Provisions within the Fair Work Act surrounding right of entry currently allow union representatives with an entry permit to enter an employer's premises in order to meet with employees who are, or could be members of the union, to hold discussions during "breaks", or to investigate a suspected contravention of an award or enterprise agreement. As with all others within the Fair Work Act, the rules surrounding right of entry must be strictly adhered to by all stakeholders.
Not before or after shifts
In a recent case between the CFMEU and BHP Billiton, the Full Court of the Federal Court held that the reference to "meal times or other breaks" in legislation should not extend to periods before and/or after shifts. The court held that "meal times or other breaks" must involve interruption in the employment of the employee, necessarily meaning that discussions could not take place either before or after working hours. Within this context, the term "breaks" refers to some sort of interruption, suspension or stoppage of an employee's work - therefore, the term cannot be applied to times when the work has not yet begun, or has already concluded.
Permit holders arranging entry to hold discussions must, therefore, restrict themselves to lunch or other breaks during the working day, and cannot exercise a right of entry to the employer's premises for discussions with employees before or after shifts take place.
Not without giving proper details of a suspected infringement
Another recent Federal Court case between Qantas and the Australian Licensed Aircraft Engineers Association concerned an entry to Qantas premises by a union permit holder to investigate a suspected breach of an enterprise agreement (a "leave burn" program based on Qantas' estimate of surplus staffing - the union disputed the overstaffing, and alleged a breach of consultation requirements relating to the leave burn program).
The Fair Work Act requires "particulars of the suspected contravention" to be included in the notice. In considering whether the notice was valid, the court held that while the particulars do not have to be fully detailed, or expressed with a high level of precision, they cannot be so vague "as to provide an occupier with little (or no) idea as to whether the right [of entry] is a lawful exercise of statutory power". A reference to the relevant clause in the enterprise agreement, by itself, was not enough. The notice had to set out some basis for the suspicion that there had been a contravention of the consultation obligation.
Employer obligations
When a union gives notice of an intention to exercise a right of entry which does not comply strictly with the rules, employers have to decide whether to go along with the request, or to object and require the union to comply strictly with the legislation. If the notice of intended entry complies with the rules, employers must not unreasonably hinder a permit holder exercising their right of entry. With this in mind, getting your grounds of objection in order quickly (if that is the approach to be taken), is critical for employers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
