Danger, keep out! Trade union rights of entry during the COVID-19 pandemic

ABSTRACT

The closures and restrictions imposed at workplaces around Australia in response to the COVID-19 pandemic have raised unprecedented issues for trade unions seeking to exercise rights of entry in accordance with Part 3–4 of the Fair Work Act 2009 (Cth). Section 491 requires that union officials seeking to exercise a statutory right of entry comply with any ‘reasonable request’ by an occupier about an occupational health and safety (OHS) requirement that applies to the premises. This had led to disputes about the appropriateness of requirements imposed by employers to mitigate the risk of COVID-19 infection and transmission. This paper will discuss three recent Fair Work Commission (FWC) decisions which consider the reasonableness of requests limiting entry to premises in this context. Although the cases had different outcomes, the FWC’s findings demonstrate how an employer’s OHS obligations relating to COVID-19 will be weighed against the objects of Part 3–4. Overall the FWC has taken a practical and nuanced approach to such disputes, and expected some cooperation between employers and unions. The limited scope of these decisions does, however, leave some questions relating to rights of entry during the pandemic unanswered.

KEYWORDS:

• right of entry
• trade unions
• COVID-19
• fair work act

Acknowledgments

Thank you to my PhD supervisor Professor Andrew Stewart for his comments and insights on earlier drafts of this paper, and to the anonymous reviewers for their feedback and suggestions.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1. [2016] FCA 1287, [36] (Bromberg J). This decision was reversed by the Full Court of the Federal Court (Allsop CJ, White and O’Callaghan JJ) in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470. The Full Court acknowledged Bromberg J’s ‘detailed and careful discussion’ of the history of federal rights of entry and did not disturb these findings: see at [23].

2. In Australia, rights of entry have historically been conferred under federal and state industrial relations regimes. This paper focuses on the current federal rights of entry housed in the FW Act.

3. See, e.g., Work Health and Safety Act 2012 (SA) ss 18–20. Analogous duties apply in other Australian jurisdictions, by virtue of model legislation. See also Occupational Health and Safety Act 2004 (Vic) ss 20–3.

4. Although the academic literature in this area is not extensive, rights of entry have been considered in the context of various government inquiries. For discussion of the FW Act Pt 3–4 provisions see, e.g., Senate Economics References Committee 2022, 113–5, 139–40; Senate Select Committee on Job Security 2021, 81; Productivity Commission 2015a, 43–6, 2015b, 905–14; Royal Commission into Trade Union Governance and Corruption 2014, 575–618; McCallum et al. 2012, 189–200. Right of entry laws have also been discussed in the context of work health and safety regulation: see Quinlan & Johnstone 2009.

5. It should be noted that the enforcement role of unions has been weakened over time. This is largely a consequence of reforms introduced by the Howard Coalition Government in the Workplace Relations Act 1996 (Cth) and Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which significantly restricted rights of entry and undermined the role of unions more broadly. See Hardy and Howe 2009; Stewart et al. 2016, 866.

6. (2015) 230 FCR 15, 20–1 [15] (North, Flick and Bromberg JJ). To this end, the judiciary has stressed that the statutory rights should ‘be construed no more widely than is necessary to give effect to the statutory object and purpose for which the right is conferred’: Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd (2018) 280 IR 47, 61 [30] (Flick J).

7. Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 [18] (Tracey J).

8. CPPC gave evidence that if there were an outbreak which halted the operation of the transhipper or crew transfer vessels, this would halt 60% of Sino Iron’s export volume: [2020] FWC 4502, [13].

9. Deputy President Colman’s reasons for taking this course are set out at [2020] FWC 4502, [14]–[19].

10. Although Colman DP observed that ‘a union is not required to identify any special reason for exercising rights of entry, other than what is required by Part 3–4 … in a case as this, when it is necessary to balance competing interests, the reason of the union for seeking access to particular … part of a premises is relevant in the weighing of the stakes’: [2020] FWC 4502, [39].

11. The UWU specifically referred to Victorian Government (2020) Restricted Activity Directions (Restricted Areas) (No 8). See also Victorian Government (2020) Stage 4 Restrictions: ‘Permitted Work Premises’ for the purposes of the Restricted Activity Directions (Restricted Areas) (No 6).

12. Deputy President Asbury’s reasons for doing so are set out at [2020] FWC 6323, [8]–[11].

13. Deputy President Asbury did, however, acknowledge that ‘[r]egardless of the room utilised by the Union, tracking of those who entered it at the relevant time will be possible’: [2020] FWC 6323, [80].

14. In the United Kingdom, where trade unions have no analogous rights to enter workplaces, the Institute of Employment Rights has recommended reform to introduce both physical and electronic rights of access. Electronic access has been conceptualised as encompassing access to workers ‘through webpages, emails or other computer systems’ (Ewing et al. 2016, 49 [6.19]). The Institute for Public Policy Research (IPPR) has made similar recommendations (Dromey 2018, 30–1; IPPR 2018, 121).

15. The UWU maintained this position, despite having adopted an internal policy as part of its response to the pandemic which stated that right of entry meetings and discussions should occur remotely if possible: [2020] FWC 4501, [10].

16. For example, the CFMMEU has broadly opposed mandatory vaccinations and successfully challenged BHP’s decision to require vaccinations for workers at its Mt Arthur coal mine: Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059. See, generally, Moore 2021.

Additional information

Notes on contributors

Katherine McFarlane

Katherine McFarlane is a doctoral candidate in the Law School at the University of Adelaide. Her research interests include all aspects of labour law, with a focus on trade union rights of entry.