17 November, 2023
A Federal Court of Australia Full Court has ruled that a union’s right to enter premises to ‘hold discussions’ includes entering to secure signatures on a petition.
This follows an appeal of the first instance Federal Court decision that a union official who entered premises with the intention of getting signatures for a petition was not an entry ‘for the purposes of holding discussions’ and was therefore not permitted under the Fair Work Act 2009 (Cth) (“FW Act”).
The Full Court of the Federal Court of Australia recently in Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd held that a CEPU official who entered premises for reasons including to secure signatures on a petition for a majority support determination (a process available under the FW Act for employees to make their employer commence bargaining for an enterprise agreement) was validly entering the premises for the purposes of ‘holding discussions’.[1]
On four occasions, a CEPU official attempted to enter Austal Ship’s premises to provide updates to members and potential members, speak with members about a majority support determination for an enterprise agreement, invite members and potential members to sign a petition in support of a majority support determination, and persuade those who were unsure or reluctant to support the majority support determination.
The official was refused entry on all four occasions. Austal Ship’s reason for refusing entry was because seeking people to sign a petition did not (in its opinion) fall within the scope of the right to enter a premises for the purpose of ‘holding discussions with one or more employees’.
In the first instance, Justice Colvin rejected the CEPU’s various arguments, including that obtaining a signature was no different to taking notes of a conversation, or that seeking a signature being only part of the reason for entry did not invalidate the right of entry.
His Honour found that seeking a signature does not fall within the statutory definition of ‘holding discussions’, and that entering for the purpose of securing a petition would invalidate the entry even if discussions were held before the signing of the petition (or seeking people to sign the petition) occurred.
The Full Court quashed the first instance decision, finding that a discussion ‘is a means to an end’ and ‘a medium that is engaged in order to achieve some other objective’. Given this, in order to secure signatures on a petition was, in effect, a natural extension from holding a discussion. That is, the CEPU official was entering to hold discussions with employees in order to secure their signature, and this sequence of events was within the statutory definition of ‘holding discussions’.
An official who enters premises with an industrial goal or objective in mind will still be holding discussions with employees for the purposes of right of entry, even where the result of that discussion is the securing of the particular goal such as by way of a vote, signing a petition, or some other action (even if it might be contrary to the employer’s interests). Possible examples might include to:
While this decision should not be read as giving union officials any broader a scope to enter premises, it highlights the complexity around determining whether a union’s request to enter premises will be for a reason permitted by the FW Act. Employers (or occupiers) who wrongly deny a union the right to enter the premises may expose themselves to significant penalties under the FW Act.
Where a union gives notice that it seeks to enter premises on particular grounds, managers and leaders should promptly seek expert advice (whether internal or external) to confirm whether the notice is for lawful entry to the premises. If it is, those managers and leaders must not hinder or obstruct the union official entering the premises.
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, please contact your Consultant.
[1] [2023] FCAFC 180.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.
