Union right-of-entry win

By Roger Martin and Blair Speedy

THE Federal Court has delivered a major win to the union movement by declaring employers cannot use federal workplace contracts to lock out union officials who have legitimate rights of entry under state legislation, even on non-union sites.

The court ruled yesterday that even on sites where all workers were employed under federal workplace contracts, state union officials were free to exercise their rights under state laws.

Those rights extend to the ability to enter a site against the will of the employer, depending on the relevant state law. The case centred on an attempt in January by two officials of the Construction Forestry Mining and Energy Union to enter the site of a fertiliser plant being built in the Pilbara in northwest Western Australia. The plant was being built by BGC, a company with a long history of antagonism towards the union movement.

Justice Robert French ruled the officials did have the right under state law to enter the site, but that right was limited to the extent that organisers could not make employees stop work in contravention of their workplace agreements.

Workplace Relations Minister Kevin Andrews, who intervened in the case, said the ruling would add an unacceptable further burden on businesses. "Businesses don’t need to be dealing with duplication in workplace relations systems and they should be able to safely expect they need only deal with one," he said.

Mr Andrews said he was considering both an appeal and a legislative response.

The decision will have limited bearing on most worksites, because only a small number of workers are employed on Australian Workplace Agreements. But on mining projects where companies seek to sign their entire workforce on AWAs, unions can resort to state laws to gain access to sites.

ACTU senior industrial officer Linda Rubinstein said the decision would mostly affect mining companies trying to lock out unions.

"The question of AWAs in the Pilbara has been a huge issue and there is no question a very strong part of the motivation of those employers in seeking to have these individual employment relationships have been to exclude unions from the workplace," she said.

"If people don’t want to talk to unions, they don’t have to, and if people don’t want to join unions they don’t have to.

"But you can’t have proper freedom of association unless unions have access to employees in a reasonable way."

But BGC lawyer Michael Hotchkin denied the decision was a win for the unions, saying state-mandated rights of entry still had to be exercised under the terms of AWAs.

Peter Anderson, director of workplace policy at the Australian Chamber of Commerce and Industry, said the ruling was contrary to the accepted operation of the law.

"Union rights of entry determined by federal law have traditionally overridden rights of entry purported to be given by state laws," he said.

"The use of state laws as a backdoor way of avoiding legitimate restrictions on entry imposed by federal laws would be a matter of concern for employers, and we will examine the decision closely."

The Australian

http://www.news.com.au/common/story_page/0,4057,10286358%255E421,00.html