Two of the most common questions raised by employers have been addressed by separate decisions of the Federal Court and Fair Work Australia.
A large number of employers, particularly those who do not have a strong union presence, regularly face the question of what to do when a union representative requests access to the worksite under the Fair Work Act’s “right of entry” provisions. Unions have a right to enter the premises for three main reasons: First, to conduct discussions with employees; second, to investigate a suspected breach of the Act or of an award or enterprise agreement; and, third, to investigate occupational health and safety concerns.
Disputes often arise about where it is appropriate for the union representative to meet employees. The unions commonly prefer areas such as lunch rooms, where employees congregate. Employee and employers sometimes see this as invasive of employees’ personal time and seek to have meetings occur elsewhere on the employer’s premises.
The issue which often becomes the subject of dispute is the employer’s entitlement under the Act to “reasonably” require that the union representatives meet with employees in a specific location, or that they take a particular route to get to that location. In AMEIU v Somerville Retail Services the Full Federal Court determined that it was reasonable for the employer to require such meetings to take place in a training room rather than the lunch room. The union argued that the employer’s choice of room was unreasonable because it was close to where management of the company were seated and because it was possible for management to monitor who went in and out of the training room. They also claimed that the room was too small to accommodate a large group of employees. Fair Work Australia had previously agreed that the company’s approach was reasonable; noting that employees did not have to walk past management and that privacy blinds could be drawn in the training room.
Citing case law going back to 1572, Justice Flick (with whom the other judges agreed), said that the occupiers right to quiet enjoyment of their property should only be compromised to the extent necessary to accommodate the statutory right of entry provisions. The fact that the company and the union did not agree on what a reasonable location was, did not mean that the company’s position was unreasonable.
The case is potentially significant, as it appears to give employers a much broader capacity than previous case law to dictate the location of meetings held by union representatives under the right of entry provisions under the Fair Work Act.
After the union has exercised its rights of entry and spoken with employees, the next question which employers commonly ask is whether they are obliged to negotiate a collective agreement at the request of the union.
In cases where employers are reluctant, one of the methods available to the union to require employers to engage in bargaining – though not to agree to any particular proposal – is to obtain a majority support determination under the Fair Work Act. In order to obtain such a determination the union must satisfy Fair Work Australia that a majority of employees want to bargain collectively. CFMEU v Xstrata Ulan was an example of a typical case of this kind. The union had obtained a petition of employees, with 47 out of 54 employees signing the document, indicating a desire to bargain collectively with the employer.
The employer argued that a majority support determination should not be made because it had organised a secret ballot to be conducted by the Australian Electoral Commission to determine the attitude of the employees. FWA determined that the petition was sufficient evidence that the majority of employees wanted to bargain and that there was not requirement under the law for a secret ballot to be held. Commissioner Roberts of FWA determined that unless there was evidence that the employees’ signatures were not genuine. In other cases, FWA has been prepared to await the result of a ballot if it appears that signatures may have been obtained by misleading employees about the effect of the petition.
The majority support determination provisions are important, because they provide a gateway to a union and employer having access to a range of bargaining tools, including good faith bargaining orders. The decision in the Xstrata case highlights that the bar to gain access to significant statutory weapons is very low.
Peter Vitale is a lawyer with over 18 years’ experience practising in employment and industrial relations law. He runs his own practice in Melbourne.
