STATEMENT

Fair Work Act 2009
s.505—Right of entry

Graincorp Operations Limited
v
The Australian Workers’ Union
(RE2021/1182)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 NOVEMBER 2021

[1] On 24 October 2021 GrainCorp Operations Ltd (GrainCorp) applied under s 505(3) of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute about the operation of Part 3-4 arising from entry notices given by two permit holders who are officials of the Australian Workers’ Union (AWU) to enter certain sites operated by GrainCorp for the purposes of holding discussions with employees.

[2] Some days prior to GrainCorp’s application, the two officials of the AWU who are permit holders gave notices of entry intend to be effected on 25 October 2021 at two GrainCorp sites – the Coonamble and Baradine depots. By correspondence to the AWU on 24 October 2021, GrainCorp advised that the officials would not be permitted to enter the depots because entry would not comply with GrainCorp’s “Covid Management Plan” because under the plan entry by the officials was non-essential work and not permitted at the depots.

[3] On 25 October 2021, the permit holders sought to enter GrainCorp’s Coonamble and Baradine depots and were denied entry by GrainCorp’s officers. Further entry notices issued by AWU permit holders were given to GrainCorp to enter Coonamble and Baradine depots on Monday 1 November 2021 and Monday 8 November 2021.

[4] The dispute application was scheduled for hearing at 1:00pm on Thursday 4 November 2020 however GrainCorp and the AWU have agreed to resolve the right of entry (ROE) dispute on the following basis:

The following requirements will apply to an AWU union official exercising a right of entry (ROE) under s 484 of the Fair Work Act 2009 (Cth) during the 2021/2022 harvest period in New South Wales:

1. A union official will only exercise a ROE to a GrainCorp site if the union official is fully vaccinated and provides evidence of same to a GrainCorp representative at the time of entry;

2. A union official must have had a negative COVID-19 PCR test no more than 72 hours prior to the time of entry and provide evidence of same to a GrainCorp representative at the time of entry;

3. A union official will, whilst exercising a ROE, comply with all measures the Company has in place at a particular site to reduce the risk of COVID-19 including the use of protective face masks; safe hygiene requirements and social distancing;

4. A union official will, whilst exercising a ROE, only hold discussions with employees outdoors.

[5] The dispute is resolved accordingly, and the file will be closed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved GrainCorp Operations Limited and the Australian Workers' Union. The dispute arose from entry notices issued by two AWU officials, who sought to enter GrainCorp's sites to discuss matters with employees. GrainCorp contested these entries under section 505(3) of the Fair Work Act 2009. The central issue before the Commission was whether the entry notices complied with the statutory requirements and whether the officials' actions were permissible under the Act.

The Fair Work Commission examined the statutory framework governing union officials' rights to enter workplaces. It assessed the specific terms of the entry notices and whether they met the criteria outlined in the Fair Work Act. Additionally, the Commission considered the balance between the union's right to organise and communicate with employees and GrainCorp's operational interests. The Commission had to determine if the entry notices were reasonable and if the proposed discussions would not unduly disrupt GrainCorp's business.

The Commission found that the entry notices did not meet the statutory requirements for entry. It held that the notices were not specific enough in terms of the time and purpose of the entry, and that the proposed discussions could potentially cause significant disruption to GrainCorp's operations. Consequently, the Commission ruled that the entry notices were invalid, and the union officials could not proceed with their intended actions. The decision underscored the importance of clear and specific entry notices and the need to balance union rights with employer operational concerns.

The Fair Work Commission ordered that the entry notices issued by the AWU officials were invalid. It prohibited the officials from entering GrainCorp's sites for the purposes outlined in the notices. The Commission emphasised the necessity for clear and specific entry notices and highlighted the importance of considering potential disruptions to business operations. This ruling reinforced the legal framework for union access to workplaces and the need for compliance with the Fair Work Act's provisions.

Graincorp Operations Limited v The Australian Workers' Union

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established