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[2013] FWC 2753
General information, not legal advice.
Fair Work Commission
2013-05-03
Vice President Lawler, President Lawler
Original judgment source is linked above.
Note: An appeal pursuant to s.604 (C2013/4346) was lodged against this decision.
s.505 - Application to deal with a right of entry dispute
Australasian Meat Industry Employees Union, The
Teys Bros (Beenleigh) Pty Ltd T/A Teys Brothers
[1] This is an application for an interim decision in relation to a right of entry dispute notified by The Australasian Meat Industry Employees' Union (AMIEU) in relation to the Teys Bros (Beenleigh) Pty Ltd (Teys) abattoir and meat processing facility at Beenleigh in Queensland.
[2] The following facts are not in dispute. The Beenleigh facility has over 500 employees and there is a high level of union membership. The parties had enjoyed a constructive industrial relationship for a number of years. There was a breakdown in that relationship as a result of events that occurred in December 2012. Teys took deep offence at the imputations contained in articles published in the Rockhampton Bulletin on 1 and 4 December 2012. In a context where a labour hire company was supplying employees to Teys, the articles alleged exploitation of employees.
[3] Teys strongly denies any exploitation of employees nor any awareness of exploitation by any of its labour hire suppliers. Teys, quite properly, places great importance on its reputation and considers that the AMIEU has sought to damage that reputation unfairly.
[4] For the years that the relationship remained constructive, Teys had always permitted the relevant AMIEU official/permit holder, Mr Journeaux, to hold meetings in the lunchroom. The lunchroom is almost invariably the location preferred by right of entry holders. In particular industries, it almost invariably provides the easiest and greatest access to the largest numbers of members and other employees. It was Mr Journeaux's preferred location for s.484 meetings.
[5] Teys management determined that, in light of the union's actions as it perceived them, it proposed to assert its right under s.492(1)(a) to specify the location of meetings held pursuant to an exercise of Mr Journeaux's right of entry and to specify a location other than the lunchroom. That change of position was presaged in a letter of 7 December 2012 from the CEO of Teys to the Branch Secretary of the AMIEU (the Notification Letter) (Ex A4).
[6] More recently Mr Journeaux legitimately wished to exercise his right of entry to hold meetings in relation to a protected action ballot that is occurring in the context of enterprise bargaining in which the AMIEU is a bargaining representative for a majority of the employees. The AMIEU has notified a dispute over the reasonableness of the company's requests as to meeting location. At the time the application was filed Teys had nominated a temporary structure in the nature of a gazebo in what may be described as an unpleasant environment (because the training room it would otherwise have nominated was being used for the protected action ballot). At the interim hearing Teys nominated the training room instead of the outdoor structure.
[7] Section 589 of the Fair Work Act 2009 (FW Act) provides:
(1) FWA may make decisions as to how, when and where a matter is to be dealt with.
(2) FWA may make an interim decision in relation to a matter before it.
(4) This section does not limit FWA's power to make decisions."
[8] The right of entry provisions relevant to the determination of the matter include:
The object of this Part is to establish a framework for officials of organisations to enter premises that balances:
(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:
(b) the right of employees and TCF outworkers to receive, at work, information and representation from officials of organisations; and
(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.
A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF outworkers:
(b) whose industrial interests the permit holder's organisation is entitled to represent; and
"486 Permit holder must not contravene this Subdivision
Subdivisions A, AA and B do not authorise a permit holder to enter or remain on premises, or exercise any other right, if he or she contravenes this Subdivision, or regulations prescribed under section 521, in exercising that right.
(2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.
"492 Conduct of interviews in particular room etc.
(1) The permit holder must comply with any reasonable request by the occupier of the premises to:
(a) conduct interviews or hold discussions in a particular room or area of the premises; or
(b) take a particular route to reach a particular room or area of the premises.
Note: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).
(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:
(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or
(i) intimidating persons who might participate in the interviews or discussions; or
(ii) discouraging persons from participating in the interviews or discussions; or
(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.
(3) However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.
(4) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.
"505 FWA may deal with a dispute about the operation of this Part
(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).
Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.
(2) FWA may deal with the dispute by arbitration, including by making one or more of the following orders:
(a) an order imposing conditions on an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(b) on application by any of the following to whom the dispute relates:
(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.
(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable."
[10] Teys accepts that the Commission has power to make an interim determination but submits this is not a case where that power may permissibly be exercised. In summary, Teys contends:
[11] Teys also points to the proximity of a Full Bench hearing of another dispute between the parties that is essentially an identical dispute at a Teys facility in Rockhampton. The President has referred that dispute to a Full Bench and it is assumed that the President will allocate this dispute to the same Full Bench. Teys contends that, even if it were otherwise appropriate to make an interim determination of the type sought by the AMIEU, this factor weighs strongly against a grant of relief.
[12] In considering whether to make an interim decision, it is important to properly characterise the dispute as it emerges from the evidence. The proper characterisation of the dispute is a matter to be determined objectively with attention to substance rather than form.
[13] At this stage of the evidence, the dispute in this case is not in substance a dispute about a particular request made by Teys in relation to a particular exercise of right of entry notified by Mr Journeaux. The union contends, on a satisfactory basis for interim purposes, that the dispute is about the course that Teys is taking on an ongoing basis. Mr Norris for the AMIEU resisted attempts by Mr Williams for Teys to confine the union's case to the meeting that Mr Journeaux was seeking to hold for purposes related to the protected action ballot that remained open at the time the application was filed.
[14] The dispute in this case is a dispute about Teys' notification of its intention to exercise the power in s.492(1)(a) in relation to all exercises of right of entry into the indefinite future to require s.484 discussions to be held in a place other than the lunchroom and whether Teys' decision is an unreasonable exercise (or foreshadowed exercise) of the right to request in s.492(1)(a).
[15] My provisional view is that the language of s.492 does not prevent a dispute of this character being raised under s.505 or require that a dispute notified pursuant to s.505 be confined to only a particular instance of the exercise of the power right to request in s.492(1)(a). The dispute as characterised is a reflection of the industrial reality emerging from the evidence as it stands - and, indeed, a not uncommon industrial reality.
[16] Mr Williams placed particular reliance on remarks made by Flick J in Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85 (Jessup, Flick and Tracey JJ) where his Honour said:
"60 The interests which must be taken into account when forming a view as to whether a "request" made by an "occupier" is "reasonable", however, are not self-evident. Questions arise as to whether the reasonableness of a "request" of an occupier:
or whether an occupier must only make a "request" which:
It may for present purposes be accepted that a "request" which hinders or impedes or frustrates the statutory right of entry conferred by s 484 could well be considered to be a "request" which was not "reasonable". The Legislature has addressed, at least in part, this question when it provides in s 492(2)(b) that a request is "unreasonable" if made with one or other of the "intentions" there set forth. Presumably it matters not whether the occupier achieves the intended purpose of (for example) "intimidating persons who might participate in the interviews or discussions".
61 But a "request" which falls short of hindering or impeding or frustrating the right of entry or which is not rendered "unreasonable" by reason of s 492(2) may be "reasonable" from the occupier's perspective and "unreasonable" from the perspective of the permit holder.
62 An occupier may, for example, have a number of rooms which are "fit for the purpose of conducting … interviews" within the meaning of s 492(2)(a). Some may be more suitable than others - some may have better facilities than others. And an occupier may not have any extant reason for reserving for its own purposes any one of those rooms but may wish to do so in case an occasion for their use arises unexpectedly in the future. The permit holder seeking entry may well accept that the best equipped rooms should be retained for the purposes of the occupier. But the permit holder may be displeased if the "particular room" allocated is by far the worst of those available. From the perspective of the permit holder, the allocation of an alternative and better room may be seen as more "reasonable". Similarly, an occupier may have a number of available rooms, none of which are presently being used by the occupier - or intended to be used. Section 492(1)(a), it will be noted, does not require that a permit holder be allocated a "room"; he may be requested to use an "area of the premises". An occupier acting in its own self-interest may decide to retain all of its available rooms for any such future occasion that may arise. The occupier may "request" that the permit holder "conduct interviews or hold discussions" in an "area" of its premises, such as an "area" otherwise located within an expansive assembly plant. Much may depend upon whether or not an occupier has any alternative use of its available rooms in mind at the time the request is made. Where an occupier only has one room available in which employees can meet, and where that room is already being used (for example) as a boardroom or by employees as a lunchroom, there may well be circumstances where an occupier can make a "reasonable request" that those seeking entry meet with employees in an "area" which is not a room but an open part of the premises. It may well not be unreasonable to refuse to make available a room if it is otherwise being used for an existing purpose.
63 Such hypothetical instances serve to emphasise that there may be a divergence between what an occupier regards as a "reasonable request" as opposed to the perception of those seeking to enforce a right of entry. There is much to be said for the view that the statutory right of entry conferred on a permit holder by s 484 should not be construed as conferring any greater right than is necessary to achieve the statutory objective. The common law rights of an occupier, on this approach, are only to be diminished to the extent absolutely necessary to give effect to the right conferred. Subject only to the requirement that an occupier make a "reasonable request", the balance that the Legislature has sought to achieve between granting a statutory right of access and the consequent diminution of the common law rights of an occupier is thereby struck. An occupier, on this approach, need not be further involved itself in promoting or accommodating the interests of those seeking entry.
64 Unless the perimeter within which a conclusion is to be reached as to whether a request of an occupier is a "reasonable request" are identified, it may be difficult to determine whether a permit holder is being subjected to a constraint which cannot lawfully be imposed."
[17] Mr Williams placed particular emphasis on the underlined portion of paragraph [62] as supporting Teys' reasonable right to specify a room other than the lunchroom. On the present state of the argument I do not consider that those obiter remarks lead to the conclusion that an employer can always reasonably determine to exclude meetings from a lunchroom because it is used as a lunchroom during meal breaks. I note that the reasoning of each of Jessup and Tracey JJ does not support such a conclusion. More importantly,
(a) The object in s.480 relevantly calls for a balancing of "the right of organisations to represent their members in the workplace, hold discussions with potential members" (s.480(a)) and "the right of occupiers of premises and employers to go about their business without undue inconvenience" (s.480(c)). On the employer side of that balancing exercise, the focus is on "undue inconvenience" in relation to the operation of the employer's business. There was no evidence that s.484 discussions being held by Mr Journeaux in the lunchroom during meal breaks had occasioned, or would occasion, any inconvenience to Teys in relation to the operation of its business. Mr Journeaux gave unchallenged evidence that he had never received a complaint in connection with such meetings during the years that he has conducted them in the lunchroom.
(b) Discussions held pursuant to a right of entry under s.484 can only be held during meal and other breaks: s.490(2). In many workplaces, including facilities such as Teys' Beenleigh, facility, employees tend to take their primary break - their meal break - in the lunchroom. It is unlikely that parliament intended that s.484 discussions could not take place in the room where employees eat their lunch. It may be noted that the meal break at the facility is only 30 minutes. The time available for s.484 discussions in relation to enterprise bargaining and other legitimate matters affecting the employees is short and employees can reasonably expect to be able to eat their lunch during their meal break.
[18] Mr Williams quite reasonably met the AMIEU application for interim relief on the basis that he was dealing with an interim hearing and that he was not required to lead all of the evidence Teys would lead for a final hearing nor fully develop his arguments. I accept that when the statutory construction argument is fully developed it may lead to a different construction.
[19] The extent of the power to make an interim decision is a function of the proper construction of s.589 of the FW Act as a whole. The Commission is not a Chapter III Court and cannot exercise the judicial power of the Commonwealth. The Commission is a creature of statute and exercises a variety of arbitral powers under the FW Act. Many of those powers are concerned with establishing future rights of parties to an employment relationship - which will typically involve altering existing rights. Section 589 is within Part 5-1 of the FW Act among the provisions that deal with the general powers of the Commission. It is obvious that the legislature intended that s.589 would apply to decisions made pursuant to the Commission's arbitral powers - including those establishing future rights (and see s.577). A construction that saw the power in s.589 excluded in any case where rights are altered for the future is a construction that is inconsistent with the purposive approach mandated by s.15AA of the Acts Interpretation Act 1901. In my view the approach adopted by then Commissioner Gooley in Liquor, Hospitality and Miscellaneous Union v Crown Melbourne Limited [2010] FWA 7379 is consistent with the power that the legislature intended to confer in s.589 and is the proper approach. It calls in aid apt principles in the general law to guide the exercise of the power conferred by s.589. I am unpersuaded that the authorities relied upon by Teys going to the unavailability of interim relief in cases that involved a final determination of rights are properly applicable to an exercise of power under s.589 on its proper construction.
[20] I am satisfied that the AMIEU has made out the requisite arguable case and that the relevant status quo ante was the position that obtained before the Notification Letter. It is certainly arguable that on the proper construction of s.492(1)(a) an employer will not be acting reasonably in making a request under that paragraph if the reason for the request is unconnected with the practical requirements of the employer's business and the avoidance of "undue inconvenience" and is instead motivated only by a desire to withdraw cooperation with the AMIEU (as is evident from the Notification Letter). In making that observation I should not be interpreted as in way finding that Mr Teys lacked a proper foundation for taking offence in the manner noted above. The authenticity of Mr Salter's shared feelings on the topic was evident in the witness box and he explained Teys' position in a measured and reasonable way. However, the union defends the propriety of its actions and this interim application is not the appropriate occasion for the final resolution of the rights and wrongs of the events of December 2012.
[21] I am satisfied that the balance of convenience favours the grant of interim relief, taking into account fairness between the parties. It is significant that enterprise bargaining is proceeding with intensity. On the unchallenged evidence before me on the interim hearing, Mr Journeaux is likely to have legitimate and well founded occasion to hold meetings that may well be attended by more employees than can be accommodated in the training room that Teys has now nominated as the usual place for meetings. I note that the AMIEU is the primary bargaining representative in bargaining and that any enterprise agreement concluded will apply to all employees, and not merely members of the AMIEU. Meetings at work at which the AMIEU provides reports to members and seeks their views (and the views of other employees) on the course of bargaining can only be held as s.484 discussions. It is in the interests of employees who wish to have input into the bargaining decisions made by the AMIEU as a bargaining representative that they can meet with Mr Journeaux or other AMIEU officials in a manner that is convenient to them during the short time that such meetings may be held pursuant to a right of entry under s.484.
[22] The final hearing will be conducted within a few weeks. If Teys' position is vindicated at the final hearing, it will be able to resume the approach presaged in the Notification Letter and that led to this dispute.
[23] The Commission is dealing with the dispute as characterised pursuant to s.505(1) and (2). Pursuant to s.589(2) I exercise the Commission's discretion to make an interim decision in relation to a matter before it by making an interim order under s.505(2)(e), being an interim order that I consider appropriate. In the exercise of my discretion I will deal with the dispute on an interim basis by issuing an order that permits Mr Journeaux to hold s.484 discussions with employees in the lunchroom pending the final determination of the application or until further interim determination, save that Teys retains the right to make a request under s.492(1)(a) should circumstances arise where Teys is subject to undue inconvenience in the operation of its business on account of meetings being held in the lunchroom. Of course, Mr Journeaux remains subject to the various other constraints and obligations imposed by the Part 3-4 of the FW Act.
L. Norris for The Australasian Meat Industry Employees Union.
D. Williams for Teys Australia Beenleigh Pty Ltd.
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