Australian Workers' Union, The v Costa Exchange Pty Ltd

[2015] FWC 5994

[2015] FWC 5994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Australian Workers’ Union, The
v
Costa Exchange Pty Ltd
(RE2015/1122)

National Union of Workers
v
Costa Exchange Pty Ltd
(RE2015/1173)

COMMISSIONER BISSETT MELBOURNE, 1 SEPTEMBER 2015

Right of entry - Alleged dispute concerning location of room provided for meetings.

[1] The Australian Workers’ Union (AWU) and the National Union of Workers (NUW) have each made an application pursuant to section 505 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute with respect to right of entry to the Costa Exchange Pty Ltd (Costa) site at 45 Elm Street Guyra NSW 2365.

[2] The Guyra site consist of two glasshouses (GH1 and GH2) separated by an area consisting of a packing shed, administrative area and amenities rooms such as the lunch room and toilet.

[3] Both disputes relate to the location at which the union officials may hold meetings or discussions with employees.

[4] The union officials wish to hold discussions in the lunch room of the site. Costa says that, during the period of the new tomato plantings, the risk of disease or bacterial contamination of the plants is high and access to the site should be restricted. Because of the risk Costa says that union officials should not have access to the lunch room but that an alternative suitable room will be provided to them.

[5] Costa says that it has a suitable room or rooms as alternatives to the lunch room, for the unions to meet with employees. The first of these is the training room which is located outside of but adjacent to, the main building (the first room). The second is located inside the main building in the administration area (the second room).

[6] The NUW sought to gain access to the lunch room in order to hold discussions with employees on 30 and 31 July then on 12 and 13 August 2015. On each occasion they were prohibited by Costa from entering the lunch room. The AWU sought to access to the lunch room on 30 July 2015. It was prohibited from entering the lunch room.

[7] The NUW application was subject to an urgent application for interim orders on 13 August 2015. That application was refused. At the conclusion of that hearing Costa indicated the second room identified in the preceding paragraph might be suitable. I instructed Costa to show that room to union officials seeking to exercise their right of entry to enable an assessment of the suitability of the room to be determined.

[8] Ms Emma Kerin, an Organiser with the NUW, viewed the room and gave evidence that she was escorted to the second room in accordance with the outcome of the hearing for interim orders. Her evidence is that, in order to inspect the room she and Mr Reeves (another NUW Organiser) were advised to remove all jewellery, directed to bathe their shoes in a foot bath at the entrance, were given disposable protective clothing, including boot protectors, hair nets etc. which they were required to put on and have checked. They then went through further foot baths and were shown how to correctly wash and dry their hands to remove bacteria.

[9] Ms Kerin marked on the main site map the location of the foot baths (green and circled), the hand washing station (orange and circled) the path taken to the second meeting room (in yellow) and the location of the second room in the administration building (in blue). 1 Her markings on the map were accepted as accurate.

[10] The room was inspected and found by the NUW Organisers to be not suitable for reasons that include it not being a room normally used by employees, it was too small and that its location next door to the manager’s office. On leaving the room and preceding to exit the building Ms Kerin says she walked past the entrance to the lunch room although agrees that it was on the opposite side of the area she was walking through (the packing shed).

[11] The AWU was also shown the proposed second room which it also rejected as suitable.

[12] Mr Steven Carter, an Organiser with the AWU, gave evidence that he, along with his colleague Mr Serge Rindo, had sought to gain access to the lunch room for purpose of holding discussion with employees on 30 July 2015. They were advised by Costa management that they would not be given permission to enter the lunchroom as there was a risk to contamination of the plantings.

[13] Mr Carter says that at about 9.00am that day he sought permission to use the toilet. He says he was told someone would have to accompany him, he asked the person he was talking to accompany him, she chose not to and he went to the toilet unaccompanied and returned. He says he used the only toilet he knew of which is near the lunch room. He denies that he spoke inappropriately to anyone in seeking access to the toilet.

[14] Mr Reeves gave evidence for Costa of the reluctance of NUW Officials to move their car to the visitor’s part of the car park. He also says that, contrary to the evidence of Ms Kerin, he did not indicate the appropriateness of otherwise of the second room proposed as a meeting room.

[15] Mr Reeves’ evidence is that the NUW union officials went through similar procedures to employees of Costa when they were taken through the foot bath and hand washing stations. Costa employees however, have boots that do not leave the site and they wear the same clothes on site each day. These measures help minimise the risk of contamination through employee clothing and footwear.

[16] Mr Reeves says that the greatest area of concern – and an area that union officials would have to move through to access the lunch room – is the ‘cross-contamination area’ which is the walkway between GH1 and GH2. He says that the risk of contamination from this area is high as staff pass through the area and may carry disease from the glasshouse they work in. This may then be passed to other employees or automated trolleys and that way may move into the other glasshouse. As union officials are coming in from the outside and do not have the same hygiene protocols as staff Mr Reeves says the risk of cross-contamination is higher. He says that during the planting season Costa does everything possible to minimise this risk including limiting access to the site to business critical visitors.

[17] Mr Reeves’ evidence is that it is not possible to move from the hand washing station to the lunch room without crossing the cross-contamination area because of the placement of equipment and machinery in the packing shed.

[18] The NUW and the AWU both say that the first room is not suitable as it is outside the normal work area of the employees and is not easily accessible by employees during meal breaks. They say the second room is not suitable as it is located next to a manager’s office which may deter some employees who do not wish management to know they are talking to the union and it is not in an area that employees would regularly access or walk past.

[19] Costa says that it does not challenge the right of either union to exercise its right of entry. Its concern goes to the increased risk of cross-contamination. It says that the rooms offered are reasonable. Of the first room it says that the food truck stops there at a number of times during the extended lunch break and employees do go out to the food truck and the second room is accessible and large enough to accommodate meetings and discussion. It says it is prepared to provide employees with an extra 10 minutes on their lunch breaks to compensate for the time taken to exit and re-enter the decontamination areas if the first room is used.

The legislative framework

[20] Section 484 of the Act states:

484 Entry to hold discussions

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

(a) who perform work on the premises; and

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

(c) who wish to participate in those discussions.

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

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

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

[21] Section 487 of the Act requires that, unless an exemption has been granted, a permit holder seeking to enter a premises in accordance with s.484 of the Act must give notice of the entry at least 24 hours but to more than 14 days before the entry.

[22] Section 490 of the Act states that entry may only be exercised during working hours and, in relation to entry to hold discussions, only during mealtimes or other breaks.

[23] Section 492 of the Act deals with the location of interviews or discussions held pursuant to s.484. It states:

492 Location of interviews and discussions

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

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

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

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

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

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

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

[24] In each of the applications before me it is not in dispute that each of the NUW and AWU has the right to represent the industrial interests of employees who work at the site.

[25] I am satisfied that there is no agreement with Costa over the location of room within which discussions should occur.

[26] In Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd 2 Deputy President Gostencnik said of s.492:

[35] The starting point is that the permit holder must hold discussions in those rooms or areas of the premises agreed with the occupier of the premises. If the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to hold discussions then the permit holder may conduct discussions in a room provided to employees for the purposes of taking the meal or other breaks (meal room). The capacity of a permit holder to insist upon holding discussions in a meal room arises only if the permit holder and the occupier cannot agree on a room or area. The primary focus of s. 492 is on an agreed location for the holding of discussions. Indeed it is suggested in the Explanatory Memorandum to the Fair Work Amendment Bill 2013 by which s. 492 was enacted, that the amendments to the right of entry provisions of the Act “will encourage parties to reach agreement as to how entry by permit holders to workplaces is facilitated. The amendments assist organisations in circumstances where agreement has not been possible…” 3. The default location, the meal room, may be used by the permit holder only if the permit holder and the occupier “cannot agree” on a location.

[36] The use of the phrase “cannot agree” is suggestive a degree of improbability of agreement but probably not impossibility. Given the context in which an agreement about a location for discussions might be sought, it seems to me unlikely that the Parliament intended that it must be established that agreement is impossible before the default position operates. Nevertheless it seems to me that more is required to establish that the permit holder and the occupier cannot agree, than each party simply attending the discussion about a location with a fixed view about where the location should be, not being prepared to move from that fixed view and not being prepared to consider the location proposed by the other party. Such a minimal requirement seems to me to be inconsistent with the ordinary meaning of the phrase “cannot agree” and with a scheme that is said to be designed to encourage agreement. It is also inconsistent with the object of Part 3-4 because such an approach pays no regard to the balancing of competing rights set out therein. That parties “do not agree” does not mean that they “cannot agree”. In my view had the section been intended to operate in the more narrow sense it could have been drafted more clearly, by use of the phrase “do not agree” instead of “cannot agree” or perhaps as follows:

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

(a) in a room or area in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks that is provided by the occupier for the purpose of taking meal or other breaks; or

(b) if another room or area is agreed upon by the permit holder and the occupier – that other room or area.”

[37] This latter drafting approach is adopted in respect of the rights of a permit holder to inspect records or other documents at a particular place found in s. 483 (5) (b), 483C (6) (b) and s 483E (6) (b). That the legislature did not adopt either of these drafting methods in respect of s. 492, is in my view, indicative of an intention that effort beyond paying mere lip service, be given to reaching an agreement about the location at which discussions are to be held before the default position in s. 492 (3) will pertain. It is not suggested that notions akin to good faith bargaining obligations should be imported. Such an approach is impracticable given the context in which the section will often be engaged, that there will be a degree of contemporaneity between a discussion with occupier and permit holder about location, the time of entry, the scheduled meal or other break, and the desire of the permit holder to hold discussions with relevant employees during designated breaks. Whilst the question whether the permit holder and the occupier cannot agree on a room or area of the premises in which the permit holder is to hold discussions will be a question of fact, it seems to me, as a minimum there must be a genuine effort to try to agree. That a permit holder and an occupier have differing positions of the location at which discussions should be held merely evidence that they do not agree. It does not establish that they cannot agree. It cannot be said that “a permit holder and an occupier cannot agree” if they have not tried to agree.

[38] In my view trying to agree involves more than turning up to the discussion with a fixed view and without a preparedness to consider the other party’s view about the location in which discussions should be held. The extent to which the parties have tried to reach an agreement is a question of fact and degree and will involve an assessment based on the circumstance faced by the parties at the time the agreement was sought. However, allowing a permit holder to simply maintain a fixed view about use of a meals room without requiring the permit holder to try to reach an agreement would elevate the default room to the status of the primary room in which discussion must be held. Such an outcome is contrary to the scheme established by s. 492.

[emphasis added]

[27] The primary objection of Costa to the unions having access to the lunch room is in relation to the potential for cross-contamination of disease to the plantings in the two hothouses during a particular period of the growing season extending for some months. Whilst I accept the value of the crop and the need to minimise the risk of contamination, that this was the motivating factor in denying access to the lunch room is brought into question by the location of the second room where, to gain access, union officials would need to go through a similar decontamination process as they would to access the lunch room. It seems to me that while there might be slightly higher risk of cross-contamination from union officials coming in from outside the premises without the allocated work boots that remain on site or the use of the same clothes every day, the risk posed by them in accessing the lunch room is not substantially higher than it would be in accessing the second room. Whilst I accept there is additional concern with the lunch room because the union officials may need to move through the cross-contamination area it seems the risk is not much greater than it is for employees or machines cross-contaminating from one glasshouse to the other.

[28] In any event, I am satisfied the union officials will not need to enter into or go near the doorways to the hothouses to access the lunchroom.

[29] I make no adverse findings in relation to Mr Carter and his access to the toilet or in respect of where the NUW officials parked their car.

[30] I am satisfied that the alternative rooms proposed by Costa are not fit for purpose and the NUW and AWU have not unreasonably withheld agreement to the use of those rooms. I accept that neither of the rooms is in an area that employees would pass or is a room that employees would enter without expressly being told to attend the room (e.g. for training or a specific meeting). While the approach to attempting to find agreement on a room should not be perfunctory on the part of the union officials I am satisfied that they have properly considered the rooms on offer and find, for cogent reasons, that they are not suitable.

[31] In the context of the legislation I am not being asked to decide if the lunch room is better than the training room or the meeting room is better than the lunch room. Rather it is whether agreement can be reached on the preferred room location.

[32] In making my decision I reject any submissions to the effect that Costa is deliberately attempting to deny union officials right of entry to its sites or is attempting to force the union officials to accept particular locations as a means of minimising the capacity of the unions to meet and hold discussions with relevant employees.

[33] I am satisfied that agreement cannot be reached on the location of the venue in which to hold discussions in accordance with s.492(1) of the Act.

[34] I therefore find that the location for the purpose of meeting and holding discussions should be the default location specified in s.492(3) of the Act, that is, the lunch room.

[35] I shall issue an order to this effect with this decision. The intent of the order is to reflect this decision and commitments given by the NUW and AWU during the hearing for this application.

[36] The order shall require any union official entering the premises to comply strictly with all protocols for access to the site as advised by Costa. This will include any decontamination procedures, reasonable clothing and footwear requirements and the path of access to and from the lunch room and to and from and toilet facilities. Costa should do all it can to minimise the risks of contamination by providing the appropriate protective clothing to union officials, by setting out clear specific protocols for accessing the site by union officials and by identifying a path for union officials to and from the lunch room that does not pass through or minimises time if the cross-contamination zone. Costa is to provide to the NUW and AWU the protocols for entry to the site within 48 hours of the issue of the Order.

COMMISSIONER

Appearances:

G. Beard for AWU.

A. Wyrick for NUW.

F. Bell for the Respondent.

Hearing details:

2015.

Melbourne and Sydney (video hearing):

August28.

 1   Exhibit NUW5.

 2   [2014] FWC 5407.

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

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