In 2018, in the case of Ramsay v Menso[1], the full Federal Court issued a judgment on the rights of union officials to enter private workplaces without permission. This case raised important issues about the competing interests of unions, to represent and meet with their members, and employers, who have the right to conduct their business privately and without disruption.

In this case, Susan Menso, the director of Brisbane company Z Group 1, refused entry to two Construction, Forestry, Maritime, Mining and Energy Union (“CFMEU”) officials who tried to enter her worksite to investigate suspected safety breaches. The two officials both held an entry permit under the Fair Work Act 2009 (Cth) (“FWA”) and under Queensland’s work health and safety legislation. They also tried to issue an entry notice upon their arrival at the site.

What were Susan’s obligations?

As an employer, Susan was bound by certain statutory obligations contained in the FWA when dealing with union officials seeking entry to her workplace.

Notably, s 501 of the FWA states that when a Union official tries to enter a work site with a valid permit, the owner of the site is not allowed to block or unduly delay their entry before the official is required to present their entry notice.

Consequently, Susan was required to request to see the entry notices of the officials and allow them to enter her workplace.

What did Susan do?

Despite this statutory requirement, Susan Menso did not allow their entry, claiming the officials did not have jurisdiction to enter and had failed to give 48 hours’ notice of their intention to enter. She also refused to look at their entry permits and notices. When police arrived, Ms Menso continued to deny the Union officials entry, despite receiving advice to the contrary.

What did the Federal Circuit Court think?

The CFMEU officials commenced proceedings against Susan Menso for breaching s 501 of the FWA. At first instance, the Federal Circuit Court rejected the officials’ claim on the basis that they had failed to complete their entry notices correctly – each omitting their middle name from the form.

What did the Federal Court think?

This decision was overturned on appeal to the Full Federal Court, who held that a complete entry notice was not a prerequisite to exercising a workplace health and safety right and the failure to include middle names should not vitiate the officials’ right to entry.

The court emphasised the overriding purpose of the Fair Work legislation, noting that the need to promote a safe workplace was more important than the official’s failure to correctly complete their entry notices. This stance demonstrates the courts willingness to prioritise the purpose of workplace legislation, rather than adopting a strict approach to statutory interpretation in the safe work context and favours the rights of unions over the rights of employers to keep their workplace private and free from interference.

Penalty

Consequently, Susan was found to have breached s 501 of the FWA by blocking the union worker’s entry and was fined around $18,500.00.

What can you do?

In light of this decision, employers need to understand their obligations in relation to union officers in the workplace to avoid harsh financial penalties. A summary of these obligations, as set out in the FWA, is provided below.

Summary of Union Official Workplace Rights

FWA Provision Rule
Right to Entry

Section 512

Only union officials with a valid entry permit may enter a workplace.

A permit can be granted by the Fair Work Commission if they believe the union official is a fit and proper person to enter the workplace.

A permit may also be granted under WHS legislation.

Purpose of Visit

Section 518

A union official may only enter the workplace for a specific purpose related to their representative role, being:

·       to investigate suspected contraventions of the FWA or any other fair work legislation if the official reasonably suspects the breach has occurred and the contravention relates to a union member;

·       to hold discussions during break times with employees who work on the premises and whose industrial interests the union represents; or

·       under a right conferred by state WHS law to inspect or access employee records.

Notice of Entry

Section 518

A union official must give written notice of their intention to visit at least 24 hours before they arrive, but no more than 2 weeks’ before.

This requirement may be waived if the giving of notice might result in the destruction of evidence.

Timing of Visit A union official may only visit a workplace during normal work hours.
Rights once On-Site Once inside the workplace, a union official may inspect any work, processes or objects relevant to the suspected breach.

They may interview union members or eligible union members about the suspected breach and may require the employer allows the inspection and copying of any material that is directly relevant to the suspected breach.

The official must agree with the employer where discussions will be conducted.

 

[1] Ramsay v Menso [2018] FCAFC 55.


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