In brief - Union officials do not have automatic access to
In order to hold discussions in the employees' lunch room,
entry permit holders need to demonstrate that agreement cannot be
reached with the employer about a suitable room for holding such
Businesses anticipate union insurgence in lunch rooms following
The 2013 amendments to
section 492 of the Fair
(Cth) gave right of entry permit holders the near unfettered
"right" to hold discussions with employees in lunch rooms
if an agreement cannot be reached on the location to conduct
interviews or hold discussions.
Prior to the 2013 amendments, union officials were able to
conduct interviews or hold discussions in particular rooms or areas
of premises as deemed reasonable by the occupier or employer.
Before the amendment was given the legislative green light, many
Australian businesses were anticipating union insurgence in their
lunch rooms, due to the usual complaints made by unions, with the
ulterior motive of holding discussions in the lunch room, that the
meeting rooms offered by the employer were too remote, too small or
Coles creates policy in response to lunch room loophole
In response to this amendment, Coles Group Supply Chain Pty Ltd
imposed certain conditions in anticipation of the lunch room
loophole, by introducing a policy applicable to all who entered its
The Coles policy gave warning to all who entered:
...if the lunch room is used
during meal times union officials should be provided with a table
and chairs in a discreet location... The union officials should not
approach employees. Employees should not be disturbed from their
meal and rest. The union official should not make speeches or hold
group meetings in the lunch room. The union officials should not
conduct barbeques or hand out union clothing on an unsolicited
National Union of Workers makes application to Fair Work
It was argued that through its policy, Coles was attempting to
avoid unwanted interruptions at its workplace and provide its
employees and perhaps the union representatives with some
guidelines, so as to ensure that this newfound "right"
was not abused.
However, the National Union of Workers (NUW) did not share this
view and made an application to the Fair Work Commission to prevent
Coles from further hindering the union's access to its
Potential for right of entry to bring conflict and disruption
In the case National Union of Workers v Coles Group Supply Chain Pty
Ltd  FWC 1674, Commissioner Roe found in favour of
the NUW that certain conditions imposed by the Coles policy were
not consistent with the Fair Work Act 2009 (Cth). However,
the Commissioner said it was reasonable in the circumstances for
Coles to impose certain conditions upon the union official
exercising a right of entry to "reduce the likelihood of
conflict in the workplace".
This decision illustrates a shared view that union right of
entry brings conflict and disruption into the workplace due to
unreasonable demands and excessive visits, acknowledging that some
workers do not want to be disturbed during their rest breaks.
Need to demonstrate that agreement cannot be reached
Importantly, section 492 of the Fair Work Act does not
simply give unions access to lunch rooms by default. What must be
demonstrated for permit holders to access the lunch room is that an
agreement cannot be reached with the employer about a suitable room
for holding discussions.
While the denial of an office with a stunning view of Sydney
harbour may not be reasonable for some, efforts should still be
made by businesses to provide union officials with access to a
suitable room to hold discussions. The lunch room loophole does not
give the union officials the right to go directly to the lunch room
just because, for example, the union official does not like the
location of the meeting room offered by the employer.
Union officials must in any case comply with an employer or
occupier's policies and procedures while at the workplace, in
addition to the induction requirements and site PPE requirements.
It is highly recommended that employers and occupiers consider
implementing a policy or procedure in their workplace to reduce the
likelihood of conflict in the workplace, provided that the policy
or procedure is consistent with legislative obligations.
If all else fails, employers or occupiers are able to apply to
the Fair Work Commission in relation to disputes regarding the
purported exercise of a right of entry permit.
Fair Work Amendment Bill 2014 to remove lunch room
Once again, businesses are left in anticipation of further
changes to workplace laws, specifically right of entry obligations,
while a decision to amend the Fair Work Act further is considered
If passed, the Fair Work Amendment Bill 2014 (currently before the
Senate) will remove the lunch room loophole, restoring some
confidence to Australian employers by insisting that union
representatives comply with reasonable requests to conduct
interviews or discussions in a particular room.
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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