Union right of entry and reasonable safety requests

Background

Employers and occupiers of workplaces should be aware of the balance that union right of entry laws seek to strike ─ balancing the rights of union permit-holders to enter work premises for lawful union activities, and the rights of employers and occupiers to conduct their business without unreasonable interference or undue inconvenience.

The Fair Work Act 2009 (Cth) (FW Act) entitles union permit-holders to enter business premises, without being hindered, obstructed, refused entry or unreasonably delayed, for legitimate purposes related to their representative role. This includes holding discussions with employees and investigating suspected contraventions of the FW Act and work health and safety laws.

In the recent case of Australasian Meat Industry Employees' Union (AMIEU) v Teys Australia Beenleigh Pty Ltd, the Federal Circuit and Family Court considered whether an employer's refusal to allow an AMIEU official on site with his mobile phone amounted to the employer unlawfully refusing or unreasonably delaying entry to the official, and/or intentionally hindering or obstructing the official from exercising lawful right of entry.

Overview of decision

The AMIEU's position was that the employer was unlawfully denying the union official's right of entry to the site. The employer countered that there was no denial of union right of entry ─ rather, it was applying its "no mobile phone" policy to prevent unauthorised mobile phones being brought on site.

The employer argued that it could lawfully prohibit a union permit-holder from bringing a mobile phone onto its premises (and make this requirement a condition of site entry), including on the basis that it was a reasonable request to comply with its health and safety requirements.

The Court found in favour of the AMIEU, and held that the employer had unlawfully refused valid union right of entry to its premises, and had hindered and obstructed the union official in exercising his lawful right of entry in applying its "no mobile phone" policy to the official. In reaching this conclusion, the Court noted the following.

• The employer's "no mobile phone" policy was not uniformly enforced on all third parties and visitors to the site, and differentiated application to union officials. For example, there were previous instances where contractors, employees, and other visitors were not prohibited from having their mobile phones on site, including in lunchrooms.
• It was necessary for the union official to use a mobile phone in the course of his legitimate business, and the "no mobile phone" policy made it more difficult for him to properly perform his role of representing and assisting employees at the premises.
• The policy had little or no connection to health and safety requirements, particularly where it was applied in lunchrooms as opposed to production areas. Part of the rationale for the policy was to protect workers' privacy, commercial confidentiality, and brand reputation.
• The relevant union official was prepared to give an undertaking that he would not use his mobile phone on site for improper purposes, including taking photos or video footage of the kind that the "no mobile phone" policy sought to protect, and he also accepted that mobile phones should not be brought into on-site production areas from a work health and safety perspective.

Implications for employers: When will requests be unreasonable?

A key point in this case was that the "no mobile phone" policy was not considered to be a reasonable request, in circumstances where it was applied inconsistently to union officials. Any health and safety request should be applied consistently and uniformly to all persons on site.

Another important takeaway from this case was that the "no mobile phone" policy was unreasonable where it would apply to union officials holding discussions with workers in the lunchroom ─ where the presence of mobile phones did not give rise to health and safety risks. In contrast, the situation may be different where there are genuine health and safety risks (for example, in production areas, where the presence of mobile phones may give rise to such risks).

Key takeaways

Employers and occupiers of workplaces who deal with union right of entry should take this opportunity to review current practices and ensure that any requests or requirements for entry have a reasonable basis that are defensible if challenged.

If you have questions about what may or may not be a reasonable safety request to impose on union officials exercising right of entry, please contact Lander & Rogers' Workplace Relations & Safety team.

Photo by Ron McClenny on Unsplash.