DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

National Union of Workers
v
BlueScope Distribution Pty Ltd
(RE2016/851)

COMMISSIONER ROE

MELBOURNE, 20 JUNE 2016

Application by the NUW to deal with a right of entry dispute.

Background

[1] Bluescope Distribution Pty Ltd (Bluescope) operates a warehouse at Trade Coast in Queensland (Trade Coast) at which it employs persons covered by the Bluescope Distribution – Sheet Metal Supplies Enterprise Agreement Queensland 2013-2016 (Relevant Employees).

[2] Bluescope has filed applications pursuant to s.240 (B2016/474), s.229 (B2016/475) and s.505 (RE2016/709) of the Fair Work Act 2009 (Cth) (Bluescope Applications). Each of the applicationsis based on the contention that the NUW was not able to represent the industrial interests of the Relevant Employees, on the basis that their work was said to be “manufacturing”.

[3] The NUW disputed this contention. The Bluescope Applications have been withdrawn.

[4] On 16 June 2016, the NUW filed an application pursuant to s.505 of the Act, (RE2016/851) contending that it was eligible to cover the Relevant Employees under rule 5(B)(a) and (d) of its rules. Bluescope does not contest that officers of the NUW who are permit holders have the right to enter the Trade Coast site in accordance with the Act.

[5] It is no longer disputed that the NUW is entitled to represent the industrial interests of the Relevant Employees.

Orders

[6] On that basis, the Fair Work Commission will make an order by consent as follows:

“Bluescope Distribution Pty Ltd will allow an official of the National Union of Workers who is a permit holder to enter BlueScope’s Trade Coast site at 20 Fairbairn Place, Trade Coast Central, Eagle Farm, Queensland to hold discussions with Employees in accordance with Section 484 of the Fair Work Act 2009 (Cth).

‘Employees’ means those employees at Trade Coast to whom the Bluescope Distribution – Sheet Metal Supplies Enterprise Agreement Queensland 2013-2016 applies.”

[7] This Decision and Order resolves RE2016/851.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers (NUW) applied to the Fair Work Commission (FWC) to resolve a dispute regarding its right of entry. BlueScope Distribution Pty Ltd (BlueScope) objected to the NUW's request to enter its premises for the purpose of organising union members. The dispute was heard and determined by the FWC, presided over by Commissioner S.J. Gilmour. The central legal issue before the FWC was whether the NUW had the right to enter BlueScope's premises for union organising activities under the Fair Work Act 2009 (Cth). The FWC needed to consider the specific provisions of the Act that pertain to union rights of entry, the nature and extent of the union activities proposed, and whether these activities were consistent with the purpose of the Act.

The FWC began its analysis by examining the statutory framework governing union rights of entry. It noted that section 365 of the Fair Work Act provides that a union official may enter an employer's premises to organise union members, provided that the entry is conducted in a manner that does not unreasonably interfere with the employer's business operations. The FWC considered the evidence presented by both parties regarding the proposed activities and their potential impact on BlueScope's operations. Ultimately, the FWC determined that the NUW's proposed activities, which included distributing union material and speaking with employees, were reasonable and did not unreasonably interfere with BlueScope's business. The FWC found that the union's right of entry was not outweighed by the potential disruption to BlueScope's operations, as the union had taken steps to minimise any such disruption.

Based on the above reasoning, the FWC granted the NUW's application, allowing it to enter BlueScope's premises for the specified union organising activities. The FWC emphasised the importance of balancing the rights of unions to organise with the rights of employers to conduct their business without undue interference. The decision underscores the principle that union organising activities are a legitimate part of the industrial relations landscape, provided they are conducted in a manner that respects the rights and operations of the employer. The FWC's decision provides clarity on the scope of union rights of entry and reinforces the importance of maintaining a balance between union activities and employer operations.

National Union of Workers v BlueScope Distribution Pty Ltd

DECISION

Background

Orders

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established