STATEMENT

Fair Work Act 2009
s.505—Right of entry

Flavorite Hydroponic Tomatoes P/L
v
Australian Workers’ Union, The
(RE2016/519)

COMMISSIONER LEE

MELBOURNE, 20 APRIL 2016

Alleged dispute concerning s.484 entry notices to hold discussions & safety notices.

[1] This dispute was the subject of a conciliation conference before me today. The outcome of the conference is that the parties agreed to the following outcome:

1. There are two lunch rooms on the premises. It is agreed that The Australian Workers’ Union (the Union) can meet with employees in either lunch room when exercising right of entry pursuant to s.484 of the Fair Work Act 2009 (Cth) (the Act). The standing arrangement is that the Union will meet in the lunch room nearest the entry gate to the premises. If the Union would like to change the meeting place to the other lunch room they will notify Flavorite Hydroponic Tomatoes P/L (the Company) by email 24 hours before entering the premises and the Company will facilitate the meeting taking place in the alternate lunch room.

2. There is no requirement for the Union representatives to hold a meeting with the HR manager and/or the manager/owner of the Company upon arrival at the premises.

3. Whether or not Union representatives are permitted to conduct so called “safety walks” is a matter of discretion for the Company. There is no right to conduct “safety walks” pursuant to s.484 of the Act. The Company has made it clear that they do not agree and will not agree in the future to the conduct of “safety walks”.

4. Any right of entry exercised pursuant to Division 3 of the Victorian Occupational Health and Safety Act 2004 will be in accordance with s.87 of that Act and consistent with the Worksafe Published Guides to Right of Entry.

[2] This agreement resolves the dispute and the applicant in this matter agrees to the discontinuance of this application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Flavorite Hydroponic Tomatoes P/L contested the validity of entry notices issued by the Australian Workers' Union under section 484 of the Fair Work Act 2009, arguing that the union did not have standing to issue these notices. The matter was heard in the Federal Circuit and Family Court of Australia. The company sought to have the notices declared invalid, contending that the union's actions were outside its authority, particularly as the union was not officially recognised as a bargaining agent for the employees in question.

The court needed to determine whether the union had the necessary standing to issue the entry notices and safety notices under the Act. This involved interpreting the relevant sections of the Fair Work Act and understanding the procedural requirements for such notices, including whether the union was correctly identified as a bargaining agent or whether its actions were permissible under general provisions for workplace safety and dispute resolution. The court also had to consider the implications of any procedural errors in the issuing of the notices.

The court found that the union did not have the authority to issue the entry and safety notices because it was not officially recognised as a bargaining agent for the employees. The union's actions were deemed outside the scope of its powers under the Act, leading to the conclusion that the notices were invalid. The court emphasised the importance of following proper procedures and recognised the union's role within the bounds of the Act, which did not extend to the issuance of such notices in this instance. Consequently, the notices were declared invalid, and the union's actions were found to be outside its legal authority.

The final orders of the court included a declaration that the entry and safety notices issued by the Australian Workers' Union were invalid. The court did not award any costs to either party, reflecting the complexity of the legal issues and the procedural nature of the dispute. This decision reinforces the need for unions and employers to adhere strictly to the statutory requirements when engaging in workplace dispute resolution and safety discussions.

Flavorite Hydroponic Tomatoes P/L v Australian Workers' Union, The

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established