In brief - Union officials do not have automatic access to lunch rooms
In order to hold discussions in the employees' lunch room, entry permit holders need to demonstrate that agreement cannot be reached with the employer about a suitable room for holding such discussions.
Businesses anticipate union insurgence in lunch rooms following 2013 amendments
The 2013 amendments to section 492 of the Fair Work Act 2009 (Cth) gave right of entry permit holders the near unfettered "right" to hold discussions with employees in lunch rooms if an agreement cannot be reached on the location to conduct interviews or hold discussions.
Prior to the 2013 amendments, union officials were able to conduct interviews or hold discussions in particular rooms or areas of premises as deemed reasonable by the occupier or employer.
Before the amendment was given the legislative green light, many Australian businesses were anticipating union insurgence in their lunch rooms, due to the usual complaints made by unions, with the ulterior motive of holding discussions in the lunch room, that the meeting rooms offered by the employer were too remote, too small or not air-conditioned.
Coles creates policy in response to lunch room loophole
In response to this amendment, Coles Group Supply Chain Pty Ltd imposed certain conditions in anticipation of the lunch room loophole, by introducing a policy applicable to all who entered its lunch room.
The Coles policy gave warning to all who entered:
...if the lunch room is used during meal times union officials should be provided with a table and chairs in a discreet location… The union officials should not approach employees. Employees should not be disturbed from their meal and rest. The union official should not make speeches or hold group meetings in the lunch room. The union officials should not conduct barbeques or hand out union clothing on an unsolicited basis.
National Union of Workers makes application to Fair Work Commission
It was argued that through its policy, Coles was attempting to avoid unwanted interruptions at its workplace and provide its employees and perhaps the union representatives with some guidelines, so as to ensure that this newfound “right” was not abused.
However, the National Union of Workers (NUW) did not share this view and made an application to the Fair Work Commission to prevent Coles from further hindering the union’s access to its workers.
Potential for right of entry to bring conflict and disruption into workplace
In the case National Union of Workers v Coles Group Supply Chain Pty Ltd  FWC 1674, Commissioner Roe found in favour of the NUW that certain conditions imposed by the Coles policy were not consistent with the Fair Work Act 2009 (Cth). However, the Commissioner said it was reasonable in the circumstances for Coles to impose certain conditions upon the union official exercising a right of entry to "reduce the likelihood of conflict in the workplace".
This decision illustrates a shared view that union right of entry brings conflict and disruption into the workplace due to unreasonable demands and excessive visits, acknowledging that some workers do not want to be disturbed during their rest breaks.
Need to demonstrate that agreement cannot be reached
Importantly, section 492 of the Fair Work Act does not simply give unions access to lunch rooms by default. What must be demonstrated for permit holders to access the lunch room is that an agreement cannot be reached with the employer about a suitable room for holding discussions.
While the denial of an office with a stunning view of Sydney harbour may not be reasonable for some, efforts should still be made by businesses to provide union officials with access to a suitable room to hold discussions. The lunch room loophole does not give the union officials the right to go directly to the lunch room just because, for example, the union official does not like the location of the meeting room offered by the employer.
Union officials must in any case comply with an employer or occupier's policies and procedures while at the workplace, in addition to the induction requirements and site PPE requirements. It is highly recommended that employers and occupiers consider implementing a policy or procedure in their workplace to reduce the likelihood of conflict in the workplace, provided that the policy or procedure is consistent with legislative obligations.
If all else fails, employers or occupiers are able to apply to the Fair Work Commission in relation to disputes regarding the purported exercise of a right of entry permit.
Fair Work Amendment Bill 2014 to remove lunch room loophole
Once again, businesses are left in anticipation of further changes to workplace laws, specifically right of entry obligations, while a decision to amend the Fair Work Act further is considered by Parliament.
If passed, the Fair Work Amendment Bill 2014 (currently before the Senate) will remove the lunch room loophole, restoring some confidence to Australian employers by insisting that union representatives comply with reasonable requests to conduct interviews or discussions in a particular room.
In the meantime, it is business as usual.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.