Right of entry not carte blanche

AMIEU v Fair Work Australia [2012] FCAFC 85 (8 June 2012)

Some union officials think they can choose where on the employer’s premises they can conduct union meetings. But the Federal Court has made it clear that, provided the employer makes a ‘reasonable request’ about where the meeting will take place, that the employer chooses.

A full bench of the court decided this in a case where the union wanted to meet in the lunch room. The employer argued that non-union members would be inconvenienced by the meetings taking place while they were trying to have their lunch in peace, so instead insisted the union meeting take place in a nearby training room.

The court found that in this case, and generally, provided what the employer asked was reasonable in the circumstances, there was no way the union could dictate where the meeting would take place.

And the court was quite specific saying “But the decision as to which room was to be used was not a decision to be made by (the union). The room to be made available was within the control of the occupier, so long as the request was a “reasonable request”.

The very important aspect of this decision is the reference to the rights of “the occupier” – in this case the company. The decision traced long-standing common law decisions about the rights of owners or lawful occupiers of property to control comings and goings.

This case was on appeal from Fair Work Australia, and as it is a full bench of the federal court decision on remittal from the High Court, is entitled to be treated as authority.