[2011] FWAFB 3847 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
VICE PRESIDENT LAWLER |
|
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:
“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.”
[4] Section 490 provides:
“490 When right may be exercised
(1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.
(2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.
(3) The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.”
[5] Section 492 provides:
“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.”
[6] Section 505 provides:
“505 FWA may deal with a dispute about the operation of this Part
(1) FWA may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).
Note: Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.
(2) FWA 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: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) FWA 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, FWA must take into account fairness between the parties concerned.
(5) In dealing with the dispute, FWA must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.”
(emphasis added)
[7] The objects of Part 3-4 are set out in s.480:
“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.”
(emphasis added)
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
“a. The limited time employees have to wash up, have their meal in the dining facilities and then make their way to the training room;
b. Asking employees from “edible” and “inedible” categories who are clearly segregated in dining facilities by the Company to attend the same training room increases the possibility of cross contamination;
c. There are around 150 employees on site and whilst around only 50 might be taking a break at any one time, the training room would not accommodate such numbers if employees choose to become involved in any discussions;
d. The high visibility of the training room to salaried staff and particularly the Human Resources Manager was a deterrent to employees choosing to attend;
e. The training room lacks the appropriate privacy to reasonably conduct discussions”
[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
“— Ms Weir gave evidence that there had been no union visits until February 2010. When advised that the union officials would be visiting she posted notices in many prominent places where they were certain to be seen, advising of when the visit was occurring and where employees could meet with the officials if they wished. Her evidence was that employees were also informed at tool box meetings of the visits and during the officials’ visits she went to the lunchrooms to advise that they were present.
[13] After summarising the submissions of the parties, the Deputy President concluded:
“[28] In my view the Company provided a good explanation as to why the training room was chosen as that is the room where any visitor who wishes to have discussions with employees is located. Further that has historically been the room made available for the AMIEU without previous complaint.
[29] The inspections I conducted showed that the room was close to where employees had their meal and other breaks, it was clean and it was accessible. Whilst the room was in an office building next to the Human Resources Manager’s office, I do not consider that the location for that reason alone or in combination with other reasons made the decision of the occupier an unreasonable one. The AMIEU complained that the room was too small. However the only evidence in support of that contention was a self evident assertion that if large numbers of employees wished to attend at the one time then the room was too small. However the evidence did not satisfy me that such a circumstance had ever arisen nor that it was likely that it would arise.
[30] I also do not accept that the evidence of Ms Weir was the concession the AMIEU made it out to be. The evidence the AMIEU referred to in support of their contention was as follows;
Mr. Norris: Would you accept that even though it may not be your intention to intimidate or discourage people, that it might be a consequence of designating that area, that employees may feel intimidated and discouraged?
Ms. Weir: That’s something that you’d have to ask employees, I would like to think that they wouldn’t feel intimidated, where their OHS and HR are a very integral part…we have a lot more contact than anyone else, than any of the other areas with the workers and have good relationships, they come down just to have a coffee and chat half the time. So I don’t …um.. I wouldn’t like to think that they feel intimidated ‘cos that’s not the intention at all.
Mr. Norris: No, no, well I’m saying that even if it wasn’t the intention, would you accept that it’s possible that somebody may feel that way?
Ms. Weir: Maybe some people might, I’m not sure.
[31] In my view that evidence does no more than highlight that there might be a possibility that some people may feel intimidated. To me that is a long way short of the standard I would require to establish intent to intimidate on the Company’s part.
[32] Much of the evidence of the AMIEU seemed to be directed at endeavouring to establish that the lunch room is more convenient and more suitable. They seemed to be arguing that a more reasonable decision would be to allocate the lunch room at the location for interviews of employees. However that is not the test the FW Act requires me to apply. The test in the FW Act is one of reasonableness on the part of the occupier and deemed unreasonableness if certain intention of the occupier is established.
[33] I find the room chosen by the occupier to have been reasonable and I do not find that there was any intent of the nature of the provisions in s.492(2)(b) on the part of the occupier in choosing that room. Furthermore I find that the room was suitable.”
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:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[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:
“[32] In our view, the scheme of the Act is that occupiers of premises have the right to request permit holders to conduct interviews or hold discussions with employees in a particular room or area of the premises provided the request is reasonable. When a dispute arises as to the reasonableness of the request, all of the circumstances must be considered. An applicant can only succeed if it establishes that the employer request is objectively unreasonable. The mere preference of permit holders for a different room is insufficient.
[33] The specific examples of unreasonableness in s 492 are an appropriate starting point. Obviously the specified room must be fit for purpose. A request made for an impermissible purpose is also inherently unreasonable. If one of those grounds is made out then the request is unreasonable.
[34] A request may otherwise be unreasonable in all of the circumstances of the matter. It is appropriate in this regard to consider the legitimate interests of the employer, the interests of employees, and the legitimate interests of permit holders. To some extent those interests may be ascertained by the evidence adduced in the proceedings. The interests may also be considered based on the submissions of the parties.
[35] In previous cases the interests of employees have included the interests of employees who may not wish to be involved in discussions. In our view, it is appropriate to take their interests into account.”
[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):
“...the Commission is required to take all of the circumstances into account and to consider the legitimate interests of the employer or occupier of the premises as well as the interests of the employees and the permit holder.” 8
[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:
(i) like all hearsay evidence, such evidence cannot properly be tested through cross-examination; and
(ii) it is generally accepted that employees will sometimes be reluctant to disclose to their employer support for a union or interest in engaging with a union for fear of adverse consequences. [This has long been recognised by the tribunal and its predecessors and has even found statutory recognition in, for example, the mechanism in s.170LKA of the Workplace Relations Act 1996 that allowed for the Registrar to issue a certificate that a union had a member employed by a particular employer to enable that fact to be established without the identity of the employee be revealed to the employer.]
[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
“Ms Weir, what evidence do you have that Mr Smith, for instance, were granted access to the dining facilities, that he would disturb what you described as the quiet enjoyment of somebody’s lunch?---It probably sounds weird to you but I take quite a lot of pride in the fact that I know the workers really well, I have a really good relationship with them, and I know, you know, how much they really do value their lunchtime and they would have chats and carry on down in there for a reason. I just know that - I don’t feel myself and from the feedback I’ve been given so far, that they would just feel not as relaxed if they had someone else there that wasn’t part of them or their environs, for want of a better word.
So it’s your evidence that the mere visual presence of, say for instance, Mr Smith would disturb these workers?---Yes.
Do you have any basis for holding that view? I mean, can you elaborate on it?---Only because of the reactions I’ve seen from the staff so far, when they’ve been notified. They went, “Yes, we already know. You don’t need to tell us.” I take it as a bit of a compliment that the staff don’t feel the need to. They are quite happy - they know we have an open door policy. They come to me whenever they want. They’ve got open door - Mark Panizza has an open door, Brian Kindrat has an open door. They are all paid very well. You know, we have employee assistance programs. We bend over to help anyone out as much as we can, and I think they appreciate that and I don’t feel the need - they have financial - people like that - most of the people there I could probably confidently say live week to week and paying union fees is just another thing they just don’t - I'm not saying there’s no need for it but if you don’t feel the need for it, then why have it? We ourselves have access to cheap tools and, like I said, the insurance people, they know about that and they are provided with all the super fund information they need. It’s all in my office and they’re all given things like that. So I just think they're content and they're happy. They don’t feel the need for it.
...
So it’s your assumption from the meetings that you had with these particular employees that they would be disturbed in even having their meal by the mere presence of a union official in the dining facilities?---And especially in certain parts of the dining facilities. We have workers - it might sound petty but everyone has their own little spot. We have our Chinese girls who like to sit where they sit all the time. I know that they would be very uncomfortable if you sat a bloke they didn’t know down next to them in the lunchroom. We have a little group of lovely ladies from the Philippines that sit there; they would be the same. They’re like, “Well, who is that? Why have we got that there? What’s he here for? What have we done wrong?” They would panic.
That’s your assumption as to how they would think?---Yes, because I’ve seen how they - with their culture and the way they are with males and males they don’t know. We have to respect how they are. Little things in the office - you have to respect how they behave.”
[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:
“Notice to all Staff
The industrial relations system in Australia today is governed by the Fair Work Act 2009. With it comes a number of new awards including the new Meat Industry Award 2010 as well as the National Employment Standards which have precedence over all awards.
Chapter 3 of the Fair Work Act 2009 legislates various rights and responsibilities of employers, employees, organizations etc. Under S.484 given right of entry conditions are provided for. This section permits organizations which have jurisdiction over an industry to enter upon the premises of employers under certain conditions. The permit holder representing these organizations has the right amongst other things to hold discussions with those employees on site.
You are not obligated to meet with the permit holder, it is at your sole discretion whether you do or you don’t.
We have received a Notification of Entry from the AMIEU scheduled for Friday 5th February 2010. We have made available our Training Room to the permit holder for the purpose of discussions with those who wish to meet with the permit holder. Please note that you can avail yourself of such a meeting during your scheduled breaks.
We have attached the section of the Act relative to this visit for your information.
Should you have any queries please do not hesitate to speak to Pip Roberts our HR Manager.
Regards
Mark”
[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:
“[8] One way to examine whether the choice is reasonable is by considering the reason or reasons the occupier may explain why a particular location was chosen. If there is a reasonable explanation for the choice then it is most likely that the decision of the occupier was reasonable and should not be interfered with.”
[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:
“[11] A question in this matter then is whether there was an “intention” to “intimidate”, “discourage”, or “make difficult”. The obvious first question to ask in examining the intention of the occupier is to ask whether employees were intimidated, discouraged or found it difficult to attend the place chosen. If the answer to any of these questions is “yes” then the additional question must then be asked as to whether that was an outcome intended by the employer.”
[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.
2 Ibid at [14]
3 Ibid at [15]
4 Ibid at [16]
5 (1936) 55 CLR 499 at 504-5
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>