Covert filming misuse of Right of Entry

The employer asked Fair Work Australia to act on its motion and deal with what it said was unlawful and improper conduct of the NUW and its officials in relation to the misuse of rights of entry under the Fair Work Act and specifically under orders made by the commission in relation to suspected contraventions of the modern award at a Baiada chicken processing plant. The officials gave notice to enter the premises under the right of entry orders issued by the commission.  While on the premises, the union officials used a hidden camera to film the operations which it subsequently used on its website and provided to a media program as part of a recruitment campaign.

The commission found that the union and its officials misused their rights of entry, and in particular the rights given by the orders of the commission. The commission expressed serious reservations about the accuracy of information provided to the commissioner to support its concerns about suspected breaches of the modern award, some of which was subsequently found to have been altered by the union. However, the commission was satisfied that the union had a suspicion about award breaches and as such did not misuse its right of entry

The employer also alleged that employee names provided to the union through its records inspection were subsequently used to invite employees to a union meeting. The commission found this to be a misuse of the information provided for the purpose of investigating suspected breaches of the award, and contrary to the privacy employees were entitled to expect. The commission also found that a union official had improperly disclosed information given to it by one employee to another employee.

Finally, noting that the right of entry provisions of the Fair Work Act do not provide for filming of premises, the commission found that the union’s actions in covertly filming the workplace were improper. The commission noted that the employer had expressly told union officials not to film on the premises, and that it was entitled to do so to protect the privacy of its operations, plant design and to ensure that work processes were not portrayed in an inappropriate manner.

The commission queried whether action could be taken against individual permit holders in relation to the various misuses of rights of entry, given the number of people involved and on the basis of findings that the action was organised and endorsed by the union. The matter was relisted for consideration of next steps, on the basis that the covert filming was the most significant instance of misuse, and with an expectation that the union and the employer would develop a behaviour code to rebuild their fractured relationship in the meantime.