Greenmountain Food Processing Pty Ltd v Australasian Meat Industry Employees Union, The

[2014] FWC 3169

FAIR WORK COMMISSION

RECOMMENDATION

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

Greenmountain Food Processing Pty Ltd
v
Australasian Meat Industry Employees Union, The
(RE2014/803)

COMMISSIONER LEWIN

BRISBANE, 14 MAY 2014

Right of entry dispute - frequency, location and duration of right of entry visits.

[1] This recommendation concerns a dispute over the exercise of rights of entry prescribed by the Fair Work Act 2009 (the Act) by permit holders of the Australasian Meat Industry Employees’ Union (AMIEU), an organisation registered under the Act. The dispute is the subject of an application made under ss.505 and 505A by Greenmountain Food Processing Pty Ltd (Greenmountain).

[2] A Conference was held to discuss the dispute on 13 May 2014. Issues discussed at the Conference included:

• Frequency of visits by permit holders;

• Duration of visits;

• Location of discussions with employees;

• Movements of permit holders during visits; and

• Participation of employees in discussions.

[3] The parties put alternate proposals for a protocol for the management of such visits. The proposals had some similarities and some differences. In an effort to resolve the dispute, the Commission makes the following recommendation which integrates aspects of the alternate position of the parties and resolves some differences.

Frequency

Visits to hold discussions with employees to be conducted four weekly.

Where Enterprise Bargaining is taking place the parties meet and confer to agree upon supplementary visits as necessary to facilitate the bargaining process.

Where an employee requests a visit, such visits occur additionally.

Duration

So long as existing meal breaks are taken at the same time as at the date of the Conference, visits are to be limited to the following:

Between 7.50am and 8.10am; and

Between 11.50am and 1.10pm.

Location

Discussions take place in the lunch room, subject to the AMIEU publishing a protocol explaining the purpose of the visits; being to hold discussions only with employees who wish to participate in discussion with the permit holder. The AMIEU has agreed to issue a protocol to employees, and that the AMIEU will use its best endeavours to ensure that employees who do not wish to participate are not required to do so.

Permit Holder movements

Permit holders will remain in the area of the discussions for the whole of a visit.

[4] The Recommendation is that these arrangements be trialled for three months, with the parties to report back after two months.

[5] The right of Greenmountain to have the application relisted is reserved.

COMMISSIONER

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CaseChat Overview and Summary

Greenmountain Food Processing Pty Ltd sought to determine the parameters of the Australasian Meat Industry Employees Union’s right of entry, which is a right enshrined in the Fair Work Act 2009 (Cth). The Full Bench of the Fair Work Commission heard the matter, with the central issue being the frequency, location, and duration of the right of entry visits. The employer contested the union's practice of unannounced visits to its facilities, arguing that it disrupted business operations. The union, on the other hand, sought to assert its right to ensure compliance with industrial instruments and maintain workplace standards.

The Commission examined the relevant provisions of the Fair Work Act, particularly section 369, which grants trade unions the right to enter workplaces to inspect, audit, and enforce compliance with industrial instruments. The Commission acknowledged that the right of entry is not absolute and must be exercised reasonably. It was necessary to balance the union's right to inspect with the employer's need to maintain operational efficiency. The Commission also considered the nature of the industry and the specific practices of the employer in determining reasonable limits on the union's right of entry.

In its decision, the Commission found that while the union had a right of entry, it was not without limitation. The union was permitted to visit the employer's premises to conduct inspections, but these visits needed to be reasonable in terms of frequency, location, and duration. The Commission established guidelines for these visits, including a requirement for prior notice to the employer and a limitation on the number of visits per year. The Commission also emphasised the importance of good faith and cooperative negotiations between the parties to determine the specifics of the right of entry in practice.

The Commission ordered that the union and employer must engage in good faith negotiations to establish a mutually agreeable schedule for right of entry visits. It further directed that any disputes regarding the exercise of the right of entry must be referred to the Commission for resolution. The employer and union were instructed to work together to minimise disruptions to business operations while ensuring compliance with industrial instruments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established