Milos Vlach v Electrolux Home Products Pty Ltd
[2010] FWA 2435
•25 MARCH 2010
[2010] FWA 2435 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Milos Vlach
v
Electrolux Home Products Pty Ltd
(U2009/13100)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 25 MARCH 2010 |
termination of employment – request for interlocutory order.
[1] This decision deals with an application filed by the AMWU on behalf of Mr Vlach seeking an order that Electrolux Home Products Pty Ltd (Electrolux) grant Mr Vlach access to the Electrolux factory for the purposes specified in the application. This order is sought by the AMWU so as to prepare its case for the arbitration of Mr Vlach’s unfair dismissal application. The unfair dismissal application is currently listed for arbitration on 10 May 2010.
[2] The order sought by the AMWU in its application filed on 5 February 2010 is that:
“1. The Respondent grants representatives of the Applicant access to Respondent’s plant located at Simpson Avenue, Dudley Park for the purposes of:
a. ascertaining the physical layout of the Applicant’s work area.
b. viewing machinery and equipment in the related work areas.
c. measuring space, taking photos, interviewing witnesses at the work site.
2. That such access be granted during production and breaks.
3. That such access be granted at times nominated by applicant representatives (AMWU).
We anticipate that this access will be when production is occurring and during breaks – to take photographs/measurements without affecting production.
4. That this access be allowed during the week beginning Monday 8 February 2010.
5. This order to come into effect from Friday 5 February 2010.
6. Liberty to apply.”
[3] I have referred to this application as the interlocutory application.
[4] The interlocutory application was initially made pursuant to section 394 of the Act.
[5] This decision deals specifically with this interlocutory application. The interlocutory application was the subject of a hearing on 23 February 2010. At this hearing Mr Vlach was represented by Ms Nachiappan of the AMWU. Electrolux was represented by Mr Short of counsel.
[6] At the hearing on 23 February 2010 Ms Nachiappan argued that the order sought was necessary so as to enable proper preparation of Mr Vlach’s case and the establishment of facts which might otherwise be in dispute.
[7] Mr Short's position was that Fair Work Australia lacked the requisite jurisdiction to make the order sought. Electrolux undertook to provide photographs, diagrams and measurements of the work area but asserted that interviews with employees was a matter for the applicant to address independently of Electrolux.
[8] In the course of this hearing I invited Ms Nachiappan to provide written submissions and Mr Short to respond to these submissions.
[9] I have considered the material subsequently provided to me.
[10] In her submissions, Ms Nachiappan asserts that there are factual differences between Mr Vlach’s position and that of Electrolux such that Mr Vlach's representative, the AMWU needed to inspect the workplace. Whilst Ms Nachiappan refers to 30 November 2009 as the relevant date, I suspect this is an error as Mr Vlach’s employment was terminated prior to that date. I have taken it that the request emanates from concern over exactly what events happened so as to give rise to the termination of Mr Vlach’s employment. Ms Nachiappan asserts that the access sought would enable facts to be ascertained and benefit the conduct of a fair trial given that Electrolux will rely on photographs and worksite facts.
[11] Ms Nachiappan asserts that the AMWU is not seeking a de facto right of entry and that the application is not inconsistent with, or additional to the right of entry provisions in the Act. Ms Nachiappan submits that the AMWU representatives will behave in a proper manner whilst on the Electrolux premises.
[12] While the application was initially made pursuant to section 394 of the Act, Ms Nachiappan in her submissions, subsequently asserted that Fair Work Australia has a discretionary power, not explicit in the Act, to grant an order of this nature. Additionally, Ms Nachiappan asserts that section 577(a) requires Fair Work Australia to act in a fair and just manner and section 578(b) requires Fair Work Australia to take into account matters of equity and good conscience when exercising its functions and powers. Section 589(1) provides power to make procedural decisions which should extend to ensuring that Mr Vlach has equal access to the information available to Electrolux. Further, Ms Nachiappan asserts that section 590 provides Fair Work Australia with the power to inform itself in regard to a matter and is not exhaustive in this respect.
[13] The Electrolux position is that Fair Work Australia does not have the power to grant the order sought as the Act does not provide such a basis. Electrolux argued that right of entry issues were comprehensively addressed in Part 3-4 of the Act and that the AMWU motion exceeded these limitations. Electrolux argued that irrespective of the jurisdictional issue, Ms Nachiappan had not established a basis upon which the application went to issues of natural justice.
Findings
[14] The order sought has a number of components. It principally seeks that the AMWU be allowed to enter, view, photograph and measure Mr Vlach’s former work area during and outside of actual work times.
[15] Secondly, it seeks to allow the AMWU to interview witnesses. I have taken this to involve interviews during work breaks.
[16] In these respects the order sought is entirely different from orders which Fair Work Australia may make about the conduct of the hearing in terms of who should attend before it and what information should be provided or exchanged in order for a proceeding to occur in a fair and equitable manner.
[17] The powers available to Fair Work Australia are those that are specified in the Act. As a creature of statute, Fair Work Australia is unable to assume powers not specifically bestowed upon it by the Act.
[18] Section 577 refers to the manner in which Fair Work Australia is to perform its functions and powers. Section 578 specifies the matters which Fair Work Australia must take into account in performing its functions.
[19] Section 589 enables Fair Work Australia to make decisions about when and how a matter is to be dealt with. This section also enables Fair Work Australia to make an interim decision in relation to a matter before it. This section does not establish a capacity for Fair Work Australia to allow the AMWU to enter a particular employer's premises.
[20] Section 590 deals with the powers of Fair Work Australia to inform itself in relation to matters before it. This section does not give Fair Work Australia the power to grant an order that allows the AMWU to enter the Electrolux facility for the purpose of collecting information which it may use itself, albeit in the representation of its member.
[21] Sections 592 and 593 provide Fair Work Australia with the power to require certain persons to be present at hearings or conferences.
[22] There is no provision in Part 3-2 which deals with unfair dismissal, which bestows on Fair Work Australia the right to make an order for access in the terms sought.
[23] To the extent that the order is sought by the AMWU in its own right, as distinct from the function of representing Mr Vlach, it provides for a right of entry which is clearly contrary to the provisions of Part 3-4 and the specific limitation on the powers which Fair Work Australia may exercise, in so far as these are set out in subsection 505(5).
[24] For the foregoing reasons, I am not persuaded that Fair Work Australia has the jurisdiction to grant an order of the nature sought by the AMWU.
[25] Even if this jurisdiction existed, I am not satisfied that a sufficient basis for such an order has been made out as necessary for the fair conduct of this arbitration.
[26] I am not satisfied that an inspection of Mr Vlach’s work area, some 5 months after the termination of his employment will allow sustainable conclusions to be reached about working conditions, and particularly noise at the time the incident occurred. That may be a matter for evidence at the hearing.
[27] I am not satisfied that it would be appropriate for an order to be made for entry purposes to canvass witnesses. Mr Vlach and his representatives have the right to approach potential witnesses outside of the workplace as is normally the case.
[28] Further, I am not satisfied that the proposed inspections are significant in terms of the capacity for a settlement of the matter. The parties either wish to settle the matter or they do not wish to do so and I do not accept that the proposed access is pivotal in this respect.
[29] It may be that workplace dimensions or photographs will assist both parties and myself in understanding the workplace environment. Directions requiring the production of this material will be issued.
[30] Further, it is open to either party to request inspections as part of the hearing process.
[31] Directions reflecting this decision will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
S Nachiappan “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for the Applicant.
A Short counsel for the Respondent.
Hearing details:
2010.
Adelaide:
February 23.
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