[2011] FWA 4096

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.508—Right of entry

Fair Work Australia
(RE2010/3826)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 29 JUNE 2011

Request that FWA act on its own motion pursuant to s.508 - allegations of coercion - right of entry behaviour - filming of workplace - publication of film - disclosure of information.

[1] The President of Fair Work Australia (FWA), the Hon Justice Giudice, received correspondence dated 9 November 2011 from Henry Davis York, Solicitors, representing Baiada, requesting that FWA take action of its own initiative under s.508(1) of the FW Act with respect to the National Union of Workers (NUW) and two of its officials. These two officials had entered the Baiada Poultry (Adelaide) Pty Ltd (Baiada) Wingfield site pursuant to an Order 1 made by Commissioner Hampton on 14 October 2010. The correspondence of 9 November 2010 asserted that the subsequent conduct of these officials and of the NUW was both improper and unlawful. I have referred to this correspondence as the Baiada request.

[2] I note that the Baiada request was further explained and detailed in correspondence of 26 November 2010.

[3] The Baiada request was referred to me for consideration. It has been the subject of hearings over some 12 days. At these hearings, Baiada was initially represented by Mr Woods, of counsel, and later, by Mr Stanley, of counsel. The NUW was initially represented by Mr Power, of counsel, and later by Mr Rozen, of counsel. The Fair Work Ombudsman (FWO) appeared at the initial hearing on 29 November 2010 and was represented by Ms Haig.

[4] On 21 January 2011 I issued a decision 2 in which I dealt with a comprehensive request for an order for the production of documents. On 27 April 2011 I issued a ruling which limited the scope of further considerations in this matter. This ruling rejected the NUW position that no further action should be taken and set out the scope of the further considerations I considered appropriate on the basis of the material then before me. That ruling was provided to the parties and is set out below with minor editing amendments.

[5] The hearing of the matter concluded on the basis that the parties agreed that I should reach a conclusion as to whether I was satisfied that the NUW, or its officials, had misused rights of entry exercisable under Part 3-4 of the FW Act. In the event that I reached that conclusion, the parties agreed that it was then appropriate that the matter was relisted to enable consideration of any form of restriction of those rights.    3

[6] The Baiada Group conducts various substantial chicken processing operations with facilities across Australia. It operates under a number of brand names and has a variety of workplace agreements with different unions, including the NUW. In South Australia, no agreement applies and, as a consequence the Poultry Processing Award 2010 (the award) has application.

[7] On 13 October 2010 Commissioner Hampton considered an application made by the NUW for s.483AA Orders and an Exemption Certificate pursuant to s.519 of the Act (Entry Orders). Section 483AA states:

[8] The hearing of these applications proceeded on an ex parte and confidential basis, no doubt due to the nature of the s.519 application. The Commissioner noted the substantial obligation on the NUW to demonstrate its position. The NUW asserted before the Commissioner that employees at Baiada’s Wingfield site were not being paid or afforded the minimum employment conditions and entitlements and that there was a very real chance that, if the relevant notice of a right of entry was given to Baiada, essential employment records would be lost or destroyed and the employment status of union members could be threatened.

[9] Commissioner Hampton issued the Entry Orders 4 on 14 October 2010.

[10] NUW permit holders, Mr Snelson and Ms Pierce entered the Baiada Wingfield premises on 18 and 19 October 2010. The NUW acknowledges that, in the course of various tours of the plant, Mr Snelson covertly filmed employees at work and the work environment. The NUW agree that this film was subsequently published on the NUW website in an edited form.

[11] The matters addressed in this decision are set out below.

1. A Summary of the contentions of the parties.

[12] The Baiada position is that in September 2010, the Baiada Group Industrial Relations Manager, Ms Takla met with the General Branch Secretary of the NUW, Mr Roberts and the General Secretary of the NUW, Mr Donnelly at the Melbourne offices of the NUW. Baiada assert that, in the course of these discussions Mr Roberts and Mr Donnelly expressed concern that Baiada Wingfield employees were not generally members of the NUW and that the NUW also had concerns over union membership issues with respect to Baiada operations in Western Australia. Baiada asserts that the evidence now before me establishes that Mr Roberts and Mr Donnelly requested Baiada to enter into a membership agreement and, if this was not agreed, advised Baiada that it would face a campaign of harassment.

[13] Baiada assert that the NUW’s subsequent actions, including the seeking of the Entry Orders, its behaviour in exercising the rights of entry, its taking and subsequent use of the recorded film, and subsequent disclosure of information provided to it, all formed part of this threatened campaign which involved a substantial presence outside of the Baiada Wingfield plant, the involvement of media, approaches to Baiada customers, and to employees of other companies. Specifically, Baiada asserts that Mr Snelson and Ms Pierce misused their right of entry in that the right of entry was not for a bona fide purpose, but for the improper purpose of harassing the employer. Baiada assert that the NUW campaign also involved invitations to its employees and complaints to the Fair Work Ombudsman (FWO), Department of Immigration and to SafeWork SA.

[14] In the alternative, Baiada assert that even if its position with respect to the alleged threats made to Ms Takla in September 2010 is not accepted, the actions of the NUW and its officials represent a misuse of rights established under Part 3-4 of the FW Act so as to warrant FWA acting of its own motion to restrict future entry rights.

[15] The NUW position is that the evidence does not permit a finding that Mr Roberts and Mr Donnelly threatened or issued an ultimatum with an intent to coerce Baiada into a form of membership agreement.

[16] The NUW asserts that the absence of coercion means that there was no contravention of s.348 of the FW Act and no misuse of rights in the context of s.508.

[17] The NUW asserts that there was an appropriate basis upon which its s.483AA application was founded. With respect to the filming of the Baiada premises, the NUW asserts that Mr Snelson was directed to take the film by his lead organiser, Mr Garland and that the NUW and Mr Snelson understood that legal advice had been provided to confirm that filming could occur under s.482 of the FW Act. In any event, the NUW asserts that the filming was a reasonable action which was associated with the inspection function.

[18] The NUW asserts that its publication of the film in an edited form on its website was appropriately explained by information on the website which confirmed the NUW investigation of Baiada and invited the provision of information to this effect.

[19] The NUW asserted that its actions in taking and publishing the film were such that it did not intentionally record conversations and that appropriate and responsible steps were taken to preserve the privacy of employees recorded on the film.

[20] The NUW disputes that it made inappropriate enquiries of Baiada employees or that it inappropriately disclosed information provided to it by employees.

[21] In summary terms, the NUW disputes that there was any misuse of the rights of entry established under Part 3-4 of the FW Act.

2. Part 3-4 of the Fair Work Act

[22] Part 3-4 of the FW Act deals with rights of entry. The objects of this Part are set out in s.480 in the following terms:

[23] The content of Part 3-4 was summarised by a Full Bench of FWA in Re Australian Industry Group (re AiG) 5 in the following terms:

[24] Section 508 states:

[25] I have initially considered the approach to be adopted pursuant to s 508 in deciding whether FWA should be satisfied that the NUW, Mr Snelson and/or Ms Pierce has misused rights under Part 3-4.

[26] As I indicated in my 21 January 2011 decision dealing with the production of documents, there was a substantial onus on Baiada to put sufficient material before FWA to establish that FWA should act, of its own motion, in this matter.

[27] The capacity for the FWO to make an application to restrict the NUW rights of entry is obvious from s.508(3)(b). There can be no doubting the extensive involvement of the FWO consequent upon requests from the NUW. Correspondence forwarded to Baiada from the FWO on 21 December 2010 summarises the substantial FWO actions.

[28] The FWO only appeared at the initial hearing of this matter. At that hearing it confirmed that Baiada had made a complaint to the FWO with respect to the behaviour of the NUW and it advised that this complaint was being investigated. The FWO confirmed that the parties could expect to have an indication of the FWO position in this respect by mid-January 2011.

[29] I have not received any subsequent advice from the FWO relative to its investigation into the NUW, despite my associate’s two requests for advice in this regard. As a consequence, I have not drawn any conclusions about the propensity of the FWO to initiate action in this matter.

[30] In addition to the capacity for the FWO to initiate action, Part 3-4 provides that parties in dispute about the exercising of rights of entry have the capacity to seek the assistance of FWA pursuant to s.505. Further, the Court may be required to consider certain types of alleged breach of behaviours prescribed in Part 3-4. These options all support the proposition that it would only be in exceptional circumstances, supported by substantial evidence, that FWA would act of its own initiative.

[31] Such an action could, in some circumstances, necessitate that FWA convene an enquiry to investigate a matter about which there was sufficient evidence to indicate the real potential for a misuse of rights of entry.

[32] In this matter, the initial assertions and material provided by Baiada went substantially beyond the scope of the matters ultimately considered. Without being exhaustive, these assertions included the potential for involvement of the NUW in the provision of the film taken by Mr Snelson to the Australian Broadcasting Commission (ABC) where it was later shown on a prominent current affairs programme. They went to correspondence sent by the NUW to organisations and individuals who traded with Baiada. Baiada and the NUW have agreed that my consideration should not extend beyond the particular circumstances argued before me and the evidence put to me in relation to those circumstances. The Baiada position in this respect is significant. In effect, it is that the substantial information before FWA is such that it supports the taking of action by FWA but that any broader enquiry is neither requested nor appropriate 6.

[33] I have approached the question of whether FWA should act of its own motion with respect to the allegations made by Baiada on the basis that Baiada has presented to the Tribunal sufficient evidence to require consideration. Were it not for the provision of evidence which gives rise to significant questions about the misuse of entry rights, I consider that FWA should refuse to consider an action of its own motion and leave the initiation of actions of this nature to others. I have noted that the NUW has provided significant evidence in reply, to support its position. I have also noted that the NUW has made a significant concession with respect to the filming activity. My ruling of 27 April 2011 acknowledged my position that the substantial information before me was sufficient to warrant further inquiry by FWA. I am satisfied that the evidence before me raises significant questions about the behaviour of both the NUW and its officials which is appropriate in the context of Part 3-4 and matters which clearly have the potential to involve future disputation. Such an approach appears to me to be consistent with the objects of Part 3-4 and of the role of FWA in regulating behaviour under this Part. The extent to which the Baiada allegations go to behaviours said to be initiated by the NUW as an organisation rather than behaviours simply initiated by individual permit holders is also significant in this respect.

[34] I have restricted my findings with respect to consideration of the Baiada request to the matters about which Baiada has provided evidence.

[35] The consideration of the evidence in this respect gives rise to some related considerations.

[36] I have considered the extent to which there should be any comprehensive review of the material put to Commissioner Hampton in support of the Entry Orders.

[37] I do not have access to all of the material before Commissioner Hampton in those proceedings which were convened on a confidential basis. Further, I do not consider that the Baiada request should be regarded as a mechanism for a review of those proceedings. This is not an appeal against that decision and no appeal has been lodged. Finally, the reality is that those entry rights established by Commissioner Hampton have occurred such that there appears little point in revisiting them.

[38] Consequently, with two significant exceptions, I have not had regard to the applications made to Commissioner Hampton or to the material put before the Commissioner.

[39] The two significant exceptions relate, firstly, to the issue of whether, on the evidence before me, the applications made for the Entry Orders were made as part of a pattern of coercive activities in a campaign to force Baiada to agree to a union membership arrangement.

[40] Secondly, I have considered whether the evidence before me with respect to the omission of certain of the payroll information provided to Commissioner Hampton, also indicates that the Entry Orders applications were, in effect, a sham, or part of a campaign to force Baiada into a membership agreement. I have noted that the NUW has corresponded with Hampton C in this respect subsequent to the disclosure of this evidence, and has provided me with a copy of that correspondence which advises that this omission was in error.

[41] One of Baiada’s contentions is that my consideration of whether the NUW actions should be regarded as a misuse of entry rights on the basis that the evidence before me compels a finding that there was an unauthorised use or disclosure of information or documents consistent with s.504. Baiada assert that s.510 then obligates FWA to suspend or revoke an entry permit if it is satisfied as to the contravention of s.504.

[42] Section 504 states:

[43] This section is a civil remedy provision, the enforcement of which is the domain of the Court.

[44] Section 510 states:

[45] For FWA to revoke or suspend an entry permit held by a permit holder, FWA would, in the case before me, need to be satisfied that the permit holder has contravened section 504. I consider a finding that the permit holder has contravened section 504 is a matter for the Court.

[46] Leaving s.510(1)(b) aside, each of the other circumstances detailed in that subsection are predicated on findings by other authorities. Section 504 is enforced by the Court and the assumption of those powers by FWA appears inconsistent with the operation of s.510.

[47] Consequently, as there has been no finding of the Court in relation to s.504 and it is not FWA’s role to make such a finding, s.510 does not operate in this case to require a revocation or suspension mandatory.

[48] I should note that this conclusion should not be misconstrued. I do not see that there is any prohibition on FWA having regard to the criteria set out in s.504, or, for that matter, other elements of Part 3-4, in reaching a conclusion about whether there has been a misuse of entry rights which warrants future restriction of those rights.

[49] Section 508 provides a discretionary power. Central to the exercise of discretion is that the official or the organisation has misused the rights. I have adopted the position that I must be satisfied as to misuse relative to actions that are inconsistent with the objects of Part 3-4 and/or the obligations set out in the various sections within that Part which detail the:

[50] I have not taken the examples of misuse in s.508(4) as limiting the Tribunal’s capacity to find other instances of misuse.

[51] Section 770 of the Workplace Relations Act 1996 provided the Australian Industrial Relations Commission with the capacity to restrict the rights of an organisation, or the officials of an organisation, if the Commission was satisfied that there was an abuse of the rights of entry established under that legislation.

[52] Those rights of entry were analogous to the rights established by Part 3-4 of the FW Act.

[53] I have concluded that the concept of an abuse of rights of entry is inherently similar in nature to the misuse of rights referenced in s 508.

[54] The Dictionary 7 definition of the two terms confirms this:

[55] In Office of Australian Building and Construction Commission v CFMEU 8 a Full Bench of the Australian Industrial Relations Commission concluded:

[56] I have adopted this approach in that I consider that the misuse which must be established on the balance of probabilities must refer to the use or purpose of the rights of entry which is contrary to the purpose for which they were granted by the Entry Orders or by Part 3-4 itself. In considering the allegations of misuse I have adopted the position that very clear evidence must be provided to substantiate those allegations given the impact that any findings may have on the NUW.

[57] The fundamental issue for determination is simply whether, on all of the material before me, I am satisfied that such misuse by either the NUW and/or its officials is established.

The Evidence

[58] Whilst I have taken into account all of the evidence before me, I have endeavoured to summarise the substantial evidence put to me.

[59] To assist in the consideration of this decision I have set out below a list of the primary persons to whom I have referred.

[60] Ms Takla is the Baiada Group Industrial Relations Manager. Her evidence went to her role and, most particularly, to the discussion she had on 8 September 2010 with Mr Roberts and Mr Donnelly. For the reasons which I have detailed later, I am not convinced that Ms Takla’s evidence reflected a verbatim account of those discussions or that it established her versions of these discussions on the balance of probabilities.

[61] Ms Takla’s evidence went to her later discussions with Mr Richardson of the NUW on and around 18 October 2010 and her subsequent discussions with Mr Roberts who she referred to the Baiada owners, Mr John and Simon Camilleri.

[62] Notwithstanding the conclusions I have later detailed, I found Ms Takla to be a credible witness, although I have not accepted all of her evidence.

[63] Mr Stack is not an employee of Baiada. His uncontested evidence was that he met with Ms Takla immediately after she left the NUW’s Melbourne premises on 8 September 2010 and that Ms Takla advised him that the union had treated her unfairly and had requested that she instruct Baiada employees in South Australia and Western Australia to join the NUW.

[64] Mr Hu is the South Australian State Manager for Baiada. Mr Hu gave evidence about discussions he had with Mr Roberts and Mr Garland in July 2010 relative to the approach that Baiada adopted towards NUW membership, access and information in South Australia. Mr Hu’s evidence went to the operation of the Wingfield facility and his involvement in the termination of the employment of a Mr Mabior, a member of the NUW. Mr Hu’s evidence covered his involvement in the exercise by the NUW of entry rights on 18 and 19 October 2011, including the instructions he gave to Mr Snelson and Ms Pierce and to other Baiada management personnel relative to access to employees and inspections of the site. Mr Hu’s evidence went to the impact of the NUW actions on Baiada Wingfield operations and the neutral position adopted by management towards union membership.

[65] I found Mr Hu to be a credible witness both generally and particularly with respect to the events of 18 and 19 October 2010. I am not persuaded that Mr Hu was, in any of his dealings with the NUW, particularly supportive of the union but I also acknowledge that there is no obligation on him to be supportive in this respect.

[66] Ms Smith is the Baiada Wingfield Employee Relations Manager. Her evidence went to discussion she was involved in with the NUW relative to the termination of Mr Mabior’s employment, her contact in September 2010 with a cold storage company, contracted to Baiada wherein she was advised that the NUW had allegedly expressed concern over Mr Mabior’s dismissal. Ms Smith’s evidence went to sustained NUW organiser presence at the Baiada Wingfield site for two weeks from 17 September 2010 and to enquiries from employees about this presence. Ms Smith’s evidence was to the effect that in late September 2010, Safework SA also attended the site in response to anonymous complaints but that the safety inspectors did not identify any significant safety issues.

[67] Following the right of entry request made by Mr Snelson and Ms Pierce on 18 October 2010, Ms Smith consulted with Mr Hu and then met with Mr Hu, Mr Snelson and Ms Pierce. She recounted her observations of Mr Snelson photographing Ms Pierce in front of a poster in the Baiada boardroom and of Mr Hu then issuing an instruction that the photos must be deleted as approval to take photographs on this site had not been given. She recounted how Mr Hu looked on while the photos were deleted.

[68] Ms Smith’s evidence went to her involvement with the inspections undertaken by Mr Snelson and Ms Pierce and to her facilitation of discussions they had on the shop floor and, later, in a private room with Baiada employees.

[69] Ms Smith’s evidence also went to the conduct of further NUW official entry inspections in November 2010.

[70] On 10 November 2010 Ms Smith observed NUW officials handing specific envelopes to Baiada personnel. She provided to the Tribunal a copy of letters addressed to specified Baiada employees inviting them to a union meeting. Ms Smith was provided with these letters by employees on 10 and 11 November 2010.

[71] Ms Smith’s evidence went to subsequent NUW rights of entry requests with respect to Baiada labour hire contractors. It went to her observations of the NUW website and the film attached to that website which she asserted reflected the tours she participated in on 18 and 19 October 2010. Her evidence went to the content of the ABC Lateline programme which included this film and statements made by Mr Mabior. She also gave evidence about a Safework SA visit to the Wingfield site which did not identify any significant safety issues.

[72] Finally, Ms Smith’s evidence recorded her observations about allegations in pamphlets handed out by the NUW to Baiada employees and comments she attributed to the NUW on Facebook sites.

[73] I found Ms Smith to be a credible witness.

[74] Mr Markou is the Baiada Wingfield site Operations Manager. His evidence went to the Baiada operations generally and the Wingfield site specifically. Mr Markou gave evidence about discussions he had with a manager from a cold storage company, Swires, who advised him of NUW concerns over employment issues at Baiada. Mr Markou referred to correspondence he received from SJP Chicken Processes, contracted to Baiada, which correspondence recorded concerns on behalf of nominated employees about ongoing union contact.

[75] Mr Markou’s evidence substantially confirmed that of Ms Smith with respect to the Safework SA visit in late September 2010.

[76] Mr Markou was involved in the right of entry inspections undertaken by Mr Snelson and Ms Pierce on 18 and 19 October 2010. His evidence was that Mr Snelson and Mr Pierce were instructed that no photographic equipment or pens with loose lids could be taken into, or used in the plant.

[77] Mr Markou’s evidence went to his observations about the behaviour of Mr Snelson and Ms Pierce during the inspections and to arrangements he subsequently put in place to allow them to talk with employees.

[78] Mr Markou’s evidence was that he considered that the video film attached to the NUW website was taken during the first and second plant inspections which occurred on 18 October 2010. His opinion was that the film depicted confidential information about the Baiada Wingfield facility.

[79] I found Mr Markou to be a creditable witness.

[80] Ms Sinkovic is a Production Manager at Baiada Wingfield. She reports to Mr Markou. Her evidence went to her interactions with NUW representatives in the car park and her receipt of a pamphlet which urged Baiada employees to unite with the union.

[81] Ms Sinkovic met with Mr Snelson and Ms Pierce during the entry to the site on 19 October 2010 and was instructed by Mr Markou to ask various employees nominated by them to leave their work stations to meet with union officials. Ms Sinkovic recounted Mr Snelson’s concerns with respect to the advice she gave to employees.

[82] Ms Sinkovic also recounted concerns expressed to her by a Baiada employee, Mr Patel over the extent to which his discussions with the NUW officials had been recounted to another employee. Additionally, she recounted concerns expressed to her by an employee, Ms Burton, over the provision to Ms Burton of a letter from the union with her name on it.

[83] Ms Sinkovic’s evidence was not contested.

[84] Mr Onley is the Baiada Group Human Resources Manager. Ms Takla reports to him. Mr Onley’s evidence was that on 22 September 2010 Ms Takla advised him that Mr Garland of the NUW had raised with her, concerns that he believed there was systematic abuse of employees at the Baiada Wingfield site and serious underpayment issues. Mr Onley initially agreed that Ms Takla should travel to Adelaide to meet with Mr Garland about these issues, but ended up travelling to Adelaide himself with respect to them. Before attending a meeting with Mr Garland about these matters, Mr Onley became concerned over the accuracy of pay rates under the award. He clarified these issues with Ms Smith and was ultimately satisfied that the pay rates were accurate.

[85] Mr Onley spoke with Mr Garland on 27 September 2010 and ultimately met with him on 28 September 2010. Mr Onley’s evidence was that Mr Garland advised him that he had authority from over 100 of the Baiada employees to investigate breaches of the FW Act, underpayments and racial and physical abuse. Mr Garland provided Mr Onley with a list of 10 suspected types of breach 9 and eight specific complaints. Mr Onley’s evidence was that he discussed these concerns with Mr Garland and undertook to investigate and address them. Mr Onley requested to meet with any employees who had made complaints but his evidence was that Mr Garland advised that employees were afraid that they would be victimised if they spoke up.

[86] Mr Onley then met with Mr Hu and Ms Smith, both of whom denied these allegations. He initiated investigations which refuted Mr Garland’s allegations.

[87] Mr Onley’s evidence was that during the week commencing 11 October 2010 an audit of Baiada employee wage records disclosed some discrepancies in superannuation payments in that some employees had not had superannuation payments adjusted to take account of increases in the award transitional pay rates. Mr Onley advised that these superannuation payments were remedied on 19 October 2010, within the regulatory time period for the lodgement of superannuation payments.

[88] On 19 October 2010 Mr Onley provided Mr Snelson with documentation which identified the Baiada Wingfield employees, their classification, start date, employment type and pay rates consistent with the terms of the Entry Orders issued by Commissioner Hampton.

[89] Mr Onley’s evidence was not challenged.

[90] Mr Argueta is a machine operator at the Baiada Wingfield site. His evidence was that Ms Sinkovic asked him to meet with the NUW officials, that he was asked about his classification, working hours and whether he was happy with his pay rate. He confirmed that he was happy with his pay rate.

[91] Mr Bernhardt is a Baiada Wingfield Dispatch Supervisor. His evidence was that he was approached by NUW Officials in the car park and advised them that he was not interested in discussing employment issues with the union. Mr Bernhardt met with the NUW officials in the Baiada plant and advised them that he was happy with his rates of pay. Mr Bernhardt indicated his annoyance at the constant presence of the NUW at the workplace.

[92] Ms Burton is a supervisor at Baiada Wingfield. Her evidence was that she had been approached by NUW officials outside of the plant but had not engaged with them until, in the week commencing 8 November 2010, she was given a letter with her name on it. This letter invited her to attend a union meeting. Ms Burton provided the letter to Baiada management and was annoyed her name had been provided to the NUW. Ms Burton’s evidence was not challenged.

[93] Mr Patel is a Tray Pack Packer at Baiada Wingfield. His evidence was that he was approached by NUW officials outside of the plant but indicated that he was happy with his working arrangements despite being told by the NUW that he should be receiving more pay.

[94] Mr Patel met with Mr Snelson and Ms Pierce in working hours, at the instigation of Ms Sinkovic in October 2010. He was asked about his pay rate, starting time and breaks and provided information accordingly. He then told the union officials he was happy about where he was and about his work.

[95] Mr Patel’s evidence was that two to three hours later one of his Indian friends asked him why he had said he was “happy with the company” and recounted the information he had provided to Mr Snelson. Mr Patel was annoyed about this and complained to Ms Sinkovic.

[96] Mr Patel’s evidence was not challenged.

[97] Mr Pen is a Leading Hand at Baiada Wingfield. His evidence was that he refused NUW invitations to talk and join the union but that in early November he was given a letter with his name on it. The letter invited him to a union meeting. Mr Pen’s evidence was not challenged.

[98] Mr Pham is a Process Worker at Baiada Wingfield. His evidence is that he has felt harassed and pressured by the NUW approaches to him. Mr Pham provided the union with his name and telephone number and was subsequently telephoned to ask if he wished to join the union. He declined to do so. I do not consider this evidence to be pertinent to this matter.

[99] Mr Russo is a supervisor with Baiada Wingfield. His evidence is that he feels harassed by the NUW. Further he asserts that in October a male and a female union official toured the plant and spoke to him asking about pay rates, working hours, breaks and the number of people he supervised. Mr Russo attended a union meeting on 13 November 2010 where there were 12 persons present who said they were Baiada employees. At the meeting he was told that the NUW were pursuing an unfair dismissal claim with respect to Mr Mabior and that the NUW now had 80 members. Mr Russo’s evidence was that some of the meeting attendees raised issues including start times, the provision of microwave ovens, remuneration, working conditions and casual employment. Mr Russo’s evidence was that a NUW official advised the meeting that if an employee joined the union Mr Hu would sack him or her. Mr Russo disputed the veracity of that assertion before leaving the meeting. Mr Russo’s evidence was not disputed.

[100] Ms Swatts is a supervisor at Baiada Wingfield. On 9 or 10 November 2010 NUW officials outside of the plant handed her a letter with her name on it. The letter was an invitation to a union meeting. Ms Swatts’ evidence was not challenged.

[101] Mr Tselekidis is engaged by a contractor and works at the Baiada Wingfield facility. His evidence was that on or about 9 November 2010 he observed an NUW official taking photographs outside of the Baiada first aid room. Whilst I do not doubt Mr Tselekidis’ evidence I do not consider it to be relevant to this matter.

[102] Mr Vanderhout is a Process Worker at Baiada Wingfield. His evidence was that he had seen NUW officials outside of the plant in October but had not spoken to them. In mid-October he was asked by his supervisor to go to the boardroom and talk with NUW officials. He did this but advised the officials that he was not interested in further discussions. Some weeks later the NUW gave him a letter with his name on inviting him to a meeting. Mr Vanderhout asserts that he was concerned at this in that he had not given the union his name.

[103] The NUW called a number of witnesses in support of its position.

[104] Mr Snelson’s evidence was that he was the organiser responsible for the Baiada Wingfield site. Mr Snelson was involved in representing Mr Mabior at the time of the termination of his employment with Baiada. Following that termination of employment, Mr Snelson’s evidence was that the NUW organised a campaign at the site to highlight the unfair and unlawful aspects of that dismissal. In the course of discussions with employees Mr Snelson’s evidence was that he became aware of real issues and questions about the Baiada compliance with the FW Act and the award. He summarised the types of concerns raised with him.

[105] Mr Snelson subsequently discussed these concerns with other NUW officials and was given an instruction by Mr Roberts to enter the site to investigate contraventions of the FW Act pursuant to the Entry Orders. Mr Snelson explained his understanding of the basis upon which these Orders were pursued and his role in obtaining information in support of those applications. Mr Snelson’s evidence went to his involvement in a meeting with Swires employees as part of a regular organising visit.

[106] Mr Snelson’s evidence was that Mr Garland, the NUW lead organiser, directed him to covertly film the site inspection and provided a camera disguised as a pen for this purpose. Mr Snelson understood that the NUW had legal advice which indicated that this was a legal action but it was the first time he had filmed a right of entry inspection. He was aware that a number of other officials, including Ms Pierce but particularly Mr Roberts were aware of the filming proposal.

[107] Mr Snelson’s evidence was that neither Mr Hu nor Mr Markou told him before the first two inspections that he could not take a camera or film the workplace and that he did not understand Mr Hu’s instruction that the photographs taken in the Baiada boardroom to constitute a prohibition on filming in the workplace.

[108] Mr Snelson filmed the workplace over the first two inspections on 18 and 19 October 2010. He recalls an instruction not to film being given to him at a later inspection but had, by that time, completed his filming.

[109] Mr Snelson gave the film to Mr Garland and did not subsequently see it until it was posted on the NUW website. While he discussed the use of the film with Mr Roberts before the right of entry he could not recall the detail of those discussions. He understood the film was to record the speed of the production line, processes used, and relevant classifications so as to assist in the assessment of appropriate pay rates.

[110] Mr Snelson’s evidence went to the provision to him, by Baiada, of time and wages records for its employees and the various discussions he had with Baiada employees while he and Ms Pierce were within the facility.

[111] I have concluded that Mr Snelson was not being truthful in a number of respects. Of most significance in this respect is his evidence relative to the admissibility of the filming, where I have concluded that he knew that Baiada did not allow film to be taken in the workplace. He entered the workplace equipped with the covert filming equipment. He was told not to film and did so. He could not satisfactorily explain how the film could assist in determining classification issues under the Award. I have concluded that his actions in filming the workplace were primarily part of the NUW’s membership campaign.

[112] Ms Pierce’s evidence was that while she was an NUW organiser she was not actively involved with Baiada employees until she was asked to participate in the 18 and 19 October 2010 right of entry inspection.

[113] Ms Pierce’s evidence was generally consistent with that of Mr Snelson. She was aware of the covert filming arrangement and facilitated this. She understood the film was intended to verify the visual inspection.

[114] Ms Pierce was aware that an ABC television film crew was present at the Baiada Wingfield site on 18 October 2010. She was introduced to the ABC presenter by Mr Garland.

[115] Ms Pierce’s evidence confirmed the inspection process, her perspective with respect to discussions with Baiada managers and employees including Mr Bernhardt and Mr Patel.

[116] Ms Pierce passed on the employee records provided to her by Baiada management to personnel in the NUW office. She had no involvement in the preparation of letters with Baiada employees’ names on them but was aware that these letters were prepared using information obtained on the right of entry visit.

[117] I have concluded that Ms Pierce’s evidence was generally reliable but that she was aware that Baiada had instructed her and Mr Snelson not to film the premises and proceeded to facilitate the filming. I have also concluded that Ms Pierce was aware that the filming was an unusual and questionable action.

[118] Mr Richardson is the Assistant General Secretary of the NUW. His evidence went to his limited involvement in the decision to seek the Entry Orders. Mr Richardson was aware of the seriousness of the allegations in the application. He was aware that other NUW personnel had met with Baiada management and employees and that they remained concerned about the company’s compliance with the FW Act and the award.

[119] Mr Richardson became aware of the NUW organising campaign with respect to Baiada only after the termination of Mr Mabior’s employment.

[120] Mr Richardson was involved in the preparation of correspondence to Baiada with respect to the 18 October 2010 right of entry and was present in Adelaide on that day. He had telephone discussions with Ms Takla on that day. In the course of these discussions he drew attention to the superannuation underpayments.

[121] Mr Richardson’s evidence was that prior to 18 October 2010 he was not aware of the proposed filming of the Baiada workplace.

[122] I found Mr Richardson to be a credible witness and have accepted his evidence.

[123] Mr Roberts is the General Branch Secretary of the NUW. His evidence was that the NUW had concerns about Baiada’s Wingfield employment practices and approach to union membership for many years. He recounted the telephone and face-to-face discussions he had with Mr Hu from July 2010. From at least August 2010 Mr Roberts raised with Mr Hu issues which were primarily directed at improving the capacity of the NUW to recruit members at Baiada. Mr Roberts detailed the basis upon which he disagreed with Mr Hu over actions he sought that Baiada should take and his consequent email instruction to Mr Garland on 20 August 2010 in which he stated:

[124] I note that the reference to “Dada” refers to Mr Hu and I also note that Mr Gunstone is an NUW Organiser.

[125] Mr Roberts’ evidence addressed the meeting with Ms Takla on 8 September 2010 in some detail. I have further considered his evidence in this respect later in this decision. However his evidence is clear to the extent that he advised Ms Takla that he considered Mr Hu to be staunchly anti-union and that the NUW would be embarking on an organising campaign.

[126] Mr Roberts was made aware of the termination of Mr Mabior’s employment and his evidence was that the information given to him in this respect reinforced the concerns he had about Baiada’s employment practices.

[127] Mr Roberts was integrally involved in the decision to seek the Entry Orders. His evidence was that through this application he sought to ascertain Baiada’s compliance with the FW Act and award.

[128] Mr Roberts’ evidence was that he was aware that Mr Snelson was to film the workplace during the right of entry inspection in order to facilitate the investigation of breaches of the FW Act and the award and endorsed this action on the basis that the film would help describe the functions undertaken by employees. Mr Roberts discussed the filming proposal with a range of NUW personnel and obtained legal advice that this action was possible before he instructed that the filming should occur. This advice was later provided to me. He could not recall seeking advice about the covert nature of the filming activity.

[129] Mr Roberts further discussed the use of the film with Mr Garland after it had been taken and, after obtaining further advice, he authorised the editing of the film to stop the identification of individuals. He approved its subsequent publication through the NUW website.

[130] Mr Roberts confirmed that Mr Richardson’s role included the coordination of the investigation into any breaches of the FW Act or the award. He confirmed that this investigation was undertaken by Melbourne-based NUW personnel.

[131] Whilst I found Mr Roberts to be a credible witness, I did not find his evidence with respect to the differentiation between the NUW’s membership objectives and its concerns over underpayments to be convincing. His explanation of the decision to film the workplace represents an example of actions which were primarily directed at membership issues.

[132] Mr Donnelly is the General Secretary of the NUW. His evidence went to the meeting with Ms Takla on 8 September 2010 and largely corroborated the evidence of Mr Roberts in this respect. Mr Donnelly confirmed his concerns that the Baiada Wingfield site was the only Baiada plant in Australia without union membership, but that the NUW had not been successful in promoting membership in the past, partly because it had not been well organised.

[133] Mr Donnelly’s evidence was that he was aware of the NUW campaign to harm the purchasing of Lillydale (owned by Baiada) Chickens and of the NUW website campaign but that he had not read this information.

[134] Mr Donnelly was not involved in the decision to make the applications seeking Entry Orders and was not informed of the filming proposal. I found Mr Donnelly to be a creditable and reliable witness and have relied heavily on his evidence.

Other evidence

[135] Whilst I have taken into account all of the witness and other evidence before me, it is appropriate that I comment particularly on three additional matters.

[136] Firstly, I have considered the film posted on the NUW website. The film depicts workers and work processes. I am unable to see that it would provide any assistance in the identification of classifications or pay rates. It records employee voices against a background of production line noise. I have concluded that it would be difficult, but probably not impossible to link recorded conversations with the employees who are shown working. However, it records employees being asked about their employer, working hours, pay rates and breaks. It predominantly shows details of the Baiada processing operations.

[137] I have noted the advice provided to the NUW on 18 October 2010 with respect to the proposed publication of the film. This was the advice referred to by Mr Roberts. It confirmed that the film could be published on the NUW website and ultimately proposed an explanatory caption to protect the NUW position.

[138] Finally, the e-mail correspondence between Mr Roberts, Mr Donnelly, Mr Garland and a Mr Gunstone in August confirms that the NUW was, at that time, anxious to reach an agreement with Mr Hu to enable it to more directly promote union membership and that it was concerned that such an agreement could not be reached.

Conclusions with respect to the evidence

[139] I have concluded that, for some years before 2010 the NUW was concerned that it did not have membership at the Baiada Wingfield premises and that it took substantial steps to address this, commencing in August 2010. This is clear from the evidence of Mr Roberts, Mr Donnelly and Mr Snelson.

[140] I have concluded that it was not until the dismissal of Mr Mabior in September 2010 that the NUW had access to information from employees of Baiada Wingfield which it considered identified the potential for award or legislative breaches. This is clear from the evidence of Mr Snelson and Mr Roberts.

[141] I have concluded that, as at 20 August 2010 the NUW was frustrated that the owners of Baiada and Mr Hu at a local level, were not prepared to take actions which would facilitate their access to the employees at the Wingfield site, and that an organising campaign was initiated to increase union membership. This involved significant NUW resources. This is clear from the evidence of Mr Donnelly, Mr Roberts, Mr Snelson, Ms Pierce and that of numerous Baiada employees who subsequently observed NUW personnel outside of the Baiada Wingfield site.

[142] My conclusions with respect to the meeting at the NUW offices on 8 September 2010 which involved Ms Takla, Mr Roberts and Mr Donnelly are based on all of the evidence before me in this respect. I think it likely that given the effluxion of time and contentiousness of a range of the issues, that none of the witnesses precisely recall this meeting.

[143] Ms Takla’s evidence was:

[144] I have noted the evidence of Mr Roberts and Mr Donnelly in this respect and have concluded that Ms Takla expressed reservations to Mr Donnelly and Mr Roberts about Mr Hu and proposed that the discussions occur on a confidential basis. It may have been that Ms Takla was endeavouring to win over the confidence of the NUW officials but, from a corporate perspective her remarks were unfortunate and had the real potential to exacerbate the concerns that already existed on the part of the NUW officials.

[145] I have concluded that neither Mr Roberts nor Mr Donnelly advised Ms Takla that the NUW wanted Baiada to agree to a membership arrangement in the sense that they expected Baiada to force its employees to join the NUW. Instead, I have concluded that the NUW officials reinforced to Ms Takla, in a robust fashion, their concerns about Mr Hu’s dealings with the NUW and the extent to which, unless the Baiada position changed, a “campaign” against the company would proceed. I am not satisfied that the detail of that campaign was specified to Ms Takla.

[146] I am satisfied that the NUW applied pressure to Ms Takla to be more accommodating of the union with respect to both its Adelaide and Western Australian operations.

[147] In reaching these conclusions I have particularly noted the consistency in the evidence of Mr Donnelly and Mr Roberts. I have noted that Ms Takla engaged in a tour of the NUW offices and behaved in a cordial manner with various union officials after the meeting which I consider to be inconsistent with the delivery of a threat that unless Baiada agreed to effectively deprive employees of their rights to freedom of association Baiada would be harmed. Ms Takla may well have been correct in understanding that the NUW wanted her to facilitate membership and that, in the alternative it was pursuing an aggressive organising campaign. This however falls short of an explicit requirement that Baiada should force its employees to join the union. I accept that Ms Takla expressed her frustration and annoyance to Mr Stack immediately after the meeting, but there is no evidence that she took other logical actions immediately after this meeting. Had the threat been as blatant as Ms Takla now puts it, I would have expected her to be able to demonstrate actions, including the immediate provision of advice about this matter to more senior Baiada management.

[148] In overall terms, I prefer the evidence of Mr Donnelly and Mr Roberts relative to the 8 September 2010 meeting.

[149] I have concluded that, in the various meetings NUW personnel, including Mr Roberts, had with Ms Takla, and later with Mr Onley, the NUW was reticent to provide full details of matters where they believed there was breach of the award and/or the FW Act. Further, that the NUW continued to have a primary objective of recruiting members. The evidence of Mr Roberts about his contact with Baiada management, together with that of Ms Takla and Mr Onley, supports that conclusion.

[150] I have concluded that Mr Hu is not, and has not been disposed toward assisting the NUW to recruit members. Conversely, there is no evidence which allows me to conclude that he, or other Baiada Wingfield managers, had either actively advocated against union membership, or discriminated against employees who are union members.

[151] I have concluded that Mr Roberts’ decision to seek the s.483AA Orders and Exemption Certificate was based on the limited information provided to him with respect to alleged underpayments and breaches of the FW Act but that it was heavily influenced by the desire to progress the campaign directed at achieving substantial union membership. I have relied on the evidence of Mr Roberts in reaching this conclusion. I have also noted that the NUW had the opportunity in this matter, to fully explain the basis upon which the Entry Orders were pursued and has not done so.

[152] The evidence before me establishes that an important aspect of the material provided by the NUW to Commissioner Hampton was erroneous in that payroll advices held by the NUW were incompletely copied and assertions were made to the effect that Baiada was not complying with its legal obligations when in fact the NUW had, but did not disclose information which made these particular assertions a mistruth which was not corrected until part way through these proceedings.

[153] The NUW was aware of the significance of the Entry Order applications. It was clearly aware that this application would most likely be considered on an ex parte basis and that it had the onus of establishing a proper foundation for its assertions. I am, however, not satisfied that the evidence before me establishes a deliberate intention to mislead the Commissioner, but there is a real possibility that this was the case. Alternatively, the failure to include the complete payroll information which the NUW had in its possession may reflect incompetence in the processes applied to the preparation of the application.

[154] I have concluded that Mr Snelson and Ms Pierce followed Mr Garland’s and Mr Roberts’ instructions in the conduct of the 18 and 19 October 2010 right of entry inspections and that the instructions given to Mr Snelson included the covert filming of the Baiada workplace.

[155] I have concluded that it is possible that the NUW officials involved in the decision to film the worksite believed that the film would assist in assessing appropriate wage rates, but I consider this to be most unlikely. The NUW had the opportunity to demonstrate to me how the film would be integrated with the wage investigation process at the outset and it did not do so. In fact, no evidence was provided at all relative to the use to which this video was actually put apart from its publication on the website.

[156] I have concluded that the video was fundamentally taken so as to be used as part of the NUW campaign in the sense that it portrayed unattractive jobs and processes. I have noted that proof of the legal advice relative to the decision to undertake the filming has not been provided to me but I have not drawn an adverse inference from this. However, I have concluded that the NUW officials, including Mr Garland, Mr Snelson and Ms Pierce knew before 18 October 2010 that the filming activity would be contentious and that a conscious decision was made to covertly film.

[157] The absence of evidence from Mr Garland and the provision to Mr Snelson of a camera disguised as a pen, and the manner in which Mr Snelson and Ms Pierce conducted their inspections confirm this conclusion.

[158] Independent of the filming decisions made before Mr Snelson and Ms Pierce entered the Baiada Wingfield plant on 18 October 2010, I have concluded that Mr Hu made it abundantly clear that Baiada did not permit film to be taken within the premises. This is clear from the evidence of Mr Hu and Mr Markou. Further, even if this was not to be the case, Mr Hu’s instructions to Ms Pierce and Mr Snelson to delete the photograph taken on Ms Pierce’s mobile phone in the board room before the first inspection, made it clear that filming was not permitted.

[159] I have not found it necessary to make a definitive finding relative to whether the provisions of the Listening and Surveillance Devices Act 1972 have been breached. That is a matter outside of my jurisdiction.

[160] I have concluded that the film that was published on the NUW website was used in part by the ABC in its Lateline program. Lastly, I have concluded that while it is likely that the NUW encouraged the ABC to attend the Baiada Wingfield site on 18 October 2010 and later provided the film to the ABC, I have not found it necessary to make findings in these respects.

[161] I have however, concluded that the purpose of publishing the film on the NUW website was to support the membership and organising campaign. The film was published on a webpage which referred to Lillydale Chicken Workers as “caged workers” and called for them to be freed. It referenced Mr Mabior’s termination of employment and it provided for access, amongst other things, to information about letters written by the NUW to the television show “Masterchef”, Coles Supermarkets and Westpac and to media reports about the NUW concerns. Neither the film, nor the website showed or established underpayments but they simply invited readers to become informed and involved and to support the NUW campaign.

[162] The website recorded that:

[163] Notwithstanding that advice, I have concluded that the film was primarily intended to show the distasteful nature of certain of the work and to commercially harm Baiada in support of the organising campaign, rather than demonstrating or facilitating clarification of wage and employment issues. Bluntly, it operated as one of a number of commercially oriented attacks on Baiada.

[164] I have accepted the evidence of Mr Patel that, in the course of the inspection on 18 and 19 October, Mr Snelson asked Mr Patel a series of questions and then recounted his answers to another employee.

[165] I have concluded that the NUW used the information provided to them by Baiada through the right of entry process to produce individually addressed invitations to attend a union meeting on 13 November 2010. The matters proposed for discussions at that meeting included claims that could be made on Baiada by union members as part of an agreement making process and the award and legislative rights of employees. In reaching this conclusion I have had regard to the evidence of Mr Snelson, Ms Pierce and Baiada employees, Ms Smith, Ms Burton, Mr Bernhardt, Mr Penn and Ms Swatts.

Findings relative to s.508 and Part 3-4

[166] The Orders issued by Commissioner Hampton provided for Mr Snelson and Ms Pierce to be provided with access to member and non-member records in the following form:

[167] Mr Snelson and Ms Pierce’s entry permits permitted the exercise of the powers and functions established by Part 3-4 of the FW Act.

[168] I have considered the extent to which, on the information before me, the NUW, or officials of the NUW, have misused the rights established by Part 3-4 generally, and whether, in a more specific sense there has been a misuse of the rights established by the Orders issued by Commissioner Hampton.

[169] On 27 April 2011 I limited the scope of my consideration in this respect to include Mr Snelson, Mr Pierce, Mr Roberts and Mr Donnelly. My ruling specifically noted that there was no restriction on the calling of other witnesses. . I have noted the contentions put with respect to the application of the rule in Jones and Dunkel 12 such that I should draw an adverse inference from the NUW’s failure to call Mr Garland to give evidence. I have adopted the position that, on the evidence before me, Mr Garland was integral to the implementation of the NUW campaign and to its subsequent actions, and that the NUW elected not to call Mr Garland for its own reasons and that his evidence would not have assisted the NUW position, Given the evidence of Mr Roberts and that of Mr Snelson, I think strict application of the rule in Jones and Dunkel matters little in this matter.

[170] I am not satisfied that the evidence establishes that the NUW threatened Baiada with a campaign of harassment directed at forcing Baiada into a membership agreement at the meeting held with Ms Takla on 8 September 2010. I have concluded that, at this meeting, the NUW threatened to implement or to maintain an aggressive campaign as part of a robust approach directed at getting Baiada to facilitate NUW membership initiatives. I am not satisfied that, on the balance of probabilities, the NUW’s pursuit of the Entry Orders and its subsequent rights of entry and behaviour can be properly described as constituting a campaign of harassment in that I consider that the NUW had some evidence indicative of underpayments. The information provided by Mr Roberts to Mr Onley on 28 September 2010 and the evidence of Mr Snelson about complaints made to him by Baiada employees and issues associated with the underpayment of superannuation by Baiada are significant in this respect.

[171] I have serious reservations about the accuracy of the material provided to Commissioner Hampton. This falls short of the standards required to establish that the NUW’s actions were directed at coercing Baiada into entering into what would clearly be an illegal membership arrangement. My conclusions about the 8 September 2010 meeting are significant in this respect.

[172] Notwithstanding this, I have considered the extent to which the evidence establishes misuse of the rights of entry in that, whilst there is some evidence of employee concern about compliance with award wages and legislative standards, the NUW was primarily pursuing a membership campaign. If the evidence established, on the balance of probabilities, that the application for the Entry Orders was intended to mislead the Commission and was simply part of a membership campaign this would, in my opinion, constitute a misuse of the entry rights established under Part 3-4.

[173] Those rights allow for the representation of members, for discussions with potential members and the investigation of suspected contraventions. As I have indicated, the circumstances under which rights can be exercised are clearly established in Part 3-4. I am satisfied that there was a suspicion held by the NUW of contraventions. On this basis a finding that the applications for the Entry Orders were a misuse of Part 3-4 is not appropriate.

[174] I have then considered whether, notwithstanding that suspicion, the rights of entry processes, including the application for the Entry Orders, as part of the aggressive campaign adopted by the NUW, constitute misuse.

[175] There are elements of the NUW campaign which have understandably caused some consternation on the part of Baiada management. The endeavours to cause Baiada economic harm through its customer and commercial dealings and the adverse and largely unsubstantiated media publicity are matters which could give rise to separate investigations but are not part of my consideration in this matter.

[176] Had the evidence established that the application for the Orders and subsequent exercise of the right of entry were solely for the purpose of pursuing an organising campaign, the NUW’s actions would have been fundamentally inconsistent with the basis upon which the application to Commissioner Hampton was made so as to constitute a misuse of s.483AA.

[177] I have concluded that, while there are legitimate grounds for suspicion that the NUW actions were fundamentally directed at the organising campaign rather than the investigation of suspected contraventions, the evidence falls short, on the balance of probabilities, of proving this.

[178] This leaves the central matter of whether the behaviour of the NUW, or of its officials, in exercising the rights of entry on 18th and 19th October 2010, constitutes misuse for the purposes of s.508. These behaviours give rise to particular concerns in this respect. I have considered these behaviours in the context of acknowledging that there was substantial and ongoing disputation and distrust between the NUW and Baiada.

Behaviours associated with the covert filming of the Baiada premises

[179] I have concluded that Mr Snelson acted on instructions when he covertly filmed the Baiada premises.

[180] Section 483B relevantly states:

The covert filming of the Baiada premises was not authorised by the Entry Orders. Further, I do not consider that the covert filming of the Baiada premises reflected a right established by s.483B(1) or any other part of Part 3-4. Had the FW Act intended that permit holders could film the employer’s premises, it would have said so.

[181] In reaching that conclusion I have noted s.486 which states:

[182] Hence, the NUW’s actions in covert filming the Baiada site reflected a misuse of the specific rights in s483B.

[183] Secondly, and quite separately, s.500 states:

[184] Notwithstanding his instructions from the NUW, Mr Snelson was told not to photograph or film in the Baiada premises but he continued to do so. The decision to provide Mr Snelson with a covert camera device indicates that the NUW was aware even before 18 October 2010, that filming would not be allowed but always intended to undertake the covert filming anyway.

[185] The instruction not to film was a reasonable and common request. Baiada was entitled to seek to protect the privacy of its operations in terms of its plant design and to ensure that work processes were not portrayed in an inappropriate manner. The NUW’s actions in covertly filming the workplace contravened that request, and in terms of s.500, represented improper behaviour.

[186] My conclusion that the filming was not undertaken to assist the underpayment investigations heightens my concern that it represented improper behaviour.

[187] Furthermore, the publication of the film represented a behaviour which I have concluded was intended to commercially harm Baiada. There is nothing in Part 3-4 which authorises actions of that nature, and they appear to me to be fundamentally inconsistent with the objects of that Part so as to represent misuse in that the NUW misused the Entry Orders so as to obtain a film which was published for purposes which I am satisfied were not related to the investigation of underpayment allegations.

[188] I consider the action of the NUW officials in filming the Baiada site represent significant misuse relative to s.508. Their actions were planned and covertly implemented. The film was then used on the NUW website and aired on a television programme and represent a commercial attack on Baiada independent of any legitimate concerns about employee wages and conditions.

Use of employee names

[189] I consider that the use, by the NUW, on invitations to a union meeting, of employee names obtained as a consequence of the right of entry represents a misuse. It is inconsistent with the basis upon which the application for access to non-member records was made and it is inconsistent with access for the purpose of investigating suspected contraventions in terms of award compliance and allegations of anti union behaviour inconsistent with the FW Act. Baiada provided employee and wages classification information consistent with Commissioner Hampton’s Orders. It provided the NUW with access to employees on request. The use of information, including employee names, obtained through that right of entry process for invitations to a union meeting reflected an abuse of the basis upon which that information was provided and was contrary to the privacy employees were entitled to expect.

[190] Again, on the evidence before me, I am satisfied that this misuse of entry rights was condoned by multiple persons within the NUW. Mr Snelson’s and Ms Pierce’s evidence establishes that the Baiada records were sent to the NUW’s Melbourne offices and the evidence of Ms Pierce confirmed that she was aware of the source of the employee names on the NUW invitations.

Disclosure of information

[191] I am satisfied, on the balance of probabilities that Mr Snelson disclosed to another Baiada employee, information he obtained from Mr Patel. The evidence of Mr Patel was not challenged and I have accepted it. I have concluded that Mr Snelson’s actions in this respect are inconsistent with the requirements established by s.504 but, in any event, represent behaviour which is in the inappropriate category addressed in s.500.

[192] I have concluded that, with respect to the disclosure of information, Mr Snelson acted alone and was not following instructions given to him by more senior NUW personnel. I have also concluded that this misuse represents conduct of a less significant nature than the behaviours I have already addressed.

Conclusion

[193] I am satisfied that the NUW, and its officials, including, but not limited to Mr Roberts, Mr Garland, Mr Snelson and Ms Pierce have misused the rights of entry established by Part 3-4 and, specifically the rights established by the Entry Orders issued by Commissioner Hampton.

[194] Both Baiada and the NUW agreed that, in the event that I reached such a conclusion, the matter should be relisted to enable consideration of what, if any, action should then be taken by FWA. Whilst I will do this, I make the following observations:

[195] The parties will be advised of a further hearing date within the next two weeks.

SENIOR DEPUTY PRESIDENT

Appearances:

P Rozen counsel for the National Union of Workers.

T Stanley counsel for BPL Adelaide Pty Limited.

Hearing details:

2011.

Adelaide:

April 27 and 28.

May 2, 3, 19 and 20.

 1   PR502694

 2   [2011] FWA 384, PR506057

 3   Transcript, PN 3015

 4   PR502694

 5   [2010] FWAFB 4337

 6   Transcript, PN 2735

 7   McQuarrie Dictionary

 8   [2008] AIRCFB 898

 9   Exhibit B4, Annexure E

 10   Exhibit N10, Attachment B

 11   Exhibit B15, paragraph 6

 12   (1959) 101 CLR 298



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