Peuker & Alexander Pty Ltd v Construction, Forestry, Mining and Energy Union
[2012] FWA 5461
•27 JUNE 2012
[2012] FWA 5461 |
|
DECISION |
Fair Work Act 2009
s.505—Right of entry
Peuker & Alexander Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(RE2012/1129)
COMMISSIONER BLAIR | MELBOURNE, 27 JUNE 2012 |
Alleged dispute concerning requests to hold union meetings in another room.
[1] This matter came to the Tribunal by way of an application by Peuker & Alexander Pty Ltd (the Company) being the applicant and with the Construction, Forestry, Mining and Energy Union (CFMEU) (the Union) being the Respondent.
[2] The application was made under s.505 of the Fair Work Act 2009 (the Act). The grounds of the application are as follows:
“Grounds:
1. The permit holders refused to produce their entry permits when requested to do so by the employer’s representative, in breach of section 489 of the Act.
2. The permit holders failed to comply with reasonable requests in relation to OHS in contravention of section 491 of the Act.
3. A reasonable request was made by the employer under section 492 of the Act that the permit holders hold discussions with employees in a room other than the lunch room that was fit for the intended purpose. The permit holders refused to comply with the reasonable request, and therefore breached section 492 of the Act.
4. The permit holders breached section 500 of the Act by acting in an improper manner, in that they were abusive, rude and belligerent to the point that the employer’s representative felt the need to call for the assistance of the police.
5. The permit holders contravened section 503 of the Act by recklessly misrepresenting that they were entitled to refuse to use the first aid/training room as a meeting place.”
s.505 of the Act reads:
“505 FWA may deal with a dispute about the operation of this Part
(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).
Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.
(2) FWA may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) FWA may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.
(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.”
[3] The Tribunal held a conference of the parties on the 24 May 2012, arising from that conference inspections were carried out on site of 79-83 Capital Link Road, Campbellfield, Victoria.
[4] Following the inspections the parties were invited to submit a brief submission setting out their respective positions.
[5] The Tribunal having read those submissions and the appropriate references and taking into account “s.505(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable)” and “s.505(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.” as well as the appropriate OH&S requirements, would determine the following should apply:
“1. The parties shall meet and confer with a view to reaching agreement on an appropriate room, other than the training/first aid room for the conduct of discussions when entry is notified in accordance with s.484. The parties shall advise the Tribunal of the outcome of their discussions.
2. In the event that agreement is not able to be reached, in all cases where entry is properly notified under the Act for the purpose of conducting discussions with employees in accordance with s.484, the Respondent shall allow any permit holder from the Applicant organisation to conduct discussions with employees, whose industrial interests the organisation is entitled to represent, in any location in the workplace where those employees ordinarily spend their meal break including but not limited to:
2.1 The lunchroom located upstairs in the factory area,
2.2 The external lunch area identified in the site inspection conducted on 13 June 2012,
2.3 Any proposed new smoking area to be built or designated by the Company
2.4 The Permit Holder shall when advising the employer of their impending visit as required by the Act, shall on each notification nominate ONLY ONE location as identified in 2.1 to 2.3 as the area they intend to conduct discussions with members or potential members of the Union.
3. Either party has leave to reapply and seek the further assistance of the Tribunal in relation to this matter.”
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