The Australian Workers' Union v Melsteel Pty Ltd

[2014] FWC 6916

[2014] FWC 6916

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

The Australian Workers’ Union
v
Melsteel Pty Ltd
(RE2014/1423)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 OCTOBER 2014

Alleged dispute concerning permit holders not permitted to attend usual meals or breaks area of employees.

[1] On 25 August 2014, I issued a decision arising from a dispute between The Australian Workers’ Union and Melsteel Pty Ltd. 1 That dispute arose when Melsteel did not allow a permit holder from the AWU to enter the premises to hold discussions with employees who wished to participate in those discussions.

[2] On 26 August 2014 Mr Brian Rodrigues and Mr Kahu Tapara notified Melsteel under s.487 that they wished to enter the site to hold discussions with employees. Mr Tapara and Mr Rodrigues attended the site on 27 August 2014, and Mr Ian Hunter, a director of Melsteel directed them to the despatch office which adjoined the lunch room to enable them to meet with employees. The despatch office window looked into the lunch room and it was not contested that persons in the lunch room could see into the despatch office and vice versa. Mr Hunter had earlier arranged for Mr Stephen McClean and Mr Adrian Savage the foremen, to tell the workers that the permit holders would be present in the room from 12.30pm to 1pm.

[3] It is not in dispute that the organisers did not attend until sometime after 12.30pm and by the time they were escorted to the room there was only 5-10 minutes left of the employees’ lunch break. Mr Rodrigues and Mr Tapara, in their witness statements, said the Mr Hunter had told them that the employees’ lunch break commenced at 1pm. Mr Hunter denied saying this and I accept his evidence. In their oral evidence Mr Rodrigues and Mr Tapara said that Mr Damian Holland, the Accountant, had given them this information. I am not prepared on the evidence before the Commission to find that any representative of Melsteel misled the permit holders about the time the employees had their lunch break.

[4] Mr Rodrigues and Mr Tapara gave evidence that they went to the despatch office and observed that there was only one employee in the lunch room. They gave evidence that a sales representative remained in the room with them. No employees attended the room to speak to the permit holders and after a few minutes Mr Rodrigues and Mr Tapara left the room.

[5] Mr Rodrigues and Mr Tapara then spoke to Mr Hunter and advised him that they considered the room to be unreasonable and when he said it was a reasonable room they told him that they were entitled to use the usual meals or breaks area where the employees usually had their meals or breaks.

[6] Mr Hunter stated that Mr Tapara was threatening and aggressive when they had this discussion and that Mr Tapara swore during this conversation. Mr Tapara denied swearing and Mr Rodrigues confirmed that Mr Tapara did not swear. Neither Mr Tapara nor Mr Rodrigues were cross-examined on this allegation and neither was Mr Hunter. I am not prepared to find on the evidence before the Commission that Mr Tapara used inappropriate language or was threatening and aggressive.

[7] At the hearing, Melsteel sought an adjournment to enable it to call three other witnesses. Mr Ashley Piston had prepared a witness statement but was not available to be cross examined. Mr Piston gave evidence about what had occurred in July 2014. In addition, he gave evidence that he had been told that the permit holders were going to be present on 27 August 2014 and that he could speak to them if he wished. He gave evidence that he was not interested in speaking to them and that neither were his fellow workers.

[8] Melsteel also wanted to call Mr McClean and Mr Savage to give evidence that they told the workers that the permit holders would be available between 12.30pm and 1pm in the despatch room for them to speak to. Melsteel said that these witnesses were not available as they were on leave.

[9] I did not grant an adjournment. The AWU did not object to me receiving Mr Piston’s evidence to the extent that he gave evidence about what was said to him and about his own lack of interest in meeting with the permit holders.

[10] I am also prepared to accept for the purpose of this matter that Mr McClean and Mr Savage did tell the employees that the permit holders were going to be in the despatch room from 12.30pm to 1pm and that they were free to go and speak to them.

[11] The AWU submitted that as the AWU and Melsteel cannot agree on the room or area of the premises, section 492 of the Fair Work Act 2009 provides that the permit holder may conduct interviews or hold discussions in the room or area where the employees normally take their meal or other breaks.

[12] Melsteel submitted that Mr Hunter, in good faith in compliance with my earlier decision, permitted the permit holders to enter the premises and that the room provided to permit holders was reasonable.

[13] Melsteel submitted that the employees were told that the permit holders would be on the premises from 12.30 to 1pm and that they were free to go and speak to them.

[14] It was uncontested that no employees went to the despatch office to meet with the permit holders in the 5 to 10 minutes they were in the office.

[15] Melsteel submitted that on that basis I can conclude that no employees wished to participate in any discussion with the permit holders.

[16] It was submitted that one of the permit holders had attended on two occasions and no employee had joined the union and no employee had wished to participate in any discussions.

[17] I accept Mr Piston’s evidence that he did not want to participate in any discussion with the permit holders. However, I am unable to conclude on the evidence that no employee wished to participate in discussions with the permit holders.

[18] I agree with the proposition expounded by the Full Bench in Dardanup 2 that “the focus of the s.484 is the right of the permit holder to hold discussions with employees rather than the right of employees to hold discussions with a permit holder.”3 I also accept the proposition that “in the absence of a permit holder being directly advised in advance by an employee that the employee does not wish to hold discussions, there is nothing in the FW Act that prevents a permit holder, who is otherwise lawfully exercising his or her right of entry under s.484, from speaking to an employee who is on a break for the purpose of identifying the issues that the permit holder wishes to discuss and asking the employee whether the employee is prepared to participate in those discussions.”4

[19] Melsteel submitted that as s.492(3) uses the word “may” the Act does not require the discussions to be held in the lunch room in the event there is disagreement between the parties. I do not accept that submission. It is clear from the Act that if there is no agreement about the venue then the permit holder is permitted to enter the lunch room where he or she may either conduct interview or hold discussions with employees who wish to participate in those discussions.

[20] It is clear from the discussions that occurred on the day the permit holders entered the premises, that Melsteel rejected the argument put by the permit holders that the despatch room was unreasonable and the permit holders rejected Melsteel's view that it was reasonable. There is nothing before me that would lead me to a conclusion that with further effort and discussion the parties would agree on a venue for the discussions.

[21] In those circumstances I find that the parties do not agree on the venue.

[22] It was put, though ultimately not pressed, that the permit holders had not entered the premises lawfully because the right of entry notices provided to Melsteel referred to the Workplace Relations Act 1996 and not the Fair Work Act 2009. The notices were not in evidence before me.

[23] Section 487(2) of the Act provides that an entry notice must comply with section 518. Section 521 provides that regulations may be made for the form of entry notices.

[24] Regulation 3.26 of the Fair Work Regulations 2009 prescribes the form to be used by permit holders when entering premises for the purpose of holding discussions. Schedule 3.3 of the Regulations provides for the form.

[25] It was accepted by the permit holders that their notice of entry did not comply with Regulation 3.26 because it did contain the reference to the Fair Work Act 2009.

[26] The proper approach to determining the validity of an act done in breach of a statutory provision is aptlyset out in Project Blue Sky v Australian Broadcasting Authority 5with the task being to discern what Parliament’s intention was in respect of a failure to comply with a notice in this case by misnaming the relevant act.

[27] In the circumstances that the point was not pressed at the hearing it is not necessary to determine if the notice was invalid.

[28] As I have found that the parties cannot agree on the venue for the permit holders to have discussions with employees, I will issue orders that the venue be the room or area in which the employees ordinarily take their meal or other breaks.

[29] The AWU sought orders for a period of twelve months. Melsteel proposed that the duration be one month.

[30] In all the circumstances, I am prepared to make an order for a period of three months.

DEPUTY PRESIDENT

Appearances:

L Buntman on behalf of The Australian Workers’ Union.

C Pollard on behalf of Melsteel Pty Ltd

Hearing details:

2014.

Melbourne:

2 September.

 1   [2014] FWC 5858

 2   AMIEU v Dardanup Butchering Company Pty Ltd [2011] FWAFB 3847

 3   Ibid at [19]

 4   Ibid at [22]

 5 (1998) 194 CLR 355 at [03]

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