There are only limited circumstances in which a union or union representative are entitled to enter the workplace of an employer. One such circumstance is permitted by work health and safety (WHS) legislation – and it permits a WHS entry permit holder to enter a workplace for the purpose of inquiring into a suspected contravention of WHS legislation that relates to, or affects, a relevant worker.
A recent decision of the NSW Industrial Relations Commission (NSW IRC) took a detailed look at how this permission is applied in practice and what exact rights and entitlements it provides to WHS entry permit holders (see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2023] NSWIRComm 1076).
The matter concerned the conduct of two WHS entry permit holders who were union officials with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AMWU) and their attendance at a smallgoods factory of Primo Food Pty Ltd (the Employer).
The attendance was purportedly for the purpose of inquiring into a suspected contravention of the Work Health and Safety Act 2011 (NSW) (WHS Act).
Despite the Employer’s concerns about the adequacy of the AMWU’s particulars of the suspected contraventions, the officials were permitted to enter the workplace.
Upon entering the workplace, the officials entered the maintenance workshop and announced to workers that they were investigating safety matters that had been raised, and that they wished to talk to anyone who might have experiences that they wished to raise.
The officials then proceeded to have discussions with two workers in a separate room. Management for the Employer then attempted to move closer to the officials and the workers so that they could hear the discussions.
A heated argument then ensued in which the officials became frustrated that the Employer was attempting to listen to the discussions, as they believed that they were entitled to have conversations with workers in private. In this regard, they relied on s 130 of the WHS Act which provides that WHS entry permit holders are not required to disclose to management the names of workers and they must not do so without the workers’ consent. They also were of the view that the presence of management would hinder the officials’ “investigation”.
On the other hand, the Employer believed that the WHS Act did not give the union officials the right to have a private conference and that, if there were risks to workers’ health and safety, then the Employer ought to know about them so that they could be reduced or eliminated.
Ultimately, the union officials left the workplace asserting that their investigation was being hindered by the Employer.
In its application to the NSWIRC, the AMWU sought orders (amongst other things)that the Employer be required to facilitate the right of WHS entry permitholders to consult with relevant workers in a way that protects the rights of the workers to raise an issue or concern and to do so confidentially.
The NSWIRC refused to make this order on the basis that it did not consider that the WHS Act provided WHS entry permit holders with a right to consult with relevant workers in that way. In this regard, it noted:
In relation to the latter point, the NSWIRC did consider that if a person conducting a business or undertaking (PCBU) insisted on being privy to such consultations and this resulted in workers not being willing to consult with WHS entry permit holders, then this might be said to be hindering or obstructing the entry permit holder’s ability to exercise their rights and might therefore warrant an order from the NSWIRC.
However, the NSWIRC made it clear that it cannot be assumed that every situation where a PCBU wishes to be present in consultation would result in hindering or obstructing the consultations – each workplace is different and so each case must turn on its own facts.
In this case, the officials had made no attempt to consult with workers in the presence of the Employer’s representatives and so it could not be said that an order was necessary.
The NSWIRC therefore dismissed the AMWU’s application.
Itis important for employers (or PCBUs more generally) to be aware of and mindful of their rights and obligations when a union official is seeking to enter the workplace for any reason, but particularly when such entry is purportedly for the purpose of inquiring into a suspected contravention of WHS legislation.
As this case shows, the right to enter a workplace on this basis does not allow a union official to dictate how such inquiries are conducted. Equally though, PCBUs must not conduct themselves in a way that might be seen to hinder or obstruct such inquiries from being made.
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