Federal Court Overturns ‘Employer Friendly’ Decision

You may remember a ClubLIFE article from earlier this year discussing a controversial decision from the Federal Court that confirmed a narrow interpretation of when a union official can use their right to enter clubs to hold a discussion with members. In the article, it was made clear that the union confirmed they would challenge the ruling.

On 14 November 2023, the Full Bench of the Federal Court (Full Bench) delivered its judgment in the appeal case and overturned the “employer friendly” decision.  

The Full Bench was tasked with determining a narrow question of whether entry onto a premises for the purpose of obtaining signatures on a petition would meet the definition of a “discussion” under the Fair Work Act.

Did the Full Bench overturn the previous decision?  

In summary, the answer is yes.   

The judgment ultimately rejected the findings of the primary judge, and concluded that:  

“if a permit holder may enter premises in the exercise of a right conferred by s484 of the FW Act only for discussions purposes – and not for any other purpose to the realisation or advancement of which the holding of discussions is deemed desirable – then the right would be practically worthless…entry onto premises that is sought for the purpose of realising that state of affairs via the medium of discussion suffices as entry for the purpose of holding discussions.”   

Do not be concerned if you needed to read that paragraph three or four times. Basically, it is saying that the right to hold discussions must mean the union official can also undertake matters (such as a petition) which “realises” or “advances” the purpose of the discussion. 

The Full Bench decision therefore provides for a much broader interpretation than existed previously on when a union official may enter a club to “hold discussions with one or more employees.” 

In its Fair Work Legislation Amendment (Closing Loopholes) Bill the Federal Government is proposing even further expanded powers, not just for union officials, but for workplace union delegates, that will further boost unions’ capabilities within clubs. Clubs Australia has made submissions to the Senate Inquiry in relation to these proposed laws. 

We suggest clubs review their right of entry obligations and rights here to ensure you are prepared if the union comes knocking.  

Any questions? 

Should any member clubs have any questions regarding this decision, or your obligation and rights regarding union right of entry, please contact the Workplace Relations team by visiting the Workplace Relations page here.