Unions can’t dictate meeting place

Many employers don’t fully understand the rights of union representatives under the Fair Work Act to enter their workplace and speak to employees. 

One of the most common disputes in relation to unions exercising those rights is that the employer has not allowed the union to meet employees in a suitable location. Two recent cases illustrate that there is some scope for the employer to insist that union representatives do not meet employees except in specified areas of the employer’s premises.

Under the Act, unions have a right to enter an employer’s premises for a restricted set of circumstances which are set out in the Act. These include that the union is investigating a suspected breach of industrial laws, including OHS laws, or a breach of awards or an agreement.

Union representatives must comply with “reasonable” requests by the employer to hold discussions or conduct interviews in a particular room or part of their premises. “Unreasonable” requests include when the area is not fit for a meeting or that the employer is intending to intimidate or discourage employees from meeting with the union. Many employers don’t insist on exercising their right to make such a request, despite employee or employer concern that the union is excessively disruptive in the workplace.

In Somerville Retail Services, a Full Bench of Fair Work Australia upheld the employer’s direction preventing the union from meeting employees in a lunchroom. The alternative venue was a training room situated immediately opposite the offices of the company’s management. A majority of the Full Bench found that the Commissioner at first instance was wrong to infer that the location of the room had the effect of making it difficult or discouraging employees from meeting with the union. The decision has been appealed to the High Court.

In TWU v DHL Supply Chain, the tribunal found that the employer’s request that the union meet employees in a boardroom was reasonable, even though it had previously let representatives of a different union meet with employees in the lunch room. The fact that a large majority of employees signed a petition, which was put in evidence, was an important consideration for the tribunal.

These decisions follow a decision of the tribunal earlier in 2010 which endorsed the employer’s restrictive approach to allowing access to union representatives on the massive Pluto gas project in the North West of Western Australia.

Employers should remember that the laws regarding rights of entry by union representatives are designed to balance the interests of members of the union, employees who don’t wish to meet with the union and the employer. Most union representatives are familiar with and prepared to comply with the requirements of the act. Sometimes that is not the case, and it can be disruptive to the employer’s business.

If there is a potential for disruption, make sure you seek advice before either agreeing to, or rejecting, a union’s request.

Peter Vitale is a lawyer who has his own practice focussed on employment and industrial relations law. Find him at www.petervitale.com.au