms specifically set aside for their breaks from work.
In a recent decision, Telstra Corporation Limited (Telstra) successfully obtained an order from the AIRC excluding the Community and Public Sector Union from a call centre lunchroom after employees overwhelmingly voted to enjoy their breaks in 'privacy' (Telstra Corporation Limited v The Community and Public Sector Union). Despite the successful outcome in that case for Telstra, Commissioner Smith made some findings which will cause concern for employers. The Commissioner started from the premise that the employer did not have the prima facie right to determine the location for discussions which the union wants to hold. This is the case, the Commissioner held, even in circumstances where the employer is able to offer a suitable venue for the discussion. The Commissioner decided that the proper approach is for the employer to demonstrate that the union's preferred venue is unsuitable in the first place. This is an issue which, in the Commissioner's view, should be resolved by the AIRC rather than the employer simply refusing entry to the union's preferred venue and allocating an alternative venue.
There is no doubt that the decision will give further encouragement to unions to agitate for access to rooms which are provided to employees for their breaks. There may, however, be avenues available to employers to 'push back' on any attempt by unions to take advantage of the decision, particularly where it can be established that access to such rooms will be 'unsuitable' and there is an established practice of the union accepting the use of alternative venues.
This article provides a summary only of the subject matter covered, without the assumption of a duty of care by Freehills. The summary is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.