The Australian Workers' Union v Melsteel Pty Ltd

[2014] FWC 5858

[2014] FWC 5858

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
v
Melsteel Pty Ltd
(RE2014/1387)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 AUGUST 2014

Alleged dispute concerning right of entry of AWU delegate.

[1] The Australian Workers’ Union (“the AWU”) applied for an order under section 505 of the Fair Work Act 2009 (“the Act”) arising from a right of entry dispute with Melsteel Pty Ltd (“Melsteel”).

[2] On 2 July 2014, Mr Brian Rodrigues visited Melsteel’s factory at Hallam to speak to people about the Steel Cuts campaign. It is not disputed that Mr Rodrigues on this occasion did not notify Melsteel in accordance with section 486 of the Act. Mr Rodrigues asked to speak to the site manager and upon being told that the manager was not available left the site. Whilst leaving the site, he spoke to two employees.

[3] On 11 August 2014, in accordance with section 486 of the Act, Mr Rodrigues sent a notice of his intention to visit the site to hold discussions with employees. On the same day, Mr Damian Holland, the company accountant, advised that Melsteel did not recognise his right to enter the site. Mr Rodrigues then sent Mr Holland a copy of section 484 of the Act. Despite this, Mr Holland advised Mr Rodrigues to make an application to the Fair Work Commission (“the Commission”) as the AWU did not have any right to enter the site.

[4] On 18 August 2014, Mr Rodrigues sent a further notice of his intention to enter the site and the AWU notified this dispute to the Commission. Mr Holland advised Mr Rodrigues that until the Commission had approved his application to gain entry, he had no right of entry.

[5] At the hearing, the AWU called Mr Rodrigues and he was cross examined. No evidence was called by Melsteel.

[6] The AWU submitted that it was not contested that:

1. Mr Rodrigues was a permit holder.

2. The AWU was entitled to represent the industrial interests of the employees.

3. Mr Rodrigues on two occasions had complied with the Act and notified Melsteel of his intention to enter the premises for the purposes of holding discussions with employees who wished to participate in those discussions.

[7] Mr Ian Hunter, the Director of Melsteel, advised that he understood that right of entry could only be exercised if there was a dispute or there had been an accident.

Conclusion

[8] Section 505 provides the Commission with the power to deal with the operation of Part 3-4 right of entry.

[9] Mr Rodrigues provided, he complied with section 486 of the Act, has a right under section 484 to enter Melsteel’s premises to hold discussions during meal times or other breaks with employees who wish to participate in those discussions.

[10] I do not propose to make the orders sought by the AWU as that order goes to the location of the discussions and no submissions were made about this at the hearing.

[11] It is not necessary for any order to be issued in relation to this dispute. It can be assumed that Melsteel, having read this decision, will comply with the Act and permit entry to the premises. An order to that effect would do no more than order Melsteel to comply with the Act. Such an order is unnecessary as the Act, at section 501, provides that refusing or unduly delaying entry is a civil remedy provision.

DEPUTY PRESIDENT

Appearances:

L Buntman for Applicant

I Hunter for the Respondent

Hearing details:

2014.

Melbourne:

25 August.

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