2 min read

Union permit-holders’ right to consult does not extend to petitioning employees for bargaining

Union officials may only enter a work premises under certain conditions according to the statutory right provided by the Fair Work Act 2009 (Cth) (FW Act).

According to section 484 of the FW Act, a union official holding the requisite permit may enter premises to hold discussions with one or more employees. The FW Act goes on to define employees as anyone who performs work on the premises, whose industrial interests are being represented and those who wish to participate in discussions.

Section 502 is a civil remedy provision that provides that a permit-holder seeking to exercise these rights must not be hindered or obstructed. Likewise, there is an obligation on the workplace not to refuse or unduly delay entry of the permit-holder where they are entitled to enter the workplace pursuant to section 501 of the FW Act.

In CEPU v Austal Ships Pty Ltd (2022), the Court provided guidance on the statutory interpretation and application of section 484 of the FW Act.

A union permit-holder was denied entry into a workplace because the purpose for entry was to obtain signatures for a petition to be used in a majority support determination application to the Fair Work Commission. The union argued the purpose of obtaining signatures amounted to “holding discussions”.

The Court considered “holding discussions” involved an exchange of ideas with a particular focus on issues that may be affecting the employee and their access to the safeguards under the FW Act. While a discussion may involve an intention to reach a consensus or persuade a party, once a conclusion has been reached, the discussion ends.

The Court ruled that any act that goes beyond mere discussions and leads to a promise with future application is a purpose that goes beyond “holding discussions” and contravenes the purpose of the provision. Therefore, the Court determined that entering the property to obtain signatures to be used in a future application to the Fair Work Commission would go beyond “holding discussions” for the purposes of the FW Act.

This ruling is contentious and likely to be appealed by the unions.

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We’re taking a break for the holidays. The Workplace Bulletin will return the week of 16 January 2023.

Wishing you all the best for the holiday season.

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