[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 Act 2009

s.505 - Application to deal with a right of entry dispute

National Union of Workers
Coles Group Supply Chain Pty Ltd



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:

[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:

[8] The Coles policy provides that:

[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:

[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:

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

[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 Limited9 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:

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

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

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

[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:

[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:

[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:

[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.



Mr D Mujkic appeared for the NUW.

Mr C Gardner appeared for Coles.

Hearing details:


Melbourne with video to Perth

March 4

 1   Exhibit Coles 3.

 2   Exhibit Coles 3, at point 12.

 3   Exhibit Coles 1, at para 20.

 4   Exhibit Coles 1, Attachment NM2.

 5   Exhibit Coles 1, at para 7.

 6   Exhibit Coles 4, at paras 16 and 17.

 7   ANZ Banking Group Limited v Finance Sector Union of Australia [PR951766] at para 39.

 8   Construction Forestry Mining and Energy Union v BGC (Australia) Pty Ltd [PR980446] at paras 197-206.

 9   [2012] FCAFC 85.

 10   [2011] FWAFB 120.

 11   [2010] FWA 6737.

 12   [2012] FCAFC 85.

 13   [2012] FCAFC 85.

 14   [2012] FCAFC 85.

 15   [2010] FWA 6737 at para 41.

 16   [2012] FCAFC 85 at para 16.

 17   PR951766 at para 39.

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