Union seeking to obtain signatures on petition for majority support determination is not "holding discussions" for right of entry purposes

Introduction

Recently there was a significant Federal Court decision on a union’s power to exercise right of entry to hold discussions under section 484 of the Fair Work Act 2009 (Cth) (the Act). The question that the Court was primarily concerned with was whether the union’s purpose for right of entry, being to obtain the signatures of its members in support of an application for a majority support determination, fell within the meaning of “holding discussions” in section 484 of the Act.

The union was unsuccessful in this case. Importantly, the Court held entry for the purposes of obtaining signatures on a petition to be used in an application for a majority support determination by the Fair Work Commission is not encompassed by the statutory language of entry for the purposes of “holding discussions”.   

Reasoning

The Court first commented that the right of entry laws balance the competing foundational rights of freedom of association as it pertains to workers and the real property rights of the employer and occupier of the premises. The Court recognised “…the legislative regime is extremely detailed with a considerable number of limits and constraints upon the exercise of the limited right to enter premises.”

Against this background, the Court explained that the union seeking to secure signatures on a petition for a majority support determination does not fall within “holding discussions” because a “discussion results in no pledge, commitment or binding agreement of a kind that is to be used in later dealings” and “it has no consequence beyond the fact of the dialogue and exchange itself.” Accordingly, the Court found that the “further step of seeking to secure a commitment”, whether legally enforceable or not, that will guide or bind future behaviour, such as through an oral statement, a handshake or a signature, is to go beyond holding discussions and is not permitted under section 484 of the Act.

Further, the union was also unsuccessful on its alternative argument. The union argued it had sought entry for “multiple purposes” that included the permitted purposes of “holding discussions” and the fact there was also an extraneous purpose didn’t mean it fell outside of section 484 of the Act. The Court rejected this argument and indicated the “ordinary grammatical reading of s 484 is that it specifies the only purposes for which a permit holder may enter the premises.”

Key take-away

This decision is important for employers as it makes it clear that a union’s right of entry to “hold discussions” does not extend to securing any commitment or binding result from their members including seeking to secure signatures for a petition for a majority support determination.

Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd [2022] FCA 1462 (6 December 2022)

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National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.