Refusing Entry to Union Delegates

Under the Fair Work Act 2009 (Cth) (the Act), a union official may enter a club to “hold discussions with one or more employees” or to investigate suspected contraventions. In club land, we regularly see the United Workers Union entering clubs under their legislative right to “hold discussions”.

This recent Federal Court decision (the Case) involved Austral Pty Ltd (Austral), a ship-building company, who successfully challenged the Communications, Electrical and Plumbing Union of Australia’s (CEPU) attempt to exercise their right to enter Austral’s premises. The Case found in favour of Austral when they blocked access to a union organiser who sought to enter the premises for the purpose of obtaining signatures on a petition to compel Austral to bargain for an enterprise agreement. 

CEPU brought a case before the Federal Court, arguing that their organiser should have been allowed entry onto the premises of Austral because:

• Entry was for the purpose of obtaining signatures and is included within the legislation; and
• Entry should not be refused as they also intended to enter for the purpose of holding discussions.

Conversely, Austral maintained they were able to deny entry on the basis that obtaining signatures does not fall within the scope of “holding discussions” and is therefore not a permissible reason to enter under the Act. 

In the landmark decision, the Court determined that union officials cannot use their right to enter premises for discussions with members to gather signatures on petitions or “secure a commitment to a particular course of action in the future” as this purpose moves beyond “discussions”. 

The judgment ultimately determined that the reasons for entry under the Act are explicit and therefore entering for any other purpose is against the intention of the legislation. 

Importantly, the Court also refused to accept that a union official could use their right of entry for various purposes as long as these purposes included “holding discussion” with employees. This means clubs may also refuse union delegates entry in cases where they attempt to enter for multiple purposes; where one purpose is legitimate and the other is outside the scope of the legislation. 

The controversial decision has, unsurprisingly, resulted in other unions confirming they will challenge the Federal Court ruling and have also called on the Federal Government to “protect the integrity of the [right of entry] system”. We will keep you updated if this decision is successfully appealed.