Shelley Clark - Solicitor
Recently the ABCC prosecuted a principal contractor for refusing to allow the CFMEU to enter a worksite. In February 2008 the Australian Industrial Relations Commission (AIRC) addressed the other side of the issue, rejecting a union's appeal against a previous order refusing entry to premises of the Australian Taxation Office (ATO) in Brisbane. In light of the Rudd Government's decision to maintain the existing right of entry provisions within its new industrial relations regime, it is important employers are aware of their right to refuse union entry to their business premises in certain circumstances.
In March 2007 the Australian Services Union (ASU) served Notices of Intention to Enter premises of the ATO in Brisbane. The purported reason was to investigate alleged breaches of a collective agreement and to hold discussions with employees. An issue arose as to the notice, in particular the lack of specificity as to the alleged breaches of the agreement. Entry was refused by the ATO.
The generalised employee grievances included such matters as inadequate time for learning and development and whether an individual was receiving "sufficient coaching". The ASU sought an order from the AIRC allowing entry. Commissioner Spencer refused to make such an order, finding the Workplace Relations Act placed the burden of proof on the union representative seeking entry to provide the existence of reasonable grounds for suspecting a breach, and an employer was entitled to require the breach to be particularised prior to entry. She also found a common sense approach would indicate that such particularisation would require the presentation of material that gives a reasonable perception of the breach. The actual notices provided insufficient detail of the alleged breach.
The ASU appealed to the Full Bench, which upheld Commissioner Spencer's decision. The Full Bench held that, where the Notice does not specify a breach, or it is described ambiguously so that it is not possible to tell what the suspected breach is, it is inconceivable the union had reasonable grounds for suspecting a breach. If there are no reasonable grounds for suspecting a breach, then a union representative would not have a right to enter premises under Part 15 of the Act.
The Full Bench held an employer might "reasonably request further particulars of a suspected breach in circumstances where there is some ambiguity or uncertainty about the particulars that have been provided in the Entry Notice". It was the view of the Full Bench that the particulars should at least disclose the nature of the breach and the facts giving rise to it so the employer is able to understand the scope of the investigation.
Lessons for Employers
Whether the alleged breaches relate to the industrial instrument or to a workplace health and safety issue, it is important to ensure the Notices are legally correct. Employers should not simply refuse entry for all matters, however this decision provides guidance on when an employer may legitimately refuse entry to avoid 'fishing expeditions'.
Employers need to carefully examine each Entry Notice to ensure they can ascertain the alleged basis for the exercise of the right of entry. Where alleged breaches of industrial obligations are not particularised on the Notice, or if the union representative is unable to provide particulars of the suspected breach, an employer may be entitled to refuse entry until those particulars are provided. It is also possible for an employer to request information on the facts which found the union's breach suspicions, or, for those facts to be included on the Entry Notice.
If an employer has any doubt as to the content of a Notice, we recommend they obtain legal advice immediately.
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