Background

Early last year, we released an article about the rights of union officials to enter a workplace without permission following the Federal Court decision in Ramsay v Menso.[1] In this case the Court relaxed the requirements for a union official to enter a private workpulace, noting that in some circumstances, a union official could lawfully enter a workplace to investigate suspected work health and safety breaches without holding a full and complete entry notice.[2]

Since then, the Federal Court has provided more guidance on a union official’s right to enter a private workplace in the 2022 case of CEPU v Austal Ships.[3]

What happened in CEPU v Austal Ships?

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) attempted to enter Austal’s premises four times as authorised under section 484 of the Fair Work Act 2009 (FWA). Under section 484, a union official is allowed to enter a private company’s premises for the “purposes of holding discussions with one or more employees” of that company, provided that they hold the proper entry permit.

Each time CEPU tried to enter Austal’s workplace, they held all the correct entry permits, but were nevertheless refused entry by Austal. CEPU consequently brought a claim against Austal for unlawfully refusing their entry under section 501 of the FWA.

In defence, Austal claimed that the CEPU officials were not entering their workplace for the proper purpose authorised under s 484 – for the purpose of holding discussions with employees – and accordingly Austal was under no obligation to let them in.

The issue for the court was whether the CEPU official’s reasons for entering Austal’s workplace really constituted entry for the purpose of holding discussions with employees.

Why did CEPU want to enter Austal’s workplace?

It was agreed between both parties that CEPU wanted to enter Austal’s workplace for four reasons:

  • to provide a general update to union members employed at certain Austal premises who wanted to speak about industrial issues at that site;
  • to speak with those members about getting support for an enterprise agreement to cover their employment and sign a petition if they supported this decision;
  • to persuade reluctant members to support and sign the petition; and
  • to actually get the signatures of those members willing to sign.

Who was in the wrong?

After considering their reasons for entry, Justice Colvin of the Federal Court of Australia held that the CEPU officials were not authorised to enter Austal’s workplace, meaning Austal had not breached their duty to let them in.

He reasoned that section 484 contemplates face-to-face conversations between union officials and employees, which involve an exchange of ideas or attempts at persuading or encouraging union members to reach a consensus. However, once a final conclusion is reached, the discussion has ended. Applying this to the facts of the case, the CEPU officials could enter to discuss with Austal employees whether they should sign the petition, but once the employees reached a conclusion as to whether they would or would not sign, the discussion is over. As the CEPU officials went beyond this, wanting to enter for the purpose of actually obtaining signatures in support of their petition (a purpose that is outside the scope of holding discussions) they could not lawfully enter Austal’s premises under section 484.

Takeaways

Just because a union official holds a valid entry permit, an employer may not always be obliged to allow their entry into the workplace. Employers should consider an official’s reasons for wanting to enter the workplace, and if they fall outside the scope of ‘holding discussions with employees’ (a process that involves talking about an issue, but that ends once the issue is resolved), the employer may be entitled to refuse that worker’s entry.

We recommend, however, that employers exercise caution when doing so as civil penalties and fines can be imposed for unlawfully refusing a union worker’s entry.

Morgan + English are happy to provide you with advice in these circumstances. Please contact Daniel at daniel@morganenglish.com.auif you would like to understand more about your obligations.

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

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

[3] Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd [2022] FCA 1462.

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