The apprentices were sitting in class - but the court still called it work
Can union officials walk into a training centre to chat with apprentices on their lunch break?
The Federal Court's Full Court said yes - but only just.
In a split decision handed down on October 28, 2026, the court dismissed an appeal by two training organisations that had blocked union officials from entering a Sydney training facility where apprentice electricians attended off-the-job classes.
The case turned on a deceptively simple question: were apprentices sitting in a classroom "performing work on the premises" under the Fair Work Act's right-of-entry provisions?
Two permit holders from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) attempted to enter the NECA Centre in Chullora, New South Wales, on May 2 and May 9, 2024. Their purpose was to hold discussions with apprentices who were union members or eligible to become members.
On the first visit, the general manager of ECA Training refused them entry to the area where training was delivered, though he offered access to the management offices on the first floor. He also took issue with the entry notices not being addressed to NECA Training. The officials left.
Before the second visit, the general manager emailed the officials advising that ECA Training had legal advice: the apprentices did not perform work at the training centre within the meaning of section 484 of the Fair Work Act. Entry would not be permitted.
When the officials returned on May 9, they were escorted to a meeting room in the management area and permitted to speak to one apprentice who happened to be on site doing light duties because of an injury. They were not allowed into the training area or the apprentices' meal room. After about an hour, they left.
The training centre was occupied by ECA Training Pty Limited, a group training organisation that employs apprentice electricians and places them with host employers for on-the-job experience. ECA Training leased part of the ground floor to NECA Training Ltd, a registered training organisation that delivers the Certificate III in Electrotechnology Electrician. The apprentices attended the centre for classroom theory and practical workshop sessions as a mandatory, paid condition of their employment.
The CEPU brought proceedings alleging ECA Training and NECA Training had contravened sections 501 and 502 of the Fair Work Act - the provisions that prohibit refusing entry to, or obstructing, a permit holder exercising a statutory right of entry. The trial judge found in the union's favour and imposed pecuniary penalties on both organisations.
The training organisations appealed on three broad grounds.
Does the union official just need to believe it?
The first question was whether section 484 requires proof that employees actually perform work on premises, or whether it is enough that the permit holder genuinely believes they do.
The majority held that what matters is the permit holder's genuine intention. The phrase "for the purposes of holding discussions" is about what the permit holder sets out to do, not about whether every qualifying condition can be proved in advance.
That reading, the majority found, was consistent with how the provision had been interpreted in this court since the Fair Work Act commenced. It also made practical sense. If union officials had to prove before entering a building that specific employees inside wanted to talk to them, the provision would be unworkable. That kind of thing only becomes clear once you are on site.
The entry notice that a permit holder must serve on the occupier - which includes a declaration that the union is entitled to represent employees who work on the premises - served, in the majority's view, as an objective check on the permit holder's state of mind. It was evidence of genuine intent, not a separate hurdle to clear.
The dissenting judge disagreed. In a detailed dissent, the third member of the bench held that the text, context and legislative history all pointed the other way. The declaration requirement, the dissent reasoned, was about verifying facts - not documenting what someone thinks. The explanatory memorandum's reference to the "pre-requisite for entry of being entitled to represent the industrial interests of their employees" was, in the dissent's view, inconsistent with a reading that turns on subjective belief alone.
The dissent warned that the majority's approach amounted to "self-entitlement" - a permit holder could gain entry to any premises simply by convincing themselves the right existed.
Is school the same as work?
The second question - whether the apprentices were performing "work" at the training centre - divided the court along the same lines.
The majority took a broad view. "Work" in section 484, they held, should be understood consistently with how the term is used elsewhere in the Fair Work Act - in provisions on maximum weekly hours, anti-bullying protections and equal remuneration, all of which treat "work" as something wider than performing specific tasks.
The apprentices were attending the NECA Centre during paid working hours, under a contractual obligation to do so. They were required to sign in and out electronically, attend for a full eight-hour day, meet training progression requirements on pain of disciplinary action, and were subject to employer control over their behaviour and clothing during classes. Evidence also showed apprentices being pulled from classes for discussions about incidents at host employer worksites.
"Performing work" in section 484, the majority held, equates to the service an employee is obliged to provide under their contract of employment.
The dissent took the opposite view: "School is not work." The dissenting judge drew a line between the core of any employment contract - the supply of labour - and things that happen around it. An apprentice wiring a power point on a construction site is plainly performing work. An apprentice sitting in a theory lecture is not, even if attending class is a paid obligation under the contract.
The dissent pointed out that the same Certificate III qualification could be obtained from TAFE colleges and universities, and that it could not sensibly be argued that apprentices attending TAFE were employees performing work there.
The split and the result
The appeal was dismissed by majority. The penalties imposed at first instance stand.
The appellants' fifth ground - that even on a subjective reading of section 484, the permit holders' belief had to be reasonable - was rejected on procedural grounds. The training organisations had not raised it at trial, and the court held they could not raise it for the first time on appeal, particularly where the union could readily have called further evidence to meet it.
For HR teams managing apprenticeship programs, group training arrangements, or any workplace where employees attend mandatory paid training, the practical implication is direct: union right-of-entry obligations may extend to training facilities, not just traditional worksites. The 2-1 split, however, leaves the question open for further consideration at a higher level.
