The Australasian Meat Industry Employees Union
[2015] FWCFB 5228
•17 AUGUST 2015
| [2015] FWCFB 5228 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505—Right of entry
(RE2015/276)
VICE PRESIDENT HATCHER | SYDNEY, 17 AUGUST 2015 |
Alleged dispute concerning permit holders’ distribution of materials to employees; meaning of “discussions” in s.484 of the Act.
Introduction
[1] By an amended application filed on 12 May 2015 the Australasian Meat Industry Employees Union (Applicant) has applied under s.505 of the Fair Work Act 2009 (Cth) (FW Act) for the Fair Work Commission (Commission) to deal with a right of entry dispute between the Applicant and Teys Australia Beenleigh Pty Ltd (Respondent) in relation to the Respondent’s Beenleigh plant in Brisbane.
[2] The issue in dispute is whether a permit holder seeking entry to premises for the purposes of holding discussions with employees may enter with written material which the permit holder intends to distribute to employees during discussions. The Applicant sought a direction under s.582 of the FW Act that a Full Bench of the Commission determine the dispute. The Respondent did not oppose this course and a direction pursuant to ss.582 and 615 of the FW Act that the matter be dealt with by a Full Bench was subsequently made by the President.
Background
[3] Since approximately March 2013 there has existed a dispute between the Applicant and the Respondent about the terms and conditions of employment which are or should be applicable to certain employees at the Respondent’s Beenleigh plant. Aspects of that dispute have been the subject of proceedings both in this Commission and in the Federal Court of Australia. The particulars of the various proceedings are not presently relevant; however on 12 February 2015 the Full Court of the Federal Court delivered judgment in relation to the Respondent’s application for judicial review of a decision of the Commission relating to the approval of an enterprise agreement. 1
[4] Shortly after the Full Court’s judgment was delivered the Applicant prepared a newsletter setting out its explanation of the judgment. 2 A copy of the newsletter was forwarded by the Applicant to the Respondent’s Workplace Relations Manager Mr John Salter attached to an email dated 13 February 2015 (sent at 8:13am) in which the Applicant advised that it intended to distribute the newsletter that day.3 In a subsequent email sent at 8:48am to Mr Slater, the Applicant advised that it might also distribute articles published by Workforce and by Workplace Express concerning the Full Court’s judgment.4 By earlier notices delivered to the Respondent on 10 February 2015, Mr Matthew Journeaux and Mr Robert Barton, each of whom is relevantly an entry permit holder under the Act and an official of the Applicant, had given notice of entry for the purposes of holding discussions with employees on various dates in February 2015, including 13 February 2015 between 11:00am and 1:30pm.5
[5] Mr Salter acknowledged receipt of the newsletter and articles in an email to the Applicant dated 13 February 2015 (sent at 9:07am), and in that email he advised the Applicant that no material would be permitted to enter or be distributed on any of the Respondent’s sites, specifically the Beenleigh site, and that any attempt to bring the newsletter or any other written material onto the site would result in its confiscation. 6 A further exchange of emails between the Applicant and the Respondent ensued about the right of a permit holder to bring written material onto the Respondent’s site when exercising a right of entry for the purposes of holding discussions with employees but this exchange did not result in any meeting of the minds.7
[6] Pursuant to the entry notices referred to earlier, Mr Journeaux and Mr Barton attended at the Respondent’s Beenleigh plant at approximately 11:00am on 13 February 2015 and sought entry. Earlier Mr Salter had caused instructions to be given to the Respondent’s security contractor at the Beenleigh plant to the effect that Mr Journeaux and Mr Barton were to be told that they could not bring the newsletter or other written material into the plant when they sought entry. 8 This instruction was carried out and Mr Journeaux and Mr Barton proceeded to enter the Beenleigh plant after handing the written material to the security contractor.9
Competing contentions
[7] The competing contentions of the parties may be shortly stated.
[8] The Applicant maintains that entry for the purposes of holding “discussions” is not limited to oral communications between a permit holder and the relevant employee or employees, but encompasses “discussions” through the distribution of written material to employees. The applicant submits that the word “discussions” as it appears in s.484 of the Act carries its ordinary meaning and includes written communication with employees.
[9] The respondent maintains that:
- There is no express right to bring documents into a workplace when entering pursuant to s.484 of the FW Act;
- No such right could be inferred or implied
- If it is accepted that the rights do not exist, the Commission has no jurisdiction to grant the relief sought by the Applicant because under s.505(5) of the FW Act the Commission must not confer rights on a permit holder that are additional to rights exercisable under s.484 of the Act.
Consideration
Approach to construction of the relevant statutory provisions
[10] In considering the relevant statutory provisions at issue in this dispute the starting point is to construe the words of the statute according to their ordinary meaning having regard to the context and legislative purpose. 10 The words of the statute being construed should be read by reference to the language of the statute as a whole.11 As Lawler VP and Bissett C observed in JJ Richards& Sons Pty Ltd v Transport Workers’ Union of Australia12, after reciting relevant authorities concerning statutory construction:
“Drawing these principles together, the task of statutory interpretation is concerned with ascertaining the intention of the legislature as manifested by the text of the legislation. Context (using that word in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy) and the purpose or object underlying the legislation must always be considered. These must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. The text of a provision, read in context and having regard to the object and purpose of the provision, is always the surest guide.” 13
[11] In JJ Richards & Sons Pty Ltd and Anor v Fair Work Australia and Anor 14 the Federal Court of Australia (Flick J) discussed three long established and fundamental principles to statutory construction. Justice Flick said:
“First, the so-called “golden rule” of the common law as to statutory construction is that “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther”: Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106 per Lord Wensleydale. See also: Australian Boot Trade Employés’ Federation v Whybrow & Co [1910] HCA 53; (1910) 11 CLR 311 at 341 to 342 per Higgins J. The “golden rule” is not confined to circumstances where a “mistake” has been made in the wording of an Act; the rule is also applied to avoid construing legislation so as to produce patently unintended or absurd results: Footscray City College v Ruzicka [2007] VSCA 136 at [16], 16 VR 498 at 505 per Chernov JA (Warren CJ and Maxwell P agreeing).
Second, the common law also recognised that “[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”: Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey. See also: Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103 per Northrop and Pincus JJ; Minister for Immigration and Citizenship v Hart [2009] FCAFC 112 at [6] per Spender J.
Third, a construction of a statutory provision is to be preferred “that would best achieve the purpose or object of the Act”: Acts Interpretation Act1901 (Cth) s 15AA. The requirement to look to the purpose or object of an Act is more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction; s 15AA requires no ambiguity or inconsistency in a statutory provision before a court is not only permitted, but required to have regard to purpose: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235. Dawson J there went on to observe that the provision there in question, being a provision comparable to s 15AA, “... requires a court to construe an Act, not to rewrite it, in the light of its purposes”. Similarly, in Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 162, Burchett J observed that s 15AA “... is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate ...”. See also: R v L (1994) 49 FCR 534 at 538 per Burchett, Miles and Ryan JJ; Skea v Minister for Immigration, Local Government and Ethnic Affairs (1994) 51 FCR 82 at 85 per Moore J; Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512 at [7], [2001] FCA 512; 112 FCR 589 at 592 to 593 per Sundberg J. “In the end the task of the court is to ascertain and to enforce the actual commands of the legislature”: Re News Corporation Ltd (1987) 15 FCR 227 at 236 per Bowen CJ.” 15
[12] These principles seem to us to be uncontroversial. We should also note, that for our purposes, s.15AA of the Acts Interpretation Act1901 as in force on 25 June 2009 16 provides:
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
Construction of relevant provisions of Part 3-4
[13] The right of entry scheme established by Part 3-4 of the Act confers upon a permit holder a statutory right to enter business premises of an employer or occupier. As such it is an encroachment on the right an occupier or employer would otherwise have to determine who is permitted to enter and who may be excluded from entering premises owned or controlled by the occupier or employer. Accordingly statutory provisions of this kind should be construed so that encroachment is no greater than the statute allows, either expressly or by necessary implication. 17
[14] The object of Part 3-4 of the Act is to be found in s.480. It provides:
480 Object of this Part
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and
(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
[15] Section 484 confers on a permit holder a right to enter premises for the purposes of holding discussions with one or more employees who have particular characteristics. It provides:
484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a) who perform work on the premises; and
(b) whose industrial interests the permit holder’s organisation is entitled to represent; and
(c) who wish to participate in those discussions.
[16] The location at which discussions may be held and the route that may be taken to that location are also regulated. Sections 492 and 492A deals with these matters 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.
Note 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.
Note 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).
492A Route to location of interview and discussions
(1) The permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises determined under section 492.
Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).
(2) A request under subsection (1) is not unreasonable only because the route is not that which the permit holder would have chosen.
(3) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.
[17] The right of entry given to a permit holder under s.484 of the Act is not a right that is unfettered. A permit holder is not given an untrammelled right to enter the premises of an employer or occupier. 18 The right is subject to express and to implied constraints.19 For example the right to enter may only be exercised if the permit holder has the prescribed purpose. This is apparent from the express terms of s.484 of the Act. Entry may only be gained during normal working hours.20 Other constraints include the requirement that notice of entry be given21, that entry only occur on the day specified in the notice22, that the permit holder complies with a reasonable request by the occupier for the permit holder to comply with an occupational safety requirement that applies to the premises to which entry is sought23 and that the permit holder not enter any part of the premises that is used mainly for residential purposes.24 One implied constraint is that the right must be exercised so as to promote the objects of Part 3-4 which are set out in s.480.25 There may be additional conditions with which the permit holder will need to comply by reason of any conditions imposed on the entry permit26, or other restrictions on the rights of a permit holder that have been imposed by the Commission.27
[18] In Maritime Union of Australia v Fair Work Commission 28 a Full Court of the Federal Court of Australia made the following observations about Part 3-4 of the Act:
“. . . it is important to recognise at the outset that Part 3-4 of the Fair Work Act fundamentally modifies common law rights.
A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. The Commonwealth legislature has nevertheless long concluded that conferring such powers is necessary in the context of industrial law. But it has also long sought to strike a balance between common law rights and otherwise untrammelled power. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), Keely, Gray and Ryan JJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 thus observed:
The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.
See also: Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 439 to 440 per von Doussa J.
Section 480, extracted at [8] above, sets out that the object of Part 3-4 is to establish a framework that balances the right of organisations to represent their members, the right of employees to receive information and representation, and the right of occupiers of premises and employers to go about their business without undue inconvenience. The rights conferred by Part 3-4, including to enter premises and interview persons about suspected contraventions and to hold discussions with employees, have thus been assessed by the legislature as an appropriate balance between the rights of organisations, employees and occupiers. The rights conferred, however, are not “untrammelled” and are subject to both express and implied constraints: Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85 at [56], [2012] FCAFC 85; (2012) 203 FCR 389 at 405 per Flick J (Tracey J agreeing). The exercise of rights conferred upon a “permit holder” renders lawful that which would otherwise be unlawful: cf. Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; (1979) 143 CLR 499 at 540 per Mason J.” 29
[19] Once a permit holder enters under s.484, the capacity to hold the discussions for which entry was gained is also circumscribed. First, there is the general limitation that the power to enter must be used bona fide for the purposes for which it is conferred and that its exercise not be excessive in the circumstances of a particular case. 30 Secondly, as indicated above, the discussions with employees may only be held during meal times or other breaks.31
[20] Thirdly, discussions to be held that are authorised by an entry under s.484 are limited to particular employees. The right of entry is not given for holding discussions with employees generally. 32 A permit holder is not permitted to hold discussions with any employee who happens to be on the premises at the time of entry. Relevantly, entry under s.484 only authorises the permit holder to hold discussions with the employees who fall within the description in paragraphs (a) – (c) of that section. In other words a permit holder who has entered premises may only hold discussions with employees who perform work on the premises, whose industrial interests the permit holder’s organisation is entitled to represent and who wish to participate in those discussions.
[21] The foregoing discussion serves to illustrate the constraints imposed by the Parliament on a permit holder in exercising entry rights which otherwise fundamentally interfere with the common law property rights. Understanding the constraints imposed is an important contextual consideration in determining the meaning of “discussions” in s.484 of the Act.
[22] The right conferred on a permit holder by s.484 of the Act is to enter premises for the purposes of holding “discussions” with relevant employees who wish to participate in those discussions.
[23] The Macquarie Dictionary carries the following definition of the word “discussion”:
“1. The act of discussing; critical examination by argument; debate. 2. A written or spoken text type or form which offers a balanced presentation of different points of view on an issue.” 33
[24] The Concise Oxford Dictionary defines “discussion” as follows:
“1. A conversation, esp. on specific subjects; a debate (had a discussion about what they should do). 2 an examination by argument, written or spoken.” 34
[25] It seems plain that the ordinary meaning of discussion includes one that is conducted in writing or that includes writing. We do not consider that there is anything in the text of s.484 or in Part 3-4 of the Act, which suggests the word “discussions” should carry a more narrow meaning confined wholly to oral communications. There is also nothing in the contextual consideration earlier discussed, which would suggest a more narrow meaning. The application of the ordinary meaning, which would permit “discussions” to include or be facilitated by the provision of written material, is consistent with the object of Part 3-4 in s.480 set out earlier - in particular that part of the object in s.480(b) which refers to the right of employees to receive at work “information” from officials of organisations. In our view, had the Parliament intended to limit the right to hold discussions with relevant employees to oral communications, it could have easily done so by drafting s.484 of the Act so as to provide the permit holder with a right to enter “for the purposes of speaking with” relevant employees.
[26] The Respondent submitted that there is no express right to bring documents on to a workplace when entering pursuant to s.484 of the Act. It submitted that no such right could be inferred or implied and that the Respondent therefore has a proprietary right to determine whether a permit holder can bring any written material onto its premises when exercising rights under s.484 of the Act. That submission, with respect, approaches the issue with an erroneous assumption, namely that the legislature has not interfered with the Respondent’s right to exclude written material from its premises by allowing entry for the purposes of holding discussions with relevant employees. Once it is accepted that “discussions” in s.484 of the Act is to be given its ordinary meaning, it must further be accepted that there has been an alteration to any proprietary right that exists at common law to the extent necessary to allow such “discussions” with willing participants to take place. It seems to us that a permit holder is therefore permitted when entering premises pursuant to s.484 of the Act to bring with him or her written material intended for use in discussions with employees who wish to participate in discussions. However the written material may only be used for the purpose of such discussions. There is no express or implied right under Part 3-4 for the permit holder to otherwise distribute written materials in a way not connected with such discussions with willing participants.
[27] The concern expressed by the Respondent 35 as to the nature and content of the newsletter and articles that Mr Journeaux and Mr Barton sought to bring with them onto the Beenleigh site for use in discussions with employees is not an appropriate basis for reading down the ordinary meaning of “discussions” in s.484 of the Act. There are mechanisms in the FW Act to deal with practical problems which may arise concerning the content of both oral and written communications made in the course of discussions which occur as the result of the exercise of rights of entry under s.484. Such problems may properly be dealt with under the dispute resolution mechanisms contained in Division 5 of Part 3–4 of the Act. In providing a document to an employee during discussions in which an employee has agreed to participate, a permit holder will also need to be mindful that he or she is not acting in an improper manner in contravention of s.500 of the Act.
[28] It must also be borne in mind that the existence of the right of entry in s.484 to hold discussions with employees who wish to participate does not confer immunity upon what is communicated during those discussions, whether orally or in writing. For example if a communication is defamatory in nature, s.484 does not interfere with rights under defamation law. If the communication involves racial or sexual vilification, remedies under anti-discrimination legislation remain available. And if a communication involves knowingly or recklessly making a false or misleading representation about the workplace rights of another person (including the exercise of such rights or the effect of their exercise) in contravention of s.345, then various remedies are available under the FW Act. For these reasons, there is no basis to read down “discussions” in s.484 to exclude written material on the basis that the employer may have concerns about the content of that material.
Conclusion
[29] The word “discussions” in s.484 of the Act carries its ordinary meaning and is not confined to oral communications. It follows the right held by a permit holder under s.484 encompasses bringing onto premises documents which are intended to be used in discussions with relevant employees who wish to participate in those discussions.
[30] During the course of argument before us the parties agreed that in the event we reached a conclusion that was adverse to the Respondent’s contention, we should give the parties an opportunity to seek to resolve their differences and if unresolved, to give the parties an opportunity to make further submissions on the question of any appropriate order in light of our decision. 36 We therefore give the parties that opportunity and if any remaining differences are not able to be resolved, either party may apply for a relisting of this matter for the purposes of making submissions as to any order that should be made.
VICE PRESIDENT
Appearances:
E. Dalgleish for the Australasian Meat Industry Employees Union
D. Williams and T. Walthall solicitors for Teys Australia Beenleigh Pty Ltd
Hearing details:
2015.
Brisbane:
4 June.
1 Teys Australia Beenleigh Pty Ltd v The Australasian Meat Industry Employees Union and Anor [2015] FCAFC 11
2 Exhibit 1 at [10]
3 Ibid; Annexure MJ 3; Exhibit 3 at [10]
4 Exhibit 1 at [11]; Annexure MJ 4; Exhibit 3 at [11]
5 Exhibit 1 at [8]; Annexures MJ 1 and MJ 2; Exhibit 3 at [9]
6 Exhibit 1 at [12] – [13]; Annexure MJ 5; Exhibit 3 at [12]
7 Exhibit 1 at [14] – [21]; Annexures MJ 6 – MJ 8; Exhibit 3 at [12]
8 Exhibit 3 at [17]
9 Exhibit 1 at [22]
10 Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74 at [70]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [14]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
11 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]
12 [2010] FWAFB 9963
13 Ibid at [29]
14 (2012) 201 FCR 297
15 Ibid at 310-311
16 See s.40A of the FW Act
17 See Citibank Ltd v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481-1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 and Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44]
18 See Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [43]
19 Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 405 [56] per Flick J
20 Section 490(1)
21 Section 487
22 Section 490(3)
23 Section 491
24 Section 493
25 Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 405 [56] per Flick J
26 See s.515
27 See s.508
28 [2015] FCAFC 56
29 Ibid at [13]-[15]
30 See O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1 at 48
31 Section 490(2)
32 Australasian Meat Industry Employees Union v Fair Work Australia and Anor (2012) 203 FCR 389 at 397 [16]
33 Macquarie Dictionary, Sixth Edition
34 The Concise Oxford Dictionary, Eighth Edition
35 Exhibit 3 at [13]
36 Transcript 4 June 2015, PN482– PN485 and PN544–PN546
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