Court endorses refusal of union right of entry
In a significant decision, the Federal Court has upheld the decision of a company to refuse a Union official access to their premises under a right of entry application on several occasions.
The case involves four separate attempts by an organiser of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to enter the premises occupied by military shipbuilder Austal Ships Pty Ltd (Austal) at Henderson Naval Base in Western Australia. Section 484 of the Fair Work Act 2009 (the Act) provides for circumstances in which there is a statutory right for a union official to enter work premises. It states that a permit holder may enter premises ‘for the purposes of holding discussions with one or more employees’.
The reason for the refusal was the same on each occasion and did not concern whether the CEPU organiser held a valid permit or whether the appropriate notice had been given. Rather, the organiser was refused entry on the basis that the purpose of the right of entry on each occasion was to obtain signatures on a petition to be used for an application for a majority support determination by the Fair Work Commission.
The relevant employees of Austal were of the view that entry for such a purpose was not authorised by s484 because it was not within the statutory language of ‘holding discussions with one or more employees’. For that reason, they refused entry.
Section 501 of the Act provides that a person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises. Section 502 provides that a person must not intentionally hinder or obstruct a permit holder exercising rights to enter. The CEPU sought declarations that Austal and its relevant employees (Austal Parties) contravened these provisions when they refused entry to the organiser. It also sought damages and orders requiring the payment of a pecuniary penalty by each of the Austal Parties to the Union.
All parties agreed that, on each of the four occasions in issue, the purposes of the organiser’s intended entry to Austal’s premises were:
to provide a general update to members and potential members employed at the Henderson Premises who wanted to speak with him about industrial issues on site;
to speak with those members and potential members about seeking a majority support determination for an enterprise agreement to cover their employment;
to invite those members and potential members to sign a petition in support of a majority support determination (if they did support it);
to try to persuade those members and potential members who were unsure, reluctant, or disinclined to support a majority determination to support it and, if so, sign the petition;
to obtain signatures from those members and potential members who were willing to provide them.
The sole issue for Federal Court Justice Craig Colvin to determine was whether entry for those purposes was entry for the purposes of holding discussions with employees. In the course of oral submissions, Austal Parties accepted that their defence of the claim by the Union depended upon the agreed fact that one of the purposes of the organiser was to ask employees to sign the petition then and there during the discussions. The proposition contended for by the Austal Parties was that section 484 of the Act did not authorise entry for the purpose of soliciting, obtaining and coming away with such a signed petition.
In rejecting the CEPU’s application, Justice Colvin noted,
“Having regard to its context, the reference in s484 to ‘holding discussions’ is to a face to face conversation between a union official and an employee or employees that is to take place on work premises during a work break in a room set aside for that purpose or in a crib room. A discussion is a conversation of a particular kind. It may involve an exchange of ideas or it may be directed towards reaching a common view or the making of a decision … However, the expression ‘holding discussions’ when applied to an official going onto work premises to speak to an employee indicates a focus upon practical matters of a kind that might affect employees and their enjoyment of the protections afforded by the Act … Significantly for present purposes, a discussion may seek to persuade or reach consensus or make a decision or even to secure agreement. However, a discussion that reaches such a conclusion comes to an end. At that point, there is nothing more to discuss”.
Further, as Justice Colvin determined,
“… the holding of discussions would include conversations where the topic to be addressed is whether an employee is willing to support a particular course of action. The discussion may reach a point where the employee decides to do so. However, the holding of discussions does not extend to then securing some form of commitment that has a future significance beyond the conclusion of the discussion. The signing of a petition of the kind in issue in the present case is in that category … The further step of seeking to secure a commitment (whether formally or informally and whether legally enforceable or not) is to go beyond holding discussions. Therefore, an official who seeks to engage in a discussion with an employee in order to secure a commitment to a particular course of action in the future, namely securing a signature on a petition to be used to support an application to commence bargaining, has a purpose that extends beyond discussion”.
Consequently, the claim was dismissed.
** Note: This article is currently being updated as the Union has successfully appealed and overturned the decision.
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