Right of entry allows unions to protect and recruit members, but recent cases have shown the pandemic can make that difficult.

Two cases, on opposite sides of the country, have demonstrated how COVID-19 has muddled our usual understanding around unions and their right of entry.

Implementing check-in and hand sanitizer in every meeting room is one thing, but what if your workplace is a confined space or a processing plant that handles food? Do unions still have the right to enter?

“Any union official with a right of entry is entitled to use it but must comply with any reasonable requests about occupational health and safety requirements set by an employer,” says Stefan Russell-Uren, employment lawyer at Aulich Civil Law.

“If you look, for instance, to building sites and there’s a requirement to enter the site you must wear a helmet that is directly attributed to workplace health and safety. There’s no doubt that it’s reasonable. And if an official refuses to wear a helmet, well, then quite properly, they can be refused entry into the site.”

It would seem clear that employers have a right to deny entry should union members refuse to follow COVID-safe guidelines. However, even when visitors are playing by the rules there might be some instances where refusing (or restricting) entry is still reasonable. HRM asked Russell-Uren to explain two cases where the Fair Work Commission (FWC) made completely opposite rulings when it came to allowing unions onsite during the pandemic.

COVID-19 not a valid reason to deny entry

The first case happened in late September at the height of Victoria’s second wave. At time of writing, Victoria has recorded 20,345 cases of COVID-19. More than any other state in the country. However, in this case, FWC deputy president Alan Coleman found against a Victorian employer attempting to deny entry to the United Workers Union (UWU).

The UWU sought entry to a pizza manufacturing and distribution company owned by Bervar. The UWU says it received complaints from employees that the employer was not taking adequate measures to protect them for the spread of COVID-19. 

“In Bervar, [the union] made repeated attempts to investigate contraventions of the state Work Health and Safety Act and the employer had clearly taken a view that was hostile for the union and refused them entry, repeatedly,” says Rusell-Uren.

Russell-Uren explains Bervar did allow the UWU entry to parts of the site, but wouldn’t allow them to investigate the areas of the site employees were concerned about.

“The employer said, ‘well, we’ve got a policy of prohibiting non-essential people from entering the premises’. But actually, they allowed the union officials entry to the premises during one of the visits, just not to the area where the contraventions were said to have occurred,” says Russell-Uren.

“The employer tried to argue the union was only trying to enter to build a profile. Unless you can really substantiate it, that is not a sufficient reason to refuse entry to conduct an investigation.”

In his decision, Coleman said he did not find any evidence to suggest UWU did not comply with Bervar’s WHS requests. He also noted that the company and union should work together, particularly during this difficult time.

“The union [should] first contact the company and ask it to investigate and remediate suspected contraventions before seeking entry to the site… the company [should] cooperate by immediately investigating concerns raised by the union, reporting back, and taking any necessary remedial action,” Coleman wrote in his decision. 

COVID-19 risk trumps right of entry

Just days before the UWU v Bervar case, Coleman presided over a similar case, this time in Western Australia at the height of its second wave.

In WA, the number of COVID-19 infections, at time of writing, sits at 776. That is just over three per cent of the cases recorded in Victoria. But in this instance, Coleman found on the side of the employer.

Officials from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were denied entry to see employees on a vessel operated by the Cape Preston Port Company (CPPC).

The union was told only essential workers could access the ship due to the confined spaces and common surfaces. The employer offered to let the CFMMEU meet with employees onshore. The CFMMEU argued the refusal to grant entry to the vessel was not a reasonable request to comply with occupational health and safety requirements.

Russell-Uren says CPPC gave ample evidence that showed their refusal was in line with safety measures and the alternative provided was an adequate substitute.

“The company had taken extensive measures which included but were not limited to restricting entrance to the vessel. They said ‘you’re more than welcome to meet with the workers but you need to do it on land’. In my view, the restriction was entirely reasonable given the circumstances.”

FWC deputy president Alan Colman clearly agreed as he ruled in favour of CPPC. 

Right of entry allows union officials on premises for a couple of reasons – firstly it allows them to speak to and recruit members and secondly, they can enter to insect any violations of the Fair Work Act, such as underpayments or unsafe work environments. 

“In Cape Preston, the union official was attempting to enter the vessel to recruit members and talk to them about unions, he wasn’t going to investigate,” says Russell-Uren.

What to keep in mind

In both these cases the employer felt they had adequate reason to restrict entry to parts of their workplace, but only one employer was found to be in the right by the FWC. Doubtless, there are other employers who feel COVID-19 is a good enough reason to deny union officials entry to all or parts of their worksite so it is worth employers ensuring their reasoning is sufficient enough to stand up against the FWC.

Russell-Uren says if an organisation feels it is unsafe for a union official to enter their site they need to consider a few things. Depending on the nature of the workplace there may be occasions where it’s reasonable for employers to restrict access by unions. 

“Consider, for example, an aged care facility. It would be completely reasonable to require union officials to meet employees in an area not accessible to patients,” says Russell-Uren.

“If the union is there to investigate and needs to inspect a certain room where the employee worked, I think it would be entirely reasonable to for an employer to say ‘you can’t see that room because there is a patient in there but here is an identical room that is safe for you to enter.’”

He also notes that in both cases Coleman urged employers and unions to work together. 

“Industrial relations is a field dominated by mistrust and disputes. But in these cases that really needs to be put aside for a more cooperative approach. At the end of the day, it takes up the time of the FWC and valuable resources to tackle a dispute that should not be arising at all, particularly not in the middle of a pandemic.”