Australasian Meat Industry Employees' Union, The v Dardanup Butchering Unit Trust T/A Dardanup Butchery Company
[2010] FWA 9197
•30 NOVEMBER 2010
Note: An appeal pursuant to s.604 (C2010/5966) was lodged against this decision - refer to Full Bench decision dated 17 June 2011 [[2011] FWAFB 3847] for result of appeal.
[2010] FWA 9197 |
|
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Australasian Meat Industry Employees' Union, The
v
Dardanup Butchering Unit Trust T/A Dardanup Butchery Company
(RE2010/2805)
DEPUTY PRESIDENT MCCARTHY | PERTH, 30 NOVEMBER 2010 |
Right of Entry dispute - whether request to conduct interviews and hold discussions in training room reasonable.
Background
[1] This matter concerns an application lodged by the Australian Meat Industry Employees Union (the AMIEU) seeking Orders that officers of the AMIEU that properly exercise a right of entry to the premises of Dardanup Butchering Unit Trust trading as Dardanup Butchery Company (the Company) to be able to hold discussions with employees in the lunch room. The AMIEU asserts that the room chosen by the Company (being the occupier) is not reasonable.
[2] The Company operates an abattoir at its Picton premises, just north of Bunbury. About 150 employees are employed in the slaughtering and deboning of cattle, pigs and sheep and wholesaling of the processed product.
[3] Currently the Company requires any interviews or discussions between an AMIEU official and employees to be conducted in the training room.
The Legislation
[4] The Fair Work Act 2009 (the FW Act) provides the following:
492 Conduct of interviews in particular room etc.
(1) The permit holder must comply with any reasonable request by the occupier of the premises to:
a) conduct interviews or hold discussions in a particular room or area of the premises; or
b) take a particular route to reach a particular room or area of the premises.
Note: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).
(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:
(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or
(b) the request is made with the intention of:
(i) intimidating persons who might participate in the interviews or discussions; or
(ii) discouraging persons from participating in the interviews or discussions; or
(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.
(3) However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.
(4) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.
[5] The issue for Fair Work Australia (FWA) to determine is whether the request by the Company that interviews or discussion be held in the training room is "reasonable". The Company is the occupier for the purposes of s.492. Whether the place chosen by the occupier is reasonable is a matter of fact and of degree.
[6] The approach is one where I do not think it is appropriate nor allowable to simply replace the occupier’s opinion with another opinion. People may have differing opinions about what may be a preferable location but the test here is purely one of reasonableness on the part of the occupier. My task is to examine the occupier’s decision and in doing so be cognisant that one occupier might reasonably make a decision about one location whereas another occupier might quite reasonably choose another location.
[7] The function of FWA is to determine whether in the particular circumstances, the choice of the location fell within the band of reasonable choices which a reasonable occupier might have chosen. If it doesn’t then FWA can interfere with the occupier’s choice.
[8] One way to examine whether the choice is reasonable is by considering the reason or reasons the occupier may explain why a particular location was chosen. If there is a reasonable explanation for the choice then it is most likely that the decision of the occupier was reasonable and should not be interfered with.
[9] The FW Act also provides that where certain circumstances are found to exist then the occupier’s choice must be found by FWA to be unreasonable. Those circumstances include the fitness of the room or location [(s.492(2)(a)] and the intent of the occupier to frustrate the permit holder performing their functions [s.492(2)(b)]. The fitness of the room or location in my view is a mainly objective test based on the location in relation to the workplace and its general suitability for the purpose. The circumstances outlined in s.492(2)(b) (intimidation and the like) are likely to be reliant on inferences needing to be drawn about the occupier’s intent.
[10] In my view it is not appropriate to deal with the sorts of circumstances specified in s.492(2)(b) under the broad umbrella of what is reasonable or not without the meeting of the requirements of s.492(2)(b) regarding the intentions of the occupier. Indeed s. 492(2)(b) states that "Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:.....". I take the meaning of this to be that where intimidation and the like are asserted, then intent on the part of the occupier must be established and if it is not, then one should not find that the choice was unreasonable.
[11] A question in this matter then is whether there was an "intention" to "intimidate", "discourage", or "make difficult". The obvious first question to ask in examining the intention of the occupier is to ask whether employees were intimidated, discouraged or found it difficult to attend the place chosen. If the answer to any of these questions is "yes" then the additional question must then be asked as to whether that was an outcome intended by the employer.
[12] Whether employees did or did not attend the room to be interviewed by or have discussions with an AMIEU official is not a reliable indicator of any intimidation or the like, much less an intended outcome. Rather the questions to be asked and answered are whether there was discouragement, intimidation or difficulty in attending and if that was a consequence the occupier intended.
The Evidence
Mr Graham Smith
[13] Mr Graham Smith, the Branch Secretary of the South Australia/Western Australia Branch of the AMIEU gave evidence.
[14] The AMIEU summarised his evidence that the training room was an unreasonable location for the following reasons:
a. The limited time employees have to wash up, have their meal in the dining facilities and then make their way to the training room;
b. Asking employees from “edible” and “inedible” categories who are clearly segregated in dining facilities by the Company to attend the same training room increases the possibility of cross contamination;
c. There are around 150 employees on site and whilst around only 50 might be taking a break at any one time, the training room would not accommodate such numbers if employees choose to become involved in any discussions;
d. The high visibility of the training room to salaried staff and particularly the human resources manager was a deterrent to employees choosing to attend;
e. The training room lacks the appropriate privacy to reasonably conduct discussions;
[15] The AMIEU noted that Mr. Smith was also cross examined as to what evidence existed to establish intent on the part of the Company to intimidate employees from participating in discussions. Mr. Smith responded with evidence based on his lengthy experience as to how meatworkers respond to having to disclose to their employer that they are a union member or have been speaking to the union. Mr. Smith quite properly conceded that he was drawing an inference as to the Company’s intentions.
Ms Weir
[16] Ms Weir is the Human Resources Manager of the Company and has held that position for about two and one half years. The Company summarised her evidence as follows:
• Ms Weir gave evidence that there had been no union visits until February 2010. When advised that the union officials would be visiting she posted notices in many prominent places where they were certain to be seen, advising of when the visit was occurring and where employees could meet with the officials if they wished. Her evidence was that employees were also informed at tool box meetings of the visits and during the officials’ visits she went to the lunchrooms to advise that they were present.
• Ms Weir said that she or another person would be on hand to escort the officials from the training room if they wished to leave because company policy was that nobody was permitted to move around the site unaccompanied unless they had been fully inducted. She said that the video surveillance was directed at the car park and perimeter below the training room and monitored by the operations manager for security reasons.
• She testified that the training room was nominated for use by the officials because it was the cleanest and nicest and most comfortable room, that it was guaranteed that it would be air-conditioned and that milk, tea and coffee would be available, and that staff were familiar with it and used it regularly and were happy to go down there.
• She further said that the room was also nominated for other visitors, such as superannuation fund and insurance people who wished to talk with employees and the Company had a strict policy of not permitting anyone to interfere with employee meal breaks.
• Ms Weir further testified that supervisors and salaried employees of the Company had their lunch with the employees and that there were probably more management representatives present at such times than were in the building containing the training room. She did not believe that the presence of management representatives in the vicinity of the training room when the union officials visited had the effect of intimidating or discouraging employees from visiting them but conceded that some people might be discouraged. There were no facilities other than the meal rooms or the training room suitable for meetings with visitors.
[17] There was no evidence in any form given by any employees who could be involved in interviews. I am therefore left with impressions and inferences to be drawn from the evidence, primarily of Mr Smith, that the decision of the Company to allocate the training room was unreasonable. I am also left with inferences asking to be drawn from his evidence and that of Ms Weir that the Company chose that location with the intent of intimidating, discouraging and making it difficult for employees to attend the training room.
[18] I therefore have no direct evidence whatsoever that any employee did feel intimidated or discouraged or found it difficult to attend the training room for interviews and if they did, why they felt that way. The AMIEU acknowledged that it is seeking to exercise the right to enter and hold discussions and go about the legitimate business of trying to persuade employees of the Company to join the union. There could be any number of reasons why employees did not attend the training room for discussions and interviews with the union official. It is highly speculative and inappropriate to make any inference about those motivations without any evidence from any employee.
[19] Of course attendance or lack of attendance might be an indicator of intimidation and the like but in itself is not conclusive about the motivations of employees to attend. However without any direct evidence from employees that they felt intimidated or discouraged or found it difficult to attend it is difficult to make any findings in regard to assertions of that nature.
The Submissions
The AMIEU
[20] The AMIEU submitted that the training room was not fit for the purpose of conducting interviews and that it was chosen with the intent of intimidating, discouraging and to make it difficult for employees to hold discussions and be interviewed by an AMIEU official exercising a Right of Entry to the premises for those purposes.
[21] They submitted two reasons why the room was unsuitable; namely that it could accommodate a maximum of 12 persons, yet there were about 150 employees at Picton and up to 50 employees taking their break at any given time. Secondly they argued that the training room is unfit for the discussions because it introduces the possibility of cross contamination.
[22] The AMIEU suggested that Ms Weir accepted that some employees might possibly feel intimidated by the location of the training room and that the Company, acting with the knowledge of the likely consequences of its request to use the training room, cannot disavow an intention to intimidate.
The Company
[23] The Company argued that on the evidence there are only two places suitable for the conducting of interviews and discussions; the training room and the meal rooms. Both have objective advantages and disadvantages.
[24] The Company claimed that the training room has better meeting facilities but is situated in a block where management has offices and the number of persons who can attend at any one time is limited. Employees would have to make a deliberate decision to attend the training room during their meal break. There was no evidence that a decision to attend the training room would prevent or inhibit the taking of meals; the training room facilities indicate it is suitable for the taking of meals while there. Private discussions with individual employees or group discussions would be possible in the training room.
[25] The Company acknowledged that there is a potential risk of cross contamination if employees from the slaughter floor were mixing with employees from the boning room or other processing areas at such times and subsequently returned to their designated workplaces however claimed that the risk is slight because the sections have meals at different times and there is only a slight overlap of mealtimes.
[26] They said that the training room is more than adequate for the purposes of holding discussions with a small group or individuals or conducting interviews. Personal privacy considerations should mitigate against any idea that individual interviews could properly be conducted in a room full of people. The training room has ideal facilities for doing so.
[27] With respect to the size of the room the Company argued that where a large number of employees do wish to take part in discussions, multiple meetings on different days can be arranged; there is no impediment to the Applicant’s officials visiting the Respondent’s premises on successive days in order to do so. Moreover even if holding discussions with a large number of people was possible, it would generally require broadcasting equipment of some kind and the Applicant’s evidence is that it is not proposing any such activity. The Applicant accordingly does not require a large meeting room in order to carry out its role
Consideration and Conclusions
[28] In my view the Company provided a good explanation as to why the training room was chosen as that is the room where any visitor who wishes to have discussions with employees is located. Further that has historically been the room made available for the AMIEU without previous complaint.
[29] The inspections I conducted showed that the room was close to where employees had their meal and other breaks, it was clean and it was accessible. Whilst the room was in an office building next to the Human Resources Manager’s office, I do not consider that the location for that reason alone or in combination with other reasons made the decision of the occupier an unreasonable one. The AMIEU complained that the room was too small. However the only evidence in support of that contention was a self evident assertion that if large numbers of employees wished to attend at the one time then the room was too small. However the evidence did not satisfy me that such a circumstance had ever arisen nor that it was likely that it would arise.
[30] I also do not accept that the evidence of Ms Weir was the concession the AMIEU made it out to be. The evidence the AMIEU referred to in support of their contention was as follows;
Mr. Norris: Would you accept that even though it may not be your intention to intimidate or discourage people, that it might be a consequence of designating that area, that employees may feel intimidated and discouraged?
Ms. Weir: That’s something that you’d have to ask employees, I would like to think that they wouldn’t feel intimidated, where their OHS and HR are a very integral part…we have a lot more contact than anyone else, than any of the other areas with the workers and have good relationships, they come down just to have a coffee and chat half the time. So I don’t …um.. I wouldn’t like to think that they feel intimidated ‘cos that’s not the intention at all.
Mr. Norris: No, no, well I’m saying that even if it wasn’t the intention, would you accept that it’s possible that somebody may feel that way?
Ms. Weir: Maybe some people might, I’m not sure.
[31] In my view that evidence does no more than highlight that there might be a possibility that some people may feel intimidated. To me that is a long way short of the standard I would require to establish intent to intimidate on the Company’s part.
[32] Much of the evidence of the AMIEU seemed to be directed at endeavoring to establish that the lunch room is more convenient and more suitable. They seemed to be arguing that a more reasonable decision would be to allocate the lunch room at the location for interviews of employees. However that is not the test the FW Act requires me to apply. The test in the FW Act is one of reasonableness on the part of the occupier and deemed unreasonableness if certain intention of the occupier is established
[33] I find the room chosen by the occupier to have been reasonable and I do not find that there was any intent of the nature of the provisions in s.492(2)(b) on the part of the occupier in choosing that room. Furthermore I find that the room was suitable.
[34] I therefore have decided not to issue the order sought nor any other order.
DEPUTY PRESIDENT
Appearances:
Mr G. Smith of the AMIEU for the Applicant.
Ms P. Weir of Dardanup Butchering Unit Trust T/A Dardanup Butchery Company for the Respondent.
Hearing details:
BUNBURY
2010
October 13
Final written submissions:
2010, November 16
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