Southern Cross Care (SA, NT & Vic) Inc T/A Southern Cross Care v United Workers' Union

[2022] FWC 764

[2022] FWC 764

The attached document replaces the document previously issued with the above code on 6 April 2022.

Paragraph [8] has been amended at the request of the parties.

Associate to Commissioner Platt

Dated 7 April 2022.

[2022] FWC 764

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.505 - Application to deal with a right of entry dispute

Southern Cross Care (SA, NT & VIC) Inc T/A Southern Cross Care

v

United Workers' Union

(RE2022/260)

COMMISSIONER PLATT ADELAIDE, 6 APRIL 2022

Application to deal with a right of entry dispute - recommendation issued

1. A right of entry dispute under s.505 of the Fair Work Act 2009 (Cth) (the Act) was lodged on 1 April 2022 by Southern Cross Care (SA, NT & VIC) Inc T/A Southern Cross Care (the Applicant or Southern Cross Care) concerning alleged conduct by officials of the United Workers’ Union (UWU or the Respondent) on the premises of the Applicant.

1. The matter was the subject of a conference on 5 April 2022. Ms McCarthy (of Piper Alderman) was granted permission under s.596 to represent Southern Cross Care along with Mr Brooks, and Mr Pefanis represented the UWU together with Ms Rowney.

1. During the conference, the parties were given the opportunity to conciliate and agree process to avoid further disputation concerning right of entry matters.

1. The owner or occupier of a business premises, generally speaking, has the right to determine who enters upon the property and regulate their conduct whilst on site. The Act provides certain rights to union officials concerning right of entry which impact on the general position. The right of entry provisions in Part 3-4 of Chapter 3 of the Act provide a detailed description of the rights and obligations of both union and employer parties, pre-conditions for entry, and information about site-entry requirements and the location of meetings. They also provide mechanisms to deal with breaches of those requirements. In the light of the health services provided by the Applicant, the current pandemic provides an additional level of complexity. In addition, in so far as the right of entry relates to bargaining conduct, the good faith bargaining requirements of the Act may come into play.

1. The fact that the parties have been able to reach a consensus on protocol, so as to avoid (or reduce) further disputation as to the proper exercise of entry rights, is a positive step. 

1. I have reviewed the protocol submitted by the parties after their discussions, and accede to their joint request to issue a recommendation in accordance with s.592(4) of the Act that a right of entry protocol be adopted in the following terms:

Southern Cross Care – United Workers Union Right of Entry Protocol:

1.   By close of business, 7 April 2022, the Respondent, United Workers’ Union (UWU), will ensure that UWU permit holders (who attend Southern Cross Care sites) understand their right of entry obligations under Division 2 of Part 3-4 of the Fair Work Act 2009 (the Act), and under this Protocol, including but not limited to:

a)only current permit holders are permitted to enter the Applicant’s sites;

b)a valid entry notice must be provided, and within the requisite timeframe; and

c)hard copy authority documents must be provided for inspection to the occupier of the premises upon request.

2. When exercising a right of entry to hold discussions with workers under Subdivision B of Division 2 of Part 3-4 of the Act, the UWU permit holder(s) will hold discussions at the designated staff lunch room at each of the Applicant’s sites UNLESS the Applicant and the Respondent reach agreement on an alternative location.

3.   Where there is an outdoor area immediately adjacent to the designated staff lunch room, UWU permit holders are permitted to meet with employees in the outdoor area, UNLESS any of the Applicant’s residents are using the outdoor space.

4.   UWU permit holders agree to take the most direct route to the staff lunch room at each of the Applicant’s sites as directed.

5.   UWU permit holders will comply with the Applicant’s COVID-Safe requirements (as amended from time to time) including by adhering to room capacity limits, social distancing obligations, and wearing necessary PPE including a face mask and face shield at all times.

6.   By, close of business, 7 April 2022, the Applicant will ensure that it provides the maximum amount of seating (subject to COVID-Safe capacity limits) for employees to use in each of its staff lunch rooms.  By close of business, 7 April 2022, the availability of lunchrooms for the taking of breaks and for meals will be communicated to the workforce and any indications to the contrary (such as signs or notice board memorandums) will be removed.

7.   In the event the UWU and/or its permit holders have any concerns about the staff lunch room facilities, they are to direct those concerns to the Site Manager or their nominated representative. In the event the Site Manager is unavailable, they are to direct their concerns to Steve Brooks, and if Steve Brooks is not available, to Michael Rasheed.

8.   The Applicant will ensure that its site managers understand the Applicant’s obligations under this Agreement.

9.   If one or more of the Applicant’s sites move into Phase 3 of its COVID-Safe management plan, the UWU agrees that no permit holders can enter the site while the Phase 3 restrictions remain in place to manage a COVID-19 outbreak, UNLESS those restrictions can be limited to a designated area.

1. The parties are requested to advise if they consent to this recommendation by 4.00pm (SA time) 6 April 2022.

1. In the event that both parties accept this recommendation, it is to be distributed (by the respective party and using the most efficient means possible) to all UWU representatives who may be likely to exercise right of entry at any of the Applicant’s premises, the UWU Industrial Officers, and all supervisors and/or managers who work in the areas where right of entry may be sought or those who may be required to advise on the topic. In addition, this recommendation is to be posted on relevant notice boards in the areas where right of entry may reasonably be expected to occur.

COMMISSIONER

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PR740059