…s484 Fair Work Act 2009 (Cth) – union official’s purposes for entry – obtaining signatures
In Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd [2022] FCA 1462 (6 December 2022), the Federal Court (Colvin J) held that a union official’s purposes to enter work premises – to obtain signatures from members and potential members evidencing support for a majority support determination – was not an entry for the purposes of holding discussions, and therefore was not permitted by s484 of the Fair Work Act 2009 (Cth) (FW Act) (at [45]).
In addition, the Federal Court further held that s484 of the FW Act does not permit entry for the purposes of holding discussions, as well as another purpose (at [59]).
S484 of the FW Act provides a limited statutory right for a union official to enter work premises “for the purposes of holding discussions with one or more employees” (at [1]-[2]).
In 2021, a union official from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (union) was repeatedly refused entry by Austal Ships Pty Ltd (Austal) at work premises.
Austal’s reason for refusal was consistent: that the union official’s purpose to enter the work premises was to obtain signatures – on a petition to be used for an application for a majority support determination before the Fair Work Commission – and Austal did not accept that entry for this purpose was authorised by s484 of the FW Act, because this purpose did not constitute “holding discussions with one or more employees” (at [3]).
The union sought declarations and other remedies against Austal on the basis that Austal’s refusal of entry to the union official was a contravention of ss501 and 502 of the FW Act. These sections respectively prohibit the refusal, or undue delay, of entry onto premises for a permit holder who is entitled to enter the premises, and the intentional hinder or obstruction of a permit holder exercising rights to enter (at [4]).
The parties filed a statement of agreed facts. The statement provided that – on each occasion the union official sought and was refused entry – the union official had five purposes. The first was for the union official to provide updates to members and potential members onsite who wanted to speak to the union official about industrial issues.
The rest of the purposes were concerned with attempts by the union official to obtain signatures from members and potential members, evidencing support for a majority support determination (at [5]-[6]).
It was accepted by the parties that some of the purposes of the union official’s attempted entries were captured by the statutory language of “holding discussions”. However, Austal’s position was that s484 of the FW Act did not authorise entry for the purpose of soliciting, obtaining and leaving with a signed petition for a majority support determination.
The union’s position was twofold. First, the union argued that the purpose of obtaining signatures on a petition that related to the employment of employees was included within the statutory language of “holding discussions with one or more employees”. In the alternative, the union contended that because some of the union official’s purposes for entry were within the statutory language, s484 authorised entry for the union official. The fact that there was an additional purpose did not mean that the entry was unauthorised (at [7]-[8]).
The Federal Court rejected the entirety of the union’s claim (at [9]).
First, the court refused to accept that the purpose of obtaining signatures on a petition, that related to the employment of employees, was included within the statutory language of “holding discussions with one or more employees”. In reaching this conclusion, the court conducted an extensive analysis of the meaning of “holding discussions” (at [30]-[45]).
Ultimately, the court construed the meaning narrowly. The court held that the reference in s484 of the FW Act to “holding discussions” refers to “a face to face conversation between a union official and an employee or employees that is to take place on work premises during a work break in a room set aside for that purpose or in a crib room” (at [31]).
Specifically, the court held that: “[i]f one party to a discussion seeks to secure some form of agreement or pledge of commitment that will have future consequences as an act of will of a participant in the discussion then the purpose moves beyond discussion” (at [37]).
At the point that the union official sought to engage in a discussion with an employee, in order to secure that employee’s commitment by signature on a petition to support an application for the majority support determination, the union official had a purpose that moved beyond discussion (at [39] and [42]).
Second, the court refused to accept that because some of the union official’s purposes for entry were within the statutory language, s484 authorised entry for the union official. The court refused to accept that a permit holder could have a right of entry for various purposes as long as these purposes included holding discussions with employees.
To accept the union’s contention would be to authorise entry for purposes that are not stated in the FW Act. Section 484 of the FW Act specifies the only purposes for which a permit holder may enter premises (at [59]).
Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
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