Construction, Forestry, Maritime, Mining and Energy Union v Victoria International Container Terminal Limited T/A Victoria International Container Terminal

[2019] FWC 5700

[2019] FWC 5700

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Construction, Forestry, Maritime, Mining and Energy Union
v
Victoria International Container Terminal Limited T/A Victoria International Container Terminal
(RE2018/1398)

COMMISSIONER GREGORY MELBOURNE, 16 AUGUST 2019

Alleged dispute concerning hindrance and obstruction of right of entry permit holders.

Introduction

[1] This application concerns two issues associated with the exercise of right of entry by a permit holder employed by the Construction, Forestry, Maritime, Mining and Energy Union (“the Union”). It involves the container terminal site operated by Victoria International Container Terminal Limited T/A Victoria International Container Terminal (“VICT”) at Webb Dock at the Port of Melbourne.

[2] The Union claims the permit holder is, firstly, being unreasonably hindered or obstructed in exercising his rights by virtue of a management representative, being the Director of Human Resources and Industrial Relations, remaining in the lunchroom while the permit holder is holding discussions with employees.

[3] Secondly, the Union claims the permit holder is being required to wear personal protective equipment (“PPE”) provided by VICT when attending the site when he is already wearing appropriate PPE. In its submission this is not a reasonable request. It is also noted that this matter was not part of the original application, however, VICT had no objection to the application being amended in order to deal with it.

[4] This application is made under s.505(1) of the Fair Work Act 2009 (Cth) (“the Act”). It enables the Commission to deal with a dispute about the exercise of Right of Entry (Part 3-4 of the Act), and indicates that the Commission may deal with the dispute by arbitration, and by making any “order it considers appropriate.” 1 It must also take into account fairness between the parties, but must not confer rights on the permit holder that are additional to, or inconsistent with, the rights in the Act.

[5] The matter was previously dealt with in conference but was not able to be resolved. The Union subsequently requested that it be arbitrated and the Commission issued directions for filing and service of evidence and submissions.

[6] Mr Luke Edmonds appeared on behalf of the Construction, Forestry, Maritime, Mining and Energy Union. Ms Georgia Simmonds from Seyfarth Shaw was given permission to appear on behalf of VICT under s.596(2)(a) as the matter involved a degree of complexity and her involvement might enable it to be dealt with more efficiently.

Relevant Legislation

[7] Section 480 provides:

“480 Object of this Part

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 award workers 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.”

[8] Section 491 provides:

“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)).”

[9] Section 500 provides:

“500 Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note 1: This section is a civil remedy provision (see Part 4-1).

Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).”

[10] Section 502 provides:

“502 Person must not hinder or obstruct permit holder

(1) A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.

(3) Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.”

[11] Section 505 provides:

“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).”

The Applicant’s Evidence and Submissions

Mr Aarin Moon

[12] Mr Aarin Moon is an organiser with the Union and is responsible for organising members and potential members employed by VICT at its stevedoring operation at the Port of Melbourne. He was issued with a right of entry permit under s.512 of the Act on 17 October 2016. It expires on 17 October of this year, and there are no existing conditions applying.

[13] He has notified VICT on several occasions during the last nine months of his intention to exercise right of entry. In each case he contacted Mr Michael O’Leary, VICT’s Director of Human Resources and Industrial Relations at the Webb Dock site, and provided at least 24 hours’ notice on each occasion. He said Mr O’Leary always enquired about why right of entry was being sought and the intended time of entry. He would inform Mr O’Leary in response that he would be there to hold discussions with members and employees eligible to be members. Discussion would then take place regarding the timing of work breaks, and once these were confirmed Mr O’Leary would agree to his entry.

[14] On 25 February 2018 he entered the Webb Dock premises shortly after 2.00 pm with the intention of holding discussions with members and eligible members in the lunchroom. While he was on-site Mr O’Leary remained in the room for the duration of his visit. Mr Moon said “I felt that this behaviour was intended to intimidate members and eligible members out of talking to me. I interpreted it to be hostile behaviour toward me.” 2

[15] He said that Mr O’Leary also attempted to engage with him and his tone was “hostile and accusatory.” 3 He also made reference to past interactions between the business and the Union which appeared to contribute to his level of hostility.

[16] On 18 September 2018 he again attended the site and was accompanied to the amenities room to meet with employees during their break. Mr O’Leary again remained in the room for the entire time and Mr Moon was again of the view that this was a tactic designed to intimidate both him and any employees that wanted to meet with him. A similar situation occurred when he entered again on the following day.

[17] He next entered the site on 21 September and was again escorted to the amenities room by Mr O’Leary, who remained in the room until he was required to carry out a safety inspection with a representative from another union. Mr Moon said that while Mr O’Leary was involved in the safety inspection several workers approached him and engaged in conversation about various issues. However, their willingness to engage in discussions “abruptly stopped” 4 when Mr O’Leary returned and then remained in the lunchroom for the duration of his visit.

[18] He then had a discussion with Mr O’Leary who confirmed that he would be remaining in the lunchroom while Mr Moon was there. He also indicated that he didn’t get a chance to see these employees every day, and this provided him with the opportunity to do so.

[19] On 20 December Mr Moon entered the site again at around 11.30 am and met with Mr O’Leary, who informed him that he couldn’t wear clothing that identified him as a representative of any union. Mr Moon said he was wearing a union t-shirt but was also wearing appropriate PPE, which was standard at other port worksites that he visited. He asked Mr O’Leary for a copy of the relevant company PPE dress policy, but this has never been provided to him. Mr O’Leary then again remained in the lunchroom during the entire time Mr Moon was present until he left at the end of the employees’ break period.

[20] He again attended on 9 January and was met at the security gate by Mr O’Leary who informed him that the hard hat he was wearing was not appropriate dress because it had not been issued by VICT. Mr Moon had never previously been challenged about whether his hard hat complied with appropriate PPE requirements. Mr O’Leary also appeared to be applying standards that were not applied to contractors and other visitors to the site. He then left the site and returned again in the afternoon when he was again informed that he would only be allowed access if he wore PPE issued by VICT.

[21] He again attended on the following day and was again met by Mr O’Leary, who again informed him that he would only be able to exercise right of entry and enter the site if he was prepared to wear company issued PPE.

[22] Mr Moon also held an off-site meeting with employees on the evening of 30 October last year. A question about the entitlement of employees to speak to him on-site without the scrutiny of management was raised during the course of this meeting, and some employees indicated that they found Mr O’Leary’s presence in the lunchroom to be intimidating. Mr Moon was also informed that Mr O’Leary only ever attends the amenities area when Mr Moon exercises right of entry. He was also asked by employees to enable them to meet with Union representatives without fear of repercussions from management. A further off-site meeting was held on the evening of 19 December, and similar issues were again raised.

[23] He also indicated in re-examination that there had been some recent occasions when he had been able to speak to employees without Mr O’Leary being present, and at these times it appeared they were willing to engage more readily in discussions without the concern of being watched or retribution being imposed in response.

[24] Mr Moon also acknowledged in cross-examination that he had no issue with the requirement to be escorted from the site entrance to the Engineering Building and it was completely reasonable. He also confirmed that he was only required to wear the VICT PPE when going from the security building to the amenities room/lunchroom in the Engineering Building, and once in that room he was able to remove it.

[25] He also indicated that Mr O’Leary did not at any time prevent him from holding discussions with employees but, “The basis of the application is that him being there is preventing me from holding the discussions in a full manner. That is the basis of the entire application. I think that that's quite inherent throughout the whole statement, that that's the cause of the hindrance, would you not agree?” 5 He continued to state, “Mr O'Leary's presence at any given time has caused the discussions to be less forthcoming from any employee. That's the cause of him being there.”6

The Applicant’s Submissions

[26] The application seeks the following orders:

•  an Order that Mr O’Leary must not hinder or obstruct any right of entry permit holder entering the terminal from exercising their rights under the Act;

•  an Order that Mr O’Leary must not attend the meal room or any other location at the terminal where a permit holder has exercised the right to hold discussions with employees during their meal breaks; and

•  an Order that Mr O’Leary must not hinder or prevent a permit holder from exercising their rights to enter the premises to hold discussion with employees if they are wearing appropriate PPE, whether supplied by the company or not.

[27] It continues to submit that the Act allows right of entry for a number of defined purposes, and these are intended to reflect the important role trade unions have under the Act. Section 502 has accordingly been included in the legislation to protect the exercise of these rights, and extends to encompass actions or conduct that make it more difficult for permit holders to discharge their functions.

[28] It also relies on the decision in Darlaston v Parker (“Darlaston”), 7 and the judgement of Justice Flick when he concluded:

“…the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s 767(1).” 8

[29] It continues to submit that the decision makes clear that hindering for the purposes of s.502(1) involves an act or conduct that makes it more difficult for a permit holder to discharge their functions, while obstructing involves an act or conduct that interrupts, blocks or makes it more difficult for a permit holder to discharge their functions. Given that the purpose of entry by a permit holder is to hold discussions with employees the presence of Mr O’Leary in the amenities room makes this more difficult. In its submission if his presence makes it more difficult for even one employee to engage in those discussions, then the permit holder has been hindered or obstructed in the discharge of their functions. It submits in this case that this has been established by the evidence.

[30] The Union continues to submit that on most occasions when its representative has attempted to hold discussions with employees at the worksite Mr O’Leary has remained in attendance in the room, and this hinders and/or obstructs the permit holder from holding those discussions and therefore from exercising his rights as a permit holder. It also submits that his intentions in remaining in the lunchroom are not necessarily relevant, and the test is instead concerned with whether or not his actions in doing so make the discharge of the functions of the permit holder more difficult.

[31] In terms of the impact upon employees it relies primarily on the evidence of Mr Moon and what he has been told by employees about them feeling uncomfortable in speaking to him when Mr O’Leary was either within earshot, or when he was present in the amenities room. It rejects any suggestion that this evidence is hearsay, but notes that in any case this evidence was unchallenged, and it was not put to Mr Moon in cross-examination that these conversations did not occur. It also points to Mr O’Leary’s own evidence when he stated that in his experience employees would be intimidated by the presence of a Manager in the room while they are meeting with a Union official.

[32] It also takes issue with the submission by VICT that the act or conduct complained of must be done with the intention of hindering or obstructing the permit holder, and as this was not Mr O’Leary’s subjective intention this test has not been met. The Union submits in response that this question was considered by the Federal Court in the matter of BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union. 9 It refers, in particular, to an extract from the judgement of Justice Colvin at [43] when he concluded:

“In my view, a similar approach should be applied in the circumstances of this case where civil penalties may apply. In the absence of an express statement that the word intention is intended to apply to the “result” aspect of the meaning of “hinder or obstruct”, it should not be concluded that the intention was that the reference to “intentionally hinder or obstruct” was to require more than a general intention, that is deliberateness. Fundamentally, the proscription is upon the actions of hindering or obstructing. It is the actions that are required to be deliberate.”

[33] It submits in response that VICT has conceded that Mr O’Leary’s actions were intentional and were not accidental or inadvertent. It is accordingly his actions, rather than his subjective intention, that is relevant in terms of the Commission’s considerations, and if it accepts that his actions have made it more difficult for Mr Moon to perform his functions, then an order should be made. Put in a different way if the act is done intentionally, and the outcome results in hindrance or obstruction, then an order should be made.

[34] It also submits that the Commission is not constrained in terms of the orders it might make, and it was open to it to make orders in terms different to those proposed. It suggested in this context that the orders might appropriately extend beyond making specific reference to Mr O’Leary, and instead encompass any management representative.

[35] It also submits that the requirement to wear company supplied PPE is not a reasonable request within the meaning of s.491, and appeared to be motivated more by political concerns rather than by any purpose related to safety.

The Respondent’s Evidence and Submissions

Mr Michael O’Leary

[36] Mr O’Leary is employed by VICT as the Director of Human Resources and Industrial Relations and has been in this role since August 2015. He has had a long-standing involvement with industrial relations matters in the stevedoring industry, and was for a significant period of time a senior official of the Maritime Union of Australia, as it was then known.

[37] VICT’s container terminal at the Webb Dock at the Port of Melbourne commenced operation in early 2017 and Mr O’Leary indicated in his witness statement that, “Since late December 2017, the MUA has waged a concerted campaign against VICT’s operations in Australia, and against VICT’S parent company, ICTSI.” 10 His witness statement continued to provide details about these disputes.

[38] Mr O’Leary indicated in his evidence that the employees that the Union is entitled to represent normally take their lunch break in the amenities room in the Engineering Building. It is located close to the wharf and is around 1.2 kilometres from both the Administration Building, where Mr O’Leary is located, and the Security Building and entrance to the site. The Engineering Building can only be accessed by vehicle and all visitors are escorted at all times.

[39] The amenities room in the Engineering Building is used by employees who are working on the wharf and by other employees who are based in the Engineering Building. It is 7.96 metres by 12.80 metres in size. Mr O’Leary’s witness statement attached several photographs and a plan of the room.

[40] Mr Moon first exercised right of entry at the site on 25 February last year. Mr O’Leary met him at around 2.00 pm and escorted him to the amenities room in the Engineering Building. He told him that he expected that he would exercise right of entry in accordance with the Act, and Mr Moon later met with various employees. He returned at around 8.00 pm to hold discussions with employees on the night shift. Mr O’Leary said Mr Moon made no mention of his presence in the Engineering Building during his visit and he was out of earshot at all times with the employees that Mr Moon was having discussions with.

[41] On 18 September last year Mr O’Leary again met Mr Moon at the Security building after he had given notice that he wanted to exercise right of entry. He was accompanied on this occasion by the Union’s National Safety Officer, Mr Michael Cross, who was seeking to enter in relation to an OHS issue concerning fatigue. Mr O’Leary again accompanied them to the Engineering Building. His presence was not intended to intimidate Mr Moon or any of the employees, and neither Mr Moon nor Mr Cross made any comment about him being present in the building at the time.

[42] Mr Moon again attended at the site on 19 and 21 September and on both occasions Mr O’Leary escorted him to the amenities room in the Engineering Building. Mr O’Leary remained in the room for most of the time, but was out of earshot at all times. He was sitting approximately 7 metres from where Mr Moon was, although on one occasion he left the room briefly to attend to another matter. He disagreed with the statement by Mr Moon that the willingness of employees to engage in discussions with him stopped abruptly when he entered the room. He indicated instead that there was no noticeable change in the behaviour of the employees when he returned to the room. He did not remain in the room to observe who was meeting with Mr Moon, however, Mr Moon did tell him on that occasion that he believed he was there to hinder or obstruct his right of entry.

[43] Mr Moon again attended at the site on 20 December. As he left the site Mr O’Leary noticed that he was wearing a t-shirt with a union logo, and also had the same logo on his helmet. He told him that in future he would be required to wear the appropriate company PPE. He disagreed with the suggestion that Mr Moon had then asked him for a copy of the company’s uniform policy.

[44] He again attended on 9 January and was wearing the same union logos. Mr O’Leary told him that as a visitor to the site he must wear the VICT issued PPE if he was to enter. Mr Moon then left the site immediately. Mr O’Leary denied he was attempting to frustrate any ability to exercise right of entry, and was instead simply seeking to apply the company policy in regard to the wearing of PPE. A similar situation then occurred again on the following day.

[45] Mr Moon next exercised right of entry on 6 February and Mr O’Leary again met him. Mr Moon wore the VICT PPE as required on this occasion and then removed it after he had entered the Engineering Building as PPE is not required to be worn inside the building, other than in the maintenance workshop. Mr O’Leary again remained in the room for most of the time, although he went upstairs to do some other work for around 10 minutes. At no time was he able to hear what was being said in the discussions and he was not within earshot.

[46] Mr O’Leary indicated that his reasons for remaining in the amenities room during the exercise of Mr Moon’s right of entry were as follows:

•  all visitors to the site are required to be escorted to ensure the safety of all on-site;

•  he was concerned that Mr Moon as an official of the Union might attempt to intimidate employees or otherwise do the wrong thing. He had also been approached by some employees who had told him they felt uncomfortable with Mr Moon’s presence in the lunchroom, and he was concerned to ensure that employees did not feel pressured and intimidated;

•  he was also concerned about compliance with the appropriate requirements and this had been heightened by Mr Moon’s refusal to wear the company supplied PPE;

•  attending the Engineering Building also provided him with the opportunity to deal with other issues while he was there, rather than having to return again at a later time.

[47] He also indicated in his evidence that at no time had any employee approached him with concerns about him remaining in the amenities room while right of entry was being exercised. Mr Moon had not raised any concerns or issues with him either in conjunction with his visits to the site. He also denied that he had only ever attended the Engineering Building and the amenities room when Mr Moon exercises right of entry, and there had been many other occasions that he had attended.

[48] He also indicated that all personnel permitted access to the site are required to wear mandated PPE when within operational areas. As a secure site it is important that everyone on-site can be properly identified and is escorted at all times. He also indicated that visitors are distinct from contractors who are working on the site, and it is part of the contractual arrangements entered into that they supply their own materials, including PPE.

[49] Mr O’Leary also indicated in cross-examination that while he had been involved in some significant issues with the Union during the time he had been employed by VICT, his discussions and interactions with Mr Moon had generally been cordial and he had never been aggressive or rude towards him. He also denied that he was upset about Mr Moon attending the site while wearing the Union logo, and he was only endeavouring to enforce company policy in regard to the wearing of appropriate PPE.

[50] He also agreed with the proposition that employees might not have spoken to him about being intimidated by his presence in the amenities room because if they had been intimidated, then they would likely not have raised the matter with him. The following exchange also took place at the conclusion of his cross-examination:

“Yes, and if the manager tried to stay in the room or tried to talk to you, what would you say to them?‑‑‑Managers never really stayed in the room. They were separate amenities always.

What would you have said to them in that time?‑‑‑I would have asked them to leave, yes, definitely.

And why would you have asked them to leave?‑‑‑I beg your pardon?

And why would you have asked them to leave?‑‑‑Because people may be intimidated by them.” 11

The Respondent’s Submissions

[51] VICT acknowledges in its submissions that the right of entry provisions in the Act aim to balance the right of unions to represent their members and obtain information from them, when necessary, with the right of an occupier of premises to be able to go about their business without undue inconvenience. It also makes reference to the decision in Darlaston and cites the following extract from the judgement of Justice Flick:

“It must be constantly recalled that any conferral of a statutory right to enter premises, be they private premises or business premises, is a serious encroachment upon liberty and all such statutory provisions must be construed so that “the encroachment is no greater than the statute allows, expressly or by necessary implication.”” 12

[52] It also refers to the same extract from the decision cited by the Union in terms of the meaning of hinder or obstruct. It continues to submit that it is not sufficient to merely allege that a particular act or type of conduct could conceivably make it more difficult to exercise right of entry; the act or conduct must instead amount to an actual and appreciable obstruction or interference. In its submission the Union has failed to point to any appreciable obstruction or interference, and the references to employees feeling intimidated did not go so far as to actually prevent the discharge of the right of entry entitlement. The evidence indicates instead that Mr Moon could and did engage in discussions with employees during the time he was exercising right of entry. Mr O’Leary’s presence was accordingly, as he indicated in his witness statement, “legitimate, explicable and justified.” 13

[53] It submits that the evidence about hindrance or obstruction indicates at its highest that:

•  Mr O’Leary’s presence in the amenities room was intended to intimidate employees;

•  it was interpreted by Mr Moon to be hostile behaviour;

•  it led to the discussions with employees being less frank and open than they might otherwise have been; and

•  certain unnamed employees had indicated to Mr Moon that they would only feel comfortable talking to him if there were no management representatives present in the room because they were otherwise concerned about the fear of repercussions.

[54] However, it continues to submit that in the absence of any direct evidence from any witnesses about any of these matters it is not possible to conclude that any hindrance or obstruction has occurred. For example, it could be that the employees did not wish to talk to Mr Moon, or did not have any issues they wanted to raise with him. For example, Mr O’Leary’s evidence indicated that Mr Moon has never raised any issues with him following the occasions on which he has exercised right of entry. It also submits that there is no evidence of any repercussions for employees who participated in discussions with Mr Moon.

[55] In addition, there is no evidence that Mr O’Leary had engaged in conduct that might lead to a conclusion that hindrance or obstruction was occurring. For example, there is no evidence of him standing over Mr Moon or any employee in a threatening or intimidating way. There is also no evidence of him listening to any discussions, and no evidence of him taking notes or making a record of those involved in any discussions.

[56] VICT also made reference to the acknowledgement by Mr O’Leary in cross-examination about the possibility of the presence of a management representative in the room giving rise to a feeling of intimidation. It submits, in response, that there is nothing before the Commission to demonstrate that this has occurred in this case. It also refers to the practical realities involved in the present matter and notes, firstly, that the Engineering Building is some distance away from the Administration Building. Secondly, the amenities room in the Engineering Building is also used by other employees, and there is accordingly a requirement to look after the interests of those employees who do not wish to be involved in discussions with the Union while right of entry is being exercised. VICT was also concerned to ensure that right of entry was exercised in accordance with the relevant statutory requirements, particularly given the recent history of disputation between it and the Union, and this would be difficult to police if Mr O’Leary, or any other appropriate management representative, was excluded from the room when right of entry was being exercised.

[57] It relies in this case on the decision of Commissioner Williams in Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture (“Pluto”), 14 which concerned a complaint that an employer representative would remain in the vicinity of the permit holder for the entire period while right of entry was being carried out. It refers specifically to the Commissioner’s conclusions at [185] and [186] when he stated:

“I also note that the same witnesses in some cases have attended quite a number of union meetings, assumedly in the full knowledge that on each occasion they would be observed by the CCI representative. Overall I accept the employees have concerns about being observed by the CCI escort but do not accept that these are so serious as to properly be described as intimidation.

The practical reality is that on a site such as this it is not possible for permit holders and employees to meet for discussions and avoid other persons being aware whom has participated in the discussions. If permit holders and employees wish to have total privacy and anonymity they are able to hold the discussions off-site out of working hours.”

[58] It submits that this is similar to what has occurred in the present case, with the evidence of Mr Moon indicating that discussions do take place off-site with employees out of working hours in circumstances where those discussions are completely private and confidential.

[59] It also makes reference to the conclusion of Commissioner Williams at [190] when he stated:

“I accept that the occupier at all times has a right to ensure that a permit holder exercising a right of entry does so only within the limits of the FW Act.”

[60] It also refers to the decision of Senior Deputy President Richards in The Australian Workers' Union; The Australian Workers' Union of Employees, Queensland v Ardent Leisure Limited T/A Dreamworld (“Dreamworld”), 15 which dealt with concerns by the Union that the presence of a security guard in the room, while right of entry was being exercised, was intended to dissuade employees from participating in discussions with the Union. It refers in this context to [39] of the decision when the Senior Deputy President concluded:

“The security guard, in my view, [as] it appears from the evidence, carried out the instructions of the human resources department, which was to escort the two AWU officials to The Shell and then to escort them back. There is no evidence that their presence acted as a disincentive to employees to engage in any meetings. There was sympathetic conversation between Mr Simpson and the guard and there is no evidence from any employees that they are genuinely intimidated by the presence of [a] guard and would not attend a meeting in which they saw [a] security guard milling around.”

[61] VICT submits that the same scenario exists in the present case and there is no evidence that employees have been genuinely intimidated, obstructed or hindered by the presence of Mr O’Leary in the amenities room while Mr Moon is exercising right of entry. The evidence indicates instead that meetings and discussions have been occurring on those occasions when Mr Moon has visited the site.

[62] It also submits that because there has been no hindrance or obstruction, the Commission does not need to consider whether this has occurred intentionally. However, it also relies on the decision in Construction, Forestry, Mining and Energy Union and Others v John Holland Pty Ltd and Others 16 to submit that in any case it is a subjective test that must be applied, and what must be considered is the effect of the act, and not the intention to do the act itself. In this context Mr O’Leary was present in order to escort Mr Moon in accordance with site requirements, and to then support any employees who might feel pressured or intimidated by his presence. It was also done to ensure Mr Moon exercised his right of entry in accordance with the Act. Mr O’Leary also took the opportunity to speak with other employees located at the Engineering Building in circumstances where he does not otherwise visit that part of the site on a regular basis.

[63] In terms of the request to wear company supplied PPE VICT submits that the reason for this requirement might not always be self-evident, and it was not for VICT to demonstrate that its request was reasonable. The onus was instead on the Union to demonstrate that the request was not reasonable in terms of its interests. It submits that it has failed to do so, and Mr Moon’s preferences are not a relevant consideration in this context. The requirement for visitors to wear PPE supplied by the business is instead entirely reasonable in terms of the operational requirements of the site.

[64] It submits in conclusion that the application should be dismissed as there has been no intentional hindrance or obstruction in contravention of s.502 of the Act. It also makes reference to the nature of the proposed orders and submits, firstly, that there is a question about whether they represent an exercise of judicial power and so are beyond the power of the Commission. Secondly, it submits that they are so vague so as to be void of real meaning. For example, Mr O’Leary does not acknowledge that he has hindered or obstructed, and has no intention of acting to hinder or obstruct in the future. It continues to submit that without a finding that the relevant conduct amounts to a hindrance or obstruction the Commission would be acting erroneously in making the orders sought by the Union. In addition, the request to wear the company supplied PPE is a reasonable one within the meaning of s.491 of the Act.

Consideration

[65] The present application is made against the background of some significant industrial issues that have existed between the parties in the recent past, and which have evidently placed a strain on their relationship at a number of different levels. However, there is nothing in the present matter to suggest that Mr Moon, when exercising right of entry at the Webb Dock site as an organiser for the Union, has acted unlawfully or inappropriately. The Commission is instead required to determine whether he has been unreasonably hindered or obstructed when exercising right of entry and, secondly, whether the requirement by VICT to wear company supplied PPE is a reasonable request.

[66] It is not necessary to go to the scheme of the Act in any detail at this point, and the relevant legislative provisions have been set out at an earlier point in this decision. However, it can be noted that the objects of this part of the legislation make clear that the intention is to establish a framework which seeks to balance the rights of organisations to represent their members in the workplace with the rights of occupiers of premises/employers to go about their business without undue inconvenience. This has been acknowledged by the parties in their submissions. As part of seeking to achieve this balance s.491 provides that a permit holder must comply with any reasonable request by the occupier of premises concerning compliance with a health and safety requirement that applies at the premises. Section 500, in turn, provides that a permit holder must not intentionally be hindered or obstructed while exercising rights under the legislation. Section 505 then enables the Commission to deal with disputes arising under these provisions.

[67] In terms of the approach to be applied both parties made reference to the decision in Darlaston as authority for the proposition that when considering what “intentionally hinder or obstruct” requires, the Commission can have regard to any act that has this effect, other than one which is clearly accidental. However, it must be an appreciable hindrance or obstruction in terms of its effect, and not something that is trivial in nature in terms of its impact.

[68] It is also necessary to have regard to the impact of the actions, and not just the subjective intention to do the act itself. In addition, the Commission must be satisfied that the evidence establishes that the act or conduct has caused an actual and appreciable obstruction or interference. It is not sufficient to merely allege that the particular act or conduct in question could potentially have that effect.

[69] I turn, firstly, to deal with the issue of whether Mr O’Leary’s actions in remaining in the amenities room while the permit holder was meeting with employees when exercising right of entry can be said to involve him intentionally hindering or obstructing the permit holder. The Union relies primarily on the evidence of Mr Moon, who indicated that he believed Mr O’Leary’s actions were intended to intimidate members and eligible members from meeting with him. Mr Moon also cited instances when Mr O’Leary briefly left the room to attend to other matters. His evidence indicated that employees appeared more willing to speak to him during these times, but this willingness to engage “abruptly stopped” when Mr O’Leary returned. The Union acknowledges that Mr Moon was not prevented from meeting with employees, but points to his evidence that they were “less forthcoming,” and the discussions were not conducted in a “full manner” because of Mr O’Leary’s presence in the room.

[70] The Union also highlights Mr Moon’s evidence in regard to a meeting held off-site with employees when some attending apparently told him they felt intimidated by Mr O’Leary’s presence in the room during the on-site meetings, and asked if these could be arranged without him being present. The Union also rejects any suggestion that this evidence should be rejected on grounds of hearsay, and notes that Mr Moon was not cross-examined as to the validity of this evidence. It continues to submit that the reason why individual employees were not asked to give evidence about these matters in these proceedings was for reasons related to why the application was being pursued; the employees were concerned about possible repercussions from management if they did.

[71] It also points, finally, to Mr O’Leary’s own evidence in cross-examination when he stated that in his experience employees would be intimidated by the presence of a Manager in the room when they are meeting with a Union official.

[72] VICT relies primarily on Mr O’Leary’s evidence in response. He indicated that he did not act at any time with the intention to hinder or obstruct the permit holder, and did not believe his actions had this result. He also provided a series of reasons why he was in the room at the time. Firstly, he was required to escort Mr Moon to the amenities room. This was not contested. Secondly, he wanted to ensure that Mr Moon acted at all times in accordance with the requirements of his permit, in circumstances where the Union had recently been involved in a “concerted campaign” against VICT. Thirdly, he was concerned to protect the interests of other employees using the amenities room while right of entry was being exercised. He also generally had little cause to go to the Engineering Building, which was located more than a kilometre from the building in which he worked, and remaining in the amenities room provided a good opportunity for him to catch up with employees he had not met or spoken to for some time.

[73] In terms of whether Mr O’Leary’s actions had the effect of hindering or obstructing the permit holder, regardless of what his intentions were, VICT points to the evidence indicating that he was never within earshot or able to hear what was being discussed when Mr Moon was meeting with employees. Secondly, Mr Moon never made any comment or complaint at the time about him being in the room. Thirdly, Mr Moon met with a number of employees during his visits without any apparent inhibition or reluctance on the part of those employees. In addition, Mr Moon had never raised any issues of concern with Mr O’Leary, after exercising right of entry, despite him having attended at the site on several occasions.

[74] In coming to a decision in this matter I have had regard, firstly, to the decisions in Pluto and Dreamworld. It is acknowledged at the outset that the Commission is not necessarily bound to follow or apply these single-member decisions. However, they both deal with circumstances that are, in part, not dissimilar to those in the present matter and involve a third party remaining in the vicinity while right of entry is being exercised and the permit holder is meeting with employees. One case involved a representative from an employer organisation, while the other concerns a security guard who escorted the permit holder to the meeting room. In both cases the Commission member concluded that in the absence of evidence to the contrary these actions did not amount to intimidation of the permit holder. It was also acknowledged in Pluto that an occupier of premises is entitled to ensure that a permit holder exercises right of entry within the scheme of the legislation. However, it is also acknowledged that in these cases the third party was not a direct employee of the business, who might obviously be more familiar with the identity of employees that were meeting with the permit holder, and who might accordingly be considered to be a more intimidating figure.

[75] I have also had regard to the evidence and those authorities that have emphasised that any hindrance or obstruction of the permit holder must be significant or “appreciable” to constitute a breach of the relevant legislative provisions, and must be more than something trivial in nature.

[76] I am not satisfied that it can be concluded in this context that a breach of s.500 has occurred. In coming to this conclusion I have had regard to the rationale provided by Mr O’Leary for him being in the room, and the fact that discussions with employees took place, apparently without any complaints at the time about Mr O’Leary’s presence in the room. It is also noted that despite the concerns about possible repercussions for employees who met with the permit holder there does not appear to be any evidence of this occurring in a way that might have acted to subsequently dissuade employees from meeting with the permit holder. However, I have also had regard to what can be described as Mr O’Leary’s somewhat frank evidence in cross-examination that based on his prior experience as a long-standing Union official he considered that employees might be intimidated by the presence of a Manager in the room when meeting with a Union official. I will come to deal with this again shortly.

[77] I turn next to deal with the question of whether there has been a breach of s.491 that would warrant an order being made in response. This concerns the circumstances in which Mr Moon has in more recent times been required to wear PPE supplied by the business when entering the site, whereas previously he was allowed to wear the PPE that he had when he arrived at the site. It does seem strange on the one hand that Mr Moon, as the permit holder, was able to enter the site unchallenged for a period of time on the basis that he was wearing appropriate PPE, and then suddenly this was no longer permitted and he was required to wear company supplied PPE. The Union claims this was a random act, with no foundation in company policy. It also suggests that it was motivated by the fact that Mr Moon’s PPE displayed Union logos and this was a ‘red rag to a bull’ when it came to Mr O’Leary. However, it is also noted in this context that PPE is not required to be worn in the amenities room, and once in that room Mr Moon was able to discard the company supplied PPE and wear clothing which displayed the Union’s logos and insignia.

[78] It is somewhat unfortunate that this relatively trivial matter has not been able to be resolved on some mutually agreed basis. It is also not entirely clear why VICT changed tack midstream in regard to its practices at the site. However, I am prepared to accept, based on the evidence of Mr O’Leary, that it now adopts a standard approach whereby all visitors to the site are required to wear the PPE it provides as part of an approach designed to ensure that there is no issue from an occupational health and safety standpoint about appropriate PPE being worn on-site. I am satisfied that this can be considered to be a reasonable request based solely on those important OHS considerations.

[79] It follows as a consequence of the conclusions I have reached in regard to each of the matters raised by the Union that I am not prepared to make the orders it seeks, or indeed to make any other orders. However, I also add the following concluding observations. Firstly, there is no evidence in the proceedings that indicates the permit holder, Mr Moon, has acted inappropriately or acted in breach of the relevant legislative provisions on the various occasions he has exercised right of entry at the Webb Dock site over the past 18 months. There is also nothing at this point to indicate he is likely to act inappropriately in the future if he again seeks right of entry at the site. This would suggest that there is no longer any requirement for him to be kept under close observation at all times when exercising right of entry. There is also no suggestion that other employees using the amenities room at the same time have been obstructed or affected in any way by Mr Moon being in the room for the purpose of meeting with employees. In addition, Mr O’Leary’s evidence, based on his long-standing experience as a former Union official, suggested that employees could be intimidated by the presence of a Manager in the same room while they are meeting with a Union official. Presumably he would not expect that such meetings take place in those circumstances. This suggests that it might be appropriate for arrangements to be put in place to enable a permit holder to meet with employees, who wish to be involved in any such meetings, without being observed by a management representative.

[80] However, for the reasons indicated above the Commission declines to make the orders sought by the Applicant, and does not consider that it is necessary for any other orders to be made. The application is accordingly dismissed.

COMMISSIONER

Appearances:

L Edmonds for the Applicant.

G Simmonds of Seyfarth Shaw for the Respondent.

Hearing details:

2019.

Melbourne:

April 16.

Printed by authority of the Commonwealth Government Printer

<PR711380>

 1   Fair Work Act 2009 (Cth) at s.505(2)(e).

 2 Exhibit CFMMEU1 at [11].

 3 Ibid at [12].

 4 Ibid at [17].

 5   Transcript at PN164.

 6   Ibid at PN165.

 7   Darlaston v Parker and Others [2010] FCA 771.

 8 Ibid at [52].

 9   BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 74.

 10 Exhibit VICT1 at [14].

 11   Transcript at PN465-PN468.

 12   Darlaston v Parker and Others [2010] FCA 771 at [44].

 13 Respondent’s Outline of Submissions dated 5 April 2019 at [10].

 14   Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture[2010] FWA 2341.

 15   The Australian Workers' Union; The Australian Workers' Union of Employees, Queensland v Ardent Leisure Limited T/A Dreamworld[2009] FWA 926.

 16   Construction, Forestry, Mining and Energy Union and Others v John Holland Pty Ltd and Others (2010) 186 FCR 88.