[2013] FWC 2498 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute
Bechtel (Western Australia) Pty Ltd
v
Construction, Forestry, Mining and Energy Union-Western Australian Branch;
(RE2013/536)
DEPUTY PRESIDENT MCCARTHY |
PERTH, 26 APRIL 2013 |
Right of entry permit - restrictions on entry permit.
A. The Application
[1] The Wheatstone Project (the Project) involves the construction of an onshore Liquefied Natural Gas (LNG) facility located about 12 kilometres west of Onslow in Western Australia’s Pilbara region. The foundation project includes two LNG trains with a combined capacity of 8.9 million tonnes per annum (MTPA) and a domestic gas plant. The Project is being developed by Chevron Australia Pty Ltd ("Chevron"). The construction works for the Project commenced in late 2011. There are currently a number of different work areas on the Project site. These include the Wheatstone LNG Plant the Wheatstone Construction Village ("Construction Village") expansion; and the Beach Compaction area. The Construction Village will accommodate employees estimated to be about 4200 at peak.
[2] Bechtel (Western Australia) Pty Ltd (Bechtel) is engaged by Chevron to provide engineering, procurement and construction management services to Chevron in respect of the Project. Bechtel has a range of legal rights and responsibilities in relation to the Project Site, including in relation to union right of entry under the Fair Work Act 2009 (Cth) ("FW Act") and maintaining safety and security on the Project Site. Bechtel is an occupier of the premises.
[3] On 15 February 2013 Bechtel lodged an application regarding the conduct of Mr Brad Upton. Mr Brad Upton ("Mr Upton") is an official of the Construction, Forestry, Mining and Energy Union ("CFMEU") and holds an entry permit issued pursuant to section 512 of the FW Act. The application lodged involves a dispute concerning the conduct of Mr Upton when exercising his right of entry to the Project.
[4] I conducted a conference regarding the dispute on 21 February 2013 and during that conference decided on my own motion 1 to deal with a dispute relating to a request by Bechtel for interviews and discussions to be held in a particular room 2 (the meeting room dispute).
[5] The CFMEU objected to me dealing with the Bechtel application. There was no objection to my dealing with the meeting room dispute. They asserted that the Fair Work Commission (FWC) did not have the jurisdiction to deal with the Bechtel application. I dealt with that issue and dismissed the objection. 3
[6] I conducted inspections of the site on 8 March 2013.
[7] I proceeded to hear the Bechtel application and the meeting room dispute jointly. The parties agreed with that approach. Hearings were conducted on 12 & 13 March 2013 and 11 April 2013. There was no objection to me dealing with the matters jointly. On 18 March 2013 I issued an Interim Order. 4 That Order imposed a number of conditions and limitations on Mr Upton relating to the exercising of Right of Entry to the Project by Mr Upton until I had determined the application.
[8] This decision deals only with the Bechtel application. I will deal with the meeting room dispute separately.
[9] Bechtel made complaint about the conduct of Mr Upton on 13 February 2013. That conduct they assert was that:
[10] Mr Upton’s rights allow him to hold discussions with employees who are entitled to be members of the CFMEU. Bechtel complain that Mr Upton has held discussions with employees who are not entitled to be members of the CFMEU. They also complain that he has held discussions with employees of employers other than the employer he has given notice to about holding discussions with.
[11] Bechtel also complain about Mr Upton’s behaviour on 8 October 2012.
B. Legislation
[12] The FW Act provides for the right of officials of organisations who hold entry permits to enter premises for purposes related to their representative role. Section 484 provides that a permit holder may enter premises for the purposes of holding discussions with certain employees.
[13] Without the statutory right to enter an employer’s premises a permit holder would be committing a trespass. The FW Act provides requirements for the acquiring of the right and obligations that attach to the right. Importantly the FW Act prohibits improper conduct in the exercising of the right. A permit holder does not authorise a permit holder to enter or remain on premises, or exercise any other right other than the right that the FW Act provides.
[14] It of note that the Parliament was conscious of the nature of the right and how it should be exercised by providing strict obligations and conditions that are attached to the right. 5
[15] The FW Act also provides the FWC with powers to make Orders about the right regarding the conduct and obligations of an occupier, an employer or a union representative. The powers of a Tribunal in dealing with the right has been described as
"Given the nature of the powers there is a public interest in ensuring that permit holders do not intentially (sic) hinder or obstruct any employer or employee or otherwise act in an improper manner" 6
[16] The nature of the right was described in Vivienne Daniels v Joe Patti and another, as follows:
“Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained.” 7
C. The Evidence
[17] I will deal with the various assertions by Bechtel in the order that they are alleged to have occurred.
8 October, 2012
[18] Mr James Garrett gave evidence. He has been employed by Bechtel since October 2011 as the Employee Relations Representative for the Project site. One of Mr Garrett's responsibilities is to process and organise right of entry visits. Mr Garrett evidenced that he was aware that Mr Upton had given notice that he would be exercising a right of entry to hold discussions with employees of Monadelphous Engineering Associates Pty Ltd (Monadelphous), a contractor at the Project, on 8 October 2013.
[19] On that day at about 10.00 am Mr Garrett received a telephone call from Mr John Murray. Mr Murray is a Site Superintendent employed by Monadelphous. His duties include conducting 'permit holder' escorting duties and conveying to permit holders requests as to the meeting facility and routes to be followed. Mr Murray’s duties also involve ensuring that a permit holder takes a particular route to reach a particular room on the Site set aside for discussions. Mr Murray’s duties also involves inspecting the venue prior to the discussions, to ensure that the air conditioners are working and that there is bottled water available in the fridge and that there are enough seats available for the discussions.
[20] Mr Murray informed Mr Garrett that Mr Upton was angry about the meeting room provided for the union discussions. Mr Murray passed his phone to Mr Upton and a discussion then took place between M Garrett and Mr Upton. Mr Garrett says that Mr Upton claimed that the meeting room was not fit for purpose and that it was not safe. Mr Garret responded to Mr Upton that if he had a complaint about the venue he could pursue them through Fair Work Australia. Mr Upton then raised his voice and said words to the effect of:
"That’s the AWU way, we don’t do things that way. We do things the fucking CFMEU way.”
[21] From Mr Upton’s raised voice and the way he spoke Mr Garrett had the impression that Mr Upton was very angry. He repeated to Mr Upton that if there was a problem that he should pursue it through Fair Work Australia. Mr Upton then yelled at Mr Garrett
“I won’t accept you treating the boys like fucking dogs. Fuck off.”
[22] The telephone conversation then ended. Later, at about 10:15 am, Mr Garrett phoned Mr Murray and enquired about the conduct of Mr Upton. Mr Murray told him that the meeting was being conducted in front of the meeting room. At around 10.20 am, Mr Garret then telephoned Mr Ben Cravey. Mr Cravey is employed by Bechtel in the position of Deputy Employee Relations Manager for the Project Site. Mr Garrett asked Mr Cravey to "keep an eye on the situation".
[23] Mr Ben Cravey gave evidence. Mr Cravey is a citizen of the United States of America. Mr Cravey has had at least 35 years in the construction industry in many countries. He has been employed on construction projects similar to the Project in United States of America, Canada, Iraq, Jordan, Guinea, Kuwait, Romania, Kazakhstan and other countries. When Mr Cravey became aware that there may be a problem he proceeded to the room to speak to Mr Upton.
[24] When Mr Cravey arrived he saw Mr Upton waving his arms about and swearing. He thought Mr Upton was agitated so he approached him with words to the effect of "Settle down. I'll speak to you if you calm down and act professionally". After an initial interchange about the adequacy of the room to hold the discussions Mr Upton cut off Mr Cravey and started yelling at the top of his voice words to the effect of:
"Is this shithole place acceptable to you? Is this shithole good for you fucking Americans?
This is not fucking America. You think you can treat us like shit, you fucking Americans.
Australians won't stand for this. You fucking Americans can't push us around like we're pieces of shit. We won't put up with you fucking Americans here, not here".
[25] Mr Cravey says that Mr Upton then stepped towards him and leaned in so close to him that his mouth was inches from his face. He says that he was so close that he could feel his spit in his face when Mr Upton spoke. Mr Upton then said words to the effect of:
"You want to hit me? Go ahead and hit me, you fucking American.
Come on and hit me you fucking American. Hit me, go ahead".
[26] Mr Cravey says he then turned his back to Mr Upton and walked away. Mr Cravey says he was not intimidated but rather shocked at the Mr Upton’s invitation to Mr Cravey to hit him. Mr Cravey says that whilst he did not feel threatened he considered Mr Upton’s conduct to be threatening.
[27] Mr Cravey observed that there was a bus located next to the room with people sitting in the bus. He assumed that the people in the bus were the Monadelphous employees who had been transported from the Beach Compaction area of the Site to the room to participate in the discussions. Throughout the exchange, Mr Upton kept gesturing towards the people sitting on the bus who appeared to be watching the events intently.
[28] At approximately 10:45 am, Mr Upton returned to the room area and saw that the bus was no longer there. Mr Cravey approached Mr Upton and told him that he should leave site. Mr Upton responded that he had not had his meeting so he was staying. Mr Cravey told Mr Upton that he was now trespassing. Mr Cravey then left the room area.
[29] Mr Cravey evidenced that he had never encountered the type of conduct of Mr Upton during his 35 years experience and he found it unacceptable, uncooperative, very threatening and abusive. He says that Mr Upton was "furious", "animated." "enraged" and "aggressive". He says he did raise his voice to the level of Mr Upton’s and kept requesting Mr Upton to settle down or calm down. Mr Cravey denied that he was aggressive.
[30] Mr Cravey agreed that the room provided in his opinion was suitable for 10 to 15 people but that 15 to 20 people appeared to want to participate in discussions. He stated that it had not been expected that a large group of people would be attending the meeting. It had been assumed that that room would be adequate because it was temporary. The room that was normally used was twice the size.
[31] Mr Cravey telephoned Mr Garrett who was located at the Onslow township about 20 kilometres from the site and he requested him to attend the site. Mr Garrett was briefed by various individuals about the situation and proceeded to the allocated room, where Mr Upton was. He requested Mr Upton to leave the site. Mr Garrett returned to Bechtel's site offices and observed Mr Upton staying in the vicinity of the allocated room. Mr Garrett engaged in a number of telephone conversations with other CFMEU officials and observed Mr Upton being escorted by Mr Murray and leaving the site at about 12:30 pm.
Letters of 16 & 19 October, 2012
[32] On 16 October 2012 Bechtel instructed their lawyers, Ashurst Australia (Ashurst), to write to Branch Secretary of the CFMEU , Mr Michael Buchan, informing them of the conduct of Mr Upton on 8 October and requesting written confirmation that Mr Upton had been instructed:
“(a) to refrain from acting in an improper manner toward personnel on site, including but not limited to acting toward personnel in an offensive manner, or racially or verbally abusing any person on the project site; and
(b) to comply with any directions give by Bechtel personnel and security personnel in respect of safety and security on the Project site.
[33] On 19 October 2012 Mr Buchan wrote to Ashurst confirming that he had instructed Mr Upton and confirmed that he would:
“(a) Refrain from acting in an improper manner toward personnel on site, including but not limited to acting toward personnel in an offensive manner, or racially or verbally abusing any person on the Project; and
(b) Comply with reasonable directions given by Bechtel personnel and security personnel in respect of safety and security on the Project.”
February 13, 2013
[34] Mr Brett Waller is Construction Manager for Monadelphous. He gave evidence about Mr Upton’s conduct on 13 February 2013.
[35] Mr Upton visited the site on that day and conducted a meeting with employees of Monadelphous. At that time about 72 people were employed by Monadelphous who were eligible to be members of the CFMEU. About 50 of these employees were working at the Construction Village and about 22 were working at the Beach Compaction area. The Beach Compaction area is some distance away from the Meeting Room and therefore Monadelphous provides a bus to transport employees from the Beach Compaction area to the Meeting Room. It takes about 30 to 35 minutes to get from the Beach Compaction area to the Construction Village area. Monadelphous allows 30-35 minutes as time off before the normal break and after it for employees to attend discussion with union officials.
[36] Prior to that day officials from CFMEU had visited the site to hold right of entry discussions with Monadelphous employees on at least 13 previous occasions. The Meeting Room allocated on that day had regularly been used by union officials (including CFMEU officials) for discussions with employees. Mr Upton had made complaints to Mr Waller about the unsuitability of the room on half a dozen occasions.
[37] Mr Waller escorted Mr Upton from the site security gate entrance to the meeting room. Mr Waller checked the meeting room and noted that the number of people in the room to participate in discussions was consistent with numbers that attended previous meetings with Mr Upton. The room allocated was 12 x 3 metres. Crib rooms of that size usually have about 20 to 25 people accommodated. Mr Waller said that there were about 40 to 45 employees that attended for the meeting. He said that there were 28 chairs around a table or tables in the meeting room. There was also room for people to stand. Mr Waller was of the opinion that 35 to 40 people could be accommodated in the room but that "it would be a bit tight" if there were 40 to 45 people and unreasonable.
[38] Mr Waller observed Mr Upton entering the room and shortly afterwards he emerged from the room. Mr Upton complained about the fitness of the room. Mr Upton stated that he had complained about the size of the room and that he was "...fed up with being treated by Bechtel like this". He then stated he would "...find somewhere else to have a meeting." and that "I'm going to go to the Fly Camp mess facility".
[39] Mr Waller said that he told Mr Upton he was not permitted to go anywhere else to which Mr Upton responded "This room is not fit for purpose. It's too small. I'm going to go and find a room that is suitable". Mr Waller then requested Mr Upton to wait whilst he made enquiries to try and resolve the issue.
[40] Mr Upton waited outside the meeting room whilst Mr Waller made a phone call. After the phone call Mr Waller told Mr Upton that the meeting must be held in the meeting room allocated and that if Mr Upton left that area then he would be regarded as trespassing and he would be obliged to contact security. Mr Upton then responded "I don't give a fuck. I'm going to find a room more suitable. This room is not fit for purpose".
[41] Mr Upton then re-entered the meeting room and a short time later emerged and stated that he would find somewhere else to have the meeting. Mr Waller restated to Mr Upton that he should not leave the area and that “If you attempt to go anywhere else that will be trespassing and I will have to call security". Mr Upton proceeded to leave the area. Mr Waller followed and continued to impress on Mr Upton that he was not permitted to go anywhere else on the site. Mr Upton responded that "I am not trespassing. My right of entry is for the Wheatstone site".
[42] Mr Upton proceeded to walk across Camp Road and into the Fly Camp. The Fly Camp is one of three camp areas. It is a residential area and an area of the site forming part of the accommodation facilities. The camp areas comprise a number of buildings and facilities, including medical facilities, dining mess, accommodation rooms, recreational rooms, a shop, laundries, accommodation check in, luggage storage rooms and a "wet mess".
[43] Mr Upton walked to the Fly Camp "wet mess" area. The “wet mess” forms part of the amenities for residents of the Fly Camp village and is located in a separate and distinct area of the site, away from the work areas. The "wet mess" has an internal bar (which, at the time, was not open) and an external covered "beer garden" area. It is used by residents of the three camps to socialise and to purchase and consume alcohol. A licensed outdoor covered area, similar to a beer garden, forms part of the “wet mess” facility. The “wet mess” is intended to be used by residents as part of the premises in which they reside, and not for construction or industrial relations activities. The “wet mess” beer garden is a not a place which had been used for lunch breaks or for discussions to take place with union representatives during such breaks.
[44] When Mr Upton arrived at the “wet mess” he put his bag down and stated "This looks like a much nicer place. We will just have our meeting here". Mr Waller again told Mr Upton that he was not permitted to be in that area. Mr Upton replied "We are not trespassing. The meeting room provided is inadequate. We are going to have our meeting here".
[45] Employees present for the meeting had followed Mr Upton to the area. Mr Upton conducted the meeting in the “wet mess” area.
20 March, 21 March and 3 April, 2013
[46] Following the proceedings before me on 12 and 13 March 2013 I issued an Interim Order which placed some conditions on Mr Upton’s regarding his Right of Entry to the site. Mr Upton visited the site on 18 and 21 March and 3 April.
[47] Ms Ingrid Kaineder, who until 27 March 2013 had been employed as a Senior Human Resources Advisor for John Holland Pty Ltd (John Holland) with responsibilities for the Project, gave evidence about a site visit by Mr Upton on 20 March 2013. Ms Kaineder escorted Mr Upton to the meeting room and checked to ensure that there was drinking water in the fridge. Ms Kaineder did a headcount of the number of workers present as each person entered the Meeting Room. She was certain that the number of people who attended the meeting was 36.
[48] When all the employees attending the meeting were in the room, Mr Upton told Ms Kaineder "You need to go and contact Bechtel immediately and let them know that the meeting room is a joke. It's not big enough and it's a safety issue." She asked Mr Upton whether all employees present were entitled to be present. She then observed one employee leave. Ms Kaineder also observed that there were two employees she knew were not employees of John Holland’s.
[49] Mr Waller gave further evidence about a site visit by Mr Upton on 21 March 2013. Mr Waller says that shortly after employees entered the allocated room Mr Upton came out and stated that, ‘The building is overcrowded. There are people sitting on the floor. It is a health and safety issue that Monadelphous should take up with Bechtel. I will be letting the Commission know of these issues”. Mr Waller was confident that there were 28 chairs in the room because he had checked and counted before the meeting started. He was also confident that there were 28 employees attending the discussions because he and Mr Matt Maguire, Deputy Construction Manager (Construction Village) did a head count. Mr Waller stated that "...we knew that there were 28 people in there and I knew that there were 28 chairs so I didn't really feel that the room would have been overcrowded with 28 people. It’s perfectly adequate for 28 people."
[50] He also observed a plumber and a boilermaker attend the discussions held by Mr Upton. It is not contested that plumbers and boilermaker's are not eligible to be members of the CFMEU. Mr Waller did not alert Mr Upton to his observation.
[51] Mr Upton also exercised a right of entry in respect of Monadelphous employees on 3 April 2013. Mr Waller evidenced that 48 employees attended. He says that about 30 were seated and the remainder were standing which he said would have made it crowded.
[52] Mr Waller stated that he had no complaint about Mr Upton's behaviour on 21 March 2013 and 3 April.
D. Consideration
[53] Mr Upton did not give evidence. I have made no adverse inferences from Mr Upton not being called to give evidence.
Behaviour on 8 October, 2012
[54] I find that on 8 October 2013 Mr Upton did abuse and swear at Mr Cravey. I also find that Mr Upton endeavoured to provoke Mr Cravey to react physically. The abuse was strong, repeated and aggressive. The swearing and abuse here was well outside any acceptable or tolerable limits even for a construction site. The abuse was racially oriented and aggressive. I consider was directed at Mr Cravey personally and more generally at Bechtel.
[55] I have taken into account that the incident took place in October 2012 and the Bechtel application was not lodged until March 2013. In the circumstances here I do not consider that the delay lessens the seriousness of the behaviour nor that it was tolerated by Bechtel. Indeed Bechtel took the issue up with the Branch Secretary of the CFMEU at the time.
[56] I have also taken into account Mr Upton’s view about the adequacy of the room provided for his discussions with employees. His behaviour cannot be justified. It was a totally disproportionate response by him to the complaint he had. Mr Upton’s complaint could have been advanced in a number of different ways, but he choose to confront Mr Cravey in an abusive and unacceptable manner.
[57] I have also had regard to the difficulty in getting to the site and the extended drive involved. If Mr Upton was tired, frustrated, or for any other reason was agitated or aggrieved it did not excuse his behaviour.
[58] It also did not appear to me from the evidence that there was any intent by Bechtel or anyone else to provoke Mr Upton. The room that was available on that day may well have been unsuitable for his purposes. Bechtel’s explanation about the facilities that were available on that particular day and it seemed to me to be the best of the limited alternatives.
Behaviour on February 13, 2013
[59] On this day Mr Upton decided to ignore directions given to him, refused to leave the site when he no longer had a right to be on the site and decided himself where he would hold discussions with employees.
[60] By holding the meeting where he did and by refusing to be directed and the refusing to leave the site when requested Mr Upton was behaving in a way incompatible with his rights and obligations. Mr Upton’s behaviours seemed to be premised on the basis that he had an open ended right to be on the site and have his meeting at a place of his choosing and to have a right to leave the site at a time of his choosing.
Other behaviour
[61] The other behaviours of Mr Upton include displaying little care or responsibility in ensuring that he holds discussions only with those he is entitled to hold discussions with. It appears Mr Upton makes no effort to ensure only those employees that are entitled to be present are present.
I mentioned above that I issued an Interim Order on 18 March 2013 placing conditions on Mr Upton’s right of entry to the Project. I have had regard to Mr Upton having generally abided by those conditions.
E. Conclusion & Order
[62] I am satisfied that Mr Upton has not complied with his obligations in relation to his rights exercisable under the FW Act. There were no basic tenets of civility that underpin how the right must be exercised shown by Mr Upton but rather aggressive and abusive conduct that runs counter to the Objects of the FW Act and the rights provided under the it. Mr Upton refused to remain in the area he was permitted to be in and considered he had the right of access to places of his choosing. It was an abuse of the right the FW Act provides and contrary to how that right must be exercised.
[63] I am of the view that in the future Mr Upton would not comply with the limits that the right of entry provides, nor with the obligations upon him regarding those rights at the Project if he were permitted to exercise a right of entry to the Project. I have therefore decided to not permit him to exercise a right of entry to the Project for a period. I have considered the length of the period and have had regard to the nature of the behaviour. I have also had regard to the implications Mr Upton’s restriction may have on the representative role of the CFMEU on the site. I am satisfied that the restriction will not unduly interfere with the CFMEU 's capacity to fulfil its representative role.
[64] I have decided that Mr Upton should not be permitted to exercise a right of entry at the Project and this should be for the balance of this calendar year. I have also decided that clear obligations be placed on Mr Upton should he exercise a right of entry from 1 January 2014 until the conclusions of construction of the Project.
[65] I will provide a draft Order in terms reflecting this decision. The parties can advise me of any amendments they may seek in respect of the draft order.
DEPUTY PRESIDENT
Appearances:
Mr H Dixon of Counsel with Mr D Parker of Ashurst Australia for the Applicant
Mr K Sneddon of the CFMEU for the Respondent
Hearing details:
2013.
Perth:
March, 12, 13;
April, 11.
Final written submissions:
Applicant: 16 April 2013
Respondent: 16 April 2013
1 s.505(3)(a)
2 s.492(1)
5 Hansard, 25 November 2008, P11189, Second Reading speech.
6 PR956201 per Ross VP at [63]
7 Print S4571, 31 March 2000 per Munro SDP at [34]. See also Re CFMEU, PR935310, 25 July 2003 per Ross VP at [18-19]
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