Aero-Care Flight Support Pty Limited

[2015] FWC 1783

[2015] FWC 1783

FAIR WORK COMMISSION

DECISION

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

Aero-Care Flight Support Pty Limited
(RE2014/43)

VICE PRESIDENT WATSON MELBOURNE, 30 MARCH 2015

Alleged dispute concerning right of entry at Aero-Care Pty Ltd - Fair Work Act s.505.

Introduction

[1] This decision concerns an application under s.505 of the Fair Work Act 2009 (the Act) regarding a right of entry dispute between Aero-Care Flight Support Pty Limited (Aero-Care), Mick Ehlert and the Transport Workers’ Union (the TWU). The dispute arose over a number of incidents, primarily at the Gold Coast airport, where disagreements arose as to the rights and obligations of Mr Ehlert and TWU officials when exercising a right to enter premises occupied by Aero-Care.

[2] The parties held discussions when the issues arose and also subsequently involving more senior officials of the TWU. When agreement could not be reached, and it became clear that the parties had different views as to the nature of the right of entry rights, Aero-Care lodged an application with the Commission on 25 September 2014. The matter was first listed for conference before Commissioner Cambridge, but the issues the subject of the application were unable to be resolved and the parties requested that the matter proceed to arbitration.

[3] The parties agreed that the matter could be more fully dealt with by a Presidential member of the Commission given the orders sought in the application and the matter was subsequently allocated to my chambers. At the hearing of the matter on 13-15 January 2015 and 3 March 2015, Mr J. Murdoch QC and Ms G. Dann, of counsel, appeared for Aero-Care. Mr G. Rebetzke, of counsel, appeared for the TWU.

Background

[4] Evidence in this matter was given by Gregory Shelley, Rhonda Hughes, Emma Gough, Emma-Jane McNamara, and Timothy Kealley on behalf of Aero-Care and Roger Lindeman, Gary Hamilton, Trygve Fisk, Peter Paulos, Tom Pfund, Mick Ehlert, and Margarita Cerrato on behalf of the TWU. There is little conflict in the evidence. The evidence provides a factual context to address the issues in dispute that have arisen over the exercise of entry rights at Aero-Care facilities.

[5] Aerocare has supplied customer service and flight support services to the aviation industry since about 2000. It provides a workforce to perform customer service, passenger and baggage check-in and handling at 23 airports around Australia. Its clients are both Australian and international airlines.

[6] In many cases, Aero-Care employees wear the uniforms of clients with an additional Aero-Care logo on their Aviation Security Identification Card. At the Gold Coast Airport, many Aero-Care staff wear the corporate uniform of Virgin Australia while others wear the uniform of Tiger Airways. Aviation Security Identification Cards are issued by the Australian government to denote that the holder has completed certain security checks. It is a requirement of airport security that anyone within a secure area of an airport has and displays their Aviation Security Identification Card. The card does not, in itself, give the holder an automatic right to enter secure airport areas.

[7] Access to secure airport areas is governed by the relevant airport authority. At the Gold Coast Airport, that entity is Gold Coast Airport Limited. Secure areas are usually termed the “airside” while other areas of the airport are usually referred to as the “landside.” Airside areas include all areas accessible to aircraft, including runways, taxiing areas, baggage handling areas. Access to the airside requires the person to hold an Aviation Security Identification Card and have the permission of the airport operator, usually based on having an airport operational reason to enter airside.

[8] In an email from Mr Curtis, Manager Operations and Standards of Gold Coast Airport, to Mr Ehlert sent on 12 September 2014, Mr Curtis said:

“Going forward, I would like to confirm all future access arrangements on Gold Coast Airport are to be via the formal Right of Entry form.

As discussed previously access to airside areas of the airport are restricted to those with an operational reason i.e. to assist with the operation of the airport or an aircraft.

If you are required to enter the airside areas of the airport for safety and security reasons can you please ensure you are escorted by someone with the appropriate qualifications and experience at all times. The apron and baggage make-up room in particular are dynamic areas and it is important that you are aware of the hazards and the appropriate procedures in the event of an incident.”

[9] “Landside” areas include publicly accessible airport car parks, public transport connection areas, access roads and concourse areas. Some offices on the landside are not publicly accessible.

[10] Employees of Aero-Care are employed under the terms of the Aero-Care Collective Agreement 2012. The nominal expiry date of the Agreement is 19 February 2017. The Agreement was approved by Aero-Care employees without the support of the TWU. After the Agreement was made the TWU opposed its approval by the Fair Work Commission. It appears that few employees of Aero-Care are members of the TWU.

[11] In the three years prior to the approval of the Agreement the TWU had not exercised any right of entry onto Aero-Care premises at any Australian airport. Since the approval of the Agreement in February 2013, and prior to the entries that gave rise to the application the TWU had sought entry on four occasions and been granted access on three of those occasions. The TWU has commenced a campaign, through material on its website to recruit employees of Aero-Care as members and prepare for renegotiation of the Agreement in 2017.

[12] Aero-Care contends that it is subject to a national campaign against it and various incidents at the Gold Coast, Perth, Darwin and Townsville airports have involved abuses of the right of entry provisions of the Act. The TWU contends that it has been doing nothing more than attempt to organise workers at airports - not specifically those employed by Aero-Care, and has exercised its rights cooperatively, courteously and consistently with the rights conferred upon its officials who hold right of entry permits.

Relevant Legislation

[13] The application is brought pursuant to s. 505 of the Act which provides:

“505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.

Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.

Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.

Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(c) an order revoking an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”

[14] Aero-Care relied on the approach to this provision applied by Deputy President Gostencnik in the case of Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd. 1 The Deputy President said:

“[40] Section 505(1) contains a non exhaustive list of the kinds of disputes with which the Commission may deal. Although there is no express reference to a dispute about the operation of s. 492 there is little doubt that the Commission is empowered to deal with such a dispute. It also seems clear that the Commission cannot, under s. 505, deal with a dispute about the frequency of an entry to hold discussions with employees as that matter is properly to be dealt with under s. 505A.
[41] A dispute under s. 505 may be dealt with by arbitration, 2 however the Commission has other means by which it may deal with such a dispute. The Commission may deal with the dispute by mediation or conciliation or by making a recommendation or expressing any opinion.3 If a dispute under s. 505 is dealt with by arbitration the Commission is empowered to make a range of orders,4 but relevantly in relation to a dispute concerning the operation of s. 492, it is not empowered to confer rights of the permit holder that are additional to, or inconsistent with, rights that are exercisable in accordance with Division 2 of Part 3 – 4.5 An exercise of arbitration powers under the Act does not involve the adjudication of existing legal rights as between the disputants. Rather the exercise of an arbitration power involves a determination of what rights there should be. The Commission does not exercise judicial power. A perusal of the kinds of the orders that may be made by the Commission which are specified in s. 505 (2) (a)-(d) makes good this point, and the general power in s. 505 (2) (e) to make any other order the Commission considers appropriate is to be understood as being so confined.

[42] An application to deal with a dispute about the location at which discussions with employees will be held brought under s. 505 is not an appropriate vehicle to seek a declaration of or resolution to a dispute about existing rights. Such matters must be determined elsewhere. True it is that in the course of dealing with such a dispute by arbitration a view may be expressed or formed, or a conclusion drawn, about the nature of existing rights, but not for the purposes of declaring or resolving those rights. This is done for the purposes of resolving the dispute by determining what future rights should be and then by crafting an appropriate order to give effect to those future rights. Any order that is made, must be carefully and clearly crafted, and must be certain in its operation because compliance with an order is mandated and a contravention of an order is actionable as a civil remedy provision. 6

[43] Unlike other disputes that might be brought under s. 505 which will likely involve disputes about whether something that was done was “reasonable” 7, whether a thing or place was “reasonably available” or “reasonably accessible”8, whether the provision of a thing would cause “undue inconvenience”9, whether a request to provide a thing was made within a “reasonable period”10 or other objectively ascertainable concepts, such concepts do not expressly arise for determination in dispute about the application of s. 492. It seems to me therefore that in determining a dispute of this kind by arbitration and by the making of an order, such orders will necessarily involve regulating the conduct of the permit holder or the occupier or both, in the future in relation to determining the location and the conduct of discussions with the prescribed class of employees. Such an order should be aimed at giving effect to the object of Part 3– 4, the apparent purpose of s. 492, including to encourage parties to reach agreement as to how entry by permit holders to workplaces is facilitated, and take into account fairness between the parties concerned in the dispute.11”

[15] I respectively agree and adopt the approach outlined by the Deputy President.

The Issues in Dispute

[16] Prior to making the application, representatives of Aero-Care and the TWU had a telephone discussion to attempt to reach an agreement on the entry arrangements at Gold Coast Airport after a number of disagreements had occurred during workplace visits. No agreement was reached. Aero-Care has made the application in order to provide clarity as the respective rights and obligations of the parties. It contends that the relevant issues that ought to be determined by way of its application are as follows:

● The failure of TWU officials to attend only during the breaks of Aero-Care’s workers, including entry early in the morning;

● TWU officials remaining on Aero-Care’s premises for too long after breaks were over;

● The frequency of the exercise of the right of entry in order to hold discussions with employees of Aero-Care;

● Acceptance that an overlying occupier with additional legislative obligations can impose overriding conditions on a permit holder - including those relating to the location of a room for discussions; and

● Compliance with induction requirements for every visit

[17] The TWU contends that the Commission should not resolve hypothetical situations and that this is not a case that warrants orders being issued.

[18] The right sought to be exercised by TWU officials is contained in s.484 of the Act which provides:

“484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a) who perform work on the premises; and

(b) whose industrial interests the permit holder’s organisation is entitled to represent; and

(c) who wish to participate in those discussions.

Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”

[19] Subsequent provisions of the Act qualify the operation of this provision. The concept of balancing competing rights and objects was described by his Honour Flick J in Australasian Meat Industry Employees’ Union v Fair Work Australia 12 as follows:

“56 The right of entry conferred by s 484 is thus not an untrammelled right. It is a right subject to both express and implied constraints. One express constraint is that the right of a permit holder is one that must be exercised for one or other of the “purposes” set forth in s 484. Another express constraint is that the right of entry is subject to any “reasonable request” that may be made by the occupier of the premises that the permit holder seeks to enter. A further express constraint is that contained within s 490(2) limiting discussion to meal and lunch breaks. An implied constraint is that the right must be exercised so as to promote the object of Part 3-4 as set forth in s 480.

57 Like other rights of entry conferred by the Fair Work Act (cf. Darlaston v Parker [2010] FCA 771 at [36] to [38], 189 FCR 1 at 11), s 484 is a statutory right which diminishes the common law rights of an occupier.

58 These rights of an occupier of property have long been cherished. Thus, in Semayne’s Case (1604) 5 Co Rep 91a, 77 ER 194 at 194 it was said that:

The house of every one is his castle …

The Earl of Chatham is reported as saying:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his forces dare not cross the threshold of the ruined tenement.

Comparatively (much more) recently, in Entick v Carrington (1765) 19 St Trials 1029 at 1066 Lord Camden LCJ observed that:

By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him …

This basic principle has been carried forward in time: e.g., Southam v Smout [1964] 1 QB 308 at 320 per Lord Denning MR. And it is not a principle confined to the history of England – it is a principle which continues to apply with equal force in Australia today: e.g., Plenty v Dillon (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ.

59 Sections 484 and 492 of the Fair Work Act thus presumably reflect the balance sought to be struck by the Legislature between the common law rights of an occupier and the rights of entry necessary to promote the objects of Part 3-4. Attempts to strike a balance between potentially competing rights have frequently arisen in an industrial law context. Thus, when construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62, Keely, Gray and Ryan JJ observed:

The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

See also: Lane v Arrowcrest Group Pty Limited (1990) 27 FCR 427 at 439 to 440 per von Doussa J.”

[20] The Act has been amended in certain respects since that decision. In the Austral Bricks Case Deputy President Gostencnik said:

“[28] A permit holder is therefore able to enter premises under s. 484 provided he or she has the prescribed purpose. The requirement that a permit holder has the prescribed purpose requires in my view some adequate factual foundation upon which the permit holder came to the view that one or more employees of the kind described in s. 484 are at the premises. It seems to me clear however that the relevant enquiry at point of entry is the purpose of the permit holder for entering and not whether the permit holder has a reasonable belief that persons of the kind described in s. 484 are at the premises at the time that entry is sought 13. As there is no dispute about the purpose for which the permit holders, the subject of these applications entered the Wollert plant it is unnecessary to consider precisely that which might constitute an adequate factual foundation14.
[29] The right of entry given to a permit holder under s. 484 of the Act is not a right that is unfettered. The mere status of a union official as a permit holder does not give the union official an untrammelled right to enter the premises of an employer or occupier 15. The right is subject to express and to implied constraints16. For example the right to enter may only be exercised if the permit holder has the prescribed purpose17, and then only during normal working hours18. Other constraints include the requirement that notice of entry be given19, that entry only occur on the day specified in the notice20, that the permit holder complies with a reasonable request by the occupier for the permit holder to comply with an occupational safety requirement that applies to the premises to which entry is sought21 and that the permit holder not enter any part of the premises that is used mainly for residential purposes22. One implied constraint is that the right must be exercised so as to promote the objects of Part 3 – 4 which are set out in s. 48023. Another implied constraint might be that entry under s. 484 is only authorised at times that are approximate to meal times or other breaks since discussions with employees are only permitted during those times or breaks24. This would be consistent with a view that the right of entry conferred on a permit holder by s. 484 should not be construed as giving any greater right that which is necessary to achieve the statutory purpose, namely to permit a permit holder to hold discussions with particular employees during their meal time or other breaks25. However it is unnecessary for present purposes to determine whether this is correct. There may be additional conditions with which the permit holder will need to comply by reason of any conditions imposed on the entry permit26, or other restrictions on the rights of a permit holder that have been imposed by the Commission27.

[30] Once a permit holder enters under s. 484, the capacity to hold the discussions for which entry was gained is also circumscribed. First, there is the general limitation that the power to enter must be used bona fide for the purposes for which it is conferred and that its exercise not be excessive in the circumstances of a particular case 28. Secondly, as indicated above the discussions with employees may only be held during meal times or other breaks29.

[31] Thirdly, discussions to be held that are authorised by an entry under s. 484 are limited to particular employees. The right of entry is not given for holding discussions with employees generally 30. A permit holder is not permitted to hold discussions with any employee who happens to be on the premises at the time of entry. Relevantly, entry under s. 484 only authorises the permit holder to hold discussions with the employees who fall within the description in paragraphs (a) – (c) of that section. In other words a permit holder who has entered premises may only hold discussions with employees who perform work on the premises, whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions. The authority to hold discussion should not be so narrowly construed as to effectively prohibit effective enquiries being made by the permit holder to establish whether a particular employee or group of employees are within a class of employees with whom discussions are authorised. Plainly, it must be permissible for example for a permit holder to make enquiries with a particular employee or a group of employees whether that employee or members of the group wish to participate in discussions with the permit holder. But if, after the enquiry is made, it is evident that an employee does not wish to participate in a discussion, the permit holder is not authorised to hold a discussion with that employee.

[32] Although Part 3 – 4 does not in express terms limit to the class of persons with whom discussions may be held once entry is gained, it would lead to an absurd result if a permit holder, permitted to enter only for the purposes of holding discussions with a limited class of employees, obtained after entry, some wider authority to hold discussions with employees at large. Reference to discussions found in subdivision C must therefore be read as a reference to “discussions” with employees of a kind described in paragraphs 484 (a) – (c). To put it another way, a permit holder who sought entry to premises for the purpose of holding discussions with employees whose industrial interests the permit holder’s organisation was not entitled to represent, could lawfully be refused entry. It will be a strange result if upon obtaining lawful entry under s. 484, the permit holder gained some wider authority, beyond the purpose for entry, to hold discussions with employees whose industrial interests the permit holder’s organisation is not entitled to represent.
[33] In my view it must also follow that once entry is gained under s. 484, in order that the permit holder not exceed his or her authority there is an obligation on the permit holder to take reasonable steps to ascertain whether a particular employee or a group of employees with whom the permit holder proposes to hold discussions, are within the description of paragraphs 484 (a) – (c). This obligation arises by necessary implication from the text of s. 484 and the statutory scheme permitting entry to hold discussions as a whole, as well as from the prohibitions of hindering, obstructing or acting in an improper manner towards a person found in s. 500 and the prohibition of the taking of action, reckless as to whether an impression is given, that the doing of a thing is authorised by Part 3 – 4 of the Act if it is not authorised, found in s. 504. It is also consistent with the object of Part 3 – 4 set out in s. 480.”

[21] The timing of entry is dealt with in s.490 of the Act as follows:

“490 When right may be exercised

(1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.

(2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.

(3) The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.”

[22] An important provision regarding occupational health and safety requirements is s.491 which provides:

“491 Occupational health and safety requirements

The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises.

Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).”

[23] The location of discussions is dealt with in s.492 of the Act which provides:

“492 Location of interviews and discussions

(1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3) The permit holder may conduct the interview or hold the discussions in any room or area:

(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b) that is provided by the occupier for the purpose of taking meal or other breaks.

Note 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.

Note 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).”

[24] With respect to these provisions Deputy President Gostencnik in the Austral Bricks Case said:

“[35] The starting point is that the permit holder must hold discussions in those rooms or areas of the premises agreed with the occupier of the premises. If the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to hold discussions then the permit holder may conduct discussions in a room provided to employees for the purposes of taking the meal or other breaks (meal room). The capacity of a permit holder to insist upon holding discussions in a meal room arises only if the permit holder and the occupier cannot agree on a room or area. The primary focus of s. 492 is on an agreed location for the holding of discussions. Indeed it is suggested in the Explanatory Memorandum to the Fair Work Amendment Bill 2013 by which s. 492 was enacted, that the amendments to the right of entry provisions of the Act “will encourage parties to reach agreement as to how entry by permit holders to workplaces is facilitated. The amendments assist organisations in circumstances where agreement has not been possible . . .” 31. The default location, the meal room, may be used by the permit holder only if the permit holder and the occupier “cannot agree” on a location.
[36] The use of the phrase “cannot agree” is suggestive a degree of improbability of agreement but probably not impossibility. Given the context in which an agreement about a location for discussions might be sought, it seems to me unlikely that the Parliament intended that it must be established that agreement is impossible before the default position operates. Nevertheless it seems to me that more is required to establish that the permit holder and the occupier cannot agree, than each party simply attending the discussion about a location with a fixed view about where the location should be, not being prepared to move from that fixed view and not being prepared to consider the location proposed by the other party. Such a minimal requirement seems to me to be inconsistent with the ordinary meaning of the phrase “cannot agree” and with a scheme that is said to be designed to encourage agreement. It is also inconsistent with the object of Part 3-4 because such an approach pays no regard to the balancing of competing rights set out therein. That parties “do not agree” does not mean that they “cannot agree”. In my view had the section been intended to operate in the more narrow sense it could have been drafted more clearly, by use of the phrase “do not agree” instead of “cannot agree” or perhaps as follows:

“The permit holder may conduct the interview or hold discussions:

(a) in a room or area in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks that is provided by the occupier for the purpose of taking meal or other breaks; or
(b) if another room or area is agreed upon by the permit holder and the occupier – that other room or area.”

[37] This latter drafting approach is adopted in respect of the rights of a permit holder to inspect records or other documents at a particular place found in s. 483 (5) (b), 483C (6) (b) and s 483E (6) (b). That the legislature did not adopt either of these drafting methods in respect of s. 492, is in my view, indicative of an intention that effort beyond paying mere lip service, be given to reaching an agreement about the location at which discussions are to be held before the default position in s. 492 (3) will pertain. It is not suggested that notions akin to good faith bargaining obligations should be imported. Such an approach is impracticable given the context in which the section will often be engaged, that there will be a degree of contemporaneity between a discussion with occupier and permit holder about location, the time of entry, the scheduled meal or other break, and the desire of the permit holder to hold discussions with relevant employees during designated breaks. Whilst the question whether the permit holder and the occupier cannot agree on a room or area of the premises in which the permit holder is to hold discussions will be a question of fact, it seems to me, as a minimum there must be a genuine effort to try to agree. That a permit holder and an occupier have differing positions of the location at which discussions should be held merely evidence that they do not agree. It does not establish that they cannot agree. It cannot be said that “a permit holder and an occupier cannot agree” if they have not tried to agree.
[38] In my view trying to agree involves more than turning up to the discussion with a fixed view and without a preparedness to consider the other party’s view about the location in which discussions should be held. The extent to which the parties have tried to reach an agreement is a question of fact and degree and will involve an assessment based on the circumstance faced by the parties at the time the agreement was sought. However, allowing a permit holder to simply maintain a fixed view about use of a meals room without requiring the permit holder to try to reach an agreement would elevate the default room to the status of the primary room in which discussion must be held. Such an outcome is contrary to the scheme established by s. 492.”

[25] There was no dispute between the parties about the general approach to be adopted in relation to these provisions. However the way in which they must be considered depends very much on the context of the workplace and the nature of the disputes about the exercise of the right of entry. The right of entry is a recognised right to be exercised for legitimate purposes of discussions between a permit holder and employees. It is necessary to ensure that the objectives of entry are achieved without undue disruption to operational requirements. I propose to consider each of the matters raised by Aero-Care in the context in which they have arisen at the Aero-Care operations.

Times of Attendance

[26] Aero-Care submits that the evidence establishes that it has provided access to TWU officials when entry was sought at a time reasonably proximate to a break. However it also led evidence that on three occasions in September 2014 Mr Ehlert sought access when no employees were on a break and no break was impending. The entries were sought very early in the morning, approximately 5am, soon after employees commenced their shift. The first meal breaks are taken at the Gold Coast Airport after the first flights have taken off and the first incoming flights have landed. Aero-Care contends that the practice of early morning entry infringes the implied constraint on entry at a time reasonably proximate to meal breaks.

[27] The TWU contends that there is no implied limitation on entry at times reasonably proximate to breaks of any type so long as the discussions with employees are held during breaks and that at all times TWU officials had the requisite purposes of holding discussions with employees during their breaks. It contends that discussions can occur with employees during breaks other than meal breaks and with employees of other employers who use the meal rooms such as Virgin Australia and Aviation Ground Handling. The TWU also contends that the unpredictability of flight schedules and breaks requires some latitude in granting right of entry.

[28] The entry sought at the Gold Coast Airport is on the airside of the airport operations. The lunch room is attached to the baggage make up room and is used by employees of other employers. Employees conduct their activities at and around this meal room and operational documentation is present in the meal room. This area is subject to airport security requirements and the overarching requirement that persons be present for an operational reason. It is reasonable to expect that Aero-Care management would need to facilitate entry to a TWU official and monitor their presence to ensure that no breaches of its security and safety obligations occur. It is also reasonable to expect that entry for the purposes of holding discussions with employees of other employers should be similarly authorised and monitored.

[29] It is also clear that the main type of discussions likely to occur arise from approaches from the TWU official to employees to enquire about their work concerns, offer assistance and promote union membership. The evidence does not establish that the normal types of discussions are those initiated by employees who seek access to a union official for these purposes. Indeed there is some evidence of employee complaints at the presence of TWU officials in the meal room.

[30] In these circumstances it is reasonable to limit entry to times when employees are expected to be on meal breaks or other breaks of a requisite kind. A request for entry at the start of the shift that allows the permit holder to remain in the airside meal room to speak to various people over an extended period is not a reasonable request. To the extent that Aero-Care has required entry to be confined to times reasonably proximate to meal times it has not acted unreasonably.

[31] A related issue is the nature of breaks during which discussions can occur. There is only one unpaid meal break in a normal shift for Aero-Care employees at Gold Coast Airport. Other breaks during paid time, such as toilet breaks and informal “grab a drink” breaks, or simply downtime occur between flights. Employees at these times are on call and are required to perform various administrative tasks which are often performed in the vicinity of or in the airside meal room.
[32] The TWU contends that the staggering of meal breaks, flexibility in meal times depending on operational requirements and the rostering of more than one shift per day means that employees could be in the meal break during a break throughout the day and entry should be permitted with this in mind.

[33] Aero-Care submits that access for discussions in downtime or short informal breaks during paid time should not be permitted. It seeks a finding that the right to hold discussions should be confined to the unpaid meal break. In my view, it is reasonable to require TWU officials to confine discussions to unpaid meal breaks or breaks between shifts. It is clear that discussions during downtime could distract employees from their other duties. In an operational airport environment it is reasonable to confine the timing of discussions in this way.

Remaining on Premises

[34] Aero-Care takes issue with the practice engaged in by a TWU official of going to the baggage handlers’ meal room around 7:30am and staying as long as he liked doing other work, even after all meal breaks have been taken. It submits that the presence of the TWU official is disruptive and imposes an undue inconvenience of making the room unavailable for its own business and commercial purposes.

[35] The TWU submits that this is a hypothetical complaint and that it is reasonable to remain on the premises in order to speak to other employees who will be taking a meal break later in the day.

[36] In my view, it is reasonable for the TWU to attempt to speak with all employees in their meal breaks provided there are meal breaks expected to be taken within a short time. It is also reasonable for Aero-Care to place limits on an official remaining in the meal room indefinitely. It is difficult to adopt any hard and fast rules about such things. However given the operational aspects of the meal room and its environment, including the security and safety requirements for airside access, I consider that when a meal break is not expected to be taken within the next 30 minutes, it would be reasonable to request the officials to leave the airside on the basis that they may return closer to the time of the next anticipated meal break. There is of course no impediment on the official remaining in public areas of the airport.

[37] Aero-Care also expressed concern about TWU officials approaching employees at work such as handing out survey form materials to staff working at the passenger check in counter. The evidence suggested that the employees considered it to be an official requirement to complete a survey and did so while at work.

[38] The TWU contends that this is irrelevant to any right of entry issue as no right of entry was being exercised at the time. The officials were merely operating from publicly accessible areas.

[39] In a narrow technical sense the TWU may be correct. However approaching employees during working time to conduct union business should not occur without the permission of the employer. The TWU has certain rights under the Act for the purposes of legitimate access to employees. Employees have the right to hold discussions in their own time and when available, during meal breaks. But approaching employees at work in a manner that may distract them from their duties is not appropriate.
Frequency of Visits

[40] Aero-Care submits that entry on 10 occasions between 18 June 2014 and 24 September 2014 is unreasonable when the enterprise agreement does not expire until 19 February 2017, and each entry involves a diversion of the company’s critical resources.

[41] The TWU submits that entry is not confined to preparation for enterprise bargaining and the frequency and length of visits does not involve any unreasonable behaviour.

[42] I agree that the frequency of visits experienced to date is not unreasonable. The legitimate purposes of union entry included efforts to recruit members and to understand their workplace concerns. It is difficult to draw a line between an acceptable number of visits and overuse. I am satisfied that the history does not involve overuse. The disruption to the Aero-Care operations may be minimised by clarification of the extent of rights in other respects and the development of protocols and understandings that are acceptable to the parties.

Occupier Obligations and Location

[43] Aero-Care submits that it is very significant that a statutory scheme exists that regulates aviation security and safety; it confers particular powers on airport operators and imposes obligations on Aero-Care insofar as its contractual operations are concerned. In particular it emphasises the requirement that entry to the airside of the airports be subject to authorisation to perform duties or other lawful functions airside. The Gold Coast Airport authority has issued a directive that access to the airside is restricted to those with an operational reason, to assist in the operation of the airport or an aircraft. Aero-Care submits that at the Gold Coast Airport there is another facility, landside which is suitable for discussions while on meal and other breaks.

[44] Aero-Care submits that the exclusion of the baggage room meal room is reasonable in the light of s.491 of the Act, and that the landside meal room is the appropriate location for discussions.

[45] The TWU submits that the Gold Coast Airport authority has not prohibited airside access and that its September 2014 email should more appropriately be viewed as a need for care on the airside but not a prohibition. It submits that if an actual prohibition was intended it would have been expressed in clearer language. It submits that access to the airside meal room is a battle for another day if the airport operator, as the occupier of the airside prohibits entry at some point in the future.

[46] I accept that the requirements of the Gold Coast Airport authority are expressed in general terms, and that it does not appear that it has expressly prohibited TWU officials accessing the airside meal room. Rather there is an obligation on the tenant, Aero-Care, to ensure that access is confined to those who have an operational reason. This term, in itself is open to different interpretations. I do not accept that holding an Airport Security Identification Card is sufficient to warrant access to the airside meal room. Other requirements, including those of the airport authority must be borne in mind.

[47] For the purposes of s.491 of the Act I consider that it is reasonable for Aero-Care to request discussions to occur in the landside meal room. However the revised s.492, which became operative on 1 January 2014 (and is set out above), creates rights for permit holders over and above those previously in the Act. Instead of a notion of reasonableness, permit holders have the benefit of the default position if they cannot agree with the employer on a location. As the decision in Austral Bricks makes clear, this is to be ascertained with each exercise of the right and following a genuine attempt to agree on the location of the access. The default position applies only if the occupier and the permit holder cannot agree on the room to hold discussions.

[48] Given that these proceedings have crystallised many of the concerns of both Aero-Care and the TWU and there will be a need to consider the various elements of the right of entry for future exercises of the right, I am reluctant to express any further views about the operation of this provision. Section 492 requires a process to be undertaken in a genuine effort to reach an agreement. The views of others including the airport authority will be relevant, as will the conditions attaching to entry based on other provisions of the Act. The parties will need to assess the various alternatives in a genuine attempt to reach agreement. That process cannot and should not be circumvented.

Inductions

[49] Aero-Care submits that it is reasonable for it to require permit holders to undertake a safety induction prior to entering the airside, and to have that induction performed by persons appropriately qualified and sufficiently senior to be responsible for the safety of the person while on the premises. Some resistance to the concept of inductions on every occasion has led to some verbal disagreements and an additional layer of tension between the parties during previous access visits to the airside of the Gold Coast Airport.

[50] The TWU submits that such requirements are exaggerated and that it does not dispute the right to require an induction on each occasion. It does dispute the necessity to require an induction on each occasion. No actual refusal of an induction has occurred to date.

[51] I consider that this is largely a dispute over semantics. If Aero-Care has the right to require an induction and it chooses to impose that requirement in any given case or on all visits, it is acting within its rights and that is the end of the matter. The TWU has not disputed that proposition and on the evidence before me is not expected to do so.

Conclusions

[52] Aero-Care submitted that following a consideration of the Commission’s findings on the areas of dispute, the parties be permitted to make further submissions on the appropriateness of any orders arising from this decision. I accept that approach. The matter can be relisted at the request of ether party.

VICE PRESIDENT WATSON

Appearances:

Mr J. Murdoch QC and Ms G. Dann, counsel, for Aero-Care Flight Support Pty Limited.

Mr G. Rebetzke, of counsel, for the Transport Workers’ Union.

Hearing details:

2015.

Brisbane.

13, 14 & 15 January.

2015.

Melbourne - Video Conference Link to Brisbane

3 March.

Final written submissions:

6 February 2015 for Aero-Care Flight Support Pty Limited.

20 February 2015 for the Transport Workers’ Union.

 1   [2014] FWC 5407.

 2 See section 505 (2).

 3   See section 595.

 4 See section 505 (2).

 5 See section 505 (5).

 6   See section 506.

 7   See sections 491, 492A and the 494.

 8   Sections 521C (1) and 521D (1).

 9   Sections 521C (2)(a) and 521D (2)(a).

 10   Sections 521C (2)(c) and 521D (2)(c).

 11 See section 505 (4)

 12 [2012] FCAFC 85.

 13   c/f entry under section 481 where the permit holder "must reasonably suspect that a contravention has occurred, or is occurring" as well as having the prescribed purpose is a condition of entry under that section.

 14   A useful discussion in the context of a similar provision (section 760 of the Workplace Relations Act 1996) may be found in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 at [7] – [8] per Spender J and at [38] – [40] per Dowsett J.

 15   See Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [43].

 16   Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 405 [56] per Flick J.

 17 This is apparent from the express terms of the section 484.

 18   Section 490 (1).

 19   Section 487.

 20   Section 490 (3).

 21   Section 491.

 22   Section 488.

 23   Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 405 [56] per Flick J.

 24   Section 490 (2).

 25   Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 407 [63] per Flick J.

 26   See s. 515.

 27   See s. 508

 28   See O'Reilly v Commissioners of the State bank of Victoria (1982) 153 CLR 1 at 48.

 29   Section 490 (2).

 30   Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 397 [16].

 31   Explanatory Memorandum to Fair Work Amendment Bill 2013 at p.6.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562034>