National Union of Workers v Premium Fresh Tasmania Pty Ltd

[2016] FWC 799

[2016] FWC 799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

National Union of Workers
v
Premium Fresh Tasmania Pty Ltd
(RE2016/86)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 FEBRUARY 2016

Alleged dispute concerning notification required by Part 3-4 of the Act..

[1] The National Union of Workers notified a right of entry dispute between it and Premium Fresh Tasmania Pty Ltd.

[2] Premium Fresh is a vertically integrated farming operation. It grows vegetables and packs vegetables which it supplies directly to market. 1 Mr Richard Ertler gave evidence that some, but not all, employees regularly rotate from packing shed to field duties when operational circumstances require such rotation.2

[3] Mr Michael Wordsworth gave evidence that he was initially employed as a carrot packer and he currently works at the onion pre-pack machine. His work involves bagging onions, loading and stacking pallets in preparation for pick up. It was his evidence that there were 2 groups of employees, field workers and factory workers. It was his evidence that during his employment he only assisted field workers for a couple of hours. He said it was not common practice. 3

[4] While the parties differed on the extent the work of the field workers and factory workers rotated it was clear from Mr Ertler’s evidence that he referred to some workers as field workers and others as packing shed workers which supports the premise that some workers like Mr Wordsworth were employed to work in one area but they may occasionally work in the other area. Mr Wordsworth’s evidence that he did not regularly rotate was not challenged.

[5] At varying times, Ms Jill Batt entered the premises to hold discussions with employees of Premium Fresh, having provided Premium Fresh with the required notices under the Fair Work Act 2009.

[6] After Ms Batt exercised her right of entry on 7 December and met with some field workers, Mr Ertler received advice that the NUW was not allowed to act for field workers. 4

[7] However, Ms Batt was still permitted to exercise right of entry rights on 10 December 2015.

[8] On 16 December 2015, Ms Batt attended the site to attend a bargaining meeting and she had asked to meet the bargaining representatives prior to the meeting. Mr Ertler did not object to this meeting. 5 At the meeting, Mr Fitzgerald, Premium Fresh’s representative, questioned the NUW’s right to cover field workers and Ms Batt was asked to provide a copy of the NUW rules showing where field workers were included.6

[9] At the conclusion of the meeting Ms Batt met with some of the workers in the smokers’ hut. There is a dispute about who Ms Batt spoke to at this time

[10] Mr Ertler objected to Ms Batt going to the smokers’ hut as she had not sought permission and she had not notified that she would be exercising right of entry. 7

[11] As a result, Mr Ertler disputed the NUW’s right to cover both field workers and production workers. On 12 January 2015, Ms Batt forwarded a right of entry notice and she was advised that Premium Fresh would not allow her entry to the site.

[12] Premium Fresh submitted that the Commission did not have the jurisdiction to arbitrate this dispute and sought a ruling that the Commission determine this as a threshold issue. It further submitted that the NUW’s rules did not permit it to enrol as members, persons employed by Premium Fresh.

Permission to appear

[13] At the first hearing of this matter, Mr Bill Fitzgerald of the Australian Mines & Metals Association appeared for Premium Fresh. Mr Fitzgerald submitted that he did not require permission to appear. I accepted Mr Fitzgerald’s submission at this time as I had not had an opportunity to consider AMMA’s rules. However I asked Mr Fitzgerald to provide me with a copy of the rules and the matter proceeded by way of conciliation. After the hearing, Mr Fitzgerald provided me with a copy of AMMA’s rules. In his correspondence Mr Fitzgerald submitted that, as a non registered organisation, AMMA was not within the purview of the Act. He submitted that its objects permitted it to support organisations outside of the energy and resources industries of Australia. He submitted that AMMA was entitled to represent non resources members and clients. In my response, I asked Mr Fitzgerald to advise if Premium Fresh was a member, and if so, he would need to address the issue of its eligibility for membership. If he was appearing as a paid agent for Premium Fresh, he would need to provide submissions in support of an application for permission to appear. In his response, Mr Fitzgerald relied upon s.596(4) of the Act to support his contention that he did not need permission to appear. As a result, I drew the parties’ attention to the Full Bench’s decision in CDJV Construction Pty Ltd v Errol McCarthy and Gabriel McCarthy.  8

[14] At the second hearing of this matter, Mr Fitzgerald acknowledged that Premium Fresh was not a member of AMMA and that they were a client of AMMA. Mr Fitzgerald sought permission to appear. Mr Fitzgerald advised that he was not in a position to address the decision of the Full Bench referred to above. As the NUW did not oppose Mr Fitzgerald being given permission to appear, I determined to grant permission.

The jurisdictional objection

[15] Premium Fresh submitted that the dispute notified by the NUW does not deal with a dispute about the operation of Part 3-4 of the Act. It was submitted that this was a dispute about whether the NUW in fact has right of entry under Part 3-4 in any respect and it is not a dispute about the operation of Part 3-4. It submitted that the specific matters in s.505(1)(a)-(e) all related to disputes about how unions exercise their right of entry and this evinces an intention by Parliament that the Commission is only able to rule about these matters. It submits that the interpretation of union rules is a matter for the Court.

[16] Commissioner Cloghan considered a similar objection in Maritime Union of Australia v JKC Australia LNG Pty Ltd. 9In that decision, the Commissioner rejected the submission that he was exercising judicial power when determining a dispute about whether the MUA had the right to represent the industrial interests of employees performing work by Hydrodeck.10

[17] In that decision, reference was made to the decision of the Full Bench of the Australian Industrial Relations Commission in Police and Nurses Credit Society Limited v Finance Sector Union of Australia. 11 In that matter the Full Bench was hearing an appeal against an order of Commissioner O’Connor that the Police and Nurses Credit Society permit the FSU to enter to hold discussions with employees.12

[18] The Full Bench considered the submission that the Commission lacked the jurisdiction to deal with the dispute because “the only point at issue in the proceedings was a bald claim by the FSU that it had a right to enter the appellant’s premises, and an attempt to enforce that right.” 13 The Full Bench considered the authorities on the distinction between judicial power and arbitral power.14 The Full Bench then went on to consider whether the Commission in that case was being asked to exercise judicial or arbitral power.15 The Full Bench found that “there is clearly a dispute about the FSU having access to the appellant’s premises pursuant to s.285C of the WR Act”.16 It found that “in resolving this dispute the Commissioner was entitled, as an incidental step in the proper exercise of its jurisdiction, to form an opinion about the legal effect of the 2001 Agreement vis-à-vis the 2001 Award, and the consequent effect on the FSU’s rights under s.285C.”17

[19] The Full Bench found that “the matter before the Commissioner called for a resolution of a dispute, not by the determination of what the existing rights and obligations of the parties are, but the ascertainment of what rights and obligations should exist. Contrary to the appellant’s submissions the Commission’s order involved the exercise of arbitral not judicial power.” 18

[20] The decision of the Full Bench, albeit made under predecessor legislation, is relevant to the matter before me. The Full Bench in Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia 19 in refusing permission to appeal considered a similar objection and said “secondly, the jurisdictional issues raised by Bechtel have in a general way already been considered and determined at the Full Bench level in a way adverse to Bechtel’s submissions in Finance Sector Union of Australia v Police and Nurses Credit Society Limited. Although that decision was made in the context of the provisions of the former Workplace Relations Act 1996, the provisions in the current Act are sufficiently similar such as to render that decision of continuing applicability.”20

[21] I therefore find that I have the jurisdiction to deal with this dispute.

The NUW rules

[22] The NUW submits that it is entitled to represent the industrial interests of some of the employees of Premium Fresh. It is not necessary, for the purpose of this dispute, to determine the breadth of the NUW’s coverage. It would be enough to find that it was entitled to represent the industrial interests of a category of employees.

[23] The NUW’s rules, like many union rules, is a result of the amalgamation of its many predecessor unions.

[24] The current rules provide both an industry rule and an eligibility rule. Relevantly, for the purpose of this decision, the industry rule provides that the industries in or in connection with which the Union is registered are relevantly:

“4(B) (i) Storing and packing goods and merchandise (but not so as to limit the generality of the expression ‘Storing and Packing’), the reception, handling, storing, preparing, bottling, packing and delivery of goods and merchandise so far as such reception and/or handling and/or preparing and/or delivery of such goods and merchandise is in any way incidental or ancillary to their storing and packing as above described including the pulping, testing and/or processing of eggs;”

[25] The eligibility rule provides that the Union shall consist of an unlimited number of employees engaged in, or assisting relevantly:

“5(B) (a) The reception, handling, storage, preparation, bottling, packing and delivery of goods and merchandise, and processes and activities incidental or ancillary to such reception, handling, storage, preparation, bottling, packing and delivery including the pulping, testing and/or processing of eggs.”

[26] The NUW submitted that it was entitled to represent the industrial interests of employees engaged in the packing and dispatching of vegetables. It submitted that there is no dispute that employees of Premium Fresh were engaged in such work and as such, the NUW was entitled to enter the premises to meet with employees, provided it did so in accordance with the right of entry provisions of the Act.

[27] Premium Fresh submitted that the only reference to vegetables in the NUW rules is in rule 4(B)(ix) and 5(B)(aa)(2).

[28] Rule 4(B)(ix) is the industry rule for Queensland and provides that the industry in or in connection with which the Union is registered:

“In the State of Queensland reception, storage, and/or packing and /or handling and/or wholesale selling and/or assembling and/or delivering of goods (such as merchandise, soft goods, hardware, spare parts, glassware and crockery, wool, hides, skins, oils and grease, fruit, vegetables, tyres and batteries, paint, boots and shoes, etc.) but not so as to limit the generality of variety of goods to be received, stored, packed, handled, sold, assembled or delivered, in wholesale warehouses, stores yards and factories, wool, hide, skin and wool dumping stores, wharf stores, bond and bulk stores, agricultural produce and egg stores, fruit sections and stores, machine me warehouses and stores,…”

[29] Rule 5(B)(aa)(2) provides that the employees are eligible to be members of those engaged in or assisting:

“Sorting, classing, grading, sampling, baling, bagging, packing, storing, and despatching tobacco leaf in wool brokers establishments, grains, and the seed products of flowers and vegetables for resale.”

[30] Premium Fresh submitted that “the absence of the specific words ‘of vegetables’ within the rules other than in Queensland evinces an intention that the generic coverage of ‘goods and merchandise) [sic] is qualified in that it is only in Queensland the union can only lawfully act within the vegetable industry and the corollary must apply and that is in other states the generic coverage does not allow the union to act in the vegetable industry.”

[31] Premium Fresh further submitted that rule 5(B)(aa)(2) limits the generic expression “goods and merchandise”. It is modified by the specific mention of “seeds of flower or vegetables” “and according[ly] the general rule of interpretation that the specific overrides the general must apply in this instance.”

[32] The scope of the NUW rules was considered by Senior Deputy President Acton in National Union of Workers v Devlaun Pty Ltd and ors. 21 The NUW had served a log of claims on numerous employers and sought the finding of an industrial dispute. Comit Farm Produce Pty Ltd objected to the dispute finding and maintained that the NUW lacked the constitutional coverage for their employees. Comit specialised in the packaging of primary produce for supply to market. Comit submitted that goods did not include agricultural produce. It relied on rule 5(B)(aa) and the specific reference to “vegetables” and rule 5(B)(d) to the State of Queensland to submit that the term “goods and merchandise” in eligibility rule 5(B)(a), does not include “farm produce” in the nature of vegetables. The same reasons it submitted that vegetables were excluded from the industry rule 4.

[33] Senior Deputy President Acton did not accept those submissions. In her decision, after tracing the history of the relevant rule changes, she found:

“[22] A plain reading of rules 5(B)(a), 5(B)(aa) and 5(B)(d) also does not support the Comit Farm submission that the term ‘goods and merchandise’ in rule 5(B)(a) should be read down so as not to cover potatoes and onions having regard to the content of rules 5(B)(aa) and/or 5(B)(d).

[23] There is no explicit reference in rule 5(B)(a) that it is to be read subject to rule 5(B)(aa) or rule 5(B)(d). Nor is there any explicit reference in either of rules 5(B)(aa) or 5(B)(d) that they somehow qualify or limit rule 5(B)(a).

[24] Further, each of the rules 5(B)(a), 5(B)(aa) and 5(B)(d) has clear meaning in its own right without the need to refer to another of those rules to understand its import and without there being inconsistency between them.

[25] It is apparent that each of rules 5(B)(a), 5(B)(aa) and 5(B)(d) is a quite separate eligibility rule, with each standing independently of the others, even if they are somewhat repetitive in effect.”

[34] The decision was appealed and the Full Bench upheld the decision. In response to Comit Farm’s submission that it would affect the coverage of the work of the registered rules of other unions, in particular the AWU, the Full Bench noted that “there is, however, nothing new in organisations having overlapping coverage. Whatever be the ramifications of the view that the words ‘goods and merchandise’ in rule 5(B)(a) do not exclude primary produce…. they do not persuade us that the view is wrong.” 22

[35] I therefore do not accept the submissions of Premium Fresh that the absence of the word “vegetables” other than in Queensland evinces an intention that the generic coverage of “goods and merchandise” does not include vegetables. For the same reason, I reject the submission that the specific mention of the “seeds of flowers or vegetables” limits or qualifies the meaning to be given to the words “goods and merchandise.”

[36] I do not accept the submission that because other unions are entitled to represent the industrial interests of the employees that this precludes the NUW from being able to represent the industrial interests of some of the employees. As the Full Bench noted, overlapping coverage is not uncommon.

Conclusion

[37] I am satisfied that some of the employees of Premium Fresh are entitled to be members of the NUW. I have not been asked to, and do not intend in this decision, to determine if the NUW has coverage of field workers. The NUW did not address this question in its submissions.

[38] I also make no findings as to whether the NUW permit holders have in the past complied with their obligations under the Act. As a bargaining representative for employees, the NUW has certain nights. However, those rights do not extend to unauthorised meetings on the premises with those whom they represent and seek to represent.

[39] Accordingly the decision of Premium Fresh to deny Ms Batt entry because it formed the view that the NUW was not entitled to represent the industrial interests of any of its employees was based on incorrect advice.

[40] I propose to make orders requiring Premium Fresh to permit NUW permit holders to enter the premises of Premium Fresh to exercise their right of entry rights provided the permit holders comply with their obligations under the Act.

[41] I will therefore make the orders sought by the NUW and order that from the date of the making of this order that the NUW permit holders will, provided they comply with the right of entry provisions of the Act, be permitted to enter the premises of Premium Fresh for the purposes provided under the Act.

DEPUTY PRESIDENT

Appearances:

Ms A. Wyrick of the Applicant.

Mr B. FitzGerald on behalf of the Respondent.

Hearing details:

2016.

Melbourne and Hobart (by video link):

January 19, 27.

 1 Exhibit R1 at [7].

 2   Ibid.

 3   Exhibit A2 at [2], [4] and [9].

 4 Ibid at [20].

 5 Ibid at [26].

 6 Ibid at [29].

 7 Ibid at [30].

 8   [2014] FWCFB 5726.

 9   [2016] FWC 201.

 10 Ibid at [82].

 11   PR939977.

 12 Ibid at [26].

 13 Ibid at [32].

 14   Ibid at [40]-[49].

 15 Ibid at [60].

 16 Ibid at [62].

 17 Ibid at [64].

 18 Ibid at [69].

 19   [2013] FWCFB 4250.

 20 Ibid at [14].

 21   Print S3322.

 22   Comit Farm Produce Pty Ltd and National Union of Workers Print, S5823, at [13].

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