The Fair Work Commission recently handed down a wide-ranging judgment in relation to the right of entry laws under the Fair Work Act that explains both the rights and obligations of union officials on entering an employer’s premises for the purpose of holding discussions with employees1.

In particular, the decision emphasises the need for both the employer and the officials to make a ‘genuine effort’ to reach agreement as to the location for those discussions before the officials can permissibly exercise a right to use the lunchroom on the basis that the parties ‘cannot agree’.

The decision also highlights the requirement for union officials to ensure that discussions are held only with those employees that wish to partake in them, and that they do not unduly interfere with the use and enjoyment of the discussion room by non- participating employees.

Background

Colin Flanagan and Steve Roach were officials of the Construction, Forestry, Mining and Energy Union (CFMEU). They each held entry permits issued under the Fair Work Act 2009 (Cth) (FW Act).  On three separate occasions, they attended together at the Austral Bricks (Vic) Pty Ltd manufacturing plant in Wollert, Victoria, for the purpose of holding discussions with Austral employees.

On the first two occasions, the officials were permitted to enter and use the lunchroom to hold their discussions. The evidence before the Commission was that the lunchroom is available to all Austral employees and is commonly used during meal breaks and other scheduled breaks.

At the second meeting, which occurred on 17 March 2014, Austral submitted that “a number of employees provided informal feedback that they were irritated and uncomfortable with the CFMEU officials presenting to them while they were having their lunch- break in the lunchroom.”  This included allegations that the officials had used a range of expletives, that they vigorously shook the lunchroom access door and verbally belittled a number of senior Austral personnel.  One particular Austral employee, Mr Garvin O’Donnell, a raw materials superintendent, arrived at the lunchroom and was present for a portion of the meeting. He confirmed the allegations in relation to comments made about Austral management.

Accordingly, when the officials attended at the site on 24 March 2014, Austral’s general manager advised them that the lunchroom would not be available for their use. Instead, they were directed to a different meeting room capable of seating 10 people, as opposed to the lunchroom, which can accommodate 16. Mr Flanagan gave evidence that the permit holders did not agree to use this alternative room because it was small, located in an obscure area of the plant and required employees to traverse the factory and reception area to gain access.

Mr Flanagan entered the premises on three further occasions and again sought to use the lunchroom.  Austral denied Mr Flanagan access and, on each occasion, he left the premises rather than making use of the alternative room offered.The CFMEU made an application to the Fair Work Commission (Commission) to intervene in the dispute.

Relevantly, the FW Act permits a permit holder to enter premises for the purposes of holding discussions with one or more employees who:

  • performs work on the premises;
  • wishes to participate in those discussions; and
  • whose industrial interests the permit holder’s organisation is entitled to represent.

Under the FW Act, where an employer and a permit holder “cannot agree” as to a location for discussions,  the discussions may be held where employees take their meal breaks or other breaks.

The two key issues for the Commission to decide were:

  • the extent to which the CFMEU permit holders were required to endeavour to reach agreement with Austral as to where employee discussions are to occur before it can be said that they cannot reach agreement; and
  • the extent to which the permit holders are required to ascertain whether employees with whom discussions are to be held meet the definition of employees under the FW Act (as outlined above).

Findings

In his decision, Deputy President Gostencnik stated that the use of the phrase “cannot agree” in the FW Act was not synonymous with “do not agree”.  He said that the notion of trying to agree involves more than “[T]urning up to the discussion with a fixed view and without a preparedness to consider the other party’s view about the location in which discussions should be held.

As each party had not genuinely considered the proposal put by the  other or otherwise attempted to negotiate a solution to the issue, Deputy President Gostencnik said that there was “no proper basis” to conclude that the parties could not reach agreement; only that they had not reached agreement.  Accordingly, he declined to make any orders, and recommended that in future, both parties “take reasonable steps to try to reach an agreement”, which he defined to mean:

  • proposing a room or area at which discussions may be held and giving reasons for proposing that room or area;
  • allowing the other party an opportunity to consider the proposed room or area and to respond;
  • considering whether discussions with employees can take place in a room or place proposed by a party without interfering with an employee’s right not to participate in any discussions or their capacity to utilise the room or area in accordance with its usual purpose; and
  • remaining open to suggestions from the other party about alternative venues at which discussions may be held.

As to the question of employees with whom the CFMEU permit holders were able to hold discussions, Deputy President Gostencnik said that permit holders do not possess a “generalised right to hold discussions with employees per se.”  Rather, they can only hold discussions with individuals who work at the premises, who wish to participate, and whose industrial interests they are entitled to represent - as defined by the FW Act.

Therefore, with respect to the lunchroom meeting conducted by the officials on 17 March, the Deputy President found that the officials took no steps to ascertain whether the CFMEU was entitled to represent the industrial interests of the employees in the lunchroom or whether those employees present wished to participate in discussions.

Deputy President Gostencnik also found that employees who do not wish to participate should not be forced to vacate their own lunchroom. Rather, he said that the onus was on the officials to moderate their discussions in a way that would not interfere with the right of a non-participating employee to remain in the lunchroom.  While  he said that an appropriate level of moderation ultimately depends on the circumstances, he found that:

  • it did not require a permit holder to resort to whispering;
  • it does not mean a non-participant must not hear any discussion; and
  • it may involve use of only part of the overall room.

Deputy President Gostencnik specifically referred to Mr O’Donnell, who entered the lunchroom during  the meeting, and found that the officials “did not care whether he wished to participate in discussion”. Accordingly, Mr O’Donnell had to sit in the lunchroom and listen to the officials address those employees present with the effect that, “by reason of the volume of the discussion, the size  and the occupancy of the room … he participated in discussions in which he did not wish to participate, [such that] that discussion was not authorised.

Bottom line for employers

  • Permit holders and occupiers must make a “genuine effort” to reach agreement in relation to the proposed location for discussions between permit holder(s) and employees.

In order to do this, the occupier and the permit holder should propose a room where discussions may be held, and allow the other party an opportunity to consider their response. They should also consider whether discussions can take place in a room without the need for non- participating employees to vacate, and remain open to suggestions from the other party about a suitable alternative venue.

  • Where this minimum requirement is not satisfied, the permit holder will not possess any default right to require discussions to be held in the lunchroom.
  • Any permit holder attending at an occupier’s premises must take reasonable steps to ascertain whether the employees they seek to hold discussions with are employed at the premises, whether the permit holder represents their interests and that they wish to participate.
  • This may require a permit holder to ask every employee present in the designated discussion room whether they fit this criteria, and/or may involve the permit holder using only a portion of the overall room and moderating the volume, so that discussions do not unduly interfere with the normal use of the room.