Federal Workplace Minister Julia Gillard has announced the Government will side with employer group the Australian Industry Group to appeal a decision by Fair Work Australia to approve a workplace agreement that gives unions almost unfettered access to a NSW workplace.
However, industrial relations lawyer Peter Vitale from CCI Lawyers believes the Government will struggle to have the decision overturned and may be forced to amend the Fair Work Act if it wants to place limits on union rights of entry.
The issue of the rights for unions to enter a workplace have been a controversial part of the development of the Fair Work Act.
While the fact has expanded the rights of unions to enter a workplace to meet employees and discuss breaches of industrial law, the Fair Work Act imposed tight rules around these entries, including 24 hour notice periods, rules about talks being held in a particular room (and the union official taking a particular route through the workplace to reach that room) and rules around which documents the union may access.
However, the validity of these entry rules has been thrown into question by an agreement between the National Unions of Workers and NSW company, Dunlop Foams.
The agreement contains a clause that states: “An authorised NUW representative is entitled to enter at all reasonable times upon the premises and to interview any employee, but not so as to interfere unreasonably with the employer’s business.”
Fair Work Australian Commission John Ryan found the clause “is consistent with the right of an occupier of premises to extend an invitation, including qualifications as to purpose, place and time, to a person to enter their premises. The fact that the employer’s right to invite has been codified within [the] clause… does not detract from the fact that the employer can control the manner of the expression of an invitation to enter.”
But employer groups and the Government believe this clause means the unions can bypass the right of entry laws set down in the Act.
But AIG chief executive Heather Ridout has attacked the decision, saying the decision by Ryan would “enable unions to circumvent the provisions of the Act dealing with unlawful terms in agreements by simply characterising a right of entry clause in an agreement as an invitation to enter. “
She says Ryan’s decision upsets the balance struck by unions and employer groups on the entry rights issue prior to the Fair Work Act coming into effect.
AIG and the Government will now seek leave to appeal the decision to the Full Bench of Fair Work Australia.
However, Vitale has doubts about the chances for the Government and AIG to get the decision overturned.
He points out that the Fair Work Act does not prevent employers and unions including in a workplace agreement entry rights terms beyond those which are provided for in the Act.
“My first impression of this is that AIG and the Government might struggle to overturn this decision,” Vitale says.
“However, it may be that it’s not how the Government intended the bill to operate. If they think the Commission has got it wrong maybe they need to amend the legislation.”
Vitale also points out the Government’s move to appeal the decision puts Gillard in an interesting position.
Earlier this year, the Government decided to appeal a decision not to approve a dispute resolution process that had been agreed to by an employer and a union, saying at the time that it was keen to see agreements between bosses and workers supported by FWA.
But as Vitale points out, the Government is again appealing against the content of a deal where there is clear agreement between employer and union.
“It puts the Government in an interesting position, as these cases often do.”
James was the editor and publisher of SmartCompany and LeadingCompany for five years. He is now the Australian Financial Review‘s companies & markets editor, and a former BRW editor.
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