Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Limited
[2011] FWA 297
•17 JANUARY 2011
[2011] FWA 297 |
|
DECISION |
Fair Work Act 2009
s.505—Application to deal with a right of entry dispute
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Telstra Corporation Limited
(RE2010/2988)
COMMISSIONER SMITH | MELBOURNE, 17 JANUARY 2011 |
Right of entry.
INTRODUCTION AND BACKGROUND
[1] This matter had its origins in November 2009 when, by consent, an order 1 was issued which provided access to non-member records of employees of Telstra Corporation (Telstra). Permit holders from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were seeking to investigate what was alleged to be unpaid overtime being worked by call centre operators located at Telstra’s Burwood premises.
[2] Arising from the investigations, CEPU made an application pursuant to s.505 of the Fair Work Act 2009 (Cth) (the Act) to resolve a dispute about right of entry and how it was to interview employees for the purpose of investigating a suspected contravention of a workplace instrument. There were two elements to the Union’s concern. The first was its ability to obtain right of entry and in this regard it highlighted difficulty in obtaining entry to the premises. The second aspect of its concern was the locations at which it would interview employees. CEPU had always expressed a desire to have preliminary interviews with employees at their work stations and then have more detailed interviews in a suitable meeting room. Telstra was opposed to any interviews taking place at the employees work station.
[3] The matter was heard on 28 October 2010 and Mr Dwyer represented the CEPU and Mr T. Jacobs, of Counsel, (with permission) represented Telstra.
[4] As it transpired on that day, I announced:
“I'm going to take an unusual course. I propose to issue an interim order, largely in the terms of FWG8 to apply to the Alchemy Centre. There will be some slight alterations. The nature of the email with various factual alterations can be largely in the terms [of that proposed by CEPU and to be] sent out by Telstra. I’ll issue that interim order tomorrow because the part that deals with right of entry is about balancing the needs of the parties and achieving the objectives of the Act, and I want to test to see whether or not FWG8 will achieve the objectives of the Act and balance the rights of the parties.
So that order will issue and then I’ll set an appropriate time to hear a report back from the parties as to the effect of it. I only put this caveat, it’s my desire to genuinely test it, and I ask the parties to adopt the same approach.” 2
[5] Exhibit FWG8 was a proposal by Telstra as to the best and most efficient way to permit right of entry to investigate suspected contraventions of an industrial instrument. It did not contain a provision permitting the permit holders to interview employees at their work stations. When the matter returned for the report back on 13 December 2010, further submissions were put which sought to complement the submissions and evidence put during the proceedings which led to the issuing of the interim order. It is to the totality of the evidence and the submissions to which I now turn.
THE EVIDENCE AND SUBMISSIONS
[6] To support its position, CEPU relied on witness evidence from Ms S. Riley, Ms M. Theodore and Ms V. Butler. The evidence of Ms Riley and Ms Theodore went to the difficulties experienced in attempts to exercise right of entry prior to the making of the interim order. In addition, Ms Theodore commented upon the nature of the work of staff who were sought to be interviewed. I note at this stage that the evidence sought to be given by Ms Theodore (an employee of Telstra) included what was said to be the views of other employees about their attitude to being seen to speak up against Telstra. This material was objected to on the basis that it was “inappropriate, unsourced hearsay and opinion evidence. It has virtually no probative value and is highly prejudicial to my client”. 3 The objection was upheld and I have had no regard to those statements. This is a matter to which I shall return later.
[7] Ms Butler, a Branch Organiser with the CEPU, gave similar evidence about the efforts to achieve right of entry prior to the interim order being issued.
[8] At the report back hearing, following the operation of the interim order, CEPU argued that, except for a couple of minor matters, the main thrust of the change proposed from the interim order related to the capacity to approach employees at their work station. CEPU proposed an additional clause to the interim order:
CEPU permit holders involved in the entry shall be permitted to approach and interview any employee during working hours and breaks provided that:
(a) the permit holders are aware of the privacy issues that might arise
(b) the permit holders take reasonable precautions to ensure that they do not interrupt a telephone call or conversations
(c) the interview is short and typically not exceed 10 minutes
(d) the permit holders will reasonably consider any request by the scheduler eg. where any queue is long
(e) the permit holders may, where appropriate, invite the employees to meet in the allocated room as indicated above in paragraphs 5, 6 and 7.
[9] CEPU submitted that the interim order did not permit it to effectively investigate the suspected contravention and that the only practical way to facilitate the investigation was to allow the permit holders to approach employees at their work stations for a short conversation, and if it is necessary, to continue the conversation in an agreed room. CEPU submitted that an anti-union environment existed in call centres. It was submitted that job security depends on how quickly an employee sells a product or finishes with a customer. It stated that call centres are a high-pressure work environment where every minute is monitored and seeking scorecard relief from scheduling managers is a deterrent for employees who are mostly part-time.
[10] It was submitted that it had already been permitted to approach employees at their work station in one area and that it did not disrupt the business and it was unreasonable for Telstra to restrict this type of access. It was added that:
- there is a right to investigate;
- the use of rooms had not been successful;
- it is an area of low union membership; and
- the alleged contravention was a problem which was affecting nearly all staff.
[11] Telstra called evidence from; Mr F. Gerdtz, Mr S. Burbidge, Ms M. Quinn and Mr A. McCallum. In large measure the evidence of these persons dealt with:
1. the alleged difficulties the permit holders were having during the first attempts to exercise right of entry and
2. the practical issues involved in permitting permit holders to interview employees at their work station.
[12] The practical issues which were identified included; interrupting or delaying a telephone conversation with a customer (both inbound and outbound); the proximity of workstations which may mean that more than one consultant would be disturbed; the privacy issues surrounding what may be on the computer screen and overheard in the conversation together with the scheduling of work. In addition it was submitted the employees would get scorecard relief.
[13] Telstra submitted that:
- the permit holder must comply with any reasonable request by the occupier (s.492); and
- the starting point for resolving the dispute was whether or not the request by Telstra about the method of exercising a right of entry was a reasonable one.
[14] Telstra opposed any extension to the terms of the interim order but submitted that there were some minor matters to which it gave consent.
THE STATUTORY PROVISIONS
To begin, the Act grants a right of entry to permit holders to investigate suspected contraventions of the Act, or a term of a fair work instrument that relates to, or effects, a member of the permit holder’s organisation [s.481]. The exercise of that right is regulated but for present purposes s.492 is relevant. Section 492 provides:
“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.
[15] It can be seen that s.492(1) permits the occupier to request that interviews or discussions take place in a particular room or area provided that the request is reasonable. Section 492(2) sets out what might otherwise be unreasonable and importantly, s.492(3) makes it clear that unreasonableness does not arise simple because the permit holder may have preferred another course. That is, it is an objective judgement on the facts of the case as to what is or is not unreasonable. It is also not what might be the better of any alternatives, but again whether or not the request by the employer is reasonable.
[16] The Act then provides for the resolution of disputes about right of entry. Section 505 provides:
“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.
[17] Sections 505(4) and (5) deal with how a dispute should be resolved. Firstly s.505(4) states that FWA must take into account fairness between the parties concerned.
[18] The parties to the dispute are in this case the CEPU and the employer. The term “parties” should be given its natural and ordinary meaning. This becomes relevant when consideration is given to fairness between the parties. Persons other than the CEPU and the employer are not parties. During the proceedings evidence was excluded about what employees generally thought about Telstra. This was no doubt put by the CEPU to deal with the issues raised in s.492(2). I accept that officials of a representative body will be able to speak on behalf of those they represent thus providing some anonymity to persons who, whether it be real or perceived, believe that their employment may be effected by identifying themselves.
[19] However in this matter, evidence was sought to be given about the views of employees more generally and given the statement of the CEPU that union membership was low, the level of anonymity upon which the CEPU can rely must be limited. The same must necessarily be true of an employer who asserts that there are views of employees held about the representative organisation for the employees. This is even more so when consideration is given to that fact that the employer does not represent its employees, although it is accepted that there is an interest in their working environment. However, for an employer to seek anonymity for such employee general views would draw the same objection as was made against the CEPU namely such submission or evidence would be: “inappropriate, unsourced hearsay and opinion evidence. It has virtually no probative value and is highly prejudicial to my client”. It follows I have not taken into account evidence led by the employer about what was said to be the attitude of some unidentified employees of having the permit holders near their work stations.
[20] Secondly, s.505(5) directly brings into focus the reasonableness or otherwise of the request made under s.492(1).
CONCLUSION
[21] Having regard to the legislative scheme, it appears to me that the Act is read on the basis that if a conclusion is reached that the request was unreasonable then the matter is resolved by taking into account fairness between the parties. However, if the request is reasonable, the matter ends there. It is also not appropriate to consider whether something would have been more reasonable. Such an consideration would clash with the intent of s.492(3). It is clear that the employer has the preference unless it can be said to be unreasonable and this connection matters outlined in s.492(2) are relevant although not exhaustive.
[22] I was satisfied on 28 October 2010 that a case had been made out for the issuing of an interim order dealing with the right of entry of the permit holders given the difficulties experienced and to create some greater certainty about the rights and responsibilities of the parties to the dispute. Whilst Telstra opposed the making of any order, it did nonetheless present a proposal which it said adequately dealt with the concerns raised by the CEPU. Having reviewed the evidence in its totality and the experience of the operation of the interim order, I will now make a final order in relation to right of entry for the permit holders which I believe will take into account fairness between the parties.
[23] I now turn to consider if the terms of the interim order should be extended in the manner proposed by the CEPU and for that purpose consideration is given to s.492(2) and any other relevant matter.
[24] It is accepted by the CEPU that the rooms allocated by the interim order were fit for purpose. Its concern, however, was that the take up rate for interviews was very low. It was then argued that the matters raised and relevant to s.492(2)(b) should be considered. On these matters there was no evidence upon which reliance could be placed. Against the background of the interim order, I find that Telstra has, in accordance with s.492, made a reasonable request about the conduct of the interviews and that a case has not been made out for an extension of the terms of that order.
[25] There needs to be some minor amendments to the order issued on 28 October 2010 which were foreshadowed in the proceedings. 4 Given that this matter is about a suspected breach of a workplace instrument the life of the order should not be unlimited. The order shall expire on 30 April 2011 which should give the CEPU the opportunity to gather the necessary information upon which it can reach a conclusion about whether or not action should be taken in a court of competent jurisdiction. Leave is granted to either party to seek a variation to the order during its currency should circumstances change.
[26] The CEPU is requested to prepare a new order having regard to the amendment foreshadowed during the proceedings and over which there is no controversy.
COMMISSIONER
Appearances:
Mr D. Dwyer, for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Mr T. Jacobs of Counsel, on behalf of Telstra Corporation Limited.
Hearing details:
2010.
Melbourne:
October, 28; and
December, 13.
1 PR991018
2 Transcript PN1351 and 1352
3 Transcript PN329
4 Transcript PN1545
Printed by authority of the Commonwealth Government Printer
<Price code C, PR505959>
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