Australasian Meat Industry Employees Union, The v Somerville Retail Services

[2010] FWA 6737

Note: An appeal pursuant to s.604 (C2010/4985) was lodged against this decision and the order arising from this decision [PR501240] - refer to Full Bench decision dated 10 January 2011 [[2011] FWAFB 120] for result of appeal.

[2010] FWA 6737

FAIR WORK AUSTRALIA

DECISION

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

Australasian Meat Industry Employees Union, The
v
Somerville Retail Services
(RE2010/3518)

COMMISSIONER ROE MELBOURNE, 1 SEPTEMBER 2010

Alleged dispute concerning meeting venue for bargaining discussions.

[1] This matter arises out of a dispute between the parties over the operation of Part 3-4 of the Fair Work Act 2009 (“the Fair Work Act”). The application is made under s. 505 of the FW Act. The applicant is the Australian Meat Industry Employees Union (“the AMIEU”) and the respondent is Somerville Retail Services Pty Ltd (“the Employer”).

[2] The dispute relates to the requirements imposed by the employer when an AMIEU organiser who is a permit holder under the Fair Work Act enters the premises of the Employer for the purpose of holding discussions with members of the AMIEU, or those eligible to become members of the AMIEU.

[3] The matter was heard on 12 August 2010 and on 26 August 2010. An inspection of the Employer’s premises at 438 Somerville Road Tottenham was conducted on 26 August 2010.

[4] The proceedings adjourned into conciliation conference on 12 August. It was apparent that the parties may be able to reach agreement on matters such as the desirable period of notice the AMIEU will endeavour to give to the Employer prior to exercising the right of entry for the purpose of discussions with employees and the nature of the notice(s) to be distributed to employees in advance of such meetings. However, it was clear that resolution would not be reached in respect to the location and timing of the access. The AMIEU had requested that access be given during meal times to the meal room and the Employer required that access be given to the training room outside of meal times. The parties agreed to continue with the arbitration before me in respect to this issue.

[5] Evidence was given on 26 August by Mr Paul Simmons, Human Resource Manager Somerville Retail Services and by Mr Colin Ross, Organiser AMIEU. The Employer was represented by Ms J Maclean and Ms L Simmons-Strempel of counsel and leave was granted for them to appear. Mr Barry Chalkley also appeared for the AMIEU.

[6] The following matters were not disputed by the parties in the proceedings and I am satisfied that:

• The Employer operates in the meat industry and employs some 350 workers at the Tottenham site to produce “case ready” or “retail ready” meat for supermarkets.



• About 300 of the employees are production employees eligible to be members of the AMIEU.



• The production employees are organised on two shifts and after allowing for those on leave there are approximately 100 employees on each shift each day.



• Employees take a 30 minute meal break on each shift and also appropriate rest breaks. The meal breaks are staggered in two adjacent 30 minute periods. The breaks are taken in the lunch or meal room which is reasonably large and which also has a small covered and enclosed outside smoking area. There would be up to 50 employees in the meal room during a 30 minute meal break.



• Employees would need to change out of their “whites” if they wished to exit the premises during the meal break and as there are no shops close to the factory it is not common for employees to leave the premises.



• The premises are divided into two sections - the production area and the administration area. The two areas are separated by a door which has an authorised personnel only sign on it and which is normally only able to be opened by use of security pass. Production employees do not have the security pass and do not enter the administration area in the ordinary course.



• The meal or lunch room is in the production area and is directly accessible from the production work locations and is entered directly from the boot wash which is required for exit and entry to the production work locations. The training room is located in the administration area with the staff meal and tea room opposite the entry on one side of it and various managers’ offices on the other side.



• Given all the circumstances including the food handling and clothing requirements and the short breaks and the geography of the site there are only two locations where a union official holding a permit could hold meetings or discussions and they are the training room inside the administration area or the meal room.



• Mr Colin Ross is a holder of an entry permit under the Act.



• Mr Colin Ross has been allowed by the Employer to exercise his rights to enter the premises of the Employer under the Act and its predecessors on regular occasions over the past seven years.



• Mr Ross has on all occasions when exercising his right of entry given the required notice, obeyed all reasonable instructions, conducted himself appropriately and professionally and has not unreasonably obstructed the business of the Employer.



• The Employer has required that the discussions with employees be held in the training room and not in the meal or lunch room. Prior to the rebuilding of the administration area the employer required the discussions to be held in other similar rooms but not in the lunch room.



• On a number of occasions when the employer has wished to use the training room for other business purposes the employer has required Mr Ross to cancel his advertised visit and reschedule it for another time or has required Mr Ross to truncate his visit. Mr Ross has complied with these requirements.



• The AMIEU first raised the issue of access to the lunch room in 2001 and they notified a dispute before the Australian Industrial Relations Commission concerning the matter at that time. The AMIEU has raised the issue of the suitability of the meeting location and requested access to the lunch room at meal times on a number of occasions over the past few years.

[7] The dispute specifically relates to whether requests made by the Employer with respect to the use of the training room for discussions when permit holders of the Applicant exercise a right of entry in accordance with rights those permit holders have under s. 484 of the Act are reasonable.

[8] It became clear during the proceedings and during the inspection that the question of when the discussions were held was inextricably linked with the question of the location of the discussions. Given the shortness of the meal and other breaks it is not practical for employees to access the organiser in the training room during meal times since employees need a time and place for their meal and the training room is certainly not suitable due to its size, location and facilities for a significant number of employees to have their meal in that location. The lunch or meal room is the only place employees have their meal break. 1 The employer has traditionally agreed to access in the training room outside of the meal times and during the working time of the employees.

[9] The AMIEU are seeking orders from FWA in accordance with section 505(2)(e), as below:

“ That the officers of the AMIEU, when exercising their entitlement as permit holders to enter the respondent’s premises for the purposes of holding discussions with employees pursuant to Section 484 of the Act, be permitted to hold those discussions in the lunch room of those premises.”

[10] Although not stated in the order it is clear that “pursuant to Section 484 of the Act” incorporates the requirement under Section 490(2) that “the permit holder may hold discussions under section 484 only during mealtimes or other breaks.” The AMIEU is seeking access to the lunch room during mealtimes or other breaks. 2 There is nothing that prevents an employer and a union from agreeing to access arrangements for a permit holder to hold discussions outside of mealtimes or other breaks, however, where a permit holder is seeking to exercise their rights this includes the right that those discussions be during mealtimes or other breaks. The only order which I can make is an order which is consistent with Section 490(2) and that would be an order about access during mealtimes or other breaks.

Statutory provisions

[11] The relevant provisions of the Act are as follows:

“s. 480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF outworkers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.

s. 484 Entry to hold discussions

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

(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.

s. 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.

s. 505 FWA may deal with a dispute about the operation of this Part

(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).

Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.

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

(3) FWA 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, FWA must take into account fairness between the parties concerned.

(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.”

[12] Many of these provisions are similar in their effect to those which were found in the Workplace Relations Act 1996 however it should be noted that there was no equivalent to the provisions of Section 492(2) of the Fair Work Act.

[13] The matter in dispute is clearly one contemplated by Section 505(1) and the Tribunal has the capacity to make orders under Section 505(2) concerning the location of the meetings in the form sought by the AMIEU or in a modified form. The Tribunal must take into account fairness between the parties concerned. In considering fairness and whether or not a request is reasonable I should have regard for the objects of the Act and of Part 3-4 in particular. Should I find it appropriate to make orders in this matter then consistent with Section 505(5) such orders may confer additional rights upon the AMIEU permit holders since the dispute is about whether or not a request under Section 492 is reasonable.

The Evidence

[14] It is the evidence of the AMIEU that the current arrangements are not reasonable or fair whereas it is the evidence of the Employer that the current arrangements are reasonable and fair.

[15] The AMIEU gave evidence and made submissions that the training room is only able to seat about 12 persons and is therefore not fit for the purpose of meeting with the number of employees potentially involved. 3

[16] It is the evidence of Mr Simmons for the Employer that the training room can fit 25 to 30 people “comfortably” of whom approximately 15 would be able to be seated. 4

[17] I accept the evidence that the training room can accommodate between 12 and 15 people seated and could accommodate 20 to 25 people in total although the room would then be somewhat crowded. 5 I am satisfied based upon the observations made during the inspection that the area of the meal room is many times the area of the training room. There is no doubt that the 50 employees who would be the maximum who would be in the meal room at any meal time can be comfortably accommodated and that the organiser could hold discussions with employees without causing undue disruption. I am satisfied that both the training room and the meal room are adequate facilities for the holding of discussions however the training room is not large enough for more than 25 people whereas the meal room can accommodate many times that number. Mr Simmons gave evidence that the meal room has in the past been used for management briefings to the entire workforce present on a shift.6

[18] The Employer submitted that the noise in the meal room would make it difficult for private discussions between the union and employees. Mr Ross gave evidence that there would be no problem with this generally and where necessary arrangements for follow up telephone or off site discussions can be made. 7 I am satisfied that the question of discussions being overheard by others is not a significant consideration with either the meal room or the training room.

[19] The AMIEU gave evidence and made submissions that the arrangements are designed to ensure that employees who wish to meet with the AMIEU have to identify themselves to management in a number of ways and that this discourages employees from attending.

[20] The AMIEU gave evidence that employees have to advise their supervisor that they wish to leave their work station to meet with the union. The Employer accepts the fact that employees do have to advise their supervisor if they wish to leave their work station to meet with the union and since the access is granted in work time not during meal breaks this is a requirement for all employees wishing to access Mr Ross. The Employer is of course correct that an employee cannot just leave work in a production environment without advising their supervisor. The notice placed by management on the notice board in the meal room concerning the right of entry visit includes the following: 8

“As previously advised you are not under any obligation to meet with Collin if you choose not to. Remember that you have the Freedom of Choice as to whether you become a union member or not.

Those wishing to see Collin may do so between 8am to 12pm during which there will be unrestricted access to the Administration area. As a matter of courtesy you should let your supervisor know if you wish to see Collin.”

[21] The AMIEU gave evidence that employees wishing to go to the training room have to enter the administration area of the factory and that they may well be seen entering the training room by management personnel. 9 The Employer accepts that the employees wishing to meet with Mr Ross have to enter the administration area of the factory which is not normally accessible to those employees. However, the Employer denies that employees entering the training room are likely to be observed by management personnel. I am satisfied that the entry to the training room from the production areas does not mean that an employee has to walk past the offices of the senior management. However, I am satisfied that employees do have to go through a secure door which they cannot normally access except in the company of management or administrative personnel and which they would regard as the management area. Given that the managers all have offices in the administration area and they may move around that area in the course of their duties it would be reasonable for employees to apprehend that if they went through the secure door to go to the training room they might be observed by management personnel. I also accept that some production employees are likely to feel apprehensive about going into an unfamiliar area and/or about being observed entering the administration area.

[22] The AMIEU gave evidence that the windows of the training room face directly onto the offices of several managers and although blinds can be drawn over those windows they are not always closed and the act of closing them may draw attention. 10 The AMIEU submitted that this had the effect of discouraging employees from attending discussions and made the location unreasonable and unsuitable. The Employer accepts that managers could see who was in the training room if the blinds on the windows were open but says that there is no problem about closing the blinds. I am satisfied that there is no reason why Mr Ross cannot close the blinds at the beginning of any right of entry visit.

[23] Mr Simmons for the Employer gave evidence that during the right of entry visits of Mr Ross he arranged for the security lock on the access door into the administration area to be deactivated or when this was not possible he put a chock in the door to hold it partly open. 11 Mr Ross gave evidence that this was not consistent with his experience and that he regularly heard what he believed to be the clicking of the security mechanism when he was in the training room on right of entry visits. Notwithstanding this I am satisfied that the general practice of Mr Simmons is to ensure that employees who wish to go to the training room during right of entry visits are able to do so without having to get a supervisor to open the security lock for them. This is reinforced by the content of the management notice of the right of entry visit quoted earlier.

[24] The Employer gave evidence which I accept that from time to time the production supervisors and the production manager enter into the meal room. It was also clear that they could also use the staff meal and tea room inside the administration area if they chose or if this was necessary.

[25] The AMIEU submitted that a consequence of the holding of the right of entry visit during working hours and in the training room is that employees will not know that the union organizer is on the premises unless they read and remember a notice concerning this matter. 12 The AMIEU submitted that this would not be as important if the organizer was in a location more readily visible and accessible to the production employees (e.g. the meal room). I am satisfied that some employees may be unaware that Mr Ross is at the plant due to the fact that the training room is isolated from the production area and the A4 notices of his visit may not be seen by some employees.

[26] Mr Ross gave evidence which was accepted by the Employer of three occasions when the Employer had agreed to a right of entry visit and after he had informed some employees of the visit he was advised by the management that the training room had become unavailable due to the legitimate needs of the business. This had led to the right of entry visit being rescheduled. Mr Ross gave evidence that employees had contacted him about this and that they had got the impression as a result of this rescheduling that the union organiser was unreliable. I am satisfied that this occurred and that it might have the effect of discouraging employees from holding discussions with Mr Ross to some extent. However, I do not place great weight on this factor.

[27] Taking into account all of the evidence and the circumstances I am satisfied that the location of the training room in the administration area acts as a discouragement to employees to attend discussions with the AMIEU. Given the way in which the training room is isolated from the production areas of the plant and the need to inform the supervisor of the desire to go and meet with the union representative it is difficult for employees and a considerable effort is required by employees to access the union representative.

[28] I am also satisfied that if access were to be arranged in the other alternative location available, the meal room, then it would be less of a discouragement and it would be much more convenient for employees who wish to hold discussions with Mr Ross.

[29] Mr Ross gave evidence that the concerns of the AMIEU were supported by a number of employees who wished to have discussions with him. I have no reason to doubt Mr Ross’ evidence on this point but it can only be given limited weight since there was no direct evidence from these employees.

[30] Mr Simmons was questioned about the matter of “inconvenience” to the business. Mr Simmons did not agree with Mr Ross that providing access in the training room was an inconvenience to the business but he did agree that providing access in the meal room would be similarly not an inconvenience to the business. 13

[31] Mr Simmons gave evidence that the reasons why the Employer rejected the requests of the AMIEU for the use of the meal room was because they regarded the training room as a reasonable location and that non-union employees did not want the AMIEU to meet with employees in the lunch room. 14 There were no details given of the objection of employees. The Employer submitted that if the discussions were held in the meal room this might deny employees who do not wish to meet with Mr Ross the ability to enjoy the use of the meal room. Effectively, the Employer argues those employees would not have a free choice as to whether or not they participated in discussions with Mr Ross.15 I am not satisfied that there is sufficient basis to conclude that access to the meal room for right of entry discussions would cause or would be likely to cause any significant inconvenience or disruption to the business. I am not satisfied that there is any basis to conclude that the AMIEU would not respect the wishes of employees who stated when approached by the AMIEU organiser that they did not wish to have discussions with the AMIEU organiser. Mr Ross gave evidence that he would respect the wishes of employees as to how he conducted himself during right of entry access to the meal room if it was granted.16

Consideration

Right of Entry Provisions in the Fair Work Act

[32] Part 3-4 of the Act - Right of Entry sets out a code for right of entry to an employer’s premises by permit holders.

[33] In terms of the reference to the occupiers request being reasonable or unreasonable a Full Bench of the Australian Industrial Relations Commission considered this in Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office 17This matter involved an appeal against a decisionconcerning right of entry to investigate breaches of a registered agreement and considered the words in s.751 of the Workplace Relations Act 1996.

[34] At paragraph 29 the Full Bench stated:

“We accept that in considering whether an employer’s request is reasonable for the purposes of s.751(3) the Commission is required to take all of the circumstances into account and to consider the legitimate interests of the employer or the occupier of the premises as well as the interests of the employees and the permit holder. The public interest in the observance of industrial laws is also a relevant consideration…”

[35] In this respect there is sufficient similarity between the provisions of the Workplace Relations Act 1996 and the Fair Work Act 2009 such that this observation is relevant. In the context of this application concerning entry by permit holders for the purposes of holding discussions I accept that in considering the question of reasonableness the tribunal is required to consider all relevant circumstances including the legitimate interests of the employer and occupier as well as the interests of the employees and the permit holder.

[36] The objects of this Part are detailed in s. 480 and are to establish a framework for officials of organisations to enter premises that balances:

• the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the Act and other specified laws:



• with the right of employees to receive, at work, information and representation from officials of organisations; and



• with the right the occupiers of the premises and employers to go about their business without undue inconvenience.

[37] The general objects of the Act are also relevant (Section 3) and in particular the objective to “take into account Australia’s international labour obligations” and “enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms” The Employer conceded that the objects were a legitimate consideration when dealing with whether the requirements were reasonable or unreasonable. 18

[38] There is no evidence of inconvenience to the employer in this situation particularly given the history of professional conduct by the AMIEU organiser over a number of years and the fact that the use of neither of the two alternative locations is regarded by the employer as causing inconvenience to the business. So in this case the reasonableness should be judged against the extent to which it enables the first two objectives in Section 480 of the Act concerning the rights of the AMIEU and the rights of employees to have representation. For these reasons and for the reasons set out below, in the circumstances of this case, I am satisfied that the AMIEU has established that the request to use the training room is not a reasonable request in that it has the effect of discouraging eligible employees and making it unnecessarily difficult for eligible employees who wish to participate in those discussions and that in the circumstances of this case that is contrary to the objectives of Part 3-4 of the Act as set out in Section 480.

[39] In reaching this conclusion I have considered the requirement of Section 484(c). That provision makes it clear that the rights under Section 484 can only be exercised for the purposes of holding discussions with those who wish to participate in those discussions. As raised earlier the Employer argued that this meant that the meal room was unsuitable because it was possible that, as a result of the actions of the AMIEU organiser, employees who did not wish to participate in discussions may not be able to enjoy their meal undisturbed and may not have a real choice as to whether or not to participate in discussions. The Employer argued that the training room was reasonable because it overcame this problem for those employees who did not wish to participate in discussions.

[40] An apprehension by the Employer that some employees may be inconvenienced if the discussions take place in a particular location is unlikely to be a relevant consideration unless it caused undue inconvenience to the capacity of the employer to go about its business. Further the fact that some employees who did not wish to take place in discussions were present in the location that the discussions were taking place would not of itself make that location inappropriate unless it could be shown that the objective of the permit holder was not to hold discussions with those who wish to participate in those discussions.

[41] The right of entry for the purpose of discussions with those who wish to participate is a right of the AMIEU permit holder. It cannot be reduced to a right of employees to be able to request to hold discussions with the permit holder. An organiser approaching an employee to participate in discussions is not contrary to the legislative scheme unless that organiser unreasonably persists after that employee has made it clear that they don’t wish to participate in discussions. Such persistence it could be argued might bring into question the purpose of holding the discussions and might in some circumstances lead to disruption to the business.

[42] An arrangement for right of entry for discussion purposes which requires the employee to advise the employer that they wish or do not wish to participate in discussions with the permit holder is in my view contrary to the Objects of the Act and of Part 3-4 in particular. Such a restriction is not inherent or implied in the other provisions of Part 3-4. Similarly an arrangement which discourages employee participation because of reasonable apprehension that employees may be observed by management or because it required unreasonable effort on the part of the employees or because it required the employees to go into areas of the workplace which are not normally accessible to them would often be unreasonable because it undermines the objective of Part 3-4. I have found that these factors are present in this case and in the circumstances of this case have contributed to my finding that the requirement to use the training room is an unreasonable request.

[43] Section 492(3) provides that a request is not unreasonable only because the room is not that which the permit holder would have chosen. The Employer argued that in effect this was what the AMIEU were submitting. I am satisfied that the AMIEU have established that the request is unreasonable because of the effect the requested arrangement has on the ability of the AMIEU to exercise its rights and its capacity to achieve the objects of Part 3-4 and the ability of employees who wish to have discussions to effectively do so. In the circumstances of this particular case being satisfied that the request is unreasonable means that there is only one other realistic alternative and that is the meal room. The parties are agreed on this point. The alternative is the meal room because it is the only other alternative not because it is the one the permit holder would have chosen.

Section 492

[44] Section 492 of the Act requires that a permit holder comply with any reasonable request by the occupier of the premises to conduct interviews or hold discussions in a particular room or area or to take a particular route to reach a particular room or area of the premises.

[45] I note that in this case it is only the particular room or area that is in dispute.

[46] I have found that the choice is unreasonable because it has the effect of discouraging employees from participating in discussions contrary to the objects of Part 3-4 and the Act as a whole. Without limiting when a request might otherwise be unreasonable Section 492(2) has some examples of what would constitute an unreasonable request by an occupier such as situations where:

“(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.”

[47] The Act in this way specifies that a request is unreasonable if the occupier acted with the intention of doing certain proscribed things, but this expressly is not an exhaustive list of when it might be found that a request was unreasonable.

S. 492(2)(a) - Fit for purpose?

[48] The Employer drew my attention to the fact that Commissioner Williams has considered this matter in CFMEU v Foster Wheeler Worley Parsons (Pluto) Joint Venture 19. Commissioner Williams said:

“I accept the view that in considering whether the designated meeting areas are fit for the purpose of holding discussions the tribunal does not need to consider whether the crib rooms proposed by the applicant would be a preferable location. This is not relevant to whether or not the designated areas are fit for the purpose of holding discussions. This point may have to be considered under s .492 (2) (b) but not under s. 492(2) (a).” 20

[49] I agree with Commissioner Williams. In the circumstances of this case the training room is fit for the purpose except that it may be too small for the purpose if access is in meal times in accordance with the requirements of the Act.

S. 492(2)(b) –Intention to intimidate, discourage or make difficult for?

[50] Section 492(2)(b) provides that a request in respect to a particular room will be unreasonable if the Employer chose these areas with the intention of:

• intimidating employees who might participate; or



• discouraging employees from participating; or



• making it difficult for employees to participate in those discussions.

[51] Senior Deputy President Richards in The Australian Workers' Union; The Australian Workers' Union of Employees, Queensland v Ardent Leisure Limited T/A Dreamworld 21 (“Dreamworld case”) has considered the operations of s. 492(2).

[52] SDP Richards had to determine whether or not the occupier of the premises, Dreamworld, made an unreasonable request of the permit holder to meet in a particular building (The Shell) and did so with the intention of doing the kind of things set out in section 492(2)[(b)](i), (ii) and (iii) of the Act. As His Honour saw it, the Act required that he “investigate [the decision maker’s] motivation [to determine if] it demonstrates an intention to do the things that are proscribed”. 22

[53] A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

[54] Inferences can be drawn from the actions of the Employer. The Employer has gone to some trouble to reject the request of the AMIEU for access to the only other facility, the meal room, consistently over a period of time. Even though Mr Simmons gave evidence that it was not an inconvenience it is obvious that considerable effort is involved in having to arrange for Mr Ross to be regularly present for 4 hours in the only training room facility in a rather crowded administration office area and to allow employees to leave their employment to meet with Mr Ross if they wish and to arrange the necessary relief for this to occur and to get the IT specialists to deactivate the security door. This is much greater than the effort required to allow Mr Ross access to the meal room during the one hour during which the two meal breaks are rostered.

[55] The Employer has told employees in the written notice concerning the right of entry visit that they “are not under any obligation to meet with Colin” and that “you should let your supervisor know if you wish to see Colin”. 23I am satisfied that the Employer must have been aware that the arrangement which required employees to advise their supervisor and which required them to go through the door which is not normally accessible to them into the administration area would have the effect of discouraging employees from participating and would make it more difficult for employees to participate. I do not suggest that the employer had the intention of intimidating employees.

[56] The Employer clearly had the intention of avoiding a situation in which employees who did not specifically request to participate in discussions or who did not take an active decision to participate in discussions would be able to participate in the discussions. It is clear in this case that the Employer wrongly saw right of entry as being about the right of employees who request to participate in discussions rather than being about the right of permit holders to enter for the purpose of holding discussions with employees who wish to participate. The submissions of the Employer and the circumstances of this case make it clear that the Employer wanted to avoid the union organiser directly approaching any employee including an employee who might subsequently advise the union that they do not wish to participate in discussions or an employee who initially may not be interested in discussions but who might change their mind when approached or an employee who wished to have discussions but did not want the Employer to know about this. For the permit holder to approach all these categories of employees is consistent with the right to enter for the purpose of holding discussions with employees who wish to participate. The main reason why the Employer said that they did not agree to the request to use the meal room was to protect employees who they said did not want to participate in discussions. 24 An inference can be drawn from the actions of the Employer in seeking to prevent the permit holder from directly approaching employees that they knew this would discourage or make more difficult the access of the permit holder to these employees.

[57] Given that I have found for other reasons that the request of the employer was unreasonable it is not necessary to determine whether or not it was unreasonable for the reasons set out in Section 492(2)(b). However, for the reasons set out above I am satisfied that the AMIEU has established that it was also unreasonable for the reason set out in Section 492(2)(b)(ii) and (iii).

Orders

[58] Having found that the request is unreasonable and that the parties agreed that there is only one alternative location which is the lunch or meal room I intend to order that the access be in the lunch or meal room. I also note the apprehension of the employer that access in the lunch or meal room was likely to cause inconvenience or disruption to employees and my finding that there was insufficient evidence or basis upon which I could draw that conclusion. I intend to provide that the employer can seek variation to these orders or relisting of this matter in the event that undue inconvenience to the business can be demonstrated in the future.

[59] I therefore order as follows:

That from the date of this decision the officers of the AMIEU, when exercising their entitlement as permit holders to enter the respondent’s premises for the purposes of holding discussions with employees pursuant to Section 484 of the Act, be permitted to hold those discussions in the lunch or meal room of those premises during meal times and other breaks. In the event that the exercise of the right of entry by officers of the AMIEU in accordance with this order causes undue inconvenience to the employer then the employer is at liberty to apply for the variation of this order and/or for a relisting of this matter.

COMMISSIONER

Appearances:

Ms J. Maclean and Ms L. Simmons-Strempel for the Respondent.

Mr C. Ross and Mr. B. Chalkley for the Applicant.

Hearing details:

2010, Melbourne, August 26

 1   PN170.

 2   PN59.

 3  Exhibit AMIEU-1 Para 12 Statement of Mr Ross.

 4   Exhibit M-1 Para 9 Statement of Mr Simmons.

 5   PN31.

 6   PN164.

 7   PN20 to 21.

 8   Attachment to Exhibit M-1 Statement of Mr Simmons.

 9   Exhibit AMIEU-1 Paragraph 13 of Statement of Mr Ross.

 10   PN32 to 34.

 11   Exhibit M-1 Paragraph 12 Statement of Mr Simmons.

 12   Exhibit AMIEU-1 Paragraph 15Statement of Mr Ross.

 13   PN195.

 14   Exhibit M-1 Paragraphs 7 and 8 Statement of Mr Simmons.

 15   PN215 and PN87 to 103.

 16   PN94 to 96 and PN102 to 103.

 17  2007 AIRCFB, PR975822.

 18   PN256.

 19   RE 2009/ 10104 2010 FWA 2341 PR 995293.

 20   Paragraph 142.

 21  [2009] FWA 926 (6 December 2009), PR 990411.

 22  Para 16 PR 990411.

 23   Exhibit M-1 Attachment to Statement of Mr Simmons.

 24   Exhibit M-1 Paragraphs 7 and 8 Statement of Mr Simmons.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR501173>