The Australian Workers' Union of Employees, Queensland v Ardent Leisure Limited T/A Dreamworld

[2009] FWA 926

[2009] FWA 926

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

The Australian Workers' Union; The Australian Workers' Union of Employees, Queensland
v
Ardent Leisure Limited T/A Dreamworld
(RE2009/10618)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 6 NOVEMBER 2009

Right of entry dispute to Dreamworld (Ardent Leisure Limited) – intentions of the employer.

[1] This decision was originally given in transcript on Friday, 30 October 2009. I indicated to the parties (who are named below) that I would reduce my decision to writing as promptly as I could, if need be, to allow them to exercise their rights as they see them. Apart from some editing to provide much needed fluency at points (indicated by use of the parentheses) and the inclusion of two statutory references, I have not departed from the original decision. That decision now follows.

[2] “The dispute for determination that has come before me [which is between the Australian Workers' Union; The Australian Workers' Union of Employees, Queensland (“AWU”) and Ardent Leisure Limited T\A Dreamworld (“Dreamworld”) was made under] s. 492(2)(b) of the Fair Work Act 2009 (“the FW Act”). Section 492 of the FW Act, itself, reads as follows:

“492 Conduct of interviews in particular room etc.

(1) The permit holder must comply with any reasonable request by the occupier of the premises to:

(a) conduct interviews or hold discussions in a particular room or area of the premises; or

(b) take a particular route to reach a particular room or area of the premises.

Note: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:

(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or

(b) the request is made with the intention of:

(i) intimidating persons who might participate in the interviews or discussions; or

(ii) discouraging persons from participating in the interviews or discussions; or

(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.

(3) However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.

(4) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.” [my emphasis]

[3] The matter has been pressed for hearing in determination by the applicant. I have raised informally prior to the commencement of the proceedings whether there was scope for a conciliated approach in this matter and there was no consensus in that regard. So the matter has reverted to […] formal determination […].

[4] A hearing has been conducted and I now give my reasons for decision. I should premise my comments by the following remarks, that I consider the right of entry provisions in the [FW] Act to be important provisions. They provide the statutory rights and obligations [by] which organisations of employees give effect to the very purpose of the registration, which is to advance and protect the interest of members and, in this case, persons who are eligible to be their members. [They] also ensure […] [the] flow of information […][between] the work force [….] [and the employee organisation].

[5] On Thursday, 29 October 2009 […] Mr Crompton of the AWU [and Mr Simpson, an official of the AWU] […] exercised a right of entry in the normal manner as permit holders. That is not contested. [They were] directed by Dreamworld through […] the HR manager, Ms McLachlan, to attend not […] what in Mr Crompton's mind was the customary place of meeting, the principal lunch room at Dreamworld. [Instead, they were directed] to a function room referred to as The Shell.

[6] In Mr Crompton's evidence, which I accept, Mr Crompton [had] conducted some 8 to 10, in fact possibly more, meetings in the principal lunch room at Dreamworld.

[7] In my view it was reasonable for Mr Crompton to presume that he should continue to meet in the principal lunch room and it is reasonable […] to conclude that employees would expect to hold discussions with Mr Crompton at that location. […]

[8] However, on this particular occasion Ms McLachlan notified Mr Crompton by email some two hours prior to his arrival that he was to conduct his meeting at The Shell, […]some […] several minutes walk […] from the security gate.

[9] Ms McLachlan in her email of the morning of 29 October indicated that she was prepared to notify employees by […] email of AWU's presence at The Shell for the purposes of meeting with employees and holding discussions. Mr Crompton did not respond to that particular offer other than to note [in reply] that he had “hoped to meet in the lunch room". As I said, it was reasonable for him to contemplate that the customary pattern of his meetings could be carried out at that particular location. Upon presenting at the security gate at Dreamworld, Mr Crompton and Mr Simpson, after a delay of some minutes[…] were escorted to The Shell.

[10] Upon arrival, no employees were [in evidence] and none subsequently presented themselves.

[11] I [am not] surprised that this was the case. Employees were not advised of the meeting for the purposes of discussions to be conducted at The Shell […]. Ms McLachlan took no action in that respect [because] there [had been] no reply from Mr Crompton in respect of that particular matter [raised in] the email on the morning of 29 October [2009]. Consequently, the employees were not advised, and as a consequence they did not appear. In any event, The Shell was not the customary location and it would be reasonable to infer that no employees would have expected the AWU to be waiting for them at such a location for purposes of a meeting and to hold discussions with them.

[12] As a consequence of this constellation of circumstances, the AWU alleges that the action by Dreamworld in requiring the two AWU officials in exercising their right of entry [to attend The Shell], […] was done […] with the intentions [of the kind of which are proscribed] by section 492(2)(b)(i) through to (c) [of the FW Act]. […]

[13] The AWU also contends that the presence of the security guard created an environment that intentionally dissuaded the employees from participating and therefore is an example of the wider set of circumstances that could cause or discourage persons from participating in interviews other than those cited in the [FW] Act, or suggested in the [FW] Act.

[14] The question then that falls to me is whether or not the occupier of the premises, Dreamworld, made an unreasonable request of the permit holder to meet in The Shell and did so with the intention of doing the kind of things set out in section 492(2)[(b)](i), (ii) and (iii) [of the FW Act].

[15] I emphasise that the [FW] Act states […] that the unreasonable action, [that being] the request to meet and conduct interviews or hold discussions at a particular location [in this case], must be done [according to s. 492(2)(b) of the FW Act with the “intention of”] :

(i) intimidating persons who might participate in the interviews or discussions; or

(ii) discouraging persons from participating in the interviews or discussions; or

(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.

[16] […] The Act requires, therefore, that I investigate [the decision maker’s] motivation [to determine if] it demonstrates an intention to do the things that are proscribed. If I am not able to establish that Ms McLachlan [as the exclusive decision maker] acted with intention to do any of the things that are proscribed or otherwise potentially proscribed, then [Ms McLachlan] can not be found to have [acted] in breach of the Act [and] therefore to have acted unreasonably in the terms defined in the Act.

[17] On the evidence before me Ms McLachlan was not aware [that] the principal lunch room had been the location or was otherwise a customary location of meetings for the AWU. Ms McLachlan's evidence was that she was aware of only effectively two sets of meetings that [had taken] place [at Dreamworld involving the AWU]. [The first of these concerned] meetings with management in respect to the enterprise bargaining arrangements. The second broad set of meetings were those that had taken place in recent times by way of right of entry [notices] including the [meeting on or about] 25 September [2009 in which the AWU had met] with cleaners as well as the [meeting with] engineering [staff] […] on 28 October 2009.

[18] [Ms McLachlan evidence, which I accept as being creditable, and in any event not seriously challenged] was that she had no knowledge that the AWU had sought entry or [otherwise] acquired entry in the past and met over a period of time and with some frequency in the principal lunch room such that it would be [claimed] by the AWU and employees as being a customary place of meeting. The reasons for that assumption on her part, or the reason for that evidence on her part, appears to reside […] in the history [of the] relationships between the parties.

[19] It would appear as though up until about 14 October 2009 the AWU had accessed the work force at Dreamworld by presentation at the security entry by registration of [the] name […] of the officer and the time of entry in the security log and meeting with employees in the principal lunch room. [This entry was achieved, it appears] without the exercise of the formal right of entry procedure set out in the Act. That is, an informal relationship existed between the parties [so the AWU claimed] whereby Dreamworld kept no surveillance of or supervised or, it appears, took any obvious interest in the presence of AWU officials on its premises and in its interactions with its work force. [According to the AWU, t]hat, however, of course changed after 14 October 2009 [when the parties fell into contest about the future of their agreement making process].

[20] On that basis Ms McLachlan had the view, and I think one which was credible, that she had no knowledge [of] and [that she had been] unaware that there had been meetings between the AWU and employees […] at what had become a customary location, being the principal lunch room.

[21] That is Ms McLachlan never knew, in effect, that the lunch room was a customary point of meeting and holding discussions between the AWU and its members and employees who are eligible to be its members. As far as Ms McLachlan knew was that The Shell had been assigned as a meeting point on 25 September, or thereabouts, to the AWU as a place of meeting for the purposes of holding discussions with the cleaners who are employed at Dreamworld. And that meeting was conducted [at that location] without complaint by [the AWU].

[22] [Indeed] Mr Crompton's evidence [was that], the physical environment of The Shell at that time [of the meeting of 25 September 2009] caused him no cause for concern. In fact […] he found it a cool location and not of any other great moment.

[23] [Given] Ms McLachlan's knowledge it was reasonable for her to infer that the offering of The Shell once more [on 29 October 2009] was not a proposal that might necessarily generate any conflict with the AWU. And I say that again in the context that she had no knowledge, on her evidence, that the principal lunch room had become by informal practice a point of customary meeting between the AWU and the employees.

[24] […] The Act specifies that a request is an unreasonable request if the occupier acted with the intention of doing certain proscribed things. I have not been able to find in the evidence of this matter that Ms McLachlan acted with the intention of doing the proscribed things, or indeed other actions, that might contravene the section.

[25] Absent the intention, there can be no act of unreasonableness on the part of the occupier such that it intended the consequences of the location that was nominated for the meetings as alleged by the AWU.

[26] [To] my mind this matter has arisen because of the difference in perspectives. Mr Crompton and Ms McLachlan never appreciated or understood the premises of one another's positions and therein lies the origins of this dispute.

[27] Mr Crompton acted as he [says he] had in the past, even though this time [he was] acting under a right of entry permit. He nonetheless acted as he had in the past, appeared the security gate, expected and intended to meet with the employees at the customary location.

[28] Ms McLachlan, for her part, assuming there had been a meeting that was not subject to any agitation in The Shell at a previous time, and [acting] without the knowledge that the principal knowledge that the principal lunch room had been a customary source of location, could not have acted unreasonably in nominating The Shell [as the location for the meeting of 29 October 2009].

[29] There are a number of other comments that I want to make about this matter. As I said before, […] the primary focus of the investigation placed at the feet of Fair Work Australia in relation to a dispute under this section is to ascertain “intention”. That said, some comments in relation to some other claims surrounding this matter are relevant.

[30] Was The Shell unsuited for the purposes or unfit for the purposes of meeting and holding discussions with employees? The answer to that question is that it would not be unfit or unsuited for that purpose. It appears to be a large, in fact very large, function room and capable of holding a considerable number of people.

[31] It is not exposed to the elements. And I have no evidence before me to conclude that it has any inherent difficulties as a source of meeting and discussions. If it did, it would [not] serve, of course, the employer’s […] purpose in the operation of its business as a function room. [I add that the AWU did not complain about the venue when it conducted a meeting with cleaners there on 25 September 2009].

[32] The issues of distance have been raised in relation to this matter. […] I find that this is a matter that is indeterminate to some measure. Ms McLachlan is the only person with direct knowledge of the park that has been acquired over a very lengthy period of experience, of somewhere, if I recall, some 20 years or so of working in various capacities in Dreamworld.

[33] […H]er evidence-in-chief was premised on the basis that she had a comprehensive knowledge of the park. Her evidence was that the walking times from the various locations were all within a parameter of one minute to four minutes or so. [If] an employee was knowledgeable about various routes to particular end points, the location of The Shell [as a nominated point of meeting with the AWU] would not necessary result in any great inconvenience. In any event, her evidence was also that the meal break times provided for up to 10 minutes of walking time to and from the place of work in order to assist employees to gather at their desired locations.

[34] [Ms McLachlan’s evidence was a reference to clause 5.7.5 of the Dreamworld Certified Agreement (No 6) 2006 which reads as follows:

“Employees working at Australian Wildlife Experience, Blue Lagoon, Giant Drop, Tiger Island, Billabong Restaurant, Wiggles World, Rocky Hollow and Tower of Terror who travel to the staff canteen during their meal break, will be entitled to an additional 10 minutes of paid time, to be taken in conjunction with meal breaks to allow adequate travelling time.”]

[35] Notwithstanding that, I am not convinced that all issues as to the distances required are readily resolved in the evidence that is before me. Generally it would appear that the question of proximity for employees to the meeting options, or particularly The Shell, depends largely on where the employees are located in the park and there is just not sufficient evidence before me to be able to make any sound judgment in that regard. The matter might have been aided if employees were able to give some evidence in that regard, but of course then it would also require that the evidence be sourced from a representative workplace areas across the entirety of the park.

[36] Of course the [entire] matter might have been aided if the employees generally knew of the meeting in advance in The Shell and could have made plans to meet there with the AWU. But as for reasons I gave earlier, that process of disseminating that information was never triggered despite the email of 29 October 2009.

[37] [Notwithstanding that,] the issue of evidence in relation to distances has not been exhausted, and I have no final issue on the view as to practicality of the location of The Shell for purposes of the conduct of meetings for the purposes of discussions between employees and the AWU.

[38] […] The AWU […] also raised the issue of the [impact of the] presence of the security guard [on the willingness of employees to attend the meeting].

[39] The security guard, in my view, [as] it appears from the evidence, carried out the instructions of the human resources department, which was to escort the two AWU officials to The Shell and then to escort them back. There is no evidence that their presence acted as a disincentive to employees to engage in any meetings. There was sympathetic conversation between Mr Simpson and the guard and there is no evidence from any employees that they are genuinely intimidated by the presence of [a] guard and would not attend a meeting in which they saw [a] security guard milling around.

[40] Finally, there is an issue of the status of the section 228 application which is also on foot […]. [The argument here is] that is that […] the section 228 application [could conceivably have some importance for this application in so far as] the right of proper access [to] employees [is important] for purposes of giving effect to the good faith bargaining requirements of the [FW Act].

[41] It may be so that an opportunity to meet and discuss is important in the context of the bargaining environment. But absent there being a breach of section 492, I can not draw any linkage between the two [applications].

[42] Is this the end of the matter that has agitated in this application? The answer to this question may well reside with the parties.

[43] Ms McLachlan's evidence to date [in effect was] […] that being naive, in effect, as to the expectation of the AWU and the employees as to the location of the meetings […] she was incapable of acting with the intention which is alleged.

[44] Of course, a different situation arises if subsequently Ms McLachlan is informed that there are severe impediments to [the AWU] the carrying out of a meeting for purposes of holding discussions with employees […] that claim is evidenced and buttressed by […] empirical data. [If] Ms McLachlan [was] still [to] give effect to her disposition to require the employees to meet in The Shell regardless of that objective empirical data, then of course the issue of “intention” may well be agitated once again.

[45] I therefore [ask] the parties to ensure that they have close regard to the practicality of The Shell as a source as a location for meetings between the AWU and employees, that they give consideration to the issues of the distances concerned and the travel times and they ensure that there are no impediments to the substantial or serious impediments to the entitlement of employees to access their representatives in a reasonable location.”

SENIOR DEPUTY PRESIDENT

Appearances:

D Broanda for the Australian Workers' Union and the Australian Workers' Union of Employees, Queensland

D Miller of the Australian Industry Group for Ardent Leisure Limited T/A Dreamworld

Hearing details:

2009.

Brisbane:

October 30.

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<Price code {C}, PR990411>