Australasian Meat Industry Employees' Union v Goodchild Pty Ltd
[2011] FWA 8228
•6 DECEMBER 2011
[2011] FWA 8228 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Australasian Meat Industry Employees' Union
v
Goodchild Pty Ltd
(RE2011/3351)
COMMISSIONER CLOGHAN | PERTH, 6 DECEMBER 2011 |
Application to deal with a right of entry dispute.
[1] This is an application by the Australian Meat Industry Employees’ Union (AMIEU) (“the Applicant”) for Fair Work Australia (FWA) to deal with a right of entry dispute pursuant to s.505 of the Fair Work Act 2009 (“the FW Act”).
[2] The AMIEU is in dispute with Goodchild Pty Ltd (“the Employer”) and seeks the following orders pursuant to subsection 505(2) of the FW Act:
● that AMIEU officials may hold discussions with any person who agrees to participate in such discussions in the meals room/s of the plant; and
● the plant management representatives do not position themselves within the facilities in such a fashion that interferes with discussions or is intended to intimidate or discourage persons from participating in such discussions.
[3] The application was the subject of an inspection and conference on site at the Employer’s abattoir in the South West of Western Australia, and secondly, a hearing in Perth on 11 October 2011.
[4] The AMIEU was represented by Mr C Buckley, Industrial Officer. Evidence was given by Mr G Smith, Branch Secretary and Mr J Da Silva, Organiser, South Australia and Western Australia Branch of the AMIEU.
[5] The Employer was represented by Mr G Johnston, in-house counsel for the Australian Meat Industry Council (AMIC). Evidence for the Employer was given by Mr J Prout, Plant Manager of the Employer’s abattoir and Mr M Thomas, Member Services Manager, AMIC.
[6] The application was the subject of procedural directions. The material provided by both parties, as a result of Directions, was incorporated into proceedings and relied upon. Having received this material, heard submissions and evidence, I reserved my decision on the application. This is my decision and reasons for decision.
RELEVANT BACKGROUND
[7] The Employer has been operating an abattoir at Australind, near Bunbury in the South West of Western Australia since 1979.
[8] At the abattoir there are approximately 40 persons directly involved in meat production/processing. Of the approximate 40 persons, three (3) persons are described as managerial/supervisory. Of the remaining 37 persons, 13 are employed by Southern Livestock Processing Pty Ltd as slaughterers on contract to the Employer. The remaining 24 labourers are predominately backpackers or itinerant workers.
[9] It was uncontested that officials of the AMIEU, relevant to this application, were permit holders within the meaning of Part 3-4 of the FW Act and able to access the Employer’s premises for the purpose of holding discussions with employees, who it is entitled to represent and who wish to participate in those discussions.
[10] The Employer asserts that between commencing operations in 1979 and 2010, no person or official from the Western Australian branch of the AMIEU attended the abattoir for the purpose of holding discussions with the employees. Mr Smith is unable to dispute this assertion and can only give evidence since the amalgamation of the Western Australian and South Australian branches.
[11] The AMIEU asserts, but the Employer denies, that an AMIEU official and permit holder attended the abattoir in late 2010 pursuant to right of entry provisions in the FW Act. The AMIEU was unable to produce any direct evidence of the visit and Mr Prout gave evidence that the “Visitors Book” does not record such a visit.
[12] On 13 January 2011, the Employer received the requisite right of entry notice from a permit holder and official of the AMIEU, to access the abattoir for the purpose of discussions with the relevant employees. The discussions took place in the Employer’s lunch room.
[13] There was no direct evidence from the AMIEU official and permit holder who attended the Employer’s premises on 13 January 2011, or from any employees present at the discussions. Mr Prout gave evidence that, as part of the AMIEU discussions with employees, the permit holder attempted to sell work knives. Following the AMIEU official’s visit, Mr Prout gave evidence that he received complaints from three employees to the effect that the discussions disturbed their meal break and they objected to the AMIEU’s attempt to sell knives.
[14] Following the requisite right of entry notice, the AMIEU next visited the Employer’s abattoir on 16 February 2011. Prior notice was given to employees and on attending the abattoir, the two AMIEU permit holders were requested to go to the Employer’s training room to hold discussions with the employees.
[15] One of the permit holders, Mr Da Silva (the other, Mr Ahu has since resigned from the AMIEU) responded that such a request to use the training room was “unreasonable” 1. Both permit holders left the abattoir without having discussions with the relevant employees. It is notable that this was Mr Da Silva’s first visit to the abattoir2 and his rejection of the Employer’s request to use the training room as “unreasonable”, was done without visiting the training room3.
[16] On or about 28 July 2011, Mr Smith forwarded correspondence to the Employer to the effect that AMIEU permit holder(s) intended to access the abattoir on 4 August 2011 and have discussions with employees in the lunch room. Should the Employer have any concerns with this arrangement, it was asked to contact the AMIEU. In the correspondence, Mr Smith referred to what he described as the “previous practice” of the AMIEU speaking to members and potential members in the lunch room. The correspondence, in part, quotes from the Full Bench in [2011] FWAFB 3847 Australian Meat Industry Employees’ Union v Dardanup Butchering Company Pty Ltd which was handed down on 17 June 2011.
[17] On 28 July 2011, at 12:40pm, Mr Prout had two telephone conversations with Mr Smith and Mr Prout’s contemporaneous file note states that the training room would be available for the intended visit and a notice would be placed on the notice board to this effect. Mr Smith also recorded a contemporaneous statement of the two telephone conversations.
[18] On 1 August 2011, Mr Prout authored a notice to all employees of the Employer stating that an official of the AMIEU would be at the abattoir on 4 August 2011 and that the training room would be available for discussions “or purchase [of] equipment” 4.
[19] On 2 August 2011, the AMIEU made application to FWA to deal with a right of entry dispute. The AMIEU state, in the application, that the dispute is about:
“...AMIEU officials have been requested to use a particular room for the purpose of holding discussions with employees.
AMIEU officials have previously been able to access the areas where employees have their meals.
We do not agree with these new limitations imposed upon us.”
[20] The AMIEU set out eight (8) grounds upon which it relies upon in seeking the orders.
[21] Between 16 February 2011 and the lodging of the application on 2 August 2011, AMIEU officials and permit holders did not visit the abattoir and exercise their right to discussions with relevant employees.
[22] Prior to the hearing on 11 October 2011, the AMIEU sought right of entry access to employees on 5 September 2011. While there is dispute between the parties as to exactly what was said, I consider a fair summary is to say that the Employer requested the two permit holders to have discussions in the training room and the AMIEU permit holders requested to have discussions in the lunch room. The Employer subsequently advised the two officials that they could choose between the training room and an enclosed barbecue area which is approximately 50 metres from the lunch room. The AMIEU permit holders chose the barbecue area and discussions with employees took place during the lunch break.
[23] On the next occasion, 12 September 2011, an AMIEU permit holder attended the abattoir and the only evidence I have of that visit was that the permit holder went direct to the barbecue area but did not remain for discussion with employees at the designated lunch break. While evidence was given of a further right of entry access on 5 October 2011 by the same AMIEU official who visited on 12 September 2011, there was little evidence except to say that she went to the barbecue area 5.
RELEVANT LEGISLATIVE PROVISIONS
[24] Right of entry is dealt with in Part 3-4 of the FW Act. Relevant to this application, subdivision B of Division 2 of Part 3-4 of the FW Act provides as follows:
[25] Section 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.
[26] Section 490 - When right may be exercised
(1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.
(2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.
(3) The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.
[27] Section 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.
[28] Section 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.
[29] Finally, the objects of Part 3-4 of the FW Act are set out in s.480 as follows:
“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.”
APPLICANT’S CASE
[30] Reduced to its simplest form, the AMIEU submits that the Employer has a right under the FW Act to make a reasonable request for the permit holder, when entering premises for the purpose of holding discussions with employees, to conduct those discussions in a particular room or area. In the first instance, the Employer has requested the permit holder to hold discussions in its training room, and with the passage of time, now requests the permit holder to choose between the training room, and what is known as the barbecue area.
[31] The AMIEU contend that the Employer’s request is unreasonable for the following reasons:
● the AMIEU permit holder was allowed on at least one occasion to hold discussions in the lunch room;
● no complaint has been raised with the AMIEU regarding the conduct of its permit holder when holding discussions in the lunch room;
● the Employer did not provide a reasonable explanation to the AMIEU permit holders on 13 February 2011 as to the request for them to use the training room to hold discussions;
● the Employer did not provide a reasonable explanation to Mr Smith, AMIEU Branch Secretary, for refusing access to the lunch room and requesting that the permit holders use the training room for discussion. The only explanation provided by the Employer, as asserted by the AMIEU, was that “it was easier for us [the Employer]”;
● the Employer’s reasons (as now advanced) for the permit holders to use the training room to hold discussions - concerns by employees - were only raised after receiving advice from AMIC representatives and the filing of the application ; and
● finally, the Employer has a belief (in the AMIEU’s view a mistaken belief) that it has an unqualified right to request the permit holders to conduct discussions in a particular room or area of the premises.
[32] The AMIEU cite a number of authorities to support their case to which I will return to later.
[33] In summary, the Applicant argues that the Employer’s request to use the training room is not a reasonable request.
EMPLOYER’S CASE
[34] The Employer submits that its request for AMIEU permit holder to use the training room or the barbecue area is reasonable for the following reasons:
● there is little or no history of the AMIEU exercising right of entry provisions on the premises since its opening in 1979 until early 2011;
● the AMIEU permit holder, when accessing right of entry provisions for discussions in the lunch room in January 2011, “went beyond the discussion role without the authority of the occupier” 6 and engaged in the selling of workplace knives to employees;
● following the accessing of right of entry provisions on 13 January 2011, there were adverse comments from employees regarding the selling of knives;
● a number of employees who use the lunch room have signed a petition, post the application to FWA, objecting to the lunch room being used by AMIEU permit holders to hold discussions;
● an AMIEU permit holder determined that the Employer’s request for permit holders to use the training room deemed it an unreasonable request without viewing its location and the suitability for discussions; and
● there is no “history” of the Employer not facilitating notices of impending visits by permit holders, discouraging employees from attending or intimidating those participating in union activities and additionally, both the training room and barbecue area are easily accessible and private.
CONSIDERATION
[35] The correct starting point, in my view, should always be the words in the statute which in this case, turn on a permit holder complying with a “reasonable” request to hold discussions in a particular room or area of the premises.
[36] The Australian Concise Oxford Dictionary defines “reasonable” as:
● having sound judgement, sensible, moderate, not expecting too much;
● in accordance with reason, not absurd; within the limits of reason; not greatly less or more than might be expected...fair”.
[37] To simplify the dictionary definition, I consider the meaning of the word “reasonable” in an application such as this, as appropriate, fair and sensible in the circumstances.
[38] The AMIEU firstly submits that the Employer’s request was unreasonable based on the premise that, on at least one previous occasion, an AMIEU permit holder was allowed to use the lunch room. The Applicant is putting, as part of its overall submission, that a precedent has been established and should not be disturbed. A precedent of one event does not establish, in my view, the “norm”. Further, notwithstanding that right of entry discussions occurred in the lunch room on one previous occasion, it would be unreasonable to deny the Employer the opportunity to review the outcome of that visit objectively.
[39] The second ground upon which the Applicant relies is to assert that the Employer’s request was unreasonable in view of the fact that the AMIEU did not receive any complaints after its permit holders visited on 13 January 2011. Such absence of complaints to the AMIEU is not evidence of an unreasonable request by the Employer for the permit holders to use the training room.
[40] The AMIEU asserts that the Employer did not provide a reasonable explanation why it wanted the permit holders to use the training room and not the lunch room. The evidence of Mr Da Silva is simply that he, and the other permit holder, were asked to use the training room by Mr Prout for discussions; the permit holders responded that this was unreasonable 7. Subsequently, a heated conversation ensued which included a telephone call between Mr Da Silva and Mr Thomas as to whether there had been a direction issued by AMIC to its members for permit holders to use training rooms for discussions. Mr Thomas had given no direction to the Employer.
[41] Mr Prout conceded in evidence 8 that he did not raise with Mr Da Silva that he had received complaints from three (3) employees concerning the AMIEU permit holder on 13 January 2011 selling knives or their presence in the lunch room. Mr Prout gave evidence that he did not raise this issue with Mr Da Silva, and the other permit holder, for reasons of confidentiality, relevance and a previous experience in which he “dropped names and it caused greater conflict”9.
[42] Whether the displaying and selling of knives is within the definitions of “discussion”, it is arguable. However, it is uncontested that it produced three (3) complaints to Mr Prout. After receiving Mr Prout’s evidence, I find that Mr Prout had reasonable grounds to believe that he had a workplace problem to address. This problem was exacerbated by, in his evidence, that he, as the Plant Manager, was unaware that the permit holder would be attempting to sell knives in the lunch room.
[43] While Mr Prout could be criticised for not pursuing the level of discontent by further investigating the matter, I consider it fair to conclude that as the Plant Manager for 20 years and an employee at the abattoir for 30 years, he was best placed to reach the assessment that the continued use of the lunch room, in such circumstances, may lead to conflict in the workplace.
[44] Objectively considered, Mr Prout on or about 16 February 2011 attempted to balance the permit holder’s right to enter, their desire to display and sell knives and respond to complaints by employees, by requesting AMIEU officials use the training room. In reaching this conclusion, I need to state that there was no material before me to illustrate that the Employer displayed any antipathy towards the AMIEU. In fact, evidence was given that there were no other issues between the parties. To be fair to the AMIEU, they did not press at any time that the Employer was on any sort of ideological crusade.
[45] Having made the request to use the training room, Mr Da Silva and the other permit holder gave the request short shrift by dismissing the request as unreasonable. The permit holders did this without acquainting themselves with the training room. To dismiss the request in such circumstances gives ground to the suggestion, later confirmed in evidence, that for the AMIEU it was the lunch room or nothing else.
[46] Mr Buckley submits that such a request by Mr Prout that the permit holders:
“...use the training room or indeed an area other than the lunch room - whether it be the training room or the barbecue area - is not reasonable, is because that it conflicts with the legitimate interests of the permit holder and in particular the interests that the permit holder might have in recruiting members to the union. In this respect the applicant would rely upon the comments that were made in the Dardanup decision, and they're cited in particular at paragraph 26 of the full bench Dardanup decision, and it's referenced in paragraph 8 of the applicant's written submissions.” 10
[47] Having been requested to use the training room on 16 February 2011, the AMIEU did not take any action until 28 July 2011 when Mr Smith forwarded correspondence to Mr Prout in which he refers to restriction on the movements of AMIEU officials but implicitly is referring to the nomination of the training room to hold discussions. Mr Smith asserts:
“As permit holders under the Fair Work Act we have certain rights to hold discussions with employees. You are not entitled to interfere with that right.
The notion that you have the right to nominate a room at your discretion is incorrect.
...
Given that there have been no such problems during our previous visits to the lunch room, you could not have any reasonable basis for suggesting that undue inconvenience would arise in relation to future visits.”
[48] Mr Smith includes in the correspondence quotes from AMIEU v Dardanup Butchering Company Pty Ltd[2011] FWAFB 3847 (“the Dardanup Full Bench Decision”) and indicates an intention to visit the site on 4 August 2011 and hold discussions in the lunch room.
[49] Mr Prout responded to Mr Smith’s letter in two brief telephone calls. Mr Prout explained to Mr Smith that he had put up a notice to the effect that an AMIEU official would be on site on 4 August 2011 and the training room would be available. In the second telephone call, Mr Smith’s evidence was that Mr Prout said that the training room was the “easiest” for the Employer. Mr Prout did not dispute this evidence but contended that it should be considered in the context that he did not really understand the letter 11, and that it [the letter] was a “legal thing”12. Despite his position as Plant Manager, Mr Prout gave evidence that he has little industrial relations experience, the Employer does not have a full time human resources practitioner and on that particular day, he was dealing with a ruptured pipe which posed an environmental issue and wanted to “fob off” Mr Smith and get back to the operational problem.
[50] The fifth ground advanced by the AMIEU is the assertion that the request by the Employer to use the training room was made because of “concerns” of employees was only raised by the Employer after receiving advice from AMIC and the filing of this application. These facts are not in dispute. However, the facts, of themselves, do not tend to suggest that the Employer’s request on 16 February 2011 is unreasonable.
[51] The AMIEU’s proposition, in summary, is that I should not accept the “concerns” of employees because those concerns came to light after the filing of this application and on advice. That proposition has considerable attraction but if I am to consider the legitimate interests of employees which was endorsed in the Dardanup Full Bench Decision, and set out in Somerville Retail Services Pty Ltd v AMIEU[2011] FWAFB 120 (“Somerville”), then it would only be fair for the Employer to take reasonable steps to discover the views of its employees at some time.
[52] Further and more importantly, in my view, it is for the Tribunal to determine whether, at the time the Employer made the request to the permit holders (16 February 2011) that the request was reasonable in all the circumstances. If a line is to be “drawn under” particular relevant actions, it could be just as fair and equitable to draw it under the time the request was made, the time of the hearing, or as the AMIEU suggests, at the time of filing of this application. If I adopted the AMIEU’s desired “cut off point”, it would obviously favour its case but I prefer to adopt, and give appropriate weight, to all the circumstances in the application as evidenced to the Tribunal.
[53] With respect to the final ground raised by the AMIEU which asserts that the Employer has a belief that it has an unqualified right to request the AMIEU permit holders to conduct discussions in a particular room, I note that this argument was not advanced by the Employer in submissions, evidence, or at law.
[54] While the AMIEU asserts that the Employer has a mistaken belief in an unqualified right to request the permit holders to conduct discussions in a particular room (which the Employer denies), it is apposite to set out the AMIEU’s view which is reflected in the oral evidence as follows:
“Isn't it the case with the AMIEU that really it's all or nothing, you always want to go into the lunch room?---Well, we certainly do. We want to be where the people are. We want to be available to those people to give the information and advice that they need.” 13
[55] From such an answer, I think it can be reliably inferred that the AMIEU’s position is that a necessary condition for permit holders, in exercising a right of entry to hold discussions, is for these discussions to take place in the lunch room. However, that is not a condition, right or entitlement of permit holders under the FW Act.
[56] In contrast, what is unarguable in the FW Act is that the permit holder must comply with any reasonable request by the Employer in respect to a particular room or area.
[57] The AMIEU referred particularly to the Dardanup Full Bench Decision in support of its proposition that the Employer’s request to use the training room was unreasonable.
[58] The members of the Full Bench in the Dardanup Full Bench Decision stated that, “the reasonableness of a request pursuant to s.492(1)(a) cannot be considered in a vacuum” 14; put differently, it is to be considered in all the circumstances. Mr Prout gave evidence of the context of the AMIEU’s visit on 13 January 2011 being the first visit of a union official since commencement of operations in 1979. As Mr Smith, for the AMIEU, could not dispute such evidence, I have no reason to disbelieve Mr Prout’s evidence.
[59] Secondly, on 13 January 2011, Mr Prout did indeed facilitate the permit holder’s discussions with employees in the lunch room. From Mr Prout’s evidence, it would appear that the lunch room was provided not because he had any knowledge of the AMIEU’s preference or the provisions of the FW Act. While Mr Prout gave evidence that, at that time, he was of “two minds” 15 to ask the permit holder to utilise the training room, he eventually “let it go”16. In this context, and particularly given the lack of evidence, I can find no cause for the AMIEU to assert that the Employer was “acting as a gatekeeper” or that the request was made with the intention of intimidating or discouraging employees who might want to participate in discussions.
[60] Having provided the lunch room, Mr Prout gave evidence that he became aware that the permit holder was displaying and selling knives in the lunch room. Further, he received complaints from three employees regarding the selling of knives and who objected to such discussion taking place in that area.
[61] Mr Prout also gave evidence of a “tea break” discussion at an AMIC meeting with Mr Thomas in which Mr Thomas, and others, advised that if the permit holder was only selling knives (as Mr Prout had been informed) then the Union should use the training room.
[62] It was in these circumstances that Mr Prout made the request for Mr Da Silva and the other permit holder, on 16 January 2011, to use the training room. Accordingly, the question is whether that request was appropriate, fair and sensible in the circumstances.
[63] I find that Mr Prout had a real managerial issue in front of him. Mr Prout had to deal effectively with complaining employees and a permit holder displaying and selling knives. Of all the options available to Mr Prout, he did not take issue with the selling of knives on the premises but requested an alternative place for this and discussions to take place - the training room. For the Employer, the training room is the most appropriate as it is the area as it is the place where external visitors meet with the Employer’s personnel 17.
[64] It is notable that, sight unseen, the AMIEU rejected as unreasonable the training room. In my view, to reject the training room, sight unseen, is hardly evidence of good faith -- which is an important element upon which the right of entry provisions are built.
[65] I should highlight that, perhaps with the exception of whether AMIC has a policy position on where right of entry discussions should take place, the AMIEU did not challenge Mr Prout’s evidence that the reasons for his request for the AMIEU to use the training room, were anything but the real reasons. Mr Prout did not engender any doubt in the Tribunal that the reasons he advanced in evidence were the real reasons and I find that none of the provisions in s.492(2) of the FW Act are applicable to his request to the AMIEU to use the training room.
[66] Notwithstanding the immediate circumstances faced by Mr Prout, it is appropriate to examine other factors before arriving at the conclusion of whether the request was reasonable.
[67] The AMIEU did not challenge the training room as not being fit for purpose or allege that it is not private. However, I apprehend from evidence that the Union conceived its role in the application as having to support its preference for discussions to take place in the lunch room. While the benefits for the AMIEU are that employees are in the lunch room when they are able to have discussions, and the room physically adequate to accommodate discussions, the Employer gave evidence of Southern Livestock Processing Pty Ltd employees also using the lunch room along with management and supervisory staff. Finally, the Employer queried whether there was sufficient room in the lunch room.
[68] I now turn to the issue of employees.
[69] The AMIEU submits that “hearsay evidence from the employer as to matters raised by employees should be excluded from these proceedings in line with the Dardanup Full Bench Decision” 18. Firstly, in my view that is not an accurate summary of the Full Bench’s Decision. Secondly, if I adopted such an approach, to be even-handed, I would have to exclude Mr Da Silva’s evidence on the views of AMIEU members and Mr Smith’s evidence relating to what he had been told by Mr Da Silva about the views of employees.
[70] With respect to the petitions signed by employees, the AMIEU conceded that the Tribunal is able to take such matters into account. However, they allege that little weight should be attached to the petitions as they had only been signed by a minority of employees, the petitions are misleading as they imply the AMIEU sought to conduct meetings as opposed to discussions and, as I have previously stated, were gathered after the application was filed and on advice.
[71] What I have in evidence is 18 signatures from both employees of the Employer and Southern Livestock Processing Pty Ltd who have stated that they “do not wish to have people conducting meetings or discussions in the lunch room during our meal breaks. Those who have signed this petition have done so of our own free will, without the inducement of management.” 19 Having considered the evidence surrounding the petition, I am unable to reach any other conclusion than that they represent the views of the signatories and form part of the overall circumstances of a determination of whether the request is reasonable.
[72] The AMIEU submits that the expression of a preference by some employees that the lunch room not be used for discussions, should not be considered an adequate basis for the Employer’s request that a permit holder not access the lunch room. However, to be consistent, it is necessary to balance the preference of those employees and the AMIEU’s preference to access the lunch room.
[73] Since the request of the Employer to use the training room, the Tribunal had the opportunity at inspection to walk around and examine the location of what is referred to as the barbecue area. The area is enclosed and approximately 50 metres from the lunch room. At the time the application was made, the AMIEU was not aware of the facility.
[74] In evidence, it was stated that the barbecue area has been used by permit holders for discussions. The barbecue area is suitable for discussions, away from the management area, is private and management/supervisory staff would not be in attendance.
CONCLUSION
[75] Having considered all of the circumstances, and although I consider that Mr Prout’s request on 16 February 2011 could have been expressed more fully, it was a reasonable request in the circumstances for the AMIEU permit holders to use the training room. However, any desire to express his reasons more fully that he may have had, was cut off by Mr Da Silva’s rejection of the training room, sight unseen, as unreasonable.
[76] Having reached the view that such a request was unreasonable, the AMIEU did not formally challenge such a request until 28 July 2011. While I would not go so far as to say that the AMIEU condoned the Employer’s request, I think it fair to state that they did not take any reasonable steps between 16 February 2011 and 28 July 2011 to challenge that request except to await the decision of the Dardanup Full Bench Decision which was delivered on 17 June 2011.
[77] Having examined the Dardanup Full Bench Decision, I conclude that the AMIEU constructed its objection to the Employer’s request consistent with that Decision. However, it is important to appreciate that the circumstances and facts of the Dardanup Full Bench Decision are distinguishable to the Employer’s request in this application on 16 February 2011.
[78] In his evidence, Mr Da Silva plainly put the view that in his view, “anything other than the lunch room is unreasonable” 20 and the AMIEU actions have been to “reclaim the lunch room”21. This approach, in my view, is incorrect. The correct approach is to determine, having considered all the circumstances, whether the Employer’s request is appropriate, fair and sensible.
[79] I find that the request of the Employer on 16 February 2011 was reasonable.
[80] I find that when making the request on 16 February 2011, it did not make the request for reasons which would deem the request unreasonable as set out in s.492(2) of the FW Act.
[81] I find that, with the expiry of time, and on the evidence, that the alternative barbecue area is a suitable area for permit holder discussions.
[82] I specifically find that there has been no evidence upon which, objectively, I could conclude that the Employer intimidated, discouraged or otherwise made it difficult for employees to attend discussions with permit holders.
[83] Although it is not necessary to do so, I find that the Employer, by notice to employees regarding right of entry discussions, has indicated that, as part of those discussions, employees can purchase equipment (work knives).
[84] As a consequence of my findings and reasons for decision, I have determined not to issue the orders sought in the application but to note that the original request to use the training room has now been extended to the barbecue area which is also suitable. Should circumstances change, regarding suitability, the AMIEU is entitled to seek a review of these arrangements.
[85] Finally, objectively on the evidence, it is not necessary to make an order set out in dot point 2 of paragraph [2], but similarly, if circumstances change, the AMIEU can make application to the Tribunal.
COMMISSIONER
Appearances:
Mr Buckley for the Applicant.
Mr Johnston for the Respondent.
Hearing details:
2011:
Perth,
11 October.
1 PN 513
2 PN 510
3 PN 512
4 Exhibit R3
5 PN 804
6 Exhibit R1
7 PN 513 and Exhibit A5
8 PN 735-747
9 PN 771
10 PN 1130
11 PN 778
12 PN 786
13 PN 215
14 The Dardanup Full Bench Decision - para 19
15 Exhibit R4-16
16 Exhibit R4-17
17 Exhibit R3-19
18 Exhibit A1-10
19 Exhibits R4 and R5
20 PN 514
21 PN 582
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