THE Fair Work Commission has refused to grant a union autonomous access to workers at a major employer’s distribution warehouse, despite finding the company’s new right of entry policy to be in contravention of the Fair Work Act.

In a case heard by Commission Julius Roe late last week, the National Union of Workers (NUW) sought orders against supermarket chain Coles to undo provisions of its right of entry policy prohibiting union representatives from approaching workers on their lunch break.

The NUW’s complaint arose after visiting Coles’ Kewdale distribution centre in Perth, a site employing between 700 and 800 workers, almost 600 of which are Coles employees.

The new provisions of the company’s right of entry policy, which also limited union officials to use of one lunch table and restricted movement around the lunch room, were introduced by Coles following the introduction of laws making lunch rooms the default union meeting place.

The NUW argued that the Coles policy contravened the Fair Work Act by infringing on the union’s right to hold discussions with potential members, under s484 of the Act.

Coles rebutted the union’s position, pointing to ambiguity around the definition of “holding discussions with employees who wish to participate in those discussions” and referring to the AMIEU v FWA and Sommerville Retail Services decision in which Justice Jessup said:

“The individual paragraphs in s 484 identify the employees with respect to whom those purposes must exist, at the point of entry. One characteristic specified in the section is that the employees must, at the time when the right of entry comes to be exercised, “wish to participate in those discussions”. The right of entry is not given for the holding of discussions with employees generally.”

Coles further submitted that workers had complained about union representatives interrupting employee lunch breaks. The company highlighted its commitment to fatigue management, giving rise to its policy on unwanted interruptions by union officials.

Additionally, Coles raised concern around the potential for conflict amongst union members if the organisation’s policy was to be lifted, as around 500 of the site’s workers were already members of the Shop, Distributive and Allied Employees Association (SDA).

In determining the definition of an employee’s wish to participate in union conversations, Commissioner Roe referred to his first-instance judgement of the Sommerville case, stating:

“An organiser approaching an employee who wishes to participate in discussions is not contrary to Section 484 or to the legislative scheme. Read in context the expression ‘who wish to participate in those discussions’ does not exclude a permit holder from approaching employees to identify if they wish to participate in discussions. A discussion can occur in two ways — the permit holder can approach the employee or the employee can approach the permit holder. The Act does not suggest one or the other.”

However, despite ruling the employer had breached the Fair Work Act by restricting visiting union officials from approaching employees, Commissioner Roe said that the high membership of employees with the SDA meant Coles had ‘a reasonable concern that the activities of the NUW may cause conflict’.

As a result, Commissioner Roe rejected the NUW’s application for an Order, instead recommending that Coles remove policy conditions that imposed on the officials’ right to approach employees, but continue to restrict officials to particular areas of the lunch room.

Read the full decision here.

Implications for Employers

The right of entry provision making a worksite lunch room the default meeting location for union officials was implemented on 1 January 2014, despite statistics showing that union membership comprises just 13% of the private sector workforce.

However, employers are permitted to stipulate requests to permit holders, provided such requests are deemed reasonable.

As this particular case highlights, employers can restrict union representatives to particular areas of a lunch room if conflict is a likely concern, as well as stipulating the route taken to reach a lunch room.

The Coalition has recently tabled its first tranche of changes to the Fair Work Act, including plans to return to the pre-2009 model for workplace right of entry provisions. These changes will include undoing lunch-room meetings and repealing provisions holding employers responsible for transport and accommodation costs associated with union visits.

For advice or guidance on union right of entry provisions, contact an AMMA workplace relations consultant.