United Workers' Union v CSL Limited

[2021] FWC 4985

[2021] FWC 4985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Workers’ Union
v
CSL Limited
(C2021/1941)

COMMISSIONER O’NEILL MELBOURNE, 18 AUGUST 2021

Application under dispute resolution procedure in enterprise agreement – claim relating to meetings of union members and delegates in paid time – right of entry – unlawful terms - dispute determined.

[1] The United Workers Union (UWU) disagrees with CSL Limited about the operation of clause 12 of the CSL Agreement 2018. 1 The UWU applied to the Fair Work Commission to deal with the dispute and it was common ground that the Commission was empowered to arbitrate the dispute.

[2] I granted permission for CSL to be legally represented at the hearing, being satisfied in relation to ss.596(2)(a) and (c) of the Fair Work Act 2009 (Cth)(the Act), and that it was appropriate to do so.

[3] As the parties were unable to agree on the questions to be determined, I adopted questions that address the substance of the dispute between the parties. The questions and my findings are:

1. Did CSL act unreasonably in refusing the United Workers Union’s request on 9 February 2021, for a paid time members’ meeting at which Union delegates and officials may be present, on the ground that a union official would be present, pursuant to clause 12.3.5(b) of the CSL Agreement 2018?

Answer: No

2. Did the Employer act inconsistently with its obligations under clause 12.3.5(b) when it refused to allow a Union Official to be present at a regular, onsite paid time delegates meeting on 1 March 2021?

Answer: No

[4] My reasons are set out below.

The dispute

[5] The dispute centres on subclause 12.3.5(b) of the Agreement which provides:

“12.3.5 Facilities

(a) …

(b) Delegates will be entitled to attend regular, onsite paid time delegate meetings and at which a Union Official may be present. CSL will not unreasonably refuse paid time members meetings on an irregular basis at which Delegates and Officials may be present. The scheduling of such meetings will be discussed and agreed prior to their occurrence.”

[6] There are no significant factual disputes between the parties. Mr Fridell, Senior Manager, Workplace Relations and HR Business Partner for CSL, was the only witness and his evidence was unchallenged by the UWU.

[7] On 9 February 2021, Mr Tarek Seouid, an official of the UWU, emailed Mr Fridell stating that he wanted to organise paid meetings with union members for the purpose of consulting with them with regards to major change on the site and to conduct union delegate elections. Mr Seouid also stated his intention to attend an onsite meeting of union delegates which was to occur on 1 March 2021.

[8] Mr Fridell spoke to Mr Seouid later that day to discuss his request. Mr Fridell talked to him about the way that member and delegate meetings had been arranged in the past when a union official wanted to attend on site, as this was the first time that Mr Seouid had made such a request. Mr Fridell told him that if he wanted to attend the site to hold discussions with members or delegates, he would have to follow the right of entry process under the Act. This was consistent with how he had dealt with requests from previous UWU organisers.

[9] As Mr Fridell considered that Mr Seouid’s request was, in fact, an intention to exercise right of entry under the Act, and not a request based on an entitlement to attend the premises conferred by subclause 12.3.5(b) of the Agreement, Mr Fridell took steps to identify potential meeting times in meal breaks.

[10] Mr Fridell responded in writing to Mr Seouid on 16 February 2021 in which he put forward dates and times for the proposed meetings of members. The dates and times for members working in the warehouse and in the Privigen Bulk part of CSL’s business were in unpaid lunch breaks, and for members working in the Toll Bulk area included 15 minutes of paid time.

[11] Mr Fridell had attempted to identify times that would either fall within paid breaks or breaks where CSL would be able to make the greatest number of union members available to attend the meeting. In relation to the planned union delegate meeting on 1 March 2021, Mr Fridell stated that Mr Seouid would need to follow the usual right of entry process, and that he would only be entitled to meet with the delegates during their meal breaks.

[12] Mr Seouid emailed Mr Fridell again on 18 February 2021 requesting that the member meetings take place during paid time pursuant to subclause 12.3.5(b) of the Agreement, noting that members’ meetings in paid time had not been scheduled to occur for well over a year.

[13] On 22 February 2021, Mr Fridell responded to Mr Seouid’s email, stating:

“Re paid meetings of members, clause 12.3.5(b) is not relevant as it only applies to meetings of delegates. CSL has done and will continue to work with the UWU on finding appropriate time and space for organisers to meet with members, but such meetings are subject to the right of entry provisions outlined in Part 3-4 of the Fair Work Act 2009 (the Act) and specifically per s490 of the Act that provides that meetings are to be held during meal times or other breaks. CSL has consistently applied this approach and has acted reasonably in its application.

CSL will provide delegates paid time to attend irregular, onsite meetings in accordance with 12.3.5(b). However, this clause cannot be read in a way that is inconsistent Part 3-4 of the Act. To do so would render the clause an unlawful term (s194(f)) and of no effect (s253). As such, this clause does not provide a right for an organiser to hold paid time, on site meetings with members or delegates. However, an alternative might be that delegates may hold such meeting during paid time (once discussed and agreed with CSL) at which the organiser might attend virtually (via Phone, Teams or Zoom for e.g.).”

[14] On 10 May 2021, Mr Fridell called Mr Seouid and asked him whether he “wanted to attend on site at Broadmeadows in order to hold discussions with members and delegates”. He used these specific words so that he was absolutely clear about the nature of Mr Seouid’s request for meetings. Mr Seouid replied, “yes, that’s right”.

Unlawful terms about right of entry in enterprise agreements

[15] Section 194 of the Act provides that a term of an enterprise agreement is an unlawful term if it is:

“Meaning of an unlawful term

…

(f) a term that provides for an entitlement:

(i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or

(ii) to enter premises to hold discussions of a kind referred to in section 484;

other than in accordance with Part 3-4 (which deals with right of entry). 2

[16] To the extent that a term is an unlawful term, it has no effect. 3 The Commission, when dealing with applications for approval of an enterprise agreement, must be satisfied that an agreement does not include any unlawful terms.4
[17] Part 3-4 of the Act confers entitlements in specified circumstances for holders of a right of entry permit to enter an employer’s premises. These include s.481 which provides for entry for the purpose of investigating suspected contraventions of the Act or an industrial instrument, in some cases. Section 484 provides for entry for the purpose of holding discussions and reads:

“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.”

[18] Entry under s.484 of the Act is subject to various conditions. Most relevantly, a right of entry for the purposes of holding discussions with employees can only be exercised during working hours, discussions can be held only during mealtimes or other breaks and must be on a day specified in the entry notice. 5

[19] Section 484 does not define the nature, form or subject matter of discussions that are permitted to be engaged in when relying on s.484 to enter an employer’s premises. Rather, it confines who the permit holder can hold discussions with.

[20] The issue of whether clauses dealing with right of entry in enterprise agreements are unlawful terms has been considered in several decisions of the Commission and the Federal Court of Australia.

[21] In Re Australian Industry Group (‘Dunlop Foams’) 6 a Full Bench of Fair Work Australia quashed the approval of an enterprise agreement, after finding that clause 44 in the agreement was an unlawful term within s.194(f) of the Act. The impugned term read:

“44 Right of Entry

An authorised NUW representative is entitled to enter at all reasonable times upon premises and to interview any employee, but not so as to interfere unreasonably with the Employer’s business.”

[22] The Full Bench determined that an unlawful term within the meaning of s.194(f) must have three elements:

“The agreement term must provide for an entitlement, the entitlement must be to enter premises for a purpose referred to in s.481 or to hold discussions of a kind in s.484 and the term must purport to permit entry other than in accordance with Part 3-4.” 7

[23] The Full Bench in Dunlop Foams concluded:

“We have no doubt that cl.44 provides for an entitlement. Subject to compliance with the prescribed conditions an authorised NUW representative may enter the premises at any time. Provided the conditions are complied with there is nothing that Dunlop Foams can do to prevent or restrict entry. It is also clear that the entitlement, being unrestricted by reference to purpose, includes entry for the purpose referred to in s.481, namely investigation of suspected contraventions. Equally the entitlement extends to the holding of discussions with employees, the matter dealt with in s.484. Finally, it is clear that cl.44 is not limited in its operation by reference to the provisions of Part 3-4. As we have seen, those provisions establish a regime of regulation of entry to premises based on the requirement to obtain a permit and to observe a number of procedures and rules.” 8

[24] Other decisions have found that various clauses dealing with right of entry are not unlawful terms.

[25] The Full Bench in CFMEU v Moyle Bendale Timber Pty Ltd (‘Moyle Bendale’) 9 upheld an appeal against a decision refusing to approve an agreement on the basis that it contained an unlawful term. The relevant clause was 7.12, headed ‘Access to the Workplace’ and read:

“An official of the CFMEU-FFPD may have access to the Employer’s premises, at any time, for the following purposes connected to this Agreement:

•  To represent employees under any term of this agreement which creates a right to representation;

•  To deal with disputes and represent employees under the dispute resolution procedure set out in this agreement;

•  To represent employees and meet with the Employer about the negotiation of a replacement agreement;

•  To attend induction meetings for new employees of the company;

•  For any other purpose connected to the relationship between the Union and the employer.

Officials will not unduly hinder the productivity of the workplace. The union can, by agreement, hold paid meetings of union members for the purposes associated with this agreement identified above. Management will not unreasonably withhold agreement to paid meetings of union members.

However, nothing in this clause provides an official of the Union with a right to enter premises for a purpose which is within Part 3-4 of the Fair Work Act 2009.”

[26] The Full Bench accepted the appellant’s construction of s.194(f), namely:

“The preferred construction of section 194(f) and the Act’s scheme concerning terms in enterprise agreements about right of entry is as follows:

(a) Part 3-4 does not create an exclusive code governing the rights of officers to enter the employer’s premises.

(b) Enterprise agreements may include terms granting additional entitlements to officers to enter the employer’s premises, so long as the terms granting those additional right of entry entitlements is not an unlawful term under section 194(f).

(c) A term is only an unlawful term under section 194(f) if it grants an entitlement to enter premises for the purposes referred to in sections 481 or 484 of the Act other than in accordance with Part 3-4.

(d) It follows from points (a), (b) and (c) that a term is not an unlawful term under section 194(f) if it grants a right of entry for a purpose not specified in sections 481 or 484 of the Act.”

[27] The Full Bench concluded that the effect of the final sentence in clause 7.12 was that the purposes for which right of entry to premises under that clause could be exercised did not include the purposes in Part 3-4 of the Act. It confined the operation of the clause to providing a right of entry to premises for purposes other than the kind which are set out in ss.481 and 484 of the Act. 10 Accordingly, the clause was not an unlawful term.

[28] In Australian Industry Group v Fair Work Australia (‘AiG’)¹¹ a Full Court considered whether a subclause in a dispute resolution clause provided a right of entry in a manner inconsistent with Part 3-4 of the Act. A Full Bench of the Commission had dismissed an appeal against the approval of the agreement on grounds including that subclause 15.2(k) was an unlawful term. The Full Court dismissed an application for judicial review of the Full Bench decision. The relevant impugned subclause provided:

“(k) An Employee Representative or an official of the ETU shall be allowed to enter the workplace (excluding residential premises) to assist with representing an employee(s) under the dispute resolution clause in this Agreement provided that:

(i) prior to seeking entry:

(A) a dispute has been submitted to [ADJ] in accordance with clause 15.2(a) notifying [ADJ] of the nature of the dispute (as far as practicable) and which employees are affected (as far as practicable);

(B) a person involved in the dispute has sought the assistance of the representative (or official); and

(C) the parties have discussed mutually convenient arrangements for the entry, having regard to the operational requirements of the workplace;

(ii) the entry must not be used for any other purpose; and

(iii) the representative must not intentionally hinder or obstruct any person, or otherwise act in an inappropriate manner (which does not include actions involved in assisting the relevant employees in respect of the dispute), during the attendance or entry (or the representative has previously been found by FWA or the Disputes Board to have so acted in respect of that dispute).”

[29] In rejecting an argument that clause 15.2(k) was an unlawful term because the true purpose was to investigate a suspected contravention or for holding discussions with employees, the Full Court said:

“[82] First, the words of s.194(f) of the FW Act envisage that there can be terms relating to entry onto an employer’s premises other than in circumstances which would give rise to the description under s194(f). It therefore clearly contemplates the possibility of entry for other purposes or for other kinds of discussions. Lest there be any doubt about that, as the majority of the Full Bench noted (at [57]), the Explanatory Memorandum to the Fair Work Bill 2008 makes clear that this is so providing:

838. It is intended that agreements can include terms allowing for union officials to enter [ADJ’s] premises for purposes other than those set out in paragraphs 194(f) and (g).

An agreement might, for example, provide an entitlement to enter [ADJ’s] premises for a range of reasons connected to the terms of the agreement, such as:

•  to assist with representing an employee under a term dealing with the resolution of disputes or consultation over workplace change; or

•  to attend induction meetings of new employees; or

•  to meet with [ADJ] when bargaining for a replacement to the current agreement.

[83] The Parliamentary intention was therefore that agreements can include terms allowing for union officials to enter ADJ’s premises for purposes other than those set out in s194(f) and (g). An agreement might, for example, provide an entitlement to enter ADJ’s premises for a range of reasons connected with terms of the Agreement, such as those cited in the Explanatory Memorandum above.

[84] The first point in the Explanatory Memorandum is entirely consistent with cl.15.2(k). The clause specified a purpose other than that contained in s481. It is not for the purpose of investigating suspected contraventions. The purpose is to represent an employee in a particular process under the Agreement. Similarly, in relation to s194(f)(ii), it operates by reference to the kind of discussions to be held, specifying a purpose other than that in s484. The contention for AiG that entry under the clause “must be” for the purpose of actually investigating a suspected contravention is without merit. A dispute under the clause does not necessarily involve a contravention. Equally, it does not follow that the union official’s discussions are of a kind envisaged by s484. The purpose of the official is “to assist with representing”.

[30] In short, a term in an agreement that provides for entry of union officials may not be an unlawful one if the purpose of the entry is other than to hold discussions within the meaning of s.484 of the Act.

Consideration

[31] As noted above, the Full Bench in Dunlop Foams held that a term in an agreement relating to right of entry would be unlawful where:

•  the agreement term provides for an entitlement;

•  the entitlement is to enter premises for a purpose referred to in s.481 or to hold discussions of a kind in s.484; and

•  the term purports to permit entry other than in accordance with Part 3-4.

[32] In Dunlop Foams, the clause in question was entirely unconstrained, the clause itself being headed ‘Right of Entry’ and dealing exclusively with the right of union officials to enter the employer’s premises and to interview any employees. The entire clause was found to be an unlawful term, and of no effect.

[33] The textual context of clause 12.3.5 of the CSL Agreement is different. It is found in Part 12 of the Agreement, titled ‘Union dues, Training Leave and Role of Delegates’. The remainder of the clause deals with the deduction of union dues, paid leave for delegates and other employees to attend certain union-related training events, other rights of employees appointed as delegates, and permitting of union notice boards to facilitate communication between employees and their representatives.

[34] Subclause 12.3.5(b) is primarily a right to have delegates meetings and members meetings in paid time, in a clause dealing with union related rights and obligations. The delegates meetings can be regular and held on site. The union members’ meetings are not an absolute right. Rather, CSL is required to not unreasonably refuse meetings of members on an irregular basis. The clause is silent on whether the meetings must be held on site. The scheduling of both delegates and members meetings needs to be discussed and agreed in advance. The clause specifies that a union official may be present at the delegate meetings and delegates and officials may be present at the member meetings. The right of union officials to be present at the meetings is incidental to rather than being the purpose of the clause.

[35] Neither party contends that clause 12.3.5 is an unlawful term within the meaning of s.194(f). For the UWU, this is primarily because the right of entry conferred by the clause is not for a purpose within s.484. For CSL, it’s because the term can be read in a way that preserves its lawful operation. That is, the clause can operate consistently with the right of entry provisions for example, by reading the clause as not requiring the attendance of an official on all occasions, or by a union official attending on a remote basis (e.g as suggested by Mr Fridell on 22 February 2021).

[36] In assessing subclause 12.3.5(b) against the criteria in Dunlop Foams, it is clear (and both the UWU and CSL agree) that the clause purports to confer an entitlement upon a union official to enter CSL’s premises to be present at meetings of members and delegates respectively. The clause does not specify that entry must be in accordance with Part 3-4, for example it does not confine entries to (among other things) meal and other break times.

[37] The key question is whether the term provides for an entitlement to enter premises for the purpose of holding discussions of a kind provided in s.484.

[38] Unlike the examples in the Explanatory Memorandum and the clause considered in AiG, the right for a union official to attend a member or delegate meeting conferred by subclause 12.3.5(b) is not confined to any particular purpose of the meeting. Whilst in those instances the right of entry conferred enabled discussions, the purpose of the entry was specified and confined to attending induction meetings, representing an employee in a particular process, etc. The discussions permitted are incidental to a specified purpose, they are not the purpose of the entry to the employer’s premises.

[39] Counsel for CSL made much of the call Mr Fridell made to Mr Seouid on 10 May 2021 set out at paragraph 14, as amounting to a concession that the entry was for the purposes of discussions within s.484. It may be that Mr Seouid was simply expressing in short form his earlier written requests to attend the member meetings for the purposes of consulting over major change and conducting union delegate elections rather than conveying he had a different and broader purpose for attending the meetings. However, in my view, little turns on this.

[40] The UWU contends that the subclause, assessed objectively and having regard to its context and purpose, does not confer an entitlement upon a union official to enter CSL’s premises for the purpose of holding discussions of a kind in s.484 of the Act. Rather, the clause confers an entitlement to attend and be present at meetings, and that ‘being present’ at a meeting is an entitlement of a fundamentally different character to that of ‘holding discussions’. The UWU submits that is so, even if the purpose of the meeting of members or delegates is to have discussions. Put simply, the clause does not confer a right of entry for the purpose of holding discussions, but for the purpose of attending a meeting. The consequence of this difference is said to be that the right of entry conferred is different in nature and does not satisfy the second limb in Dunlop Foams. Rather, it is an instance of the additional right of entry that can be included in agreements such as in the AiG decision and the examples in the Explanatory Memorandum.

[41] The UWU relies on there being a distinction between ‘meetings’ and ‘discussions’ and refers to the decision of the Industrial Commission of New South Wales in Re Steel Works Employees (BHP) No. 1 (‘Steel Work Employees’) as confirming this. 12 In that case, a claim for a new entitlement for employees to be permitted to hold meetings on the employer’s premises to be included in the award was refused. The Industrial Commission made observations that pointed to a distinction between a meeting and a discussion, including that:

“While in some cases the line between a meeting and a discussion may be thin, if all facts about a particular gathering were known, it would not be difficult as a rule to say whether what had occurred was or was not a meeting”.

[42] In Re AMIEU v Thomas Borthwick and Sons¹³his Honour Justice Gray considered whether a right of entry to ‘interview’ employees could be refused on the ground that what was intended was the holding of a ‘meeting’. His Honour considered the attempt to distinguish between a ‘meeting’ and an ‘interview’ which may have arisen from the Steel Works Employees casewas not helpful, and that the terms were not mutually exclusive. The real question before Gray J was whether what the official sought to do no longer amounted to an interview and found that it did not.

[43] In a similar way I consider that ‘meetings’ and ‘discussions’ are not mutually exclusive. In some instances they mean quite different activities and in others they are used interchangeably and are synonymous. Not all discussions occur in meetings, and not all meetings involve discussions. A meeting in the nature of a report back, for example, may not constitute holding discussions under s.484. Nor might a meeting to hold the election of delegates. Indeed, even in the Steel Works Employees case, the evidence before the Industrial Commission was that the meetings that were being claimed were already occurring, with the unions calling them ‘meetings’ and the companies calling them ‘discussions’.¹⁴ However, that is not the end of the matter. The question I need to consider is whether the right of entry conferred by subclause 12.3.5(b) encompasses entry for the purposes of holding discussions within the meaning of s.484. If it does, to that extent, it may be an unlawful term within the meaning of s.194(f).

[44] CSL submitted that there is no substantive distinction between the natural meaning of ‘meeting’ or ‘be present’ in subclause 12.3.5(b) and ‘hold discussions’ in s.484. Counsel for CSL pointed to the definition of ‘meeting’ in the Macquarie Dictionary namely ‘an assembling of persons for some purpose’ and contends that attending a meeting is not a purpose but a forum in which discussions (and other things) are held. CSL further contends that the reference to ‘meetings’ in clause 12.3.5 is directly analogous to the reference to ‘interviews’ in clause 44 in the Dunlop Foams case. I agree and consider that the distinction between attending a meeting and holding discussions with employees, is largely semantic in the present context.

[45] The artificiality of a distinction between discussions in the context of attending a meeting and holding discussions under s.484 is illustrated by an example provided by counsel for CSL. If such a clear distinction existed, an employer could potentially refuse to allow a permit holder to exercise a right of entry under Part 3-4 of the Act on the basis that it involved holding a meeting and not holding discussions with employees as permitted by s.484.

[46] It may be the case that the particular request made by Mr Seouid to exercise rights under subclause 12.3.5(b) on 9 February 2021, was not for the purpose of holding discussions of the kind provided in s.484. At least part of the stated purpose of the meeting was to engage in consultation concerning major change at the site and to conduct an election for union delegates. The UWU submitted that the purpose of the particular meeting may go to the unreasonableness of CSL’s refusal to agree to the scheduling of such a meeting. However, that is not the test. The question is whether the term confers entry within the scope of that provided by s.484. Further, as CSL pointed out, this was not what was put by the UWU, and would require a substantial reading down of the provision. It would also create practical difficulties, such as requiring some scrutiny or validation that the discussions were confined to their lawful purpose.

[47] I do not consider that support for the UWU’s contentions is found in other authorities referred to by the parties. The relevant clause in NUW v United Steel¹⁵ related to paid time meetings. It did not provide an entitlement to a right of entry and does not support the UWU’s interpretation of the clause.

[48] In my view, subclause 12.3.5(b) does encompass a right of entry for the purposes of holding discussions within the meaning of s.484 of the Act. The nature of the meetings of members and delegates is not confined by purpose and extends to entry for the purpose of holding discussions with employees dealt with in s.484. It contains no exclusion, or carve out, similar to that in the Moyle Bendale case of such a purpose.

[49] However, subclause 12.3.5(b) can be construed in a way that preserves its lawful operation. Such a construction is to be preferred. The subclause permits union officials to be present at meetings of members and delegates, provided that the relevant officials comply with the requirements under Part 3-4.

[50] In this dispute there was no suggestion that these requirements had been, or would be, complied with. Rather, the UWU asserted that it had a discrete right to enter CSL’s premises conferred by the Agreement and was not obliged to comply with the requirements of right of entry in the Act.

[51] In these circumstances and for these reasons, the answer to both questions being determined is ‘no’.

COMMISSIONER

Appearances:

S Ananth for the Applicant.
A Pollock of Counsel for the Respondent.

Hearing details:

2021.
Melbourne (by video):
June 29.

Final written submissions:

Applicant, 22 June 2021
Respondent, 8 July 2021

Printed by authority of the Commonwealth Government Printer

<PR732782>

 1   AE501686

 2   Fair Work Act 2009 (Cth), s.194(f)

 3   Ibid at s.253

 4   Ibid at s.186(4)

 5   Ibid at s.490

 6   [2010] FWAFB 4337

 7   Ibid at [34]

 8   Ibid at [35]

 9   [2011] FWAFB 6761

 10   Ibid at [22] and [25]

11 [2012] FCAFC 108

 12  (1962) AR (NSW) 334

13 [1991] FCA 479; 39 IR 379

14 (1962) AR (NSW) 334, 366

¹⁵ [2019] FWC 5900