The Hobart Clinic Association Ltd
[2024] FWC 1169
•7 MAY 2024
| [2024] FWC 1169 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
The Hobart Clinic Association Ltd
(RE2023/1183)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 MAY 2024 |
Application to deal with right of entry dispute
The Hobart Clinic Association Ltd operates The Hobart Clinic (the clinic), which is a not-for-profit charitable business providing mental health care and wellbeing inpatient and outpatient services. The clinic is the occupier of premises located at 31 Chipmans Rd, Rokeby in Tasmania. The mental health conditions of patients treated at the clinic are wide ranging, and frequently include depression, anxiety, mood disorders, personality disorders and substance use addictions. Many patients have a history of trauma, including childhood and adult sexual assault. The clinic engages a range of clinical staff, including psychiatrists, trainee psychiatrists, general practitioners, registered nurses and allied health professionals to provide its in-patient and outpatient services.
The Health Services Union (HSU) is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) entitled to represent the industrial interests of some of the employees of the clinic. Desmond Marcenko is an organiser employed by the HSU in its Tasmanian Branch. He is also the holder of a right of entry permit issued under s 512 of the Fair Work Act 2009 (Cth) (Act). Kathryn Skinner is the Chief Executive Officer of the clinic and Alison Miller is its Interim Director of Nursing.
Mr Marcenko gave written notices by emails to Ms Skinner on 18, 19, 20 and 21 December 2023 that he intended to exercise entry rights for the purposes of holding discussions with employees under s 484 of the Act on 19, 20, 21 and 22 December 2023 respectively. The validity of the entry notices given is not in dispute. Mr Marcenko and the HSU on the one hand and the clinic on the other are in dispute about the room or area of the clinic’s premises in which discussions with employees may take place. The clinic applied under s 505 for the Commission to deal with a dispute about the operation of Part 3-4. The Commission is empowered to 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.
I endeavoured to deal with a dispute by mediation or conciliation, but the endeavour did not resolve the dispute, and my suggestions for resolving the dispute have not been taken up. By this, I mean no criticism of the disputants but simply to state that efforts falling short of arbitration to deal with the dispute have been unsuccessful in resolving the dispute. The relevant factual matters are not seriously in contest.
On 19 December 2023, Ms Skinner observed Mr Marcenko holding discussions with employees in the Nurses Station. The Nurses Station comprises several areas or sections and operates as a 'hub' where clinical staff manage patient treatment. One area of the Nurses Station faces a corridor area and is separated from the corridor by a partial glass wall. Computers facing away from the glass wall are in this area. These sit on top of a lengthy workbench and are used by staff to access the patients’ records. This is an area of the Nurses Station I describe as the workstation area.
The workstation area is separated from another area in the Nurses Station, known as the 'handover' area, by a partial wall. Clinical staff meet at dedicated times at the ‘handover’ area around a 'handover table', which is more akin to a high bench, to transfer responsibility for patient care from one clinician to another. The handover table is used as a meeting point to discuss patients’ clinical reviews, including ongoing treatment plans and progress. There are a couple of stools around the handover table, but staff mostly stand around the table during clinical discussions as there are fewer stools than staff who participate in clinical reviews. There are several whiteboards in the handover area, which face away from the entrances to the Nurses Station. These whiteboards display information including individual patient names, diagnosis, treatment, treating doctor and planned admission or discharge date. The Director of Nursing’s office is adjacent the handover area. There are no fridges, tea and coffee making facilities or general staff amenities in the Nurses Station.
It is uncontroversial that some staff who work at the Nurses Station, including employees who are eligible to be members of the HSU, take their meal and other breaks at the workstation and the handover areas of the Nurses Station. The clinic discourages this practice and encourages staff to take breaks away from their work area, but it does not prohibit its staff working in the Nurses Station from taking their meal or other breaks in that location.
Apart from the Staff Tea Room, to which I will return, it is uncontroversial that the clinic and Mr Marcenko have been unable to agree on another room or area in the clinic in which Mr Marcenko may hold discussions with eligible employees when he exercises entry rights for that purpose. The dispute centres on whether Mr Marcenko can hold discussions with eligible employees in the handover area of the Nurses Station. He and the HSU contend that the handover area is a room or area in which one or more eligible employees, who may participate in the discussions, ordinarily take meal or other breaks and the area is provided by the clinic for the purpose of taking meal or other breaks.
The HSU and Mr Marcenko describe the handover area of the Nurses Station as the Nurses Meal Room. This is a self-serving label designated by no one other than HSU and Mr Marcenko and has no basis in fact. The label ascribed by the HSU and Mr Marcenko is not evidence of the area’s use or purpose. The label is designed to distract. It is unhelpful and misleading - it borders on dishonest. The notion that the area is known as the “Nurses Meal Room” was not even put to the clinic’s witnesses – its CEO and interim Director of Nursing.
The right of entry scheme established by Part 3-4 of the Act confers upon a permit holder a statutory right to enter business premises of an occupier. This is an encroachment on the right of an occupier who would otherwise have to determine who is permitted to enter and who may be excluded from entering premises owned or controlled by the occupier. Accordingly, statutory provisions of this kind should be construed so that the encroachment is no greater than the statute allows, either expressly or by necessary implication.[1] Section 484 confers on a permit holder a right to enter premises for the purposes of holding discussions with one or more employees who have particular characteristics. Section 484 provides as follows:
“484 Entry to hold discussions
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(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.
Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.
Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).
Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”
The right to enter under s 484 of the Act is not a right unfettered. It is subject to express and implied constraints.[2] Once entry is obtained for the purpose of holding discussions, the permit holder’s capacity to hold discussions is also circumscribed. First, there is the general limitation that the power to enter must be used bona fide for the purposes for which it is conferred and that its exercise is not to be excessive in the circumstances of a particular case.[3] Second, discussions with employees may only be held during meal times or other breaks.[4] Third, discussions authorised by an entry under s 484 are limited to particular employees. The right of entry is not given for holding discussions with employees generally.[5] A permit holder is not permitted to hold discussions with any employee who happens to be on the premises at the time of entry. Relevantly, entry under s 484 only authorises the permit holder to hold discussions with the employees who fall within the description in paragraphs 484(a)-(c). Fourth, discussions with relevant employees may only be held at a location determined by s 492, which provides:
“492 Location of interviews and discussions
(1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.
(2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.
(3) The permit holder may conduct the interview or hold the discussions in any room or area:
(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and
(b) that is provided by the occupier for the purpose of taking meal or other breaks.
Note 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.
Note 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).”
In the instant case, Mr Marcenko and the occupier have not agreed that Mr Marcenko may conduct interviews or hold discussions with eligible employees at the handover area of the Nurses Station. Instead, Mr Marcenko and the HSU contend that because the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions, Mr Marcenko may conduct the interview or hold the discussions at the handover area of the Nurses Station because that is an area in which relevant employees who might participate in the interview or discussions ordinarily take meal or other breaks. Mr Marcenko and the HSU also contend the handover area of the Nurses Station is an area provided by the occupier for the purpose of taking meal or other breaks.
As I earlier noted, there is no dispute that some employees who might be interviewed or participate in discussions take their meal and other breaks at the workstation and the handover areas of the Nurses Station. This practice is discouraged but not prohibited.
It is now uncontroversial that for a room or area to meet the description in s 492(3)(b) of the Act that it is provided by the occupier for the purpose of taking meal or other breaks – the room or area need not have been constructed, fitted out or cordoned off with a singular use in mind. Rather, s 492(3)(b) is concerned with the room or area having been made available for the use or purpose to which s 492(3)(b) refers. A room or area is not disqualified from meeting that description simply because it also has another purpose.[6]
It is also now uncontroversial that the words “the purpose” in s 492(3)(b) of the Act do not require a determination of the occupier’s subjective intention in providing the room or area. Rather, the occupier’s purpose in providing the room or area under s 492(3)(b) must be assessed objectively.[7]
Ms Millar gave particular evidence about the area in dispute. Ms Millar said that the Nurses Station:
Øacts as a central point for patient information and record keeping;
Øis a large room with a partial height glass wall with all patient boards, computer screens and patient information facing inwards;
Øconsists of a workbench with four computers allocated for nurses to record clinical notes in the clinic’s electronic medical record software application. Patient information, including patient files, clinical handover sheets, medication charts, are frequently on this workbench and visible to people who walk into the Nurses Station;
Øhas a ‘handover table’ behind a large partial room divider. This space is used by clinical staff at 9:00 am and on occasions throughout the day, for example, formal patient clinical reviews and nurse shift handover. The handover table is high with some stools available for sitting, otherwise people stand;
Øhas a patient whiteboard facing the ‘handover table’, containing specific information relating to each patient’s admission, including personal and health information. Next to this whiteboard is a notice board, which details additional patient information and specific treatment whilst they are admitted. There is also a secondary whiteboard for patients who are being admitted. All of these boards contain personal and health details of patients;
Øhas a large shelving area adjacent to the ‘handover table’, which stores hard copies of current and former patients’ clinical files;
Øhas no dedicated areas for staff to sit and gather generally on breaks;
Øis an operational area where work is performed.[8]
None of this evidence was seriously challenged and I accept it.
Ms Skinner gave evidence that there are no fridges, tea and coffee making facilities or general staff amenities in the Nurses Station because it is an operational area of the clinic,[9] and that the clinic provides a specific room for staff to take a break and eat a meal, which is referred to as the Staff Tea Room.[10] The Staff Tea Room is located adjacent to the Staff Kitchen, which is located in the Services Corridor of the clinic and is a 'staff only' area.[11] This evidence was also not seriously challenged and I accept it.
Ms Skinner also said that while she was aware that some staff may take food into the Nurses Station to eat while they perform some work tasks, the Nurses Station is not provided by the clinic for that purpose and that this was discouraged.[12] Mr Peter Fraser is a HSU member and a retired registered nurse who had worked at the clinic until late January this year.[13] He gave evidence that during the course of his employment with the clinic, he ordinarily and regularly ate meals at the Nurses Station and he would sometimes eat meals and take breaks in the Staff Tea Room.[14] He said he observed other nursing staff regularly eat meals at the Nurses Station.[15] Mr Fraser said that there:
“. . . was a practical utility to eating in the room annexed to the Nurses Station. During afternoon shifts, employees were required to be effectively 'on call'. Because of the staffing levels at the facility, and the needs of patients, nurses would be required to respond to requests of visitors and patients while on break. As such, the majority of my colleagues who performed shift work opted to eat in the [handover area of the Nurses Station].”[16]
Mr Fraser’s evidence is about the conduct of he and some of his colleagues – they often ate meals and had breaks at the handover area of the Nurses Station. This appears to be because the practice had a practical utility to some of the staff. But this says little about the purpose for which the area was provided. No employee was called to give evidence that the clinic encourages or facilitates staff to take meal and other breaks in the handover area of the Nurses Station. Nor did Mr Fraser give such evidence. Indeed, the evidence is to the contrary – the practice is discouraged.
It seems to me that there is a vast difference between a room or area that is a work area in which some employees may take a meal or other break, a practice discouraged but not prohibited and the area been provided or made available by the occupier or employer for that purpose. The area in question has, in my view, a singular purpose. The clinic provides the area for the purpose described in Ms Millar’s evidence earlier discussed. That some employees choose to take their meal or other breaks in the area does not mean the area is provided or made available by the clinic for that purpose. Add to this the complete absence of any amenity that might be associated with taking a meal or other break, the area cannot objectively be said to have been provided by the occupier for the purpose of taking meal or other breaks.
It follows that the handover area of the Nurses Station is not a default location for the purposes of s 484(3) of the Act. Mr Marcenko may only hold discussions or conduct interviews with relevant employees in the handover area of the Nurses Station if he and the occupier agree.
If Mr Marcenko and the occupier cannot agree under s 492(1) of the Act on a room or area in which to hold discussions when he is exercising entry rights under s 484, the Staff Tea Room is a room provided by the occupier for the purpose of taking meal or other breaks and so is a default location for discussions.
In dealing with the dispute, I am required to take into account fairness between the parties. Neither party made any submissions about this requirement. Nevertheless, I do not consider that any unfairness is visited on the parties by reason of my conclusion. Ultimately, in the absence of any agreement about the room or area in which Mr Marcenko may hold discussions, the Staff Tea Room may be used. This is a room in which persons with whom Mr Marcenko might hold discussions take their meal and other breaks and it is the room the clinic provides for that purpose. I do not consider that orders to give effect to the last two paragraphs are necessary. The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
S. Masters and T. Farmer for The Hobart Clinic Association Ltd
J. Milligan for Mr Marcenko and the Health Services Union
Hearing details:
2024
Hobart
22 March
Written submissions:
The Hobart Clinic Association Ltd, 13 February 2024 and 12 March 2024
Health & Community Services Union, 5 March 2024
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[1] See Citibank Ltd v Federal Commissioner of Taxation (1988) 16 ALD 486, (1988) 83 ALR 144 at 152; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403, (1989) 85 ALR 588 and Darlaston v Parker and Others [2010] FCA 771, (2010) 189 FCR 1 at 13-14 [44]
[2] Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85, (2012) 203 FCR 389 at 405 [56]
[3] O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1, 48
[4] Fair Work Act 2009 (Cth), s 490(2)
[5] Australasian Meat Industry Employees Union v Fair Work Australia and Anor [2012] FCAFC 85, (2012) 203 FCR 389 at 397 [16]
[6] Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 at [4] (per Jessup J) and at [30] (per Tracey and Reeves JJ)
[7] Ibid at [33] (per Tracey and Reeves JJ)
[8] Exhibit 3 (witness statement of Alison Millar) at [8]-[18]; see also Exhibit 1 (witness statement of Kathryn Skinner) at [42]-[47]
[9] Exhibit 1 at [48]
[10] Ibid at [34]
[11] Ibid at [35]
[12] Ibid at [50]
[13] Exhibit 4 (statement of Peter Fraser) at [1]-[3]
[14] Ibid at [8]-[9]
[15] Ibid at [9]
[16] Ibid at [10]
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