Employers can refuse access to lunchroom but need to be careful in doing so
The union sought access to the company’s lunch room for the purpose of discussion with employees under section 484 of the Fair Work Act. The company instead offered the union access to the training room. The union didn’t want to use the training room, arguing that the company’s request for it to use the training room was not a reasonable request, because of its location next to the Human Resource Manager’s office.
At first instance, FWA found that the request was reasonable, the training room was suitable for the purpose and there was no evidence to support a conclusion that the request to use the training room had been made to intimidate employees, discourage them from meeting with the union or make participation in discussions difficult.
The Full Bench dismissed the appeal citing an earlier decision in ASU v Australian Taxation Office (2007) 158 IR 148 with approval, FWA confirmed its obligation to take all of the circumstances into account and to consider the legitimate interests of all parties concerned (the employer or occupier of the premises, the employees and the permit holder) in considering whether a request to meet in a particular room is reasonable. FWA found that the examples of unreasonableness in section 492 of the Act are not exhaustive, and it is up to FWA to determine the reasonableness of the request in all the circumstances, taking into account the purpose of the Act’s right of entry provisions. In that regard, FWA found that the object of the right of entry provisions is to balance the competing interests of the parties, including the employer’s right to go about its business without undue (but not just any) inconvenience (but not so as to permit the employer to act as a ‘gatekeeper’). FWA also noted the underlying purpose of the right of entry provisions to give effect to freedom of association and the right of employees to act collectively, and that one of the legitimate purposes for which entry rights could be exercised was to enable unions to recruit union members. FWA found that there is nothing preventing permit holders from speaking to employees on their breaks unless employees have advised that they don’t wish to talk to the union. It also commented that the practical effect of arranging for discussions in a room not often used by employees is to prevent a permit holder from having discussions with employees who may not be against, but could be indifferent to, discussions with the union, and that the union had a right to hold discussions with these employees.
FWA found that the primary focus when considering whether a request is reasonable must be the employer’s reasons for the request. A mere preference will not be sufficient grounds for a request. An employer who nominates a particular room for discussions (which the union does not consider reasonable) will need to identify how its interests will be adversely affected (including how undue inconvenience will result) if the permit holder’s preference prevails. The interests of employees who do not wish to participate in discussions will only ground a reasonable request if there is evidence to show that this causes undue inconvenience to the employer or to show that the permit holder will disregard their duty to limit discussions to employees who wish to participate.
Finally, FWA found that employers have a positive obligation to inform employees when a permit holder is present and available to hold discussions with employees at the workplace in a way that the employees could understand. To do otherwise would defeat the purpose of section 484 of the Act, and that this is relevant to whether a room request is reasonable, as is the approach taken by the employer in response to a request by the permit holder to distribute a union notice about discussions.