Recently the ABCC prosecuted a principal contractor for
refusing to allow the CFMEU to enter a worksite. In February
2008 the Australian Industrial Relations Commission (AIRC)
addressed the other side of the issue, rejecting a
union's appeal against a previous order refusing entry
to premises of the Australian Taxation Office (ATO) in
Brisbane. In light of the Rudd Government's decision to
maintain the existing right of entry provisions within its new
industrial relations regime, it is important employers are
aware of their right to refuse union entry to their business
premises in certain circumstances.
In March 2007 the Australian Services Union (ASU) served
Notices of Intention to Enter premises of the ATO in Brisbane.
The purported reason was to investigate alleged breaches of a
collective agreement and to hold discussions with employees. An
issue arose as to the notice, in particular the lack of
specificity as to the alleged breaches of the agreement. Entry
was refused by the ATO.
The generalised employee grievances included such matters as
inadequate time for learning and development and whether an
individual was receiving "sufficient coaching". The
ASU sought an order from the AIRC allowing entry. Commissioner
Spencer refused to make such an order, finding the Workplace
Relations Act placed the burden of proof on the union
representative seeking entry to provide the existence of
reasonable grounds for suspecting a breach, and an employer was
entitled to require the breach to be particularised prior to
entry. She also found a common sense approach would indicate
that such particularisation would require the presentation of
material that gives a reasonable perception of the breach. The
actual notices provided insufficient detail of the alleged
The ASU appealed to the Full Bench, which upheld
Commissioner Spencer's decision. The Full Bench held
that, where the Notice does not specify a breach, or it is
described ambiguously so that it is not possible to tell what
the suspected breach is, it is inconceivable the union had
reasonable grounds for suspecting a breach. If there are no
reasonable grounds for suspecting a breach, then a union
representative would not have a right to enter premises under
Part 15 of the Act.
The Full Bench held an employer might "reasonably
request further particulars of a suspected breach in
circumstances where there is some ambiguity or uncertainty
about the particulars that have been provided in the Entry
Notice". It was the view of the Full Bench that the
particulars should at least disclose the nature of the breach
and the facts giving rise to it so the employer is able to
understand the scope of the investigation.
Lessons for Employers
Whether the alleged breaches relate to the industrial
instrument or to a workplace health and safety issue, it is
important to ensure the Notices are legally correct. Employers
should not simply refuse entry for all matters, however this
decision provides guidance on when an employer may legitimately
refuse entry to avoid 'fishing
Employers need to carefully examine each Entry Notice to
ensure they can ascertain the alleged basis for the exercise of
the right of entry. Where alleged breaches of industrial
obligations are not particularised on the Notice, or if the
union representative is unable to provide particulars of the
suspected breach, an employer may be entitled to refuse entry
until those particulars are provided. It is also possible for
an employer to request information on the facts which found the
union's breach suspicions, or, for those facts to be
included on the Entry Notice.
If an employer has any doubt as to the content of a Notice,
we recommend they obtain legal advice immediately.
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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