[2014] FWC 1674

The attached document replaces the document previously issued with the above code on 12 March 2014.

The Decision is being refiled to correct an error in the subject line.

Melissa Nassios

Associate to Commissioner Roe

Dated 13 March 2014

[2014] FWC 1674

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Coles Group Supply Chain Pty Ltd
(RE2014/547)

COMMISSIONER ROE

MELBOURNE, 12 MARCH 2014

Alleged dispute concerning meeting venue for discussions with employees.

[1] This matter arises out of a dispute between the parties over the operation of Part 3-4 of the Fair Work Act 2009 (the FW Act). The application is made under Section 505 of the FW Act. The applicant is the National Union of Workers (NUW) and the respondent is Coles Group Supply Chain Pty Ltd (Coles or the Employer).

[2] The dispute relates to the requirements imposed by Coles when an NUW organiser who is a permit holder under the Fair Work Act enters the premises of Coles at its distribution centre in Kewdale, Western Australia for the purpose of holding discussions with members of the NUW, or those eligible to become members of the NUW.

[3] Since 1 January 2014, with the introduction of amendments to the Fair Work Act 2009 which allow right of entry for the purposes of discussion to occur in the meal room where agreement is not reached on the location for discussions, Coles have permitted the NUW organisers to hold discussions in the meal room. Coles have allowed the NUW to erect signage next to a table in the lunchroom to advertise the NUW’s presence. Coles have not restricted or sought to restrict the frequency of visits to the premises by NUW officials. Entry has occurred on approximately 7 occasions during 2014 and more than one permit holder has been allowed entry on a number of those occasions.

[4] The conditions imposed upon the NUW permit holder which are in dispute are that:

● The NUW official must remain at a particular table in the lunchroom; and
● Must not roam around the lunchroom; and
● Must not approach workers to initiate discussions or to ascertain if they are interested in discussions; and
● If the NUW official does not accept these conditions they are required to leave the premises.

[5] The NUW seeks an Order that Coles refrain from imposing conditions on the right to enter premises that restrict the ability of the permit holders to approach employees for the purpose of holding discussions.

[6] Coles submit that the conditions are consistent with a policy which it has introduced for right of entry across its operations since 1 January 2014. 1

[7] The following relevant background facts are not in contention:

● Coles have allowed right of entry for NUW permit holders when requested.
● The NUW have provided appropriate notice.
● Coles have consistently conveyed their policy position to the NUW officials when they have been met on site.
● NUW officials have left the site on a number of occasions when advised that if they do not accept the Coles conditions on right of entry they are required to leave the site.
● The meal room is a large area and the table allocated by Coles is in a central and prominent position from the perspective of employees entering the meal room.
● Between 700 and 800 people work at the site. Between 550 and 600 of those are Coles employees.
● The SDA is the major union at the site and this has been the case for a number of decades. The SDA is covered by the current enterprise agreement which also covers Coles and the Coles employees at the site. The SDA submit that it has 506 Coles employees who are members at the site. Mr Mann for Coles estimated that there are more than 500 employees who are members of the SDA based upon payroll deduction information.
● The NUW has been provided with the personal details of approximately 100 employees during the right of entry visits it has made since it first began this process in September 2013.
● Employees are entitled to one thirty minute meal break during a shift and to two ten minute rest breaks. From a practical perspective employees have little choice but to take the meal break in the meal room.

[8] The Coles policy provides that:

“If the lunch room is used during meal times union officials should be provided with a table and chairs in a discreet location. The employees may visit the union officials for discussions. The union officials should not approach employees. Employees should not be disturbed from their meal and rest. The union official should not make speeches or hold group meetings in the lunch room. The union officials should not conduct barbeques or hand out union clothing on an unsolicited basis.” 2

[9] Coles submit that there have been complaints from employees about being disturbed by the NUW during meal breaks. Mr Mann for Coles reported that Mr Barry Broanda told him that he had received complaints from two employees. 3 Mr Broanda did not give evidence and there was no detail about the complaints. Mr Mann provided a letter from an employee requesting that the “NUW organisers be considerate and respectful towards our team members during there (sic) lunch break” and “let us eat in peace and if we feel the need to speak to them do so in our own free will.”4 Mr Falconer for the NUW gave evidence that this employee now had a more positive attitude to the NUW. After considering all the evidence I am satisfied that some employees have complained about the NUW activity. Given that the site is unionised by the SDA and that there are SDA delegates on site I consider it possible that the concerns are more about the NUW seeking to recruit members than about disruption to the meal break. However, the evidence does not suggest that there have been widespread complaints about the NUW activity.

[10] Having considered all the evidence I am satisfied that there is no substantive evidence that the NUW officials have conducted themselves inappropriately whilst on the premises. There was some evidence from the NUW of what they describe as inappropriate behaviour by managers. It is commonplace when unions are seeking to organise workers that this creates some strong feelings amongst workers, managers and union officials. I am satisfied that there is insufficient evidence to reach a conclusion that either Coles or the managers have conducted themselves inappropriately during the right of entry visits.

[11] Coles argue in support of its policy that it takes fatigue management for its employees seriously and that it wants to ensure that employees are not disturbed in their meal breaks by unwanted interruptions. 5

[12] Coles submit that it is applying the policy consistently to all unions including the SDA. In cross examination of Mr Mann for Coles the NUW suggested that conditions may be different for meetings with union members at a site in NSW. However, there was no evidence that the policy was not being applied consistently in respect to requests for right of entry pursuant to Section 484 of the FW Act.

[13] The NUW organisers Mr Gunstone and Mr Falconer gave evidence that it was not possible to know if employees wished to discuss matters with them or not unless they were able to approach employees. Mr Falconer gave evidence that he would introduce himself, ask the employee(s) if they wanted to speak with him and only if they agreed would he continue with the conversation. Mr Falconer considered that his ability to recruit members was enhanced by the ability to move around and approach people.

[14] The site Planning Manager, Mr Wood, gave evidence that he believed that if employees wanted to speak to the NUW they would approach them and that most employees would not enjoy the union intruding on their meal break. 6

[15] The relevant provisions of the Act are as follows:

“s. 480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF outworkers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.

s. 484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF outworkers:

(a) who perform work on the premises; and

(b) whose industrial interests the permit holder’s organisation is entitled to represent; and

(c) who wish to participate in those discussions.

s. 492 Location of interviews and discussions

(1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3) The permit holder may conduct the interview or hold the discussions in any room or area:

(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b) that is provided by the occupier for the purpose of taking meal or other breaks.

Note 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.

Note 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).

s. 505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.

Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.

Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.

Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;

(b) an order suspending an entry permit;

(c) an order revoking an entry permit;

(d) an order about the future issue of entry permits to one or more persons;

(e) any other order it considers appropriate.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;

(ii) a permit holder’s organisation;

(iii) an employer;

(iv) an occupier of premises.

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

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”

[16] It must be noted that the provisions in Sections 492 and 505 of the FW Act have been substantially amended with affect from 1 January 2014. Under the previous legislation Section 492 provided as follows:

“s. 492 Conduct of interviews in particular room etc.

(1) The permit holder must comply with any reasonable request by the occupier of the premises to:

(a) conduct interviews or hold discussions in a particular room or area of the premises; or

(b) take a particular route to reach a particular room or area of the premises.

Note: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:

(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or

(b) the request is made with the intention of:

(i) intimidating persons who might participate in the interviews or discussions; or

(ii) discouraging persons from participating in the interviews or discussions; or

(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.

(3) However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.

(4) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.”

[17] I note that the Explanatory Memorandum in respect to the recently amended Section 492 states as follows:

“Item 7 - Section 492

139. Section 492 deals with the conduct of interviews or discussions in a particular location. This item repeals and replaces existing section 492 of the FW Act. New subsection 492(1) provides that the permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

140. New subsections 492(2) and (3) provide that if there is no agreement, the default location for interviews and discussions will any room or area in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks and is provided by the occupier for that purpose. The requirement means, for example, that a permit holder would not be authorised to hold discussions in a personal office or workspace or a room or location which is not provided for or used for meals or other breaks unless it is agreed.

141. Notes to new section 492 refer the reader to:

• the FWC’s power under section 508 to deal with the misuse of rights by a permit holder or organisation; and



• obligations on persons under section 502 not to intentionally hinder or obstruct a permit holder.




142. An example of a misuse of rights under section 508 in these circumstances may be where a permit holder repeatedly seeks to have discussions with a person in a lunch room to encourage that person to become a member of an organisation when the person has made it clear to the permit holder that they do not wish to participate in such discussions.”

[18] The general objects of the Act are also relevant (Section 3) and in particular the objective to “take into account Australia’s international labour obligations” and “enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms.”

[19] The NUW referred to two decisions of the predecessors of the Fair Work Commission in support of the contention that the rights of entry in the legislation are subject to the conditions or limitations which are specified in the legislation: “If further conditions or constraints were intended, the Parliament would have identified and specified further limitations.” 7 It follows that there is no warrant for imposing further conditions upon the statutory right of entry or for inferring additional conditions. This approach was adopted by Commissioner Williams.8 Commissioner Williams noted that in settlement of disputes about right of entry, conditions may be imposed, but employers do not have any general right to themselves impose conditions or limitations on permit holders beyond those the Act prescribes. The NUW contends that the conditions imposed by Coles are such impermissible conditions or limitations.

[20] Coles argue that no order can be made in this matter as a matter of law. In this respect they rely on the Full Federal Court decision in Australasian Meat Industry Employees’ Union and Somerville Retail Services Pty Limited. 9 This matter arose from a decision of the majority of a Full Bench of Fair Work Australia10 to quash a decision I made in the first instance.11

[21] Coles contend that the right in Section 492(3)(a) of the FW Act to hold discussions in the meal room is to be read with Section 484(c) which restricts entry to the purpose of holding discussions with one or more employees who wish to participate in those discussions. In the circumstances of this case I accept that this is correct.

[22] Coles argues that a plain reading of the expression “who wish to participate in those discussions” does not extend to roaming and to inviting discussions. An order to so extend the right would be an order which would confer additional rights contrary to Section 505(5) of the FW Act.

[23] In support of the contention Coles particularly refers to the following passage from the judgment of Justice Jessup:

“15. Part (a) of the Union’s first ground was based upon a perception of the Act which, although variously expressed by counsel for the Union in presenting their client’s case, is most pithily encapsulated in the following passage in their outline of submissions:

“The right described in s. 480(a) to represent the members and hold discussions with potential members involves the ability to directly approach employees within the workplace. The employees may wish to be represented or hold discussions, or they may reject the offer. However, the right is diminished if access to employees is screened by an employer preventing a direct approach to employees.”

The point was that the Act necessarily contemplated that someone entering premises under s 484 would be able “to directly approach employees within the workplace” with a view at least to inquiring about their preparedness to engage in the discussions referred to. If that were a correct perception of the Act, I doubt whether the reasons of the majority of the Full Bench would rightly be described as infected by an omission to take some relevant circumstance into account. Rather, it might be said that their discretion miscarried in the sense that their decision was antagonistic to the scheme of that part of the legislation under which it was made. Indeed, as the passages above demonstrate, it could not be said that the majority overlooked what was, it seems, a central feature of the Union’s case, namely, that the request by Sommerville to use the training room would compromise Mr Ross’ opportunity to approach the generality of employees at the workplace, with a view to enquiring whether they desired to engage in discussions.

16. However, I do not consider that a perception of the scheme of the relevant provisions in Pt 3-4 of the Act of the kind referred to in the previous paragraph would be an accurate one. It is notable that the legislature has chosen to give no rights under Subdiv B other than the right to enter premises for certain purposes. The individual paragraphs in s 484 identify the employees with respect to whom those purposes must exist, at the point of entry. One characteristic specified in the section is that the employees must, at the time when the right of entry comes to be exercised, “wish to participate in those discussions”. The right of entry is not given for the holding of discussions with employees generally. Dealing with the matter at this high level as it does, s 484 undoubtedly leaves scope for disputation in particular cases, and it may be that this is, in part at least, the justification for giving FWA its dispute-settling function under s 505. It is sufficient for present purposes to say that a decision by FWA to resolve a dispute arising under s 492 in a way which did not leave scope for the person entering to cast about generally amongst the employees at the particular workplace with a view to discovering which, if any, of them desired to enter into discussions could not be said to be jurisdictionally infected by a failure to take into account a circumstance which FWA was bound to take into account in the Peko-Wallsend sense.

17. Turning to part (b) of the Union’s first ground, it is here alleged that the majority failed to take into account the rights of Sommerville’s employees under s 480 of the Act to receive information from the Union. But s 480 creates no such rights. It is an “objects” provision, and makes it clear that the object of Pt 3-4 itself is to “establish a framework” that balances various things, including “the right of employees ... to receive, at work, information and representation from officials or organisations”. The way this balance has been achieved is by the enactment of the provisions to which I have referred, amongst others. On the facts of the present case, there could be no suggestion that Sommerville’s request under s 492 compromised the ability of those of its employees who attended discussions in the training room to receive information from Mr Ross, and others in a like position. Essentially, the Union’s point was that, by not giving Mr Ross the facility to approach employees generally, the “right” of those employees to receive information from him had been compromised. As so identified, this point is different from that advanced under part (a) of the first ground only in its manner of formulation. In substance, and to the extent that might be thought relevant to certiorari and mandamus, the point is the same as that arising under part (a), and should be decided accordingly.” 12

[24] Coles also rely on the reasons given by Justice Flick at paragraphs 56-63 but particularly the following:

“56. The right of entry conferred by s 484 is thus not an untrammelled right. It is a right subject to both express and implied constraints. One express constraint is that the right of a permit holder is one that must be exercised for one or other of the “purposes” set forth in s 484. Another express constraint is that the right of entry is subject to any “reasonable request” that may be made by the occupier of the premises that the permit holder seeks to enter. A further express constraint is that contained within s 490(2) limiting discussion to meal and lunch breaks. An implied constraint is that the right must be exercised so as to promote the object of Part 3-4 as set forth in s 480.

....

63. Such hypothetical instances serve to emphasise that there may be a divergence between what an occupier regards as a “reasonable request” as opposed to the perception of those seeking to enforce a right of entry. There is much to be said for the view that the statutory right of entry conferred on a permit holder by s 484 should not be construed as conferring any greater right than is necessary to achieve the statutory objective. The common law rights of an occupier, on this approach, are only to be diminished to the extent absolutely necessary to give effect to the right conferred. Subject only to the requirement that an occupier make a “reasonable request”, the balance that the Legislature has sought to achieve between granting a statutory right of access and the consequent diminution of the common law rights of an occupier is thereby struck. An occupier, on this approach, need not be further involved itself in promoting or accommodating the interests of those seeking entry.” 13

[25] I also consider the following elements of Justice Flick’s judgment of relevance:

“72. The written Outline of Submissions filed on behalf of the AMIEU maintained that “the effect of [Somerville’s] requirement that Mr Ross may not see employees in the lunch room is that it prevents him from directly approaching employees at the premises to hold discussions with them, or to ascertain whether they wish to hold discussions with him”. Properly construed, it is then submitted that the entry provisions conferred by the Fair Work Act “contemplate that if the rights of the permit holders are diminished or limited in this way by the employer’s requirement, that is a consideration that the Fair Work Australia is bound to take into account in deciding whether the requirement is reasonable”.

73. Whether or not this was a consideration that must be taken into account, a fair reading of the reasons for decision of the majority of the Full Bench record that it was in fact taken into account....

.....

76. Reliance is placed by the AMIEU upon the following conclusions of Commissioner Roe:

[41] The right of entry for the purpose of discussions with those who wish to participate is a right of the AMIEU permit holder. It cannot be reduced to a right of employees to be able to request to hold discussions with the permit holder. ...

The argument of the AMIEU is that the majority of the Full Bench could well have taken into account the rights recognised by s 480 but that the one thing the majority could not do was to “ignore that consideration”. The reasons of the majority, the AMIEU contends, expose that that is what the majority in fact did.

….

77. It may readily be accepted that a permit holder may seek to exercise the right of entry conferred by s 484 to hold discussions for the purpose of communicating to employees (for example) “information” as contemplated by s 480(b). It may further be accepted that an occupier, when making a “request” of a permit holder that he occupy a particular room, could not specify a particular room with the intention of frustrating or negating the right of employees to receive “information”.

78. But there was no suggestion that the interview room was not a “fit and proper” room in which the “information” that Mr Ross wanted to impart could be communicated to and received by those in attendance.” 14

[26] I am satisfied that the Full Court decision does not contradict the finding I made in the decision at first instance:

“The right of entry for the purpose of discussions with those who wish to participate is a right of the AMIEU permit holder. It cannot be reduced to a right of employees to be able to request to hold discussions with the permit holder. An organiser approaching an employee to participate in discussions is not contrary to the legislative scheme unless that organiser unreasonably persists after that employee has made it clear that they don’t wish to participate in discussions. Such persistence it could be argued might bring into question the purpose of holding the discussions and might in some circumstances lead to disruption to the business.” 15

[27] The judgment of Jessup J is, in the context of consideration of a legislative provision which gave to the employer the right to choose the meeting room provided that it was reasonable, that there was no absolute right to roam freely and approach employees. As His Honour observed:

“... s 484 undoubtedly leaves scope for disputation in particular cases, and it may be that this is, in part at least, the justification for giving FWA its dispute-settling function under s 505.” 16

[28] There is nothing in the judgement of the Full Court which confines “discussions” in Section 484 to a situation where an employee makes the first approach to the union organiser. An organiser approaching an employee who wishes to participate in discussions is not contrary to Section 484 or to the legislative scheme. Read in context the expression “who wish to participate in those discussions” does not exclude a permit holder from approaching employees to identify if they wish to participate in discussions. A discussion can occur in two ways - the permit holder can approach the employee or the employee can approach the permit holder. The Act does not suggest one or the other.

[29] I note that paragraph 142 of the Explanatory Memorandum quoted earlier supports the concept that discussions may legitimately involve an approach by the permit holder. I do not suggest that it is necessary or appropriate to have regard to the Explanatory Memorandum as an aid to the construction of the Statute. The meaning is sufficiently clear in my view from the plain reading of the provisions in context.

[30] I am satisfied that the Full Bench authority in ANZ Banking is relevant in the context of the present legislation: “If further conditions or constraints were intended, the Parliament would have identified and specified further limitations.” 17

[31] It follows in my view that an employer does not have a general right to prevent the permit holder from approaching employees to identify if they wish to participate in discussions. A policy, such as the Coles policy, which provides that “union officials should be provided with a table and chairs in a discreet location” and that “union officials should not approach employees”, is not consistent with the rights of permit holders under the Act.

[32] However, that does not mean that employers have no right to seek to impose conditions upon the behaviour of a union official exercising right of entry for the purpose of discussion with employees who wish to participate in those discussions. I agree that the observation of Justice Jessup, to which I referred earlier, has relevance in this circumstance:

“... s 484 undoubtedly leaves scope for disputation in particular cases, and it may be that this is, in part at least, the justification for giving FWA its dispute-settling function under s 505.”

[33] The words of Section 492 provide for the discussions to take place in “rooms or areas of the premises” agreed with the occupier of the premises or in the absence of agreement in the meal room. There may be circumstances where the employer may reasonably restrict the manner in which the meal room is accessed. For example, if there are two meal rooms and employees can freely choose which room they utilise it may be reasonable to restrict access to only one of them depending upon the circumstances.

[34] I am satisfied that I am able to deal with the dispute over the conditions on right of entry imposed by Coles. An Order that has the effect of preventing Coles from imposing a restriction on the permit holder to prevent them approaching employees would not be conferring rights beyond or inconsistent with those specified in the legislation and would therefore not be contrary to Section 505(5) of the FW Act. However, I am not obliged to settle the dispute by the making of an Order. I did attempt to resolve the dispute by conciliation on 21 February 2014 but was satisfied that the dispute was not able to be resolved by conciliation.

[35] Coles argues that no Order should be made given:

● The fatigue management concerns of Coles.
● The right to have discussions with those who choose to approach the NUW is not being interfered with.
● There is no dispute about the location of the discussions and the facilities provided are adequate.
● The predominant union on the site, the SDA, accepts the arrangements.
● There is no burning issue other than the desire of the NUW to lure members away from the SDA.
● Making the Order would be seen as a “nod” to the NUW.

[36] I consider these to be relevant factors, apart from the matter last mentioned, which stand against the making of an Order in the circumstances of this case.

[37] The NUW argues that the Order should be made and that a failure to do so would be encouraging the behaviour of Coles in imposing conditions on the permit holder contrary to the legislation. The NUW submits that there is no evidence of inconvenience to the employer.

[38] It is commonplace that organising activities by a union is likely to cause debate amongst employees and some level of inconvenience to both employees and the employer. A level of inconvenience and dissention, or the apprehension of such an outcome, is not a basis for interfering with the activity of the permit holder properly notified and otherwise conducted in accordance with the Act. There is no evidence in the circumstances of this case that the activities of the NUW have caused undue disruption to the business. In this context the finding that the conditions imposed by Coles are inappropriate stands in favour of making an Order.

[39] However, I consider it relevant that most employees at the site are already members of a union and that it appears that the persons with whom the NUW seeks to have discussions and to whom they wish to provide information are already members of the SDA. The international conventions in respect to Freedom of Association are primarily directed at facilitating and encouraging collective organisation. In this particular context I am satisfied that Coles has a reasonable concern that the activities of the NUW may cause conflict amongst union members in the workplace. I found earlier that there have been some complaints to the employer. I am not suggesting that there is any evidence that the NUW has behaved inappropriately. It is consistent with the objects in Section 480 of the FW Act and with the general requirements in Section 578 that I take such matters into consideration in resolving a dispute under Section 505.

[40] I have decided in the circumstances that it is not appropriate to make an Order. I consider that the appropriate resolution to the dispute is to make the following Recommendation:

1. Coles Group Supply Chain Pty Ltd should not impose conditions on right of entry of officials seeking to have discussions at the Kewdale site pursuant to Section 484 of the FW Act that would prevent permit holders from approaching employees in the designated meeting location for the purpose of holding discussions.

2. In respect to the Kewdale site it is reasonable for Coles Group Supply Chain Pty Ltd to restrict permit holders to a particular area of the meal room so as to reduce the likelihood of conflict in the workplace. However, the permit holders should be able to approach employees for the purpose of holding discussions in accordance with Section 484 of the FW Act in that particular area.

3. The NUW and Coles Group Supply Chain Pty Ltd should attempt to reach agreement on appropriate arrangements and trial those arrangements for a period of at least one month.

4. Either party may seek further assistance of the Fair Work Commission by making further application under Section 505 of the FW Act or other appropriate section of the Act.

COMMISSIONER

Appearances:

Mr D Mujkic appeared for the NUW.

Mr C Gardner appeared for Coles.

Hearing details:

2014

Melbourne with video to Perth

March 4