In this case, a Full Bench of FWA upheld an appeal by the CFMEU against an earlier decision of O’Callaghan SDP refusing to approve an enterprise agreement because it included a right of entry term that permitted right of entry other than in accordance with Part 3-4 of the Fair Work Act and was therefore an unlawful term.
Following the authority of Australian Industry Group and Pacific Brands Limited t/a Dunlop Foam, the Full Bench confirmed that enterprise agreements can confer rights of entry that are in addition to, or for different purposes than, those dealt with in Part 3-4. An enterprise agreement term will only be unlawful if it provides for right of entry for the purpose of investigating suspected breaches or discussions with employees in a way that is not limited by reference to Part 3-4.
The Full Bench agreed with submissions made by the CFMEU regarding the interpretation of enterprise agreement terms:
- The clause must be read as a whole;
- Where there are two alternative constructions of a clause, the one which would make it lawful should be preferred to the and other which would make it unlawful; and
- Giving effect to the intention of the parties is paramount in the construction of industrial instruments, including the factual and legal context in which the instrument was made.
FWA found that the express reference to Part 3-4 of the Act in the right of entry clause suggested that the clear purpose of the clause was to ensure that rights to enter premises were granted by the agreement in a manner consistent with the Act. Having upheld the appeal, FWA quashed O’Callaghan SDP’s decision and indicated that the enterprise agreement should be approved. The matter was referred to Harrison SDP for formal approval.