[2011] FWAFB 3847
[Note: a correction has been issued to this document - see
2011FWAFB3847_PR523271 signed 1 May 2012]

Download Word Document


FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Australasian Meat Industry Employees’ Union, The
v
Dardanup Butchering Company Pty Ltd
(C2010/5966)

VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER GAY



MELBOURNE, 17 JUNE 2011

Appeal - right of entry to hold discussion with employees under s.484 - request by employer under s.492(1)(a) - factors bearing upon a consideration of whether a request pursuant to s.492(1)(a) is a reasonable request.

[1] This is an application for permission to appeal pursuant to s.604 of the Fair Work Act 2009 (FW Act) and, if permission is granted, an appeal against a decision of Deputy President McCarthy 1 (Decision) refusing an application pursuant to s.505 of the FW Act by the Australasian Meat Industry Employees’ Union (Union) for orders against Dardanup Butchering Unit Trust T/A Dardanup Butchery Company (Company).

Relevant provisions

[2] Right of entry is dealt with in Part 3-4 of the FW Act. Subdivision A of Division 2 of that Part confers a right of entry on permit holders to enter premises “for the purpose of investigating a suspected contravention of” the FW Act or a term of a “fair work instrument”. Subdivision B of Division 2, specifically s.484, confers a right of entry on permit holders to enter premises “for the purposes of holding discussions with one or more employees”.

[3] Section 484 provides:

[4] Section 490 provides:

[5] Section 492 provides:

[6] Section 505 provides:

[7] The objects of Part 3-4 are set out in s.480:

The case at first instance

[8] Mr Smith, an official of the Union who is a permit holder, had sought to exercise a right of entry to the premises of the Company pursuant to s.484 for the purpose of holding discussions with employees of the Company. The permit holder wanted to hold those discussions in the employees’ lunch room. The Company made a request of the permit holder that he hold the discussions in the training room (Request). The training room is in the administration area adjacent to the office of Ms Weir, the Company’s Human Resources Manager. The Union regards that room as unsatisfactory and made an application pursuant to s.505 for FWA to deal with a dispute over whether the Request was a reasonable request within the meaning of s.492.

[9] There were only two witnesses called to give evidence in the hearing before the Deputy President: Mr Smith, the permit holder, and the Company’s Human Resources Manager.

[10] The Deputy President summarised Mr Smith’s evidence as follows: 2

[11] The Deputy President also referred to evidence given by Mr Smith, “based on his lengthy experience as to how meatworkers respond to having to disclose to their employer that they are a union member or have been speaking to the union” 3 to the effect that employees in the meat industry were typically reluctant to disclose such things to their employer. Mr Smith quite properly conceded that he was drawing an inference as to the Company’s intentions.

[12] The Deputy President summarised the evidence given by the Human Resources Manager: 4

[13] After summarising the submissions of the parties, the Deputy President concluded:

The appeal

[14] The Deputy President’s decision involved the application of a broad discretionary standard of reasonableness. Accordingly, the principles in House v The King 5 apply:

[15] One of the key issues between the parties was the impact of the decision of the Full Bench in Somerville Retail Services Pty Ltd v Australasian Meat Industry Employees’ Union 6 (Somerville). In that case, the Full Bench considered a number of decisions made under a similar regime in predecessor legislation and summarised the approach to determining whether an employer’s request under s.492(1) is reasonable as follows:

[16] We respectfully agree with these statements of principle as far as they go. To this extent, they substantially reflect the approach of the Full Bench of the AIRC in ASU v Australian Taxation Office 7 who held that, in considering whether an employer’s request was reasonable for the purposes of s.751(3) of the Workplace Relations Act 1996 (a provision in substantially identical terms to s.492(1) of the FW Act):

[17] However, more needs to be said for the purposes of determining the present application for permission to appeal and, if permission is granted, the appeal.

[18] We start with a statement of the obvious: when the Full Bench in Somerville stated in paragraph [33] that “[t]he specific examples of unreasonableness in s 492 are an appropriate starting point” it was not intending to suggest that the existence or otherwise of the “specific examples” in s.492(2) is determinative of the ultimate issue. That ultimate issue remains whether the request was a “reasonable request” within the meaning of s.492(1)(a). A consideration of the matters specified in s.492(2) will often be an appropriate starting point in a practical sense. However, the opening words of s.492(2) make it clear that s.492(2) is not intended to be code of when a request made pursuant to s.492(1)(a) will not be a reasonable request. Rather, it simply specifies circumstances which, if demonstrated, will render the request unreasonable. If circumstances falling within s.492(2) are not demonstrated that is not the end of the matter. The tribunal must still consider whether, in all the circumstances, the request was a “reasonable request”. In a particular case there may be circumstances that render a request unreasonable notwithstanding that those circumstances do not come within the specific examples in s.492(2). There is nothing in what was said by the Full Bench in Somerville to suggest otherwise.

[19] The reasonableness of a request pursuant to s.492(1)(a) cannot be considered in a vacuum. It must be considered by reference to the statutory purpose of Part 3-4 of the FW Act and, in particular, Subdivisions A and B of Division 2 of that Part. The rights of entry conferred by Part 3-4 are rights conferred on permit holders. The focus of s.484 is the right of the permit holder to hold discussions with employees rather than the right of employees to hold discussions with a permit holder (albeit that such right is implicit in the right conferred on the permit holder 9). Section 480 makes it clear that the object of the legislature in enacting Part 3-4 was to balance the competing rights of employee organisations and employees on the one hand and employers and occupiers on the other. The right of employers and occupiers in this balancing exercise is the right “to go about their business without undue inconvenience”.10 It is not part of the purpose of Part 3-4 to allow the employer or occupier to act as some sort of ‘gatekeeper’ to prevent or limit a permit holder from holding discussions with employees where the exercise of the right of entry for that purpose does not cause the employer or occupier undue inconvenience and where the permit holder is otherwise acting within the constraints imposed by Part 3-4 of the FW Act. It will also be noted that the reference in s.480(c) to the right of employers and occupiers “to go about their business without undue inconvenience” suggests that the Parliament did not intend that any inconvenience whatever would be sufficient to render reasonable a request that a particular room or area be used: ordinarily there must be undue inconvenience before there could be any question of a request made pursuant to s.492(1) being reasonable.

[20] Next, it should be observed that the right of entry conferred by s.484 is properly to be seen as part of a suite of provisions in the FW Act that give recognition and effect to the fundamental principles of freedom of association and the right to act collectively. Australia remains a party to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It is particularly relevant that the right conferred by s.484 extends to a right for a union official who is a permit holder to enter a workplace for the purpose of holding discussions with potential members. 11 In other words, one of the legitimate purposes for which the right of entry conferred by s.484 may be exercised is to seek to persuade employees who are not members of the union to become members of the union.

[21] This statutory context suggests that, while all of the circumstances must be considered, a consideration of whether an employer’s request pursuant to s.492(1)(a) is reasonable must have the employer’s reasons for, or purpose in, making the request as its primary focus. Obviously, a request that is made for arbitrary or capricious reasons will not be a reasonable request. It also follows that a mere preference by the employer that the discussions occur in one room rather than another will not be sufficient to ground a reasonable request. When the reasonableness of a request made by an employer pursuant to s.492(1)(a) is challenged, the employer must be able to identify the manner in which its interests are adversely affected by allowing the discussions to proceed in the place preferred by the permit holder, including, if it be the case, how the room or area nominated by the permit holder would be likely to cause “undue inconvenience” within the meaning of the object in s.480(c).

[22] In the absence of a permit holder being directly advised in advance by an employee that the employee does not wish to hold discussions, there is nothing in the FW Act that prevents a permit holder, who is otherwise lawfully exercising his or her right of entry under s.484, from speaking to an employee who is on a break for the purpose of identifying the issues that the permit holder wishes to discuss and asking the employee whether the employee is prepared to participate in those discussions. It should be recalled that a permit holder may only exercise their right to hold discussions with employees during working hours (s.490(1)) and may hold such discussions only during meal times and other breaks (s.490(2)).

The interests of employees who may not wish to be involved in discussions

[23] The decision in Somerville suggests that a concern with the interests of employees who do not wish to participate in discussions is a reason that may, depending upon the circumstances, ground a reasonable request by the employer that discussions occur in a room or area other than the meal room. We respectfully accept that such a proposition is strictly correct. However, one must not lose sight of the fact that, in the absence of any evidence indicating that it is likely the permit holder will not observe their statutory obligation to hold discussions only with employees who wish to participate in such discussions, it is the impact on the employer that is the relevant consideration (the object in s.480 makes it clear that Part 3-4 is concerned with balancing the rights of the permit holder to hold discussions and employees to receive information on the one hand with the right of the employer not to be unduly inconvenienced). The interests of employees who do not wish to participate in discussions will only ground a reasonable request to the extent that there is a proper evidentiary basis for concluding that this adversely affects the employer’s business or otherwise unduly inconveniences the employer or that the permit holder will disregard their statutory duty to hold discussions only with employees who wish to participate in the discussions.

[24] In the present case, the basis upon which the Company relied in contending that the Request was reasonable was a concern by the Company that some employees did not wish to participate in discussions with the Union (permit holder) and that they should be, as it were, protected from having to suffer any exposure whatever to the permit holder during their meal break as a result of the permit holder holding discussions with other employees during that meal break. In this regard the Company relied upon evidence from the Human Resources Manager to the effect that some employees did not want to hold discussions with the Union and would be significantly discomforted by having such discussions occur in the meal room while they were present. A major component of the submissions advanced by the Union on appeal was concerned with an attack on the Deputy President’s decision to make findings based on that evidence rather than the evidence of the permit holder.

[25] This calls for some consideration of the role of such evidence in an application under s.505. Just as there is no presumption that an employer will not comply with its statutory obligations, there is no presumption that a permit holder will not comply with his or her statutory obligations, including in relation to an entry pursuant to s.484. In particular, there is no presumption that a permit holder will hold discussions under s.484 other than during mealtimes or other breaks (s.490(2)) and will hold discussions with employees who do not wish to participate in those discussions (s.484(c)). A mere concern by an employer that a permit holder will not observe the restriction in s.484(c) will not, of itself, provide a sufficient basis to render “reasonable” a request by the employer that discussions take place in a particular room or area other than the meals room.

[26] Where an employer’s establishment has a meals room, a permit holder will often, if not typically, wish to hold discussions with employees pursuant to a right of entry under s.484 in that meals room. The reasons are obvious. The discussions must take place during the employees’ breaks. Typically, the only practical time for a permit holder to hold discussions of any substance will be during the employees’ meal break. In many establishments, employees usually spend at least some of their meal break in the meal room. Employees, whether union members or not, may exhibit a range of attitudes to engaging in discussions with a union permit holder. Some may enthusiastically embrace the opportunity. Others will not have strong feelings for or against participating in such discussions. Still others may have an entrenched antipathy towards or apprehension about involvement with a union and consequently have no wish to participate in discussions. If the permit holder is required to hold discussions in a room not usually accessed by employees then clearly the only employees likely to attend will be those who are sufficiently interested or motivated to actively seek out the permit holder. This means that the practical effect of a request by an employer that the discussions be held in a room other than the meals or other room ordinarily frequented by employees will be to prevent the permit holder having discussions with employees who are not sufficiently motivated to seek out the permit holder or who are indifferent to participating in discussions - even though they do not have an active desire not to participate in those discussions. The permit holder has a right to hold discussions with such employees unless and until they affirmatively indicate that they do not wish to participate in the discussions. It will be open to the permit holder to seek to include such employees in discussions if they are present in the relevant room.

[27] The present case affords something of an illustration. Mr Smith had exercised his right of entry under s.484 on three occasions where he complied with the Company’s request to use the training room. On each of those occasions no employees attended the training room. 12 There are some 150 employees. While it may be the case that some employees hold an affirmative position of not wanting to participate in such discussions, it seems unlikely that not one of those 150 employees was prepared to listen to what the permit holder wanted to talk about or was, at the very least, in the ‘indifferent’ category. The permit holder would certainly be entitled to engage those employees in discussion in the meals room and only cease the discussion with a given employee if that employee indicated affirmatively that they do not want to wish to participate in those discussions.

[28] The tribunal is not bound by the rules of evidence 13 and therefore has a discretion to admit as evidence material that would not be admissible under the rules of evidence. However, this does not mean that the rules of evidence are irrelevant to the exercise of that discretion in response to an objection to the reception of particular evidence. On the contrary, as was pointed out by the Full Bench in Hail Creek Pty Ltd v Construction, Forestry, Mining and Energy Union14 the rules of evidence “provide general guidance as to the manner in which the Commission chooses to inform itself”. The rules of evidence are not arbitrary and were developed by reference to notions of what is fair and appropriate and, as such, they often provide a good starting point for a consideration of whether an objection to the reception of particular evidence by the tribunal should be upheld or rejected.

[29] The tribunal should take particular care in exercising its discretion to receive hearsay evidence from an employer to the effect that employees do not wish to participate in discussions with a permit holder for reasons that include the following:

[30] When a tribunal member is confronted with an attempt to call hearsay evidence from a manager as to the attitude of employees to participating in discussions with a permit holder, the member should give serious consideration as to whether evidence going to that issue is more properly received directly from one or more employees rather than by hearsay evidence of that sort and decline to receive the hearsay evidence unless a satisfactory explanation is provided as to why it is not appropriate to call direct evidence from one or more employees. This is particularly so in a workplace where there is little or no union penetration and thus little or no justification for fearing some form of reprisal for taking a public stand against the union.

[31] In this case the Company’s Human Resources Manager gave the following evidence: 15

[32] The advocate for the Union made no objection to that evidence - the critical parts of which were hearsay and conclusion and therefore inadmissible under the rules of evidence. That evidence having been admitted without objection, the Deputy President was free to accept it and act on it. Although another member may not, in all the circumstances, have been persuaded to act on that evidence (particularly given the hearsay evidence of Mr Smith from a member on site that the location of the training room was discouraging employees from attending 16), we can discern no error in the Deputy President acting on the evidence of the Human Resources Manager in the way that he did.

Communication of the permit holder’s entry to employees

[33] A further matter calls for some comment. Where an employer exercises the right in s.492(1)(a) to make a reasonable request that the permit holder “conduct interviews or hold discussions in a particular room or area of the premises discussions” an issue arises as to how employees are to become aware that the permit holder is present in that room or area and available for interview or discussions. Part 3-4 is silent on how employees are to be made aware that a permit holder will be present on the premises and available for interview or discussions. The manifest purpose of s.484 would be defeated if the employer requests that a room away from employees be used by the permit holder and then fails to inform, or adequately inform, employees that the permit holder is available in that room for interview or discussions during the employees’ breaks. Such an outcome cannot have been intended by the legislature.

[34] It follows that the nature and content of the communication by an employer to employees of the fact of the permit holder’s attendance, his or her desire to hold discussions with employees and the right of employees to participate in those discussions during breaks is relevant to a consideration of the reasonableness of any request made pursuant to s.492(1)(a).

[35] In the present case a notice was posted by the Company in the following terms:

[36] This is not a situation where the form of words to be used in such a notice is specified in the legislation. The Company’s workforce is composed of abattoir workers who would not be expected to have sophisticated English language skills. Moreover, it is clear from the evidence that a number of employees have very poor English language skills to the point where they require an interpreter. 17 In those circumstances, we have no doubt that this notice was not in a form, and couched in language, that was appropriate to inform the employees of the permit holder’s visit and the permit holder’s right to hold discussions with employees. If this was the only way in which the entry was notified there would be an arguable case of error in the Deputy President failing to address the notice in this fashion. However, there was evidence that the entry and the right of employees to have discussions with the Union were notified verbally to employees by the Human Resources Manager and at tool box meetings. It is tolerably clear that the Deputy President has accepted that evidence and consequently there was no error of the sort we have just considered. We note that, where a permit holder accedes to a request from an employer to hold discussions in a room or area other than the room or area preferred by the permit holder, there is nothing to prevent the permit holder from asking the employer to provide employees with a notice formulated by the permit holder. While there is no direct obligation on an employer to distribute such a notice, a refusal to do so may, depending on the circumstances, be a matter that is relevant to determining whether the request remained reasonable.

[37] We turn to consider the specific grounds in the notice of appeal.

Ground 1

[38] Ground 1 contends that the decision is affected by jurisdictional error because the Deputy President formulated a test that misapprehended the nature of his jurisdiction by examining the prerogatives that a reasonable occupier might exercise. While the formulation in paragraph [7] of the Decision on one view unnecessarily complicates the test or reasonableness in s.492(1)(a), it is not inconsistent with that test. The question is whether the Company’s Request was “reasonable” and this calls for an objective consideration of all of the circumstances in the manner we have described above. We are not persuaded that the Deputy President ultimately failed to direct his attention to the correct question, namely whether the Request was a “reasonable request” having regard to all the circumstances.

Ground 2

[39] Ground 2 is concerned with the Deputy President’s statement in paragraph [8] of the Decision that:

[40] The Union contends that this statement is affected by error because the Deputy President “failed to apprehend that an explanation for the occupier’s request is but one of the considerations he was bound to take into account and it was erroneous to hold that it is “most likely” that a “reasonable” explanation leads to a conclusion that the occupier’s request was reasonable.”

[41] While the Company’s reason for making its Request is undoubtedly a critical consideration we do not accept that the Deputy President confined his consideration to that factor. We interpret the statement that where an employer provides a reasonable explanation for its request “it is most likely that the decision of the occupier was reasonable” as nothing more than an indication that a reasonable explanation for the making of the request is a factor that weighs strongly in favour of a finding that the request was “reasonable”. There is no error in such an approach.

Ground 3

[42] Ground 3 is concerned with the Deputy President’s consideration of s.492(2)(b) and his statement in paragraph [11] that:

[43] To the extent that the Deputy President suggested that it was necessary for the Union to demonstrate that employees were in fact intimidated or discouraged from participating the Deputy President erred. Section 492(2)(b) is concerned only with the intention of the employer. However, this error did not affect the outcome because it is clear that the Deputy President was not satisfied that the Company intended to intimidate or discourage employees. Others may have come to a different view on the evidence but we are not persuaded that the Deputy President erred in his finding to that effect on the evidence before him.

[44] Ground 4 was not pressed.

Grounds 5

[45] Ground 5 is concerned with the finding in paragraph [28] that the Company had provided a “good explanation” for the request it made because the area nominated was where any visitors to the Company’s premises were asked to conduct discussions with employees.

[46] The Union correctly submitted that a permit holder is not just any visitor. We accept that the fact that the Company habitually used the training room for any visitors who wished to hold discussions with employees could not be determinative of whether the Request was reasonable. It may be that this is a circumstance deserving of relatively little weight, however, that does not mean that it is an irrelevant circumstance.

Ground 6

[47] Ground 6 contends that the Deputy President erred in placing reliance on a finding that the training room had “historically been the room made available to the AMIEU without complaint” 18 because this was an irrelevant consideration. We disagree that it was an irrelevant consideration. While this was a consideration to which relatively little weight should have been accorded (the ‘history’ was brief and was not such as to suggest a considered acquiescence by the Union in the suitability of the training room), we do not agree that this was an irrelevant consideration.

Ground 7

[48] Ground 7 is directed at paragraph [29] of the Deputy President’s decision. It seems obvious to us that if, when all of the evidence is considered, there is a reasonable basis for supposing that the number of employees who, being properly informed of the opportunity, may wish to participate in the discussions exceeds the capacity of the room nominated by the employer, then the room will likely not be “fit for the purpose of conducting the interviews or holding the discussions” with the result that the request is deemed to be unreasonable by virtue of s.492(2)(a). The Deputy President concluded that “the evidence did not satisfy me that such a circumstance [large numbers of employees wishing to attend at the one time] had ever arisen nor that it was likely that it would arise” 19. There was in fact no evidence that that circumstance had ever arisen. Nor, indeed, was any evidence called by the Union suggesting that the number of employees likely to attend would exceed the capacity of the training room. There was some evidence on which the Deputy President could base a finding that it was not likely that that circumstance would arise in the future in the form of evidence that on previous visits when the permit holder had entered for the purpose of holding discussions with employees no employees had attended the training room to participate in those discussions. For this reason, and notwithstanding that other members may not have placed reliance on the evidence in that fashion, we reject the Union’s contention that in making that finding the Deputy President “engaged in pure speculation as to future events without any evidential base, or sound evidential base, for such speculation”.

Ground 8

[49] Ground 8 is directed at the first sentence of paragraph [28] of the Deputy President’s decision. In cross-examination the Human Resources Manager conceded the possibility that some employees may feel intimidated. The Deputy President proceeded on the basis that this admission did not, of itself, demonstrate that the Company had an intention to intimidate or discourage employees. It was open to the Deputy President to proceed in that way, particularly when the Human Resources Manager had emphatically maintained that in making the Request the Company had no intent to intimidate or discourage employees. Notwithstanding that in many cases there may be a rational basis to doubt the reliability or decisiveness of such evidence 20, it was open to the Deputy President to accept it. We reject the Union’s contention that the admission “must lead to a finding that the occupier intended such a result”.

Ground 9

[50] Ground 9 attacks the Deputy President’s finding that the training room was “fit for the holding of discussions or conducting interviews” within the meaning of s.492(2)(a) because his Honour “failed to take into account important considerations relating to food safety and cross contamination”. The evidence was to the effect that, as required by food safety regulations, there was a strict separation between employees working on the slaughter floor and employees working in the food processing area of the facility to minimise the risk of the contamination of processed meat with pathogens from the gut and hides of slaughtered animals. That separation extended to provision of separate lunch rooms for the two groups of employees. The Union had argued that because there was some overlap between the meal breaks of the two groups, use of the training room would present an unacceptable risk of cross-contamination. We disagree with the contention that the Deputy President failed to take these matters into account: he clearly did. 21 Other members may have assigned greater weight to the Union’s contentions in this regard and this may have led to a different outcome on the application. The authorities on when a failure to assign sufficient weight to a relevant consideration will constitute error are well known.22 We are not persuaded that an application of those principles leads to a conclusion that the Deputy President erred.

Conclusion

[51] The provisions of Part 3-4 are important. There has been little appellate consideration of the operation of those provisions. We are satisfied that there is a public interest in granting leave to appeal in this case. While the appeal proceeds as a rehearing this Full Bench is not permitted to exercise its powers under s.607(3) in the absence of error. We are not persuaded that the Deputy President’s decision is affected by error that affected the outcome. It follows that the proper course is to dismiss the appeal and we do so.

VICE PRESIDENT

Appearances:

L Norris for the Australasian Meat Industry Employees’ Union.

G McCorry for Dardanup Butchering Unit Trust T/A Dardanup Butchery Company.

Hearing details:

2011.
Perth:
February 9.

 1   [2010] FWA 9197

 2   Ibid at [14]

 3   Ibid at [15]

 4   Ibid at [16]

 5   (1936) 55 CLR 499 at 504-5

 6   [2011] FWAFB 120

 7   (2007) 158 IR 148

 8   Ibid at [29]

 9   And see also s.480(b) which expressly recognises the right of employees “to receive, at work, information and representation from officials of organisations”.

 10   Section 480(c)

 11   Section 484(a)

 12   Transcript PN55 and PN89ff and noting that on one of those three occasions, through an oversight, employees were given no notice that Mr Smith was present.

 13   Section 591

 14   (2004) 143 IR 354 at [47]-[50]

 15   Transcript at PN360-2, PN370-1

 16   Transcript at PN82

 17   See transcript at PN370ff

 18   [2010] FWA 9197 at 28

 19   Ibid at 29

 20   Compare, for example, the consideration in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616-7 (per Mason J) and Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570 esp at [28] (per Gray and Bromberg JJ).

 21   [2010] FWA 9197 at [14], [21] and [25]

 22   See, for example, the summary in Farquharson v Qantas Airways Ltd (2006) 155 IR 22 at [35]ff.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR510646>