Right of entry clause refused

Cases

Right of entry clause refused

The AIRC has refused to insert a right of entry provision into the National Standards Commission Certified Agreement 2003, as the clause did not relate to the employer-employee relationship as required by the legislation.

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9/03

 

The AIRC has refused to insert a right of entry provision into the National Standards Commission Certified Agreement 2003, as the clause did not relate to the employer-employee relationship as required by the legislation.

Background

In issue was an application by the National Standards Commission, the Association of Professional Engineers, Scientists and Managers, Australia and the Community and Public Sector Union for certification of an agreement titled 'National Standards Commission Certified Agreement 2003-2004' made pursuant to s170LJ in Division 2 of Part VIB of the Workplace Relations Act 1996.

An earlier undertaking not to rely on the right of entry was now considered.

The clause

'83 Right of Entry

83.1 For the purpose of conducting legitimate organisation business, an employee organisation representative, authorised in writing, will have the right to enter an NSC workplace on the following conditions:

(a) that employees are not intentionally hindered or obstructed in the performance of work during work time;

(b) normal work arrangements are not disrupted in an unreasonable manner;

(c) local security arrangements are observed; and

(d) that if an employee organisation representative is in breach of any of the previous conditions NSC may refuse the right of entry.

83.2 Nothing in this clause will affect the right of employee organisation officials to interview the management on organisation business at times reasonable to both parties.

83.3 The right conferred by this clause is in addition to the rights of employee organisations under Division 11A of Part IX of the Workplace Relations Act 1996.'

Approach of AIRC

Vice-President Lawler stated:

‘In summary, I approach the present matter on the basis of the following propositions:

  • An agreement made under Division 2 of Part VIB of the Act that contains a substantive clause not about matters pertaining to 'the relationship between... an employer... and... all persons who, at any time when the agreement is in operation, are employed in a single business, or part of a single business, of the employer and whose employment is subject to the agreement' ("the requisite relationship") cannot be the subject of a valid application for the purposes of s170LI(1)' unless the clause is properly characterised as "incidental".
  • An agreement may contain a clause that is properly characterised as "incidental" to clauses about matters that do pertain to the requisite relationship, which includes clauses which are "merely machinery or administrative in character" and nevertheless be consistent with the s170LI. Unless the clause is merely machinery or administrative in character there must be something in the terms of the clause which links its operation to other clauses in the agreement such that it has a rational and natural tendency to effect the operation of other clauses in a manner that is direct as opposed to consequential or remote.
  • Whether a particular clause in an agreement "is about matters pertaining to" the requisite relationship depends upon the form of the clause, its content and effect.
  • A clause in an agreement is about matters pertaining to the requisite relationship if, having regard to its form, content and effect, the clause, in its totality, can properly be characterised as dealing with a matter or matters pertaining to the relationship between the employer, as such, and employees, as such. Provided the clause can properly be so characterised, it does not matter that the clause might also be characterised as pertaining to other extraneous relationships.'

[The Commission then summarised the previous cases that considered this issue - not reproduced here.]

Conclusion

The Commission concluded that it was not appropriate to release the parties from the undertakings they had given.

See: National Standards Commission v The Association of Professional Engineers, Scientists and Managers, Australia and CPSU, the Community and Public Sector Union - Lawler VP - 5 September, 2003.

 

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