The Australian Workers' Union v Amcor Packaging (Australia) Pty Ltd
[2009] FWA 1236
•24 NOVEMBER 2009
[2009] FWA 1236 |
|
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
v
Amcor Packaging (Australia) Pty Ltd
(RE2009/10336)
The Australian Workers' Union
v
ISS Integrated Services Pty Ltd
(RE2009/10337)
COMMISSIONER BLAIR | MELBOURNE, 24 NOVEMBER 2009 |
S.505 right of entry - facility for employee discussions.
[1] These two applications have to come to Fair Work Australia (the Tribunal) by way of notification by the Australian Workers’ Union (the Applicant) under s.505 of the Fair Work Act 2009 (the Act). They are applications to deal with a right of entry dispute.
[2] In RE2009/10336 the Respondent is Amcor Packaging (Australia) Pty Ltd and in RE2009/10337 the Respondent is ISS Integrated Services Pty Ltd.
[3] Both matters were heard initially on 17 September 2009 in Adelaide and inspections were carried out on 16 November 2009 at the Amcor Gawler manufacturing site.
[4] The main issue in dispute arises under section 492 of the Act, “Conduct of interviews in particular room etc”. It is the Tribunal’s understanding that the main issue relates to Amcor Glass at its Gawler manufacturing site rather than an issue with ISS Integrated Services Pty Ltd; therefore, the main part of this decision will relate to Amcor Packaging (Australia) Pty Ltd (the Respondent).
[5] Section 492 “Conduct of interviews in particular room etc” of the Act states the following:
“(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.”
[6] The Applicant believes that the room required to conduct interviews, commonly called the Learning Centre, is not a reasonable room for it discourages people from participating in discussions and interviews.
[7] The Applicant, in summary, seeks to be able to access the canteen for the purposes of interviewing employees or making themselves available in a corner of the canteen for those employees who may be potential union members. The Applicant also seeks to have access to the smoking area and believes it is unreasonable for the Applicant not to be provided with access to those two areas for the purposes of right of entry.
[8] The Applicant regards the canteen, smoking area and the adjoining grassed areas of the Gawler facilities as reasonable areas where they can conduct discussions and interviews with employees.
[9] The Applicant rejects the Respondent’s argument that to allow them access to the canteen would contravene the cultural relationship it has with persons working within the facility.
[10] The Applicant states the following in their submissions:
“The AWU remains of the view that the ‘Learning Centre’ is not a reasonable room for, and it discourages persons from participating in, discussions and interviews in that:
1. It makes discussions and interviews difficult to the point of unreasonableness due to not being part of the meal break area where workers or employees are partaking of their meal break.
2. It makes discussions and interviews difficult to the point of unreasonableness due to not being part of the regular facilities which the employees can access without being seen to be talking to the Union.
...
3. Access to the Learning Centre is in full view of the administration block of the employer where management works, a fact that the employer has not contested beyond claiming that any employee could also see management if management were watching them.
4. It is the smallest space of the spaces shown to the Commission during its site visit – a fact not contested by the employer.
5. From the site visit it is evidently rarely used by employees for anything but the most precursory of work related tasks and many may not even be aware of its existence.
6. It is clearly a room which has been constructed by the employer for the purpose of Unions or Bargaining Representatives to hold interviews, it does not form part of the regular workplace – other facilities such as the training room, the meeting room, the smoking area, the canteen and the grassed areas between these sites are all parts of the regular workplace.
The Learning Centre is completely separate to the point of being isolated to the rest of the facility by a road and the administration building. It also has its own lavatory facilities. This isolation makes the building unreasonable, discouraging and not easily accessible during mealtimes or other breaks.”
[11] The Respondent, for their part, state that permit holders for the Applicant have accessed the Gawler site on three occasions. On each occasion the Applicant has complied with the Respondent’s request that permit holders use the Learning Centre to hold discussions.
[12] The Respondent understands that no employees have met with the Applicant on these occasions.
[13] The Respondent submits that the request to use the Learning Centre is both reasonable and lawful. They state that the request to use the Learning Centre is:
- reasonable because the Learning Centre is fit for the purpose of holding discussions;
- not unreasonable because it has not been made by the Respondent with the intent of doing any of the things proscribed by section 492(b); and
- in all of the circumstances, is otherwise reasonable.
[14] The Respondent states that the Learning Centre is not impractical, difficult to access or remote from the work area. It does not otherwise put employees at some substantive or demonstrable disadvantage or risk.
[15] The Respondent states that section 492(2) of the Act identifies specific circumstances when a request made under section 492(1) of the Act will be unreasonable. However, section 492(2) is not intended to be exhaustive. They state that a request would be 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.
[16] The Respondent also states that section 492(3) of the Act specifically provides that a request to hold discussions in a particular room or area is not unreasonable only because the room or area is not that which the permit holder would have chosen.
[17] The Respondent states that the Learning Centre was not set up for the specific purpose of unions or bargaining representatives holding interviews or discussions with employees.
[18] The Respondent refutes the accusations by the Applicant that the employees would not use the Learning Centre in every day work or that they may not even be aware of its existence is untrue. The Respondent states that Learning Centre is used regularly, but is not so in demand as other rooms in the administrative area, each which serve particular purposes.
[19] The Respondent states that the Learning Centre is connected to a power supply and has air conditioning, a table, several chairs, a printer and telephone/internet access. The room accommodates up to 20 people.
[20] The Respondent also refutes the allegation made by the Applicant that the Learning Centre and access to the Learning Centre is in full view of management. The Respondent accepts that the Learning Centre is visible from the administration building; however, the Respondent states that using alternative rooms and/or the canteen, which are located in the administration building are arguably more accessible to management.
[21] The Respondent states that the site of the administration building, which overlooks the Learning Centre, does contain several windows; however, not all of these windows are from management offices. They also state that other windows are in areas where administrative staff, facilities and reception are located; however, due to the height positioning of the window it is impossible for a person seated in a management office to see the Learning Centre without standing up.
[22] The Respondent states that they have no intention of discouraging people from attending discussions with the Applicant. They state that there is no evidence to support an assertion otherwise. Further, they state that the Respondent remains willing to notify employees of the Applicant’s intention to exercise their right of entry. They state that this demonstrates the bona fides of the Respondent of allowing employees to exercise their right to participate in discussions if they elect to do so.
[23] In responding to the Applicant’s stated wish to use the canteen to hold discussions, the Respondent submit that the canteen is a room that is used by many employees including management and administrative staff for eating and recreation. The Respondent also states that the Applicant’s submission that the refusal to agree to the Applicant’s request to use the canteen is based on cultural reasons is misguided. The Respondent’s culture is such it wishes employees, staff and management to be able to enjoy a space which is a relaxing “haven”.
[24] The Respondent states that there were alternative locations suggested. While the Respondent believes that the request to use the Learning Centre is clearly reasonable, they have, as a sign of good faith, made suggestions of alternative rooms to the Applicant.
[25] The Respondent states that during the on-site inspections they offered the conference room or the small meeting room in the administration block. They even offered, despite the expense that they would incur, to consider relocating the Learning Centre if the Applicant remains concerned about alleged intimidation or access. That Applicant has stated that none of these alternatives are suitable.
[26] The Respondent states that it appears that the only room that is acceptable to the Applicant is the canteen and adjoining facilities.
[27] The Respondent finally states that for reasons advanced, there is no proper evidentiary or other basis for determining that the Respondent’s request in this case is anything but reasonable.
OUTCOME
[28] In considering all the material provided by the Applicant and Respondent and having made on-site inspections, the Tribunal is of the view that, given that the Learning Centre is some distance from the administration building and, more importantly, the canteen, the grassed area and the smoking hut, the Learning Centre provided by the Respondent to the Applicant in order to interview potential union members, is an unreasonable request on the part of the Respondent.
[29] The Tribunal accepts that it is not the Respondent’s intention to discourage potential union members from discussing matters with the Applicant. This is evident by the alternative locations offered by the Respondent as well as the offer to consider re-locating the Learning Centre if the Applicant remains concerned about alleged intimidation or access.
[30] The Tribunal also accepts that the large training room and the technical training room, given the high volume of usage and the time critical and highly tailored training would be most unsuitable for the purposes of being offered to the Applicant.
[31] If the Respondent’s offer to consider re-locating the Learning Centre, which they acknowledge is generally used for inductions/re-inductions, then the Tribunal is of the view that serious consideration should be given to re-locating the Learning Centre somewhere closer to the canteen area, not on the other side of the car park as was originally proposed. This would do a number of things, in the Tribunal’s view:
1. It would make the Learning Centre more accessible to management and employees going through an induction/re-induction process or one-on-one training or group training.
2. It would be easy to connect plumbing and/or electricity to the Learning Centre if it were re-located closer to the canteen and administration buildings rather than the extra cost to run electricity and/or plumbing to the other side of the car park, if that offer were accepted by the Applicant.
3. It would provide the opportunity for those potential union members to be able to walk a short distance and be accommodated in having discussions with any union representative in a facility at least capable of having private discussions.
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