The entry clause
28 AIG's submission before the Full Bench was that cl 15.2(k) provides entry by a union official for the purpose of investigating a suspected contravention of the FW Act or a fair work instrument and may also be entry for the purpose of holding a discussion with employees. It was submitted that it was unlawful because it provided for a right of entry in a manner inconsistent with s 481 and s 484 of the FW Act. The Full Bench set out cl 15.2 of the Agreement dealing with the resolution of other issues but giving rise to debate only in relation to cl 15.2(k). Clause 15.2 in its entirety (which was set out by the Full Bench) provides as follows, (with emphasis added):
15.2 Resolving Other Issues
(a) Where a dispute arises over permitted matters (as currently defined in the Fair Work Act), the application of this Agreement or the NES, the matter shall be first submitted by the Union, employee or Employee Representative (if any) to the supervising officer or another appropriate manager, or vice versa. If not settled, the matter may be referred to more senior persons.
(b) While this procedure is being followed the status quo that existed immediately prior to the events that gave rise to the dispute will remain and, subject to this, work shall continue normally where it is agreed that there is an existing custom and practice, but in other cases, the work shall continue at the instruction of [ADJ]. Failure to continue shall be a breach of the Agreement.
(c) No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this subclause.
(d) If still not settled, either party may submit the matter, in accordance with this clause, to:
(i) the Disputes Board for conciliation and/or, arbitration; or
(ii) directly to FWA for conciliation and/or arbitration, or for a review of an arbitrated decision of the Disputes Board.
(e) To avoid doubt, a party to a dispute may:
(i) apply to FWA notwithstanding the fact that the Disputes Board has already conciliated the matter; or
(ii) if the Disputes Board has arbitrated the matter, apply to FWA for a review of the decision within 14 days of the decision having been made; or
(iii) elect to submit the matter directly to FWA without first going to the Disputes Board.
(f) If a matter is submitted to the Disputes Board:
(i) The decision of the Disputes Board is binding on the parties, subject to the right to review in accordance with this clause.
(g) Where a matter does progress to FWA for arbitration or review, its decision shall be final and binding on the parties, subject to either party exercising any right of appeal against the decision to a Full Bench.
(h) In conciliating or arbitrating a matter under this clause, or conducting an appeal under this clause, FWA may exercise such procedural and other powers in relation to conferences, hearings, witnesses, evidence and submissions as are necessary to make the conciliation, arbitration, arbitration hearing, or review effective. To avoid doubt, in conducting a review, FWA is not confined to a consideration of the materials before the Disputes Board, and may deal with the matter afresh or conduct any hearing afresh and substitute its decision for that of the Disputes Board. In conducting a review, it is not necessary for FWA to determine whether the decision of the Disputes Board was affected by error.
(i) A decision of the Disputes Board or FWA made pursuant to this clause 15.2 must not be inconsistent with the National Code of Practice for the Construction Industry, the Implementation Guidelines for the National Code of Practice for the Construction Industry or legislative obligations.
(j) For the purposes of the disputes procedure:
(i) At all stages of this procedure, those involved in the dispute may seek the assistance of the Union, an employee representative, Employer representative (if any) and/or other representative.
(k) An Employee Representative or an official of the ETU shall be allowed to enter the workplace (excluding residential premises) to assist with representing an employee(s) under the dispute resolution clause in this Agreement provided that:
(i) prior to seeking entry:
(A) a dispute has been submitted to [ADJ] in accordance with clause 15.2(a) notifying [ADJ] of the nature of the dispute (as far as practicable), and which employees are affected (as far as practicable);
(B) a person involved in the dispute has sought the assistance of the representative (or official); and
(C) the parties have discussed mutually convenient arrangements for the entry, having regard to the operational requirements of the workplace;
(ii) the entry must not be used for any other purpose; and
(iii) the representative must not intentionally hinder or obstruct any person, or otherwise act in an inappropriate manner (which does not include actions involved in assisting the relevant employees in respect of the dispute), during the attendance or entry (or the representative has previously been found by FWA or the Disputes Board to have so acted in respect of that dispute).
Without limiting the rights or obligations of the parties in relation to a breach of this Agreement, any dispute about entry to the workplace will be dealt with in accordance with this procedure. For the avoidance of doubt, clause 15.2(b) will apply while the procedure is followed.
(emphasis added)
29 The majority noted (at [56]) that cl 15.2(k) relates to the subject matter of dispute resolution. Section 186(6) requires an agreement to have a dispute resolution clause and such clause must allow for the representation of employees covered by the agreement.
That is precisely what clause 15.2(k) addresses. It also makes clear that the entry to enable the employee to be represented cannot be used for any other purpose. It can be invoked only when a dispute has arisen and then only in respect of an employee who has asked the representative to become involved.
30 After noting that any agreement for which approval is sought must have a dispute resolution clause (s 186(6) of the FW Act), the majority also considered the decision of a Full Bench in Re Australian Industry Group (2010) 196 IR 125 (at [7]) in relation to a right of entry provision.
31 The Full Bench upheld the Original Decision on this issue as well, the majority saying (at [52]-[58]):
[52] Her Honour observed that a right of entry clause in an enterprise agreement was considered by a Full Bench of FWA in Dunlop Foams. She then set out a lengthy extract from that decision. We do not reproduce all of it and the following paragraphs are adequate for this decision:
"[7] The agreement for which Dunlop Foams sought approval in this case contained a provision dealing with right of entry. The provision reads:
'44 Right of Entry
An authorised NUW representative is entitled to enter at all reasonable times upon premises and to interview any employee, but not so as to interfere unreasonably with [ADJ]'s business.'
...
[33] This summary of the legislative provisions indicates that the [FW] Act regulates the exercise of entry rights by a permit holder in a comprehensive way. There cannot be any doubt that if cl.44 had been drafted so as to apply to a permit holder it would have been clearly inconsistent with the regime established by Part 3-4. It should be noted, however, that s.194(f) does not strike at agreement terms which deal with a permit holder as such, but at agreement terms which deal with an entitlement relating to particular types of entry to premises.
[34] In order to be an unlawful term within s.194(f) an agreement term must have three elements. The agreement term must provide for an entitlement, the entitlement must be to enter premises for a purpose referred to in s.481 or to hold discussions of a kind in s.484 and the term must purport to permit entry other than in accordance with Part 3-4.
[35] We have no doubt that cl.44 provides for an entitlement. Subject to compliance with the prescribed conditions an authorised NUW representative may enter the premises at any time. Provided the conditions are complied with there is nothing that Dunlop Foams can do to prevent or restrict entry. It is also clear that the entitlement, being unrestricted by reference to purpose, includes entry for the purpose referred to in s.481, namely investigation of suspected contraventions. Equally the entitlement extends to the holding of discussions with employees, the matter dealt with in s.484. Finally it is clear that cl.44 is not limited in its operation by reference to the provisions of Part 3-4. As we have seen, those provisions establish a regime of regulation of entry to premises based on the requirement to obtain a permit and to observe a number of procedures and rules."
[53] Having referred to the above Full Bench decision Her Honour then made the following comments about clause 15.2(k):
"[36] In my view, the terms of clause 15.2(k) are clearly different to those considered by the Full Bench in the Dunlop Foams' case. Setting aside the last paragraph of clause 15.2(k) concerning a dispute about entry to the workplace, to which I will return shortly, the clause provides for an employee representative or an official of the CEPU to enter a workplace to assist with representing an employee under the dispute resolution clause of the [Agreement]. The clause provides that the entry must not be used for any other purpose.
[37] Accordingly, I am satisfied clause 15.2(k), excluding the last paragraph of the clause, is not an unlawful term within the meaning of s.194(f) or s.194(g). While the clause provides for an entitlement, the entitlement is to enter premises for the purpose of representing an employee under the dispute resolution clause of the [Agreement] and not for either a purpose referred to in s.481 or to hold discussions of a kind referred to in s.484 or for the exercise of a State or Territory OHS right.
[38] I am concerned, however, that the last paragraph of clause 15.2(k) provides for any dispute about entry to the workplace to be dealt with in accordance with clause 15, rather than in accordance with Division 5 of Part 3-4 of the FW Act where the dispute is about the operation of Part 3-4. I will return later to whether it is appropriate for me to accept a written undertaking from [ADJ] in respect of the last paragraph of clause 15.2(k)."
[54] AIG submitted to Her Honour, and submitted again to us, that the clause provides for entry by a union official for the purpose of investigating a suspected contravention of the FW Act or a fair work instrument and may also be entry for the purpose of holding discussions with employees. These are purposes referred to in ss.481 and 484 respectively. It is unlawful because it provides for a right of entry in a manner inconsistent with those sections which are contained in Part 3-4 of the FW Act.
[55] In the Moyle Bendale appeal, which relates only to the issue of right of entry and whether a clause in the Moyle Bendale agreement was unlawful, the CFMEU summarised in four points what it said was the proper construction to be given to ss194(f), 481 and 484. AIG agreed with this construction. The CFMEU points are as follows:
"21. The preferred construction of section 194 (f), and the Act's scheme concerning terms in enterprise agreements about right of entry is as follows:
(a) Part 3-4 of the Act does not create an exclusive code governing the rights of officers to enter [ADJ]'s premises.
(b) Enterprise agreements may include terms granting additional entitlements to officers to enter [ADJ]'s premises, so long as the terms granting those additional right of entry entitlements is not an unlawful term under section 194 (f).
(c) A term is only an unlawful term under section 194 (f) if it grants an entitlement to enter premises for the purposes referred to in sections 481 or 484 of the Act other than in accordance with Part 3-4.
(d) It follows from points (a), (b) and (c) that a term is not an unlawful term under section 194 (f) if it grants a right of entry for a purpose not specified in sections 481 or 484 of the Act."
[56] We agree with the above construction. It is also a construction which is consistent with Dunlop Foams. That case of course concerned a clause in significantly different terms to clause 15.2(k). It was, as the Full Bench there described, a clause which granted a right of entry unrestricted by reference to purpose. Clause 15.2(k) as Her Honour observed, is clearly different to the terms of the clause in Dunlop Foams. The clause relates to the subject matter of dispute resolution. As we have earlier observed s.186(6) requires an agreement to have a dispute resolution clause and such clause must allow for the representation of employees covered by the agreement. That is precisely what clause 15.2(k) addresses. It also makes clear that the entry to enable the employee to be represented cannot be used for any other purpose. It can be invoked only when a dispute has arisen and then only in respect of an employee who has asked the representative to become involved. For these reasons we agree with Her Honour that the clause is not an unlawful term and accordingly this ground of appeal should be dismissed.
[57] If it was thought that despite all of the foregoing observations there remained a need to confirm the meaning of s.194(f) and that recourse could properly be had to the Explanatory Memorandum the following paragraph would be informative:
"838. It is intended that agreements can include terms allowing for union officials to enter [ADJ]'s premises for purposes other than those set out in paragraphs 194(f) and (g). An agreement might, for example, provide an entitlement to enter [ADJ]'s premises for a range of reasons connected to the terms of the agreement, such as:
• to assist with representing an employee under a term dealing with the resolution of disputes or consultation over workplace change; or
• to attend induction meetings of new employees; or
• to meet with [ADJ] when bargaining for a replacement to the current agreement."
[58] Clause 15.2(k) is the type of clause envisaged by the above extract from the Explanatory Memorandum.