Liquor, Hospitality and Miscellaneous Union v Crown Melbourne Limited

[2010] FWA 7379

[2010] FWA 7379

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.505—Right of entry

Liquor, Hospitality and Miscellaneous Union
v
Crown Melbourne Limited
(RE2010/3643)

COMMISSIONER GOOLEY MELBOURNE, 21 SEPTEMBER 2010

Alleged dispute concerning requests by the respondent to conduct interviews in a particular room or area and to take a particular route to reach those areas as per section 492 of the Fair Work Act.

[1] The Liquor Hospitality and Miscellaneous Workers Union (LHMU) notified a dispute to Fair Work Australia between it and Crown Melbourne Ltd (Crown Casino) pursuant to section 505 of the Fair Work Act 2009 (FW Act).

[2] The dispute arose following a direction on 9 September 2010 by Crown Casino to the LHMU that organisers’ right of entry would be strictly in accordance with the FW Act 1 and a further direction on 10 September 2010 that discussions “may only be held in the former LHMU office, level 2 Clarke Street.”2

[3] The LHMU submitted that this direction by Crown Casino is unreasonable and the LHMU seeks orders that permit holders be permitted to hold those discussion in the lunch or meal room(s) of Crown Casino’s premises during meal times and other breaks.

Background

[4] On 25 August 2006 the LHMU and Crown Casino entered into a memorandum of understanding which in part dealt with right of entry for officials of the LHMU. That memorandum provided in part, that subject to providing 24 hours written notice to Crown, “the LHMU can access both its on-site office at the complex and IDs staff restaurant without restriction on hours of the day, or days of the week. When in IDs, the official/s will position themselves at a table to be located in the “market stall” area.” 3

[5] The LHMU on 8 September 2010 was granted a protected action ballot order to authorise its members at Crown Casino to take protected industrial action and around the same time the Secretary of the LHMU issued a press release in “which she indicated the intention to take industrial action.” 4 The ballot commences on 20 September 2010 and closes on 30 September 2010.5

[6] For reasons that do not need to be considered here, on 9 September 2010 Crown Casino gave notice to the LHMU that the memorandum of understanding would be terminated at 6pm on 9 September 2010.

The Hearing

[7] Mr White of Counsel appeared for the LHMU and Mr McKenny of Counsel appeared for Crown Casino.

[8] At the hearing of the matter Mr Ben Redford, Assistant Secretary of the LHMU, Mr Andrew Jones, Lead Organiser of the LHMU and Ms Alicia Gleeson General Manager Human Resources for Crown Casino gave evidence and were cross examined.

[9] The matter was heard on 20 September 2010 and the submissions and evidence of the parties were put before the Tribunal.

The application for an interim order

[10] At the commencement of proceedings Mr White foreshadowed that if the matter could not be determined to finality at the hearing the LHMU sought interim orders.

[11] At the conclusion of the hearing Mr White pressed his application for interim orders and submitted that on the basis of the material before the Tribunal an interim order should issue.

[12] Mr White referred to the judgement of the High Court in Australian Broadcasting Corporation v O’Neill  6as setting out the principles to be applied by Fair Work Australia when determining whether to grant an interim order. These principles were discussed by Bromberg J in Quinn v Overland 7where His Honour said:

“[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].”

[13] Mr White submitted on the issue of balance of convenience, that interim orders were needed to enable permit holders to meet and hold discussions with employees of Crown Casino during the period of the protected action ballot to enable them to respond to questions from these employees about the proposed ballot. He submitted that the evidence of Mr Jones, on which Mr Jones was not cross examined, is relevant to this consideration. 8

[14] Mr McKenny opposed the making of any interim orders because he submitted the hearing had proceeded to finality and therefore the appropriate course was for a final decision to be made. He further submitted that the Respondent would be prejudiced by the making of interim orders because it had not run its case on the basis that interim orders would be sought and therefore it did not, in the preparation of its materials and in cross examination, address this issue of serious question to be tried and balance of convenience.

[15] At the conclusion of the hearing I advised that I would determine whether to issue an interim order and adjourned the matter to 9.30am on 21 September 2010.

[16] Section 589 of the FW Act provides that Fair Work Australia may make an interim decision in relation to a matter before it. Section 595 sets out the powers of Fair Work Australia when dealing with disputes and this applies to disputes under section 505.

[17] Due to time constraints and the need to carefully consider all the material before me I am unable to determine the matter to finality immediately.

[18] I therefore consider it appropriate in all the circumstances to issue an interim order until the final determination of this matter.

[19] I do not accept the submissions of Mr McKenny that no interim order should issue because the hearing has been completed and all that needs to occur is that the matter be determined.

[20] The Respondent was put on notice at the commencement of the hearing that the LHMU sought interim orders if a final decision could not be made. It is not unusual in this Tribunal or its predecessor tribunals for interim orders to be granted in circumstances where the Tribunal is not in a position to make its final decision even in circumstances where final submissions have been made. In fact, in some sections of the FW Act such interim orders are mandated. 9

[21] It is not necessary in this Tribunal for the application for an interim order to proceed separately to the application for final orders. In circumstances where the Respondent was put on notice by the LHMU that it sought interim orders and where the Respondent had its witness available to lead oral evidence it may have needed to adduce on the issue of whether an interim order should be made, the Respondent’s submission that it would be prejudiced by its failure to call such evidence or make submissions cannot be sustained.

[22] I consider that the LHMU has established that there is a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo. There is sufficient likelihood that the Tribunal will determine that the direction to meet in what was formally the LHMU office at Crown Casino is not reasonable for the purpose of allowing the LHMU permit holders to exercise their right to hold discussions with employees.

[23] If the LHMU is subsequently granted final orders in the absence of interim orders the LHMU will not be able to undo the impact of their inability to hold discussions with their members in this critical period. In contrast Crown Casino did not put forward any submissions or evidence about any disadvantage it would suffer if interim orders were made. I conclude that Crown Casino would not be disadvantaged by the making of interim orders.

[24] Support for this conclusion is found in the evidence, that prior to 9 September 2010 LHMU officials had met with employees in meal areas without any interference with the business of Crown Casino and did not interfere with the right of Crown Casino to go about their business without undue inconvenience.

[25] In these circumstances I have determined to preserve the status quo until such time as a final decision is issued.

[26] The orders I intend making do no more than restore the LHMU permit holders to the position they were in prior to the direction of Crown Casino.

[27] Prior to the direction on 9 and 10 September 2010 the LHMU were able to meet with employees at the IDs restaurant which is currently under renovation and this facility has been transferred to the Sante’s Restaurant. This is described as the “main staff meal break area.” 10

[28] There was some evidence that on limited occasions discussions were held in other break out rooms but this occurred rarely. I have therefore in my order not extended the rights of the permit holders to hold discussions with employees in accordance with the FW Act to beyond the main staff meal break area.

[29] I therefore make the following interim order.

1. Until 28 September 2010 the Liquor, Hospitality and Miscellaneous Union permit holders when exercising their right of entry at the premises of Crown Melbourne Limited (“Crown Casino”), pursuant to section 484 of the Fair Work Act 2009, be permitted to hold those discussions in the main staff meal break area of Crown Casino during meal times and other breaks.

2. There be liberty to apply.

COMMISSIONER

Appearances:

E White for the Liquor Hospitality and Miscellaneous Union

M McKenny for Crown Melbourne Limited

Hearing details:

2010.
Melbourne:
September 20.

 1   Exhibit A2 at BR 5

 2   Exhibit A 2 at BR 6

 3   Exhibit A2 at BR1

 4   Exhibit R1 at AG 9

 5   Exhibit A1 at AJ6

 6 (2006) 227 CLR 57

 7 [2010] FCA 799 at [45]-[46]

 8   Exhibit A1 at [31]-[34]

 9   See section 420

 10   Exhibit A1 at [21]

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