United Workers' Union v Woolworths Group Limited T/A Primary Connect
[2023] FWC 602
•7 JULY 2023
| [2023] FWC 602 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
United Workers' Union
v
Woolworths Group Limited T/A Primary Connect
(RE2022/1270)
| DEPUTY PRESIDENT BINET | PERTH, 7 JULY 2023 |
Alleged dispute concerning s 491 of the Act, and whether Woolworth Group Limited (the Respondent) has made a reasonable request, which hinders permit holders of the Applicant who are exercising right of entry at Woolworths PRDC
The United Workers Union (UWU) has made an application (Application) to the Fair Work Commission (FWC) pursuant to section 505 of the Fair Work Act 2009 (FW Act). The Application seeks that the FWC deal with a dispute about limitations on the location at which UWU permit holders can hold discussions with employees of Woolworths Group Limited trading as Primary Connect (Woolworths) employed at a premise occupied by Woolworths called the Woolworths Perth Regional Distribution Centre (PRDC).
On 10 November 2023, Woolworths filed a response to the Application opposing the Application.
The dispute concerns whether:
a.Woolworth’s can restrict the location in which UWU permit holders can hold discussions with members to a defined area within the employee canteen at the PRDC when those permit holders are exercising a right of entry pursuant to section 484 of the FW Act.
b.UWU is bound by the right of entry arrangements agreed between the parties in a settlement agreement reached between the parties on 18 January 2022 with respect to RE2021/1342 (Agreed Outcome).
On 14 November 2022 the parties participated in a conciliation, but the issues in dispute could not be resolved.
Directions for the filing of materials in advance of a hearing were issued to the parties on 9 December 2022 and Amended Directions were issued on 12 December 2022 (Directions). The Application was listed for hearing in Perth on 15 March 2023 (Hearing).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]
Both parties sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing, the UWU was represented by Ms Mary McCarthy, a Lawyer employed by the UWU (Ms McCarthy) and Woolworths was represented by Ms Heather Millar of Counsel (Ms Millar).
Evidence
The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
In accordance with the Directions, the UWU filed a witness statement setting out the evidence in chief of its witness Ms Louise Dillon (Ms Dillon).[2] Ms Dillon is a co-ordinator employed by UWU responsible for co-ordinating the activities of the UWU permits holders in respect to the PRDC.
At the Hearing Ms Dillion gave further oral evidence and was cross examined by Ms Millar.
In accordance with the Directions, Woolworths filed witness statements setting out the evidence in chief of:
a.Ms Chantelle France-Brotherton (Ms France-Brotherton)[3]; and
b.Mr Mark Lewis (Mr Lewis)[4].
Ms France-Brotherton is employed as the People Lead for Western Australia, South Australia and the Northern Territory. As People Lead she has carriage over the management of onsite workplace and industrial issues at the PRDC.[5]
Mr Lewis is the Operations Manager at the PRDC. As Operations Manager, he manages Employees at the PRDC including Employee safety and has joint responsibility for facilitating and monitoring visitor entries with the PRDC Facilities Manager, Darryn Peck.[6]
Both of the Woolworth witnesses gave further oral evidence at the Hearing and were cross examined by Ms McCarthy.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit 1.
The following exhibits were also admitted at the Hearing:
a.CCTV Footage of the PRDC Lunch Area Balcony at 11.05am on 14 December 2023 (Exhibit 2).
In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
UWU is a registered organisation, within the meaning of the Fair Work (Registered Organisations) Act 2009 (Cth) and section 12 of the FW Act. UWU is the employer of Ms Louise Dillon, Ms Mwaba Mwaba (Ms Mwaba), Ms Lydia Berhan (Ms Berhan), Mr Rhys James (Mr James), Mr Darren Roberts (Mr Roberts) and Mr Michael Power (Mr Power). At all times relevant to this Application, UWU’s officials held right of entry permits issued in accordance with the FW Act (Permit Holders).[7]
Woolworths is a national system employer, within the meaning of section 14 of the FW Act.[8]
The premise in question is the Woolworths Perth Regional Distribution Centre located at 20-60 Colquhoun Road, Perth Airport, Western Australia.
Woolworths employs approximately 600 employees at the PRDC. The Shop, Distributive and Allied Employees Association (SDA) and UWU both have members at the PRDC.[9]
The PRDC is Woolworths' primary distribution centre, from which Woolworths distributes goods to its supermarkets throughout Western Australia. This includes ambient goods, fresh food, dairy products, and other chilled goods. Staff employed at the PRDC are involved in the receiving, picking, despatch of goods and stock maintenance.[10]
The PRDC operates seven days per week. The average shift duration is 9 hours although a number of employees work 10 hour shifts. Approximately 450 Employees work an early shift starting from 5:00am and approximately 300 Employees work an afternoon shift ending at 11:00pm. Employees at the PRDC carry out their work in a range of environmental conditions and often spend the majority of their shifts working in the chilled sections of the PRDC are kept between 1-2 degrees celsius. The work performed is mostly physical such as the loading and unloading of goods from delivery trucks, order picking, inventory maintenance and clearing. Employees are not permitted to use their phones in their work areas.[11]
Employees at the PRDC typically have only three rest breaks per shift. For example, day shift Employees have one 15 minute morning break and one 30 minute lunch break and one ten minute afternoon break.[12]
Given that PRDC employees carry out shift work in difficult environmental conditions and that their duties involve manual work and machinery operation Woolworths has implemented a comprehensive Fitness for Work and Health and Well Being Procedure. To ensure that all employees can effectively use their rest breaks in the manner which best suits the individual needs of Employees, Woolworths has placed restrictions on visitors' access to the PRDC canteen. These restrictions apply to all unions visiting the PRDC canteen as well as other visitors such as representatives from employee superannuation funds. In addition, Woolworths restricts its own engagement activities such as celebrations, prize draws and health and safety representative voting to a specific portion of the canteen. This allows Employees who wish to take their breaks undisturbed to do so or who wish to be able to telephone family or friends to do so. [13]
The parties agree that prior to October 2021, Woolworths had arrangements in place which allowed visitors, including representatives of the SDA and UWU, to hold discussions with Woolworths employees in a designated area in the employee canteen at the main access point of the canteen. This arrangement allowed those employees who did not wish to engage in discussions the ability to retire to a part of the canteen where they would be able to take a break undisturbed (Previous Arrangements). According to Mr Lewis, these arrangements had been in place since 2017. The Previous Arrangements were put in place after Woolworths received a series of complaints from Employees about being disturbed by union officials during their rest breaks.[14]
Ms Dillon says that she first exercised a right of entry to the PRDC on 12 May 2020. She says she does not recall any restriction being placed on the movement of Permit Holders around the canteen. Ms Dillion says that the first time she or one of her team of Permit Holders was removed from the Canteen was on 23 September 2021.[15]
On 23 September 2021 Ms Dillon, Ms Mwaba, Ms Payman and Mr Mandala arrived at the PRDC at around 9:50am and signed in through 'Sine' the tablet check in system used by Woolworths. The check-in system has a questionnaire that requires answers from visitors about PRDC safety requirements and also tells visitors about those requirements. Ms Dillon and her colleagues were escorted to the canteen by Mr Lewis. At around 11:30am Mr Lewis approached Ms Dillon and instructed her that she and her colleagues must stay in a designated area in the canteen at the main access point to the canteen so that employees who wished to do so could eat their meals without disruption. Mr Lewis offered Ms Dillon access to a room to hold private conversations. Ms Dillon ultimately refused to comply with the request to remain within the designated area and was escorted off site.[16]
On 6 October 2021, Ms Mwaba was again removed from the canteen when she was observed approaching employees outside of the designated area and refused to agree to remain within the designated area.[17]
On 8 October 2021, UWU raised an objection in writing to the Previous Arrangements arguing that it’s permit holders should not be constrained to holding discussions in a designated area in the canteen and should be able to approach employees anywhere in the canteen.[18]
Woolworths replied that all employees pass through the designated area and that it wished for the arrangements to stay in place for the safety and wellbeing of visitors and employees because it allowed employees who did not wish to have discussions to retire to a location further in the canteen. Woolworths explained that it had received reports from employees who felt pressured into having conversations with UWU delegates despite indicating they did not wish to do so. Woolworths noted that the area allocated to the UWU delegates was passed through by everyone entering the lunch room and provided space for employees to eat their meal if they so wished.[19]
On 30 November 2021, Ms Mwaba and Ms Berhan exercised a right of entry. Ms France-Brotherton says that in response to complaints from Employees that Ms Mwaba and Ms Berhan were disturbing their breaks she approached Ms Mwaba and Ms Berhan and requested that they remain within the designated area. Ms France-Brotherton says that they loudly and aggressively refused and she therefore requested that they leave the PRDC on the grounds that they were moving out of the designated area, disturbing team members' breaks and refusing to comply with directions by Woolworth to return to the designated area.[20]
Both Ms France-Brotherton and Mr Lewis confirm that Woolworths does not monitor union interactions during right of entry visits at the PRDC. Both say that the only occasions in which Woolworths intervened in right of entry visits was when it received complaints from employees about UWU Permit Holders being active outside the designated area.[21]
On 6 December 2021 UWU made an application (RE2021/1342) pursuant to section 505 of the FW Act for the FWC to deal with the dispute. I held a conciliation conference on 20 December 2021 and after settlement discussions RE2021/1342 the application was discontinued by UWU when the parties reached an agreed outcome (Agreed Outcome). [22]
The Agreed Outcome was that UWU would hold future discussions, display signage and distribute materials only within in a designated area in the canteen marked on a map of the canteen provided to UWU in the course of the settlement discussions (Designated Area). The Designated Area was larger, further inside the canteen, immediately opposite the kitchen area, on route to the external patio and out of line of sight of the Woolworths management offices.[23]
The location was selected to:[24]
a.address concerns by UWU that employees would not return to the previously designated area after eating their lunch and that employees might feel intimated given that Woolworths management personnel had a line of sight from their offices to the previously designated area.
b.address concerns by Woolworths of the risk of conflictual interactions between UWU permit holders, SDA permit holders and/or employees who did not wish to hold discussions and that employees may not be able to have proper rest breaks if disturbed during rest breaks when they did not wish to be disturbed.
The parties agreed that the Agreed Outcome would be trialled for a period of time. On 18 January 2022 UWU writing to Woolworths as follows:
“In response to the Company's proposal below. The UWU:
-is agreeable to trialling the new proposed visiting area for a period of 8 weeks;
-will provide any feedback to the Company on the proposed visiting area before or just after the end of the trial period;
-agrees to discontinue the ongoing dispute before DP Binet; and
-reserves all its rights in relation to this matter.”
Following the commencement of the trial UWU Permit Holders exercised a right of entry on two occasions. On 21 February 2022 UWU confirmed its agreement to the Agreed Outcome being implemented on an ongoing basis.[25]
Woolworths invited the SDA to choose a different location for its right of entry visits however the SDA confirmed that it was happy to continue to limit the exercise of its right of entry visits to the original designated area.[26]
From February 2022, UWU permit-holders who have issued a valid entry notice have on each occasion been granted access to the PRDC canteen under the arrangements provided by the Agreed Outcome. UWU permit holders exercised right of entry on:[27]
a.16 & 17 August 2022;
b.3,6, 7,8, 11, 12, 13, 14, 16, 18, 19, 20 and 26 October 2022;
c.2, 3, 4, 8, 9, 10, 11 & 17 November 2022; and
d.14 December 2022.
On each occasion the Permit Holders entered the PRDC the entry notices satisfied the requirements of section 518 of the FW Act. On each occasion the Permit Holders attended the front gate of the PRDC, completed a 'Sine' check-in that provides the site entry work health and safety requirements, and collected the name, address, email, phone number and person who they were to visit on the site. The Permit Holders were then escorted by Ms France-Brotherton or Mr Mark Lewis to the PRDC canteen.
Mr Lewis says that throughout the course of 2022 that Employees have complained to him about being disturbed by UWU Permit holders outside of the Designated Area.[28] He recalls in March, October and November 2022 directing UWU Permit Holders to return to the Designated Area after receiving complaints from Employees. These included complaints that the UWU Permit Holders were moving outside of the Designated Area to give leaflets and to speak to Employees who did not wish to engage with them.[29]
During the course of the 14 October 2022 right of entry, an Employee complained to Ms France-Brotherton about a UWU Permit Holder moving outside the Designated Area. Ms France-Brotherton says that the Employee’s complaint was to the effect that:[30]
“Can you just get these guys to stay in their area. I don't want to talk to them and I just want to have my break in peace.”
Ms France-Brotherton requested the UWU Permit Holders comply with the Agreed Outcome.[31]
Ms France-Brotherton says that further complaints about UWU operating outside the Designated Area was received by Woolworths in relation to the 17 October 2022 and 4 November 2022 UWU Permit Holder right of entry visits.[32]
During the 14 December 2022 right of entry visit which commenced at 10:30am, Ms France-Brotherton says that she observed UWU Permit Holders disturbing Employees outside the Designated Area during their Christmas Lunch. She says that when she raised this with Mr Power and asked that he remain in the Designated Area he declined to remain in the Designated Area and stated that the Permit Holders were only talking to Employees outside the area who wished to talk to them. Following Employee complaints, Ms France-Brotherton directed the Permit Holders to leave sometime after 2pm.[33]
Mr Lewis says that the following day he received 4-5 complaints directly from Employees and two via a Supervisor about the conduct of the UWU Permit Holders the previous day.[34]
Both Mr Lewis and Ms France-Brotherton both report that the cultural background of a proportion of the Employees means that they feel uncomfortable refusing to speak to the UWU Permit Holders and therefore raise their concerns with the business rather than the union.[35]
Woolworths did not remove permit holders from the PRDC for failing to stay in the Designated Area between 30 November 2021 until right of entry was exercised on 14 December 2022 when Mr Power, Mr Roberts and Mr James were escorted from the site at around 12:45pm after failing to hold discussions in the Designated Area, refusing to comply with directions from Woolworths to remain in the Designated Area and a subsequent direction to leave the canteen.[36]
Consideration
Woolworths wish to restrict the location at which discussions are held by UWU permit holders exercising a right of entry to the PRDC to the area agreed in the Agreed Outcomes (Defined Area). Woolworths submit that this is a reasonable request consistent with the occupational health and safety requirements which apply at the PRDC.
Section 484 of the FW Act provides that:
“s.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.”
Section 491 and 492 of the FW Act relevantly provide as follows:
“s.491 Occupational health and safety requirements
The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises.
Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).
s.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).”
Section 505 of the Act prescribes the powers of the FWC to deal with a dispute about the operation of Part 3-4 of the FW Act in which sections 491 and 492 appear, and is in the following terms:
“s.505 FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:
(a) whether a request under section 491, 492A or 499 is reasonable; or
(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).
Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.
Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.
Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.
Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.
(2) The FWC 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: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC 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, the FWC must take into account fairness between the parties concerned.
(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:
(a)whether a request under section 491, 492A or 499 is reasonable; or
(b)when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or
(c)whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or
(d)whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or
(e)whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”
UWU has standing to make the Application pursuant to section 505(3)(b)(ii) of the FW Act in its capacity as the Permit Holders’ organisation.
The nature and confines of the power conferred on the FWC by section 505 was given extensive consideration in Application/Notification by Austral Bricks (VIC) Pty Ltd[37]. There the FWC held that:
“[41] A dispute under s. 505 may be dealt with by arbitration, however the Commission has other means by which it may deal with such a dispute. The Commission may deal with the dispute by mediation or conciliation or by making a recommendation or expressing any opinion. If a dispute under s. 505 is dealt with by arbitration the Commission is empowered to make a range of orders, but relevantly in relation to a dispute concerning the operation of s. 492, it is not empowered to confer rights of the permit holder that are additional to, or inconsistent with, rights that are exercisable in accordance with Division 2 of Part 3 - 4. An exercise of arbitration powers under the Act does not involve the adjudication of existing legal rights as between the disputants. Rather the exercise of an arbitration power involves a determination of what rights there should be. The Commission does not exercise judicial power. A perusal of the kinds of the orders that may be made by the Commission which are specified in s. 505(2)(a)-(d) makes good this point, and the general power in s. 505(2)(e) to make any other order the Commission considers appropriate is to be understood as being so confined.
[42] An application to deal with a dispute about the location at which discussions with employees will be held brought under s. 505 is not an appropriate vehicle to seek a declaration of or resolution to a dispute about existing rights. Such matters must be determined elsewhere. True it is that in the course of dealing with such a dispute by arbitration a view may be expressed or formed, or a conclusion drawn, about the nature of existing rights, but not for the purposes of declaring or resolving those rights. This is done for the purposes of resolving the dispute by determining what future rights should be and then by crafting an appropriate order to give effect to those future rights. Any order that is made, must be carefully and clearly crafted, and must be certain in its operation because compliance with an order is mandated and a contravention of an order is actionable as a civil remedy provision.
[43] Unlike other disputes that might be brought under s. 505 which will likely involve disputes about whether something that was done was "reasonable", whether a thing or place was "reasonably available" or ·reasonably accessible", whether the provision of a thing would cause ·undue inconvenience", whether a request to provide a thing was made within a "reasonable period" or other objectively ascertainable concepts, such concepts do not expressly arise for determination in dispute about the application of s. 492. It seems to me therefore that in determining a dispute of this kind by arbitration and by the making of an order, such orders will necessarily involve regulating the conduct of the permit holder or the occupier or both, in the future in relation to determining the location and the conduct of discussions with the prescribed
class of employees. Such an order should be aimed at giving effect to the object of Part 3- 4, the apparent purpose of s. 492, including to encourage parties to reach agreement as to how entry by permit holders to workplaces is facilitated, and take into account fairness between the parties concerned in the dispute.”[38]
As the High Court explained in Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union Australia[39]:
“24. In our view the fact that the Commission is involved in making a determination of matters that could have been made by a court in the course of proceedings instituted under s.119 of the Act does not ipso facto mean that the Commission has usurped judicial power, for the purpose of inquiry and determination is necessarily different depending on whether the task is undertaken by the Commission or by a court. The purpose of the Commission's inquiry is to determine whether rights and obligations should be created. The purpose of a court's inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach.
25. The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.”[40]
The extent of the FWC’s arbitral power under section 505 of the FW Act is therefore limited to:
a.deciding whether rights and obligations should be created;
b.forming an opinion as to future rights and obligations of the parties; and
c.expressing value judgments, for instance in relation to the criteria of fairness and reasonableness.
Whether or not a given dispute seeks the exercise of judicial powers will necessarily require the FWC to examine the remedy sought and the matters in dispute between the parties. If the Commission believes that the issuing of orders requires the exercise of judicial powers, it may instead issue a recommendation or express an opinion under section 595 of the FW Act.[41]
The FW Act provides a statutory right to permit holders which operates as a burden on an occupier’s property rights. The FW Act is comprehensive in its prescription of obligations and rights of both permit holders and occupiers.
Where a permit holder exercises a lawful right of entry under section 484 of the FW Act to hold discussions these must occur in 'the rooms or areas of the premises' agreed with the occupier under sub section 492(1). Where agreement cannot be reached, sub section 492(2) provides that the permit holder may, under sub section 492(3), hold discussions in any room or area in which one or more of persons ordinarily take meals or other breaks provided by the occupier for that purpose.
It is not in dispute that the Permit Holders have:[42]
a.Exercised right of entry under section 484 of the FW Act to enter premises occupied by Woolworths to hold discussions.
b.On at least the following occasions (23 September 2021, 6 October 221, 30 November 2021, 8 October 2022, 13 October 2022 and 12 December 2022) Woolworths and UWU have been unable to agree on a location for those discussions.
c.The canteen is the area in which the PRDC workers ordinarily take meals or other breaks provided by Woolworths for that purpose.
Section 491 provides that permit holders are required to comply with reasonable requests by the occupier relating to an occupational health and safety requirement that applies to the premises under s 491. The Commission is authorised to deal with whether such a request is reasonable under sub-section 505(1).
Woolworths submit that the Agreed Outcome:
a.is not unreasonable and is within Woolworth's managerial prerogative;
b.took into account a reasonable request by Woolworths based on occupational health and safety concerns; and
c.is consistent with the limitation on permit holders' entitlement to enter premises for the purpose of holding discussions with employees who wish to participate in those discussions pursuant to s.484(c) of the FW Act.
Accordingly, Woolworths submits that the Agreed Outcome does not infringe on UWU’s right of entry entitlements under the FW Act and that UWU should not be permitted to depart from the Agreed Outcome.
UWU concede that it is possible to contemplate circumstances in which a request under section 491 might be reasonable and might restrict a permit holder's access such as during the recent pandemic when various emergency health measures were in place.[43] However, UWU say that the request made by Woolworths is neither reasonable nor does it relate to a genuine occupational health and safety requirement that applies to the premises.
UWU submit that reasons given to date, if any, for limiting permit holder access are vague and unsupported by evidence relating to health or safety. UWU assert that Woolworths applies its 'requirement' to limit permit holders to the defined area inconsistently and the 'requirement' is typically enforced on occasions where UWU holds discussions of a nature or in a context where Woolworths opposes the content or nature of those discussions.
UWU submit that any request or purported requirement whose sole or primary purpose is to hinder discussions with union officials should be viewed, by its nature, as being not reasonable.
Woolworths have identified sound occupational health and safety grounds for its request that UWU comply with the Agreed Outcome. The restrictions are part of an overall fatigue management system necessary and appropriate to the work conducted at the PRDC. Employees at the PRDC work 9-10 hour shifts performing manual work and operating machinery mostly in chilled work environments with limited and short formal breaks. It is trite to note that a failure to properly rest risks Employees being tired and inattentive during their shifts thereby heightening the risk of workplace incidents and injuries.
The restrictions imposed by Woolworths in accordance with its fatigue management system apply to all activities conducted in the canteen including in relation to the exercise of right of entry by other unions, by external service providers and significantly to Woolworths own staff engagement activities.
By applying the restrictions, the Employees have the opportunity in the short breaks available to them to recuperate in the manner most appropriate for each individual whether it is by socialising with colleagues, sitting alone or watching television. Additionally for Employees mental wellbeing it provides an opportunity not available during their work time to deal with personal or family issues by telephone, minimising the risk of incident or injury due to lack of focus.
The restrictions are also sensitive to the cultural diversity of Employees some of whom find assertiveness and confrontation stressful and whose capacity to work safely might be adversely impacted as a consequence of interactions of this kind during their limited respite from work.
The Agreed Outcome recognised and accommodated the interests of Woolworths, its employees and UWU. It was agreed after extensive discussions between the parties and a trial period of operation. It was implemented entirely on a consensual basis. Both its terms and the parties agreement to be bound by it were clearly articulated in writing.
These factors suggest that the Agreed Outcome was considered reasonable at the time by all the parties. UWU has not identified any changes in circumstances which would make what was once reasonable unreasonable.
UWU now say that the Agreed Outcome was not in fact an agreement and is irrelevant to these proceedings. UWU say this is supported by its correspondence on 18 January 2022 in which it responded to Woolworth’s proposal for the trial of the Designated Area in which it stated:
“In response to the Company's proposal below. The UWU:
-is agreeable to trialling the new proposed visiting area for a period of 8 weeks;
-will provide any feedback to the Company on the proposed visiting area before or just after the
end of the trial period;
-agrees to discontinue the ongoing dispute before DP Binet; and
-reserves all its rights in relation to this matter.”[44]
UWU also rely on correspondence to Chambers discontinuing RE2021/1342 in which it stated:
“I can advise that the parties have settled this dispute on the basis of:
-a new agreed location in the lunch room for UWU to conduct its right of entry visits;
-this new location to be trialled by UWU till COB 18 February 2022;
-at the end of the trial, the UWU will inform the Company whether the UWU will retain the new
location for its visits or revert to the old location; and
-if the UWU faces any issues regarding conditions on its right of entry visits following the trial,
the UWU reserves all rights to seek remedy in the appropriate forum if consultation with the
Company is unsuccessful.Attached is the Form 50- Notice of discontinuance for lodgement. The respondent has been copied into this email.
The UWU thanks the Deputy President for her assistance with resolving this dispute.”[45]
How the Agreed Outcome could be characterised as anything other than an agreement between the parties beggars belief and sits at odds with the repeated use by UWU of the word ‘agree’ in the correspondence relating to the Agreed Outcome.
The Agreed Outcome was reached between two industrially sophisticated parties. In developing the Agreed Outcome the parties both understood that the Agreed Outcome was not ‘cast in stone’ and that if circumstances changed it would be appropriate, and potentially necessary, to revisit the arrangement. For example, if the layout of the canteen was changed or the size of the Designated Area could not accommodate an increased number of Employees seeking to have discussions with the Union. However, there would have been no point in reaching and documenting the Agreed Outcome or discontinuing RE2021/1342 if the parties had no intention of being bound by the Agreed Outcome while circumstances remained unchanged.
Conciliation provides a flexible, fast and cost effective mechanism to resolve industrial disputes. It regularly produces innovative and/or pragmatic outcomes which could not be achieved by way of litigation. Departure from agreed outcomes in circumstances where no change has occurred since the outcome was agreed puts the opportunity of these valuable attributes of conciliated outcomes being available at risk as well as undermining the underlying trust necessary for a harmonious industrial relationship between the parties.
A lack of willingness by UWU to honour agreed outcomes for a reasonable period of time in circumstances unchanged since the agreement was reached is likely to jeopardise the beneficial outcomes its members might otherwise have available to them in disputes with Woolworths as well as other employers who become aware of the circumstances of this case.
At the very least the Agreed Outcome is evidence of what was considered reasonable at the time by all the parties and therefore relevant to determining what might be reasonable in the future. UWU has not identified any significant changes in circumstances which would make what was once reasonable unreasonable.
The evidence does not support UWU’s assertion that the Agreed Outcome is unreasonable because it is inconsistently enforced or that it is enforced simply because Woolworths oppose the nature or content of the discussions being held. The evidence is that the restrictions imposed by Woolworths in accordance with its fatigue management system apply to all activities conducted in the canteen including in relation to the exercise of right of entry by other unions, by external service providers and significantly to Woolworths own staff engagement activities.
There is no evidence of any ‘anti union’ sentiment on the part of either Ms France-Brotherton or Mr Lewis. Mr Lewis started his career on the warehouse floor and was a union member. His evidence is that he explains during inductions that Employees are able to join the union and that he proactively encourages Employees who take on delegate roles. Both report maintaining respectful and courteous relationships with union delegates and officials from the SDA and UWU. This evidence was not challenged in cross examination. [46]
There is no evidence that restriction on activities to a limited area of the canteen is applied inconsistently to non UWU activities such as those by external providers or by Woolworths itself. Only that UWU insist that they have on occasion ignored the Agreed Outcome with immunity.
What UWU described as a lack of consistency in enforcing the Agreed Outcome might with a different lens be viewed as evidence that Woolworths did not seek to disrupt or surveil union activities and that monitoring UWU compliance with the restrictions placed on both third party and internal activities in the canteen was unnecessary because an agreement had been reached with UWU consistent with these parameters.
The UWU Permit Holders entered the PRDC pursuant to sub section 484(c) of the FW Act which permits permit holders to enter premises for the purpose of holding discussions with employees “who wish to participate in those discussions”. This statutory provision makes clear that the entitlement to hold discussions with employees is not an unfettered entitlement to speak to all employees but rather an entitlement to speak to those employees who wish to participate in discussions. If the right was unfettered the words “who wish to participate” would be unnecessary. I do not accept that the Agreed Outcome prevents UWU from establishing whether Employees wish to participate in discussions.
The Designated Area is located centrally in the middle of the canteen and is close to the single point of entry to the canteen and immediately in front of the doors to the outside balcony. It is out of the line of sight of management offices. The location affords UWU’s banners and materials high visibility to all parts of the canteen and allows all employees easy access should they wish to speak with the UWU Permit Holders. UWU selected the location and trialled the location before confirming agreement to the Agreed Outcomes.
Given the location of the Designated Area and the evidence that the UWU Permit Holders bring with them signage and other materials, Employees who wish to hold discussions with the UWU Permit Holders are easily able to identify and access these officials when they are exercising right of entry in the canteen. Employees can sit at one of the tables in the Designated Areas or approach the Union officials from any side of the canteen and engage to hold discussions if they wish to participate in those discussions. UWU Permit Holders can approach Employees as they pass through or by the Designated Area.
There is no evidence before me that any Employee wished to participate in discussions and did not or could not because of the restrictions. Nor that an Employee would have been convinced to participate in discussions with the UWU Permit Holders if the UWU Permit Holders had approached them outside the Designated Area. Rather the evidence is that Employees pressed Woolworths to ensure that the restrictions were observed and complained when approached outside of the Designated Area. There is no evidence to suggest such complaints were not made and the proposition that such complaints were not made was not put to Woolworth’s witnesses.
Honouring of the Agreed Outcome as a default position does not prevent the parties from time to time agreeing the use of different parts of the canteen or other areas at the PRDC as is evidenced by Mr Lewis’ offer that if the Permit Holders wished to hold discussions in private they could use a room in the canteen precinct to do so.[47]
Conclusion
I am satisfied that the arrangements set out in the Agreed Outcome addresses a reasonable request by Woolworths as occupier of the PRDC that UWU Permit Holders comply with an occupational health and safety requirement, applied by Woolworths at the PRDC to all visitors and to its own activities, and that Employees have an area within the canteen in which Employees may take rest breaks without disruption.
I am of the opinion that the Agreed Outcome recognised and accommodated the interests and legal rights of Woolworths, its employees and UWU. This includes the statutory entitlement of UWU Permit Holders to hold discussions with Employees who wish to engage in discussions with them. The Agreed Outcome was agreed after extensive discussions between the parties and a trial period of operation. It was implemented entirely on a consensual basis. Both its terms and the parties agreement to be bound by it were clearly articulated in writing. These factors suggest that the Agreed Outcome was considered lawful and reasonable at the time by all parties. UWU has not identified any changes in circumstances which would in such a short period of time make what was once lawful and reasonable unlawful and unreasonable.
I recommend that in the absence of changed circumstances that UWU honour the arrangements that it entered into unless an alternative arrangement is agreed, on an ad hoc or ongoing basis, and that the arrangements are reviewed in twelve months’ time.
DEPUTY PRESIDENT
Appearances:
Ms M McCarthy, for the Applicant.
Ms H Millar, for the Respondent.
Hearing details:
2023
PERTH
15 March
Final written submissions:
Applicant’s final written submissions 14 April 2023.
Respondent’s final written submissions 27 April 2023.
[1] Warrell v Walton (2013) 233 IR 335, 341 [22].
[2] Digital Court Book (DCB) 60-250.
[3] Ibid 555-585.
[4] Ibid 586-662.
[5] Ibid 555.
[6] Ibid 586
[7] Ibid 3.
[8] Ibid 3.
[9] Ibid 3.
[10] Ibid 3-4.
[11] Ibid 587-588.
[12] Ibid 583.
[13] Ibid 556, 558, 590.
[14] Ibid 4, 9, 556, 589.
[15] Ibid 62-66.
[16] Ibid 65, 590.
[17] Ibid 67.
[18] Ibid 4, 11-14.
[19] Ibid 4, 12-14.
[20] Ibid 5, 557.
[21] Ibid 556.
[22] Ibid 5-6, 15-16.
[23] Ibid 5-6, 15-16.
[24] Ibid 5-6, 15.
[25] Ibid 5, 17-22.
[26] Ibid 556.
[27] Ibid 6-7.
[28] Ibid 592.
[29] Ibid 592-593.
[30] Ibid 560.
[31] Ibid 560.
[32] Ibid 560.
[33] Ibid 584, 595-596.
[34] Ibid 597-598.
[35] Ibid 560.
[36] Ibid 80.
[37] [2014] FWC 5407.
[38] Application/Notification by Austral Bricks (VIC) Pty Ltd [2014] FWC 5407 at [41-[43].
[39] (1987) 163 CLR 656.
[40] Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union Australia (1987) 163 CLR 656 at [24]-[25].
[41] See Construction, Forestry, Maritime, Mining and Energy Union v Cape Preston Port Company Pty Ltd[2020] FWC 4502 at [18]-[19].
[42] DCB (n 2) 6-7.
[43] Ibid 30.
[44] Ibid 157.
[45] Ibid 159.
[46] Ibid 587.
[47] Ibid 586-589.
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