Zerella Holdings Pty Ltd v National Union of Workers

[2016] FWC 4967

[2016] FWC 4967

FAIR WORK COMMISSION

DECISION

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

Zerella Holdings Pty Ltd
v
National Union of Workers
(RE2016/356)

DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 30 AUGUST 2016

Alleged dispute concerning conduct of representatives from Employee Organisation; application to deal with right of entry dispute; frequency of entry; unreasonable diversion of occupiers critical resources; application dismissed.

Introduction

[1] Zerella Holdings Pty Ltd (Applicant) lodged an application pursuant to s.505A of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute about the frequency with which permit holders of the National Union of Workers (NUW) enter the Applicant’s premises under s.484 of the Act.

[2] The NUW is entitled to represent the industrial interests of some of the employees engaged by the Applicant who perform work at the Applicant’s Virginia Packing Shed in South Australia (Site). Since about September 2015, a number of NUW officials who are permit holders have exercised entry rights pursuant to s.484 of the Act at the Site.

[3] The employees are covered by the Zerella Holdings Pty Ltd Packinghouse Employee Collective Agreement 2009. The Applicant and the NUW commenced bargaining for a new enterprise agreement after the Applicant agreed to bargain. The agreement to bargain occurred after a majority of employees indicated that they wished to bargain with the Applicant for an enterprise agreement.

[4] The Applicant is seeking orders to restrict the frequency and times at which entry for discussion purposes is exercised by NUW permit holders.

[5] The NUW opposes the orders sought on the grounds that if granted, the orders would impose significant impediments on permit holders visiting the Site, and that employees would be prevented from being able to properly discuss or obtain advice about the current enterprise bargaining process and other workplace issues. The NUW further submitted that the orders sought are not of the kind that have been granted by the Commission under s.505A of the Act.

Jurisdiction

[6] Subdivision A, Division 5 of Part 3–4 of the Act contains provisions dealing with entry permits. So far as is relevant for present purposes these provide as follows:

“505A FWC may deal with a dispute about frequency of entry to hold discussions

(1) This section applies if:

(a) a permit holder or permit holders of an organisation enter premises under section 484 for the purposes of holding discussions with one or more employees or TCF award workers; and

(b) an employer of the employees or the TCF award workers, or occupier of the premises, disputes the frequency with which the permit holder or permit holders of the organisation enter the premises.

(2) The FWC may deal with a dispute about the frequency with which a permit holder or permit holders of an organisation enter premises under section 484.

(3) 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)).

(4) However, the FWC may only make an order under subsection (3) if the FWC is satisfied that the frequency of entry by the permit holder or permit holders of the organisation would require an unreasonable diversion of the occupier's critical resources.

(5) 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.

(6) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

506 Contravening order made to deal with dispute

A person must not contravene a term of an order under subsection 505(2) or subsection 505A(3).

Note: This section is a civil remedy provision (see Part 4-1).”

[7] Relevantly, s.484 provides as follows:

“484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussion 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 obstruct a permit holder, exercising rights under this Subdivision (see section 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.”

[8] Section 490 provides for when the right of entry may be exercised:

“490 When right may be exercised

(1) [Right may be exercised during work hours] The permit holder may exercise a right under Subdivision A, AA or B only during work hours.

(2) [Discussions may be held during mealtimes or other breaks] The permit holder may hold discussions under section 484 only during mealtimes or other breaks.

(3) [When permit holder may enter premises] 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.”

[9] Section 492 makes provisions for the location at which discussions are to take place:

“492 Location of interviews and discussions

(1) [Agreed venue for interviews or discussions] The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agree with the occupier of the premises.

(2) [Where permit holder and occupier cannot agree] 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) [Discussions held where employees take meals or other breaks] The permit holder may conduct the interview or hold the discussions in any room or area:

(a) in which on 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).”

Background and factual context

[10] The Applicant operates two shifts at the Site during each week. A day shift operates from 5:00am for a duration of up to 12 hours. The shift may finish earlier if the work is completed. A night shift commences at approximately 5:00pm and operates until production has concluded. These shift times and lengths vary depending on the volume of orders, maintenance issues and other operational factors. 1

[11] There are currently (at the time of hearing) 149 packing shed employees, with approximately 115 working on day shift and 34 working on night shift. According to Ms Karen Malzard, the Human Resources Manager for the Applicant, the day shift employees have a short morning break at approximately 9:00am, a 30 minute meal break at around 11:30am and they may also have a further ten minute break later in the shift depending on how many hours of work are required to finish scheduled production for the shift. Night shift employees have equivalent breaks during the night shift. 2

[12] Ms Malzard gave evidence that the frequency of visits of NUW permit holders began to increase in or about November 2015. She said that employees started raising complaints about the presence and conduct of NUW permit holders, most specifically that they were being approached in their cars during breaks. After receiving the first such complaint, Ms Malzard said that she, together with Mr White, began to monitor NUW permit holders’ visits to the Site more closely. 3

[13] In January 2016, the frequency of visits increased and Ms Malzard’s evidence was that, in her role as Human Resources Manager, it is her responsibility to respond to entry notices provided by email. She would generally respond by providing the NUW with information about break and shift start and finish times. Ms Malzard said that she ceased doing this in January 2016 as she could not keep up with the number of visits being scheduled and could not manage the notifications in addition to her normal responsibilities. 4

[14] Ms Malzard produced a spreadsheet listing all visits undertaken to the Site by NUW permit holders from September 2015 to July 2016. 5 Ms Malzard was on leave for a short period between 21 February 2016 and 7 March 2016, but for the entries during this time she relied on records and documents such as entry notices received, otherwise she contends she made the entries very soon after the right of entry was exercised.6 The spreadsheet illustrates a substantial number of occasions on which staggered visits were undertaken by NUW permit holders on the same day, between September 2015 and April 2016. The spreadsheet shows a total of 57 days during this period on which staggered visits by multiple NUW permit holders occurred at the Site.

[15] The NUW submits that the increased frequency of visits as of mid-January 2016 is a direct result of the NUW and a majority of the Applicant’s employees seeking that the Applicant agree to bargain for an enterprise agreement, noting that this was something about which the Applicant was aware. 7 The NUW made an application to the Commission for a majority support determination under s.236 of the Act on 25 February 2016. A petition was circulated by the NUW, amongst the employees, between 10 February 2016 and 23 February 2016. Following the NUW’s application, a vote of the employees was conducted at the Site, on 10 and 11 March 2016. The results of the vote indicated that a majority of employees wanted to bargain with the Applicant. Subsequently, the Applicant advised the Commission and the NUW on 15 March 2016 that it agreed to bargain.

[16] Ms Malzard contended that the entry notices provide information about which NUW permit holder would be attending the Site, but that the named permit holders did not always attend, and that there is no indication about how long they would be on Site. Consequently, Ms Malzard said that she needs to ensure a supervisor is present to accompany NUW permit holders, at any time, to and from the lunch rooms. Ms Malzard said that there had been occasions where the Applicant has been expecting three of four permit holders, but only two attend. As a result, Ms Malzard has spent time arranging for multiple supervisors to be available to escort NUW permit holders, only to find out that those multiple supervisors are not required. 8

[17] Furthermore, the entry notices sent by the NUW are not always followed by an entry. Ms Malzard gave evidence of some occasions when entry notices were issued but entry was not exercised:

• Two entry notices were received for 7 March 2016, but no permit holder attended;



• Three entry notices were received for 10 March 2016, but only one permit holder attended; and



• Four entry notices were received for 11 March 2016, but only two permit holders attended. 9

[18] Ms Malzard also indicated that entry notices often cover a range of dates. For example, an entry notice dated 4 March 2016 for Mr Snelson 10 gave notice of proposed visits on 7, 8, 9 and 10 March 2016, but according to the spreadsheet annexed to Ms Malzard’s witness statement, Mr Snelson only attended on one of the four days.11

[19] Evidence was also given by Mr Paul White, General Manager of the Applicant. Mr White also contended that complaints were received from employees at the Site about the conduct of NUW permit holders. 12 The complaints are said to have commenced around the time that the frequency of visits increased and, Mr White contended that this put the Applicant on notice that discussions with employees were being held outside of areas where meal breaks were taken. The NUW contends that no evidence was given in support of the claims of employee complaints.13

[20] Mr White contended that, in about January 2014, he was approached by Mr Dave Garland of the NUW. Mr Garland informed Mr White that he had been assigned to the NUW’s ‘horticulture project’ as part of the NUW’s commitment to increasing wages and conditions in the horticulture industry. 14 Mr Garland also advised Mr White that the NUW was aiming to terminate each horticultural company’s collective agreement at the end of each term and then negotiate a new industry award or agreement which would result in higher wages.15 Mr White says that, at the time, he responded to Mr Garland but Mr Garland did not engage in any discussion regarding the issues raised by Mr White.16 Mr White has had no further contact from Mr Garland since the meeting in January 2014.17

[21] In approximately early to mid-2015, Mr Tony Snelson of the NUW (a permit holder), commenced visits to the Site. 18 Soon thereafter, Mr White became aware of complaints from employees at the Site regarding the conduct of NUW permit holders and at this point, began to closely monitor the permit holders exercising entry rights for discussion purposes.19

[22] Mr White gave evidence about various incidents involving NUW permit holders visiting the Site, unescorted, without the required high visibility vest and approaching employees in their cars during meal breaks rather than in the allocated lunch rooms. 20 He also contended that NUW permit holders had been asking night shift supervisors to stop production to allow discussions to take place, but that both night shift supervisors had refused these requests.21

[23] Mr White said that on one occasion he was called to the carrot lunchroom by the day carrot supervisor (Mr Shane Colbertson) who told him that some of the female employees had been involved in an altercation with an NUW permit holder after he spoke to them in an Indian or Afghani language. 22 Mr White asked the two NUW permit holders (Mr Travis Hera-Singh and Mr Taqi Azra) who were present at the Site that day to leave, so that he could contact Mr Snelson.23 Upon contacting Mr Snelson, Mr White was informed that Mr Azra speaks multiple languages and that some employees were impeding him from talking to other employees.24

[24] On 4 March 2016, Mr White received a telephone call from Mr Snelson raising concerns about company behaviour. During the conversation, Mr White informed Mr Snelson that he had just finished meeting with employees complaining about the behaviour and comments of NUW permit holders on that same day. The complaints included NUW permit holders approaching employees in the car park. 25

[25] Mr White gave evidence that, following this conversation, he also sent an email to Mr Snelson on 16 March 2016 attaching a photo of Mr Taqi Khan, an NUW permit holder, sitting outside and talking to employees. The email set out the requirement that all permit holders remain in lunchrooms at all times while on Site. 26 Mr White did not receive a reply to this email.27

[26] A Notice of Employee Representational Rights (NERR) was issued on 29 March 2016 in relation to a proposed enterprise agreement. Since the NERR was issued, the Applicant’s Site visitor register shows that there were 14 visits made by NUW permit holders between 30 March 2016 and 14 April 2016, with four NUW permit holders all attending at the same time on 1 April 2016. 28

[27] During the entry by NUW permit holders on 1 April 2016 (Ms Sinuon Deller, Ms Katie Rickets, Mr Travis Hera-Singh and Mr Solomon Deng), Ms Malzard was approached by the Loading Bay Manager, Mr Ashley Schraeder, who took her outside to show her an NUW permit holder in the car park, talking to a female employee sitting in her car. A photo of this incident was annexed to Ms Malzard’s witness statement. 29 During cross-examination, Ms Malzard conceded that she did not know whether the NUW permit holder was invited by the employee to hold that discussion, and that she could not rule that out.30

[28] The Applicant has one receptionist and there are very rarely more than four people in the office. When an NUW permit holder visits the site, it is necessary for either Ms Malzard or Mr White to accompany the permit holder through the production area and due to the recent increase in these visits, the receptionist has also had to take on the responsibility of escorting NUW permit holders when neither Ms Malzard or Mr White are available. This, in Ms Malzard’s evidence, leaves the telephone unattended and is unacceptable. 31

[29] During cross-examination, Ms Malzard contended that the role of the receptionist is a critical function for the Applicant and that the inability of the receptionist to take telephone calls when she is escorting NUW permit holders may lead to a loss of production. 32 She contended that her own role as Human Resources Manager is “extremely critical to the business” and that “there is nobody there who can advise the way I do”.33

[30] The NUW submits that the Applicant’s evidence does not establish an excessive number of visits and the visits would not require an unreasonable diversion of the Applicant’s critical resources. The following reasons were given for this submission:

• On the evidence relied on by the Applicant’s witnesses, NUW permit holders visited the Site on 16 days between September 2015 and December 2015 (approximately one day per week);



• Between January 2016 and 29 March 2016, the parties were engaged in a contested application for a majority support determination. During this period, NUW permit holders visited the Site on 36 days (approximately three days per week);



• Since the NERR was issued on 29 March 2016, and up to 23 May 2016 (the date of the Respondent’s submissions), NUW permit holders attended the Site on seven days (approximately two to three days per week); and



• It appears, according to the Applicant’s submissions, that there has only been one occasion when the NUW has failed to provide written notice of their visit in accordance with the Act. 34

[31] The NUW contends that the number of days NUW permit holders visited the Site is entirely reasonably, especially considering the parties were involved in a dispute about a majority support issue and the commencement of bargaining. 35

[32] Evidence was given by two of the NUW officials, Mr Travis Hera-Singh and Mr Taqi Azra. The NUW officials both gave evidence about the multiple languages spoken by employees at the Site and Mr Hera-Singh said that NUW permit holders often visit in groups of two or more to help overcome the language barrier. 36 Mr Hera-Singh gave evidence that he would meet with employees, in the vicinity of the car park and outside area while on their breaks, when they asked him to do so.37 He said that employees would sometimes ask to meet him in the car park where they are more comfortable eating their lunch and because they have been reluctant to talk to him in the vicinity of managers or supervisors.38 He also said that, as the Site has four lunch rooms used by different groups of workers, multiple NUW permit holders are required to visit the site so that discussions can be held with all the different groups.39

[33] Moreover, Mr Hera-Singh and Mr Azra both gave evidence that they have never been advised by the Applicant when there have been changes to break times. 40 Mr Hera-Singh contended that this often lead to visits being wasted and indicated that, on a number of occasions in January and February 2016, he attended the Site at 10.00am only to find out that employees had already taken meal breaks, the result of which meant he and other NUW permit holders were required to visit the Site again in the following days.41 Mr Azra supported this evidence.42

[34] Mr Hera-Singh said that he has only very rarely interacted directly with Ms Malzard 43 and that typically the receptionist escorts NUW permit holders to the lunch areas.44 Mr Azra likewise said that the receptionist usually escorts him to the lunch rooms and that he has only been escorted by a supervisor or Ms Malzard on a few occasions. Mr Azra said that neither Ms Malzard nor Mr White escort him anywhere.45 He also gave evidence that it takes less than five minutes to walk from the office to the lunch rooms.46

[35] Mr Azra said that he has spoken with employees in the car park, eating their lunch, on two occasions. He said that all of the employees except two women chose to wind down their windows and all were happy to speak to him. On the second occasion that Mr Azra approached employees in the car park he was told by a supervisor (Amit Channa) that he was not allowed to talk with employees in the car park and he contends that, after that, he did not do this again. 47 He also conceded that, on about five occasions, he has met with employees outside under a tree while they were eating their lunch. He contended that, on each of these occasions, the employees asked him to come and speak with them outside or in the car park. On 16 March 2016, he spoke with at least six employees outside upon their request and after speaking to these particular employees, he returned to the front lunch room.48 Upon his return to the front lunch room, Mr Azra said that Mr White approached him and told him that next time he speaks with employees outside, Mr White would call the police.49

Consideration

[36] As earlier indicated, the NUW contends that the evidence does not establish that the frequency of visits by NUW permit holders would require an unreasonable diversion of the Applicant’s critical resources. The NUW further contends that the suggestion that such “routine tasks undertaken during visits amount to such a diversion of the Applicant’s critical resources as justifying a limitation of NUW permit holder’s visitation rights is fanciful.” 50

[37] The NUW submits that s.505A of the Act sets a particularly high threshold for the Applicant to meet. The NUW makes reference to the Explanatory Memorandum of the Fair Work Amendment Bill 2013 which, it contends, emphasises the high threshold required for employers under s.505A:

“151. The FWC may only make an order under section 505A if it is satisfied that the frequency of entry by the permit holder or permit holders from the same organisation would require an unreasonable diversion of the occupier’s critical resources (see new subsection 505A(4)). This is intended to be an appropriately high threshold since disputes under new section 505A have the potential to displace a permit holder’s legitimate right to enter premises for authorised purposes, in the absence of any intentional misbehaviour or wrongdoing by the permit holder. What will amount to an unreasonable diversion of an occupier’s critical resources will be for the FWC to determine on the particular circumstances before it.”

[38] The nature of the visits, according to the NUW’s submissions, must be of such an extreme nature that the employer’s critical resources are unreasonably diverted as a result. 51 A variety of employer groups have addressed the impossibly high threshold set down by this section. For example, ACCI stated:

“While section 505A of the FW Act enables the FWC to deal with disputes about frequency of entry to hold discussions, orders can only be made where the FWC is satisfied that the frequency requires an unreasonable diversion of the employers ‘critical resources’. In this regard the Productivity Commission has observed: In practice, this has proved a high bar. Employers are required to demonstrate that each visit is a critical issue requiring an unreasonable diversion of their resources. This test overlooks the possibility that excessive entries may impose large, unwarranted costs on an employer without necessarily diverting ‘critical resources’. Indeed when considering excessive frequency of entries, it would seem more likely that it is the ongoing accrual of the incremental costs of each entry that would be most damaging to employers.” 52

[39] The NUW contends that the Applicant has been unable to demonstrate that the frequency of visits by NUW permit holders requires an unreasonable diversion of the Applicant’s critical resources. It is further argued by the NUW that the monitoring of NUW permit holders is unqualified and vague in the Applicant’s evidence, that there is no evidence of large or unreasonable costs being imposed on the Applicant through the frequency of the NUW visits, and that the intermittent need for a receptionist to escort NUW officials is neither unreasonable, nor a diversion of a critical resource. 53

[40] The NUW says that, in addition to the diversion of resources being reasonable, the resources being diverted must be more than simply important. It says they must be something crucial and that the Applicant has failed to meet this test. 54 The Applicant submits that the test to be applied is “whether or not the level of visitation reaches that threshold that critical resources are diverted…in an unreasonable way.”55

[41] The Applicant acknowledges the high threshold set in s.505A, but submits that the threshold is intended to be high in the absence of intentional misbehaviour or wrongdoing by those exercising entry rights. 56 The Applicant contends that the evidence illustrates an intention, on the part of NUW permit holders, to engage in misbehaviour and disrespect for the orderly conduct of discussions when permission has been granted.57

[42] The Applicant submits that, if there were orderly meetings and transactional meetings, the critical resources of the Applicant would not be unreasonably diverted. 58

[43] The NUW contends, however, that the Applicant misinterprets the legislation in this regard. The NUW notes that the Commission has power to make an order in relation to frequency of visits when it is “satisfied that the frequency of entry by the permit holder or permit holders require an unreasonable diversion of the critical resources.” 59

[44] The dictionary meaning of “critical” has been set out by the NUW. Critical is defined as “pertaining to a crisis, or decisive or crucial”. On this definition, the NUW submit that much of the responsibility the Applicant claims as being diverted is neither critical or unreasonable. 60

[45] Section 505A allows the Commission to deal with a dispute, inter-alia by arbitration, about the frequency with which a permit holder or permit holders of an organisation may enter premises for the purposes of holding discussions with employees. A range of orders may be made to deal with a frequency of entry to premises dispute, however an important caveat on the exercise of the discretionary power to make an order is the requirement that the Commission must first be satisfied that the frequency of entry by a permit holder or permit holders of an organisation would require an unreasonable diversion of the occupier’s critical resources.

[46] Four observations may be made about this caveat. First, the requirement for the Commission to make an assessment that the frequency of entry (or to put it another way, the rate at which entry for discussion purposes is exercised) “would” require an unreasonable diversion of the occupier’s critical resources, suggests an assessment as to the future impact on these resources of a particular frequency of entry. This future impact may, of course, be assessed by reference to the past impact of entry on these resources, but it seems to me that the assessment is one made about the future likely impact of the frequency of entry for discussion purposes.

[47] Secondly, there needs to be a causal relationship between the frequency of visits and the likely requirement that the occupier’s resources would be diverted.

[48] Thirdly, the diversion of these resources must be unreasonable, in the sense that, objectively viewed, the diversion of these resources exceeds the bounds of reason, is immoderate or exorbitant. Fourthly, the unreasonable diversion must be of the occupier’s “critical” resources, in the sense that those resources are very important in respect of the business, activities, functions or production undertaken by the occupier of the premises.

[49] It is apparent from the above that the number of occasions on which an NUW permit holder has exercised entry rights for discussion purposes has increased from one entry per week in the last quarter of 2015, to three per week in the first quarter of 2016. On some occasions there have been multiple entries by multiple permit holders on those days.

[50] I accept, on the evidence that the increased entry activity has occurred because of a combination of factors relating to bargaining. First, there was the contested majority support determination and the need for the NUW to garner support for bargaining from employees who would be covered by a proposed agreement. Secondly, there is the ongoing bargaining and need for the NUW as bargaining representative for the proposed agreement to report back to employees in a language and manner that is understood.

[51] That there has been an increase in the rate of entry for discussion purposes by NUW permit holders since the later part of 2015 is not in dispute. It is the impact of the increase in frequency that is at the heart of this application.

[52] Evidence was given on behalf of the Applicant about the disruption said to be the result of the increased occurrence of visits by NUW permit holders. The Applicant contends that, as a consequence of a very competitive industry and low prices, it operates a “very flat and lean management and administration structure”. 61 The lower staffing levels mean that managers, supervisors and leading hands are all fully engaged in operational matters and do not have the time or training to manage visits from NUW permit holders at the frequency at which they have been occurring.62 Ms Malzard gave evidence that the frequency of visits has caused an unreasonable diversion of resources and it was said that Ms Malzard and Mr White are the only two employees of the Applicant available to manage contact and visits from NUW permit holders, and that this is undertaken in addition to already heavy workloads.63

[53] Mr White also said that the frequency of the site visits conducted by NUW permit holders have caused a significant drain on the limited resources that the Applicant cannot afford:

• Each entry notice needs to be reviewed and validated;



• Each entry notice requests an update of the day’s planned break times after allowing for weather, quality and reliability and customer demand. This is done by Mr White in consultation with other managers;



• NUW permit holders need to be escorted to and from lunch rooms at their will. This happens at the start and finish of each visit, but the Applicant further contends that NUW permit holders also need to be monitored during their visits as they have left the designated areas (lunch rooms) on several occasions to approach workers in other areas; and



• The behaviour, compliance and wellbeing of NUW permit holders need to be constantly monitored while they are on Site (noting a failure of NUW permit holders to wear high visibility vests and remain in approved areas). 64

[54] With respect, I am not persuaded that any of this is particularly onerous or unreasonable, or that it causes a significant drain on the Applicant’s resources. The need to review and validate each entry notice, seems to me to require no more than satisfaction that the person giving the notice is a permit holder, that 24 hours notice has been given and that the relevant section of the Act under which entry is proposed is cited. With respect, this is hardly time consuming. Moreover, the frequency with which notices have been given over the past 10 months, would have, I would think, made Mr White and Ms Malzard more efficient in their examination of the notices. The request for an update on the planned breaks for the day of the visit need not be responded to, however, a short email sent to the permit holder attaching information about scheduled breaks that is already prepared for employees having regard to the Applicant’s operational needs and production schedule, is not particularly onerous nor resource intensive. It is not, in my view, unreasonable.

[55] The requirement to escort permit holders is a self-imposed one borne out of the poor relations between the Applicant and the NUW. In any event, the distance between the office and the lunch rooms is short and the requirement to escort is not particularly time consuming. I accept the evidence of the NUW witnesses which was to the effect that the vast majority of escorting activity is undertaken by the Applicant’s receptionist. Apart from the bare assertion that the receptionist was a critical resource and that a telephone might not be answered, no cogent evidence was led by the Applicant to show how the absence of a receptionist for a short period would affect production, production schedules or sales. The Applicant might have, but did not, for example lead evidence from any customer suggesting absence of the receptionist caused the customer to divert its business elsewhere as the telephone was not answered.

[56] Similarly, the requirement to monitor is a self-imposed one. It seems to me the one failure to wear a safety vest does not warrant ongoing or persistent monitoring. Likewise, the discussions with employees in the car park, once brought to the attention of the relevant permit holder, appears to have ceased. In any event, the evidence about the extent to which monitoring occurs and what this may involve does not suggest any particularly onerous activities or any significant diversion of resources as the following excerpt from the transcript of Mr White’s evidence demonstrates:

“Mr White, you say in your statement that you have been forced to closely monitor union officials exercising their entry rights.  Is that correct?---Yes.

What has this consisted of?  How have you closely monitored those NUW officials?---Firstly, when I receive an application to come on site, I review that application.  I look at my calendar and make my best efforts to make sure I'm on site at that time.  I make sure that the people are received as visitors, escorted to the lunch rooms and back to the lunch rooms.

Is that extent of it, the monitoring that you've engaged in?---No.  I also keep an awareness of what's going on around the site and I respond to issues that are raised with myself.

Can you explain what you mean by keeping an awareness of what's going on around the site?  What does that mean?---Well, for example, when I see people - union officials not in the appropriate locations, then I'll follow it up.

So do you follow union officials into the lunch rooms or lunch areas?---No.

Do you remain in the vicinity of the luncheon area monitoring them?---No.

Do you monitor officials via any sort of surveillance; electronic surveillance?---No.

Ms Malzard, in evidence, referred to the - a few times that she watched some footage of NUW officials on site.  You've never been involved in that then?---We have a couple of cameras on site, but I've never sat down and looked at surveillance of union officials.

Do you escort union officials, NUW permit holders to and from lunch areas?---I have.

Do you do it often?---Depends what you call often.

Okay, do you escort NUW permit holders now, several times a week or less?---Myself, not several times a week.

Does Ms Malzard escort NUW permit holders more or less often than you do?---She would do it more than myself.

You're aware of this, as a fact that she escorts NUW permit holders more than you do?---Between myself, the receptionist and Karen, depending on who's available at the time, we would escort people to the lunch room.  But I don't keep track of how many times I do it, versus how many times Karen does it, as to how many times the receptionist does it.

So this year, who would you say has escorted NUW permit holders the most often of those three people?

MS SMITH:  Well, your Honour, he's unable to answer the question because his evidence has been, he doesn't keep a track of who does what.  I'm not sure that any answer he gives would be useful at all to anyone.

I'll rephrase it.

THE DEPUTY PRESIDENT:  Mr Portelli, can I make a suggestion?  I don't want to tell you how to do your job, but you have a record of attendances in KM1, you could simply take this witness to each of the events this year and ask him whether it was he or someone else or whether it was he that escorted the union officials that attended that day, so he says.

MR PORTELLI:  Your Honour, the witness has already indicated that this isn't something that he's tracked.  What I would ask, and what I was planning to ask now, is whether or not the receptionist, as far as he understood, was the receptionist more likely to escort than he.  He may not know the answer to that; he might not be aware, but he might be.

THE DEPUTY PRESIDENT:  All right, ask your question.

MR PORTELLI:  Mr White, as far as you're aware, is the receptionist more likely to escort NUW permit holders to and from lunch areas than yourself of Ms Malzard?---It depends on the time.  The receptionist is the only person - she's the person answering the phones as well for the site.  It depends who's in meetings; depends who's available.  But, as I've already indicated, the receptionist and Karen would escort people to the - union officials to the lunch room more often than I would.  But I wouldn't be able to tell you who does it more out of the two of them.

Who escorts NUW permit holders after Ms Malzard and the receptionist have left for the day?---Two answers to that.  Firstly, quite often I do it at the end of the day, and secondly, that is an issue for us because we don't have an ongoing administration presence after hours.  The site doesn't have any security guards; it's an open site.  So that's one of the things we struggle with.

So, when none of the management team are there, is it simply left to supervisors and managers there?---If there is no administration staff there, then it's left to the line supervision at night time.” 65

[57] In my view, Mr White’s evidence that the frequency of visits causes a significant drain on resources, exaggerates the impact of entry by NUW permit holders, on the resources of the Applicant.

[58] Nor does the evidence of Ms Malzard suggest any significant diversion of resources, or time consuming functions associated with entry. During cross-examination, Ms Malzard’s evidence was as follows:

“In paragraph 42 you say that you can't arrange meetings or off-site visits to the union officials visiting the site, why is this though?---If there's nobody there, we can't just have anybody escorting the union representatives and ideally it would be myself or Paul and if we're not available then whoever - a supervisor that may be around the area would be the next preference and after that it would be the receptionist.

Ms Malzard, you have just admitted in evidence that at least for the last four months the receptionist has been more likely to escort the union officials to and from lunch areas than you, so if the issue is not just anyone is allowed to escort officials who is the "just anybody"?---Nobody else besides a manager or supervisor or now the receptionist is allowed to do it.

If the receptionist in fact is escorting union officials to and from lunch areas, why are not able to be off site during that escort?---I don't know whether she will be there because she might be doing something else, I don't know.  It's a lot of pressure when any one of us is not in the office.  It's a lot of pressure for everybody.

You mentioned supervisors/managers.  If supervisors and managers are able to - and do - escort union officials to and from lunch areas why are you not able to be off site?---I don't know whether they are going to be available, that's the problem.

I will come to this in a minute, Ms Malzard, but isn't that one of the duties you claim to have as a result of the visits to liaise with managers and supervisors to ensure that they are available potentially for escorting NUW officials to and from lunch areas?---It's not about escorting.  They need to know that they're on site, we might liaise with them about that, and that they need to make sure - because we had a lot of complaints that employees felt harassed, so whenever union reps were coming we would let the managers and supervisors know so that they could keep an eye out.

You mention that the allegations of employees being harassed, you are of course aware of allegations that have been made towards the company and its management about harassment and intimidation of NUW members and non-members, aren't you?---Yes.

Ms Malzard, you provide an example of one occasion where you are about to start a meeting but then were advised that NUW officials had arrived to the site?---Mm.

What was the outcome of this in terms of your pre-planned meeting?---So, I had to leave my meeting and escort.

What was the practical outcome of that?  Were you able to get back to the meeting?---I was.

So the practical outcome of the meeting was you got back to the meeting but - - -?---But I've delayed everybody in that meeting, yes.

How much later did you get to that meeting?---Probably five to 10 minutes later.

So you're five or 10 minutes late for a meeting?---Mm.

I put it to you, Ms Malzard, that that is not an unreasonable diversion, that is one of those things that human resources managers attend to in their day-to-day roles?---I see it unreasonable to be multiple times a day, multiple days a week.

You only refer, Ms Malzard, to one example of being made a few minutes late for a meeting.  Are there any other occasions where you've been late for a meeting due to a union entry on the site?---Multiple times I've had to be interrupted from what I'm doing, whether it be a meeting or speaking to a visitor or something to go and escort - multiple times.

Do any of those many times where you say that you were late to a meeting appear in your statement?---Not specifically, no.

Why is that?---I don't keep a diary of times I was late to meetings.

You keep a diary, a fairly specific one - or a record of union rights of entry but you don't record your own movements, is that correct?---No, not relate to meeting movements, no.

I put it to you, Ms Malzard, that in fact there weren't other occasions where you were late to meetings and if there had been occasions they would have appeared in the statement?---(Indistinct reply)

MS SMITH:  Sorry, I didn't hear the answer.

THE DEPUTY PRESIDENT:  Neither did I.

MR PORTELLI:  Sorry, Your Honour.

THE WITNESS:  What was the question?

THE DEPUTY PRESIDENT:  You might want to put the proposition again, Mr Portelli.

MR PORTELLI:  Yes.  Ms Malzard, I put it to you that in fact there weren't these multiple occasions you speak of when you were late to meetings due to entry visits, that's the proposition I'm putting to you, you can agree or disagree with that?---I was late to - I have been late to meetings or had to leave meetings, yes.

THE DEPUTY PRESIDENT:  In paragraph 44 of your statement you list the right-of-entry, processing duties:  essentially reading emails, reply to them, passing them on, checking the validity and currency of permits and liaising with managers.  The email notices that you receive, did they come in a standard form or are they different every time that you receive them?---They have different dates and names on them but they're the same standard, yes.

They don't deviate from the preceding emails then other than the obvious which is the dates and the names?---Yes.

What email reply do you provide to those emails?---I will forward them on to our staff to let them know and in the past I did respond with break times.

So now you receive an email, emails that are in standard form and you forward them on.  Who do you forward them on to?---All our management team.

In relation to the validity of permits and ensuring that, how do you do that?---We do that through a website.

What website is that?---I couldn't tell you myself, I'd need to get on the computer.

We are talking here about the right-of-entry permits, is that what you're - when you talk about "validity of permits" I want to be clear what we are talking about.  Are you talking about ensuring the validity of the union right-of-entry permits, is that correct?---I mean who is coming on site and whether they have provided me with notice of entry et cetera.  Permits have been checked previously by Annette Treyton who was out quality and safety manager.

Wouldn't you have kept the right-of-entry permit information from the many previous visits?---Yes.

I'm just trying to understand what you're required to do when you're checking the validity of permits and notices, what does that actually involve?---As I was saying, we check the notices:  who is coming, have they provided notice and did they attend.

But you don't check NUW union right-of-entry permits?---Not every single time, no.

And, finally, that last set of processing roles that you refer to is around advising managers - advising liaising managers, so what does that involve, what does that actually mean?---It depends on issues that might be happening at the time so if, for example, if somebody has just complained that "The union keep approaching me" or something like that we might say to them "Just keep an eye out for any employees that are a bit distressed" or "Make sure that they're not attending the car park" or "Make sure they're wearing high vis", all of those sorts of things.

In relation to the visits, Ms Malzard, not issues that come up from time to time but the actual visits, what do you need to say to the managers and supervisors to facilitate the visit of a union official or officials on that particular day?---Exactly that, that they're going to be on site and that's what we do, to be aware.

Do some of those - Ms Malzard, your processing duties, as I understand them, you receive email notices in a standard form; you forward them on to managers; you check that the notices are for the correct individuals?---Yes.

Then you advise managers/supervisors that the union is going to be on site?---Mm.

In total - and I now you've stated before that it is hard to estimate.  But, in total how long would this sort of process take?  If there is going to be an entry provided tomorrow or one or two or three individuals, how long would this process take?---It could vary.  I also have a spreadsheet that I record the information on as well.  You know, it could be five minutes for each part.

Forwarding on an email would be five minutes, would it?---Not necessarily, no.  I also save them.  I save them into particular folders; I check them, put them on my spreadsheet for the email.

Receiving an email in a standard form, would that be about five minutes' work to go through that?---Not receiving email, no.  I don't measure the time it takes me, but I could be doing something at the time, too, which interrupts me from what I'm doing.

Again, in total - you spoke of five minutes per segment here, how long overall would these processing duties take you per visit?  Again, two or three - if one or two or three officials were visiting tomorrow you need to go through this process, what is the sort of estimated time that you think this process would take?---It's hard to say.  It's really hard to say.

Would you think it would be 15 minutes, an hour, three hours, half an hour?---It could be 20 minutes, I suppose, all up.” 66

[59] This evidence, viewed in its totality, speaks to inconvenience and some disruption, but, with respect, falls well short of any unreasonable diversion. Moreover, in my view the evidence suggests no more than a modest allocation of management time and effort to the processing, review, supervision and monitoring of frequent entry exercised by NUW permit holders for discussion purposes. Additionally, I do not regard this modest allocation of management time and effort as a diversion of “critical” resources, or the diversion as unreasonable. Indeed, no evidence was adduced which would enable me to conclude that the incidential reviewing, escorting and supervision of entry of NUW permit holders undertaken variously by the receptionist, Mr White and Ms Malzard was a diversion of that resource that was otherwise “critical” to the Applicant. No evidence was led, for example, about the impact on production, the loss of business, or the delay in undertaking important functions caused by the diversion of the resource of the receptionist, Mr White or Ms Malzard by reason of the frequency of entry.

Conclusion

[60] For the reasons given above, I am not satisfied that the frequency with which NUW permit holders enter the Applicant’s premises for discussion purposes would require an unreasonable diversion of the Applicant’s critical resources.

[61] Consequently, the application is dismissed.

[62] I would make two observations in passing. The first is that NUW permit holders are now on notice that the Applicant is dissatisfied about receiving entry notices which are not ultimately followed up by an entry. The dissatisfaction is not unreasonable. If for no other reason than courtesy, a NUW permit holder who gives an entry notice to the Applicant but does not intend or cannot subsequently attend and enter, should advise the Applicant as soon as practicable that entry will not be exercised.

[63] The second observation relates to the venue at which discussions occur. NUW permit holders are on notice that discussions are to occur in the various lunch rooms. No other venue is agreed and it appears this is the room or area at which employees ordinarily take meal or other breaks. That an employee may wish to have discussions in the car park or any place other than the lunch rooms is not a licence to NUW permit holders to hold discussions at a venue not authorised by s.492 of the Act. NUW permit holders should comply with s.492 by holding discussions in the lunch rooms and/or by seeking the agreement of the Applicant to hold discussions or some discussions at a venue other than the lunch rooms.

DEPUTY PRESIDENT

Appearances:

Ms K Smith on behalf of Zerella Holdings Pty Ltd.

Mr A Portelli for the National Union of Workers.

Hearing details:

2016.

Adelaide.

July 4.

 1   Exhibit 1 at [4]-[5].

 2   Exhibit 1 at [6]-[8].

 3 Exhibit 1 at [11]-[13]; Exhibit 1 at [14].

 4   Exhibit 1 at [14]; Transcript PN44 – PN46.

 5   Exhibit 1, KM1; See also Transcript PN57 – PN60.

 6   Exhibit 1 at [20]; Exhibit 1, KM1.

 7 Respondent’s Outline of Submissions at [57].

 8   Exhibit 1 at [23]-[24].

 9 Exhibit 1 at [32].

 10   Exhibit 1, KM3.

 11   Exhibit 1 at [33]; Exhibit 1, KM3; Exhibit 1, KM1.

 12 Exhibit 2 at [27].

 13 Respondent’s Outline of Submissions at [51].

 14   Exhibit 2 at [15(a)].

 15   Exhibit 2 at [15(d)].

 16   Exhibit 2 at [15] – [18].

 17 Exhibit 2 at [24].

 18 Exhibit 2 at [24].

 19 Exhibit 2 at [27].

 20   Exhibit 2 at [29] – [30]; Exhibit 2 at [31] – [35].

 21 Exhibit 2 at [41].

 22 Exhibit 2 at [46].

 23 Exhibit 2 at [48].

 24 Exhibit 2 at [49].

 25 Exhibit 2 at [50].

 26   Exhibit 2 at [54]; Exhibit 2, PW9.

 27 Exhibit 2 at [54].

 28   Exhibit 1 at [31]; Exhibit 1, KM2.

 29   Exhibit 1 at [34] – [37]; Exhibit 1, KM4.

 30   Transcript PN107 – PN108.

 31 Exhibit 1 at [41].

 32   Transcript PN180 – PN182.

 33   Transcript PN246.

 34   Respondent’s Outline of Submissions at [31] – [35].

 35 Respondent’s Outline of Submissions at [36].

 36   Exhibit 4 at [27] – [29].

 37 Exhibit 4 at [24].

 38 Exhibit 4 at [31].

 39 Exhibit 4 at [30].

 40 Exhibit 3 at [10]; Exhibit 4 at [33].

 41   Exhibit 4 at [33] – [34].

 42 Exhibit 3 at [10].

 43 Exhibit 4 at [84].

 44   Exhibit 4 at [80] and [87]; See also Transcript PN962.

 45   Transcript PN665.

 46   Exhibit 3 at [14] – [16].

 47   Exhibit 3 at [23]; Transcript PN798.

 48   Transcript PN809.

 49   Exhibit 3 at [23] – [25].

 50   Respondent’s Outline of Submission at [53] – [55].

 51   Respondent’s Outline of Submissions.

 52   Respondent’s Outline of Submissions; Australian Chamber of Commerce and Industry, Submission 14, p.23 Inquiry into the Fair Work Amendment (Remaining 2014 Measures) Bill 2015.

 53   Respondent’s Outline of Submissions at [38] – [45].

 54   Respondent’s Outline of Submissions at [46] – [47]; See also Transcript PN1260 – PN1275.

 55   Transcript PN1276.

 56   Transcript PN1213.

 57   Transcript PN1214.

 58   Transcript PN1215.

 59   Transcript PN1256 – PN1258.

 60   Transcript PN1278 – PN1279.

 61   Exhibit 2 at [55]-[56].

 62 Exhibit 2 at [57].

 63   Exhibit 1 at [39] – [40].

 64   Exhibit 2 at [58]; See also Exhibit 1 at [44] – [46].

 65   Transcript PN509 – PN530.

 66   Transcript PN184 – PN226.

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