The Australian Workers' Union v Rio Tinto Aluminium (Bell Bay) Limited

[2011] FWA 3878

[2011] FWA 3878

The attached document replaces the document previously issued with the above code on 23 June 2011.

The document has been edited to correct errors in:

• Paragraph [14] by replacing the word “Object” with the word “Objects”

• Paragraph [17] by replacing the word “organisation” with the word “organisations”

• Paragraph [39] by adding a full stop to the end of the list

• Paragraph [59] by deleting the words “the majority”

• Paragraph [62] by adding an apostrophe to the word “holders”.

Kate Greig

Associate to Commissioner Lewin

Dated 28 June 2011

[2011] FWA 3878

FAIR WORK AUSTRALIA

DECISION

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

The Australian Workers' Union
v
Rio Tinto Aluminium (Bell Bay) Limited
(RE2010/3889)

COMMISSIONER LEWIN MELBOURNE, 23 JUNE 2011

Right of Entry to hold discussions - employer request to use certain locations - whether a reasonable request - intention of employer - objective evaluation of reasonableness or unreasonableness of request - effect on employees’ capacity to hold discussions with a permit holder provided for by statutory provisions - undue inconvenience - request not reasonable

[1] This decision concerns the operation of Part 3-4 - Right of Entryof Chapter 3 Rights and Responsibilities of Employees, Employers and Organisations, of the Fair Work Act 2009 (the Act). Part 3-4 of Chapter 3 is about the rights of officials of organisations, who hold permits issued by Fair Work Australia to enter premises, related to representative rights conferred upon such officials by the Act.

[2] Section 480 of the Act sets out the Object of the relevant statutory provisions:

“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 outworkers 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.”

[3] Division 2 - Entry rights under this Act of Part 3-4, of Chapter 3, sets out extensive rights conferred by the Act on persons who are issued permits under relevant provisions of the Act to enter premises for purposes specified by the Act.

[4] Division 5 - Powers of FWA,and s.505 thereof in particular, provides for Fair Work Australia to deal with a dispute about the operation of Part 3-4, of Chapter 3, of the Act.

[5] The Australian Workers’ Union (the AWU) is a registered organisation within the meaning of the Act with the capacity to represent the industrial interests of employees of Rio Tinto Aluminium (Bell Bay) Ltd (Rio Tinto), who are employed at the aluminium smelter of Rio Tinto at Bell Bay, Tasmania. The AWU has applied in the prescribed form in the capacity of a permit holder organisation under s.505(3) of the Act for an order to deal with a dispute between the AWU and Rio Tinto concerning the operation of Part 3-4 of Chapter 3 in respect of the rights of permit holders to conduct interviews or hold discussions with employees of Rio Tinto at particular locations within the smelter. Section 484 of Subdivision B - Entry to hold discussions, of Part 3-4, is set out below:

“Subdivision B—Entry to hold discussions

484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF outworkers:

(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.”

[6] Section 492 of the Act regulates compliance by permit holders with reasonable requests by an occupier of premises 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.

[7] Rio Tinto has issued requests that a relevant permit holder only conduct interviews and have discussions in particular rooms and areas of the Bell Bay site and that permit holders access those locations in a particular way. Those rooms are situated in what is known as the administration building and are referred to as the visitor’s centre, the gatehouse training room and the gatehouse induction room.

[8] The AWU submits that the requests are not reasonable in the particular circumstances for various reasons, including an intention on the part of Rio Tinto to intimidate discourage and make it difficult for the employees to participate in the discussions contemplated by the Act.

[9] The Tribunal has power to deal with the application of the AWU to resolve the disputed requests under s.492 of the Act. The dispute clearly concerns the operation of s.492 and the legislature has made it expressly and abundantly clear that such a dispute is within the jurisdiction of the tribunal by s.505(1) and the Note thereto as follows:

“505 FWA may deal with a dispute about the operation of this Part

(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).

Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.”

[10] Section 505(2) of the Act, set out below, provides that the Tribunal may arbitrate the dispute and make orders of the following kind:

“(2) FWA may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(c) an order revoking an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

[11] In this matter the AWU seeks an order to settle the dispute. The order sought is not of any of those kinds provided for in s.505 (2)(a)-(d). Consequently, the powers of the Tribunal in the relevant circumstances of the application are provided for by subparagraph (e) of s.505(2) which effectively leaves the extent of the power of the Tribunal unrestrained should it find that the request is not reasonable in some relevant way, other than by ss.505(4)-(5), which provides, among other things, as follows:

“4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.

(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.”

[12] Before turning to deal with the particular facts and circumstances of the rights of entry of permit holders to the Bell Bay aluminium smelter as provided for by the Act, it is convenient to commence by having regard to the Object of the Act as set out in s.3 and the Object of Part 3-4 as set out previously.

[13] Section 3 of the Act is set out below:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.

[14] Aspects of the Object of the Act which may be relevantly emphasised include: the reference to co-operative and productive workplace relations in the preamble to variously elaborated Objects of the legislation which then follow, including; the intention to provide laws that are fair to working Australians, promote productivity and take into account Australia’s international labour obligations. The Object of the Act is also expressed to enable fairness and representation at work, recognition of the right to freedom of association and the right to be represented. The Act also seeks to achieve productivity and fairness through an emphasis on enterprise level collective bargaining.

[15] Clearly, all of the provisions of s.3 of the Act must be seen as a whole and the matters emphasised above are entwined in a broad Object of a statutory scheme which includes a considerable volume of interrelated content, at once capable of discrete and contextual consideration. Accordingly, the issuance of permits to enter premises would seem capable of various discrete considerations in particular circumstances, such as; rights to inspect premises, to conduct interviews, to inspect, have access to and make copies of documents, to investigate breaches of industrial laws and to hold discussions with employees in relation to undefined subject matter. All of these rights and other related rights are conditioned in various ways by particular statutory provisions.

[16] It is relevant to this matter that the rights conferred upon permit holders by Part 3-4 and the complex matrix of such rights and conditions applicable thereto are designed to serve various aspects of the Object of the Act, including freedom of association, employee representation and the facilitation at the enterprise level of collective bargaining and dispute resolution and should be apprehended accordingly. An example of the effect of the relevant statutory provisions is as follows. An enterprise agreement or some other industrial instrument may be in force. Employees may wish to hold discussions to seek advice about the appropriate application of the instrument or representation in relation to any disputed application of its terms or alleged contraventions of those terms with a permit holder. Otherwise, employees may wish to hold discussions with a permit holder in relation to the making or renewal of an enterprise agreement, including terms proposed by either the employees or an employer with whom it is proposed an enterprise agreement be made. Other discussions with a permit holder could be desired in relation to other concerns of individuals or of groups of employees.

[17] It may be observed that the various components of the Object of the Act in s.3 manifest in many different ways across the scope of the legislative intention and the provisions of Chapter 3, importantly in Part 3-4 RIGHT OF ENTRY. Critical to the achievement of this Object of the Act therefore is the achievement of the Object of Part 3-4 which provides a framework for officials of organisations to enter premises in a way which balances various rights of organisations to represent their members, hold discussions with members and potential members and the rights of occupiers of premises and employers to go about their business without undue inconvenience.

[18] The provisions of s.492 operate in two ways. First, section 492(1) requires a permit holder to comply with “a reasonable request” of an occupier of premises of two kinds, referring to particular rooms and areas and the route of travel to those rooms or areas. Second, s.492(2) sets out certain circumstances in which a request will be considered unreasonable. Two such circumstances are then identified. However, and importantly, the identification of certain circumstances which will cause a request to be considered unreasonable are not exhaustive, on the contrary the introductory words of s.492(2), “Without limiting when a request under subsection (1) might otherwise be unreasonable...”, make it clear that the particular circumstances referred to in s.492(a) and (b) in no way limit the circumstances which may cause a request to be unreasonable. Consequently, the consideration by the Tribunal of whether a disputed request to which s.491(1) applies is a reasonable request is at large and should be considered according to the relevant objects of the Act.

[19] The two dimensions of the provisions of s.492 identified should be understood discretely. Moreover, s.492(2) has two distinct dimensions. One is a purely objective question of whether a particular room is fit for the purpose of the discussions the Act provides for. The other concerns the intentions of an occupier of premises or an employer.

[20] Having regard to the structure of the provisions of s.492 as a whole and the characteristics identified above it is convenient to separate two types of considerations for the purposes of this decision. The two aspects might be called the broad objective dimensions of the reasonableness or otherwise of an employer’s request in the individual circumstances of a particular case on one hand and a much narrower view of the subjective intention of an employer in relation to the deterrence of employees and permit holders holding the discussions provided for by the Act on the other. The latter is provided for by s.492(2)(b), of the Act. The former is clearly the primary and larger vehicle of jurisdiction and power which does not confine consideration of the reasonableness of a request to circumstances arising solely due to particular and prohibited motivations of the employer making a request.

[21] It is useful to start by considering the subjective intention of Rio Tinto in this matter. This is because if the relevant intention is made out the effect of the statutory provisions is that the disputed request is, by definition and force of the Act, unreasonable and the jurisdiction and power of the Tribunal to make an order arises consequentially, merely from the existence of that intention, whether effective or not.

[22] Application of these statutory provisions poses not entirely novel but particular procedural and substantive issues concerning consideration by a Tribunal of the subjective intention of an employer.

[23] In various employment law contexts both statutory and jurisprudential where an employer’s subjective intention forms a critical nexus for the purpose of constituting the pre condition to a legal consequence it has been considered appropriate to impose specific procedural or presumptive provisions in relation to the onus in a proceeding.

[24] This is because it will always be difficult for a party claiming the existence of a subjective motivation or intention on the part of another to affirmatively establish the alleged intention or motivation. Such an intention may be indicated by facts and circumstances, however, short of some extraordinary telepathic talent, knowledge of what was on an employer’s mind when acting in a particular manner, in this case making the disputed request, will essentially be within the employer’s domain.

[25] However, the provisions of Part 3-4 provide no basis upon which the type of presumption provided for in s.361 of the Act, for example, can be made in a proceeding for an order in relation to a disputed request the subject of s.492 of the Act. Nor, in my view, has the Tribunal given specific consideration to the issues of procedural and substantive onus raised above in cases where such intentions have been alleged.

[26] While I consider an approach which imposes an appropriate procedural onus to reflect the considerations I have identified has compelling logic, which may be applied where a permit holder’s organisation alleges an intention of the kind contemplated by s.492(2), I intend to deal with the application on the basis that the procedural and substantive onus to establish an intention proscribed by s.492(2) rests with the AWU. I do so primarily because of the absence of an indication of any presumption in the statutory provisions and any clear Full Bench authority for a different procedure.

[27] As an observation, however, I would go so far as to say that without presumptive provisions or an appropriate modulation of procedural onus in relation to the operation of the provisions of s.492(2)(b) it would be difficult to judge the practical vitality of the statutory provisions highly.

[28] In this matter the evidence relied upon in relation to the existence or otherwise of such intentions is comprised of the evidence of the AWU’s witnesses referred to below, which is relevantly uneven. Where that evidence is indicative of discouragement or intimidation in relation to meeting with a permit holder for the purpose of holding the discussions contemplated by the Act, the evidence is of the subjective effect upon a witness of having to meet the permit holder at the locations which are the subject of the relevant requests by Rio Tinto, rather than evidence of Rio Tinto’s intention.

[29] It is of course possible that the subjective experience of the feelings of an employee of this kind can arise independently of any relevant subjective intention of Rio Tinto to cause such an effect.

[30] I find on what is before me that an intention of Rio Tinto of the kind proscribed in s.492(2) has not been affirmatively made out in the evidence.

[31] A consequence of my finding immediately above is that the assessment of whether the relevant and disputed requests of Rio Tinto are reasonable requests, is to be conducted without reference to the motives or intentions of Rio Tinto in the specification of the relevant locations as the places at which a permit holder will meet with employees to hold discussions in the course of exercising the right to enter the premises at Bell Bay for such purposes which is conferred by the relevant provisions of the Act.

[32] Notwithstanding the above, it is necessary I think to ensure that, where an issue of the subjective intention of an employer’s request to which s.492(2)(b) applies arises, there is no confusion of whatever subjective intentions of an employer may or may not be present in a particular case and the primary and more general intention of the legislature to afford to a permit holder or the permit holder’s organisation the right to dispute the reasonableness of a request to which s.492 applies on purely objective grounds, regardless of the employer’s motivation or intention.

[33] To confuse the two aspects of the statutory provisions could lead to a presumption that a request will only be unreasonable where the proscribed intentions are present in some way or other. This, in my view, would be a significant error of statutory interpretation and would wrongly narrow the field of consideration of the circumstances which might give rise to a conclusion that a relevant request is reasonable or not, to a perverse extent. There is no legislative intention to limit when a request of the relevant kind will be considered not to be reasonable to questions of employer motivation. On the contrary, the provisions of s.492(2)(b) would seem ancillary rather than axiomatic to the purpose of the section and should be considered a component part of a much wider field of general consideration of whether or not a request is reasonable or unreasonable in the particular circumstances of an individual case. It would also be erroneous to proceed on the basis such that, absent any of the intentions proscribed by s.492(2)(b), the only remaining consideration of whether a request is a reasonable request is the consideration of whether a particular room is fit for the purpose of holding the discussions provided for by the Act, as referred to in s.492(2)(a).

[34] It is likewise important to note that where an employer has no motivation or intention when making a disputed request to discourage employees from meeting with a permit holder or to intimidate employees so as to deter them from doing so, but rather such effects arise objectively and independently of employer intention, such a consideration may give rise to a conclusion that such circumstances make or contribute to making the request unreasonable when the Tribunal is required to determine a dispute about a request to which s.492(1) applies. However, for the purposes of this decision I make no finding in that regard due to the unevenness of the evidence on this subject previously noted.

[35] The question in this matter then becomes, quite simply, is the request of Rio Tinto to which s.491(1) applies an objectively reasonable request with which a permit holder must comply in all the circumstances of this case, in the judgement of the tribunal? If the answer is affirmative the AWU must comply with the request. If the answer is no and the request is not a reasonable request according to the circumstances of the case, in the judgement of the Tribunal, a remedial order may be issued.

[36] The dispute that is the subject of the AWU’s application has some history and has been dealt with by the Tribunal on other occasions by other members. It is not necessary to recite the history of the dispute except to note that the particular rooms which are the subject of the request were proposed by Rio Tinto at a conference in relation to the Right of Entry provisions of the Act conducted by a member of the Tribunal. The AWU agreed to follow a recommendation by the member of the Tribunal that the particular rooms be the subject of trial by the AWU for the statutory purposes. That occurred on 22 February 2010. The rooms are described as the visitors centre and designated training and induction rooms situated in the administration building at the work site.

[37] The subject of the reasonableness or otherwise of the request that the visitor’s centre and the training and induction rooms designated in the request are to be the venues at which a permit holder should exercise their right of entry to hold discussions with employees was addressed by inspections and evidence in this matter.

[38] On 28 January 2011 the Tribunal conducted an extensive inspection of the Bell Bay Aluminium smelter, including the visitors centre, the designated training room and the induction room and all of the crib rooms on the site.

[39] A hearing of evidence was held at Launceston Magistrates Court on the 28 and 29 April 2011. The following person gave evidence:

• Robert Flanagan, Assistant Secretary, AWU Tasmania Branch



• Robert Leerson, Service Crewman, Rio Tinto



• Derek Hawes, Process Controller, Rio Tinto



• Andrew Bott, Process Controller, Rio Tinto



• Tim Bowden, Process Controller, Rio Tinto



• Darryl Martin, Process Operator, Rio Tinto



• Don Hayes, Vice President AWU Tasmania Branch



• Leo Ruffo, Potrooms Manager, Rio Tinto



• Paul King, Human Resources and Communities Manager, Rio Tinto



• Kenneth Nolan, Health, Safety and Environment Manager, Rio Tinto.

[40] The AWU filed a witness statement by Ross Richardson, Process Controller at Rio Tinto. Mr Richardson did not give evidence and I have had no regard to that statement.

[41] The parties filed closing submissions in the Tribunal on 11 May 2011. A subsequent hearing was held in Melbourne on 13 May 2011.

[42] The size of the workplace is very large. Walking to and from various locations can be time consuming. There are numerous road crossing points. Vehicles have right of way and pedestrians must stop frequently to give way to various types of mobile plant and equipment. The delays which may be caused are dependent upon the operational requirements for movements by plant and equipment. The location of the visitors centre and the designated training and induction rooms varies considerably in proximity both to the work location of employees performing duties throughout and across the site and the various crib rooms usually used by employees, from relatively close to relatively distant.

[43] The evidence establishes that employees work according to an agreed regime of flexibility. This means that there are no structured meal or other breaks. Rather, when an employee may and will take a break is determined by operational requirements. The duration of breaks is also subject to operational requirements. A break will therefore not necessarily coincide with the visit of a permit holder and could be of limited duration when the permit holder is present, operational requirements may not enable reasonably sufficient time for an employee to go to the requested locations, have discussions with the permit holder and return to duty. It follows also that, because of the flexible working regime and the delimitation of meal and other breaks by operational requirements, the attendance of the permit holder at the administration building cannot be reliably planned in such a way as to coincide with a meal or other break at designated times and for sufficient duration to ensure than an employee wanting to hold discussions with the permit holder will be able to do so.

[44] Should employees at a location be unable, due to operational requirements, to take a break when a permit holder is present this would present obstacles to employees holding discussions which the right of the permit holder to enter the premises is designed to enable. Moreover, if employees were able to take a break compatible with operational requirements whilst a permit holder was present, operational requirements may limit the time available for employees wishing to hold such discussions. In some circumstances depending upon the location of the employees wishing to hold discussions with a permit holder, the time necessary to walk or otherwise travel to and from the visitors centre and the designated training rooms can present impediments to the holding of the discussions provided for by the Act by consuming a considerable portion, if not all, of the employees’ meal break, reducing the time for and utility of taking such a break.

[45] Mr Ruffo gave evidence that pedestrian transit times from what he referred to as the pot lines, which correspond to what I have described as work areas at relatively distant locations, and the administration building can vary between five and 10 minutes.  1 Mr Ruffo conceded that there was potential for upward escalation of such times due to circumstance and that the five minute estimate was at the lower end of the average time from the relatively distant locations to the administration building. Mr Ruffo’s evidence was that the anticipated provision for breaks during a 12 hour shift was a long break of between 30 and 40 minutes and lesser breaks of between 10 and 15 minutes. From this evidence it is clear that access to permit holders to hold discussions from the more distant locations during the breaks of 10 to 15 minutes is not reasonably practicable. The evidence of Mr Ruffo is conditioned however. Mr Ruffo accepted that the flexibility regime where breaks are taken and timed according to operational requirements mean that when a break is taken and its duration will be dictated by those requirements. Consequently, it is more probable than not that when employees will have their breaks is indeterminate on any day and the duration of a break or breaks is likely to be subject to frequent variation. A survey of the AWU’s witness evidence is not wholly inconsistent with Mr Ruffo’s evidence. However, the evidence and material of the AWU suggests longer transit times.

[46] The witness statement of Mr Hawes provides that the journey to the visitor’s centre could take 20 minutes to walk from what I have described as the relatively distant locations. It is not clear to me if Mr Hawes statement refers to a one-way or return journey. At the hearing of 28-29 April 2011 the AWU’s witnesses variously gave evidence that the journey from the relatively distant locations to the visitor’s centre could take from between eight to 15 minutes each way depending on the proximity of the starting point within the relatively distant locations to the administration building and delays en route.

[47] I am inclined to discount evidence that a one way trip from the relatively distant locations to the visitor’s centre would take 20 minutes with any frequency. I am inclined to consider that the more plausible and probable range of times within the body of the AWU’s evidence as between eight and 15 minutes each way, from the relatively distant locations to the visitors centre, depending upon circumstance.

[48] In my view, by reason of the variable nature of the times that will be required to travel to and from the administration centre from the relatively distant locations, because of different starting points and the need to give way to vehicular traffic, which will cause more or less delay according to the exigencies of operational requirements on any day, a range of possible delays must be considered. In doing so I have taking into account all of the witness evidence and weighed that evidence for such purpose.

[49] The weight of the evidence makes it reasonable to conclude that the most common duration of the longer breaks taken by employees to be approximately 30 minutes which is also most likely to be an employee’s meal break for a 12 hour shift. The evidence suggests that depending upon the circumstances some employees could be required to use up to around 20 minutes of a meal break travelling to and from the location requested. On some occasions an employee’s meal break may not extend beyond 20 minutes.

[50] Mr Ruffo also gave evidence that if operational requirements permitted additional or extended breaks might be allowed by employee’s supervisors. I will return to this subject.

[51] From this evidence it may be deduced that the most common break duration which would be suitable for the purposes of discussions with a permit holder will be around 30 minutes sometimes less and sometimes more. Although, when that break will occur is highly uncertain and could vary across a wide span of hours during a 12 hour shift. It is relevant to consideration of this evidence to characterise the breaks which are relevant for this exercise of the right of entry. It will be noted that employees may only hold relevant discussions with a permit holder during breaks as described in the statutory provisions. It is questionable if breaks which may, but need not be, granted gratuitously by an employer are breaks contemplated by the Act as times when employees may hold such discussions for the purposes of this dispute. Nevertheless, I have taken the evidence in this respect into account as if those possible breaks are relevant and afforded it appropriate weight in light of the highly discretionary and conditional nature of such breaks and the uncertainty that such additional gratuitous breaks will be able to be granted consistently with operational requirements at a particular time when a permit holder visits the site. I make some further comments about such breaks below.

[52] On the evidence generally and all of the evidence concerning the distance of the work areas at the relatively distant locations from the administration building and the time likely to be taken travelling on foot, to or from the administration building, it is clear that the opportunity to and reasonableness of having an employee being required to meet the permit holder at a location in the administration building to hold discussions, during what would otherwise be the employee’s meal break is questionable. I doubt that the Objects of the legislation are well served in these factual circumstances. The Act envisages the holding of discussion during meal breaks. Even if a permit holder could reasonably coincide a visit with the time of an employee’s meal break with certainty, which I think is highly impractical, it could be the case that the break could be substantially consumed travelling to and from the requested locations.

[53] Rio Tinto has submitted that these circumstances can be accommodated by the granting of discrete and extended breaks by supervisors. The evidence reveals that the possibility of such breaks being available to employees to meet a permit holder at the visitors centre or the designated training and induction rooms has not been communicated to employees prior to the submissions being made in these proceedings, by any means. It was a concept completely unknown to the AWU’s witnesses and the witnesses of Rio Tinto were unaware of the possibility ever to have been communicated prior to the proceedings. Moreover, Mr Ruffo’s evidence is that all and any breaks of employees in the area of operation for which he is responsible are always subject to operational requirements. It follows that, in any event, the granting of an additional or extended break will not occur unless operational requirements permit. I think it reasonable to infer from this evidence that the duration of any such break, if it were to be granted, will likewise be highly contingent upon operational requirements.

[54] On my view of the evidence, having regard to the operational requirements of the flexible working regime and the effects upon the significant variability of times when breaks may be taken and the duration of such breaks, together with the distance between what I have described as the relatively distant locations and the location of the rooms subject to Rio Tinto’s disputed request, the time required to travel to and from that location and the uncertainty and variability of such transit times, I consider the request of Rio Tinto is not a reasonable request in the circumstances, at least in relation to the circumstances of employees working in those relatively distant locations.

[55] I have decided that it is appropriate to make an order which, on the evidence and in my judgement, will lead to a reasonable right of entry which meets the statutory provisions which balances the ability of employees to hold discussions with permit holders and the right of Rio Tinto to go about their business without undue inconvenience.

[56] The effect of the order will be to provide access to crib rooms in what I have described as the relatively distant locations.

[57] In coming to this decision I have had regard to the right of Rio Tinto to go about its business without undue inconvenience. I consider, after taking into account all of the evidence, that such an order will not impose undue inconvenience. I have also taken into account the rights of permit holders prescribed by the Act and the relevant constraints and regulation of those rights. These considerations are consistent with the provisions of s.480 which sets out the objects of Part 3-4 of Chapter 3 of the Act.

[58] Rio Tinto have submitted that the reasonableness or otherwise of the request should not be judged according to the preference or convenience of the permit holder. I accept this submission. The preference of a permit holder in this case is for discussions to be held in all crib rooms. As will be observed I have decided that an order will be made having regard to limited circumstances based on my judgement of how the statutory objects should be achieved in this case. This is not to serve the permit holder’s convenience. Simple convenience of the permit holder would be served by the employees having to hold discussions at the most proximate location to the permit holder’s arrival at the site.

[59] I have also had regard to Rio Tinto’s submission that such access may inconvenience employees who may not wish to participate in such discussions. I note that decisions of the Full Bench of Fair Work Australia 2 have found that this is a matter for consideration when dealing with a dispute in relation to a request made by an occupier of premises under s.492(1) in relation to a permit holder’s exercise of the right of entry prescribed by the Act, having regard to the relevant statutory terms.

[60] While one may suppose the hypothetical possibility of this consideration, in this matter there is no evidence that there are any employees who do not or would not wish to participate in discussions such that circumstances of relevant undue inconvenience would arise. Rio Tinto did not present such evidence and the evidence of the AWU’s witnesses, given under cross examination on the subject, does not reveal anything of substance indicating that such circumstances arise as a matter of fact in this matter.

[61] In Rio Tinto’s submissions some reliance in this respect was placed on the size of the crib rooms and numbers of employees who may be present at any one time. It was suggested that this was indicative of the fact that some employees may be adversely affected. I have seen the crib rooms in question during a shift of work. Such a submission once again is hypothetical and inconclusive. Mr Ruffo gave evidence that usually at any one time there will be between and 2 and 4 employees in a crib room. On my observation this would enable persons in the room to maintain a reasonable level of social separation at most times. I think it is more probable than not that the crib rooms will accommodate the discussions provided for by the Act without undue inconvenience to any person including, most pertinently, Rio Tinto

[62] In the absence of any evidence of inconvenience, many speculative assumptions are possible. One might assume that none of the employees who happen to be using a crib room at the time of a permit holder’s visit wish to participate in discussions. The situation is of itself inconsequential in the circumstances. If that is the case then the permit holder could be assumed to comply with the conditions of the permit, there will therefore be no discussions and no inconvenience. Another assumption is that all of the employees present at the time of the presence of the permit holder wish to hold discussions. There can be no issue arising in these circumstances. If an assumption is made that some employees of those present at the time of a permit holder’s visit wish to hold discussions and some do not this of itself is not determinative of whether or not the access should be reasonably available. A simple example can illustrate the problematic nature of the circumstances. If there are ten employees present and nine wish to hold discussions and one does not, it does not follow that the intention of the Act is that the interests of the permit holder and the nine employees wishing to hold discussions are to be nullified by the wish of the one employee not to be a participant in the discussions. No such implication may be drawn from the express terns of the statute or the relevant extrinsic materials. On my reading of the Act, particularly its Objects, the Explanatory Memorandum and the nature of the statutory legal rights conferred upon the permit holder, such a simple nullity would invert the clear policy objects of the legislation and the intention of the legislature.

[63] Moreover, in such circumstances there is more than one assumption involved. It does not follow that a person who does not wish to participate in the discussion would have any concern or suffer any undue inconvenience in the particular circumstance, either of a subjective or objective nature. That person may be indifferent or favourably inclined, able to consume a meal, read, use a smart phone, personal computer, or a pair of headphones. There is no evidence concerning such subjects, this illustrates why relevant undue inconvenience should be a matter of objective evaluation of the facts of an individual case established on a proper basis of evidence.

[64] In this respect Rio Tinto has submitted that such visits have caused inconvenience and complaint by employees. However, no evidence of this kind has been brought by Rio Tinto and the submission is contradicted by Mr Hayes, under cross examination, who is a relevant permit holder. I consider it appropriate to accept Mr Hayes’ evidence on this subject to the extent that it may be necessary.

[65] In my view, in the absence of any probative evidence in relation to this subject there is no sound basis for a finding that any relevant undue inconvenience of the nature alluded to in the submissions of Rio Tinto would arise from an order providing access to the crib rooms in question, as a matter of objective fact, arising from inconvenience to employees.

[66] On the contrary, the evidence establishes that the permit holders have been accessing the relevant crib rooms in accordance with rights they hold under Tasmanian legislation governing visits in relation to Occupational Health and Safety. On my view of the evidence, this does not seem to have given rise to any issue or complaint. Rather, on that evidence the visits have proceeded uneventfully and there is no evidence of any inconvenience, or more specifically having regard to the relevant statutory language, any undue inconvenience to Rio Tinto, or any other person for that matter.

[67] I have also had regard to Rio Tinto’s evidence and submissions concerning safety. In my view, the relevant consideration of undue inconvenience of the occupier of a premises or an employer as referred to in s.480(c) encompasses the issue of the safety of access to particular rooms by a permit holder. As already observed the permit holders have been granted access to the relevant crib rooms under Tasmanian occupational health and safety legislation and have been accessing the crib rooms. I have inspected the site myself and have an understanding of traversing the route to and from the crib rooms in respect of which I consider it appropriate to provide access for the holding of the discussions provided for by the Act. I have also considered Rio Tinto’s evidence concerning the balance of risks of various scenarios put by the representatives in examination and cross examination. Weighing all that evidence I am satisfied that an order for access is not inappropriate.

[68] There is also a requirement for the permit holder to be escorted. This consideration no doubt poses a level of inconvenience, however, I do not judge it to be undue in the industrial and operational context and all circumstances of the case, balancing the statutory intention to provide employees with the opportunity to meet with representatives of organisations to hold discussions, the inherent nature of the site, it’s geographic size, the practice of escorting visitors and the convenience of information for Rio Tinto of the whereabouts of all visitors at all times for various site management purposes including, occupational health and safety, public safety and disaster management considerations, which are all of a general nature. Furthermore, I do not judge such inconvenience to be undue taken in the context of the statutory provisions, the Object of the Act, the Object of Part 3-4 of Chapter 3 and the context of the workplace, including the geographic size, complexity of operations and sound site management generally.

[69] I have taken into account fairness between the parties as required by s.505(4) of the Act. In light of what is referred to above and on consideration of the evidence and materials of the parties as a whole I do not consider any unfairness will arise to either party as a result of the order I intend to make.

[70] Having decided to make an order in relation to access by permit holders to what I will broadly refer to as the crib rooms at the relatively distant locations I should refer to an aspect of the submissions of Rio Tinto made in writing subsequent to the finalisation of the evidence. Those submissions are to the effect that should an order be made, different rooms to the crib rooms identified by the AWU and inspected by the Tribunal and subject of the evidence, as the reasonably appropriate venues for the conduct of the relevant discussions, should be the subject of the order.

[71] The Tribunal has not inspected the rooms proposed in these submissions for the purposes of the application nor did the use of such rooms form part of the evidence heard at Launceston on 28-29 April 2011. A consequence of these considerations is that the AWU did not address its case to such outcomes. There was no lack of opportunity for Rio Tinto to put these proposals as part of its case as an alternative in the event that, for whatever reason, the Tribunal were to find that the requests under consideration are not reasonable. I should note in this respect that prior to the hearing at Launceston certain proposals were forward to the AWU for settlement of the dispute and a copy forwarded to my Associate. At the commencement of the hearing Rio Tinto suggested that conciliation take place on these proposals. At that time I informed the parties that as the matter was being dealt with by arbitration I had not perused or read the proposals for settlement and for reasons which are disclosed in the transcript conciliation did not take place. The submission of Rio Tinto now referred to may incorporate such proposals, whether or not they do is unknown to me. In these circumstances I do not consider it is appropriate to determine that such proposals should be adopted. Moreover, all of the matters relied upon by Rio Tinto for such proposals may well be contested and I cannot assume that there would not be contrary or other relevant considerations in relation to the proposals which should be taken into account.

[72] An order will issue accordingly.

COMMISSIONER

Appearances:

M. De Carne for the Australian Worker’s Union.

Ms P Burgess for Rio Tinto Aluminium (Bell Bay) Limited.

Hearing details:

2011.

Melbourne:

May 13.

Launceston:

January 28 (inspections);

April 28, 29.

Final written submissions:

11 May 2011

 1   PN2024.

 2   Somerville Retail Services Pty Ltd v Australasian Meat Industry Employees’ Union[2011] FWAFB 120 [PR505750] and TheAustralasian Meat Industry Employees’ Unionv Dardanup Butchering Company Pty Ltd [2011] FWAFB 3847 [PR510646].

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