Australasian Meat Industry Employees Union, The v Teys Australia
[2020] FWC 6323
•11 DECEMBER 2020
| [2020] FWC 6323 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Australasian Meat Industry Employees Union, The
v
Teys Australia
(RE2020/304)
DEPUTY PRESIDENT ASBURY | BRISBANE, 11 DECEMBER 2020 |
Alleged dispute concerning site entry during increased safety around food preparation in relation to COVID-19.
Overview
[1] This Decision concerns an application by the Australasian Meat Industry Employees Union (the AMIEU to the Fair Work Commission under s. 505 of the Fair Work Act 2009 (the FW Act) for a determination and orders in relation to right of entry at the premises of Teys Australia Beenleigh Pty Ltd (Teys/the Respondent). The dispute as notified was in relation to conduct engaged in by Teys on grounds said to relate to the COVID-19 Pandemic. That conduct can be summarised as follows:
• A refusal on 3 April 2020 to allow Mr James Cottrell-Dormer, an official of the AMIEU who is a permit holder, to enter Teys’ Beenleigh premises on the basis that he had travelled overseas since 1 January 2020;
• A refusal to allow Mr Cottrell Dormer to meet with employees in an area known as the main lunchroom; and
• A proposal that meetings be conducted in a number of alternative areas.
[2] The AMIEU contends that the conduct engaged in by Teys was not a reasonable request pursuant to s. 491 of the FW Act, for Mr Cottrell-Dormer to comply with an occupational health and safety requirement that applies to the premises, and sought an order from the Commission in relation to these matters in the following terms:
“That, subject to:
i. AMIEU permit holders complying with all restrictions or practices recommended by Commonwealth/State health authorities, and
ii. the notice requirements of the Fair Work Act being complied with;
Teys Australia Beenleigh Pty Ltd must allow entry for such permit holder to the premises of its meat processing establishment.
Further, upon an AMIEU permit holder entering the site, Teys Australia Beenleigh Pty Ltd must allow such permit holder access to the meal room or any other room or area permitted by Section 492(3) of the Fair Work Act 2009, if agreement is not reached upon another room or area pursuant to Section 492(1) of the Act.”
[3] Directions were issued for the filing and service of material and the matter was listed for hearing. At the hearing the Respondent stated that it had lifted the restriction placed on entry to its plants by persons who had been overseas since 1 January 2020 based on advice from relevant authorities. The Respondent submitted at the hearing that the only issue for the Commission to determine was whether the Respondent’s requirement that discussions conducted by Mr Cottrell-Dormer temporarily take place in the alternative venues nominated by the Respondent is a reasonable request for the AMIEU to comply with an occupational health and safety requirement that applied to the premises, as provided in s. 491 of the Act. The AMIEU accepted that Mr Cottrell-Dormer had been permitted to access Teys’s Beenleigh premises and that the outstanding issue was the issue identified by the Respondent.
[4] After the matter was heard and the Decision was reserved, the Respondent, through its representative, advised a further change to its position. In correspondence with the AMIEU, copying the Commission, the Respondent advised that restrictions in relation to the main lunch room had been lifted and that officials of the Union who are permit holders exercising right of entry in accordance with Part 3 – 4 of the FW Act could have access to the that room, under conditions in relation to the wearing of personal protective equipment, which the Union had previously agreed would be complied with.
[5] The AMIEU did not dispute the statements made in the correspondence from the Company, but rather, responded by stating that the email should not have been sent to the Commission in circumstances where the evidence in the matter had closed and the Decision had not been issued. I also assume from the AMIEU’s response that notwithstanding the concession by Teys that access to the main lunchroom will be granted, it wishes that a decision be issued in relation to this matter.
[6] In my view there was nothing inappropriate about the Respondent communicating information to the Commission about the change in its position, given the nature of the issues to be determined in these proceedings and the terms of s. 505 of the Act. I am also of the view that the change in the Respondent’s position was appropriate. The evidence of Ms Julia Teys on behalf of the Respondent at the hearing, including significant concessions under cross-examination, indicated that the position adopted by Teys with respect to denying Mr Cottrell-Dormer entry to its premises on 3 April 2020 and requesting that Mr Cottrell-Dormer not access the main lunchroom, was untenable and was not a reasonable request for Mr Cottrell-Dormer to comply with an occupational health and safety requirement that applied to the premises.
[7] Section 505 of the Act provides that the Commission may deal with a dispute about the operation of Part 3-4, and that it may do so by arbitration (s 505(2)) or, as the note to s 505(2) makes clear, by mediation, conciliation, or by making a recommendation or expressing an opinion. The provision is discretionary and in circumstances where the dispute is no longer extant, it may not be appropriate for the Commission to deal with it. It will certainly not be appropriate for the Commission to make an order in such circumstances.
[8] In the present case, I do not consider that it would be appropriate to make the orders sought by the AMIEU. As previously noted, the Respondent has now indicated a change in its position adopted on 3 April 2020 with respect to Mr Cottrell-Dormer having travelled overseas and has withdrawn its previous refusal to allow the AMIEU to conduct discussions with employees in the main lunchroom. The AMIEU takes no issue with this assertion. Further, the AMIEU has not advised the Commission of any issue in in relation to entry to the Respondent’s Beenleigh operations or to the lunchroom in question, since the email from the Company was received. As a result of the concessions made by Teys and the prima facie acceptance of those concessions by the AMIEU, I am not satisfied that there is an extant dispute about the operation of Part 3-4 of the Act and I am of the view that it is not appropriate that I issue an order in relation to the matter.
[9] Further, since my decision in relation to this matter was reserved, Deputy President Colman in Construction, Forestry, Maritime, Mining and Energy Union v Cape Preston Port Company Pty Ltd 1observed that:
[17] First, I have some doubt as to whether the present matter really does involve a dispute about s 491. That provision states that a permit holder must comply with a reasonable OHS request of an employer. It is the compliance of the permit holder that is the subject of the section. There is no dispute about the fact that the union is complying with the request, and therefore, on one view, there is no dispute about the operation of Part 3-4 in respect of this provision. Section 491 does not say that an occupier cannot make a request if it is unreasonable. If a request is unreasonable, the union can ignore it. The union is complying with the ROE requirement, in part at least because it has no practical choice but to comply. However, the company makes no complaint about the union’s conduct. It is the union that says that the company’s request and requirement do not fall within s 491. If that is right, the union does not have to comply with the request; but that would not mean that the company must provide access to the transhipper.
[18] Secondly, although the union’s case is framed by reference to s 491, it appears to me that in essence it contends that the company has refused or obstructed entry to the premises, contrary to ss 501 and 502. That is a question that only a court can determine. Even if the Commission can safely answer question 1 by arbitration, the fact that the underlying concern, and arguably the real dispute, appears to be one about an alleged contravention of the Act is a consideration that favours the Commission simply expressing an opinion, because it avoids any question of the impermissible purported exercise of judicial power.
[10] Those observations are apposite in the present case. It is arguable that Mr Cottrell-Dormer did not refuse to comply with any direction of Teys in relation to accessing the site or the main lunchroom. However, short of storming the barricades in defiance of the instructions, Mr Cottrell-Dormer had no other option but compliance. It is also arguable that s. 491 and s. 505(1), read in conjunction, provide a mechanism for a permit holder to seek that the Commission deal with a dispute about whether a request by the occupier of premises that the permit holder comply with an occupational health and safety requirement that applies to premises, is reasonable, in circumstances where the permit holder acquiesces to the request but does not accept it and maintains it is unreasonable.
[11] In any event, the question of whether an order can be issued in such circumstances does not arise in the present case given that I am not satisfied that there is an extant dispute and this weighs against the exercise of the discretion to grant an order. However, as the AMIEU continues to press for an outcome from the hearing, I have decided to express an opinion about the circumstances as they existed on 3 April 2020, on the basis of the evidence at the hearing.
[12] I do so on the basis that it is regrettable that the Union was required to conduct a case in the Commission to seek to enforce its right of entry under Part 3 – 4 of the Act where Teys made a request that was not reasonable, for the AMIEU to comply with an occupational health and safety requirement that applied to the premises, and persisted with its position at a hearing.
[13] While Teys has conceded that the Union can enter its premises and the relevant lunchroom, the concession was on the basis of a change in circumstances relating to reduced restrictions with respect to COVID-19 rather than an acceptance by the Company that the position it adopted on 3 April 2020 was not a reasonable request to the AMIEU to comply with occupational health and safety requirements. Given the limited nature of the concession made by the Respondent, there is some likelihood that its conduct of 3 April 2020 and thereafter will be repeated.
[14] Further, if the Respondent had maintained its position, it is probable that I would have made the orders sought or orders substantially in those terms. My reasons for these conclusions are set out below. This approach will also avoid the possibility of the impermissible purported exercise of judicial power and is consistent with the objects of the Part in s. 480 of the FW Act to establish a framework for officials to enter premises which: balances the right of organisations to represent their members; the right of employees at work to receive information and representation from officials of organisations; and the right of occupiers of premises to go about their business without undue inconvenience.
Legislative provisions
[15] Sections 491 and 492 of the Act, which are relevant to this matter, provide as follows:
“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)).
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).”
[16] The issue in dispute as raised in the AMIEU’s application was whether the requests by Teys in relation to entry were reasonable for the Union to comply with occupational health and safety requirements. Section 505 of the Act prescribes the powers of the Commission to deal with a dispute about the operation of Part 3-4 of the Act in which s. 491 and 492 appear, and is in the following terms:
“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).”
[17] The extent of the Commission’s arbitral power under s. 505 of the Act is limited to:
• Deciding whether rights and obligations should be created;
• Forming an opinion as to future rights and obligations of the parties; and
• Expressing value judgments, for instance in relation to the criteria of fairness and reasonableness. 2
[18] It is axiomatic that there must be an extant dispute or at very least, a strong likelihood that conduct will be repeated, before the Commission arbitrates under s. 505. Notwithstanding my conclusion that there is no extant dispute in relation to entry by officials of the AMIEU to Teys’ Beenleigh operations, for the reasons set out above, I have decided to express a view about the circumstances as they existed on 3 April 2020. I turn first to the evidence in relation to those circumstances.
Evidence
[19] Teys operates a major meat processing plant that provides meat directly to Australian consumers and various supply chains. Evidence for the AMIEU was given by Mr James Cottrell-Dormer, Branch Organiser for the Queensland Branch of the AMIEU. On 31 March 2020, Mr Cottrell-Dormer emailed a right of entry notice to Teys, giving notice that he intended to exercise his right of entry to enter Teys’ site at Beenleigh on 3 April 2020. The notice identified that Mr Cottrell-Dormer proposed to attend the main lunchroom of the Beenleigh site. It is not in dispute that Mr Cottrell-Dormer holds a current right of entry permit pursuant to s. 512 of the Act.
[20] On 1 April 2020 Mr Cottrell-Dormer received an email from Teys in response to his right of entry notice. That email stated:
“Dear Secretary,
Thank you for your right of entry notice for the Teys Beenleigh site on Friday 3 April 2020.
As you can appreciate, the current pandemic has created a number of unprecedent difficulties, however Teys are doing everything possible to keep every worker safe, and the plant functioning.
This has meant a number of measures, including putting a stop to all visitors, with no exceptions. Even internal staff, from Head Office for example, are prohibited from entry. The advice that has been given is that we must assume that all visitors are infected with Covid-19, and to behave accordingly.
Nevertheless, we understand that the union wishes to have access to members or potential members and as such, would extend to you the following arrangements;
-A video conference link. If you issue us with a notice, we will display it, and allow staff access to a private area, to converse with your official during their non-working time.
-A site visit in person, in the front white house meeting room, where we will need to follow social distancing protocol. Again, we can display a notice for you to advertise the union's presence. We will require that your official maintain their distance at all times, and also wear any PPE that we issue.
We ask at this time that you work with us whilst we do our very best. Please let us know your preference, and we will make the arrangements for you.
Sincerely,
Teys Australia”
[21] Following receipt of this email Mr Cottrell-Dormer had discussions with the Queensland Secretary of the AMIEU, Mr Matthew Journeaux, and sent a letter signed by Mr Journeaux to Teys on 2 April 2020 that states:
“I am in receipt of your correspondence dated 1 April 2020.
I note your correspondence refers to the Teys Beenleigh site “...putting a stop to all visitors, with no exceptions.”
I further note that the AMIEU organiser attending the Teys Beenleigh site is a permit holder under the Fair Work Act exercising a statutory right of entry, and not a “visitor” that you have some discretion to exclude from your premises.
Mr Cottrell-Dormer has considered your proposals of meeting with employees either by way of a video-link facility, or by meeting on site at the "front white house meeting room." He advises that he does not agree to either alternative presented. He considers neither option practicable as a means of communicating with members or potential members for a variety of reasons, not least of which has been Teys' past practice of using surveillance to identify employees who speak with AMIEU organisers.
In the absence of agreement, Mr Cottrell-Dormer is entitled to hold discussions with relevant employees in the meal area identified in his entry notice (in accordance with both the Fair Work Act and the Deed of Agreement between the AMIEU and Teys Australia Beenleigh Pty Ltd made on 27 August 2018).
Mr Cottrell-Dormer will, of course, comply with all reasonable directions in relation to health and safety, including the requirement to maintain any social distancing protocol that Teys has adopted, and to wear any appropriate PPE that you may provide.”
[22] Later on 2 April 2020 Teys responded by reply email:
“Dear Mr Journeaux,
Thank you for your letter.
We do understand our liability, and that the union may wish to take this matter further, however, unfortunately, even internal visitors are prohibited from plant visits at this time.
In terms of your desire to visit the main lunchroom, please be advised that this room is no longer in use as you might have once known it. Due to social distancing requirements, there are now a number of lunch areas, marked out, for people to use on their breaks, while observing social distancing rules.
We are happy to offer you use of the front white house meeting room, as discussed, as often as you want it, but unfortunately we cannot permit you to wander around the site, and around the various areas that people are now using for breaks.
Please advise us if you are agreeable to the use of the front white house meeting room, as your access to the site depends on your agreement.”
[23] Mr Cottrell-Dormer had further discussions with Mr Journeaux. Mr Journeaux sent an email to Teys stating that the AMIEU did not consider the white house meeting room to be an acceptable alternative, and that Mr Cottrell-Dormer was prepared to confine his visit to the main meal room and comply with any social distancing or PPE protocols of Teys, and would not be wandering around the site or various areas that people were using for breaks.
[24] On 3 April 2020 Mr Cottrell-Dormer attended the Beenleigh site. Mr Cottrell-Dormer was greeted by a security guard at the site’s security gatehouse who asked him to sign in as usual, but that he also had to complete a form titled COVID-19 Prevention and Management. The security guard told Mr Cottrell-Dormer that he would call down “Danny” who Mr Cottrell-Dormer understood to be Mr Danny Cornelissen the Workplace Health and Safety Manager at the Beenleigh plant.
[25] Mr Cottrell-Dormer states the Security Guard went into the office and returned a few minutes later, and advised Mr Cottrell-Dormer that he would not be allowed onto the site because of his overseas travel since 1 January 2020, and that this rule applied to all contractors and visitors. Mr Cottrell-Dormer told the Security Guard that he was not a visitor but was entering the site under his Fair Work issued entry permit.
[26] In response to a question on the form about overseas travel, Mr Cottrell-Dormer stated that he had travelled to Vanuatu and New Caledonia from 18 to 25 January 2020. The Security Guard then performed a temperature check on Mr Cottrell-Dormer which the guard read out to Mr Cottrell-Dormer as being 36.2 degrees and recorded on the form Mr Cottrell-Dormer had completed.
[27] Mr Cornelissen then arrived at the gatehouse and reiterated to Mr Cottrell-Dormer that he would not be allowed to access the site due to his recent overseas travel. Mr Cottrell-Dormer and Mr Cornelissen engaged in a conversation regarding where Mr Cottrell-Dormer had travelled and whether there was specific government advice about people returning from those places. Mr Cottrell-Dormer states that Mr Cornelissen then made a phone call, and stated to him that he had checked the policy and anyone who had travelled overseas since 1 January 2020 needed to send a letter to Mr Brad Teys, the Respondent’s CEO, asking for access.
[28] Mr Cottrell-Dormer asked Mr Cornelissen whether he was being denied access and stated that Mr Cornelissen said he was because he had been overseas since 1 January. Mr Cottrell-Dormer states he advised Mr Cornelissen that he was willing to wear any additional PPE and comply with any reasonable practice. Mr Cottrell-Dormer states he asked again whether he was being denied access and that Mr Cornelissen said to him that: “We did have other plans in place, but once you mentioned you've travelled overseas, we can't do that.”
[29] Mr Cottrell-Dormer states he sought clarification on what these other plans were and was told that he was going to be allowed to use a room where he could have a meeting. When he asked Mr Cornelissen whether this was going to be the main lunchroom, Mr Cottrell-Dormer said he was told it would be a room he had been allocated where union representatives could come for a meeting. Mr Cottrell-Dormer did not think this was acceptable and said that this had already been communicated to Teys and that if a location couldn’t be agreed he should be given access to where people took their breaks.
[30] Mr Cottrell-Dormer states that he told Mr Cornelissen that he had previously agreed with Teys that he would only visit one lunchroom per visit to the site, and that was what he wanted to do that day. Further, Mr Cottrell-Dormer said he would comply with any workplace health and safety requirements and social distancing principles.
[31] Mr Cottrell-Dormer said that prior to the changes implemented as a result of the COVID-19 pandemic, there were three areas at the Teys Beenleigh site where employees generally spend their breaks or eat their meals. These areas are the main lunch room which could seat up to 150 people, a second, smaller meal area which is adjacent to the women's locker area, which could seat up to forty people and is referred to as the “ladies’ lunchroom” because most of the women workers, and some male workers, spend their lunch breaks in that room. There is also a demountable building a few metres away from the second meal area, which is used as a break or meal area. This demountable is the smallest of the three meal areas and can seat around thirty people when full, although Ms Teys has only ever seen a few people at a time in this lunchroom.
[32] From his experience of visiting the Teys Beenleigh meal rooms, Mr Cottrell-Dormer considers that it would have been possible for him to maintain an appropriate physical distance of 1.5 metres or more from all other people in the room, even under normal circumstances. It is Mr Cottrell-Dormer’s understanding that Teys Beenleigh has implemented physical distancing measures in the meal rooms which have reduced the number of employees ordinarily using the meal rooms. In such circumstances, he cannot see any reason why appropriate physical distancing could not be maintained while he was attending a meal room.
[33] The alternative location suggested by Teys Beenleigh was referred to as the “front White House meeting room”. Mr Cottrell-Dormer said that he is not certain what building is being referred to, but believes it may be the building which was used as the human resources office of one of the labour hire companies that supplies workers to Teys. Mr Cottrell-Dormer recollects attending an induction in that building and that the rooms were relatively small. If social distancing requirements were maintained, Mr Cottrell-Dormer suspects that it would be possible to hold discussions with only a very small number of employees.
[34] Mr Cottrell-Dormer is also concerned that some employees would be reluctant to attend a room other than a meal room, to hold discussions with the Union, due to concerns that their conversations are being observed or reported. Mr Cottrell-Dormer said Members have also reported that: there has been a staggering of breaks for employees; there are fewer tables in the meal rooms (some tables having been moved outside under marquees); and there are fewer employees using meal rooms at any one time. As he had not been allowed to enter the site, Mr Cottrell-Dormer had not personally observed these measures.
[35] With respect to matters related to COVID-19, Mr Cottrell-Dormer returned to Australia from an overseas holiday on 25 January 2020. He is not aware of any coronavirus-related restriction by health authorities (whether Commonwealth or Queensland government authorities) relating to people who were overseas since 1 January 2020. Mr Cottrell-Dormer is aware that at different dates health authorities imposed requirements upon people arriving from overseas to self-isolate for a period of fourteen days. His understanding is that this restriction initially applied to people who had been in mainland China within fourteen days prior to their arrival in Australia. On 15 March 2020, this restriction was extended to people arriving from overseas regardless of where they had travelled from.
[36] Mr Cottrell-Dormer said that on 14 April 2020, the AMIEU received correspondence from the Queensland Council of Unions. The correspondence included a letter from the Chief Health Officer of Queensland to the Queensland Office of Industrial Relations, regarding the issue of union officials exercising right of entry during the period of the coronavirus pandemic. Mr Cottrell-Dormer tendered the letter, which states that the Non-essential business activity and undertaking Closure Direction issued by the Queensland Government does not exclude union officials from attending workplaces that are operating in accordance with the Direction provided that Queensland guidelines for COVID-19 are complied with and based on the expectation that where possible, the number of officials visiting premises will be limited to assist with social distancing and reducing the risk of infection spreading. Mr Cottrell-Dormer said that at the time he made his statement to the Commission he was:
• prepared to comply with physical distancing and hand sanitation requirements;
• well with no symptoms associated with COVI D-19
• not, and had never been in quarantine nor, so far as he was aware, been subject to any requirement to undergo quarantine; and
• not a member of any of the vulnerable groups identified in that letter.
[37] Mr Cottrell-Dormer also said that on most occasions he would be the only AMIEU permit holder who attends the Teys Beenleigh site on a site visit, and that the AMIEU has no objection to confining visits to a single permit holder for the duration of the COVID-19 pandemic. Further, Mr Cottrell-Dormer said that he has no objection to complying with any occupational health and safety requirement that applies to employees entering the site, including temperature checks and any additional sanitation requirements. Mr Cottrell-Dormer stated that he has no objection to wearing a face mask while on site.
[38] Under cross-examination, Mr Cottrell-Dormer agreed that the COVID-19 Pandemic is unprecedented and that employers need to take all reasonably practical steps to maintain safety. He also agreed that he is entering other meat processing facilities. Mr Cottrell-Dormer accepted that if he attended Teys Beenleigh site he would be permitted to enter the grounds but said that he did not accept that the Company’s concerns about him entering meal preparation areas. In response to the proposition that he had been offered temporary alternatives with respect to areas to conduct meetings with members, Mr Cottrell-Dormer said that those alternatives are not reasonable. Mr Cottrell-Dormer also said that if he was excluded from areas where employees take their breaks employees would need to come to a particular area. Mr Cottrell-Dormer also maintained that open air marquees were no safer for him to enter than the designated lunch room and raised issues of the suitability of such facilities for employees taking their meal breaks.
[39] Evidence was given for the Respondent by Ms Julia Teys, its Group Work Health and Safety Manager. Ms Teys is a senior decision maker for Work Health and Safety matters at Teys Australia generally, and in relation to the SARS-CoV-2 pandemic (“Pandemic”) prevention and, management policy specifically. Ms Teys said that the Company operates a critical business and must do everything it can to avoid any of its processing plants being shut down during the Pandemic. In this regard, Ms Teys said that at the commencement of SARS-CoV-2 Pandemic, Teys Australia took a large number of steps to protect the health and safety of employees including:
• imposing restrictions on visitors to all Teys Australia facilities including internal and external visitors (Ms Teys cannot enter any plants at this time);
• initiating social distancing requirements in all areas where people may congregate, including meeting rooms and meal areas;
• assigning seating for meal areas to mitigate cross-contamination between working groups, and to enable rapid contact tracing if someone tested positive for SARS-CoV-2 or was identified as a close contact of someone who had tested positive for SARS-CoV-2;
• erecting temporary lunchrooms (marquees) so the Respondent could ensure social distancing, assigned seating and employees could eat in covered, well-ventilated area; and
• staggering break times to reduce the risks created by close contact with others.
[40] Ms Teys said that when Mr Cottrell-Dormer requested access at the Beenleigh plant, site management offered the following alternatives in line with our SARS-CoV-2 prevention and management strategies:
• a video conference link, allowing employees access to a private area to hold conversations with him during their non-working time; and/or
• the use of the training room in the building called the “the White House”.
[41] According to Ms Teys’ evidence, the White House is located approximately 30 metres from the main security gate and is much closer to the security gate than the room referred to as the main lunchroom. The Training Room is approximately 16 square meters in size and can safely hold four people who are socially distancing, at any one time. The main lunchroom is a hygiene-sensitive environment where employees prepare food and drinks for human consumption on benchtops and via the use of supplied food preparation equipment. It is critical that viral pathogens are prevented from entering this area.
[42] Ms Teys said that in the event a visitor informed the Company that they had tested positive for SARS-CoV-2, or had been identified as a close contact of a person who has tested positive for SARS-CoV-2, the Company would need to immediately begin contact tracing. If an AMIEU official held discussions in the Training Room, the Company would be able to rapidly identify all those who were potentially exposed because they would be sighted upon entry to that dedicated room during the union official’s visit. It would be far more difficult to identify all the people potentially exposed by a visitor in the main lunchroom because a much larger number of employees would be walking in and out of that room during the relevant period.
[43] Ms Teys also said that as the SARS-Cov-2 situation continues to evolve, the Company will continue to review all safety measures and practices in line with guidance from the Commonwealth and State health departments. It is Ms Teys’ understanding that the Company is willing to allow the officials of the AMIEU to either:
• access a dedicated, open-air marquee immediately adjacent to the main security gate, erected for the purposes of the Applicant holding discussions with employees; or
• enter the dedicated new lunchroom marquee which is directly next door to the main lunchroom.
[44] Further, Ms Teys said that she is aware that the Union has made a number of statements to the media and that the Union would like plants to be closed down. The Respondent has put measures in place to reassure staff, the public and customers that the Company is doing everything it can to keep its people safe and the plant open. Ms Teys maintained that the restrictions around access to the main lunchroom are temporary and reasonable given the unprecedented Pandemic.
[45] Under cross-examination, Ms Teys accepted a proposition from the Counsel for the CFMMEU that it was not possible to completely eliminate all risks in relation to the Pandemic. Ms Teys agreed that a worker may be exposed to the virus from a family member if they had close contact, and that Teys had not done anything to ascertain what the family members of workers had been doing during the Pandemic.
[46] Ms Teys also accepted that it was common for family members of workers to work at other meat plants and that it was possible that workers at Teys had family members working at other plants not operated by Teys. Ms Teys conceded that Teys had not asked any employees whether they had recently travelled overseas, and also conceded that Teys had not asked workers whether or not their families were asymptomatic.
[47] Ms Teys accepted the proposition that a number of workers at the Beenleigh plant were labour hire workers but did not agree that this meant they were visitors to the plant because they were under the direction of Teys management. Ms Teys said that labour hire workers were different to visitors, such as Mr Cottrell-Dormer, because they were regularly required to comply with day to day procedures and to have regular temperature checks. Ms Teys accepted that Mr Cottrell-Dormer was prepared to comply with Teys directions and had his temperature taken upon seeking to enter the Plant, and that Mr Cottrell-Dormer was going to access some, but not all, of the facilities that labour hire workers would also access.
[48] Ms Teys did not accept that the only difference between Mr Cottrell-Dormer accessing the open air marquee and the main lunchroom was that he would have to enter through the doorway, and said the main difference was that it was an open air marquee. Ms Teys accepted that the marquee was surrounded by buildings, and that air would not flow between the buildings.
[49] Ms Teys also accepted that it was not correct to say that Teys was not allowing any visitors at the site and accepted that a Teys HR person would visit the site. Further, Ms Teys accepted that there was often a high turnover of employees and that there could have been new employees who commenced employment since the start of the pandemic, and that she could not say that there had not been a new employee starting with Teys who had come from another plant.
[50] Ms Teys did not accept that there was no difference between Mr Cottrell-Dormer visiting the Teys Plant having been at other plants, and a new employee starting who had previously worked at another plant. Ms Teys said this was because new employees would have to go through a number of different processes but conceded that this did not include taking a COVID-19 test.
[51] Ms Teys said that 40 people could be seated in the main lunchroom with social distancing, and that there was a greater risk if Mr Cottrell-Dormer was in the room even with social distancing, because it was an enclosed room and that there were more surfaces people would make contact with.
[52] Ms Teys agreed that if Mr Cottrell-Dormer entered the lunchroom through the back door he would only have to touch one door handle to enter the room and could sit at a table next to the door. In response to a question from the Union’s counsel about whether Ms Teys would be happy to assign Mr Cottrell-Dormer that seat, Ms Teys said she would much rather him be in the open marquee, but that it would be possible to allocate Mr Cottrell-Dormer a seat in the lunchroom. Ms Teys also accepted that if this were to occur, the door handle and the table Mr Cottrell-Dormer would be sitting at could be disinfected.
[53] Ms Teys was referred to the letter from Dr Jeanette Young, Queensland’s Chief Health Officer tendered by Mr Cottrell-Dormer and the following guidelines for union officials attending workplaces set out in that letter to the effect that officials:
• Maintain 1.5 metres of personal distance, where possible, and practice good hygiene;
• Are well, free of any symptoms or fever;
• Are not in quarantine during the time of the visit; and
• Are not from a vulnerable group (for example, age 65 or over with one or more chronic diseases, or aged 70 years of over) or Aboriginal and Torres Strait Islander aged 50 or over with one or more chronic diseases.
[54] Ms Teys accepted that the advice meant there was no difficulty with union visits provided officials were abiding by social distancing measures and conceded that Teys was not following this policy. Ms Teys agreed with the proposition put by Counsel for the AMIEU that no government agency had advised Teys that they could not have a union official attend in the main lunchroom.
[55] Ms Teys was cross-examined about the location of another open-air marquee that was proposed to be set up for the purposes of workers being able to have conversations with a union official and agreed that it was proposed to be located close to the main security gate away from the main plant. Ms Teys did not agree with a proposition that Teys expected employees to go and eat their lunch in an open marquee that was located close to the road where cattle trucks drove past, and said that the open air marquee was not intended to be a lunch room but a place workers could meet with their union official. Ms Teys accepted that workers could only see an AMIEU official during their lunch break but could not say whether workers could eat their lunch in the open-air marquee or not.
[56] In relation to the fact that the training room in the “White House” could only accommodate three other people, Ms Teys also accepted that it would take a few days for Mr Cottrell-Dormer to speak to every worker. Ms Teys further accepted it was possible a worker would have to take off all of their PPE to speak to a union official at either the training room or the open air marquee located near the security gate, but did not agree that a worker could not remove their PPE, attend a meeting with their union official, and return for work within 30 minutes.
[57] Ms Teys was asked whether she knew, at the time Mr Cottrell-Dormer was refused entry to the plant on 3 April 2020, that Mr Cottrell-Dormer has previously attended the main lunchroom on 21 February 2020 and 24 February 2020, and said she did not know this. Ms Teys accepted that if there was some risk in Mr Cottrell-Dormer attending because he had been overseas, the fact he had been let in previously showed there was no additional risk in April when he was refused entry.
[58] Ms Teys said that Teys’ refusal to allow entry to Mr Cottrell-Dormer related to both process and managing risk. Ms Teys agreed that there was a higher standard for Mr Cottrell-Dormer than labour hire workers. In relation to Teys’ process at its Beenleigh plant for truck drivers, Ms Teys said there was a process for delivery truck drivers who were not being exposed to workers, and that there was a single point of contact. It was put to Ms Teys that truck drivers could access all of the facilities including the lunchroom while they were at the site and Ms Teys said she was not sure about this.
[59] Ms Teys said that it was not her decision to refuse Mr Cottrell-Dormer access to the main lunchroom and that the refusal on 3 April 2020 came from the General Manager. Later Ms Teys said that local management made decisions and advised her of those decisions. In response to a question about why security guards were not treated the same as Mr Cottrell-Dormer, Ms Teys said security guards were contractors.
[60] Ms Teys also accepted that the lunchroom was on the opposite side of the building to food preparation services and that the distance between the lunchroom entry door and food preparation surface was not less than 10 metres. Ms Teys agreed that to disinfect a table and wipe down a door handle would not take that long, and that this is all that would have to occur if Mr Cottrell-Dormer was allowed to sit at a table in the main lunchroom, unless Mr Cottrell-Dormer had contact with any other surfaces between the door and sitting at the table. Ms Teys accepted that Mr Cotrell-Dormer had agreed to ensure he would not have any such contact.
[61] Ms Teys also accepted that her evidence in her written statement that the Union would like the plant to be shut down was hearsay, and that she had heard of this from a worker at another plant.
[62] In response to a question from me, Ms Teys clarified her evidence that assigned seating meant that there were markings to show workers how to maintain social distancing, and not that there were allocated seats for each worker. Ms Teys agreed that there was nothing to stop workers moving from different crib rooms.
[63] Ms Teys also said that she could not say truck drivers were not also accessing the crib rooms. Ms Teys also said the crib rooms were being disinfected every day and agreed with a proposition put by me that disinfecting after Mr Cottrell-Dormer had visited would be no different to the disinfecting that was already occurring each day.
[64] Ms Teys also accepted she would know if Mr Cottrell-Dormer was in a particular crib room and who else was in the crib room with him. Further, if Mr Cottrell-Dormer was in a crib room Ms Teys agreed that she would be able to contact him should an incident occur, and that having to contact Mr Cottrell-Dormer for contact tracing following any incident would be no different to contacting any other worker. Ms Teys also accepted a proposition that Mr Cottrell-Dormer attending the crib room was no different than other worker who had been going about their business in the community.
Submissions
[65] The Applicant submitted that the main issue in dispute is whether the refusal by the Respondent to allow entry to Mr Cottrell-Dormer on 3 April 2020 and to refuse to allow Mr Cottrell Dormer to use the main lunch room for the purpose of meeting with his members, was a “reasonable request by the occupier…to comply with an occupational health and safety requirement that applies to the premises…” under section 491 of the Act.
[66] The Applicant also submitted that while s. 491 of the Act requires that a permit holder comply with any reasonable requests to comply with an occupational health and safety requirement that applies to the premises, the requests made by Teys in relation to Mr Cottrell-Dormer’s entry to the premises were not reasonable. In this regard it was submitted that Mr Cottrell-Dormer did not pose a greater risk than that posed by any employee, contractor or visitor, on the basis of his overseas travel, because Mr Cottrell-Dormer had been in Australia for approximately 65 days prior to 3 April 2020, and there were no travel restrictions at the time he had arrived back, with restrictions being imposed in March 2020.
[67] Reference was also made to the letter from the Chief Health Officer of Queensland tendered by the Applicant, which stated it was still acceptable for permit holders to enter premises provided that they comply with the conditions set out in that letter. Mr Cottrell-Dormer had indicated an intention to comply with those conditions and to wear any personal protective equipment required by the Respondent.
[68] The Respondent submitted that it is in a critical business which provides essential food supplies directly to Australian consumers and various supply chains. Risks to employees and the risk of inadvertent introduction of Coronavirus into its facilities must be minimised. Media interest in Coronavirus clusters in meatworks is high and visitors with “mischievous intent” could cause the temporary shutdown of the business and or put services and/or client contracts at risk. The pandemic was also said to be an unprecedented event which had not been contemplated by the legislature during the drafting of right of entry provisions in the Act.
[69] The Respondent said that as at 3 April 2020 and at the date of the hearing in relation to this matter, it was not allowing any visitors – including those from other Teys facilities and the owners of the business – to enter any of its production facilities, in order to minimise the risk of Coronavirus being introduced to any of its plants during the Pandemic. The Respondent also made the following submission in relation to the AMIEU:
“The AMIEU has made it clear that it believes that plants should be closed, and the AMIEU has recently made comments to the media. Unfortunately, there is very little the Respondent can do in such circumstances. In this highly unusual environment, the Respondent is dealing with two separate and distinct risks when the Applicant’s officials visit their plants. Firstly, there is the actual risk of contamination and, secondly, there is the perceived risk of contamination – or other problems – which the Applicant can freely create without facing any risk to themselves. In the face of statements made to the media which appear designed to close plants, the Respondent needs to be able to reassure its staff, the public and its customers.”
[70] As previously noted, at the point this matter was heard, the Respondent stated that it has lifted the restriction placed on entry to its plants by persons who had been overseas since 1 January 2020 based on advice from relevant authorities. This restriction had been placed on all visitors to its plants and not just Union officials seeking entry pursuant to the Act. The Respondent submitted that the only issue for the Commission to determine is whether the Respondent’s requirement that discussions temporarily take place in the dedicated training room or the alternative venues nominated by the Respondent was reasonable. The Respondent submits that requiring the Applicant to temporarily use the training room (rather than the main lunchroom) for the purposes of holding discussions with employees is a reasonable requirement, for the following reasons:
• The training room is located significantly closer to the main gate than the main lunch room resulting in a shorter path for potential viral shedding and fewer opportunities for cross-contamination to occur;
• The main lunch room is a hygiene sensitive environment where employees prepare food and drinks for human consumption on benchtops via the use of supplied food preparation equipment and it is critical that viral pathogens are prevented from entering the area, in contrast with the training room which does not contain food preparation areas or equipment;
• Following the departure of a Union official the area will need to be fully sterilised and it will take 30 minutes to sterilise the training room and 2 – 3 hours to sterilise the lunch room with no employees being able to enter during this process, causing disruption and inconvenience;
• In the event a visitor informs the Respondent that they have tested positive for COVID-19 or been identified as a close contact of someone who has tested positive, the Respondent will need to assist with contact tracing which will be easier when a small number of persons who enter the training room to talk to the Union official will be sighted and able to be identified as opposed to the large numbers of employees who use the lunch room.
[71] The Respondent submitted several alternatives to facilitate a meeting during the COVID-19 pandemic such as videoconferencing or a dedicated open-air marquee to allow for the meetings to still occur between the union representative and the Respondent’s employees. If the Union still insisted on conducting meetings where employees take their meals, the Respondent stated that it would not object to the Union entering the marquee erected immediately adjacent to the main lunch room and already used by employees solely for the purpose of having their meals. These alternatives were submitted to be reasonable in all of the circumstances, until the serious risks posed by the Pandemic have abated.
Consideration
[72] It is not in dispute that Mr Cottrell-Dormer is a permit holder for the purposes of entry to premises under Part 3-4 of the Act. I accept that the refusal by the Respondent to allow Mr Cottrell Dormer to enter its Beenleigh site on 3 April 2020 and the refusal to allow Mr Cottrell-Dormer to access the main lunchroom for discussions with employees were requests by it as the occupier of the relevant premises, for Mr Cottrell-Dormer to comply with an occupational health and safety requirement that applies to the premises.
[73] I do not accept that either request was reasonable. In all of the circumstances as they existed on 3 April 2020, there was no reasonable basis for the refusal to allow Mr Cottrell-Dormer to enter the Beenleigh site on 3 April 2020, on the ground that he had travelled to Vanuatu and New Caledonia from 18 – 25 January. Firstly, the policy was not consistent with any Government directive. Secondly while I accept that an employer is entitled to put in place occupational health and safety policies which exceed minimum requirements, there is no evidence that Teys had a cogent or coherent policy in relation to access to its sites by persons who had undertaken overseas travel. Ms Teys said that she is responsible for workplace health and safety matters in her evidence in chief and then under cross-examination, said that decisions in relation to such matters are made by local management who advise her of such decision.
[74] The lack of cogency or coherence is also evidenced by the inconsistent application of the policy. In this regard, Ms Teys conceded that no inquiries had been made of employees as to whether they, or their family members had travelled overseas at that time and that the Company would not know whether this was the case. Ms Teys also conceded that similar enquiries were not made of contractors or truck drivers and that truck drivers may use facilities on its sites including lunchrooms. The arbitrary nature of the limitation on Mr Cottrell-Dormer’s entry on that date is further indicated by his uncontested evidence that he was informed that any person seeking to enter Teys’ facilities, who had travelled overseas since 1 January 2020, needed to send a letter to the Company CEO Mr Brad Teys, asking for access. The process for making such an application and the criteria against which it would have been considered, were not in evidence. Thirdly, Mr Cottrell Dormer had attended the main lunchroom on 21 February and 24 February without this requirement being in place, a matter about which Ms Teys was not aware. There was no evidence of any change in position since February to justify the new policy.
[75] The direction that Mr Cottrell-Dormer not be permitted to access the main lunchroom, was also not reasonable. In reaching this conclusion, I accept that the Respondent is engaged in the critical business of supplying essential food supplies directly to Australian consumers and various supply chains, and must manage the risk of inadvertent introduction of COVID-19 into its operations. I also accept that the Respondent has not engaged in a blanket refusal to allow access to its premises and proposed alternative locations for discussions to be conducted by Mr Cottrell-Dormer, once it had withdrawn its opposition to Mr Cottrell-Dormer entering its premises at all.
[76] However, the Respondent’s right to go about its business without due inconvenience – even in the context of a global pandemic – must be balanced against the right of the AMIEU to represent its members, hold discussions with employees who are not members and investigate suspected contraventions. The legislature has established that the default location for such discussions, in the absence of agreement between the union seeking to hold discussions and the occupier of the premises, is the room where persons who may participate in discussions ordinarily take meal or other breaks and is provided by the occupier for that purpose.
[77] In the absence of agreement the Commission has no general discretion to rule on the comparative reasonableness of particular locations and determine that a union seeking to hold discussions in a room or an area which meets the description in the s. 492, should accept an alternative room offered by the occupier of the premises. The only exception is where a refusal to allow a permit holder to conduct discussions in a room or area which meets the description in s. 492, is where the refusal of a particular room is a reasonable request that the permit holder comply with an occupational health and safety requirement that applies to the premises.
[78] Whether a request is reasonable, will depend on all of the circumstances. There is no doubt that the need to protect persons in a workplace and the public interest in terms of the product or services the workplace distributes or provides, are relevant to reasonableness. However, reasonableness must also be considered in light of the need to strike an appropriate balance between the interests identified in the objects of the Act.
[79] There are good reasons for discussions of the kind provided for in Part 3 – 4 of the Act to occur in rooms or areas where employees take their meals. This obviates the need for employees to have to seek out a union representative in a specifically designated room or area and concerns employees may have about being identified as having sought information or representation from a union. An arrangement for video conferencing facilitated by the Respondent suffers from the same vice. It follows that there must also be a good reason to impose an alternative room or area, on the basis of an occupational health and safety requirement.
[80] Regardless of the room utilised by the Union, tracking of those who entered it at the relevant time will be possible. An open marquee where employees are taking meals is no safer given it has sides and the area in which it would be located is between buildings where air would not flow as conceded by Ms Teys. The dedicated marquee proposed by the Respondent is close to where cattle trucks pass and unsuitable for employees to take their meals in. The fact that meal breaks are the only times that the relevant discussions are permitted, weighs against the reasonableness of the request.
[81] Upon entering the lunchroom a permit holder would be required to touch a door handle and a chair and table at which the permit holder would be seated. The permit holder could be allocated a particular seat at a particular table. Other than the door handle, the surfaces which would be required to be cleaned are the same surfaces that would be cleaned if the discussions were conducted in a marquee as presumably the permit holder would be granted use of a chair and table for this purpose. The cleaning of a door handle is not onerous and would occur in any event in the normal course of the Respondent conducting its operations during a global pandemic. Notwithstanding the submission of the Respondent that cleaning and sterilising the meal room would take 2 – 3 hours Ms Teys conceded that this was not the case and the cleaning would not be extended by virtue of a permit holder accessing the lunchroom.
[82] The fact that permit holders may have visited other meat works or workplaces raises no additional risk given that the same could be said of the families and other contacts of the Respondent’s own employees and contractors, as was conceded by Ms Teys. Further, the meal preparation surfaces in the lunchroom are a sufficient distance from where a permit holder would enter and sit in the room, to mitigate risk and would be cleaned in any event by virtue of the Respondent’s cleaning regime.
[83] I also note Mr Cottrell-Dormer’s undertakings, both to the Respondent prior to the hearing, and in his evidence to the Commission, that he would comply with all health and safety requirements including but not limited to those set out in the correspondence from the Queensland Chief Medical Officer and any additional requirements that the Respondent may impose, such as wearing a mask or sitting in a particular seat at a particular table. I further note that Mr Cottrell-Dormer voluntarily undertook that he would seek to enter only one meal area on each visit, further mitigating risk. I have no reason to doubt, from my considerable dealings with the AMIEU over many years, that Mr Cottrell-Dormer, and indeed any official of the AMIEU would fail to comply with such undertakings.
[84] Finally, I turn to the insinuation in the evidence of Ms Teys and the submissions for the Respondent, that the AMIEU would engage in conduct involving contamination of the Respondent’s product or the perception of contamination. The insinuation is baseless and little more than unsubstantiated hearsay. If such an insinuation was to be made, it should have been supported by cogent evidence given its seriousness. I note that the Respondent did not even tender the media articles it asserted provided a basis for this insinuation and in my view it should never have been made.
Conclusion
[85] For the reasons set out above, it is my opinion that the conduct of the Respondent on 3 April 2020 in denying entry to Mr Cottrell-Dormer, and subsequently seeking to restrict his access to the main lunchroom was not a reasonable request by the Respondent as an occupier of premises, for Mr Cottrell-Dormer to comply an occupational health and safety requirement that applies to the premises.
[86] While I have not made an order in the present case, if the conduct set out above is repeated so that there is a dispute, the AMIEU is free to make a further application.
DEPUTY PRESIDENT
Appearances:
Mr T O’Brien of Counsel with Mr C Buckley of the AMIEU.
Mr D Bates of Workforce Engagement Solutions with Ms S Taylor for Teys.
Hearing details:
25 May.
2020.
Telephone.
Printed by authority of the Commonwealth Government Printer
<PR724855>
1 [2020] FWC 4502.
2 Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd (2017) 263 IR 67; [2017] FWCFB 217 at [19].
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