Transport Workers' Union of Australia v DHL Supply Chain (Australia) Pty Limited
[2011] FWA 1417
•10 MARCH 2011
Note: An appeal pursuant to s.604 (C2011/3848) was lodged against this decision - refer to Full Bench decision dated 24 August 2011 [[2011] FWAFB 3376] for result of appeal.
[2011] FWA 1417 |
|
DECISION |
Fair Work Act 2009
s.505—Right of entry
Transport Workers’ Union of Australia
v
DHL Supply Chain (Australia) Pty Limited
(RE2010/3839)
COMMISSIONER HARRISON | SYDNEY, 10 MARCH 2011 |
Right of entry dispute - alleged unreasonable requests by the occupier to hold discussions with employees in rooms adjacent to a board room.
[1] This decision arises from an application by the Transport Workers’ Union of Australia (TWU) pursuant to s.505 of the Fair Work Act 2009 (the Act) to deal with a right of entry dispute.
[2] The dispute concerns the reasonableness or otherwise of a requirement by DHL Supply Chain (Australia) Pty Ltd (DHL) that discussions with employees, who are members or are eligible to become members of the TWU, be held in a board room or office adjacent to management offices. The TWU regard the meal room and an outdoor barbeque area as suitable alternatives.
[3] DHL is a national warehouse and supply chain business operating 32 facilities throughout Australia. Its operations at Arndell Park NSW is the location subject to this application.
[4] DHL and its employees are bound by the DHL Exel Supply Chain (Australia) Pty Ltd, its Employees and the National Union of Workers Enterprise Agreement - New South Wales 2008.
[5] The grounds in support of orders sought by the TWU referred to an alleged history of DHL breaching its obligations under relevant law and referred to two judgements of the Federal Magistrates Court of Australia. 1 It is clear from the recent history of relations between the TWU, the National Union of Workers (NUW) and DHL that there are strong competing interests at play in this matter.
[6] The TWU submitted that in exercising its right of entry, its officials have been directed to hold discussions with members or potential members in a manager’s office located in an area where management and administrative staff are able to monitor access, that the room is not fit for the purpose of holding discussions and that the direction was intended to intimidate and discourage persons to participate in discussion or interviews with its officials.
[7] The application was initially heard on 13 December 2010 and an inspection of DHL’s premises at 60 Holbeche Road, Arndell Park, were conducted on 14 December. Supplemetary submissions, statements and petitions were submitted during January and February 2011.
[8] At the hearing evidence was provided by Mr Steve Cummins, TWU Organiser and Mr Ian Lilley, National Employee Relations Manager, DHL,
Relevant Legislation
[9] Section 505 of the Act states:
“(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.
(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.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) FWA may deal with the dispute:
(a) on its own initiative; or
(b) on application by any of the following to whom the dispute relates:
(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.
(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.”
[10] The orders sought by the TWU pursuant to subsection 2(e) above are as follows:
a) Subject to compliance with the notice requirements of the Fair Work Act, the respondent will allow officials of the applicant who are permit holders access to the transport workers’ lunch room at its premises at 60 Holbeche Road, Arndell Park, to hold discussions with members and persons eligible to be members;
b) the respondent shall not monitor, whether through presence of management, security personnel, or otherwise, employee attendance at any meetings with TWU officials; and
c) such other orders as the Tribunal considers appropriate.
[11] The overarching provisions of the Act regarding right of entry are contained in Part 3-4 of Chapter 3. Section 480 sets out the object of Part 3-4 as follows:
“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.”
Section 484 states:
“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.”
Section 490 states:
“(1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.
(2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.
(3) The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.”
Section 492 states:
“(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.”
Evidence
[12] It was the evidence of Steven Cummins that when he visited DHL in May and November 2010 he was directed into a room adjacent to the site manager’s office where his activities were capable of being monitored by security and management.
[13] He described the room which comprised a desk, table and four chairs, as being too small to hold a meeting.
[14] It was Mr Cummins’s understanding that non-administration employees are not permitted to enter the administration area.
[15] On his most recent visit in November 2010 he described the sequence of events as follows:
“I arrived at the premises with TWU official Neale Harper at midday. We were met at the reception desk by DHL’s national HR manager, Ian Lilley. To my understanding Lilley is not based at Arndell Park and I don’t know why he was there at that time.
I said to Ian: “Can you take me to an area where Neale and I can have access to our members and potential members?” Ian said: “There’s a spare office near the foyer. Everyone goes past their [sic] when they start and finish work.”
(A rough diagram of the site was attached at SC4 of his statement marked Exhibit F1.)
Ian led us to an office marked “X” on the diagram. He left the door open but closed the blinds. The office was opposite the site manager’s office.
Ian said again: “Who do you want to see?” I said: “Our members and potential members.” He said: “Who in particular?” I said: “Well let’s start with Lester Denetto our delegate onsite.”
Lilley then moved to sit in the office adjacent to the site manager’s office, obviously in full view of the room he’d put us in.
Neale and I sat in the office until 1.40pm when Lester arrived. Lester said: “I was told I couldn’t come and see you until I was due for a break at 2pm. I demanded to be able to see you and finally was told I could come at 1.30pm.”
When we were leaving the site at 2pm Ian Lilley said to me “Next time you’ll have to come when the members have their breaks.”
It would not have made any difference what time we were there because we couldn’t access the members and the members couldn’t access us.” 2
[16] Under cross-examination Mr Cummins agreed that the reception and administration areas are used as a thoroughfare by warehouse employees. In further examination I note he stated that on the day of his attendance very few employees accessed the area in the time he was on site.
[17] It was the evidence of Ian Lilley that employees on lunch breaks have various venues to spend their break. They comprise a lunch room or adjacent outdoor area or they can leave the building through the reception area to purchase food nearby.
[18] It was said it is the usual practice of DHL to allocate meeting rooms or spare offices for union officials to meet members on site. “The lunch room at 60 Holbeche (Rd) is not an appropriate room for discussions pursuant to s.484 of the Fair Work Act 2009 as it is a common facility, able to be used by all DSC employees attending 60 Holbeche including managers.” 3
[19] Mr Lilley described the room allocated to the TWU officials on 3 November 2010 as “a fair sized room....It has five chairs, a table, a desk and a whiteboard. It has a solid door and blinds that can be opened or shut. It is air conditioned and does not share a common wall with another occupied workplace.” 4
[20] Mr Lilley stated there was no intent to intimidate, discourage or create difficulties for persons to confer with the TWU officials nor to monitor the room.
[21] Under cross-examination Mr Lilley stated he had no knowledge of whether NUW officials had held discussions with employees in the meal room. He acknowledged that NUW officials have accessed the meal room outside of meal break times to meet with NUW site delegates as distinct from holding discussions with members or potential members during meal breaks.
Additional Evidence
[22] Following the adjournment of formal proceedings on 14 December 2010 additional evidence and material was submitted by both parties. The first was by Mr Lester Denetto, TWU Site Delegate.
[23] It was Mr Denetto’s evidence that TWU organisers “...are restricted to the office rooms in the administration area of our site.” He stated it was intimidating to see an organiser in the middle of offices where management can observe. In his opinion, the TWU members are frustrated and upset by the lack of access.
[24] Mr Denetto regarded the lunch room as a better location for discussions. “That would allow workers to know when Steve [Cummins] was on site and allow them to have conversations with him much more comfortably. We can sit to the side of the room and have discussions without interfering with anyone’s break.” 5
[25] Mr Denetto stated officials of the NUW attended the lunch room and would stay for the full duration of the lunch breaks over two to three hours.
[26] Mr Craig Lodding, a warehouse employee provided a statement together with a petition he obtained from warehouse employees. He was aware the TWU was seeking to use the lunch room to have “meetings” with employees to which he was opposed.
[27] The petition reads as follows:
“FAIR WORK AUSTRALIA - Matter Number RE2010/3839
We the undersigned being the employees employed by DHL Supply Chain at 60 Holbeche Rd and covered by the DHL Exel Supply Chain (Australia) Pty Ltd., its Employees, and National Union of Workers Enterprise Agreement - New South Wales 2008 - do not want people holding meetings and discussions in our meal room during our meal times. We have signed this petition at our own free will, without duress or inducement.”
The petition was signed by 38 employees.
[28] Ms Patricia Talbot, NUW Site Delegate, stated that when NUW officials attend the site “...they do not conduct meetings during the meal breaks in the lunch room because the majority of the employees at the site including NUW members do not like people holding meetings in the lunch room during meal breaks.” 6
[29] She stated she and other employees meet with the officials in the training room or other meeting rooms in the administrative area.
Considerations
[30] A recent decision of the Full Bench in Somerville Retail Services Pty Ltd v The Australasian Meat Industry Employees Union succinctly interpreted the scheme of the Act as follows:
“In our view, the scheme of the Act is that occupiers of premises have the right to request permit holders to conduct interviews or hold discussions with employees in a particular room or area of the premises provided the request is reasonable. When a dispute arises as to the reasonableness of the request, all of the circumstances must be considered. An applicant can only succeed if it establishes that the employer is objectively unreasonable.
The specific examples of unreasonableness in s.492 are an appropriate starting point. Obviously the specified room must be fit for purpose. A request made for an impermissible purpose is also inherently unreasonable. If one of those grounds is made out then the request is unreasonable.
A request may otherwise be unreasonable in all of the circumstances of the matter. It is appropriate in this regard to consider the legitimate interests of the employer, the interests of employees, and the legitimate interests of permit holders. To some extent those interests may be ascertained by the evidence adduced in the proceedings. The interests may also be considered based on the submissions of the parties.
In previous cases the interests of employees have included the interests of employees who may not wish to be involved in discussions. In our view, it is appropriate to take their interests into account.” 7
[31] I respectfully adopt the above passages of the Full Bench.
Unreasonable Request?
[32] DHL has on two occasions provided rooms to TWU officials to hold discussions with its members and or potential members. It refutes the TWU allegation that the rooms are unfit for the purposes of holding s.484 discussions.
[33] The inspections of DHL’s premises at Arndell Park I conducted showed that the room used by the TWU organisers together with an alternative larger training room are located in an administrative/reception area in close proximity to the warehouse. Both rooms have been provided to the TWU in the past. The training room is the larger of the two.
[34] There are no restrictions on employees accessing the administrative/reception area which is in close proximity to the lunch room and the outdoor barbeque area which is accessible from the training room.
[35] Both rooms are private save for their proximity to the general manager’s office and other spare offices which may be utilised by visiting company officers from time to time.
[36] The TWU stressed that the rooms were capable of being monitored by management which would be a serious disincentive to employees to attend. In this matter there is no evidence to substantiate this submission nor can I draw any inference of an intent by DHL to discourage or intimidate employees from having access to authorised permit holders.
[37] My observations of the layout and meal room and outdoor areas are such that no matter where access was granted, all of the venues are capable of being monitored by management, if it is so desired. In any event there is no evidence that it is monitoring to the extent of discouraging anyone to participate in discussions or interviews with officers of the TWU.
[38] The evidence of Mr Denetto does no more than describe his feelings and the possibility that other people may feel intimidated by meeting TWU officials in the designated room.
[39] On the evidence of Mr Lilley, officers of the NUW have access to the lunch room out of meal break hours. Mr Denetto’s evidence confirms this but goes further to state he has seen NUW officials “...stay for two or three hours during the period that people have their breaks and then leave.”
[40] As noted earlier, it is clear that the history of union coverage in DHL and DHL’s preference to deal with one union over the other is an ongoing issue between the parties.
[41] Whilst there is no barrier to DHL exercising discretion to favour one union over the other there is a limit to what the Tribunal can do to remedy what the TWU regard as an inconsistent approach by DHL.
[42] Having regard to s.505(5) of the Act, the Tribunal must not confer any additional rights on a permit holder outside those prescribed by the legislation which in this matter means holding discussions only during mealtimes or other breaks.
[43] The preference of the TWU to hold discussions in the lunch room does not necessarily mean that the request by DHL to use alternative rooms is unreasonable.
[44] The expressed preference of the employees is a relevant factor in this matter. I have no reason to doubt the veracity of the petition signed by 38 of 45 warehouse employees raising their objection to meetings or discussions taking place in the meal room during their meal breaks.
[45] Considering all of the circumstances in this matter and balancing the interests of all parties I find the request by DHL to allocate the rooms of their choosing to be a reasonable request pursuant to s.492(1) and that the allocated rooms are fit for purpose.
[46] I decline to issue the orders sought.
COMMISSIONER
Appearances:
O Fagir for the Transport Workers’ Union of Australia
J Corlett, Shanahan Tudhope Lawyers for DHL Supply Chain (Australia) Pty Ltd
Hearing details:
2010.
Sydney:
November 22, December 13 and 14 (inspections on-site).
Final written submissions:
2011:
17 February
1 TWU v DHL Exel Supply Chain (Australia) Pty Ltd [2008] FMCA 604; TWU v DHL Exel Supply Chain (Australia) Pty Ltd (No.2) [2008] FMCA 920.
2 Exhibit F1, PN7-15.
3 Exhibit C1, PN54.
4 Ibid., PN55.
5 Statement of Lester Denetto, PN7.
6 Statement of Patricia Talbot, PN4.
7 [2011] FWAFB 20 PN 32-35.
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