Construction, Forestry, Mining and Energy Union v Foster Wheeler Worley Parsons (Pluto) Joint Venture

[2010] FWA 2341

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Construction, Forestry, Mining and Energy Union
v
Foster Wheeler Worley Parsons (Pluto) Joint Venture
(RE2009/10104)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 29 MARCH 2010

Right of entry dispute.

[1] This matter arises out of a dispute between the parties over the operation of Part 3-4 of the Fair Work Act 2009 (“the FW Act”). The application is made under s. 505 of the FW Act. The applicant is the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and the respondent is Foster Wheeler Worley Parsons (Pluto) Joint Venture (“FWW”).

[2] The applicant asserts that FWW has not been allowing permit holders of the CFMEU to enter the Woodside Burrup Pty Ltd Pluto LNG Park Project (the Pluto Project) in accordance with Part 3-4 of the FW Act.

[3] Specifically, the dispute relates to:

(a) Whether FWW is entitled to refuse entry to the Pluto Project if the Applicant does not state on right of entry notices which particular contractor work group the permit holder wishes to hold discussions with;

(b) Whether FWW is entitled to limit the Applicant’s permit holders to engaging in discussion with only one contractor’s employees at a time where employees from other contractors may also wish to participate in discussions;

(c) Whether requests made by FWW with respect to the area where discussions should be held when permit holders of the Applicant exercise a right of entry onto the Pluto Project in accordance with rights those permit holders have under s. 484 of the FW Act are reasonable; and

(d) Whether FWW or its agents are entitled to watch or observe the discussions between permit holders exercising powers under Part 3-4 of the FW Act and employees participating in those discussions.

[4] The CFMEU are seeking orders from FWA in accordance with section 505(2)(e), as below.

“Draft Order

1. FWW will allow permit holders from the CFMEU to enter onto the Pluto LNG Park Project in accordance with Part 3-4 of the Fair Work Act 2009.

2. FWW will immediately withdraw its demand that permit holders from the CFMEU state on right of entry notices which particular contractor work group the permit holder wishes to hold discussions with.

3. FWW will allow permit holders from the CFMEU to engage in discussion with more than one contractor’s employees at the same time where those employees wish to participate in those discussions.

4. FWW will immediately withdraw its requirement that discussions between permit holders of the CFMEU and employees that wish to participate in discussions be limited to 3 allocated areas on the Pluto LNG Park Project.

5. FWW will allow permit holders from the CFMEU to engage in discussions with employees who wish to participate in those discussions in an area that is proximate to, and easily accessible from, the area that employees wishing to participate in discussions have their meals and breaks.

6. FWW will allocate an area that is fit for the purpose of holding discussions with employees wishing to engage in discussions having regard to:

(i) whether there is sufficient shelter from the elements, in particular whether there is protection from exposure to;

a. insects, such as flies;

b. extreme heat;

c. the sun;

d. dust; and

e. the wind.

(ii) the level of exposure to noise;

(iii) whether there is access to sufficient seating in the allocated area;

(iv) whether there is ready access to amenities, such as toilets and cool clean drinking water;

(v) whether the route that an employee will have to take to get to the area will expose them to unnecessary contact with, or observance by, management representatives; and

(vi) whether the area is suitable for employees to consume a meal in.

7. If no such area is available, FWW will allow permit holders from the CFMEU to engage in discussions with employees who wish to participate in those discussions in the area where they have their meals and breaks.

8. FWW will not have a representative or agent of FWW present to watch or observe the discussions between the permit holders and employees wishing to participate in those discussions.”

Background

[5] FWW is engaged as the Engineering, Procurement and Construction Management (EPCM) contractor by Woodside Burrup Pty Ltd (Woodside), a subsidiary of Woodside Energy Ltd to manage the Pluto Project at the Burrup Peninsula site approximately 26km from Karratha.

[6] Part of FWW's contractual responsibilities in managing the Pluto Project involves management of the onshore site (“the site”) in accordance with any prevailing legislative provisions, including the Fair Work Act 2009 (Cth) (the FW Act) and the Occupational Safety and Health Act 1984 (WA) (the OSH Act). For the purposes of the FW Act, Woodside is the occupier of the site, and FWW is Woodside’s agent in that role.

[7] The Pluto Project is the biggest construction project in the North West of Western Australia. The Project will eventually become the LNG processing operations of Woodside on the Burrup Peninsula. When complete, the Pluto Project will process gas from the Pluto and Xena gas fields located in the Carnarvon Basin about 190 km north-west of Karratha. Construction at the Pluto site commenced around July 2007.

[8] The total onshore area of the Pluto Project is about 200 hectares. The plant "footprint" however is limited due to heritage and environmental constraints. FWW's management responsibility is limited to the area which will contain the plant and associated infrastructure. Consequently the site the subject of this application covers is about 80 hectares 1.

[9] The plant and associated infrastructure being constructed are:

(a) a single LNG processing train with associated utilities

(b) storage and loading facilities, including:

(i) two large capacity LNG tanks;

(ii) three smaller condensate tanks; and

(iii) an LNG and condensate export jetty.

[10] This will also allow for expansion with a second LNG train, and potentially a third LNG train on the site.

[11] The site accommodates plant, equipment, modules, laydown facilities and amenities.

[12] At the time of the proceedings and inspections there were approximately 3,300 workers engaged by 12 to 14 main contractors 2 including Monadelphous, United Group Resources, AGC Industries Pty Ltd, Mammoet Australia Pty Ltd, RCRFM, Harbourworks Clough Joint Venture, CBI, Leighton, John Holland, Decmil Australia, Georgiou, BGC, and Kaefer. Numerous lower tier subcontractors, at times as many as 703, report to these main contractors working at the site.

[13] The cost of the Pluto Project will be approximately $ 11 Billion dollars.

The entry process in dispute

[14] FWW in the lead up to 1 July 2009 developed a right of entry protocol for the site 4.This is detailed in a formal policy document titled Pluto Project Access and Security5.

[15] The Unions whom may have members on site or for whom there may be employees eligible to enroll as members were advised of the entry protocols by FWW by letter dated 25 June 2009.

[16] This letter 6, a copy of which was provided to Mr. Reynolds the State Secretary of the CFMEU, explains the requirements FWW have as follows:

“Woodside Burrup Pty Ltd (WBPL), as the "occupier' of the Pluto LNG Park Project site (the Pluto Project) for the purposes of the Act, has delegated the authority of "occupier” to Foster Wheeler Worley Parsons Joint Venture (FWW), the EPCM Contractor for the Pluto Project.

The purpose of this letter is to provide information to your union on the process for submission of a notice to enter the Pluto Project under Part 3-4 of the Act (Notice) and the conditions that will apply to entry to the Pluto Project once the Notice has been approved.

In order to properly process any Notice under Part 3-4 of the Act, from 1 July 2009, your union should provide a valid Notice to FWW, which may be copied to the relevant contractor. The Notice should be addressed to FWW care of Tony Clarke, Site IEA Manager and faxed to (08) 9186 2421 or scanned into a PDF file and emailed to Tony. [email protected].

The Pluto Project has three (3) locations for union representatives to hold discussions with eligible workers in each of the separate geographical areas of the Pluto Project -- one (1) location at Site A and two (2) locations at Site B. These locations will be available for the purpose of authorized union representatives holding discussions with eligible workers under the Act, during either of the two (2) recognized breaks each day, on the basis of first in first served in respect of the specified geographical area of the Pluto Project on any particular day. Having regard to relevant occupational health and safety considerations and to ensure there is no disruption to work given the nature, size and layout of the Pluto Project, if a Notice is received but a suitable location is not available for holding the discussions referred to in the Notice, then FWW will not be able to facilitate entry pursuant to such a Notice. Similarly, each Notice submitted to FWW should refer to the particular contractor work group for the specified recognized break.

Given the number of breaks and the number of locations that will be available for discussions, FWW does not anticipate that these arrangements will give rise to any issue provided rights of entry under the Act are exercised reasonably.

As has been verbally advised to you previously by FWW representatives, FWW is committed, both practically and contractually, to the administration of the submission of Notices, approval for access and actual access in accordance with the applicable law.”

[17] FWW apply this policy equally to all organizations exercising a right of entry. There is no suggestion that the CFMEU has been treated differently in this regard.

[18] Between 1 July 2009 and 27 October 2009 FWW received 217 requests for right of entry from the four main Unions that have coverage of employees on the site. Of these requests 130 were from the CFMEU 7.

Exercising a Right of Entry in practice.

[19] Evidence was given by Mr. Upton for the CFMEU of his experiences entering the site.

[20] Mr. Upton is employed by the CFMEU as an Organiser to work in the North West of Western Australia. He commenced in this position in January 2008. Prior to this he had worked in the construction industry for 26 years. He is the holder of a right of entry permit, which was issued under Part 15 of the Workplace Relations Act 1996

[21] The CFMEU has coverage under its constitutional rules of some of the employees working on the site and has members amongst those employees.

[22] The Chamber of Commerce and Industry of Western Australia Inc. (CCI) also has representatives on the site who represent FWW and some of the employers engaged on the site.

[23] With the commencement of the FW Act on 1 July 2009 Mr. Upton was able to exercise a right of entry onto the site to engage in discussion with members and potential members of the CFMEU.

[24] The site is very large and has a lot of people working there. It takes time to visit all the CFMEU members and potential members on the site. This is particularly so due to the fact that FWW will only let him see one contractor’s employees during a visit.

[25] He had been visiting the site every second week for the whole week (Monday to Friday).

[26] There are two breaks each day in which he can have discussions with members and potential members so in a week he can only get to see a maximum of 10 contractor's employees.

[27] To gain access to the site he arranges for a right of entry notice to be sent to Mr. Tony Clarke, who is the FWW Site IR Manager. The CFMEU has been informed by FWW that it is an authorized delegate of Woodside and that all right of entry notices are to be forwarded directly to them.

[28] After the right of entry notice is sent, the CFMEU receives at its office in East Perth a facsimile from Mr. Clarke indicating whether or not FWW approves his right of entry.

[29] On the day of an entry he presents himself at the front security gate usually about half an hour before the scheduled break to ensure that he completes all the pre-entry site procedures in time to start the meeting at the beginning of the employees break.

[30] At the gate he is required to fill in the site visitor induction paperwork. His bag is searched and he is asked if he has any ignition sources or electronic devices with him. He then goes to the CCI offices and waits for an escort to take him to the meeting area. He is not permitted to make his own way to the meeting areas. He is usually met by Mr. Colin Milne from the CCI. Mr. Milne takes him to the area that FWW have allocated for the meeting, escorting him to that area. For the meeting he is taken to 1 of 5 areas that have been allocated to hold Union meetings.

[31] Those areas are:

A single meeting area set up on Site A;

One of two meeting areas set up on Site B (areas Site B East or Sit B West);

A meeting area that has been set aside for Freo RCR employees; and

A meeting area that has been set aside for Harbourworks Clough employees.

[32] He is normally driven to and from the meeting area, except when he sees employees of Freo RCR or Harbourworks Clough when they walk to the meeting area.

[33] The CCI representative always remains within the vicinity of Mr. Upton for the entire time he is on site. If he is driven to the meeting the car is always parked in a manner that enables the person in the car to observe him having the discussions. If he walks to the area where the meeting is being held, the escort always stays and watches him have the discussions.

[34] Mr. Upton says the CCI representative also takes note of who is attending the meeting and on a number of occasions the CCI representative was accompanied by somebody from the contractor whose employees he was visiting. He has been told the reasons that they stay and watch the meeting is to ensure that the meeting does not go past the break time. He is aware that employees have been informed that if they are early or late to a Union meeting they will have 4 hours pay deducted for taking unprotected industrial action.

Evidence

[35] In addition to the evidence of Mr. Upton the applicant called a number of other witnesses who are employees of various contractors at the site. These employees were Mr. McDonald, Mr. Hopkins, Mr. Heales and Mr. Marques.

[36] FWW called as witnesses Mr. Clark the Pluto Project Industrial Relations Manager of FWW, Mr. Gibson a Director of Strategic Human Resources Pty Ltd which provides consultancy services to FWW regarding the Pluto Project, Mr. Gwynne the construction director of FWW for the Pluto Project and Mr. Milne the CCI representative for CCI’s employer members working on the Pluto Project.

[37] At the request of the applicant FWA carried out inspections of the site. Following a briefing explaining the project and a safety induction the inspections took approximately two and a half hours. The inspections began with a drive around the site to provide an overview and then involved going to each of the five meeting areas Mr Upton identified in his evidence above. Each meeting area was inspected as were the adjacent facilities including the crib rooms, offices, toilets, ice and water dispensers and the respective designated smoking areas.

Statutory provisions

[38] The relevant provisions of the FW Act are as follows:

s. 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 outworkers to receive, at work, information and representation from officials of organisations; and

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

s. 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: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

s. 492 Conduct of interviews in particular room etc.

(1) The permit holder must comply with any reasonable request by the occupier of the premises to:

(a) conduct interviews or hold discussions in a particular room or area of the premises; or

(b) take a particular route to reach a particular room or area of the premises.

Note: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:

(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or

(b) the request is made with the intention of:

(i) intimidating persons who might participate in the interviews or discussions; or

(ii) discouraging persons from participating in the interviews or discussions; or

(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.

(3) However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.

(4) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.

s. 503 Misrepresentations about things authorised by this Part

(1) A person must not take action:

(a) with the intention of giving the impression; or

(b) reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

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

(2) Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

s. 505 FWA may deal with a dispute about the operation of this Part

(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).

Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.

(2) FWA may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) FWA may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.

(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.

(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.

s. 518 Entry notice requirements

Requirements for all entry notices

(1) An entry notice must specify the following:

(a) the premises that are proposed to be entered;

(b) the day of the entry;

Requirements for entry notice for entry to investigate suspected contravention

(2) An entry notice given for an entry under section 481, 483A or 483D must:

(a) specify that section as the provision that authorises the entry; and

(b) unless the entry is a designated outworker terms entry under section 483A—specify the particulars of the suspected contravention, or contraventions; and

(c) for an entry under section 481—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a member, who performs work on the premises, and:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(ca) for an entry under section 483A other than a designated outworker terms entry—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF outworker, who performs work on the premises, and:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(cb) for a designated outworker terms entry under section 483A—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of TCF outworkers; and

(cc) for an entry under section 483D—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF outworker:

(i) to whom the suspected contravention or contraventions relate; or

(ii) who is affected by the suspected contravention or contraventions; and

(d) specify the provision of the organisation’s rules that entitles the organisation to represent the member or TCF outworker.

Requirements for entry notice for entry to hold discussions

(3) An entry notice given for an entry under section 484 (which deals with entry to hold discussions) must:

(a) specify that section as the provision that authorises the entry; and

(b) contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF outworker who performs work on the premises; and

(c) specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF outworker.

Note: See section 503 (which deals with misrepresentations about things authorised by this Part).

Applicants Submissions

Refusing entry if contractors are not named

[39] There is no legal foundation upon which FWW can rely to refuse entry if the Applicant does not name a contractor on the entry notice or names more than one contractor.

[40] If the provisions of the FW Act are complied with by the permit holder, the right to enter the premises is activated regardless of any additional information that the occupier of a premises believes it is entitled to.

Limiting discussions to one contractor at a time

[41] There is no legal foundation upon which FWW can unilaterally determine that permit holders can only engage in discussions with employees of one contractor at a time. The FW Act provides a scheme for entry where a permit holder need only identify to the occupier one employee (not an individual employee, but an employee engaged in a class of work) working on the premises whose industrial interests the permit holder’s organisation is entitled to represent.

[42] Once the permit holder has entered the premises, the permit holder, as a matter of right, is entitled to engage in discussions with employees whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions.

Are FWW’s requests reasonable?

[43] FWW has “requested” that the Applicant’s permit holders engage in discussions in a number of designated areas only. These requests are unreasonable because:

(a) The designated areas are not fit for the purpose of holding discussions because they expose employees to the harsh climatic and environmental conditions that exist in the North West. The areas are hot, dusty, exposed to the sun, noise and flies. The areas offer no privacy which is important so that discussions can occur in a secure environment, free of the possibility of victimisation, harassment or discrimination.

(b) FWW’s requests appear to be made with the intention and effect of:

(i) Intimidating persons who might participate in the discussions because the areas are

in full view of employees’ management and representatives of FWW observe those holding discussions.

(ii) Discouraging persons from participating in discussions because the designated areas are not proximate to the places where employees who may wish to engage in the discussion take their breaks. Employees have also been told that if they are late returning from a Union meeting their employer will dock four hours plus Pluto Special Leave from their pay. This makes the fact that the meeting areas are not proximate harsh and unfair because if an employee is back late they face the prospect of incurring a large financial penalty.

(iii) Making it difficult for persons to participate in discussions, because the areas are not always easily accessible during breaks for employees that might wish to participate in discussions; and

(iv) The areas are substantially inferior to the crib rooms where employees take their breaks. Consequently, this is a major disincentive to participating in the Union meetings and a disadvantage and detriment for those that wish to participate in the Union meetings because they are forced to give up the comforts of their crib rooms to attend a Union meeting.

Watching or observing the Union Meetings

[44] FWW insists on having a representative observe the discussions. The Applicant disputes that FWW is entitled to do this under Part 3-4 of the Act.

[45] The objects recognise the right of employees and the Unions to engage in lawful union activities. This should not be impinged by an occupier or employer putting themselves in a position where they can monitor the proceedings of the Union meeting and who is attending.

Orders

[46] In making an order under section 505 of the FW Act the Tribunal must have regard to fairness between the parties. In determining what is fair between the parties the Tribunal should give primacy to the express statutory rights that the Applicant’s permit holders have under the FW Act and how FWW’s conduct is interfering or frustrating those rights. The Tribunal must balance the integrity of the FW Act with the interests of FWW in carrying on their business without undue inconvenience. It should be noted that the FW Act contemplates that FWW can be inconvenienced, just not unduly. The Tribunal must also balance the interests of the occupier, the employees and the permit holder.

[47] The Orders that are proposed by the Applicant deliver such balance.

Submissions of the ABCC

[48] The Australian Building and Construction Commissioner participated in the hearing and inspections. Submissions were made pursuant to section 72 of the Building and Construction Industry Improvement Act 2005 generally about the scheme of the FW Act, relevant principles and case law and some general observation about the particular facts of this matter.

Submissions of FWW

[49] FWW denies that the requirements it places on permit holders of all organisations (including the CFMEU) when they are seeking to enter the site to hold discussions with employees under s. 484 of the FW Act, are unlawful or unreasonable, having regard to FWW's rights:

to go about its business (which includes compliance with obligations under the FW Act and other legislation) and ensure that other employers on the site can go about their business without undue inconvenience within the meaning of s. 480(c);

to require the permit holder to comply with a reasonable request that discussions take place in a particular area notwithstanding the preference of the permit holder;

to require the permit holder to comply with a reasonable request to comply with occupational safety and health requirements that apply to the site under s. 491; and

to expect that permit holders will not intentionally hinder or obstruct any person or otherwise act in an improper manner, consistent with the prohibitions under s. 500.

General principles

[50] The FW Act imposes preconditions on the right to enter and imposes restrictions and conditions on the exercise of the rights after entry and in relation to when the rights may be exercised and does not permit conferral of additional rights by FWA. Even where the preconditions for entry are satisfied other matters relating to the provisions which condition those rights will be relevant to whether the right may be exercised in particular circumstances, or in a particular way. For example, the FW Act does not preclude the seeking of or provision of information relevant to the right.

Requiring information concerning the contractor

[51] It is reasonable, and in fact necessary, that a permit holder seeking entry to the site pursuant to s. 484 specify a specific contractor. It is not unreasonable to require permit holders to provide sufficient information to allow the occupier of the site to facilitate the entry pursuant to the FW Act. The information relates directly to the preconditions imposed by the FW Act on the rights of entry and the exercise of those rights. If the contractor is not nominated in advance when the permit holder presents at the security gate it leaves little or no time to make the particular workforce available, or to allocate an appropriate meeting facility particularly given there are other organizations also regularly seeking to enter the site.

[52] Because of the broad range of contractors and classifications of employees on the site and the multiple union coverage involved there is some debate about the extent of the CFMEU’s eligibility to represent the industrial interests of persons on the site and therefore the extent of the CFMEU’s permit holders to lawfully hold discussions with persons on the site. In this situation FWW is entitled to require permit holders to provide information that is relevant to determining the rights they may have on the site.

[53] The requirements of notification in s. 518 do not define what additional information might be requested by an occupier in establishing the extent of the right conferred by s. 484.

[54] Similarly, s.500 provides that a permit holder must not intentionally hinder or obstruct a person or otherwise act in an improper manner. This section makes it clear that the right conferred by s. 484 is not an absolute right.

Site Conditions and Safety and Other Issues

[55] The evidence demonstrates the safety-sensitive nature and the size of the site and demonstrates the large number of site entry notifications that have been submitted by the Applicant since 1 July 2009.

[56] An occupier has an express right to make a reasonable request of a permit holder to comply with an occupational health and safety requirement that applies to the premises, and there is an express obligation imposed on the permit holder to comply with such a request pursuant to s. 491 of the Act. The request by FWW that permit holders of the CFMEU conduct discussions with employees of one contractor at a time is consistent with occupational health and safety requirements at the site.

[57] Different contractors may be performing work at several locations. By holding discussions with employees of one contractor at a time, a meeting facility can be allocated that is close to where those employees are going to for their meal break. Requesting that the discussions be held with one contractor at a time allows FWW to control employee movement across the site and so minimize risks associated with adverse interaction with Site hazards and to facilitate emergency response.

[58] The issues must be considered in the context of a clear legislative constraint on the rights provided in s.484, namely, the permit holder may only hold discussions with persons whose industrial interests the permit holder's organization is entitled to represent.

[59] The Applicant's rights in that regard are limited. It does not have the right to represent the industrial interests of all but a minority of persons on the site.

A "reasonable request" by the occupier to hold discussions in a particular place

[60] The request that discussions be held in the designated meeting facilities is not unreasonable.

[61] The area is not unreasonable merely because it is not the room, area or route that the permit holder would have chosen (section 492(3)).

[62] In the context of this particular site the meeting facilities designated are adequate for the purpose of employees attending discussions during a meal break.

[63] The CFMEU’s assertion that the crib rooms are appropriate for discussions to take place has no regard to the regular use of crib rooms by persons who the CFMEU’s permit holders may not hold discussions with under the FW Act, including persons whose industrial interests the CFMEU cannot represent and persons who may not wish to participate (including because they might be members of other unions).

[64] There are proper logistical and safety grounds for locating the designated facilities close to personnel amenities. There is no basis for concluding that the request as to the area of the site where discussions may be held has been, or is made with a proscribed intent (s.492(2)(b)).

Escorting of visitors to the site

[65] The Applicant submits that the requirement that permit holders be escorted and monitored at all times while on the site has an intimidating effect on employees. This however is a requirement for all visitors to the site, with the legitimate purpose of ensuring Site and personnel safety. FWA and the Australian Industrial Relations Commission have previously agreed such actions are appropriate 8.

[66] The evidence demonstrates that the escort on the site does not, and cannot, listen to the discussions.

Power of the Tribunal to make orders sought

[67] Section 505 authorizes FWA to deal with a dispute about the operation of Part 3-4 of Chapter 3 of the FW Act but specifically provides that FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable. The scope of the power is therefore confined.

[68] FWW submits that any orders must only be directed towards the resolution of the matters found to be the subject of the dispute about the operation of Part 3-4 of Chapter 3 of the FW Act, and must not diminish the pre-conditions and other conditions relating to entry under the FW Act referred to earlier in these submissions. Here the orders sought by the CFMEU go much further and the FW Act does not confer power on FWA to make the types of orders sought. Any orders sought that require parties to comply with obligations already arising under the FW Act, do not involve the exercise of arbitral powers provide for and are beyond jurisdiction.

Consideration

Right of Entry Provisions in the Fair Work Act

[69] Part 3-4 of the Act - Right of Entry sets out a code for right of entry to an employer’s premises by permit holders.

[70] The objects of this Part are detailed in s. 480 and are to establish a framework for officials of organisations to enter premises that balances:

the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the Act and other specified laws:

with the right of employees to receive, at work, information and representation from officials of organisations; and

with the right the occupiers of the premises and employers to go about their business without undue inconvenience.

[71] Section 518 prescribes the information that is required to be provided by a permit

holder wishing to exercise a right of entry as:

“(a) A description of the premises that are proposed to be entered;

(b) The day of the entry.

(d) That the entry is being exercised under section 484;

(e) The permit holders declaration that the permit holder’s organisation is entitled to represent the industrial interests of anemployee who performs work on the premises; and

(f) Specifying the provisions of the organisations rules that entitles it to represent the

employee.”

[72] Section 484 confers a right of entry on a permit holder subject to specified conditions. In the case of entering for the purposes of holding discussions, which is the type of entry in dispute here, the Act limits such discussions to workers whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions.

[73] Relevant to this application s.492 requires that a permit holder comply with any reasonable request by the occupier of the premises to conduct interviews or hold discussions in a particular room or area or to take a particular route to reach a particular room or area of the premises.

[74] I note that in this case the applicant does not take issue with FWW requesting their permit holders to take a particular route to reach a particular area of the premises 9.

[75] Section 492 has some examples of what would constitute an unreasonable request by an occupier such as situations where:

“(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or

(b) the request is made with the intention of:

(i) intimidating persons who might participate in the interviews or discussions; or

(ii) discouraging persons from participating in the interviews or discussions; or

[76] The Act in this way specifies that a request is unreasonable if the occupier acted with the intention of doing certain proscribed things, but this expressly is not an exhaustive list of when it might be found that a request was unreasonable.

[77] Section 492(3) provides that a request by an occupier is not unreasonable only because the room or area is not one the permit holder would have chosen.

The meeting areas

[78] Mr Clarke gave evidence regarding the three main meeting areas for permit holders to hold discussion in and the practice for such meetings.

[79] There are three designated meeting areas, Site A, Site B East and Site B West 10 (“designated meeting areas”).

[80] Each can accommodate meetings of approximately 150 people with about 80-90 of those seated. The meeting facilities are made from scaffolding tube. The scaffolding tube is covered by shade cloth. Temperatures can reach up to about 45 degrees on the site. The shade cloth covering the meeting facilities provides some protection from the sun.

[81] There were problems with the wind ripping the shade cloth and shade cloth that is enmeshed with chicken wire is now used. The wire shade cloth was installed on Site A and Site B West over the weekend of 28 to 30 November 2009. The wire shade cloth is yet to be installed on Site B East but will be shortly.

[82] All of the meeting facilities have scaffold board around the edges which can be used for seating and both Site B facilities have scaffold boards arranged as seating in the middle of the structures.

[83] These meeting facilities are temporary structures because they will need to be relocated, perhaps a number of times, over the life of the Project, to make way for construction. The Site A facility has already been relocated once. It was initially erected near the LNG tanks, however preparation work has commenced for bunding and paving, and the structure needed to be moved. The Site B East facility has also been relocated once.

[84] It is not commercially or practically possible to erect permanent structures in circumstances where the footprint of the construction works on the site changes regularly and the structures would have to be dismantled and relocated at significant expense.

[85] The site is in a cyclone area. During cyclones, the meeting facilities will be secured, (including removal of shade cloth) to reduce the risks posed by flying debris.

[86] The three designated meeting areas are adjacent to the employees crib rooms, the designated smoking areas, the chilled water outlets and the ablution blocks.

[87] All workers are provided with a water container which they keep with them at all times whilst on Site. Workers fill up their water containers with ice and water from their crib rooms at the commencement of the day, during the morning and afternoon breaks, and at any other time when they require further water. There are also other locations around the site where they are able to replenish their water containers as required.

[88] Before attending union meetings, employees will generally collect their lunch, warm it up (if necessary), fill up their water bottles, and use the toilet facilities. This would occur irrespective of where the union meeting is held. Under the system on the site, they then proceed to the relevant meeting area if they wish to attend a scheduled union meeting with officials who are entitled to represent their industrial interests on the site.

[89] Most employees who wish to attend a union meeting walk to the designated meeting area. Some contractors (for example AGC) provide transport to assist employees working on different parts of the site to get to the designated meeting areas for union meetings.

[90] There was also evidence that areas with overhead shade will have temperatures of approximately 10 degrees lower 11.

[91] There are two other areas that permit holders have held discussion in other than the three designated meeting areas. One is for meetings with employees of Harbour Works Clough and the other is for discussions with employees of RCR Freo Machinery. These are used for these groups of employees because their work areas and crib rooms are particularly remote from other parts of the site and the three designated meeting areas.

[92] The Harbour Works Clough meeting area is located at the Dampier Port, some distance from the site. The area for meetings is the boilermakers and mechanical workshop. The workshop is covered but open aired, has no seating and is 30 to 40 metres away from the employees crib room.

[93] The evidence is that this contractor is in the process of demobilising from site 12.The applicant conceded as much in submissions although arguing the timing was uncertain13. In the context of this application I believe it is a moot point to determine the matters in dispute concerning this meeting area and I will not consider this meeting area further in this decision.

[94] The RCR Freo Machinery meeting area is just inside the site security gate and is close to the contractors warehouse. The area has no covering, is open and is paved but has no seating. It is about 100 metres from the crib rooms.

[95] This evidence from Mr. Clarke was consistent with what was seen on site by the tribunal during the inspections.

Requirement to specify a contractor

[96] Factual matters that are relevant to this issue include that the site is a very large multi disciplinary site. In practice this means there are many employees working in different fields of work and classifications. There are it is accepted by all parties a large number of contractors on the site, at least 50 although Mr Upton believed it would be as many as 70.

[97] I accept the evidence of Mr Gibson that the CFMEU does not have coverage over all these classifications of work and has limited coverage, if any, of employees of some particular contractors. The CFMEU regularly holds discussion with employees from 15 of the contractors on site 14. Relevantly there is also evidence that on occasions Mr Upton has, having exercised a right of entry, held discussion with some employees that he knew or should reasonably have known were not eligible to be members of the CFMEU.

[98] The FW Act sets out a scheme for right of entry that applies to most workplaces in Australia. The circumstances of those workplaces will vary considerably between industries and between individual workplaces within an industry.

[99] I agree with the submission of the applicant that there is no statutory requirement for the applicant to advise FWW of which contractors employees it wishes to hold discussions with.

[100] Clearly though an occupier when first provided with a notice of right of entry from an organisation must make a judgement as to whether or not the right of entry intended to be exercised by that organisation's permit holder is consistent with the FW Act. I agree, as FWW argue, that in some but not in all circumstances it will be necessary and reasonable for the occupier to request further particular information be provided without which it will not be possible for them to make this judgement.

[101] The fact that an organisation has properly notified that its permit holder wishes to enter the site but has not identified with any specificity which group of employees it wishes to hold discussions with does not determine the question as to whether or not the permit holder has a valid right of entry. If the intent of the permit holder was to meet with a group of employees who are not members and not eligible to be members then that permit holder would not be exercising a valid right of entry notwithstanding the permit holder might have complied with the notification requirements of the Act.

[102] FWW argues that it is, in the particular circumstances of this site, reasonable for it to request that an organisation advise which contractors’ employees its permit holder wishes to have discussions with. FWW says it requires this additional information so that it can judge whether or not the right of entry proposed is authorised by the FW Act.

[103] Section 503 of the FW Act provides that a person is prohibited from taking actions under the right of entry provisions with the intention of giving the impression that those actions are authorised when that is not the case. This section recognizes that this could occur deliberately or because of recklessness. The section recognizes however that it is a defence to this if the person took the actions because of a wrongly, but reasonable held belief that the action was authorised.

[104] The explanatory memorandum at 2001 explains this provision as follows:

“… An example of behaviour that this clause would cover is where a person represents himself or herself as a permit holder when she or he does not hold a valid entry permit. Other examples would include where a person asserts she or he is entitled to represent particular employees when the union's eligibility rules do not extend to that class of employees, or where an employer asserts to employees that the union is not allowed to talk to them when it can.”

Underlining added

[105] Section 503 of the FW Act then recognizes that mere compliance with the notice requirements of the FW Act does not determine that a permit holder has a legitimate right of entry. An entry notice given under s. 518 asserts the permit holder has a right of entry. This as a matter of fact and law may or may not be correct in a particular instance. This is the point that FWW has made and I accept to be correct.

[106] The evidence is that when the CFMEU have complied with the request to advise FWW of the name of the contractors employees with whom they wish to hold discussions and subject to the other requirements of the FW Act having been met FWW has facilitated the entry. The CFMEU has entered the site on this basis and held discussions on many occasions, more than once a week for a prolonged period on the basis of the evidence of Mr Upton. Mr Gibson identified approximately 80 such occasions for CFMEU permit holders since 1 July 2009. It cannot be said then that this additional request made by FWW that the contractor identity be provided has inhibited the CFMEU exercising its right of entry.

[107] The evidence for the CFMEU also includes a recognition that because of the size of the site notifying the occupier of which contractors’ employees the permit holder wishes to have discussion with is necessary to enable FWW to make arrangements for those particular employees to be able to attend the discussions 15.

[108] In all the circumstances of this site then I find that it is reasonable for FWW to require organisations to advise which contractors’ employees their permit holders wish to hold discussions with in order to exercise their right of entry.

[109] I observe that if the CFMEU remain of the view that this requirement by FWW is unlawful they are free as Mr Swinbourn recognized 16 to test this by refusing to provide the identity of the contractor when their permit holder seeks to exercise a right of entry. If that permit holder is then denied entry to the site the union may pursue the matter as a breach of s.501.

Discussion with employees of one contractor at a time

[110] The applicant says the FWW is not entitled to limit the Applicant’s permit holders to engaging in discussion with only one contractor’s employees at a time.

[111] I note that the correspondence FWW has previously provided to all organisations who may wish to exercise rights of entry to this site does not expressly state that the organisations permit holders will be limited to holding discussions with a single contract or at any one time. It seems however from the evidence 17, and the manner in which FWW has dealt with this case that it acknowledges that this indeed is a request that FWW makes.

[112] FWW submits that contractors will be performing work at different locations, around what is acknowledged to be a large site. A designated meeting area will be allocated for a permit holder to hold discussions closest to the contractor’s employees crib rooms. FWW submit that permit holders having discussions with employees of only one contractor at a time reduces the movement of employees around the site. This minimizes risks associated with adverse interaction with Site hazards and facilitates emergency response.

[113] Mr. Gwynne gave evidence about these safety issues. The site during its construction phase is potentially hazardous. In the current construction phase there have been and will be heavy equipment and plant moving around the site.

[114] Potential for injury arises mainly from:

(a) ignition risks (and the potential for explosion);

(b) adverse interaction between personnel and equipment or excavations; and

[115] Therefore, FWW has strict rules surrounding access to the site and conduct whilst on the site. These rules are applicable to anyone seeking access to the site. With these obligations in mind FWW developed the Pluto Project Access Procedure. It is important that the Pluto Project Access Procedure is applied consistently to all visitors on the site, and that no exceptions are made. If exceptions are made to procedures put in place to manage risk, then, in his experience, this derogates from the integrity of the system.

[116] Mr Gwynne says the safety record on the Pluto Project has been good. To date there are have 11 lost time injuries. Given the number of employees, and the extent of work that has been undertaken, this figure is reasonably low. There have been no major safety incidents. He believes this to be in no small part to the rigor with which access to and conduct on the site is controlled. If the Pluto Project Access Procedure were to be applied differentially, Mr Gwynne believed that the safety performance of the Pluto Project may be compromised.

[117] Having considered this evidence in my view FWW's argument that requiring permit holders to only meet with one contractor at a time will reduce the movement of employees around the site and so reduce the risk of adverse safety incidents is valid in some circumstances but questionable in others.

[118] Where for example a permit holder wishes to meet with two contractors, who each have 20 employees who are entitled to and wish to participate in those discussions, requiring the permit holder to conduct two separate meetings rather than a single combined meeting of the employees does not reduce the total number of employees moving around the site to attend discussions. A total of 40 employees move around the site to make their way to the area allocated for the discussions, whether this occurs at two different times or all at same time.

[119] There may be some reduction in risks from employee movement if the number of employees combined creates unique hazards or risk beyond that which arise when the employees are in two smaller groups. An example may be because more employees moving at the same time increases congestion at road crossings or through narrow parts of the site. In my view however other than for particularly large numbers of employees wishing to participate in discussion at the same time this is a marginal risk.

[120] However if a permit holder did meet with multiple contractors employees’ there may be situations where such a combined meeting involves contractors working at different parts of the site. In some cases this will require some employees to travel unnecessarily long distances across the site to a designated meeting area when there is a closer designated meeting area in the vicinity of their crib rooms and work areas that would be used if the meeting was for them alone.

[121] I accept this situation may increase employee movements around the site and so involve a greater risk. In such a case an FWW request that a separate meeting be held with each group of employees at the designated meeting area adjacent to their crib rooms would be in compliance with the site occupational health and safety requirements and so, within the terms of s. 491, be a reasonable request.

[122] In addition the evidence of Mr Clark is that the employees move from their work areas to their crib rooms, which for most employees are adjacent to a designated meeting area, during working time. Therefore multiple contractor meetings will reduce the working time of some employees who are having to go to a meeting area that is not adjacent to their crib room. Section 480 includes as one object of the right of entry provisions a balancing of the right of occupiers of premises and employers to go about their business without undue inconvenience. In my view minimising lost working time when employees do attend discussions with permit holders who are exercising a right of entry is consistent with this object.

[123] There is no doubt that FWW's policy in this regard is supported by the particular features of this site particularly the large number of contractors and the large size of the site. In many workplaces there would be no basis for an occupier to request that a permit holder meet with anything less than all of its members and all the employees eligible to be members at the same time.

[124] The safety concerns FWW rely though only arise when the contractors’ employees’ for a combined meeting are working at different parts of the site. Some contractors work in the same vicinity and have their crib rooms adjacent to the same designated meeting area. For those contractors employees’ to participate together in discussions with a permit holder at the designated meeting area adjacent to their crib rooms (other than where the total employee numbers will be very large) does not raise any of the issues that FWW have submitted support their request that discussion only be held with the employees of one contractor at a time. Such a request by FWW in these particular circumstances is not consistent with the occupational health and safety requirements of the site and so is not reasonable.

[125] While throughout this case the applicant has objected to the requirement that they only meet with one contractor’s employees at a time little has been submitted as to the disadvantage that arises for this. I accept there is some disadvantage for permit holders such as Mr Upton who as a consequence must conduct more meetings on-site than would be necessary if he was able to conduct meetings with employees of multiple contractors. However clearly this will not always be a permit holders preferred approach in any event. Often a permit holder will prefer to have a meeting with only one group of employees from a single contractor because the issues to be discussed are relevant to those employees only. Similarly little has been submitted as to what if any disadvantage flows from this policy of FWW for the employees.

[126] I do note the evidence of Mr Upton is that FWW have offered to the unions the option of using the site carpark if they wish to conduct mass meetings before or after work 18.

[127] The evidence of the practice in the past in any event is that regardless of FWW requesting the permit holders meet with employees of only one contractor on numerous occasions the discussions that Mr. Upton has held were with employees of multiple contractors. The evidence of Mr Gibson is that of approximately 80 right of entry discussions held by CFMEU permit holders 20 have involved employees from more than one contractor 19.

[128] The applicant argues that this aspect of the dispute should be resolved by FWA issuing an order that:

“FWW will allow permit holders from the CFMEU to engage in discussion with more than one contractor’s employees at the same time where those employees wish to participate in those discussions”

[129] Implicit in such an order is that there would be no limit on the number of contractors’ employees a permit holder would be able to hold discussions with at the same time. A right of entry notice could be exercised by a permit holder to hold discussions with the employees of a large number of contractors at the same time. Given there are in excess of 50 contractors working on the site with a total of approximately 3,300 employees a right of entry exercised in this way this could lead to the movement of significant numbers around site. In such a case the risks arising from employee movement that normally would be a marginal concern would become a serious safety issue on the site. Further in my view a right of entry exercised in such circumstances would be likely to cause undue inconvenience to the occupier and many of the employers.

[130] The employers of the employees and the occupier have an interest in minimising safety risks and minimising any lost time that occurs when employees wish to meet with permit holders who are exercising a right of entry to hold discussions.

[131] The applicant has an interest in meeting with its members and potential members and doing this efficiently, and these employees have an interest in receiving information from permit holders at their workplace.

[132] In dealing with disputes such as this section 505(4) requires FWA to take into account fairness between the parties concerned. In the circumstances here I have decided that the balance is in favour of finding that it is not reasonable for FWW to always request that permit holders exercising a right of entry only hold discussions with employees of one contractor at a time. There will however be instances when FWW is justified in requesting a permit holder have discussions with employees of only one contractor at a time and this will be a reasonable request. This will depend on which contractors’ employees’ a permit holder notifies it intends to hold discussions with and the locations on site of those respective employees and also potentially on the total number of employees involved. It remains then a matter of judgement for the occupier, FWW, in responding to each notification by an orgnaisation as to whether they request only one contractors employees be involved. Given this variability in the circumstances an Order is not an appropriate instrument to use in resolving this part of the dispute. It is appropriate then to deal with this part of the matters in dispute by issuing the following recommendation.

Recommendation

Subject to the applicant having provided a valid entry notice, FWW will allow permit holders to hold discussions, as provided for by s. 484, with employees of more than one nominated contractor at the same time, but only if the employees of each nominated contractor have their crib rooms adjacent to the same designated meeting area. Any dispute regarding the application of this recommendation may be referred to FWA for resolution.

S. 492 – A reasonable request?

[133] In terms of the reference to the occupiers request being reasonable or unreasonable a Full Bench of the Australian Industrial Relations Commission considered this in

Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office 20. This matter involved an appeal against a decision concerning right of entry to investigate breaches of a registered agreement and considered the words in s.751 of the Workplace Relations Act 1996. This section reads:

s. 751 Limitation on rights—failure to comply with requests of occupier or affected employer

(1) This Division does not authorise a permit holder to enter, or remain on, premises if the permit holder fails to produce the permit holder’s authority documents for inspection when requested to do so by an affected employer or by the occupier of the premises.

(2) This Division does not authorise a permit holder to enter, or remain on, premises if:

(a) an affected employer or the occupier of the premises requests the permit holder to comply with an occupational health and safety requirement that applies to the premises; and

(b) the request is a reasonable request; and

Note: The Commission may make an order under section 771 if the request is unreasonable.

(3) This Division does not authorise a permit holder to enter, or remain on, premises if:

(a) an affected employer or the occupier of the premises requests the permit holder to do either or both of the following:

(i) to conduct interviews in a particular room or area of the premises;

(ii) to take a particular route to reach a particular room or area of the premises; and

(b) the request is a reasonable request; and

Note: The Commission may make an order under section 771 if the request is unreasonable.

(4) For the purposes of subsection (3), if an affected employer or the occupier requests the permit holder to hold discussions in a particular room or area, or to take a particular route to reach a particular room or area, the request is not unreasonable only because it is not the room, area or route that the permit holder would have chosen.

[134] At paragraph 29 the Full Bench stated:

“We accept that in considering whether an employer’s request is reasonable for the purposes of s.751(3) the Commission is required to take all of the circumstances into account and to consider the legitimate interests of the employer or the occupier of the premises as well as the interests of the employees and the permit holder. The public interest in the observance of industrial laws is also a relevant consideration…”

[135] In the context of this application concerning entry by permit holders for the purposes of holding discussions I accept that in considering the question of reasonableness the tribunal is required to consider all relevant circumstances including the legitimate interests of the employer and occupier as well as the interests of the employees and the permit holder.

[136] In this case relevant circumstances to be taken into account include the nature of the industry and the size and location of the site, the site policies and practices of the occupier and employers concerning safety and security, and all of the areas and facilities that might possibly be used for discussions between permit holders and employees.

[137] The legitimate interests of the employers and occupier include ensuring a permit holder is complying with the FW Act, that work disruption is not undue and that site safety and security policies are adhered to.

[138] The legitimate interests of employees include being free from intimidation to choose whether to participate in discussions with permit holders or no to participate, to have access to an area for discussion that is fit for purpose and to be free to enjoy their meal breaks as they wish.

[139] Organisations and their permit holders have legitimate interest to exercise their rights under the FW Act to hold discussion with members and persons eligible to be members and to be able to conduct discussions with those employees in an area that is fit for purpose.

S. 492(2)(a) - Fit for purpose?

[140] The applicant argued throughout this matter that the discussions with permit holders should be held in the crib rooms. Being air conditioned a crib room would provide greater comfort than the meeting areas outside where employees are subject to heat, noise, flies and other discomforts. Section 492(2)(a) however is concerned only with whether FWW’s request to hold the meetings in the designated areas is unreasonable because the area is not fit for the purpose of holding the discussions.

[141] The term fit for purpose is commonly used in consumer law where it has the meaning of appropriate and of the necessary standard for its intended use.

[142] I accept the view that in considering whether the designated meeting areas are fit for the purpose of holding discussions the tribunal does not need to consider whether the crib rooms proposed by the applicant would be a preferable location. This is not relevant to whether or not the designated areas are fit for the purpose of holding discussions. This point may have to be considered under s .492 (2) (b) but not under s. 492(2) (a).

[143] Clearly the FW Act does not envisage that an occupier or employer is required to construct a purpose built facility for discussions between permit holders and employees. The FW Act envisages that such discussions will be held in whatever areas or facilities are available. Clearly the quality of the areas available will vary widely and be highly industry and workplace dependent. The areas available to hold discussion in a hotel or office will be qualitatively different from those available to employees working in remote locations on road maintenance or construction.

[144] In this case FWW has gone to some effort to establish the three designated meeting areas which do allow a sizeable number of employees to gather together and meet for discussion with permit holders. Contrary to the submissions of the CFMEU the evidence and inspections demonstrated that other than for small numbers of employees the locations of the designated meeting areas are close to the facilities provided for employees which they use in their meal breaks, such as crib rooms, water, ice, ablutions and smoking areas. They are conveniently located for the vast majority of employees to participate in discussions with permit holders if they wish. Some protection from the sun has been provided and limited basic seating is also provided.

[145] An essential characteristic of an area that is fit for the purpose of discussion is that the employees are able to hear a permit holding talking to them and be heard in turn by that permit holder.

[146] The witnesses for the CFMEU did complain about the noise during discussions. I accept that at times passing vehicles may require a break in discussions however I am satisfied that this would be momentary and does not in reality stop the discussion occurring. There is no evidence that noise from traffic, generators and other construction activity around the areas have meant that discussions had to be curtailed. In fact the applicants permit holder has had as many as 80 discussions with employees at these designated meeting areas. The evidence is that many employees have attended and participated in those discussions on a large number of occasions.

[147] It is not the case that the designated meeting areas suffer the other drawbacks complained of by the CFMEU more so than other areas on the site. These other drawbacks complained of, such as heat, flies and dust at times, are a natural consequence of the workplace being a construction site. As noted before the CFMEU’s preference for crib rooms to be used does not determine whether the meeting areas are fit for purpose. The designated meeting areas do meet the legitimate interests of the employees and the permit holders. I am satisfied that these three designated meeting areas are fit for the purpose of permit holders holding discussions with employees.

S. 492(b) –Intention to intimidate, discourage or make difficult for?

[148] Having found that the designated areas are fit for the purpose of holding discussions the second question is whether the occupier chose these areas with the intention of:

intimidating employees who might participate or,

discouraging employees from participating or,

making it difficult for employees to participate in those discussions.

[149] There was evidence from the CFMEU’s witnesses regarding intimidation. Mr. Upton, Mr. Mc Donald and Mr. Hopkins held the view the designated meeting areas were picked to intimidate employees participating in Union activities 21.

[150] Mr. Glynn said he felt intimidated by the presence of the CCI observer as did Mr. Heales and Mr. Marques 22.

[151] This evidence is relevant but the subjective personal feelings of individual employees do not determine objectively what FWW’s intentions were.

[152] There was no real evidence to conclude that employees were discouraged from attendance by the location of the meeting areas. To the contrary the witnesses who gave evidence had themselves attended many meetings. Some attended weekly 23 and others as many as 10 or 12 meetings24.Further the evidence of Mr. Gibson and Mr. Milne regarding attendance at the meetings shows in total significant numbers of employee’s attending the meetings.

[153] There is no evidence that participating in the meetings was made difficult by the occupiers request that the discussions be held in the designated areas. For the majority of employees the designated meeting areas are a few minutes walk at the most from their crib rooms and for others transport is provided to drive them to the areas in working time.

[154] The issue however in s 492(b) is not whether employees were intimidated or discouraged or found it difficult to participate in discussions with permit holders but whether that was the intent of FWW in requesting that the discussion be held in the designated areas.

[155] Senior Deputy President Richards in The Australian Workers' Union; The Australian Workers' Union of Employees, Queensland v Ardent LeisureLimited T/A Dreamworld [2009] FWA 926 (6 December 2009), (Dreamworld case”) has considered the operations of s. 492.

[156] SDP Richards had to determine whether or not the occupier of the premises, Dreamworld, made an unreasonable request of the permit holder to meet in a particular building (The Shell) and did so with the intention of doing the kind of things set out in section 492(2)[(b)](i), (ii) and (iii) of the FW Act. As His Honour saw it, the FW Act required that he “investigate [the decision maker’s] motivation [to determine if] it demonstrates an intention to do the things that are proscribed”. Para 16.

[157] Having considered the arguments, His Honour determined at paragraphs 24 and 25 that:

“The Act specifies that a request is an unreasonable request if the occupier acted with the intention of doing certain proscribed things. I have not been able to find in the evidence of this matter that Ms McLachlan acted with the intention of doing the proscribed things, or indeed other actions, that might contravene the section. Absent the intention, there can be no act of unreasonableness on the part of the occupier such that it intended the consequences of the location that was nominated for the meetings as alleged by the AWU”.

[158] It falls to the applicant to prove that it was FWW’s intention in requesting discussions be held in the designated areas to achieve one or more of the proscribed outcomes in s.492(2)(b).

[159] A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

[160] Here the tribunal needs to be satisfied that the actual intention of the respondent is one or more of the proscribed outcomes

[161] Inferences can be drawn from FWW’s actions. It did establish the meeting facilities in particular places, construct them in a particular way and then request the CFMEU hold discussions only in those designated areas. FWW chose not to allow permit holders to have discussions in the crib rooms which are more comfortable. The applicant has asked FWA to infer from FWW’s actions that FWW’s requests were made with proscribed intentions.

[162] The designated meeting areas are close to most of the employees crib rooms, ablutions, water and ice facilities and the designated smoking areas. If the designated meeting areas were a long distance from these facilities that would be to the disadvantage of the employees wanting to participate in discussion with permit holders. There are then some positive benefits for employees wishing to participate in discussion with permit holders in the locations chosen by FWW.

[163] The designated meeting areas however are outdoors and basic in comfort and amenity. It is not difficult to conceive of circumstances where an occupier requesting that permit holders hold discussions in an outdoor area exposed to the elements with minimal comforts could be viewed as having requested this with the intent of discouraging participation in those discussions. If such a request was made in an office type workplace with readily available vacant indoor areas and the occupier was not able to explain why the outdoor areas was appropriate such a proscribed intent might well be inferred. The occupiers request must in my view be considered in the context of the particular surrounding circumstances.

[164] In this case there is direct evidence of FWW’s intentions found in the evidence of the respondents’ witnesses who explained their reasons for their actions, including not allowing the discussions to be held in the crib rooms, none of which are proscribed reasons. The CFMEU may not agree with those reasons but that is not enough. Those witnesses were credible and unshaken on their explanations. The explanations are objectively plausible; they are not dubious or far fetched.

[165] I consequently do not infer from the actions of FWW that their requests as to the areas in which the applicants permit holders must hold the discussions were made for proscribed reasons.

[166] The onus is on the applicant to satisfy FWA that the intent of FWW was for a proscribed reason. There is no evidence on which I should find that FWW intended any of the proscribed outcomes in s. 492(2)(b) when they chose the locations of the designated areas, erected the facilities in those areas and requested that permit holders hold their discussions with employees in only those areas. My conclusion is the same with regard to the RCR Freo Machinery meeting area

S. 492 – Conclusion

[167] Having found that the request to meet in the designated meeting areas is specifically not unreasonable for the reasons set out in section 492 (2) (a) or (b) is there another basis for finding that the request is generally unreasonable?

[168] On this site there are no unused undercover areas or vacant indoor areas that are readily available that could be used by a permit holder to have discussions with employees.

[169] The CFMEU has throughout this case argued that permit holders should be allowed to have discussions with employees in the crib rooms.

[170] The CFMEU has provided some evidence that on other construction sites in the north-west of Western Australia permit holders do hold discussions with employees in the crib rooms. FWW have provided evidence to the contrary. Nothing however has been put to the tribunal that supports the view that the practice on other sites in some way determines what is reasonable on this site. In any event I am of the view that for the tribunal to take into serious consideration what occurs on other sites the applicant would need to provide a detailed comparison between the site the tribunal is considering here and each of those other sites in terms of all relevant factors and this would need to be a comprehensive comparative study across the industry. In my view the evidence provided regarding the practice elsewhere is of little assistance in determining whether the request in this case is reasonable or not.

[171] On the site all the crib rooms are used by employees during the meal breaks. There is significant evidence that the employees using an individual crib room are territorial, meaning that those employees habitually use the same crib room and groups of individuals prefer to sit together at the same table and often the same seat at that table every day 25. The inspections reinforced this is the case. It was apparent that at each table there are different collections of biscuits in various containers with accompanying jars and containers of various spreads and condiments which are those particular items preferred by the employees who would usually occupy that table. Many tables had individual employees names written on them to indicate a particular seat was “theirs”.

[172] FWW submit that if discussions were held in a crib room by permit holders those employees who did not wish to participate and those employees not eligible to participate including members of other unions, would inevitably have their meal break interfered with and in all likelihood would feel the need to leave the crib room.

[173] The applicant submits that those employees who would normally use a particular crib room when it was being used for discussions by a permit holder would not need to leave and would be able to remain.

[174] The applicant's position in this regard in my view is impractical. If non-participating employees did remain in a crib room whilst the applicants permit holder was having discussions those discussions between the employees wishing to participate and the permit holder would not be private. Those discussions would be overheard by the non-participating employees. This would have the real potential to inhibit what should be free and open discussions between a permit holder and employees eligible to and wishing to participate in those discussions. This in my view would mean that the crib rooms would not be fit for the purpose of discussions with a permit holder.

[175] This situation would also expose the permit holder to the accusation from the occupier that they were in fact holding discussions with some employees they are not entitled to have discussions with and so were acting contrary to section 484.

[176] There is also the potential that holding discussions in the crib rooms would create friction between those employees wishing to attend and participate and the other employees who would normally be using that crib room for their meal break. These other employees may feel their meal break had been disrupted and they have been inconvenienced.

[177] In addition the crib rooms would only accommodate a medium-sized meeting for discussions because they contain tables and chairs and fridges and other kitchen equipment. They would be unsuitable for a meeting of a large group of employees whereas the designated meeting areas are capable off accommodating a much larger group of employees.

[178] As the applicant has argued implicit in the occupier's request for permit holders to use one of the designated meeting areas for discussions is a refusal to allow a permit holder to hold those discussions in the crib rooms. If the crib rooms were to be used there would clearly be a number of difficulties for the permit holders and the employees wishing to participate in those discussions. There would also be difficulties for the employees who were eligible to participate but did not wish to and employees who are not eligible to participate, both of whom would otherwise have been having their meal break in that crib room.

[179] These difficulties are valid reasons why the crib rooms cannot be said to be the preferable place for permit holders to hold discussions. The CFMEU though have highlighted the self evident drawbacks of the designated meeting areas largely associated with the areas being outside. There are obviously different advantages and disadvantages if either the crib rooms or the designated meeting areas are used for discussions. FWW has considered these issues and decided to request that permit holders use the designated meeting areas. In the circumstances there are sound grounds for their decision to make this request, it has been explained and can be justified. That is not to say that others would always come to the same conclusion in the same circumstances.

[180] Considering the terms of s. 492 the CFMEU must demonstrate that the request to hold discussions in the designated meeting areas is objectively unreasonable. The mere refusal to allow the discussion to be held in a room or area the CFMEU prefers such as the crib rooms is not the issue. A request made in accordance with the legislation is a unilateral decision within the discretion of the occupier provided it is reasonable. In this case considering the full range of issues both parties have identified and considering fairness between the parties I find that it is reasonable for FWW to request that permit holders hold their discussion in any of the three designated meeting areas and in the meeting area for RCR Freo Machinery employees.

Observing the meetings

[181] It is not disputed that as part of FWW’s policy permit holders who exercise a right of entry to this site are escorted at all times usually by a representative from CCI.

[182] The evidence is that the CCI escort would drive Mr. Upton to the designated meeting area and remain in a vehicle parked in a position where they would able to observe the employees and Mr. Upton holding their discussions in the designated area. The evidence is that the CCI escort would not be able to overhear the discussions.

[183] Some of the employees who gave evidence as witnesses for the CFMEU say that in some cases they feel intimidated by this. However these witnesses also say they would prefer to have the discussions held in the crib rooms and this alternative was central to the CFMEU’s case. All the crib rooms on site are adjacent to the offices used by the staff of the various contractors. These staff working in their offices, using the adjacent ablutions, smoking areas or water and ice machines would be able to observe, whether inadvertently or intentionally the employees moving in and out of a crib room if a permit holder was holding discussions in that crib room. The evidence of Mr. Upton was also that the practice of using crib rooms on previous related projects included that members of other unions and non-union members remained in the crib room and could listen whilst the discussion were held 26.

[184] There is an internal inconsistency in the CFMEU evidence on these two issues. If employees feel intimidated being observed attending meetings in the designated meeting areas they should have the same concerns if the meetings were held in the crib rooms but their evidence does not say this. My conclusion is that the witness evidence expressing feelings of intimidation was exaggerated.

[185] 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.

[186] 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.

[187] FWW say that the reason the CCI escort remains to observe Mr. Upton holding his discussions is to ensure that he remains within the legislated limits of his right of entry specified in s. 484.

[188] FWW also argue that the behavior on site to date by permit holders and on earlier related construction projects, demonstrate that permit holders have at times strayed beyond the boundaries of their limited rights under s. 484 and its predecessor provisions under the Workplace Relations Act 1996. These experiences reinforce FWW’s view that it is necessary to actively monitor permit holders when they are on site to ensure this does not occur.

[189] I accept that there is evidence that some permit holders, including Mr. Upton 27, at times have held discussions with employees whom were not members nor were eligible to be members of that union28. The evidence of the CFMEU’s witnesses themselves was that at the CFMEU discussions the permit holders do not advise employees which classes of employees are entitled to participate and which aren’t. I accept the evidence also demonstrates that at times permit holders have sought to, and may have continued discussions, with employees beyond the time of the meal break although not the applicants permit holders29.

[190] 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.

[191] The question here is whether the observation of the meetings by agents of the occupier should be interfered with by the tribunal. In this case the actions of the CCI representative observing the meetings from a distance out of earshot whilst it may unsettle some employees does not in my view inhibit or interfere with the rights of the permit holders or the employees and is a reasonable action that is justified in all the circumstances.

COMMISSIONER

Appearances:

Mr M Swinbourn of the CFMEU for the Applicant

Mr H Dixon, Barrister for the Respondent

Hearing details:

Perth

2010

December 16, 17, 19

1 Exhibit R1 and R11.

2 Gwynne Witness Statement Para 66

3 Upton Witness Statement Para 23

4 Gibson Witness Statement Para 23 to 59

5 Gwynne Witness Statement Attachment DMG 1

6 Gibson Witness Statement CG 5, also Upton Witness Statement attachment BJHU3

7 Clarke Witness Statement Para 101

8 See Construction, Forestry, Mining and Enerqv Union v BGC (Australia) Pty Ltd [20081 AIRC 55, Williams C accepted that BGC had the right to observe discussions between permit holders and workers when a right of entry was being exercised provided that the employer did not demand a right to listen to the discussions. Similarly in ASU v ATO, Lawler VP found that there was nothing in the WR Act to suggest that an employer cannot have a permit holder escorted during an inspection conducted pursuant to s.748(2)(a) of the WR Act (at [45]; see also [60]). Further, in Dreamworld, SDP Richards found that a security guard carrying out instructions to escort union officials was not a disincentive for persons to attend the union meetings.

9 Transcript Para 3111

10 Exhibit R1 and R11.

11 Gwynne Witness Statement Para 72

12 Clarke Witness Statement Para 75

13 Transcript Para, 1615 and 1616 and 3276

14 Upton Witness Statement Para 35

15 Upton Witness Statement Para 109 and 110

16 Transcript Para 3256

17 Upton Witness Statement Para 99 and BJHU 11

18 Upton Witness Statement Page 28 “ Pluto LNG Project Responses”

19 Gibson Witness Statement Para 48

20 2007 AIRCFB, PR975822

21 Upton Witness Statement Para 121, McDonald Witness Statement Para 31, Hopkins Witness Statement Para 26

22 Glynn Witness Statement Para 40, Heales Witness Statement Para 33, Marques Witness Statement Para 36 and 37

23 McDonald Witness Statement Para 26

24 Marques Witness Statement Para 30

25 Upton PN 1325 – 1327, Clarke PN 2496 -2506, Heales PN 586, 587, Hopkins Witness Statement Para 15, Marques Witness Statement Para 24

26 Transcript Para 1318 -1319

27 Transcript Para 1580, 1581, 1619, 2873 - 2875

28 Transcript Para 2724 – 2726

29 Milne Witness Statement Para 39, 42, Transcript Para 2729- 2730.

Printed by authority of the Commonwealth Government Printer

[2010] FWA 2341

29 MARCH 2010