One of the cornerstones of freedom of association is the ability to attend a meeting of like-minded people to discuss matters of mutual interest and concern.
In this context, it would seem to flow that members of a Union or workers potentially interested in joining a Union, ought to be able to meet with a minimum of fuss.
Legislative developments over the last decade or so have been directed at impeding, frustrating and defeating this fundamental right, as well as handing employers the “whip handle” when it comes to hindering Union officials accessing a workplace.
It started with Mr Howard’s infamous WorkChoices legislation. It introduced a restrictive regime whereby Union officials could be requested by an employer to conduct meetings at a place of the employer’s direction. Over several contested cases concerning such employers’ requests, locations such as the following were all found by Fair Work Australia to be reasonable requests on the part of employers for union meetings:
- a room directly beside a Human Resources Manager’s office;
- an outdoor area in the 40 degree heat of Western Australia with a shade cloth and company representative watching; and
- meeting rooms in the administrative block of a company’s headquarters.
It begs the question: so what exactly would be considered an “unreasonable request”? It’s difficult to imagine circumstances when an employer might be said to have acted unreasonably, having regard to the above scenarios.
The Fair Work Act 2009 introduced by the then Rudd government did little to address the situation. It merely added that an employer’s request to use a certain area would be deemed unreasonable if it was made with the intention of intimidating, discouraging or making it more difficult for employees to attend discussions. Since the provisions were introduced until the present date, no employer was ever found to have ever made a request with these intentions.
The AMIEU’s most recent skirmish on right of entry occurred in late 2012 through to 2013. Following a dispute over pay rates to labour hire employees at the Teys Australia Rockhampton plant (and some adverse press), the Teys Australia group made it clear that in retaliation, officials of the AMIEU would not be permitted to access lunch rooms to meet with members and potential members.
The situation deteriorated rapidly at Beenleigh. Here the AMIEU was allocated a training room to use for meetings, which had proved far too small for the amount of people attending. When it emerged that the training room was also going to be in use on a day that AMIEU officials were exercising a legitimate right of entry, Teys Australia offered what they described as a “temporary structure” to use for discussions. This temporary structure was in fact a 3m by 4m beach gazebo located directly adjacent to the truck marshalling area, with the luxury of a chair and a table.
In the circumstances, the AMIEU approached Fair Work Commission for an interim decision. Interim decisions and orders are rarely granted and generally only in urgent circumstances. Fortunately, the AMIEU was able to persuade Vice-President Lawler, of the Fair Work Commission, that the circumstances were such that an interim decision should be made granting the AMIEU officials access to the dining rooms. Teys Australia had to pack the beach gazebo up and put it in storage until the weather made a trip to the beach a bit more viable.
Ultimately, the AMIEU’s substantive application for right of entry orders at Rockhampton and Beenleigh were resolved by conciliation and mutual agreement.
The postscript is somewhat encouraging. Amendments to the Fair Work Act secured by Bill Shorten MP in 2012 now mean that, as from 1 January 2014, where a dispute exists between an employer and a union official seeking a right of entry exists, the Union official will be permitted by law to access dining rooms.
However, Tony Abbott has announced his government’s intention to repeal these laws. This won’t occur until the change in the Senate takes place, after June 2014.