Employers win as Fair Work Australia overturns decision on union’s right of entry

The Australian Industry Group has claimed victory after the Full Bench of Fair Work Australia overturned a controversial decision that would have given a NSW union almost unfettered access to a workplace.

The case involved an agreement struck between NSW company Dunlop Foams and the National Union of Workers.

Commissioner John Ryan approved an agreement that had authorised NUW representatives to enter the employer’s workplace “at all reasonable times upon the premises and to interview any employee, but not so as to interfere unreasonably with the employer’s business”.

But employer groups launched an appeal, arguing the agreement flies in the face of the right of entry laws set down in the Fair Work Act, which sets out strict conditions about how and when unions can enter a workplace and the notice required the unions need to provide.

The Australian Industry Group was supported in its appeal by Federal Workplace Minister Julia Gillard, who was concerned that Ryan’s original decision may have defeated the intention of the Act.

AIG chief Heather Ridout supported the Full Bench’s decision to overturn Ryan’s original decision, and says the right of entry provisions contained in the Fair Work Act were drawn up after extensive negotiations between employers, unions and the Government.

“The Full Bench decision will stop unions continuing their practice of trying to circumvent the requirements of the Act by characterising right of entry clauses in agreements as invitations by the employer to enter.”

The Dunlop Foams matter is just one of a string of cases to be appealed by employer groups in the recent months, including a controversial decision to reject an agreement between Woolworths and the shop assistant’s union because the agreement didn’t provide for compulsory arbitration, and the dispute involving Trimas, where employers were unhappy with a narrow reading of the rules around individual flexibility arrangements.

Both decisions were overturned by the Full Bench.

Industrial relations lawyer Peter Vitale of CCI Lawyers says the fact a number of cases have been the subject of intervention by groups such as the AIG, Australian Council of Trade Unions and the Government is not surprising given the Fair Work regime is still in its infancy.

“It’s typical of what happens when new laws are introduced. There are obviously interested parties that want to test the scope of the legislation and that’s what we are seeing here.”