National Union of Workers v L Mondello and Son Pty Ltd T/A Gawler River Produce

[2014] FWC 6947

[2014] FWC 6947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

National Union of Workers
v
L Mondello and Son Pty Ltd T/A Gawler River Produce
(RE2014/1002)

COMMISSIONER GREGORY MELBOURNE, 30 OCTOBER 2014

Alleged dispute concerning the right of entry provisions of the permit holder.

Introduction

[1] A permit holder employed by the National Union of Workers (“the NUW”) wishes to interview or hold discussions with eligible employees employed as production workers by L. Mondello and Son Pty Ltd T/A Gawler River Produce (“Gawler River”) at its Gawler River site in South Australia. However, the permit holder has been unable to reach agreement with the Company about where such meetings should take place.

[2] The NUW submits they should be held in what it describes as the “production lunchroom” adjacent to the main production facility. However, it submits Gawler River wants the meetings to be held in a boardroom or office lunchroom, located in another building. The NUW submits these areas are not where the production employees normally take their meal breaks and, in any case, they are not appropriate locations because management employees are present, or in the vicinity.

[3] The NUW has now lodged this application, given the failure to reach agreement about an appropriate location. It was dealt with in conference in July but was unable to be resolved.

[4] Section 492 of the Fair Work Act 2009 (Cth) (“the Act”), “Location of interviews and discussions,” is intended to deal with these issues. It, firstly, provides where such interviews and discussions are to be held. It also deals with what is to occur when a permit holder and an occupier cannot agree on a location. It states as follows:

“492 Location of interviews and discussions

(1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3) The permit holder may conduct the interview or hold the discussions in any room or area:

(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b) that is provided by the occupier for the purpose of taking meal or other breaks.” 1

[5] Mr A. Portelli appeared on behalf of the NUW. Ms L. Mondello from Boril Olds Solicitors was granted leave to appear on behalf of Gawler River.

The Issue to Be Determined

[6] The parties are in agreement that the relevant legislative provisions are contained in s.492 of the Act. It is also agreed that ss.492(2) and (3) of the Act apply when there is no agreement between a permit holder and an occupier about the location of the room or area in which the permit holder is to conduct interviews or hold discussions.

[7] However, Gawler River submits there are various rooms or areas in which production employees ordinarily take their meals or other breaks, and are provided for that purpose. There is, accordingly, no agreement about which room or area should be designated under s.492(3).

[8] The Commission is therefore required to determine which room or area should be the room or area in which the permit holder is able to conduct interviews or hold discussions with any eligible employees.

The Evidence and Submissions

[9] The NUW submits the “vast majority” of production employees, who are capable of being represented by the NUW, ordinarily take their meal breaks in what it describes as the “production lunch area”. 2 It submits this area “is objectively the most convenient and proximate lunch room for production employees.”3 It continues to submit that the intent of the legislation is not to deny the vast majority of employees from having the ability to speak with a permit holder in the area in which they normally take their breaks.

[10] It also submits that when the permit holder previously visited the site and asked to be shown to the lunch area where production employees ordinarily take their breaks, he was taken to the production lunchroom. It also submits the other areas proposed by Gawler River are inappropriate. It submits that what it describes as the “office lunchroom” or “lunchroom house” is not located next to the production area, and is primarily used by Management/Supervisory staff. It makes similar submissions about the suitability of the office boardroom. 4

[11] It also submits that the area it proposes is the largest and most convenient of the various areas or rooms, given that it combines a room/amenities area and an adjacent outside smoking area, and is closest to where the production employees work.

[12] The NUW submitted, in conclusion, that various areas at the site are used for meal and other breaks. However, the office boardroom was not used for that purpose and therefore fails to meet the test set in the legislation. It also submits the “lunchroom house” is a small area that is used by a limited number of production employees. It continues to submit it is clear from the evidence that the largest number of production employees take their breaks in the combined amenities/outdoor smoking/Atco hut area, and access should be granted to that area as one single location or, in the alternative, to the amenity/outdoor smoking area only.

[13] Gawler River submits in response that it does not have a lunchroom called the “production lunchroom.” It also submits “that the production employees ordinarily, normally or usually enjoy meals and other breaks in the car park, smoking area outside and various lunch rooms spread around the production facility.” 5

[14] It submits that when the permit holder last attended the site on 9 April he was directed to the lunchroom adjacent to the boardroom. In its submission this area can accommodate 10 – 15 people, is suitable for holding meetings, and is located only one minute away from the “production shed.” It also submits it is an appropriate location, given it is “a legitimate consideration to take into account the interest of the employees who did not want to participate.” 6 It also submits it has previously put forward two options, being the boardroom and the lunchroom house, which would both be suitable.

[15] It continues to submit it has adopted a reasonable approach to the discussions about where the meetings might take place, and it is the NUW who is being unreasonable, simply because the areas proposed are not its preferred option. It continues to indicate that the ordinary or “normal thing at Gawler River Produce” is for employees to take their meal breaks in various areas around the site, including the “smoko area, car park, Atco hut, at a lunch room in the house.” 7

[16] Mr Basilio Mondello is the Managing Director of Gawler River Produce. He said the production employees ordinarily take their meal and other breaks in various locations, including the car park, the outdoor smoking area, and the lunchrooms. He said the site does not have a “production lunchroom” as described by the NUW. He also said that when the permit holder attended the site on a previous occasion he was directed to the lunchroom in the house at the front of the property, which can accommodate 10 – 15 people. He said this area is in close proximity to the production shed, and is a location that takes into account the interests of employees who do not want to participate in discussions with the permit holder. He also said it is an area used by “one or more production employees.” 8

[17] He also said the area described by the NUW as the “production lunchroom” is actually the amenities area, which is adjacent to the smoking area and an Atco hut.

[18] Mr Mondello indicated in cross-examination that the board room contains a table and eight chairs and is used for meetings and staff inductions. He also indicated it was further away from the area where the production employees work than the amenities area. He also said the “lunchroom house” contains a table and approximately eight chairs, and is used as a lunchroom by office and administrative staff, as well as by some production workers. It was also located further away from the production area than the amenities area, but is still only twenty metres away. He also indicated that approximately 30 production employees ordinarily take their lunch break in the combined amenities/outdoor smoking/Atco hut area.

[19] Gawler River concluded by submitting that the Commission should make an order that the lunchroom in the house be designated as the room where the interviews or discussions take place. It also proposed, in the alternative, that if this was not acceptable, the Commission should make an order designating the lunchroom in the amenities area, which is the Atco hut, rather than designating the combined area.

Consideration

[20] This application is made under s.505(1) of the Act which enables the Commission to deal with a dispute about the Part of the Act dealing with Right of Entry (Part 3 – 4). The relevant section continues to indicate that the Commission may deal with any such dispute by way of arbitration, and by making any “order it considers appropriate.” 9 In doing so it must take into account fairness between the parties (s.505(4)), but must not confer rights on the permit holder that are additional to, or inconsistent with, the rights contained in the Act.

[21] As indicated previously the dispute is relatively narrow in scope and concerns the location at the Gawler River site of the “room or area” referred to in s.492(3). The sub clause is a recent addition to the Fair Work Act 2009, following passage of the Fair Work Amendment Act 2013, and came into effect on 1 January 2014.

[22] Given that the provisions do involve a recent amendment to the Act I have had regard to the Ministers’ Second Reading Speech when introducing the amending Bill. The relevant extracts are as follows:

“The Bill will also address the problem identified by the Review Panel in relation to disputes over the location for interviews and discussions between right of entry permit holders and eligible employees. In the vast majority of cases permit holders and employers agree on a suitable location for such visits without conflict.

In some workplaces however, evidence presented to the Review Panel showed that some employers had dictated that rooms be used which would discourage or intimidate employees from meeting with the union.

Permit holders are permitted under the Act to hold discussions with workers during mealtimes and other breaks. It is reasonable that, in clarifying the rules about location, we provide for discussions to occur in the locations where workers ordinarily spend their breaks.

The Bill therefore clarifies that in instances where a reasonable location for discussions can’t be agreed between the parties the discussions will be held in any room or area in which meal or other breaks are ordinarily taken by employees.” 10

[23] The Explanatory Memorandum, which accompanied the amending Bill, provides little by way of further explanation about the intention of these amendments. However, it does indicate at paragraph 140, “The requirement means, for example, that a permit holder would not be authorised to hold discussions in a personal office or workspace or a room or location which is not provided for or used for meals or other breaks unless it is agreed.” 11

[24] Various options have been canvassed in the proceedings by way of an appropriate room or area. The original proposal put forward by Gawler River involved one of either the boardroom, or what is variously described as the “lunchroom house,” which is located in a former residence on the site, approximately 20 metres away from the production facility. The NUW, on the other hand, proposes the area immediately adjacent to the production area, comprising an Atco hut, amenities area and outdoor smoking area.

[25] However, the boardroom was not pressed as an option. The evidence indicates it is used for meetings and the other purposes, including employee inductions. However, it is not used as a lunch area. The terms of s.492(3), as confirmed by the Explanatory Memorandum, indicate that in these circumstances it is not an appropriate area to be designated, unless otherwise agreed to.

[26] The second option is the lunchroom house. The evidence of Mr Mondello is that this room has a table and 8 chairs, and is used as a lunchroom by office and administrative staff, and by some production workers. It is located further away from the production area, but only by some twenty metres. It was also indicated on behalf of Gawler River that it is a location that took account of the fact that some employees might not want to meet with the permit holder.

[27] The final room or area concerns the facility located adjacent to the production area. This involves the Atco hut, the amenities area, and the outdoor smoking area. It is accepted from the evidence that production employees take their meal and other breaks at a variety of locations. However, I am satisfied the majority of production employees take their meal or other breaks at this location. For example, the evidence of Mr Mondello indicated that approximately 30 production employees would ordinarily take their meal and other breaks in this combined amenities/outdoor smoking/Atco hut area. It is also an area located immediately adjacent to the production area.

[28] Given these circumstances I am satisfied it is appropriate, given the provisions contained in s.492(3), for an order to be made that the room or area in which the permit holder may conduct interviews, or hold discussions with any employees who wish to participate in those processes, is the combined amenities/outdoor smoking/Atco hut area. I am also satisfied it is not necessary to confine the location to a single part of this combined area. The intent of the order is to provide clarification about where interviews or discussions with the permit holder might take place, rather than to add additional complexity. I am satisfied that this is best achieved by indicating that the area comprises the combined Atco hut/outdoor smoking/amenities area.

[29] I have also noted the submissions and evidence of Gawler River that other options should be preferred because they take account of the circumstances of employees who may not wish to meet with the permit holder. However, the Ministers’ Second Reading Speech indicates that certain rooms or areas could discourage or intimidate employees from meeting with the permit holder. I am satisfied this is a legitimate concern, for example, if the lunchroom house were to be the designated room or area, given it is some distance away from the area where the production employees are normally working, and appears to be utilised primarily by a separate group of management, office-based or administrative employees.

[30] In addition, the evidence and submissions have indicated there are various locations at the site where employees go during meal or other breaks. I am satisfied that if any employee does not wish to be involved in discussions or interviews with the permit holder when he/she is at the site, then those employees have the opportunity of going to one of those other locations away from where the permit holder is located.

[31] An order has been issued in conjunction with this decision. It indicates it will operate for a period of three months. It is to be hoped that these matters can be dealt with on an agreed basis after that time.

COMMISSIONER

Appearances:

Mr A Portelli appeared on behalf of the National Union of Workers.

Ms L Mondello of Boril Olds Solicitors appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

2 October.

 1   Fair Work Act 2009 (Cth) at s.492

 2   Exhibit NUW1 at para 8

 3   Ibid at para 16

 4   Ibid at para 24

 5   Transcript at PN39

 6   Exhibit M1 at para 42

 7   Transcript at PN91

 8   Exhibit M2 at para 39

 9   Above n.i at s.505(2)(e)

 10   Commonwealth, Parliamentary Debates House of Representatives, 21 March 2013 (Bill Shorten)

 11   Explanatory Memorandum, Fair Work Amendment Bill 2013, at para 140

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