In a recent decision an employer has been penalised $42,500 for blocking union talks in the workplace lunchroom.
The Facts
The employer was a family-owned company that operated a cold storage facility in Blacktown, storing cold products such as fruit, vegetables, poultry, meat and seafood.
In March 2023 the employer agreed to bargain with the union for a proposed enterprise agreement and met with the union on various occasions.
On 6 October 2023 the employer circulated to employees its proposed enterprise agreement but did not advise the date, time, and method by which the agreement would be voted upon.
On 20 October 2023 a union official sought to enter the facility to hold discussions with the employees according to a notice given by the union under the Fair Work Act. He wanted to hold discussions with members and potential members of the union about the proposed agreement as he considered it offered significantly worse terms than an in-principle agreement that had been reached some months earlier.
Although the official was allowed to remain in the smoko area near the entrance, he was refused access to the lunchroom. He repeated the request to a director of the business and was again refused access to the lunchroom.
The official remained on the premises and sent an email to the director explaining the relevant provision of the Fair Work Act permitting the discussions to occur in the lunchroom.
Soon after the director approached the union official and yelled, “I’ve just been instructed if you go anywhere else I’m calling the police and marching you off the premises ok, and that will go into the Commission.”
That same day the employer notified its employees that the ballot on the enterprise agreement was to take place the following day, which did not comply with the 7-day notice period required by the Fair Work Act.
The union applied to the Federal Circuit and Family Court of Australia for a declaration, including that the employer’s conduct of refusing access to the lunchroom contravened the Fair Work Act.
The Decision
The Court found that the employer’s conduct was deliberate, and was likely to have an adverse impact on the union’s legitimate interest in engaging with members and prospective members at a critical point in the enterprise bargaining.
The Court ordered a penalty of $42,500 for contravention of the right of entry provision of the Fair Work Act, reduced from $50,000 to reflect the employer’s admission of the contravention, and its “willingness to facilitate the course of justice”.
Implications
Employers need to be aware of the protected rights of union officials to access workplaces for permitted purposes if the notice and other requirements in the Fair Work Act have been complied with by the official. Employers that contravene those rights are at serious risk of substantial penalty.
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