Bechtel (Western Australia) Pty Ltd and Construction, Forestry, Mining and Energy Union

[2014] FWC 9383

[2014] FWC 9383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.492 - Application/Notification by Fair Work Commission

Bechtel (Western Australia) Pty Ltd
and
Construction, Forestry, Mining and Energy Union
(RE2013/640)

DEPUTY PRESIDENT MCCARTHY PERTH, 24 DECEMBER 2014

Alleged dispute regarding location for permit holders to hold discussions.

[1] This decision concerns a matter I dealt with in 2013. This matter involves a dispute under s.492 of the Fair Work Act 2009 (the FW Act) concerning the request by Bechtel (Western Australia) Pty Ltd (Bechtel) for interviews and discussions between employees and a union official exercising a right of entry for discussions to be held in a particular room. I dealt with the dispute on my own initiative (the Meeting Room dispute). It was dealt with in conjunction with an application lodged 1 by Bechtel concerning the conduct of a union official when exercising a right of entry (the ROE application). I issued a Decision and Order for the ROE application on 26 April 20132.

[2] I did not issue an Order regarding the meeting room dispute as I considered it inappropriate to do so. However I never made a formal decision nor convey my views to the parties. I considered that the dispute would not arise again. Secondly the site was a rapidly changing one due to the intensity of construction activity at the site and any ruling regarding the meeting room provided during the period in question was unlikely, in my view, to have much relevance for later times. Thirdly changes to the FW Act took effect on 1 January 2014 which significantly altered the requirements that were relevant during the proceedings that I conducted.

[3] However as the parties have both expected a decision issued and for the sake of completeness I have decided, obviously belatedly, to issue this decision as my reasons for considering it inappropriate to issue an Order. As the issue was dealt with under the FW Act provisions that applied in 2013 I will deal with the matter under the terms of the FW Act as they applied at that time.

[4] My decision in the ROE dispute canvasses the evidence. Much of that evidence is relevant for this decision and it is not necessary that I traverse it again. I had the benefit of visiting the site in March 2013 and inspecting the types of meeting rooms usually provided. I have endeavoured to ensure that the issues regarding the conduct involved in the ROE dispute not influence my decision regarding the suitability of the room provided.

[5] Mr Brad Upton (Mr Upton) an official of the Construction, Forestry, Mining and Energy Union (CFMEU) regularly visited the Wheatstone Construction Village site (the site). Bechtel is the occupier of the site. The meeting room provided by Bechtel for discussions was not always the same as the facilities were in a construction phase and different rooms were allocated depending on availability.

[6] On 13 February 2013 Mr Upton visited the site and was escorted in the usual way to a room provided for the purpose of holding discussions. Mr Upton complained that the meeting room provided was not fit for the purpose. In particular the size of the room was argued to be too small. Mr Upton had made complaints on previous occasions about the suitability of the rooms being provided. There are thus two issues that I will decide upon. Firstly was the room provided on 13 February 2013 suitable for the purpose of holding discussions and secondly are the rooms usually provided suitable.

[7] In the ROE dispute matter I found that Mr Waller (the Construction Manager for one of the contractors to Bechtel) checked the meeting room provided and noted that the number of people in the room to participate in discussions was consistent with numbers that attended previous meetings with Mr Upton. He said that there were 28 chairs around a table or tables in the meeting room. There was also room for people to stand. Mr Waller was of the opinion that 35 to 40 people could be accommodated in the room but that "it would be a bit tight" if there were 40 to 45 people and unreasonable.

[8] Mr Upton also visited the site again on 20 March, 21 March and 3 April, 2013. As there are multiple contractors at the site the CFMEU official would meet with employees of different contractors at different times and on different days. The number of employees that would attend the meetings varied for those reasons. Of course attendance at the meetings is a matter of choice for the employees themselves and then how many employees do attend is another factor that creates a difficulty in predicting the number of persons that will attend the discussions.

[9] I also heard evidence that factors that impact on the suitability of the room provided is that employees who should not attend the meetings often do. Those employees could be employees of a different employer to the employer the union official is exercising a Right of Entry for and because some employees that have attended some meetings are arguably not entitled to be members of the CFMEU.

[10] Thus a room provided on a particular day may be suitable but on another day may not be depending on the number of attendees.

[11] The meeting rooms usually provided were about twice the size of the room provided on 13 February 2013. In my view the rooms ordinarily provided, were suitable for the purpose to accommodate the number of employees entitled to attend the discussions. Certainly the more employees that attend the less comfort there would be, but for the relative short duration of the meetings and the size of the room and its facilities, including air-conditioning, a fridge stocked with cold water and a suitably sized table and adequate number of chairs, I regard the facility usually provided to be suitable.

[12] The meeting room provided on 13 February 2013 was not suitable. The room provided was half the size of the room normally provided, the number of attendees should not have been unanticipated and the size of the room was too small for that number of attendees. There was no evidence that there was likely to be a reduced number of attendees expected but it should have been reasonably predictable that the room provided on that day would be inadequate given the experience of attendance at previous meetings and the potential for sudden increases in numbers. As the number attending was reasonably foreseeable arrangements should have been made for an alternative venue, even if it was not an air-conditioned room but outside at a suitable place.

[13] I find therefore that the usual rooms provided were suitable for these purposes but the room provided on 13 February 2013 was not. A single occasion of an employer requesting a particular room be used, especially in the dynamics of a construction site such as the site involved here and its stage of development during the period in question did not justify to me a circumstance where it is appropriate to issue any Order.

DEPUTY PRESIDENT

 1   Re 2013/536

 2   [2013] FWC 2498

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