Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd
[2014] FWC 5407
•13 AUGUST 2014
| [2014] FWC 5407 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505—Right of entry
Construction, Forestry, Mining and Energy Union
v
Austral Bricks (Vic) Pty Ltd
(RE2014/764)
Austral Bricks (Vic) Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(RE2014/914)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 13 AUGUST 2014 |
Right of entry dispute; whether parties cannot agree to location for permit holders to hold discussions; whether s. 493(3) invoked; whether discussions held with employees after entry under s. 484, discussions with employees of a permitted class
Introduction
[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has applied to the Fair Work Commission (Commission) under s. 505 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute about the operation of Part 3 – 4 of the Act. That application was lodged with the Commission on 3 April 2014. On 9 May 2014 Austral Bricks (Vic) Pty Ltd (Austral Bricks) applied under s. 505A of the Act for the Commission to deal with the dispute about the frequency with which certain persons who are permit holders under the Act enter its premises under s. 484. That application was ultimately not pressed and permission was given to Austral Bricks to amend its application so as to bring it within s. 505 of the Act 1. The CFMEU’s application sought a resolution of the dispute about where discussions with employees could be held upon entry by a permit holder pursuant to s. 484 of the Act.
[2] There are two elements to the dispute that is the subject of Austral Bricks amended application. This is apparent from the orders that it seeks 2. The first element concerns the extent to which the permit holder must endeavour to reach an agreement with Austral Bricks about the room or area of Austral Bricks’ premises in which discussions are to be held before it can be said that the permit holder and Austral Bricks cannot agree on the room or area in which to hold discussions within the meaning of s. 492 (2). The second element of the dispute concerns the extent to which the permit holder is required to ascertain whether the employees with whom discussions are to be held are employees who fall within the description in paragraphs 484 (a) (b) and (c). Austral Bricks also complains about the manner in which the permit holders held discussions on 17 March 2014.
Background, factual context and findings
[3] Mr Colin Flanagan and Mr Steve Roach each hold of a permit issued under Division 6 of Part 3 – 4 of the Act 3. The permit holders’ organisation is the CFMEU. Austral Bricks operates a manufacturing plant located at Brickmakers Drive, Wollert in the State of Victoria (Wollert plant). The permit holders attended together at the Wollert plant on three occasions in March 20144. On each occasion a notice under s. 487 of the Act (entry notice) was given to Austral Bricks by the permit holders5. Each entry notice given specified that the entry by the permit holder would be under s. 484 of the Act. That is, entry would be for the purposes of holding discussions with certain employees.
[4] On the first two occasions of entry, the permit holders were permitted to enter and use a lunchroom which is available for use by employees of Austral Bricks to have their meal and other breaks, for the purposes of holding discussions 6. On the third occasion of entry, being 24 March 2014 the permit holders requested access to the lunchroom so that they could hold discussions with employees however Austral Bricks’ general manager told the permit holders that the lunchroom would not be available for their use to hold discussions and instead the Northcote meeting room would be available for that purpose7. The permit holders did not agree to use the Northcote meeting room and left the Wollert plant8. The evidence of Mr Flanagan was that the permit holders did not agree to use the Northcote meeting room because it was very small, located in an obscure area of the Wollert plant and employees would need to leave the lunchroom, go through the factory and reception to gain access9.
[5] Mr Chris Troman is the General Manager of Austral Bricks and the person with whom on each of the three occasions of entry referred to above, the permit holders had discussions about a location at which they could hold discussions with employees. Mr Troman gave evidence that following the entry by the permit holders on 17 March 2014 “a number of employees provided informal feedback that they were irritated and uncomfortable with the CFMEU officials presenting to them while they were having their lunch-break in the lunchroom” 10. Mr Troman’s evidence was that the decision by Austral Bricks to not allow the permit holders to use the lunchroom to hold discussions with employees was brought about because of the feedback received from employees who had been in attendance in the lunchroom on 17 March 2014, particularly about the way in which the permit holders had taken to the task of holding discussions on that occasion11. Mr Troman accepted that he was not present in the lunchroom during the permit holders’ attendance on 17 March 2014 and he could not give direct evidence about what had happened12. That the decision about the use of the lunchroom made by Austral Bricks was taken for the reasons given by Mr Troman was not disputed by the CFMEU although it disputes that the conduct alleged to have been engaged in by the permit holders on 17 March 2014 happened.
[6] Mr Garvin O’Donnell is employed as a raw materials superintendent with Austral Bricks 13. Mr O’Donnell gave evidence that he arrived at the lunchroom on 17 March 2014 and observed that CFMEU officials were presenting to all employees in the lunchroom14. He also gave evidence that he “could feel that tension in the air” and that other employees in the lunchroom “looked uncomfortable”15. I accept that this was Mr O’Donnell’s impression gained while in the lunchroom but it is not probative of what particular employees also in attendance in the lunchroom were actually feeling. Mr O’Donnell said that he had no desire to participate in discussions with CFMEU officials16. Mr O’Donnell said that whilst he was in the lunchroom he heard and saw the CFMEU officials, and in particular Mr Roach, amongst other things, use continuous foul language, vigorously shake the lunchroom access door and verbally belittle past and present senior managers of Austral Bricks17. During his oral evidence Mr O’Donnell gave the following account:
THE DEPUTY PRESIDENT: And for my benefit, Mr O'Donnell, when you say "they", and you're going to identify, can you indicate which of the two used what language?---Yes. Makes me feel a little bit uncomfortable with women present but - - -
It's all right, Abby hears me swear all the time?---Yes, okay. The outstanding one early into the meeting, I must state that I had no idea it was the CFMEU at the meeting, I came into the lunchroom whilst Mr Roach, as I believe that's who it was now I know the names, the meeting had already proceeded with me entering the lunchroom, but very early into the discussion I heard was the comment, "We've got to get these cunts." And, with that, right at that point, I was totally unaware of what was happening. I knew that the CFMEU were going to be onsite and having a meeting, and all the employees were told about that. Walking into the lunchroom, I had no idea who it was, whether it was Austral management from another state, but there is the meeting being conducted and I proceeded to sit down and say nothing. Once the foul language started, I sort of worked out this may be the CFMEU, and which I sat through, I had no problem that they were there or for those who wanted to listen. It was unbeknownst to me that it was going to be that time, that day, but it comes back to just basic etiquette of especially when people are invited to hold a meeting onsite, on Austral site, or anywhere, as far as I'm concerned, to address someone as they walk into the lunchroom firstly. I walked in, had to pass in front of the two gentlemen, Mr Roach, and please refresh my memory of the other gentleman's name?
MR TUCK: Mr Flanagan?---Mr Flanagan. Had to walk past in front of them and not knowing who they were, part of the level of etiquette I'm talking about is I would have expected a very brief introduction from the CFMEU to me walking in, whether they were going to invite me into conversation or whatever, but I didn't know who they were, but I quickly worked out who it was sitting opposite fellow work mates and he mimed who it was once Mr Roach said what I - the statement I made before, "Got to get these cunts." And it was the belittling of past and present managers, some of which weren't there since my time at Austral, but I've heard their name before after being with the business for a few years. That made people uncomfortable and that is a personal view of mine, I can only comment that it made people uncomfortable that are sitting opposite, that one particular guy is an apprentice electrician, he's been there many years, an older going doing an apprenticeship, and he raised his eyebrows as soon as names had been mentioned and, like, "That's pretty bad, Garv," you know, and I looked at a recent employee that had only been there 12 months and just wasn't impressed. Now, my statement reflects to etiquette and the way the CFMEU conducted that meeting. I'm not attacking the CFMEU or their rights, or for what they stand for. They are more than welcome to come personally to our site to talk with those who want to listen, that's absolutely fine. You know? They've got their beliefs. But when it becomes and rolls into personal attack of past and present managers, it hits home pretty hard. It questions the respect the guys have on the floor currently today as to, you know, what maybe Mark is what they're saying or Chris, or the names they mentioned. It's just not good etiquette. That's all my statement is.
Who's Mark that you've mentioned?---Sorry, Mark Griffiths.
Mark Griffiths. Who's Chris?---Chris Troman.
Did Mr Roach make comment about those two gentlemen?---When Mr Roach turned 180 degrees and went for a door that we must be scanned into, I couldn't hear his comment, he's shaking the door wanting to get in there and I couldn't hear, I couldn't definitely write down word for word his comment, but he clearly wanted to proceed to get upstairs to see somebody. The only comment I made while the guys were in the lunch room, you know, being so embarrassed by what was going on, I then did offer him access out the smoko room door, "Stay this side of the yellow line, walk around through reception." I did not deny him access in speaking with anybody upstairs, but to gain access it won't be through the door, bang, bang, bang, bang, "You must walk around as any of the public can do and put a request in at the reception for upstairs access."
What other language was he using?---"Fuck this, fuck that." That's when I knew it wasn't an Austral manager giving a speech from another state. Obviously, I know the guys in our workplace and upstairs, I'm up there myself a little bit of the time in my office, and so I know if it was any of our guys. My initial thought was that it could be a safety thing, it could be something happening internally that I just stumbled across. I knew the CFMEU had requested time onsite, and I didn't know it was going to be that hour of that day.
How often did he use the word "cunt"?---I definitely - I've sworn on the bible - I wouldn't say nine times, I won't put a number to it, but it was repetitive.
Mr Flanagan is sitting at the bar table. Do you recall Mr Flanagan being in the room?---Yes.
Did you hear Mr Flanagan speak?---Yes, only briefly.
Only briefly?---Yes.
How long were you in the room?---20 minutes.
Who spoke for that 20 minutes, are you able to give a percentage of who was speaking during that time?---Steve, Mr Roach, Steve Roach. Of that 20 minutes, I only heard Mr Flanagan comment once in my time in the lunch room. As I said, the meeting had already proceeded when I walked in.
So you weren't there for the whole meeting?---No, I don't know how long they were in there previous to me walking in, but in my time Steve spoke and Mr Flanagan only commented once. 18
[7] During cross examination Mr O’Donnell could not recall the words used by Mr Roach to belittle Mr Troman during the lunchroom meeting on 17 March 2014, although he did not recant the allegation 19. As to comments made by Mr Roach about Mr Griffith, Mr O’Donnell gave the following evidence:
What did he say about Mark Griffiths?---He said, "I want to go and see Mr Mark fucking Griffiths."
Apart from that, how did he verbally belittle Mark Griffiths?---He made mention that he had already been down in the lunch room and "we fucking got rid of him, kicked him out", or something.
Again, if you could just be clear on what exactly he said to belittle Mark Griffiths?---No, I can't, sorry.
So you can't recall exactly what Mr Roach said in relation to the current managers?---Not word for word, no, I can't.
But you can't recall exactly what was said in relation to the belittling of current managers?---Not exactly, no. 20
[8] To “belittle” something or someone means to make little or less important, to deprecate or to disparage 21. Although Mr O’Donnell could not remember precisely all the words used by used by Mr Roach, it seems to me the words like "we fucking got rid of him, kicked him out", which are at directed Mr Griffiths’ earlier attendance in the lunchroom (to which I will return), are apt to be described as a belittling comment as they seem to serve no other function than to make little or less important, Mr Griffiths.
[9] Mr Roach, who attended the Wollert plant on the three occasions thus far discussed, did not give evidence in the proceedings before me despite a caution to the CFMEU of a risk of an adverse inference being drawn because of the unexplained absence of Mr Roach 22 and despite subsequent opportunities being given to the CFMEU to call Mr Roach as a witness23. Mr Roach is a central protagonist in the disputes that are the object of these applications.
[10] Mr Flanagan was present during the lunchroom meeting on 17 March 2014 and observed Mr Roach’s conduct. He was asked a series of questions about his observations of that conduct. Mr Flanagan’s evidence was generally non-responsive to questions, vague and evasive 24. For that reason I reject Mr Flanagan’s evidence about what happened during the meeting when it is in conflict with the evidence given by Mr O’Donnell. I also draw an inference that any evidence that might have been given by Mr Roach would not have been helpful to the CFMEU’s application or in refuting the allegations made by Austral Bricks about his conduct on 17 March 2014.
[11] Mr Griffith gave evidence that at about 12:20 pm on 17 March 2014 he attended the lunchroom in order to have a discussion with a shift electrician regarding coverage over the coming weekend 25. Mr Griffiths said that when he entered the lunchroom the CFMEU officials in attendance appeared to be lecturing people in the lunchroom and that there was no discussion with any individual employees in the lunchroom who were sitting at the tables eating their lunches26. Mr Griffiths’ evidence was that Mr Flanagan stopped talking and asked Mr Griffith to leave the lunchroom, in response to which Mr Griffith said words to the effect that “it was as much my lunchroom as it was theirs”. Mr Griffith said that Mr Flanagan and Mr Roach then waited and remained silent, which made it very uncomfortable to talk to his fellow employees and so he left the lunchroom27. Mr Griffith was not cross examined on this evidence. During the cross examination of Mr Flanagan, he was asked about Mr Griffiths version of events. Mr Flanagan said that he did not ask Mr Griffith to leave the lunchroom, but that he stopped the meeting “out of respect of that we were having a meeting and we didn’t want to be interrupted, and when somebody walked in the room and started yelling, that’s when I stopped”28. The allegation that Mr Griffiths yelled after entering the lunchroom was not put to Mr Griffith during cross examination.
[12] Mr Flanagan recalled that Mr Griffith said words to the effect “it’s my lunchroom as much as theirs” and said that is when the permit holders stopped talking and remained silent until Mr Griffiths left the lunchroom 29.
[13] Mr O’Donnell’s evidence that he heard Mr Roach mention that Mr Griffiths had been down in the lunchroom and then say words to the effect of “we fucking got rid of him, kicked him out” 30, seems to support the version of events given by Mr Griffiths in his evidence that he was asked to leave. Mr Roach was not called to give evidence and therefore could not be asked questions about whether he made the comments attributed to him by Mr O’Donnell. For reasons given earlier I infer that Mr Roach’s evidence would not have assisted the CFMEU. Mr Flanagan’s denial that he asked Mr Griffiths to leave the lunchroom does not ring true in the context of the conduct, that is remaining silent until Mr Griffiths left the lunchroom, and his confirmation that he recalled Mr Griffith saying “it’s my lunchroom as much as theirs”, which comment was made, according to Mr Griffiths evidence in response to being asked to leave the room31. The words used by Mr Griffith seem to me to be responsive in nature. Mr Flanagan’s explanation for remaining silent also does not ring true when regard is had to the totality of the evidence. There is nothing respectful about giving someone the silent treatment. For these reasons I prefer the account of events given by Mr Griffiths.
[14] That said, I am not entirely convinced that it was necessary for Mr Griffiths, knowing as he did that the lunchroom was being used by the permit holders to hold discussions with employees 32, to enter the lunchroom to have a discussion with a shift electrician regarding shift coverage over the weekend, bearing in mind that 17 March 2014 fell on a Monday. Whether intended or not, a manager’s presence during discussions by permit holders with employees, is likely at the very least to irritate a permit holder and to give the impression that the manager was intending to interfere with the right of employees to receive information from union officials at work33.
[15] Mr Flanagan’s evidence given during cross examination about the conduct of the lunchroom meeting on 17 March 2014 included the following matters:
● On entering the lunchroom on 17 March 2014 the permit holders conducted a meeting of those in the room. Mr Roach presented to the room when he was talking and there were no individual discussions 34;
● There could have been maintenance workers present in the lunchroom while the permit holders were conducting a meeting 35;
● The CFMEU does not cover maintenance workers 36;
● The permit holders did not seek to discern who was in the room when they conducted the meeting 37.
[16] Mr Troman said that as that lunchroom is the only lunchroom on-site with cooking facilities, and because it is relatively small, Austral Bricks formed the view that it was not a suitable room in which to accommodate “union officials conducting meetings while non-union members are having a break and a meal, having regard to the way in which the CFMEU officials conducted their session on 17 March 2014” 38. This evidence was not disputed by the CFMEU or subject to cross examination.
[17] Mr Troman gave evidence that on the occasion of the entry on 24 March 2014 he explained to the permit holders that the Northcote meeting room would be made available to the permit holders to enable them to hold discussions with employees but the lunchroom would not be available 39. Mr Mark Griffiths the Plant Manager at Austral Bricks corroborated this evidence40. Mr Troman also gave evidence that the Northcote meeting room is a room that is easily accessible, is one generally used by visitors to the site or for contractors’ inductions and is able to accommodate seating for up to 10 persons compared to 16 persons who are able to be seated in the lunchroom41. Mr Troman was not cross examined by the CFMEU about these matters nor were these matters put in issue by the CFMEU.
[18] During cross examination Mr Troman gave the following evidence: “well, they sought the lunch room. We offered the Northcote room as an alternative and they weren’t interested in the Northcote room” 42. It was then suggested to Mr Troman that “so agreement couldn’t be reached”43, with which suggestion he agreed44. Despite the CFMEU submissions suggesting to the contrary I do not accept that this evidence is indicative of a concession that the permit holders and the occupier “cannot agree” within the meaning of s. 492 (2) of the Act or that it is evidence that the parties “cannot agree” given the totality of the evidence showing the limited steps the parties actually took (see further below) to try to agree. Properly understood Mr Troman’s concession is no more than an acceptance that the parties did not agree.
[19] During cross examination of Mr Flanagan, he gave evidence that upon entering the Wollert plant on 24 March 2014 he immediately sought access to the lunchroom 45 and he did not seek to agree on any alternative room46. He said that he specifically asked for a meeting in the lunchroom because that is where “we’ve always had meetings” but accepted that he did not always conduct meetings in the lunchroom when he attended the Wollert plant47. He also accepted that on some previous visits to the Wollert plant he was given permission to use the lunchroom to hold discussions with employees including on the occasion of the entry on 17 March 201448.
[20] As I have indicated earlier above, on 24 March 2014 the permit holders entered Wollert plant under s. 484, requested access to the lunchroom so that they could have discussions with employees however Austral Bricks general manager told the permit holders that the lunchroom would not be available for their use to hold discussions and that the Northcote meeting room would be available to them 49. The permit holders did not agree to use the Northcote meeting room and left the Wollert plant50. Subsequently by letter from the CFMEU to Austral Bricks dated 27 March 2014, the CFMEU sought an undertaking from Austral Bricks that it would allow permit holders to hold discussions in accordance with applicable legislation and indicated that “as the parties do not agree on the room provided, the default location is the meal break room”51. By letter dated 31 March 2014, Austral Bricks, sets out its reason for not permitting the permit holders to use the lunchroom for the purposes of holding discussions with employees. Austral Bricks also sought an explanation why the alternative room proposed was not acceptable, asserted that it had always provided a room in which union officials could hold discussions and foreshadowed a dispute notification about frequency of visits unless alternatives can be agreed52.
[21] On each of 31 March 2014, 14 May 2014 and 21 May 2014 Mr Flanagan entered the Wollert plant for the purposes specified in s. 484 pursuant to a notice of entry given by him to Austral Bricks on 28 March 2014, 13 May 2014 and 20 May 2014 respectively 53. On each occasion Mr Flanagan sought to use the lunchroom for the purposes of holding discussions, was refused use of the lunchroom and left the Wollert plant54.
[22] Mr Flanagan asserted that agreement about location could not be reached on each of the occasions however there is no evidence before me beyond the fact that on each of the days in question Mr Flanagan entered the premises, sought access to the lunchroom, was denied access to the lunchroom and thereafter he left the site because in his view agreement could not be reached. In my view this evidence does no more than establish that Mr Flanagan was denied access to the lunchroom. It does not follow that an agreement about a room or area at which discussions could be held could not be reached. Further there is no evidence that Mr Flanagan asserted on any one of these occasions of entry that he was entitled to use the lunchroom to hold discussions because agreement could not be reached about a room or area in which to hold discussions.
Approach to construction of the relevant statutory provisions
[23] In considering the relevant statutory provisions at issue in this dispute the starting point is to construe the words of the statute according to their ordinary meaning having regard to the context and legislative purpose. 55 The words of the statute being construed should be read by reference to the language of the statute as a whole56. As Lawler VP and Bissett C observed in JJ Richards and Sons Pty Ltd v Transport Workers’ Union of Australia57, after reciting relevant authorities concerning statutory construction:
Drawing these principles together, the task of statutory interpretation is concerned with ascertaining the intention of the legislature as manifested by the text of the legislation. Context (using that word in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy) and the purpose or object underlying the legislation must always be considered. These must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. The text of a provision, read in context and having regard to the object and purpose of the provision, is always the surest guide. 58
[24] In J.J. Richards & Sons Pty Ltd and Another v Fair Work Australia and Another 59 His Honour Justice Flick discussed three long established and fundamental principles to statutory construction. His Honour said:
First, the so-called “golden rule” of the common law as to statutory construction is that “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther”: Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See also: Australian Boot Trade Employés’ Federation v Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311 at 341 to 342 per Higgins J. The “golden rule” is not confined to circumstances where a “mistake” has been made in the wording of an Act; the rule is also applied to avoid construing legislation so as to produce patently unintended or absurd results: Footscray City College v Ruzicka [2007] VSCA 136 at [16], 16 VR 498 at 505 per Chernov JA (Warren CJ and Maxwell P agreeing).
Second, the common law also recognised that “[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey. See also: Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103 per Northrop and Pincus JJ; Minister for Immigration and Citizenship v Hart [2009] FCAFC 112 at [6] per Spender J.
Third, a construction of a statutory provision is to be preferred “that would best achieve the purpose or object of the Act”: Acts Interpretation Act1901 (Cth) s 15AA. The requirement to look to the purpose or object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235. Dawson J there went on to observe that the provision there in question, being a provision comparable to s 15AA, “... requires a court to construe an Act, not to rewrite it, in the light of its purposes”. Similarly, in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 162, Burchett J observed that s 15AA “... is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate ...”. See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at 85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512 at [7], [2001] FCA 512; 112 FCR 589 at 592 to 593 per Sundberg J. “In the end the task of the court is to ascertain and to enforce the actual commands of the legislature”: Re Application of The News Corp Ltd (1987) 15 FCR 227 at 236 per Bowen CJ.
[25] I respectfully agree and apply these principles to construing the provisions at issue in this dispute. In dealing with the proper construction of the relevant provisions of Part 3-4 below I have taken into account the competing submissions made by the CFMEU and Austral Bricks on the subject but I have found it unnecessary to repeat or summarise them in this decision.
Construction of relevant provisions of Part 3-4
[26] The right of entry scheme established by Part 3 – 4 of the Act confers upon a permit holder a statutory right to enter business premises of an employer or occupier. As such it is an encroachment on the right of an occupier or employer would otherwise have to determine who is permitted to enter and who may be excluded from entering premises owned or controlled by the occupier or employer. Accordingly statutory provisions of this kind should be construed so that encroachment is no greater than the statute allows, either expressly or by necessary implication 60.
[27] Section 484 confers on a permit holder a right to enter premises for the purposes of holding discussions with one or more employees who have particular characteristics. Section 484 provides as follows:
s. 484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF outworkers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to
represent; and
(c) who wish to participate in those discussions.
[28] A permit holder is therefore able to enter premises under s. 484 provided he or she has the prescribed purpose. The requirement that a permit holder has the prescribed purpose requires in my view some adequate factual foundation upon which the permit holder came to the view that one or more employees of the kind described in s. 484 are at the premises. It seems to me clear however that the relevant enquiry at point of entry is the purpose of the permit holder for entering and not whether the permit holder has a reasonable belief that persons of the kind described in s. 484 are at the premises at the time that entry is sought 61. As there is no dispute about the purpose for which the permit holders, the subject of these applications entered the Wollert plant it is unnecessary to consider precisely that which might constitute an adequate factual foundation62.
[29] The right of entry given to a permit holder under s. 484 of the Act is not a right that is unfettered. The mere status of a union official as a permit holder does not give the union official an untrammelled right to enter the premises of an employer or occupier 63. The right is subject to express and to implied constraints64. For example the right to enter may only be exercised if the permit holder has the prescribed purpose65, and then only during normal working hours66. Other constraints include the requirement that notice of entry be given67, that entry only occur on the day specified in the notice68, that the permit holder complies with a reasonable request by the occupier for the permit holder to comply with an occupational safety requirement that applies to the premises to which entry is sought69 and that the permit holder not enter any part of the premises that is used mainly for residential purposes70. One implied constraint is that the right must be exercised so as to promote the objects of Part 3 – 4 which are set out in s. 48071. Another implied constraint might be that entry under s. 484 is only authorised at times that are approximate to meal times or other breaks since discussions with employees are only permitted during those times or breaks72. This would be consistent with a view that the right of entry conferred on a permit holder by s. 484 should not be construed as giving any greater right that which is necessary to achieve the statutory purpose, namely to permit a permit holder to hold discussions with particular employees during their meal time or other breaks73. However it is unnecessary for present purposes to determine whether this is correct. There may be additional conditions with which the permit holder will need to comply by reason of any conditions imposed on the entry permit74, or other restrictions on the rights of a permit holder that have been imposed by the Commission75.
[30] Once a permit holder enters under s. 484, the capacity to hold the discussions for which entry was gained is also circumscribed. First, there is the general limitation that the power to enter must be used bona fide for the purposes for which it is conferred and that its exercise not be excessive in the circumstances of a particular case 76. Secondly, as indicated above the discussions with employees may only be held during meal times or other breaks77.
[31] Thirdly, discussions to be held that are authorised by an entry under s. 484 are limited to particular employees. The right of entry is not given for holding discussions with employees generally 78. A permit holder is not permitted to hold discussions with any employee who happens to be on the premises at the time of entry. Relevantly, entry under s. 484 only authorises the permit holder to hold discussions with the employees who fall within the description in paragraphs (a) – (c) of that section. In other words a permit holder who has entered premises may only hold discussions with employees who perform work on the premises, whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions. The authority to hold discussion should not be so narrowly construed as to effectively prohibit effective enquiries being made by the permit holder to establish whether a particular employee or group of employees are within a class of employees with whom discussions are authorised. Plainly, it must be permissible for example for a permit holder to make enquiries with a particular employee or a group of employees whether that employee or members of the group wish to participate in discussions with the permit holder. But if, after the enquiry is made, it is evident that an employee does not wish to participate in a discussion, the permit holder is not authorised to hold a discussion with that employee.
[32] Although Part 3 – 4 does not in express terms limit to the class of persons with whom discussions may be held once entry is gained, it would lead to an absurd result if a permit holder, permitted to enter only for the purposes of holding discussions with a limited class of employees, obtained after entry, some wider authority to hold discussions with employees at large. Reference to discussions found in subdivision C must therefore be read as a reference to “discussions” with employees of a kind described in paragraphs 484 (a) – (c). To put it another way, a permit holder who sought entry to premises for the purpose of holding discussions with employees whose industrial interests the permit holder’s organisation was not entitled to represent, could lawfully be refused entry. It will be a strange result if upon obtaining lawful entry under s. 484, the permit holder gained some wider authority, beyond the purpose for entry, to hold discussions with employees whose industrial interests the permit holder’s organisation is not entitled to represent.
[33] In my view it must also follow that once entry is gained under s. 484, in order that the permit holder not exceed his or her authority there is an obligation on the permit holder to take reasonable steps to ascertain whether a particular employee or a group of employees with whom the permit holder proposes to hold discussions, are within the description of paragraphs 484 (a) – (c). This obligation arises by necessary implication from the text of s. 484 and the statutory scheme permitting entry to hold discussions as a whole, as well as from the prohibitions of hindering, obstructing or acting in an improper manner towards a person found in s. 500 and the prohibition of the taking of action, reckless as to whether an impression is given, that the doing of a thing is authorised by Part 3 – 4 of the Act if it is not authorised, found in s. 504. It is also consistent with the object of Part 3 – 4 set out in s. 480.
[34] Fourthly, discussions with relevant employees may only be held at a location determined by reference to the procedure set out in s. 492. That section provides as follows:
s. 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).
[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 . . .” 79. 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.
[39] Before turning to consider the matters in dispute it is necessary to make some observations about the Commission’s function in dealing with disputes about the operation of Part 3-4. Section 505 contains a general discretionary power for the Commission to deal with particular disputes. That section provides as follows:
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).
[40] Section 505(1) contains a non exhaustive list of the kinds of disputes with which the Commission may deal. Although there is no express reference to a dispute about the operation of s. 492 there is little doubt that the Commission is empowered to deal with such a dispute. It also seems clear that the Commission cannot, under s. 505, deal with a dispute about the frequency of an entry to hold discussions with employees as that matter is properly to be dealt with under s. 505A.
[41] A dispute under s. 505 may be dealt with by arbitration 80, however the Commission has other means by which it may deal with such a dispute. The Commission may deal with the dispute by mediation or conciliation or by making a recommendation or expressing any opinion81. If a dispute under s. 505 is dealt with by arbitration the Commission is empowered to make a range of orders82, but relevantly in relation to a dispute concerning the operation of s. 492, it is not empowered to confer rights of the permit holder that are additional to, or inconsistent with, rights that are exercisable in accordance with Division 2 of Part 3 – 483. An exercise of arbitration powers under the Act does not involve the adjudication of existing legal rights as between the disputants. Rather the exercise of an arbitration power involves a determination of what rights there should be. The Commission does not exercise judicial power. A perusal of the kinds of the orders that may be made by the Commission which are specified in s. 505 (2) (a)-(d) makes good this point, and the general power in s. 505 (2) (e) to make any other order the Commission considers appropriate is to be understood as being so confined.
[42] An application to deal with a dispute about the location at which discussions with employees will be held brought under s. 505 is not an appropriate vehicle to seek a declaration of or resolution to a dispute about existing rights. Such matters must be determined elsewhere. True it is that in the course of dealing with such a dispute by arbitration a view may be expressed or formed, or a conclusion drawn, about the nature of existing rights, but not for the purposes of declaring or resolving those rights. This is done for the purposes of resolving the dispute by determining what future rights should be and then by crafting an appropriate order to give effect to those future rights. Any order that is made, must be carefully and clearly crafted, and must be certain in its operation because compliance with an order is mandated and a contravention of an order is actionable as a civil remedy provision 84.
[43] Unlike other disputes that might be brought under s. 505 which will likely involve disputes about whether something that was done was “reasonable” 85, whether a thing or place was “reasonably available” or “reasonably accessible”86, whether the provision of a thing would cause “undue inconvenience”87, whether a request to provide a thing was made within a “reasonable period”88 or other objectively ascertainable concepts, such concepts do not expressly arise for determination in dispute about the application of s. 492. It seems to me therefore that in determining a dispute of this kind by arbitration and by the making of an order, such orders will necessarily involve regulating the conduct of the permit holder or the occupier or both, in the future in relation to determining the location and the conduct of discussions with the prescribed class of employees. Such an order should be aimed at giving effect to the object of Part 3– 4, the apparent purpose of s. 492, including to encourage parties to reach agreement as to how entry by permit holders to workplaces is facilitated, and take into account fairness between the parties concerned in the dispute89.
Consideration of issues in dispute
[44] At the heart of this dispute is the insistence by the permit holders of a right to use the lunchroom to hold discussions with employees on the one hand, and Austral Bricks refusal to allow its use because of the manner in which the permit holders conducted discussions on 17 March 2014 on the other. The resolution of these issues in turn requires an answer to two separate but interrelated questions.
(a) Was the conduct of the permit holders during the “discussions with employees”, on 17 March 2014 authorised by their entry under s 484?
(b) Did the circumstances of permit holders’ entry on 24 March 2013 and/or Mr Flanagan’s entries on 31 March 2014, 14 May 2014 and 21 May 2014 and the discussions that ensued about location mean that the permit holders (on 24 March 2014) and Mr Flanagan as permit holder (on the subsequent occasions), and Austral Bricks as occupier cannot agree on the location?
[45] These questions are considered below and are answered on the basis of the factual findings I have made earlier above and my conclusions about the construction of the relevant provisions of Part 3-4.
Was the conduct of the permit holders during the “discussions with employees” on 17 March 2014 authorised by their entry under s 484?
[46] As I have indicated earlier in this decision there is in my view an obligation on the permit holder to take reasonable steps to ascertain whether a particular employee or a group of employees with whom the permit holder proposes to hold discussions, are within the description of paragraphs 484 (a) – (c).
[47] Consequently once entry by a permit holder is obtained under s. 484, there is no generalised right to hold discussions with employees per se. In order that any discussions that occur are held with be employees of the permitted class, some basic inquiry by the permit holder needs to be made. There is nothing onerous in this. It is not difficult to establish whether an employee with whom discussions are proposed performs work on the premises. Nor is it difficult to ascertain from that employee whether the employee wishes to participate in discussions. A simple question will usually suffice. Sometimes it will be sufficient if advanced notice is given to employees that a permit holder will be at a particular location at a designated time, for the permit holder to assume that those attending wish to participate in discussions with the permit holder.
[48] As to the entitlement of the permit holder’s organisation to represent the industrial interests of the employee, it is not unreasonable to expect that a permit holder will be familiar, and if not familiar, will take steps to familiarise him or herself, with the kinds of employees whose industrial interests at a particular workplace that the permit holder’s organisation is entitled to represent.
[49] The evidence in this case is that on 17 March 2014 the permit holders took no steps to ascertain whether employees attending the lunchroom at which they held discussions fell within the class of employees with whom discussions after entry under s. 484 is permitted. The permit holders conducted a meeting. Neither Mr Flanagan nor Mr Roach took any step to discern who was in the room when they conducted the meeting. They took no step to enquire whether the employees present in the lunch room, or any of them, wished to participate in discussions. It seems to me the Permit holders did not care, or were reckless as to whether there were any employees in the lunchroom who did not wish to participate in discussions with the permit holders. Mr O’Donnell gave evidence that he entered the lunchroom during the discussions and he did not wish to participate in those discussions. He was not told by either of the permit holders that this was a meeting with permit holders and he was not asked whether he wished to participate in it. It is no answer that Mr O’Donnell could have left the lunchroom if he did not wish to participate. Employees who do not wish to participate in a permit holder led discussion should not be forced to vacate their lunchroom.
[50] It seems to me that in many workplaces it will not be uncommon that during a meal break a lunch room will have present employees who fall within and those who fall outside of the prescribed class of employees with whom a permit holder is permitted to hold discussions. The permit holder should take some steps to ascertain whether those in the room are willing to participate in discussions particularly if the permit holder intends to conduct those discussions by way of a meeting addressing all in attendance. If there are persons who do not wish to participate in discussions, it seems to me that it is incumbent on the permit holder to moderate his or her discussions in a way that will not interfere with the right of an employee to remain in the lunchroom and not to participate in those discussions. That may involve utilising only a portion of the lunchroom and moderating the volume at which the discussion occurs. If that is not possible then it may be appropriate for the permit holder to seek an agreement with the occupier for a more suitable venue. The level of moderation necessary will depend on the circumstances and I am not suggesting that the permit holder must resort to whispering or that those not wishing to participate must not hear any discussion. Meal rooms will, during breaks, doubtless be places of discussion amongst employees. A permit holder should therefore adjust the manner of address to willing participants so as not to unduly interfere with the capacity to those not willing to go about their usual activity in the meal room.
[51] On the evidence the Permit holders did not know whether their discussions were authorised by their entry. It is likely that the discussions held by the permit holders in the lunchroom on 17 March 2014, were not with employees of a class described in paragraphs 484 (a) – (c). Certainly once Mr O’Donnell entered the lunchroom, discussions with him were not authorised, yet they occurred. I note that in The Australian Workers’ Union v Rio Tinto Aluminium (Bell Bay) Limited 90Commissioner Lewin made the following observations about the validity of discussions with employees:
In the absence of any evidence of inconvenience, many speculative assumptions are possible. One might assume that none of the employees who happen to be using a crib room at the time of a permit holder’s visit wish to participate in discussions. The situation is of itself inconsequential in the circumstances. If that is the case then the permit holder could be assumed to comply with the conditions of the permit, there will therefore be no discussions and no inconvenience. Another assumption is that all of the employees present at the time of the presence of the permit holder wish to hold discussions. There can be no issue arising in these circumstances. If an assumption is made that some employees of those present at the time of a permit holder’s visit wish to hold discussions and some do not this of itself is not determinative of whether or not the access should be reasonably available. A simple example can illustrate the problematic nature of the circumstances. If there are ten employees present and nine wish to hold discussions and one does not, it does not follow that the intention of the Act is that the interests of the permit holder and the nine employees wishing to hold discussions are to be nullified by the wish of the one employee not to be a participant in the discussions. No such implication may be drawn from the express terns of the statute or the relevant extrinsic materials. On my reading of the Act, particularly its Objects, the Explanatory Memorandum and the nature of the statutory legal rights conferred upon the permit holder, such a simple nullity would invert the clear policy objects of the legislation and the intention of the legislature.
Moreover, in such circumstances there is more than one assumption involved. It does not follow that a person who does not wish to participate in the discussion would have any concern or suffer any undue inconvenience in the particular circumstance, either of a subjective or objective nature. That person may be indifferent or favourably inclined, able to consume a meal, read, use a smart phone, personal computer, or a pair of headphones. There is no evidence concerning such subjects, this illustrates why relevant undue inconvenience should be a matter of objective evaluation of the facts of an individual case established on a proper basis of evidence. 91
[52] I agree with those observations as a matter of generality. However a conclusive view about validity may only be arrived at based on the facts of a particular case. When as here a permit holder enters a lunchroom which has capacity for only 16 people, making no inquiry about or being indifferent to whether the employees present (or any of them) wished to participate in discussions, proceeding to hold a meeting in the fashion described by Mr O’Donnell, which in its effect gives employees present little or no choice, the question of validity squarely arises. When Mr O’Donnell entered the lunchroom the permit holders did not care whether he wished to participate in discussion. That Mr O’Donnell had to sit in the lunchroom and listen to the permit holders address the employees in the manner suggested by his evidence, by reason of the volume of the discussion, the size and the occupancy of the room, means that he participated in discussions in which he did not wish to participate. That discussion was not authorised.
[53] The evidence does not suggest there were any employees present who wished to participate, but even if there were, the circumstances in which the discussions involving Mr O’Donnell took place, lead clearly to the conclusion that that discussion was not authorised even if discussions with some of the employees were. To conclude otherwise in the circumstances would give no meaning to the right of an employee, in this case Mr O’Donnell, to choose whether to participate in discussions with permit holders.
Did the circumstances of permit holders entry on 24 March 2013 and/or Mr Flanagan’s entries on 31 March 2014, 14 May 2014 and 21 May 2014 and the discussions that ensued about location mean that the permit holders (on 24 March 2014) and Mr Flanagan as permit holder (on the subsequent occasions), and Austral Bricks as occupier cannot agree on the location?
[54] The evidence establishes that on the occasions of entry under s. 484 on 14 and 17 March 2014 the permit holders and Austral Bricks were able to agree on a location at which discussions with employees be held. The parties agreed on the lunchroom as the venue. The evidence also establishes that on subsequent occasions up to 21 May 2014 the parties have not agreed on a venue at which discussions with employees may be held. As I have indicated earlier above it seems to me to be a material difference between a state of affairs where the parties are not in agreement and one in which the parties “cannot agree”. It is this latter state of affairs that the legislature has chosen to impose as a condition before a permit holder can insist upon access to the default location. As I have also indicated as a minimum it seems to me that a conclusion that parties cannot agree, cannot usually be made unless there is some evidence that the parties tried to reach agreement. This will usually involve more than merely attending at a discussion with the other party and proposing a particular venue.
[55] It seems to me on the evidence, on each occasion after 17 March 2014 on which one or both of the permit holders sought access to the lunchroom they did so without proper consideration of the alternative venue proposed by Austral Bricks. The permit holders wanted to use the lunch room because that was the room they had “always” used. The evidence given by Mr Flanagan is suggestive of a permit holder simply going through the motions with a view to establishing by his conduct that he is entitled to access the lunchroom as the default position 92. Likewise there is little effort on the part of Austral Bricks to reach agreement other than its suggestion of the use of the Northcote meeting room. It did not suggest for example, that the permit holders could access the lunchroom provided they moderated the way in which they held discussions with employees and ensured that discussions occurred in a way in which employees who did not wish to participate in discussions were not forced to listen to them or forced to vacate the lunchroom. Further there is no evidence that any other room or area was proposed or considered. There is no evidence that Austral Bricks considered whether the permit holders’ concern about the location of the Northcote meeting room could be met by proposing another room or area that was more proximate or accessible to employees.
[56] It should also be noted that s. 492 does not operate so as to lock in a default venue in perpetuity. The occasion for seeking an agreement about a location to hold discussions arises on each occasion that a permit holder enters under s. 484. That on one occasion the permit holder and an occupier cannot reach agreement, does not mean that on the next occasion the permit holder is entitled to proceed to a meal room as the default position. It must first be established that on that occasion the permit holder and the occupier cannot agree on the room or venue of the premises in which on that occasion the permit holder is to hold discussions.
[57] In short both parties seemed to have adopted fixed view about an appropriate location at which discussions with employees may be held without regard to the point of view of the other party or the reason for that party holding that view. As the parties have not even attempted to explore these matters there is no proper basis on which I could conclude that on any of the occasions after 17 March 2014 at which one or more of the permit holders attended the Wollert plant, that the permit holder(s) and Austral Bricks could not agree on a location at which discussions be held. All that can be said is that they did not agree. I am therefore not satisfied that the parties cannot reach agreement. Furthermore I am not presently satisfied that Austral Bricks denied the permit holders to access the lunchroom as the default location. This is because, first, the evidence establishes only, that Austral Bricks did not, after 17 March 2014, agree that the permit holders could use the lunchroom for the purposes of holding discussions. It proposed another venue. Secondly there is no evidence that either of the permit holders asserted that the default venue operated because the parties cannot agree on a venue and there after sought but were denied access. The evidence is simply that on each occasion the permit holder(s) left the Wollert plant.
Orders sought
[58] The CFMEU sought an order in the following terms:
“From the date of this decision the officers of the CFMEU, when exercising their entitlement as permit holders to enter premises of Austral Bricks (Vic) Pty Ltd for the purposes of holding discussions with employees pursuant to section 484 of the Fair Work Act 2009, be permitted to hold those discussions in the lunchroom of those premises during mealtimes and other breaks”.
[59] There are a number of legal and practical difficulties with the order sought by the CFMEU. First, the order would have the effect of applying to any officer of the CFMEU who is a permit holder. There is simply no evidentiary basis upon which such an order can be made. The present dispute concerns only two permit holders, Mr Flanagan and Mr Roach. An order having effect to other the permit holders who are officers of CFMEU is simply not warranted nor necessary. Secondly, the terms of the proposed order would confer upon CFMEU permit holders, rights that are additional to or at the least inconsistent with, those rights that are set out in s. 492 of the Act. This is because the order would operate so as to entitle permit holders to utilise the lunchroom on each occasion that they entered under s. 484. This would undermine the plain scheme of s. 492 by removing the requirement that holding discussions occur at a room or area of the premises agreed with the occupier. It would entrench the default position in perpetuity in the workplace or at least until further order. Such an order seems to me to be beyond power. Thirdly, the draft order presupposes that an agreement about a venue could not be reached between the permit holder(s) and Austral Bricks on each occasion of entry after 17 March 2014. For the reasons given earlier I am not satisfied that that is the case. Moreover, there is no proper basis upon which I could conclude that on the next occasion when a permit holder enters the Wollert plant that the permit holder and Austral Bricks could not or will not reach an agreement about the location at which discussions with employees make are to be held. Fourthly, an order of this kind takes away any prospect or indeed incentive on the part of a permit holder to try to reach an agreement with an occupier about the location at which discussions with employees are to be held. Such an order would be inconsistent with the scheme set out in s. 492.
[60] Austral Bricks sought a more comprehensive order, which if made, would require the parties to make reasonable attempts to reach an agreement under s. 492. It sets out the steps that should be taken in making those reasonable attempts. The order also would require a permit holder to exercise due diligence to ensure that the permit holder only hold discussions with the class of employees described in paragraphs 484 (a) – (c). The order would also impose a condition attaching to Mr Roach’s entry permit that he exercise his rights to hold discussions with, inter alia, “reasonable civility” and that if he did not breach any provision of Part 3 – 4 of the Act in a period of 12 months following the order, the condition would be removed.
[61] There is much to be said for the first two elements of Austral Bricks proposed order. However I am presently not disposed to making an order compelling that result. I am reluctant to compel behaviour that might voluntarily occur after parties have had an opportunity to consider this decision. It seems to me sufficient that I deal with the dispute by making a recommendation that is substantially to that effect and I propose to do so.
[62] As to the third element of Austral Bricks’ order, I am not satisfied based on the evidence of Mr Roach’s conduct on the one occasion of attendance, warrants the significant step of imposing a condition in the form sought should be imposed. Moreover, that such an order would be sought was not something that was foreshadowed by Austral Bricks in either original application made under s. 505A or in its submissions filed before the commencement of proceedings. The prospect of such an order was only raised in its final submissions 93 made during proceedings on 13 June 2014. The details of the form of the condition sought to be imposed was not apparent until Austral Bricks filed its proposed order on 19 June 2014. Mr Roach has not been given an opportunity to be heard on whether such a condition should be imposed. True it is that he did not attend to give evidence, but it would not have been apparent to him that such an order would be sought. Making such an order in these circumstances would amount to a denial of procedural fairness and consequently I do not propose to make an order imposing a condition attaching to Mr Roach’s entry permit.
[63] That said, conduct of the kind said to have been engaged in by Mr Roach upon the occasion of his entry to the Wollert plant on 17 March 2014, has no place in a modern workplace or in 21st century industrial relations. Foul language which is belittling and derisive of others, and crass conduct of the kind described by Mr O’Donnell in his evidence impresses no one. Considered, persuasive and substantive argument is much more likely to yield that result. Mr Roach needs to take stock of his conduct in the exercise of rights conferred under Part 3-4 of the Act lest he run the risk that conditions might be imposed on his entry permit in the future, or worse, that the right to enter workplaces be removed.
Conclusion
[64] For the reasons given above I do not propose to make any order. Instead and taking into account the proper construction of the provisions at issue discussed earlier above I make a recommendation as follows.
Recommendation
[65] On any occasion on which either of Mr Flanagan or Mr Roach (relevant permit holder) enters the Wollert plant under s. 484 of the Act the relevant permit holder should take reasonable steps to try to reach an agreement with Austral Bricks on the room or area of the Wollert plant in which discussions with employees will be held.
[66] On any occasion on which a relevant permit holder enters the Wollert plant under s. 484 of the Act, Austral Bricks (through a designated employee(s)) should take reasonable steps to try to reach an agreement with the relevant permit holder about the room or area of the Wollert plant in which discussions with employees will be held.
[67] In this recommendation “reasonable steps to try to reach an agreement” means:
(a) Proposing a room or area at which discussions may be held and giving reasons for proposing that room or area;
(b) Allowing the other party an opportunity to consider the proposed room or area and to respond;
(c) Considering whether discussions with employees can take place in a room or place proposed by a party without interfering with an employee’s right not to participate in any discussions or their capacity to utilise the room or area in accordance with its usual purpose; and
(d) Remaining open to suggestions from the other party about alternative venues at which discussions may be held.
[68] After entry under s. 484 and before holding discussions with any one or more employees, the relevant permit holder should take reasonable steps to ensure that employees with whom discussions are proposed to be held, are employees of a kind described in paragraphs 484 (a) - (c). In particular the relevant permit holder should take reasonable steps to ensure that an employee who is present in a room in which the relevant permit holder is to hold discussions, wishes to participate in those discussions. For the avoidance of doubt reference to “discussions” in this recommendation means discussions of the kind referred to in the object of Part 3-4 of the Act (s. 480).
[69] If after reasonable steps to try to reach agreement have been taken the relevant permit holder and Austral Bricks cannot agree on a room or area to be held, the relevant permit holder may hold those discussions in the lunchroom.
[70] Nothing prevents the relevant permit holder and Austral Bricks from reaching an ongoing or longer term agreement about a location that is to be used on each occasion of entry under s. 484 at which the relevant permit holder may hold discussions with employees, rather than trying to reach such an agreement on each occasion of entry. Nor are the parties prevented from reaching an agreement about a location at a time prior to entry under s. 484.
[71]
The applications made by the CFMEU and Austral Bricks under s. 505 are determined accordingly.
DEPUTY PRESIDENT
Appearances:
J. Maloney for the CFMEU
J. Tuck for Austral Bricks (Vic) Pty Ltd
Hearing details:
2014.
Melbourne.
13 June.
Further written submissions:
CFMEU, 1 July
1 See discussion at transcript PN 57 – PN 96
2 See draft order filed by Austral Bricks on 19 June 2014
3 See attachment to Exhibit CFMEU 1 and concession in Austral Bricks’ outline of submissions at [1]
4 14 March, 17 March and 24 March 2014
5 See attachment to Exhibit CFMEU 1 and concession in Austral Bricks’ outline of submissions at [2]
6 Exhibit CFMEU 1 at [5], exhibit AB 1 at [4] and exhibit AB 3 at [9]
7 Exhibit CFMEU 1 at [8] and exhibit AB 3 at [12]
8 Exhibit CFMEU 1 at [9] and exhibit AB 3 at [12]
9 Exhibit CFMEU 1 at [9]
10 Exhibit AB 3 at [11]
11 Ibid; see also transcript PN 326 – PN 335
12 Transcript PN 339 – PN 342
13 Exhibit AB 1 at [1]
14 Ibid at [5]
15 See transcript PN 290 – PN 291
16 Exhibit AB 1 at [5]
17 Ibid
18 Transcript PN 258 – PN 271
19 Transcript PN 284
20 Transcript PN 285 – PN 289
21 See Macquarie Concise Dictionary Fifth Edition
22 Transcript PN 108
23 Transcript PN 355 and PN 367
24 Transcript PN 173 – PN 199
25 Exhibit AB 2 at [6]
26 Ibid at [7]
27 Ibid at [8] – [10]
28 Transcript PN 203 – PN 204
29 Transcript PN 206 – PN 208
30 Transcript PN 286
31 Exhibit AB 2 at [8] – [9]
32 Ibid at [5]
33 See section 480
34 Transcript PN 173 – PN 176
35 Transcript PN 168
36 Transcript PN 171
37 Transcript PN 172
38 Exhibit AB 3 at [11]
39 Ibid at [12]
40 Exhibit AB 2 at [11]
41 Exhibit AB 3 at [6] – [7]
42 Transcript PN 344
43 Transcript PN 345
44 Transcript PN 346
45 Transcript PN 112
46 Transcript PN 113
47 Transcript PN 124 – PN 126
48 Transcript PN 127 – PN 134
49 Exhibit CFMEU 1 at [8] and Exhibit AB 3 at [12]
50 Exhibit CFMEU 1 at [9] and Exhibit AB 3 at [12]
51 See attachment A to CFMEU's application made under section 505
52 See attachment B to CFMEU's application made under section 505
53 Exhibit CFMEU 1 at [10]
54 Ibid at [11]
55 Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74 at [70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
56 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
57 [2010] FWAFB 9963
58 Ibid at [29]
59 (2012) 201 FCR 297
60 See Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481 – 1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]
61 c/f entry under section 481 where the permit holder "must reasonably suspect that a contravention has occurred, or is occurring" as well as having the prescribed purpose is a condition of entry under that section.
62 A useful discussion in the context of a similar provision (section 760 of the Workplace Relations Act 1996) may be found in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 at [7] – [8] per Spender J and at [38] – [40] per Dowsett J
63 See Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [43]
64 Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 405 [56] per Flick J
65 This is apparent from the express terms of the section 484
66 Section 490 (1)
67 Section 487
68 Section 490 (3)
69 Section 491
70 Section 488
71 Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 405 [56] per Flick J
72 section 490 (2)
73 Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 407 [63] per Flick J
74 See s. 515
75 See s. 508
76 See O'Reilly v Commissioners of the State bank of Victoria (1982) 153 CLR 1 at 48
77 Section 490 (2)
78 Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 397 [16]
79 Explanatory Memorandum to Fair Work Amendment Bill 2013 at p.6
80 See section 505 (2)
81 See section 595
82 See section 505 (2)
83 See section 505 (5)
84 See section 506
85 See sections 491, 492A and the 494
86 Sections 521C (1) and 521D (1)
87 Sections 521C (2)(a) and 521D (2)(a)
88 Sections 521C (2)(c) and 521D (2)(c)
89 See section 505 (4)
90 [2011] FWA 3878
91 Ibid [62] - [63]
92 See Exhibit CFMEU 1 at [9] – [11]
93 Transcript PN 509
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