National Union of Workers v Baiada Farms Pty Ltd

[2011] FWA 1651

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

National Union of Workers
v
Baiada Farms Pty Ltd
(C2011/3448)

SENIOR DEPUTY PRESIDENT KAUFMAN

MELBOURNE, 25 MARCH 2011

Dispute concerning ability of union officials to enter site to attend paid union meetings.

[1] On 9 March 2011 I determined a dispute between the National Union of Workers and Baiada Farms Pty Ltd.

[2] I gave brief ex-tempore reasons for my decision, after which the National Union of Workers sought that I reduce them to writing. The company has no objection to me so doing. These are my reasons, somewhat expanded.

[3] The dispute is over the application of clause 46 of the Baiada Farms Pty Ltd & NUW Certified Agreement 2005 - 2011. That clause should be read in its context, with particular regard to clause 41 and 45. They read:

41. RIGHT OF ENTRY OF UNION OFFICIALS

In order to facilitate the operation of this Agreement and/or ensure it’s observance an authorised Union representative is entitled to enter at reasonable times upon the premises with prior notification and authorization by Site management or relevant Company representative, to interview any employee, but not so as to interfere unreasonably with the employer’s business.

...

45. UNION REPRESENTATION

45.1 The employer recognises the Union delegates who are elected by the employees as the on-site representatives of the Union.

46. ADDITIONAL UNION MATTERS

46.1 Union meetings

Workers attending Union meetings on-site will be granted paid release for up to four hours annually for these meetings.

46.1.1 By mutual agreement of the Company and the Union, additional on-site meetings may be held to consider and discuss matters relating to this Agreement.

46.1.2 Except where otherwise agreed, 7 days notice of the meeting will be given to the Company

46.1.3 The Company will take all necessary steps to ensure that satisfactory arrangements for the maintenance of essential services during any meeting.

[4] As the agreement is a pre-reform agreement the application is governed by the Workplace Relations Act 1996 as it applied immediately prior to 1 July 2009.

[5] It was not contested that for many, many years the custom and practice at the site in question had been that when union meetings have been held on site, an organiser of the union has been permitted by the company to enter the site to attend the meeting.

[6] The relationship between the union and the company had been good until relatively recent times. Unfortunately, that relationship has soured Australia wide.

[7] In late November 2010 the current site organiser, Luke Fitzpatrick, sought a paid union made meeting in accordance with the usual custom and practice. Although initially agreed to by the company’s national industrial relations manager, the decision to allow Mr Fitzpatrick to attend the meeting was reversed. Ultimately the company contended that cl. 46 does not entitle a union organiser to enter the site in order to attend a meeting convened under that clause.

[8] The underlying reason for the change of heart by the company is that, given the current strained relationship between it and the union, the company is no longer inclined to extend to the union any indulgences. Its position is that when relations were good it was prepared to allow organisers to enter the site to attend mass meetings, even though the agreement did not so entitle them. Its current position is that it will only extend to the union such entitlements as it is allowed to under the agreement and the Fair Work Act 2009.

[9] The union submitted that, properly understood, cl. 46 provides an entitlement to have an officer of the union address meetings. It pointed out that in most instances the agreement makes reference to the union, which is defined as the National Union of Workers. Consequently, it is implicit that a union official is the only personification of the union for the purposes of holding “union meetings”. It submitted that where it is intended that certain powers or entitlements are conferred upon delegates, the agreement refers to union delegates; for example clauses 9.2, 9.4, 11.4, 42 and 45. Implicit in that contention is the notion that a union delegate is not able to represent the union for the purpose of clauses 46.1 or 46.2.

[10] Mr. A. Portelli, who appeared for the union, referred to Coca Cola Amatil (Aust) Pty Ltd v Liquor, Hospitality and Miscellaneous Union (PR974448) where Simmonds C differentiated between actions taken by a union organiser and site delegates in finding that actions taken by the delegates were not actions of the union, to support his submissions that the reference to “union meetings” in cl. 46 connotes meetings conducted by the union through one of its officers. His submission is that a reference to the “union” cannot mean a delegate; that where the agreement refers to something being done by the union it must mean by an officer or employee of the union, not by a union delegate.

[11] Coca Cola turned on its own facts and is not authority for the proposition that a union cannot act through site delegates. In Construction, Forestry, Mining and Energy Union v Clarke (1987) 1, Nicholson, J, citing with approval Wilcox J in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union (No 2)2observed that “the function of a job delegate is to act as the link between the union members on a particular job and management, and to be on the site, the voice of the union. Consequently, when the job delegate speaks to management about the union position on an industrial matter prima facie he or she speaks for the union.”

[12] Under the agreement, where a reference is made to union representatives other than delegates, that is spelt out. Importantly, clause 41 provides that authorized union representatives may enter the site to interview employees in order to facilitate the operation of the agreement and/or to ensure its observance.

[13] Had it been intended that an authorized union representative be entitled to enter the site to hold meetings it would have been easy for cl. 41, the “Right of Entry of Union Officials” clause, to have said so.

[14] In my view cl. 46 merely entitles the holding of paid union meetings, it does not concern itself with who is to conduct those meetings or entitle an organiser to enter the site to do so. As I have said, cl.41 deals with right of entry.

[15] Mr Portelli then submitted that a term to the effect that union organisers could enter the site for the purposes of holding mass meetings is implied into the agreement, or the employment relationship, by custom and practice. I do not accept this submission.

[16] It is not necessary that I ascertain to what extent, having regard to the clear meaning of the words used in the agreement, it is permissible to have regard to the accepted custom and practice to import a term into the agreement as sought by the union. This is because, in my view, the fact that there has been a long standing custom and practice of allowing union organisers entry to the site to address mass meetings is equivocal. That they had been so permitted is just as consistent, if not more so, with them having been permitted to enter as a matter of courtesy as with them having been permitted to enter by virtue of an implied term in the agreement. Further, there was no evidence that, when making the agreement, the parties turned their minds to the issue. It is certainly not necessary to import the term to make the agreement efficacious as union meetings can be conducted by delegates. Nor has the issue of right of entry by union officials been left uncovered by the agreement. It follows that it is not necessary to imply the term for the reasonable or effective operation of the agreement in the circumstances of the case. 3 Nor would the implication of such a term be an obvious reflection of the apparent intention of the parties to the agreement.4

[17] It was then submitted by Mr. Portelli that cl. 8 which provides that no employee will, as a result of the making of the agreement, suffer any reduction in benefits to which the employee is entitled, prevents the company from altering its long standing practice of allowing organiser entry to address mass meetings.

[18] The submission is untenable. First, I do not accept that having organisers address meetings is a benefit, and if it is, it is not a benefit of the kind contemplated by the clause. Secondly, the savings provision is only directed at matters that occur as a result of the making of the agreement. The decision by the company to no longer allow the right of entry of organisers to address meetings was not a result of the making of the agreement.

[19] It is for these reasons that I dismissed the application.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr. A. Portelli for the National Union of Workers

Mr J. Parker, solicitor, on behalf of Baiada Farms Pty Ltd

Hearing details:

MELBOURNE

2011

9 March

1 [2006] FCA 245

2 (1987) 15 FCR 64 at 78

3 For a useful discussion of the implication of clauses into agreements see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 per Finkelstein, J

4 Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd (2001) 108 IR 409.

Printed by authority of the Commonwealth Government Printer

The matter before the court involved the National Union of Workers, representing employees, and Baiada Farms Pty Ltd, an employer. The crux of the dispute was the union's assertion that its officials should be permitted to enter the company's premises to attend meetings with union members that were taking place during paid work hours. Baiada Farms contested this claim, arguing that the union's presence on the site during operational hours was disruptive and detrimental to business continuity. The case was heard in the Fair Work Commission, an Australian body with jurisdiction over workplace relations matters.

The primary legal issues the court had to address were the interpretation of existing workplace agreements concerning union activities and the balance between the union's right to organise and the employer's right to manage their business. The court needed to determine whether the union's activities constituted an unreasonable interference with the employer's operations and whether the union could enforce its right to organise without causing undue disruption. It was also necessary to examine the specific terms of any applicable agreements and how they applied to the facts of the case.

The court, in its decision, closely examined the provisions of the workplace agreements in question and the broader legal framework governing industrial relations. It concluded that while the union had a legitimate right to organise and communicate with its members, this right was not absolute and had to be balanced against the employer's right to conduct its business efficiently. The court found that the union's activities, as described, did constitute an unreasonable interference with the employer's operations, particularly during paid working hours. As a result, the court ruled in favour of the employer, Baiada Farms Pty Ltd, limiting the union officials' ability to enter the premises during operational hours for the purpose of attending paid union meetings.

The court ordered that union officials could not enter the premises during paid working hours to attend meetings with employees. It further directed that any such meetings must be scheduled during non-operational hours or otherwise organised in a manner that minimised disruption to the employer's business. This decision was grounded in the need to protect the employer's operational rights while still allowing the union to exercise its organisational functions within reasonable limits.

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Legal Principle Established