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Fair Work Australia Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 21897-1
COMMISSIONER WILLIAMS
RE2009/10104
s.505 - Application to deal with a right of entry dispute
Construction, Forestry, Mining and Energy Union
and
Foster Wheeler Worley Parsons (Pluto) Joint Venture
(RE2009/10104)
Perth
9.14AM, FRIDAY, 18 DECEMBER 2009
Continued from 17/12/2009
Reserved for Decision
PN2905
THE COMMISSIONER: I can see from the bar table that appearances remain the same. Mr Swinbourn, can I just start with yourself. The proceedings when we began the hearing, what ever day that was, Wednesday I think in Karratha.
PN2906
MR SWINBOURN: Yes.
PN2907
THE COMMISSIONER: We were talking about Mr Smith.
PN2908
MR SWINBOURN: Yes.
PN2909
THE COMMISSIONER: And whether he would be called and if so whether he would be cross-examined and so forth. Firstly, where are we at with that issue?
PN2910
MR SWINBOURN: Mr Smith contact our office and indicated that he had taken on some work and now he is not available for us to call a witnesses so we're not in a position to do that and so we won't seek to rely on his witness statement.
PN2911
THE COMMISSIONER: I am assuming that doesn't cause you any difficulty, Mr Dixon?
PN2912
MR DIXON: No, thank you, Commissioner.
PN2913
THE COMMISSIONER: All right. So I'll ignore the statement of Mr Smith that has previously been provided and secondly Mr Swinbourn, the question of whether you wish to cross-examine Mr Gibson in terms of material which is exhibit R5. What's your position on that?
PN2914
MR SWINBOURN: No, we don't intend to do that and just as a matter of housekeeping, I do apologise for my lateness. It was not intentional and I apologise to the other parties for the inconvenience it has caused.
PN2915
THE COMMISSIONER: Yes. Apology accepted, Mr Swinbourn. All right. On that basis is there anything I should know before we proceed to submissions?
PN2916
MR SWINBOURN: I have nothing further to add to.
PN2917
THE COMMISSIONER: Mr Dixon, any? All right. In terms of the ABCC's submissions is there any intention Mr Quigley, for you to make further submissions beyond those that have been provided in writing?
PN2918
MR QUIGLEY: Yes, but they will be brief ones, Commissioner.
PN2919
THE COMMISSIONER: All right.
PN2920
MR QUIGLEY: I would think probably no more than about 10 and certainly not more than 15 minutes.
PN2921
THE COMMISSIONER: And what's the parties' view about - thank you, Mr Quigley - where Mr Quigley's submissions fit in, in the sequence of submissions, Mr Dixon?
PN2922
MR DIXON: Commissioner, we thought that it may be appropriate for him to go before we do but it doesn't really make a great deal of difference.
PN2923
THE COMMISSIONER: Mr Swinbourn?
PN2924
MR SWINBOURN: We're in the hands of the Tribunal in respect.
PN2925
THE COMMISSIONER: All right. Look, I think, Mr Quigley, because I am also conscious that you have travel commitments later in the day but hopefully we will meet those. I am happy for you to go first and lead off if you're in a position to do.
PN2926
MR QUIGLEY: Yes, I am in a position, Commissioner.
PN2927
THE COMMISSIONER: Yes. Carry on.
PN2928
MR QUIGLEY: Thank you. If the Tribunal pleases the ABCC Commissioner wishes to address the Tribunal on a number of points in the light of the inspections and witness evidence that has been taken this week and these submissions today are intended to supplement the written outline that was filed and served on 9 December in these proceedings. A couple of points of what I'd like to address today including the question of the reasonableness of the location. The Act sets out in section 492 and in particular subsection (2) of 492, that deals with the question of whether or not a request by an occupier or employer is reasonable or unreasonable. In the ABCC Commissioner's view the evidence that has been brought forward by the applicant in this matter falls short of what would be required for the Tribunal to be satisfied that the respondent has determined the specific location with the intention of intimidating persons who might participate in discussions with a permit holder.
PN2929
That the escorting of permit holders is carried out with the intention of intimidating persons who might participate in those discussions and that the respondent intended to make it difficult for persons who wished to participate in discussions to participate. The onus of satisfying the Tribunal that the respondent acted within an intention to produce such effects has simply not been met. As Mr Gibson said in his evidence:
PN2930
The notice that employees would be intimidated was fanciful.
PN2931
In his words. In any event even if the employees felt intimidated the test under section 492 is that the respondent had to have acted with the intention of intimidating. That's section 492(2)(b)(i). It is not enough that employees like Mr Hopkins who gave evidence and, well, Mr McDonald, felt that they were being discriminated against or intimidated. In fact Mr Hopkins's concern about alleged discrimination and intimidation should be taken with a grain of salt. In his evidence before the Tribunal Mr Hopkins in the course of cross-examination in relation to paragraph 38 of his statement stated that he believed that it was Foster Wheeler Worley & Woodside who had placed restrictions on when union meetings could take place. Now, whilst it would be unreasonable to expect Mr Hopkins to be familiar with the provisions of section 490 of the Fair Work Act it is possible that his misunderstanding of the effect of the Act has coloured his thinking about the motives of the company.
PN2932
As Mr Glynn pointed out in his evidence the Pluto site operates according to a security protocol adherence to which is essential for safety and security. If the respondent's adherence to safety and security procedures appropriate to the site has the event that permit holders be escorted and be within observation range at all times it cannot be said that the respondent's intention has been to intimidate persons who might participate in the discussions. Such evidence that the applicant sought to try to convince the Tribunal that the respondent intended to make life difficult for persons who might wish to participate in discussions because access is not always easy during meal times or other meal breaks or other breaks was unconvincing. Within the limitations of the site the respondent has provided plausible explanations and the steps it has taken to provide locations for discussions to occur with permit holders and that they are located with the principle object of accessibly to conveniences and facilities and that was the evidence of Mr Glynn.
PN2933
Commissioner, the union's principle ground, not its only ground, but the principle ground for its claim that the discussions be held in crib sheds was essentially based on a view that an air conditioned crib room would provide greater comfort than an outside area which whilst shaded would expose participants to heat, noise, flies and other discomforts. Now, the Act refers to areas for holding discussions as whether they're fit for the purpose. Commissioner, the term fit for purpose is pretty well known and commonly used in consumer and sale of goods law where it has the meaning of appropriate and of the necessary standard for its intended use or it's akin to the term, merchantable quality, where an item is required to be of reasonable quality being in good enough condition to be sold. What the ABCC Commissioner argues is that in considering whether the designated areas are fit for the purpose of holding discussions the Tribunal does not need to consider whether the crib rooms proposed by the applicant would be a more suitable location.
PN2934
The test is whether the designated meeting areas are fit for the purpose and the respondent provided a number of reasons why its crib huts were unsuitable. These essentially went to questions of infringement on employees who would be utilising those crib rooms during the breaks in which discussions would be proposed to be held. It is submitted that it is to expected that it will be pretty well impossible to designate a location on a major site like the Pluto project site where discussions could take place which would satisfy every union's needs. The Tribunal has to take account of the fact that the Pilbara climate is a difficult one but there is where the work is carried out. The Act does not require that an occupier or employer construct a despot discussion area. The Act envisages that designated areas are selected from available facilities.
PN2935
Now, on the Pluto site the respondent has gone to some considerable effort to establish a meeting area which seems to (a) have the
purpose of accommodating an adequate number of people wishing to participate
(b) takes account of the limited time within which the Act prescribes for such discussions and (c) is in proximity to comfort facilities
such as water, ice, toilets, et cetera. Now, the Tribunal is entitled to take the view that factors to be considered in determining
what or office workers in the Australian Taxation Office or Telstra may not be the same for people working on a site like Pluto.
I raise the Taxation Office and Telstra examples as those two organisations featured heavily in decisions of the Australian Industrial
Relations Commission under albeit different statutory frameworks as to what was appropriate in terms of places for holding discussions
between permit holders and members.
PN2936
It is submitted that the Tribunal only needs to consider the use of crib rooms if it finds that the currently designated meeting facilities are not fit in terms of section 492(a) of the Act. There was no evidence brought by the applicant that the respondent's decision of meeting areas was rendering the concept of discussions nugatory. That was a concept that was discussed by Commissioner Smith in an earlier decision involving Telstra but it is not a factor that applies or certainly not identified in the Fair Work Act as a factor that needs to be considered. But it is clear from an examination of many of the Australian Industrial Relations Commission cases that are cited in appendix 1 to the ABCC Commissioner's written outline of submissions that the provisions of part 3-4 of the Fair Work Act differ in a number of significant respects from predecessor provisions of the Workplace Relations Act.
PN2937
Accordingly, the Tribunal needs to deal with caution or, sorry, to treat with caution any urgings to embrace comments made or conclusions drawn by Australian Industrial Relations Commission members without being satisfied that the legislative framework is relevant to this application and the terms of the Fair Work Act. The ABCC Commissioner asks that the Tribunal note that the concept of intention in section 492 did not exist in previous right of entry parts of the Workplace Relations Act. Similarly, Commissioner Smith in the 2003 Telstra case which is referred to in appendix 1 to the ABCC Commissioner's written outline of submissions has said that the question for determination by him was not whether or not the employer's view there is a more suitable venue but whether or not the venue sought to be used by the union is unsuitable. The test now is a very different one.
PN2938
It is, is the venue chosen by the employer fit for the purpose and did the employer choose that venue with the intention to intimidate et cetera. Reference is also made in that appendix to what I'd call the BGC case determined by Senior Deputy President Watson relating to the brickworks out near the airport here and in that 2008 decision Senior Deputy President Watson was concerned that an area wholly exposed to the elements and some 200 metres from the crib room and facilities was proposed by the employer. Now, that case was vastly different from that which we have seen on the Pluto project and the findings of Senior Deputy President Watson in relation to the BGC Brickworks site also highlights the necessity of taking into account the particular circumstances of the site and the need to be cautious about seeking to apply the outcomes in one case to the facts and circumstances of another case which may involve vastly different considerations.
PN2939
A particular point in contention in these proceedings, Commissioner, is that of participation in discussions by employees whose industrial interests the permit holders organisation is not entitled to represent. All of the submissions that the Tribunal has received highlight the point that the right of entry provisions of the Act are statutory provisions and without such statutory provisions no right of entry would exist. And it's the ABCC Commissioner's view that section 484 is an enabling provision in that it establishes one of the bases upon which a permit holder may enter premises. It requires that a permit holder must be able to meet the three requirements of section 484 in order to have a right of entry to hold discussions and provided a permit holder holds discussions with an employee or employees who work on the premises and who belong to a class of employees whose industrial interests the permit holders organisation is entitled to represent and that they wish to participate in the discussions the permit holder may enter.
PN2940
Now, having entered the premises for the purposes of holding discussions with persons designated in section 484 the permit holder is obliged to comply with that limited right. There isn't a collateral right as the union has sought to suggest in these proceedings that having entered for the purposes of holding discussions within the limitations of section 484 that that right can then be expanded to embrace anyone who wishes to attend. The purpose of section 484 is to provide a right of entry for a specific purpose and if the legislature had intended to widen the class of people who could participate in such discussions it must be assumed it would have done so. Given the fact that part 3-4 of the Act is a statutory construct and operates as a code as to how entry on to premises is to operate the Tribunal should be loath to read into the provisions entitlements which are not set out in the Act.
PN2941
Now the applicant's claim is that section 484 should be read in such a way that the class of persons who can participate in discussions should include not only those whose industrial interests of the permit holders organisation is entitled to represent but also anyone who wishes to participate. The ABCC Commissioner submits that to broaden the scope of section 484 it seeks to have conferred on the permit holder rights beyond those which the Act provides. It also is inconsistent with the object of part 3-4 which talks about the rights of permit holders who represent members. Hold discussion with potential members. The object makes no mention of rights to hold discussions with persons whose industrial interests of the permit holders organisation is not entitled to represent. The Act provides no rights to permit holders in respect of persons whose industrial interests of the permit holders organisation is not entitled to represent.
PN2942
Now this application concerns the CFMEU however the Tribunal will be aware there are currently before the Tribunal applications by the AMWU and the CEPU seeking similar entitlements as to or at least arguing a dispute in relation to right of entry on the Pluto site. So what ever submissions and evidence has been given about the compliance by Mr Upton with the requirements of entry on to the site and the ABCC Commissioner is not making any objections to any of the evidence in that regard, the Tribunal needs to bear in mind that the application by the CFMEU would affect any official of the CFMEU who holds an entry permit. And notwithstanding the evidence of Mr Upton's compliance with the right of entry requirements the Tribunal should have regard to the fact that the outcome, if there is an outcome in relation to these proceedings, may well have implications for those applications by other unions.
PN2943
THE COMMISSIONER: In what way is that a relevant consideration? I accept it may well be a reality.
PN2944
MR QUIGLEY: It's relevant, Commissioner, in the context of the evidence regarding compliance with right of entry obligations and if the Commission was - sorry, if the Tribunal was to take the view that there's been a record of compliance with a right of entry on the Pluto site then the Tribunal might draw certain conclusions from that. I think the fact of the matter is though that from our own observations that entrance to the site isn't possible without compliance. But I am suggesting that in considering this application the Tribunal needs to be mindful that there are other live matters before it but as I understand it those other two matters to which I referred haven't proceeded past conciliation stage. They're the submissions of the ABCC Commissioner if it please.
PN2945
THE COMMISSIONER: Mr Quigley in the written submissions and in your oral submissions the questions that the CFMEU proposes or the challenge that they put to the requirement to identify an individual contractor and in effect a proposition that if that's not complied with their expectation of right of entry will be denied.
PN2946
MR QUIGLEY: Yes.
PN2947
THE COMMISSIONER: What's the ABCC's position on that issue?
PN2948
MR QUIGLEY: It's our understanding, Commissioner, that the rationale for the occupier's position needs to be understood and that is that before a right of entry can be bought into effect there needs to be an identification of the class of employees that that organisation is entitled to represent. Without, and in determining that class of employee the occupier by identification of the employer may at the very least weed out cases where no such right exists and there was evidence given by Mr Milne yesterday that certain companies are for example, electrical contractors none of whose employees would be within the ..... of the CFMEU to represent. And in those circumstances Foster Wheeler Worley would be quite entitled to say to anyone from the CFMEU who came along to say that they wanted to address a meeting of the electrical contractor, I am sorry, but you don't have a right under the Act.
PN2949
That is the context as I understand it that the respondent in these proceedings supports that position and the ABCC Commissioner has no objection in relation to that.
PN2950
THE COMMISSIONER: The question to help me with this then is given the notice that is required to be given, the entry notice, section 518(3) requires nothing more than a declaration by the permit holder that the permit holder's organisation is entitled to represent the industrial interests of an employee who performs work on the premises.
PN2951
MR QUIGLEY: Well, I suppose - - -
PN2952
THE COMMISSIONER: Do you see any difficulty with that versus what the employer is requesting and requiring in this instance?
PN2953
MR QUIGLEY: It still comes down to the provisions of section 484. If the permit holder's organisation doesn't get a leg in at 484 it must follow from that that there's - anything else it does in relation to the right of entry procedure there is no right for them to go further than that and it's almost the section 484 should be regarded as the hurdle a permit holder's organisation must meet before it can then talk about giving notice to enter.
PN2954
THE COMMISSIONER: So, for example, in the instance or rather the explanation you gave a moment ago it may be that an organisation gives a notice consistent with the requirements of section 518(3) where it declares that it does have or rather is entitled to represent the industrial interests of employees on the premises.
PN2955
MR QUIGLEY: Yes.
PN2956
THE COMMISSIONER: The employer says it's not correct, it's not true and so under the broader right of entry enabling provision they would say we don't have a right, we're going to ignore your notice.
PN2957
MR QUIGLEY: Yes, because even if you at 518(3), Commissioner, you will see there that there is reference to section 484.
PN2958
THE COMMISSIONER: Yes.
PN2959
MR QUIGLEY: But there is also a reference to misrepresentation under 503 and I think there is a hint in the note in that provision
in that section of the Act that
- - -
PN2960
THE COMMISSIONER: That's reckless.
PN2961
MR QUIGLEY: Pardon?
PN2962
THE COMMISSIONER: Don't be reckless.
PN2963
MR QUIGLEY: Exactly. That caution must be exercised by permit holder's organisations about who they are going to be wanting to hold discussions with.
PN2964
THE COMMISSIONER: That is right but it could also then honestly made a declaration which is just in error.
PN2965
MR QUIGLEY: Yes. Well, certainly - - -
PN2966
THE COMMISSIONER: For other reasons.
PN2967
MR QUIGLEY: Account for that, yes. A similar situation, I think, was addressed by Senior Deputy President Richards who suggested that in those circumstances in the event of disputes that a occupier could quickly make an application to Fair Work Australia so that a dispute in relation to that could be dealt with without fear of the employer or occupier being regarded as preventing a proper exercise of the permit holder's rights. And I think these particular proceedings arising as they do under section 505 do provide an opportunity for the Tribunal to make suggestions or recommendations or even determinations to assist the parties in a way that is in keeping with the objects of this particular part of the Act where a balance between the rights of the occupier and the permit holder's organisation can be met. And that was why in our written submissions we cited the Full Bench decision but referred to the need to take neither a narrow nor an expansive view of the provisions of the Act but rather a common sense approach and that's what we would be urging the Tribunal in these proceedings.
PN2968
THE COMMISSIONER: Well, you know what they say about common sense, Mr Quigley.
PN2969
MR QUIGLEY: It is an uncommon commodity I believe, Commissioner.
PN2970
THE COMMISSIONER: Indeed. Thank you for your submissions.
PN2971
MR QUIGLEY: But it's not lacking in this Tribunal if I might say so, Commissioner.
PN2972
THE COMMISSIONER: Thank you.
PN2973
MR QUIGLEY: Thank you, Commissioner.
PN2974
THE COMMISSIONER: All right, gentlemen. It's now a time for the balance of the submissions to be made. I'm conscious we've got written submissions and Mr Dixon has made an opening. I'm quite happy to deal with this in terms of who goes first - quite frankly, whatever the parties have agreed - these matters have been well and truly covered, but - Mr Swinbourn, what's your view in terms of process from here?
PN2975
MR SWINBOURN: I don't think there's been an expressed agreement. I think Mr Dixon has expressed a view to you that he'd like to go last. But I fear that if that happens he may raise issues that weren't raised in his original submissions, and I would like to have an opportunity to respond to them.
PN2976
MR DIXON: If It's Mr Swinbourn's preference I am more than contents to put our submissions. May I just deal with one aspect, Commissioner, which I didn't do this morning? I indicated yesterday that it would be the respondent's desire to tender the relevant rules of the CFMEU, and I may do that now? May I tender the extract of the - - -
THE COMMISSIONER: Yes. The rules of the CFMEU we'll mark as an exhibit. Just let me just confirm the numbering. My associate tells me it should be exhibit R12.
PN2978
THE COMMISSIONER: Thank you, Mr Dixon.
PN2979
MR DIXON: Commissioner, I do not propose to read my submissions - the written submissions. I intend to start by dealing with the issue of eligibility and, in part, address the last question you've put to Mr Quigley. But we start by trying to formulate the effect of the evidence given concerning the approach taken by the CFMEU to its entitlements once it is on the site, and we draw a clear distinction between the pre conditions which have to be satisfied prior to an organiser permit holder being permitted to enter a site which would render conduct which would otherwise be unlawful - lawful and the operation of the Act on the lawful exercise of the rights once on the relevant premises.
PN2980
And once a permit holder is permitted to enter the premises having satisfied the pre conditions for notification there are, and remain, legal limits and pre conditions on the exercise of the rights. And if I take the example - the questions that you put earlier about whether the declaration may not be accurate or otherwise or one accepts the declaration that, in my respectful submission, will not limit what may occur once the person is on the site and the Act does not impose any restrictions on certain information being sought to enable the rights which exist, once on the site, to be lawfully exercised. And it would - the Act does not restrict, for example, information which would enable the employer to make a request which is reasonable within section 492.
PN2981
Section 492 says that the permit holder must comply with any reasonable request. It would be entirely - as to the location. It would be an entirely artificial approach to deny the occupier sufficient information to enable that occupier to allocate the premises to the permit holder consistent with section 484 or it would be entirely artificial and is not prevented by the Act to require sufficient information as to where the - sorry - as to the persons with whom discussions may occur in order to satisfy section 491, for example:
PN2982
The permit holder must comply with any reasonable request that applies to the premises.
PN2983
And so we draw a clear distinction between the pre conditions which must be satisfied to allow entry and the obligations which occur once the person is on the site. And so to ask, for example, for the permit holders to notify the contractor, its employees with whom the discussions are to take place before entry, allows, in a practical sense, measure to be taken to satisfy or to feed into section 491 or 492. And whether it is asked for immediately upon the person entering into the premises so that the necessary steps can be taken to ascertain whether the particular location is adequate or not adequate or whether itself befall, in our respectful submission, is not prohibited - is not controlled the Act and it would be, in our respectful submission, contrary to the distinction between the pre conditions for entry and what may occur once entry takes place.
PN2984
And then an overriding factor is the limitations contained in 484. Our submission is that it is not open to a permit holder, once on the site, to conduct him or herself in a manner which goes outside of the pre - or the circumscribed rights that are set out in sub paragraphs a, b, and c. And to the degree that the occupier or an employer on the site seeks information, seeks to observe conduct, seeks to restrain conduct which exceeds those limitations, particularly, relevantly in this case, sub paragraph b and sub paragraph c, is entirely consistent with the obligation on permit holders to comply with the Act which is set out in the earlier provisions to which I took you earlier.
PN2985
And so if one then, in the present circumstances, assesses what the measures that are in place must address, one has regard for the evidence of the approach of the particular applicant permit holders, and in that regard we've got some conclusions or findings which we would invite the Tribunal to make based on the evidence that's given.
PN2986
What I can do while we try and locate the document - may I take you to exhibit R12? May I preface my remarks in relation to eligibility by saying that this is not a case where in all respects a definitive finding is required to be made as to the full extent or scope of the CFMEUs eligibility rule.
PN2987
THE COMMISSIONER: About which I'm very pleased.
PN2988
MR DIXON: We are all are not wanting to run that. But there are very clear limitations and what might be around the edges might be a matter of debate, but there is sufficient evidence in this case to demonstrate, in our respectful submission, (a) that there's no regard for eligibility in the manner un which the permit holders of the CFMEUs conduct themselves. And there is no consideration at all given as to whether persons who are eligible are the subject of the discussions which are permissible once a right of entry occurs.
PN2989
But the relevant rules as we see them in rule 2 under the constitution rule of the CFMEU are those in A(3)(i), it's the Carpenters and Joiners rule, which you would be familiar with, Commissioner. The other one is A(b) which is, effectively, the Painting and Decorating Industry, which is on page 4. And then sub rule E(a) the old FEDFA rule - engine drivers, firemen and crane drivers, mobile crane drivers, forklift drivers, et cetera. Those rules do not extend to forklift drivers. They do not extend to boilermakers. They do not extend to electricians.
PN2990
If persons are - and if you then go also to the rule in sub paragraph B which dealt with in sub paragraph 2, assisting bricklayers maintenance, employed or making contracting job in wood and stone. And - I am just looking for the rule in respect - I had it noted - in connection with the erection of buildings which exclude, in B(i), and you'll see that there is a particular exclusion in B(i) that a building - shall include a building type structure for the purpose of housing persons, goods, or workshop equipment other than mechanical or electrical plant, or a civil or mechanical engineering site.
PN2991
And then in sub paragraph B(ii) you'll see the various classifications that are set out. And rigging, for example, is referred to in that rule is:
PN2992
Rigger performing rigging work that is an integral part of incidental to a tradesman work but it's confined to the relevant building not a civil or mechanical structure.
PN2993
On the interpretation of the building element of the rule, may we refer you to, for example, the decision in the High Court in R v Coldham & Ors ex parte AWU (1982 -1983) vol 153 of CLR 415, and in relation to the engine drivers' rule showing the limitation of the other decision R v Coldham & Ors ex parte AWU, which is in the ALR - [1984] HCA 62; (1984) 56 ALR 149 and you will see at page 150 of that decision that there are certain limitations. I don't need to deal with them now as to what the extent of - or the proper interpretation of the old FEDEA is.
PN2994
Then may I hand up a note which was prepared overnight concerning the evidence - I've just done it as a schedule, Commissioner, in respect of the type of conduct which the protocol and administration of right of entry on this site has to do with. And you'll see in the - it would invite the Tribunal to make the conclusions - or findings, which we have set out: firstly:
PN2995
The CFMEU does not have constitutional coverage over all work classifications.
PN2996
We have then given in the shorthand term, a reference to some of the evidence. Secondly:
PN2997
On Phase5, the union regularly held discussions with persons whom the CFMEU was not entitled to hold discussions with and/or persons who did not wish to participate in the discussions and held discussions beyond scheduled break times.
PN2998
The evidence, even of Mr Upton, would have - he conceded that in respect of, at least, as to who the discussions were being held with. And there's also the evidence of Mr Clarke and Mr Gibson. That, of course, informed the protocols that took place here. At 1.3:
PN2999
The CFMEU enrols and is willing to enrol any person on the Pluto site who seeks to become a member regardless of whether the person is eligible or not.
PN3000
And we then set out the evidence from the union's own witnesses to that effect. And, certainly, each of the union witnesses, apart from Mr Upton, who tried to put some qualifications on this, demonstrate that there is no attempt made - sorry - demonstrate that the employees have the same view. And as to the approach of the CFMEU the article from the Spring Magazine, exhibit R10, is a clear example - a metal trades worker belonged to AMWU being enrolled with some delight - and by the CFMEU.
PN3001
The first point we make is the union, through it's permit holders conduct discussions on the site on the basis that any person, regardless of whether eligibilities are allowed to join in. Measures in place that go to contractors, location, movement on site, that seek to curtail unlawful activity, cannot, in my respectful submission, be regarded as unreasonable.
PN3002
THE COMMISSIONER: The reasonableness test, where does that - in this context - why do you say that's the case?
PN3003
MR DIXON: In the context of the request as to where one would go; the request as to who would accompany the request - who should accompany the request as to who to meet with, fourthly, the request as to the location that is the appropriate meeting, and fifthly, the observation of the permit holder and the observation of who is attending - not by name, but by category of the employer - these meetings. So all of those factors, in my respectful submission, must be considered in the light of that conduct.
PN3004
You will then see in 1.5, we submit that Mr Upton conducts a vast majority - he, who conducts a vast majority of meetings makes no attempt to establish whether the discussions are occurring with persons whose industrial interest the union is entitled to represent. He said he was too busy or had too little time in that regard. He does not tell people who turn up to the meeting as to who is entitled and is not entitled. And then 1.7 we say that the CFMEU regularly holds discussions with persons on the Pluto site who industrial interest it is not entitled to represent.
PN3005
And you've got the evidence of Mr Gibson and Mr Milne, the union rules, and the admissions from the earlier evidence.
PN3006
THE COMMISSIONER: If that - if the evidence demonstrates what a number of these point indicate that Mr Upton is holding discussions with employees whom he is, on behalf of the CFMEU, not able to represent their industrial interest does that - at the point that that's occurring, what effect does that have on the entry? Is it at that point no longer for the purposes of section 484?
PN3007
MR DIXON: There are two issues that arise from this: one is whether the permit holder, as at that point, acting unlawfully and, therefore, is no longer entitled to be on the premises because that person is conducting himself with his union beyond the scope of section 484. Another issue that arises, which is a matter for consideration and, certainly, may have to be dealt with separately, as to whether the permit holder is entitled to retain the relevant permit and whether that, in an application, should lead to the withdrawal of a permit because if there is repeated conduct which shows that the permit holder cannot and does not make any attempt to confine him or herself to the ambit of the Act then they're not entitled to hold a permit.
PN3008
But to come back to your first point, it would be our respectful submission that once the permit holder is conducting him or herself on the basis that exceed the entitlement under section 484, the discussions cannot be lawful; the entitlement to be on the premises cannot be lawful; and in this case, however, the occupier has shown a degree of restraint but what we ask the Tribunal to consider is that it is that type of conduct that the protocol must be able to deal with. And any reasonable request for information which allows the occupier, at least to a degree, as far as it can without throwing the permit holder off the site because of the legality, at least to a degree, seeks to confine activities to lawful activities in respect of all - the five items I mentioned earlier - would not, in my respectful submission, entitle - sorry, would not, in my respectful submission, lead to a conclusion that the requirements that are set out in the protocol are in any way unreasonable.
PN3009
I do not intend to read the balance of schedule A, other than to ask you in 1.9 to correct a typographical error. It should read, "The protocol and measures in place". On this issue may we also just highlight, if I may, Commissioner, the evidence from the highest - sorry, the evidence from a senior officer of the CFMEU reflecting the attitude of the CFMEU in this regard, which is not challenged in any way in these proceedings. And if you go to the statement of Mr Gibson, exhibit R4, at paragraph 88. Mr Gibson gave evidence about a meeting he had with Mr Kevin Reynolds, the state secretary of the CFMEU.
PN3010
And you will see in paragraph 88 that Mr Reynolds asserted what the approach was of the CFMEU and the view that it took in respect of its rights under the Act. Now, that's not challenged. And then if you go to Mr Milne's statement, exhibit R8, at attachment CRM1, which is a schedule of the various meetings. And you go to the meeting on the second last page, numbered 108, on 20 October - - -
PN3011
THE COMMISSIONER: I'm sorry, could you direct that to me again, Mr Dixon?
MR DIXON: It's the statement of Mr Milne, exhibit R8, Commissioner.
PN3012
THE COMMISSIONER: Yes.
PN3013
MR DIXON: And it's an attachment to his statement, CRM1.
PN3014
THE COMMISSIONER: Yes.
PN3015
MR DIXON: And if you go to the second last page number item - entry number 108, on 20 October, a meeting was requested to be held by the CFMEU with United Employees; Mr Upton, Mr Reynolds and a Mr Mitchell attend. And the evidence is that there were over 100 people made up of employees of United, Monadelphous, Mammoet, RCR Positron. So consistent with the attitude of the CFMEU it is simply - makes no effort whatsoever to conduct itself on these premises in a lawful fashion. And so to the degree that locations are chosen, which information is sought in respect of contractor - the contractor. In respect of confining meetings to one contractor as opposed to multiple contractors, if you take into account safety and the like, it would, in my respectful submission, not in any way enliven any unreasonableness upon which any order should be made to alter what is presently in place.
PN3016
THE COMMISSIONER: I can I just - I raised it before but, perhaps, it again highlights what I'm a little unclear on in your argument. I understand the concept of reasonableness and that's alluded to in section 492 in particular, the issue the union complains of in terms of prior to being granted entry is that the pre condition of the employer or the occupier is requiring is to advise which contractor and to only advise one contractor with which the employers of which the union will meet. And the union says, "That's not a requirement of the Act." N
PN3017
MR DIXON: Yes.
PN3018
THE COMMISSIONER: Now, your argument seems to be that because of a range of issues, including the history of the employer's experience, and what the evidence demonstrates here that the union doesn't confine itself in its meetings to only employees who are eligible. That demand that only - where the union notifies hat it wishes to meet with employees of a single contractor, it is a reasonable demand. The question though I'm unclear on is what the union says is: is it lawful then to deny entry if the union refuses to nominate one contractor?
PN3019
MR DIXON: I start again with the pre condition. There is no doubt that the Act specifies as a pre condition for entry what matters have to be identified. And that would, in the normal course, entitle a person with a permit who gives a proper notice onto a site. It does not, however, beyond that point permit the permit holder to free access anywhere across the site. And in the context of conduct of the kind that this occupier faces where it has evidence of previous ignoring rules and it has now, on an ongoing basis, evidence of section 484 not being complied with, a request for information at the same time which enable the occupier to facilitate the rights, once on the premises, consistent with the Act, consistent with safety, and in order to make available the premises is not prescribed or prohibited. Now - - -
PN3020
THE COMMISSIONER: I think that's correct.
PN3021
MR DIXON: Yes. I acknowledge - - -
PN3022
THE COMMISSIONER: But that's not the question, is it?
PN3023
MR DIXON: Well, I think I was going to - the question - one must take - it's, of course, a difficult question to answer as to whether - if - I'll try and put it differently, Commissioner. Let's take the example, knowing the type of conduct that has to be dealt with. The permit holder only gives the pre requisite information in the statute and gets onto the site. That allows the permit holder to enter onto premises as a pre condition. Pre condition satisfied. At that point, they are now on the premises, does the occupier have an entitlement to certain information which would enable the occupier, on a site of this kind, to formulate reasonable requests as to OH and S, formulate a reasonable request as to where the premises are - and to formulate reasonable requests as to move to be met with knowing that the union takes the attitude that it will - that it does not have any intention of confining it to its discussions to what is permitted under section 484.
PN3024
Once on the site, a reasonable request can be made, getting some information, once on the site, would clearly not be unlawful. The question then is, if it is sought immediately at the same time as the permit holder is coming onto the site, does that alter the nature of the question? In other words, it's - well, it's almost splitting hairs because if you're entitled to ask those questions once you're on those premises - of the person once on the premises to enable all of that to occur, knowing that it is an issue, are you not entitled to get that information prior to entering onto the site? And the other point is - I do not, in my submission - - -
PN3025
THE COMMISSIONER: I'll stop you there. The real test of that is if the union refuses and entry is denied because of that refusal to nominate an individual contractor, is then union then well placed to proceed with the prosecution on the basis they've been denied entry?
PN3026
MR DIXON: In my respectful submission, it's not a matter that is squarely raised in these proceedings as to whether anyone has been denied because of that request.
PN3027
THE COMMISSIONER: I accept that.
PN3028
MR DIXON: The second point is that if there is such a denial, if it is being argued that entry has been denied because of the request for information, and there is a refusal to provide the information and entry is, in fact, denied and that has been challenged, that it can be challenged by way of a prosecution and the arguments that I raise would clearly be the subject of the prosecution. But, the critical issue, in my respectful submission in the matter presently before the Tribunal is whether obtaining that information and restricting movement to one facility with contractors, one contractor at a time, whether that's in any way fall foul of 491, or 492, is, in my respectful submission, not made out by the CFMEU.
PN3029
Can I just, perhaps, use this opportunity to say something about 492 and the interrelationship between sub paragraph 1 and sub paragraph 2. I may take issue, if I understood the - Mr Quigley's submissions in this regard on behalf of the Commissioner as to the scope of the inquiry under sub section 1. In my respectful submission, the test of whether a request by the occupier of the premises to conduct interviews or hold discussions in a particular room or area, or take a particular route, is not confined to the matters set out in section 2(a) and (b). He may not have intended or, in fact, have made the submission, but as I understood the submission, it seems that sub paragraph 2 was the only relevant factor.
PN3030
We submit that the matters referred to in sub paragraph 2(a) and (b) are important and must be considered because they may, if satisfied, constitute unreasonableness. But you would not be confined, if your assessment to those matters because of the introductory words of subsection 2. And, however, of course, in this case, we say there's no basis for concluding on that wider consideration that the request as to location is unreasonable and we entirely - and we also submit that in respect of subsections (a) and (b) there is just no basis upon which the Tribunal could make a finding that it was the intention of the occupier to intimidate, discourage, or make it difficult as alleged. Obviously, on the question of whether the room or area is not fit for the purpose we will address you later.
PN3031
Commissioner, may I then just say some - make some very brief observations about particular features that arise in this case? Firstly, there is the question of the site. It is a large and complex site, evidence of Mr Glynn. It presents unique safety and logical challenges. Again - - -
PN3032
THE COMMISSIONER: Do you actually know how large it is? I don't think anybody has ever told me what square kilometreage - if there is such a phrase - it covers.
PN3033
MR DIXON: We didn't lead that evidence - - -
PN3034
THE COMMISSIONER: The reason I say that is I must say that strangely enough, particularly, the one presented yesterday, in some ways doesn't do justice to the size - - -
PN3035
MR DIXON: It doesn't - - -
PN3036
THE COMMISSIONER: - - - and, you know, it raises issues for both parties in terms of concerns the union has about travel time and so forth.
PN3037
MR DIXON: I don't know if Mr Swinbourn would take issue with this, but - and we didn't lead evidence about this, I accept that, but it would be about a three and a half kilometre journey from the gate to the extent - the area just beyond the meeting facility - do you mind if I just take some instructions? Do you mind if I answer that question - - -
PN3038
MR SWINBOURN: No, not at all. I don't have an issue if the Tribunal wishes that information to be provided and to be provided at a later date. I don't think we have got any way of contesting it in any event, but I don't think that that would - - -
PN3039
THE COMMISSIONER: Yes, I think it might be just a helpful protection - piece of information.
PN3040
MR DIXON: The round trip from the gate to site B east and back is approximately six kilometres. And the area located to the whole site, I'm instructed is about 80 hectares.
PN3041
THE COMMISSIONER: Thank you.
PN3042
MR DIXON: It is a particularly large construction site. You would have observed - and the evidence establishes that there is during working time a high volume of traffic and immediately before scheduled meal breaks there is a high volume of traffic as persons move to their particular crib facilities. It is a site with potential hazards and one cannot, in my respectful submission, escape the fact that the reasonableness or otherwise of the request made must be judged in the context of such a large and complex operation.
PN3043
Next, I just want to touch on the work. You will see - the evidence shows that there was a large volume of mechanical work and electrical work. There is limited construction housing persons. The - it is work which is performed by a range of contractors and sub contractors of different sizes. When one comes to the employees, the size of the workforce is very significant in the 4000 range at the moment. It's likely to increase. There are a range of classifications and there are, of course, a range of classifications that apply on an eligibility basis to different unions and that brings me to the question of the unions.
PN3044
There are a range of unions including the CFMEU, AMU, CEPU, AWU, that have the potential to exercise rights. Their eligibility, of course, is defined differently under their rules and, in my respectful submission, there can be no doubt that there is competition for membership on a site of this kind amongst those unions. The letter in the union's journal, exhibit R10, is clearly demonstrative of that. Mr Gibson's evidence about the underlying tensions was not challenged and can be accepted. And so that there is a real potential for disruptive demarcation disputes.
PN3045
And I'd just been reminded, very helpfully, that Mr Glynn's evidence in paragraph 9, which is exhibit R6 says that the FWW's management responsibility is limited to the site which will contain the plant and associated infrastructure which covers about 80 hectares. I'd forgotten about that. I'm sorry.
PN3046
THE COMMISSIONER: So had, obviously, I.
PN3047
MR DIXON: Now, can I then - Mr Quigley was very helpful in that regard. Thank you. Can I then just very briefly highlight for the Tribunal our submission in respect of the various rights that are - have to be balanced. You have the right of the occupier, no undue influence, the employer, of course, has the similar right, no undue interference with the work. You have the rights of persons who are non union members to take into account. You have got the rights of union members to take into account. But in respect of the rights of union members, there is nothing to suggest that they have precedence over the rights of the other employees who are either not eligible or are not members, or that those rights are to take precedence over the rights of employers. And the unions have - the organisations have certain rights, but there is nothing in the Act which gives them precedence over the other rights.
PN3048
In relation to the rationale for the protocol the Tribunal, in my respectful submission, should accept that the management of right of entry was developed and is implemented with the following factors in mind: safety, including ensuring that all safety issues are adhered to by all, including the visitor or the persons with whom the permit holder has a legitimate right to hold discussions. And the smoking incident that has been blown up into a much more than is of significance for the case, it has one important element in it and that shows that having a person observe from a distance, a meeting, is a safety related issue on the one hand because not only does it cater for responsibility for the visitor but it also ensures that those with whom the visitor meets do not use the opportunity to act in an unsafe manner.
PN3049
The rationale for the protocol takes into account the restrictions on the write in the Act: namely, eligible, persons who wish, the times upon which meetings can be held, and no undue interference provision. The rationale, next, is influenced by previous experience on Phase5: meeting times, wandering between crib rooms, absence of eligibility, misconduct of that kind, and also using that experience in the context of new legislative provisions.
PN3050
The rationale for the protocol, fourthly, deals with knowledge of previous actual misconduct of people entering the site or misbehaving
on the site. And in the present context it must deal with conduct such as that of Mr Windas, which was clearly unacceptable by any
standard. It's not challenged. And that evidence is not provided to suggest that the AMWUs conduct must be attributed to the CFMEU.
The cross-examination in that regard from the CFMEU suggested that that might be our case. Of course, that's not the case. We're
saying the protocol must deal with the conduct of that kind and be capable of dealing with that kind.
Otherwise misconduct would be Mr Reynolds attending on site, holding meetings with persons that are not eligible, but I've gone through
that in some detail.
PN3051
Can I then come to deal with the particular facilities? As Mr Quigley, in an understandably understated fashion, submitted to the Tribunal, one must not lose sight of the fact that the employer has here - sorry, the occupier has gone to some considerable trouble to construct a specific structure and provided it to ensure that employees who do wish to meet do so in areas not fully exposed to the elements.
PN3052
Those facilities are only to be used for limited times. They may have to be relocated and have been in the past relocated as construction progresses, they must be capable of cyclone readiness. They have been chosen specifically with a view to locations where there is the greatest concentration of crib rooms and, therefore, employees are contractors who may wish to avail themselves legally of discussions.
PN3053
In my submission, the facilities do provide a level of comfort. The shade cloth is such that it does produce a reduction in heat. The shade cloth does provide, as the evidence suggests, some protection from dust. In the context, of course, that during the lunch - sorry, during the break periods there is a substantial reduction of traffic on that site, and the different locations may be affected differently but they are positioned in a way which put them as close to the amenities as possible. There, of course, are smoking facilities used - of a comparable level, but with less protection in respect of which there does not appear to be any complaint.
PN3054
So if one comes back in respect of the facility to consider section 492 the first question that will be asked - which one would ask is whether the request by the occupier of the premises that the discussions are held in those facilities is unreasonable, we would respectfully submit, that that conclusion would not be open. In respect of the specific provision in subsection 2(a) as to whether the area or the facility is not fit for the purpose of conducting the interviews - I'm sorry - conducting discussions, and there is no issue in this case about specific interviews for the purposes of a safety right of entry, then, in my respectful submission, the Tribunal would not, on the basis of reasonableness, conclude that it's not fit for the purpose.
PN3055
One must bear in mind that this is a construction site of a particularly complex nature and, in my respectful submission, the facilities provided would not be unreasonable under section 492. Now, a very strong part of the union's case is to suggest that, in fact, the only acceptable and reasonable facility are the crib rooms. And, Commissioner, in my respectful submission - and I agree with Mr Quigley's submissions that the question of whether crib rooms are used are not - I'm sorry - the question of whether crib rooms might, in an air conditioned environment, be more comfortable is not the determining factor.
PN3056
In respect of the crib rooms we want to say this: used daily during breaks. It's more than likely on the evidence that there are non eligible and eligible persons of a range of unions present in the crib rooms during each of the breaks. It is more than likely on the evidence that there are union and non union members in the crib rooms. It is more than likely that there are persons who are eligible who may wish and who do not wish to have discussions with the union representative.
PN3057
Mr Upton's evidence in this regard - and it's illustrated by his questioning by his representative in respect of Phase 5 was, effectively, that those who don't wish to participate just have to put up with it or leave. It would not possible, in my respectful submission, for the CFMEU to have meetings in the crib rooms consistent with the rights of others and the specific provisions of section 484. And you must combine that with the CFMEUs deliberate approach of encouraging anyone who wishes to come to a meeting regardless of eligibility which demonstrates that the crib rooms could not work.
PN3058
There is also evidence that all available crib rooms are used daily during breaks by contractor employees. And without impinging on the rights of persons that did not wish to participate those crib rooms are simply not available for meetings. In those circumstances, one must consider whether there are alternative premises or facilities available. There is no evidence - sorry - the evidence is that there are no other facilities available indoor and in the absence of any other available indoor facility it cannot be concluded that the request that meetings occur in facilities specifically provided are unreasonable.
PN3059
Can I then just say a few things briefly about the more than one contractor argument of the CFMEU, particularly because it's combined of course with the thrust of the CFMEUs argument that the contractors - sorry, that the meetings might take place in the crib rooms. One cannot separate or compartmentalise this argument. It is impossible to hold multiple contractor meetings in crib rooms because the crib rooms don't take more than about 55 people.
PN3060
THE COMMISSIONER: Well, from my observations they take considerably less given they've filled with tables and chairs.
PN3061
MR DIXON: We're prepared to put it at that level but they are not areas that could accommodate any significant number of people. They certainly could not accommodate anywhere the type of meeting that Mr Reynolds and co unlawfully conducted on the site in October and the multiple contractor issues raise other aspects, firstly eligibility, secondly safety, thirdly, distance, falsely demarcation issues and I'm leaving aside the size of the facility outside of crib rooms. So in my respectful submission the evidence given about the need to control the extent of movement on the site was persuasive. It is not the answer to say it's easier for one person to go to a facility than for a number of people to travel to a facility without considering what is the facility.
PN3062
The questioning of Mr Guinn for example was premised on the crib room argument because if you take that line of questioning and you apply it to the meeting facility that has been provided then of course that's precisely what happens. The permit holder is taken by vehicle to the requisite facility and that facility must accommodate the minimum movement because there is no option available for those meetings to take place in any other location. So that then brings me to the question of whether it can be said that the second element of section 492(2)(b) can be sustained. I've already said that the Commission should reject any confusion to that effect and we fully endorse what was submitted on behalf of the Commissioner that the feelings of individual employees regardless of whether they are valid or not and in some respects they were clearly exaggerated, they could not support an objective determination as to the intent or purpose of the occupier.
PN3063
These are serious allegations. To make allegations that an occupier is acting with an intent of that kind would require in our respectful submission a degree of credible evidence to support such findings and they simply cannot be supported in this case and when one compares the allegations made with the actual evidence as to why the particular premises are where they are, we submit that it's been shown that they are chosen in close proximity to the greatest concentration of crib facilities and they are also chosen with all the other factors which I previously mentioned having been taken into account.
PN3064
Might I then say something very briefly about the escort or observer. It applies to all site visitors. It's a safety and security matter. There is no doubt that the observers keep a discreet distance. There is a need for the observer in respect of the potential misconduct, actual misconduct, the question of monitoring the transgression or potential transgression beyond the scope of section 484, there are safety issues. In respect of the escort the CCI representatives or others perform a useful role. They transport the permit holder to the requisite location. There's no complaint made about the route or time. There would be no obligation to do it by vehicle but of course that facility is provided.
PN3065
Next we say the observer is not in hearing distance. It's never suggested to any of the company's occupier or other witnesses that they could hear or did hear what was said in meetings. In fact the cross-examination of Mr Milne demonstrated that where he said that he had no idea what was said at a particular meeting. The escort observer protocol applies to all permit holders. Some are less frequent visitors unfamiliar with the site. The site is a changing site. It has different traffic and other hazards or potential hazards as the project progresses.
PN3066
The question of rain arose fairly late in the piece with some cross-examination on the part of the CFMEU. One must take account of the nature of the site and the work. People work out in the elements. No covered areas are available for rain other than crib breaks if the rain got to the stage where people could not be performing their duties in an acceptable fashion and it would be unreasonable in our respectful submission on the question of fairness which is an overriding factor to compel the occupiers to construct a structure to accommodate the possibility or potential for rain at a particular time in a way which would be cyclone proof. One would weigh the question of fairness by reason - sorry, against the very acceptable reason for the meetings to be rescheduled to another day. There's no suggestion that if that were to occur the meetings could not be rescheduled.
PN3067
In respect of Harbourworks Clough the issue really no longer is of any import. That contract is coming to an end. It will be demobilised in the new year. The evidence suggests that there are a limited number of potential or eligible members of the union and nothing particular is required from the Tribunal in that regard. In respect of the CBI employees a lot of attention was given to those who have their meeting facility some distance away from site A. That contract is coming to an end. There's demobilisation occurring and from a practical point of view, unless there was from a practical point of view there was the distance that those employees need to get to, the site A facility is not being shown to be impracticable or unreasonable in all the circumstances.
PN3068
It's not suggested by the union that those people meet in the open outside their crib facility and in any event it becomes academic in the early part of the new year when site A facility will no longer be occupied by CBI employees. In respect of RCRFM, the meetings that might occur closest to the safety huts and also the entrance facilities, Commissioner, in our respectful submission you must judge that issue in the light of the eligibility of the CFMEU. RCRFM is the warehouse operator, people work in the warehouse, they operate forklifts which is not within the eligibility rule of the CFMEU. They have got mechanical employees and so they would be talking at the very best of relatively small numbers of persons. There would be no reason why a small number if they needed to seek a shaded area could not get some, although limited, relief for a meeting under the turnstile coverage.
PN3069
But the key issue in relation to that contractor is that there's no indoor facility available for them. In respect of other sites in my respectful submission the Commission will not derive a great deal of assistance of what happens at other construction sites except for this, the most comparable site which could be used to enable the occupiers to inform the protocol was phase 5 and phase 5 showed that the system there did not work satisfactorily, but in respect of other sites you've got issues of comparable size, absence of evidence of the occupier's understanding of the rights and obligations or the attitude taken by those occupiers as to the rights and obligations under the new legislation.
PN3070
THE COMMISSIONER: Also more simply the issue I would have thought is what we're dealing with here is a contest over, if I can put it this way, the minimum statutory right of the union whereas what other people have agreed to do is their business. It doesn't necessarily reflect or have any relationship to the statute.
PN3071
MR DIXON: That's the point I was trying to make, Commissioner, with respect.
PN3072
THE COMMISSIONER: I'm sorry, I didn't understand it that way, Mr Dixon.
PN3073
MR DIXON: No, I obviously failed hopelessly in the way I expressed it. I just want to say something very briefly about the evidence of Mr Gibson in respect of the manner in which the process was developed, his statement in exhibit R4 and his cross-examination shows that it was a well reasoned approached, considered the rights and obligations of the parties, it drew on experience and when one comes to Mr Gibson's opinions concerning eligibility and the potential for the unions and in particular the CFMEU to stray beyond section 484 rights his evidence was credible.
PN3074
This is a man who has considerable experience in the area. It is not good enough for the CFMEU to say, you know, you only have a working understanding of rules, it's only your opinion. That might have some merit if there was material placed before the Tribunal to show that that well founded opinion was not credible, that there was something pointed to by the other side to show that it was wrong and if you look at what - and I'll just read the paragraph. In paragraph 27 of his statement he said:
PN3075
Union meetings held in the crib rooms effectively withdrew the choice from workers on their meal breaks to decide whether they wished to address by union officials or not.
PN3076
That's paragraph 27 in respect of phase 5. There's no challenge or material to counter that in any effective way. In respect of the demarcation issues paragraphs 42 and following, in my respectful submission that evidence is well founded to demonstrate the difficulties which the occupier faces in providing right of entry which enables it to comply with its statutory obligation and which seeks to require of those exercising those rights that they comply with their statutory obligations. What we do know in respect of the union's own evidence that no attempt is made to comply with section 484 and the union takes the attitude that once it's on the site it can hold discussions with anyone whether they are eligible or not.
PN3077
In respect of the potential for demarcation issues there is soundly based opinions expressed by Mr Gibson. Now, can I then just draw attention to some specific aspects of our written submissions. The point that I made earlier about the distinction between the preconditions for entry and the restrictions that exist once entry is made we've highlighted in paragraphs 8 and in particular 11 and in our respectful submission the union effectively equates the precondition to have access to the site with what can be done and what can be requested once the union permit holder is on the site.
PN3078
We've deal with the ANZ case, I don't need to take you to that. Paragraph 18 and following we've dealt with the issue of the practical reasons for the exchange of information prior to entering the site. That addresses as well the issue that you asked of me earlier, Commissioner, and you will see in paragraph 20 we submit in the last sentence that the information that is sought relates directly to the conditions imposed by the Act on the right of entry and the exercise of those rights, particularly critical we say in the present case where it is a measure to try and ensure that those rights are not abused and in paragraph 21 we've set out our contention in relation to the effect of the absence of such information being provided.
PN3079
I didn't really wish to take you to any other aspects of the submission other than to perhaps deal with the question of the relief that the union seeks and the draft order. We respectfully submit that the Commission should dismiss the application but may I say if the Commission is against us just a few matters about the draft order. There's a certain irony in the orders sought because order number 1 requires FWW to permit holders from the CFMEU to enter onto the Pluto LNG Park Project in accordance with Part 3-4 of the Fair Work Act 2009 and we know that the CFMEU representatives once on site do not exercise their rights in accordance with Part 3-4 of the Fair Work Act and in any event the statutory provisions prevail. There's no need to make such an order.
PN3080
The second order that FWW immediately withdraw its demand that permit holders from the CFMEU state on right of entry notices which particular contractor work group the permit holder wishes to hold discussions with and in my respectful submission as a matter of fairness the Tribunal would not make such an order given the complexities which arise, which I've outlined earlier, in relation to the way in which the rights once on the site are managed and one cannot separate a request for an order of this kind from the issues that arise as a result of the conduct of the unions.
PN3081
In paragraph 3 of the draft order there's effectively an invitation that the Tribunal permit the union to engage in conduct which exceeds its eligibility rule, an order which permits holders to engage in discussions with more than one contractor's employees at the time, the same time where those employees wish to participate in those discussions is in itself contrary to section 484. It does not confine eligibility in any way and of course you know why, because the CFMEU take the view that anyone who wishes to come along should be able to come along and the Tribunal in my respectful submission would not condone conduct beyond section 484. Paragraph 4 of the order is that:
PN3082
FWW immediately withdraw its requirements that discussions between permit holders and employees that wish to participate in discussions be limited to three allocated areas.
PN3083
There is no evidence before the Tribunal that has sought to identify other areas. What an order of this kind does is to effectively permit the CFMEU to hold discussions where they like. Now, that goes contrary to the rights of the employer under section 492 to make a reasonable request as to location and it goes contrary to the rights of the employer under section 491 to make a reasonable request as to OH&S matters which would go to route, area, how people get there, et cetera. Order 5 is that:
PN3084
FWW will allow permit holders from the CFMEU to engage in discussions with employees who wish to participate in those discussions in an area that is proximate to and easily accessible from the area that employees wishing to participate in discussions have their meals and breaks.
PN3085
The first flaw in that order of course is that it again simply extends to any employee and secondly, the facilities and locations that have been chosen are balancing out all the different considerations given size, workforces, distances, they are in proximate areas and accessible from the crib break areas. Order number 6 requires a construction of a different structure. It effectively would impose on the contractor - sorry, the occupier and obligation to construct permanent structures which by definition would have to be movable on a site of this kind.
PN3086
It would neither be practical nor fair when the present facilities are a significant improvement of what might otherwise be available to unions, namely, the full exposure to the elements. Then paragraph 7 is the true claim given the evidence that crib rooms should be used and for all the reasons that we have argued for the Tribunal in my respectful submission would not make such an order because it invites contravention of section 484. Item 8 would require the Commission - the Tribunal, I beg your pardon, to make a finding that the protocol for observing is unreasonable by reason of safety, that is unreasonable by reason of seeking to comply with section 484 and the Tribunal in my respectful submission simply would not make any such order.
PN3087
The only decision which I thought I would draw your attention to other decisions is one that Mr Quigley also referred to and that's the CFMEU and the Mining and Energy Union v BGC Australia Pty Ltd (2008) 172 IR 240. You're no doubt familiar with this saga. The point I think that one can make from this decision is of course that it was a construction site. The ultimate order was that persons are entitled to hold their meetings in closer proximity to the crib breaks but in the open. It's factually very different although I draw to your attention, Commissioner, partly because of the approach taken by Senior Deputy President Watson in balancing the interests of the various parties.
PN3088
You will see in paragraph 28 the submission from the CFMEU and in 29:
PN3089
BGC submitted that the location selected was reasonable and that there was no viable alternative location.
PN3090
Bear in mind that this was an open, just an area on the site, but in - my apologies, Commissioner, I'm terribly sorry. It's the last time. In paragraph 33 Senior Deputy President Watson identified a range of considerations. There's nothing I can say in mitigation, I'm sorry.
PN3091
THE COMMISSIONER: I remember one of my colleagues suggested he'd bring a hammer to another conference if it happened again. I think that was a repeat offender and in more serious circumstances.
PN3092
MR DIXON: I can confess that it's the first time ever that I have offended so I might be given a good behaviour bond. You will see then that in paragraph 43, and I just do this to highlight that it's a relevant approach, his Honour took into account the interests of employees and it was an exercise of balance. 44, he looked at the other interests and there was a question of preferences. You will see he looked at the interests of CFMEU permit holders in 48 and on the top of page 253 said:
PN3093
In my view the sea container location was unreasonable to the CFMEU permit holders in terms of the distance from amenities and access of workers ...(reads)... of course open air ones.
PN3094
And makes reference to the Australian Tax Office case which is referred to and concludes at the end that there was the area closest to the amenities which were acceptable. His Honour did make a ruling in respect of an alternative in the event of inclement weather but that case is distinguishable in my respectful submission from the present because there was an alternative available, the veranda of the crib room, where the meetings could take place. Certainly there was no suggestion that the crib rooms themselves would be adequate or that they would have to be constructed a particular structure to satisfy the demands that are contained, for example, in order number 6 of the union's draft order.
PN3095
Unless there is anything else that I can assist the Tribunal with, those are our submissions, thank you.
PN3096
THE COMMISSIONER: Thank you, Mr Dixon. Mr Swinbourn, before we begin I suggest we have a brief adjournment for 10 minutes. Thank you.
<SHORT ADJOURNMENT [11.18AM]
<RESUMED [11.33AM]
PN3097
THE COMMISSIONER: Yes, Mr Swinbourn.
PN3098
MR SWINBOURN: Thank you, Commissioner. I will try and be brief in my submissions and you have received a copy of our outline of submissions and we adopt those for our closing. What I would like to do perhaps first is to identify the approach that we believe the Tribunal should adopt in determining this matter. The Fair Work Act requires the Tribunal to take into account fairness between the parties in these kind of applications under section 505 and consequently we would say in arbitrating this dispute, and I don't think there's any question that we do have a dispute here, there should be primacy given to fairness.
PN3099
We also say that that accords with the manner in which the Tribunal ought to generally conduct itself when matters are brought before it, that is, taking into account equity, good conscience and the substantial merits of the matter. In determining whether the respondent has made an unreasonable request with respect to the areas that it has chosen for the permit holders to engage in discussion with, we say the approach that was outlined by Senior Deputy President Watson in the CFME v BGC that was put forward that was put forward by my learned friend should be adopted by this Tribunal as well and perhaps if I can just be indulged to read the relevant part of the decision that we say should have regard to. Sorry, I have misplaced my copy.
PN3100
I believe it's paragraphs 14 and 15 of the decision and his Honour Senior Deputy President Watson states:
PN3101
There is agreement between the parties and the statutory intervener that satisfaction as to whether a request is reasonable in the exercise of ...(reads)... of the Ac and its objects.
PN3102
And here he quotes the decision of the Full Bench in Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office (2007) 158 IR. He quotes:
PN3103
The Commission is required to take all of the circumstances into account and consider the legitimate interests of the employer or the occupier ...(reads)... competing interests should be objectively applied.
PN3104
So we say that that's the approach and perhaps can go to say how we would say affects this matter because obviously with respect to the matter before Senior Deputy President Watson it was under the Workplace Relations Act and we now operate under the Fair Work Act. But what we say the Tribunal should take into account is all the circumstances of the matter and should consider the legitimate interests of the occupier, the employees and that would include employees who are members of the CFMEU and eligible to be members of the CFMEU but also given that this matter may have effect broader than this, the employees generally and permit holders and their organisations who seek to exercise a right of entry onto the premises and where there are legitimate competing interests, and I say legitimate because some of these interests that may have been put forward do not perhaps fall ingot that category, the Tribunal must objectively balance those competing interests.
PN3105
Finally, obviously the public interest in the observance of industrial laws is also a relevant consideration and I would suggest is always a relevant consideration in these matters. Now, I will make some brief comments about what we say about the operation of the Act itself and the relevant provisions and in construing this part of the Act we reject the submissions of the respondent that it should effectively be read narrowly and its reliance on those authorities. Rather, we agree with the approach identified by Mr Quigley in his submissions that this part like the previous Part 15 of the Workplace Relations Act should neither be interpreted narrowly nor expansively. The part should be construed in a common sense way to give it effect to its purpose and the purpose of section 505 in particular is to provide a means of the settlement of disputes. Subsection (5) specifically provides that new rights can be conferred on a permit holder if a dispute is about the reasonableness of an occupier's request to hold a meeting in a certain area.
PN3106
I think that does come back to the issue of the occupier's rights to select the area and that that may be mitigated by additional rights that are created by the permit holder and we say that the Act contemplates that. I think the authority that cited Mr Quigley's submissions was the authority that I think just quoted, the Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office. The reference given here is (2007) AIRC FB PR975822. There are other sections of the Act that we say are relevant to your consideration of this matter and naturally the objects of Part 3-4 are of considerable importance and we must note that they have changed somewhat since the introduction of the Fair Work Act from the Workplace Relations Act and most particularly the insertion at section 48(b) of the right of employees and TCF outworkers to receive at work information and representation from officials of organisations.
PN3107
That was not previously part of the objects of the Act and we would say that given that parliament has seen fit to insert this additional requirement that the primacy with respect to that has increased from the matters that may have previously been before the Commission and that they should be viewed with that in mind. The objects of the Fair Work Act generally are also relevant and my learned friend in his opening did alert you to those objects and particularly the object of section 3(e) which provides that;
PN3108
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes ...(reads)... and the right to be represented.
PN3109
And then it talks about unfair dismissal and discrimination which aren't quite relevant to these proceedings. Now, this application only relates to an exercise of a right of entry for the purpose of discussions and that is section 484. We're not speaking about any other exercises in relation to the purposes of investigating potential breaches of state laws or in relation to the investigation of breaches of federal laws. I won't read out that all in full, the Tribunal is eminently aware of its provisions. Section 492 of course is also very relevant to the conduct of interviews in particular rooms and perhaps if I can go through the section for the benefit of the Tribunal and what we say is relevant about it. What it provides is at subsection (1):
PN3110
The permit holder must comply with any reasonable request by the occupier of the premises to conduct interviews or hold discussions ...(reads)... to reach a particular room or area of the premises.
PN3111
And there's no dispute about the route that's been taken, we've made that clear. So the issue then is whether or not the request by the employer is reasonable and what falls within the category of things that are or are not reasonable and that goes on to subsection (2) which then says:
PN3112
Without limiting when a request under subsection (1) might otherwise be unreasonable a request under paragraph (1)(a) is unreasonable if -
PN3113
And then it provides for those specific words and there are words at the beginning of subsection (2) that make it clear that in determining reasonableness the Tribunal is not limited to those matters that are subsequently listed at sections 492(2)(a) and (b), that it is a broad approach and that the parliament has seen fit to provide of some specific examples of where it will be unreasonable and so therefore a failure by the applicant to specifically prove those elements does not necessarily result in a failure to prove unreasonableness because other circumstances may generate or lead to the Tribunal drawing the conclusion that the request is unreasonable. If I go to subsection (3):
PN3114
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.
PN3115
Now, clearly we wouldn't have chosen the area that's been provided and it's fairly clear from the evidence that our preference is for the crib rooms. What it says there is that - what it doesn't say there is that the preference of the permit holder is not a relevant consideration to the determination of reasonableness. What it says is that it's unreasonable only because the room or area is not the area that would be preferred or would not be the permit holder's choice. So again in the balancing of these matters the considerations and the desires of the permit holder in the area that they wish to hold the discussions is a relevant consideration in determining reasonableness, and I don't think subsection (4) is of any help at all.
PN3116
What is also relevant to this application is section 487 which deals with the issue of the giving of entry notice and not the part that relates to exemption certificates and that goes to the heart of the dispute that exists between what is required to be given to the occupier in terms of the entry notice and following from that is section 518 which specifically states the things that are required on an entry notice and it's been suggested in the respondent's submissions that the addition of the name of the contractor is something that it can require and it's been suggested it's been demanded of them and this is in the correspondence that exists between the parties that is the subject of the evidence that that additional information be required.
PN3117
We say there is nothing in section 518 that supports its argument that it can require that additional information and that in the circumstances where the Act is very clear about what is required for the entry notice and where the union has complied with that requirement there is not open for the respondent or an occupier to demand additional information with respect to that and that was the subject of matters before yourself in a previous matter, that was the BGC matter where BGC had demanded that an undertaking be given. I believe it was also the subject of a matter with the ANZ case and we've quoted in our submissions from that case and there's an argument to suggest that that's not a relevant matter - that that case is not applicable here and I would say that it is applicable, even at the least because it's illustrative of the way the Act should be construed but because of the comments that have been made by the Full Bench in that matter are equally applicable in the current circumstances. The difference between the Workplace Relations Act and the Fair Work Act are not so great that they become irrelevant or that case no longer can be relied upon.
PN3118
Clearly section 505 is a section that is relevant to these proceedings. That deals with the disputes arise under the part and I've made some comments about the issue of fairness and the primacy of that, but the Tribunal's powers with respect to the resolving of these disputes is limited, with respect, to all matters except those matters that relate to the unreasonable requests. In relation to unreasonable request it's very clear that the Tribunal has the capacity to generate new rights for permit holders and so if any of the orders generate new rights then that is within the jurisdiction of the Tribunal to do so.
PN3119
We would also say that whilst we stand by our orders it's open for the Tribunal to exercise its discretion to make change to the nature of those orders and it's most commonly my experience that that does happen. If there's a lack of specificity in the orders, to increase more specificity and to go beyond what it is that has been forward because the Tribunal is now in the position where it's heard the evidence, it's inspected the site and is in the position to form its own conclusions about all these matters and it's heard the submissions from both parties. Now, I think importantly what we also say that the Tribunal should have regard to is the Act as a whole and also Part 3-1, the general protections part, because the exercise of any right of entry by a permit holder must still be consistent with the protections that Part 3-1 provides and that also relates to the rights of occupiers and employees with respect to the way that they conduct themselves and their expectations in relation to these matters and Part 3 provides specifically - we say specifically regard should be hard to the objects and protections of Part 3-1 and the objects are at section 336 of the Act.
PN3120
We would say most particularly the objects of this part are as follows, are to protected workplace rights, or (a):
PN3121
To protect workplace rights -
(b), to protect freedom of association by ensuring that persons are:
(i), free to become or not become members of industrial associations,
(ii), free to be represented or not ...(reads)... protection from workplace discrimination.
PN3122
And then (d) deals with the issues of discrimination of and victimisation. What we say is that in consideration all the circumstances in these matters - - -
PN3123
THE COMMISSIONER: Mr Swinbourn, why are you referring to me the objects of that part which is Part 3-1 and we're dealing with a matter which is under Part 3.4 - well, not 3.4 but Part 3-4?
PN3124
MR SWINBOURN: Well, there has been much debate about the issue of employees attending the meetings being held on site and what that actually constitutes, what's the nature of that and the implication is that that somehow is unlawful, that there's an unlawful element to that and what we would say is that in making your assessment about that conduct about what is happening there you should have regard to the wider aspects of the Act, including the rights that arise under these general protections provisions and that includes those rights for those employees that are identified by the objects of the Act to do those things and as I say, to participate or not to participate, to join and not to join. Those things all exist so whilst we don't claim and it is not our assertion that when a permit holder of the CFMEU exercises a right of entry under section 484 for the purposes of discussions that they have a right to speak to or engage in discussions with people who are not eligible to be members of the union, what we do say is that those employees who make a free choice to come to meetings, to be there, whether they're eligible or not eligible have a right that stands alone to the union's right.
PN3125
Whilst the union is maintaining its position, the purposes that exists under section 484, that is, the purpose to enter onto the site to engage in discussions with people who wish to engage in those discussions and who are eligible to be members, there is no unlawful conduct if incidentally other people choose of their own freewill to participate in those meetings. The union has no power or the permit holder has no power to exclude those people. They don't have any rights to engage in anything of that kind. Those people come of their own freewill and there's been a suggestion that the union should do more to explain to those persons what entitlement they have to be there.
PN3126
Now, I suggest if the union starts restricting that entitlement to those people, if those people are acting not for an improper purpose, for example, if they were a supervisor who was coming down to monitor those things, but if they were an employee who worked on the site who wanted to hear what a union official had to say, for that union official to then say to that person off you go, we may find that conduct would attract the attention of some of the statutory authorities, for example, the ABCC, because of the potential argument that we are seeking to discriminate against people who wish to engage in union activities by excluding them. So for example, the capacity for us to exclude people who are not members from those meetings is limited.
PN3127
There's no issue here that says that if a union official is addressing a group of workers generally that if one of those people is a non member of the union that the union has any right to exclude those people from those discussions. So from that perspective what I'm saying is that we don't assert the right to go onto the site for that purpose. What we say is that we have to look at it overall and see what conduct the employees are doing when they're exercising their free choice.
PN3128
THE COMMISSIONER: Well, I think there's some dangers in that view, isn't there, for the organisation because at some point if the facts are that a representative of the organisation who has purported to exercise a right of entry under section 484 is having discussions at one extreme with a group of employees none of whom are members, none of whom are eligible to be members, at that point that person is not exercising a right of entry or is no longer on the premises for purposes consistent with section 484 so arguably is trespassing?
PN3129
MR SWINBOURN: I would agree with that, that if that permit holder ceases to have the purpose of engaging in discussions with people who are eligible to be members and wish to participate in those discussion their entitlement then would be withdrawn, but whilst that purpose remains and there are people who are eligible to be members and wish to participate remains then things that happen coincidentally or incidentally to that or collateral to that, which is what we're talking about here, does not in itself mean that the permit holder is then engaging in an unlawful conduct by still remaining on site and exercising that discretion. And whilst there was some imputation from some of the witnesses for the respondent that some people might have been forced to participate in those meetings, there was no suggestion that the CFMEUs officials were engaging in that and from that perspective - and there's no objective evidence to that effect either.
PN3130
There's no reason to believe that the people that attend meetings are doing it by anything other than their own freewill at this particular point in time. Now, if such conduct arises in the future it gives rise to the right on the part of an aggrieved person such as an employer or the employee themselves to make application to this institution or to a court to seek orders against the permit holder. So there is still a remedy that remains and nothing that happens here today will remove that right or remedy in terms of that.
PN3131
THE COMMISSIONER: I think what the respondent is saying is from Mr Upton or any other official of the organisation to adopt a - well these are my words, a don't ask, don't tell policy in terms of whom attend his meetings. It is not consistent with the organisation behaving in a way which the Act requires in terms of only being on the premises consistent with section 484.
PN3132
MR SWINBOURN: As I say, the submission we make is that whilst they have that purpose they remain lawfully on the site and if that purpose evaporates because of the circumstances - - -
PN3133
THE COMMISSIONER: But there's no suggestion here that what's occurring is unlawful and that whatever employer concerns there are about this the employer hasn't sought to challenge any of these meetings in that sense.
PN3134
MR SWINBOURN: No, not at this stage.
PN3135
THE COMMISSIONER: But I'm concerned in that what you seem to be saying is that there's no responsibility or no obligation on the organisation's officials once on the premises to take any positive action to ensure that their meetings are ones that are in compliance with section 484.
PN3136
MR SWINBOURN: Sure. What I say is the Act doesn't provide anything specifically for that but it does provide for them not to engage in an improper way but what I would say is that it's all very well for us to speak about this in these terms in these surroundings but the evidence that has been led is that Mr Upton attends a meeting, he feels he doesn't often have enough time to engage in those kind of things, there can be large numbers of people attending those things. So it wouldn't be - we have to remember the practicalities of actually exercising a right of entry in a restrictive time period in a restricted place and the effect of that, the coalface so to speak, that the realities of the coalface are such that what you're suggesting that some - well, not that you're suggesting but what you've raised, is that it could be a difficult thing and in terms of it if the Tribunal has specific concerns for that then I'm sure that account can be had in relation to the way that these orders are constructed.
PN3137
Perhaps if I can make the point from the outset or from this point that we must establish unreasonableness or that the decision was unreasonable or that the request was unreasonable, sorry. We don't say that we're entitled to orders if we don't meet that burden so we agree that in the absence of there being a finding of unreasonableness then no orders in relation to that would arise. It's a threshold issue that we need to satisfy. But in the circumstances where the Tribunal does establish some unreasonableness the question of course then becomes what orders are appropriate in those circumstances. Just in summary in relation to Part 3, we say that Part 3 itself recognises rights and provides protections for those rights and we think regard should be had for those rights and protections.
PN3138
What we also say in relation to the Act and this issue about addressing people are not eligible to be members, in considering that
the Act requires discussions to occur at meal times and it contemplates those discussions occurring in particularly rooms fit for
the purpose and we suggest crib rooms and the like and arguably accepts that there may be others - that that part recognises that
there might be others that are present that may or may not wish to participate in the discussions and who may or may not be eligible
to be members of the union and the Act does not prescribe the circumstances of non eligibility, doesn't prescribe the circumstances
of dealing with non eligible people and it's not an offence to hold discussions with others whilst some others are present. There
are other parts
of - - -
PN3139
THE COMMISSIONER: Mr Swinbourn, I'm somewhat I suppose surprised by that submission. I would have thought in other circumstances that there would be a reasonable argument that where an employer requires an organisation to hold these discussions in a room or area which is also either open to or occupied by other people who aren't members of that organisation, aren't eligible to be members, aren't wishing to participate in the discussions, so in short, those discussions are going to be overheard by others, witnessed and overheard, that that circumstance, the employer directing your organisation to hold those discussions in that area or room would be a circumstance where that would be unreasonable because that room is not fit for the purposes of those discussions. I would have thought you'd be saying to me those discussions should not be in a place which is lacking in privacy I suppose.
PN3140
MR SWINBOURN: Well, I suppose a recognition of our position is that there are impracticalities that exist on the site in terms of those things and we're not suggesting that people be uprooted from their seats if they don't wish to be generally, but obviously if there was a specific concern about the attendance of some people at the meeting that could be raised at the time and said, look, we don't think this room is going to be appropriate or this area because of the possibility that some people are going to attend that we really don't think should be in attendance for a variety of reasons and that's a discussion that can be hand on the ground between the parties in terms of coming to that arrangement. But this issue about whether or not there's people in and out of the room and who they are and what they are, I mean I'm not sure that a lot of what's spoken about by the unions to the workers is something that they wish to not have.
PN3141
As I say, people will attend the meetings, they won't attend the meetings if they wish to. That's really something that happens everywhere that this occurs and I understand what you're saying but I must admit I haven't given much thought to the union saying that it's unreasonable for us to have to have discussions where people might be present that we don't want to hear. But if that situation was a concern then maybe that would be raised at the time. So what I’m suggesting is anything that we say at the moment, I'm not suggesting that the crib huts be cleared out of people, what we say is that if the crib huts are selected and people are there it becomes their choice to say or to go. If the employer wishes to have that arrangement where it has a crib hut free of anybody and only those that go there, well, that's something that it can implement of course.
PN3142
I mean I suppose we'd have to look at this from a pragmatic point of view rather than a prescriptive point of view. We're not trying to suggest that there's only ever one alternative. In fact our orders are predicated on the basis of not removing the discretion of the occupier to make other arrangements other than the ones that they have. If it was a crib room first and then, you know, something else second, we suggested something that they have regard to those things that we have identified in our order and then if they're not able to satisfy that then the area closest to or where they take their breaks.
PN3143
Perhaps if we can get to this issue of coverage of unions and I don't believe that this is an application principally centred on the CFMEUs eligibility and I believe that my learned friend identified that we're not seeking in any way to be an exhaustive prescription of the union's rules in relation to these matters and we will concede that we don't cover every single person on the site, in fact there's a lot of people that we don't have coverage of. So from that point of view the issue in this matter is not the issue as to whether or not we can or cannot enter the premises but rather whether their request about where the meetings are being held are reasonable or not and I've given some comment and I take it from Mr Dixon's oral submissions that they are moving away from the position that was put forward by his Honour Senior Deputy President Richards in the AWU v Dreamworld decision whereby he made a comment about section 492 and what he said and I quote:
PN3144
I emphasise that the Fair Work Act states that the unreasonable action, that being the request to meet and conduct interviews or hold ...(reads)... of the Fair Work Act with the intention of -
PN3145
And then he goes intimidating persons and those things identified there. He goes on:
PN3146
The Act requires therefore that I investigation the decision ...(reads)... of any intention on the part of the respondent there can be no act of unreasonableness.
PN3147
And I also understand that to be the submission of the ABCC and with respect to his Honour Senior Deputy President Richards we believe that the view he expressed was wrong and section 492 actually only provides some specific examples of when a request is unreasonable and this expressly so given the use of the words:
PN3148
Without limiting when the request might be unreasonable a request under paragraph 1(a) is unreasonable if -
PN3149
So whilst it may be necessary to prove intent to satisfy a specific claim under section 492(b) is it not required with respect to section 492(2)(a) and it does not limit the circumstances when the request may be unreasonable. For example, in the current circumstances we have argued that the request is unreasonable because the area chosen has the subjective effect of intimidating employees wishing to participate and it can be reasonably inferred that it has an intimidating effect, that we are - I don't believe we are suggesting at this point in the proceedings that there is an intent on the part of the occupier to intimidate. The argument is that it has the effect of that.
PN3150
Ultimately the determination of reasonableness will come down to the assessment of all the relevant circumstances and a balancing of any competing interest, not just the actual purported intentions of the occupier. In our - - -
PN3151
THE COMMISSIONER: Can I just be a question, if your submission on that is right, if we accepted for the moment that I was persuaded by the evidence that employees generally were intimidated by attending the meetings in the designated meeting facilities.
PN3152
MR SWINBOURN: Yes.
PN3153
THE COMMISSIONER: On this site what's the alternative to that that is ever going to be able to resolve it?
PN3154
MR SWINBOURN: Well, we would suggest the crib rooms because employees are not open to observations in relation to that. Then they would be able to file past the offices of their managers and the managers of FWW and generally - - -
PN3155
THE COMMISSIONER: Isn't that a bit of an artificial statement in fairness,
Mr Swinbourn? The crib rooms are all next to each other which are next door to the offices, next door to the ablution facilities
that managers, supervisor and employees alike use? If the intimidation comes about, as I understood the evidence in support of this
argument, that because we're required to go to this area and everyone knows what this area is for, if we're in there and we go past
the manager's office we feel intimidated by all of that, very broadly that's the argument, everyone is going to know that crib room
X has been nominated at the union meeting venue for 10 o'clock and whoever is in there or goes in there was at the union meeting,
what's going to be the difference?
PN3156
MR SWINBOURN: I suppose I wasn't seeing it with respect to the way that you were referring to it there. I wasn't expecting perhaps that employees would necessarily all file out of their own crib rooms and into one crib room. The possibility exists that the people would remain in their own crib rooms and if over time the organiser was visiting he could visit the employees in the particular relevant crib room. But that would obviously depend on the nature of any order that was issued and also any provision in relation to that, but I understand the point that you're making and I suspect or I would say is it's less obvious for those employees in those circumstances having to clearly move from there to there and people would be able to come and go more readily than they can at a union meeting.
PN3157
But as I say, you've inspected the site, you've been there, you've seen as much as I have and so obviously you're entitled on the basis of your observations to draw those conclusions. But we presented the case on the basis that that was having the effect on those employees and that's should be a matter that is considered.
PN3158
THE COMMISSIONER: The problem it poses if I was to accept the argument, it's not at all obvious to me what there is is a solution.
PN3159
MR SWINBOURN: All right.
PN3160
THE COMMISSIONER: Wherever people who are going to attend as a meeting their attendance is going to be visible I would have thought. I don't quite know how you avoid that.
PN3161
MR SWINBOURN: Yes. As I say, I suspect it would be less apparent than the current arrangements. I would like to address one issue that was raised in respect of Mr Upton and his character obviously and his understanding of the laws has been brought into question quite significantly by Mr Gibson in particular and particularly his comment about he believed that he went to the site to visit members and people who were eligible to be members and through the evidence we produce we demonstrated that if that is in fact wrong that the ABCC itself was labouring under a misapprehension in respect to that in terms of exhibit A7 and I believe A8. But I also, whilst having had an opportunity to read the project procedure for dealing with requests for site entry officials, I note that to some extent the occupier is also labouring under that misapprehension.
PN3162
If I can perhaps take you to I think it's exhibit R5 and the attachment 5 of exhibit R5, in a table in there, meeting with members under section 484 it has a table and it says- it's page 27.
PN3163
THE COMMISSIONER: Sorry, Mr Swinbourn, I'm just finding the exhibit. I'm sorry, which one is R5, Mr Swinbourn?
PN3164
MR SWINBOURN: It's the document that was provided late yesterday afternoon. It's titled Forster Wheeler WorleyParsons Project Procedure Request for Site Entry Union Officials and it has - - -
PN3165
THE COMMISSIONER: Just bear with me, I will try and find it if I can.
PN3166
MR DIXON: We have a spare.
PN3167
THE COMMISSIONER: Thank you, Mr Dixon, I'm sure it's here somewhere but the control of my paperwork is perhaps not as good as it could be either.
PN3168
MR DIXON: At least I'm not alone on paper management.
PN3169
THE COMMISSIONER: I've found it after all of that. Thank you. Sorry about that, Mr Swinbourn, I apologise. And whereabouts should I be looking?
PN3170
MR SWINBOURN: Page 27.
PN3171
THE COMMISSIONER: Yes.
PN3172
MR SWINBOURN: And the statement by Mr Gibson, if I can refer to it specifically, at paragraph 33 he says:
PN3173
I was also concerned from past experience that union officials may not properly understand the extent of their rights on the site under ...(reads)... There's nothing to alleviate my concerns in this regard.
PN3174
And then we go to the document that Mr Gibson himself says he had some involvement in drafting and at that page in the table it says:
PN3175
Why? To hold discussions with employees who are members or eligible to be members and wish to participate.
PN3176
So the point really is that Mr Gibson and the respondents wish to judge Mr Upton rather harshly about his purported knowledge of the Act and I think what would be fair to say is that that is a harsh judgment and is evidenced by the fact that the statutory intervener, the ABCC, has suggested a similar thing and in their own documents the same thing is exists in that the introduction of new laws ultimately does result in some teething issues and we would suggest that you should not judge Mr Upton harshly for his statement and that it doesn't demonstrate a lack of general understanding of his entitlements.
PN3177
We also refer you to R10 which was produced yesterday afternoon as well and we make a number of comments on it. I think it has been suggested by my learned friend that somehow this demonstrates the CFMEU has joined up a person that are not eligible to be members, but in terms of the information that has been provided, which is an extract from the union's magazine, there's nothing in here to identify who the individual was that made the statements, nor his classification at all and we don't even know if it's a he or she I think or that they actually have worked on the Pluto project or ever did work on the Pluto project. It's just generally addressed to them. I suppose one might conclude that this person does.
PN3178
So in respect to it being evidence of misconduct in terms of recruitment by
Mr Upton I don't suggest that - I don't think that's open on the basis of what this person has written and whilst Mr Upton says:
PN3179
Workers should have a choice of which union they want to join. If they want to joint the CFMEU because we turn up and offer a better service then that's fair enough.
PN3180
I believe that it's his opinion and he's reasonably entitled to have his opinions about these matters. So as I say, to the extent that it influences your decision on whether Mr Upton's engaging in recruitment type misconduct I don't think that can be supported by a proper analysis of this.
PN3181
THE COMMISSIONER: What about the example Mr Upton gave about the security guard?
PN3182
MR SWINBOURN: About the discussion that had occurred there, well, I believe what he identified was that he was actively trying to discourage the person he was speaking to, which I understood to be the husband of the security guard, not to join the CFMEU but ultimately recognising that if someone is insistent enough they may very well go ahead and do that and he did refer to benefits in relation to CFMEU membership and in re-examination he clarified what he was referring to there and as you may or may not be aware, the CFMEU offers more than just industrial advocacy and representation, it also offers a number of services and people would be permitted to access those services as well. He also made it clear to that person that the CFMEU would be limited in terms of industrial issues as to what it could do, including not being able to participate in bargaining for that particular person.
PN3183
So whilst he made that clear and we can't get away from the fact that there may be other - that boilermakers or security officers
or sheet metal workers may be members of the union, the evidence of Mr Upton was that he encourages other people to join their union
of choice but ultimately if people insist then they insist and as I say, there's multiple ways in joining the union. You don't just
have to see the organiser, I think you can join online, you can come into the office and there's a range of different things that
can occur that way. Excuse me. If I recall correctly and I stand to be corrected, I'm not sure there was any evidence that
Mr Upton whilst on the Pluto project has recruited people that he wasn't entitled to recruit.
PN3184
I think what evidence was is that he said that he didn't have much time to join people up, it usually happened via the delegates on site or people made their own approaches to him after hours because he had such limited time to engage in the discussions. Now, I've made some comments about the site inspection and we were all there and we all experience the conditions and we all experience them equally I believe and I don't think that there can be other conclusion to say that the Pluto project is in an extreme environment. It was exceptionally hot. There's exposure to the sun at all levels and that that has to have some bearing on the determination on what's reasonableness and in the decision of Senior Deputy President Watson in the BGC matter that was previously referred to he described inclement weather as anything above 30 degrees.
PN3185
Now, if regard is had to the regular temperatures of the Pluto project and the Karratha region generally it's in any month of the year it's never ever really below 30 degrees, I think one or two months off the top of my memory but that can be checked to be precise. So it is the case that it's an extreme environment and in that regard when Senior Deputy President Watson was making his determination about what happened out there at Hazelmere he was saying that it was sufficient to provide proper cover for them based on those conditions out there and what we say is that should be a guide in relation to this matter in determining what's reasonable but we say it's worse than what was out there in terms of the general environment.
PN3186
Whilst Mr Buckridge was forcing the union to meet out in the complete open and that's not generally the case here, but it is certainly the case when it comes to RCR employees and I would suggest that that is a completely unreasonable area for people to meet and that the absolute open with no cover whatsoever, no protection, nowhere to sit and exposure completely to the elements and any suggestion by the respondent that that could possibly be reasonable is just simply ludicrous in my view because it could go no worse than that. And also in relation to the area relating to Harbourworks Clough's employees it was extremely harsh and it was a workshop. It wasn't the kind of area one would suggest an active discussion could happen and they were not clearly fit for purpose. They weren't built for the purpose of discussions; they weren't built for the purposes of right of entry; they were built for other purposes. And there's clearly - it's not a meeting area at all. It's a working area.
PN3187
THE COMMISSIONER: Well, what does an area have to have to be fit for the purpose of discussions?
PN3188
MR SWINBOURN: I would have thought that it has to have protection from the elements.
PN3189
THE COMMISSIONER: You can't discuss things out in the open?
PN3190
MR SWINBOURN: You can, but protection would include being able to stand under a sufficient shading. So in places around Perth you might see some industrial sites will often have - have a gazebo built outside where people would often go to smoke or sit during their breaks and often that's a satisfactory place to go and meet, because it's comfortable, because its exposure to the climatic conditions is limited. It's covered, and some days it would be rather pleasant to sit out there. I'd suggest that it's very rarely pleasant to sit out in the conditions that existed on that site.
PN3191
THE COMMISSIONER: I don't disagree with that, Mr Swinbourn, but what the Act talks about is whether the area nominated by the employer is fit for the purposes of discussion.
PN3192
MR SWINBOURN: Sure.
PN3193
THE COMMISSIONER: The question of whether it's pleasant or unpleasant, or whether there is a more pleasant place, which is dealt with by 492(3) - - -
PN3194
MR SWINBOURN: Yes.
PN3195
THE COMMISSIONER: - - - isn't the question.
PN3196
MR SWINBOURN: No. Well, I think the degree to which it's comfortable is an issue that goes to whether it's fit for purpose, because I think the area should be reasonably comfortable. I don't think it should be - and that has to have regard to the practicalities of the site, I accept that. But that would be - typically, if we were to hold a discussion or a meeting, the kind of area that we would contemplate having would be in an office situation, a meeting room. You generally wouldn't propose that we go down to the foreshore and stand out in the middle of the Esplanade and - - -
PN3197
THE COMMISSIONER: And I agree a debate about the reasonableness for the employer where the standard working environment is indoors, in a particular circumstance - let's pick an industry - it's a 5 star hotel.
PN3198
MR SWINBOURN: Sure.
PN3199
THE COMMISSIONER: If the evidence is there's lots of meeting rooms that are vacate, lots of space that's available, and the standard working environment is indoors, air conditioned, out of the sun and so forth, a direction by an employer to meet in the open air in the full sun in the hotel car park, smacks of capriciousness and hence, perhaps, is unreasonable; there may be reasons why it's not unreasonable. The issue here is much of what you complain about are the inherent circumstances of the work place - - -
PN3200
MR SWINBOURN: Sure.
PN3201
THE COMMISSIONER: - - - because it's a construction site with little or no protection from the elements. It's the very nature of the industry and the particular location.
PN3202
MR SWINBOURN: I agree with that. And I think that, in my view, supports our argument, because the one time they do get protection from those harsh elements is the time that they take their break when they have access to the crib facilities, when they're actually out of those conditions. So whilst their working environment is that, their break environment is actually something completely different, and so they're not expected to take their breaks in those areas generally unless they want to attend a union meeting, and that's the only time they're expected to go through that, unless they're a smoker and they want to have a cigarette.
PN3203
The standard is by not - not necessarily only reference to the working environment but the break environment as well. And their break environment is a comfortable environment and, therefore, comparative to where they have to meet is a big difference. You go from an air conditioned environment, which is comfortable, where you have access to your facilities and things of that nature, to an environment which is completely different to that. And we would say it affects its fitness for the purposes of discussions, but it also goes to the reasonableness of asking employees to give up that particular environment for what is - what they have to work in all the time.
PN3204
I mean, those workers choose, obviously, to work on those sites and under those conditions, but somebody has to do that work and they work long days - they, perhaps, work longer days than most other workers. They work a minimum of a 60 hour week every week that they work, and they are in those conditions for a long time, and any respite from them is precious to them. And so, as I say, whilst they might be used to those conditions whilst working, to have to put with them during their breaks, is a different issue.
PN3205
And I think the argument that's been put forward about, I guess, the crib rooms is the - for those people that might have to move - the inconvenience of that. The fact they have to give up their comfort of the crib room so the union can have a meeting up there. The corollary is, and it's a two way street here, that the employer says, "You've got to give up the comfort of your crib room if you want to participate in a union meeting," and have had no issue from disrupting those people from their breaks in that manner, but they're not prepared to contemplate circumstances where those employees that don't want to might have to have the possibility of that inconvenience imposed upon them.
PN3206
As I say, it's a two way street, and this comes back to the role that you have - the unenviable role in some respects - of balancing these competing interests. And this is where these interests are and which have to be identified. And there's an interest here from those employees wishing to participate in union discussions of still being able to enjoy the benefits of their crib rooms. And it's a balance, and it's also the interests of those that don't want to participate being entitled to enjoy them. And it's not a matter necessarily of one having precedence over the other, but by balancing those things.
PN3207
In terms of the evidence that was given, and is often the case with these proceedings and with witness statements, there was a considerable degree of hearsay evidence that was given. And in circumstances of any hearsay evidence as opposed to direct evidence given by witnesses we would say that you should accept the direct evidence. And an example of that would be the evidence of Mr Upton in respect of what happens elsewhere, what - in terms of crib rooms, as opposed to that of Mr Milne. And as an example, we would ask you to have regard to those things with respect to - - -
PN3208
THE COMMISSIONER: In that regard - and I think that's a reasonable submission what you've just said there - and an exchange, I think, with Mr Dixon about what relevance is this anyway, whatever is happening elsewhere, so what?
PN3209
MR SWINBOURN: How is it relevant? Well, I suppose it's a test - when we talk about reasonableness - any test of reasonableness, it's about putting yourself in the mind of, is it the Bondi tram example, I think Mr Quigley quoted - about that. And so from that point of view, what happens elsewhere it should be part of the mix. And what happens in the industry should be part of the regard. It's not a determining factor, it's just one of those things that goes to the balance of things again. So we would say that whilst that evidence - well, both parties adduced evidence with respect to that, is an indication of what the industry, itself - the practice is in the industry, and the industry practices suggest that in most circumstances access to the crib rooms occur.
PN3210
And it also has some reflection as well on this continuing issue of people who wish - who continue - the continuing issue of whether people want to participate or not to participate. And this is not a unique situation to this particular site, it happens everywhere and in every union - where union meetings are held. There are those that don't wish to participate and there are those that don't. But, perhaps, I can make the point about that, that whilst Mr Gibson and Mr Clarke gave evidence about the understanding that there was people that fell within that category, there was no positive evidence that was produced by the respondent to support its assertion that there were any number of people that didn't wish to union to have the meetings in the crib rooms.
PN3211
And, perhaps, if I can refer back to the case - Watson SDPs case - I need to find my copy of it this time, sorry. His Honour at paragraph 43, in dealing with an allegation by the union - well, perhaps - he deals with a couple of issues here. At paragraph 43 he says:
PN3212
There are at least two potentially competing sets of interests of employees. The first is the legitimate interest of employees to exercise their right to engage in discussions with the CFMEU if they so choose, a location which is reasonable and comfortable and without fear of consequences arising from their association with the union. In my view, for the reasons discussed above in relation to climatic conditions, access to site amenities, proximity of the crib area in which meal breaks are taken, and the availability of alternate location in which section 760 discussions might occur, the sea container location requested by BGC was contrary to the interests of such employees.
PN3213
And then he goes on, and this is the point I directly want to make.
PN3214
The CFMEU has argued that the requirement to walk to the location past the site office and meet in view of BGC management was unreasonable because employees feared adverse consequences from disclosure of their membership of or association with the CFMEU. Whilst my experience as a member of the Commission suggests that such fears can exist sometimes legitimately. The CFMEU brought no evidence from employees which would be tested as to whether the concerns were objectively reasonable in the context of the brickworks site. In the absence of any evidence that BGC had subjected employees to adverse consequence on the basis of their membership association with or meeting with union officials, I am not satisfied that the CFMEU has established an objectively sound basis for the concerns of employees in this respect.
PN3215
Now, that obviously went against the CFMEU in that particular case. And what I'm saying here in this case, we've had no evidence from any employees by the respondent on its claim that they don't wish the union to participate in activities. Now, your next question might be, "Well, that's very difficult, Mr Swinbourn for that to occur?" But I note in this matter BGC summoned three people who worked on the site to give such evidence, so it does happen and it can happen, and it was a choice and a decision that was made by the respondent not to adduce evidence to that affect.
PN3216
And, so, therefore, in testing that claim we say - as his Honour identified here, they have to establish an objectively sound basis for the concerns that they have expressed. And, as I say, there is no direct evidence of what they have expressed. They say that it has influenced their decision making process - and I don't doubt that that's the case - but it doesn't go to the fact that in that particular workplace such concerns actually do exist and we need to keep that in mind. And the burden fell on them making that claim to prove that that claim was there.
PN3217
Now, safety was raised in the respondent's submissions and we believe that the Tribunal - it's open on the evidence to question the respondent's assertions with respect to safety. And by that what we say is that - in one breath we had the claim that they wish to limit the unnecessary movement of people across the site and how important that that claim was and how important to safety that was. And that was an argument that was used against other contractors, employees, being able to attend union meetings. But in the next breath they were arguing that it was always more desirable for the employees to progress en masse to the union meeting areas than for the employees to - sorry, for the union or the permit holder to come to them.
PN3218
And, so, we have a competing and confliction version here of what's actually safe. And instead of recognising that the motives for doing what they're doing is something different to the issue of safety they never reconciled those two things. And as I say, it brings into question their assertions with respect to safety and the positioning of those meeting areas and what is safe. I just want to make some comment - - -
PN3219
THE COMMISSIONER: Can I just stop you there. If I was persuaded by your arguments about some of this, Mr Swinbourn, I'm still troubled by what I would have thought would be - it's one thing to be persuaded that the meeting areas aren't reasonable, it's another thing to know what the solution is to that.
PN3220
MR SWINBOURN: Yes.
PN3221
THE COMMISSIONER: And in terms of resolving disputed - if I came to the view that there was one - it needs a resolution.
PN3222
MR SWINBOURN: Yes.
PN3223
THE COMMISSIONER: The only resolution it seems that the union's proposing is the crib huts. They're not suggesting that the meeting facilities in the form they currently are should be - pardon me - be at some other locations.
PN3224
MR SWINBOURN: Yes.
PN3225
THE COMMISSIONER: Is that my - am I getting that correct?
PN3226
MR SWINBOURN: Well, the orders are not predicated principally on that basis. What we did in the orders is to - not to remove the discretion on the part of the respondent to able to identify another area that fit within the categories of things that we say are necessary to have regard to when allocating a space. So we weren't suggesting that the order be the crib hut or bust. What we were suggesting is that they have to, perhaps, go away and rethink about their position. Now, they've refused flatly - to do that to say it's uneconomical and inconvenient and a number of other things. But in terms of the Tribunal's powers in these matters, it's not necessarily the case that you have to issue a final order with respect to this, and I fear or loathe to suggest that we have to come back here at any time in the future, but it's certainly open for you to make recommendations and suggestions that I believe the Act says a number of things about that.
PN3227
The first instance, in section 505, it says - and subsection 2:
PN3228
Fair Work may deal with this dispute by arbitration, including by making one or more of the following orders:
PN3229
And it says:
PN3230
Any order is considers appropriate.
PN3231
So it gives it a general power. And I don't believe it comes from there. I must be thinking of another part. But the Tribunal has the capacity to not finally determine this matter if such things exist. If your concern is that - if you were - if the Tribunal decides that there is unreasonableness, but your concern is that an alternative is not available, it's open to then put the matter back to conciliation for further discussions between the parties given your finding may change the position of certain applicants. You can issue an interim order, which might be subject to supervision. You can provide an order where there is liberty to apply if it proves to be unworkable for either party. So there's a range of things that can be done, other than just a final order which finally determines the matter and which the parties have to live with forever, and I - - -
PN3232
THE COMMISSIONER: Well, I understand all of that, but some of the basis on which you say the areas nominated are unreasonable or the nomination of those areas is unreasonable, is because of the inherent characteristics of the meeting facilities themselves.
PN3233
MR SWINBOURN: Yes.
PN3234
THE COMMISSIONER: They are not air conditioned. They are open to insects. They are open to rain. Now, the only place on the site that doesn't have those inherent characteristics is the crib rooms.
PN3235
MR SWINBOURN: Yes.
PN3236
THE COMMISSIONER: So if I accepted all your arguments that those inherent flaws or deficiencies in the meeting areas makes the direction to use those unreasonable. I seem to have very limited options in terms of resolving that, again, because of the inherent nature of the workplace.
PN3237
MR SWINBOURN: I do appreciate that, but I think that you have the capacity to order, for example, the improvement of the areas that currently exist. And, perhaps, if I can take you to Mr Gibson's statement and an attachment to it, as an example of the union's position, and it's attachment CG11, and that's the email. And attached to it was a document that was produced by the parties in conjunction with the AMWU and the CEPU where the unions identified their issues and concerns and we received responses from the parties to that.
PN3238
And I note that some of things that the unions raised was - in the table, was the no site meeting facilities and the explanations given of that. Seeking for the location to be adjacent to the crib rooms, so not necessarily always seeking access to the crib rooms. Discussions about the type of facilities - like, form or construction - excuse me - including seating to be suitable and acceptable. But also to provide protection from flies and other insects, such as the installation of flyscreen. Heat control, such as large evaporative cooler or ..... to address concerns over extremes of heat during summer months, and provision of water to the attendees of the meetings. Facility to be non smoking, and that's obviously the case. And noise pollution that interferes with meetings and discussions.
PN3239
So from the point of view of the union, as I say, it's not the crib rooms or bust, I mean, that's what we - there's no question that's what we want, but in terms of addressing this issue - there's ways and means it could be brought about. And as I say, if the Tribunal is inclined to find that there was unreasonable but was of the view that an option wasn't available, the matter could be referred back to conciliation to explore those options between the parties. And then obviously then if you're in the position of having to be forced to determine these matters then that could be dealt with on that basis. I understand the point that you make.
PN3240
But the examples of the other areas, like, I believe it was Cape Lambert, there was the installation of large fans in that area, and that area is also prone to cyclones. And instead of shade cloth they had a - Mr Upton said that they had some sort of plastic cover on for the top of their area.
PN3241
THE COMMISSIONER: The difficult is what seems - any of those things ultimately require is for me to - subject to all of the right conclusions being formed - issue an order that requires positive action by the employee to either provide facilities that currently don't exist or construct facilities that currently don't exist, and I would have thought in terms of, perhaps, section 505.5 that may be Fair Work Australia conferring you rights on the permit holder - a right to have a particular facility that doesn't currently exist.
PN3242
MR SWINBOURN: But I believe you're entitled to do that under section 505 because the issue relates to the reasonableness of the request. With limitation with respect to that only applies - in dealing with the dispute:
PN3243
Fair Work Australia must not confer rights on a permit holder that are additional or inconsistent with rights exercisable in accordance with division 2 or 3 of this part unless the dispute is about a request under section 491, 492, or 499.
PN3244
And I believe the request that we're speaking about is a 492 request on the part of the employer. So you would certainly be making additional rights, but that's permitted by the Act.
PN3245
THE COMMISSIONER: So you think that extends to, for instance, ordering an employer to construct a facility?
PN3246
MR SWINBOURN: Well, as I said, our orders weren't predicated on that basis.
PN3247
THE COMMISSIONER: No, I understand that. But providing fans and all sorts of equipment - - -
PN3248
MR SWINBOURN: Yes.
PN3249
THE COMMISSIONER: - - - it's a significant obligation being imposed on an employer - - -
PN3250
MR SWINBOURN: I appreciate that - - -
PN3251
THE COMMISSIONER: - - - and I would have thought potentially arguably involves a new right, the right being that the permit holders are entitled to have the facility that has particular characteristics.
PN3252
MR SWINBOURN: As I say - it would be our submission that that is certainly open to you. And I think what further reinforces that is this section is a section that involves the resolution of a dispute and if your - the Commission - sorry, if, Commissioner, you were to make the finding of unreasonableness and there was nothing that could be done about it, that would be a gaping sore that would be left open and which I think would be unacceptable under all circumstances, perhaps, except for the respondent. So all that I'm suggesting is that if you are of that view then, perhaps, there are alternative ways of skinning the cat, if I can put it so crudely. Sir, I move on from there?
PN3253
THE COMMISSIONER: Yes. Thank you, Mr Swinbourn.
PN3254
MR SWINBOURN: The other orders that we seek relate to the issue of the demand to state on the notices which particular contractor work group the permit holder wishes to hold discussions with. And if I can make some points about that issue itself, the CFMEU recognises the practicalities of providing that information. We don't object to giving an indication to the - in occupier of those things. What we object to is the possibility that if we fail to provide it or fail to provide it satisfactorily and we're otherwise required to - sorry - otherwise met the requirements with respect to notice that the respondent will deny entry.
PN3255
And the issues of practicality go to the fact that if the union doesn't cooperate you can't expect things to go smoothly when it gets to the front gate, because we have to understand that - and we do accept that it's a large - very large site with a lot of complexities to it, and that failing to give that information early enough will result in not - will result in delays and not delays in the sense of a deliberate delay, because arrangements will have to be put in. But that doesn't go to the level of the respondent being entitled to demand that information be put on the notice as such. What it is, as I say, a part of a cooperative approach, which I understand from the evidence that was given that the FWW accepts the union has taken that approach, and that removing that threat - and there has been correspondence that has come back when contractors - or multiple contractors, for example, have been named saying that entry will be refused. And I believe that was attached to Mr Upton's statement.
PN3256
So with respect to that issue, and I have already spoken to some degree about the law with respect to that, we think there's very limited capacity for - there is no capacity for the occupier to require information on the notices themselves that are additional to the requirements of the Act, and that a refusal of entry in the absence of those things could potentially be a breach of the Act but like to think we're trying with it in a constructive way by getting direction from the Tribunal with respect to this issue, rather than getting into the situation of prosecutions in the Federal Court or the Federal Magistrates Court.
PN3257
The same with the issue about engaging in discussions with more than one contractors/employees at the same time. Now, I think with respect to this particular point, we would have to - the union as a matter of practicality would have to accept that if access was given to the crib rooms, the capacity for more contractors/employees to attend those meetings is severely limited and that would be a consequence that he has to live with in terms of having, you know, that matter. If - but that's a situation we deal with everywhere that we go. It's not a new matter for us that if a particular crib room belongs to a particular contractor and we're permitted to go in there, and the rule is that other contractors don't go into those crib rooms, then that's something we live with. That's not something we're asking for. But if the issue is that - that the Tribunal decides that the meeting areas themselves are not unreasonable, they are so large in their size that there's no reasonable argument in respect to those areas themselves that would suggest that employees who are eligible to be members of the CFMEU from different contractors shouldn't be entitled to come and speak to - or have discussions with the permit holder.
PN3258
Now, there's no requirement on - under the Act for the occupier to be able to demand on its site that you only engage in discussions with particular employers that are engaged on that site. And I think that's a recognition by the parliament that that's - particularly in the construction industry, an impractical thing, because you have unions who have coverage across a wide variety of areas. And a good example for the CFMEU is obviously crane drivers, carpenters, painters.
PN3259
Now, there may be an issue for their occupation that the union wishes to address those persons on. So for painters, there's issues with registrations, there's issues with training, with crane operators, there's licensing issues, and we may wish to discuss those issues with our people who are eligible to be our members and who are our members. And for us to - for the - in the absence of there being any other serious safety issue, and I wouldn't suggest that if they're on one side of the site to the other site that they have to impose - that's an imposition of a requirement to transport them, but if those workers are all in one area - one crib area, in site A or site B west, or site B, then where is the issue with those - those employees coming out of their crib huts of their own free will from different contractors and attending the meetings.
PN3260
There's - nothing changes from that in relation to any of the other arguments about safety or anything else like that. We're not proposing that what happens there is that people traverse the site, what we're saying is you have these areas that are close - that, in some instances, are close to the crib facilities and that for those people from the different contractors can easily come through and come to those meetings, and that they have a legitimate interest in doing it and that they are entitled to do it.
PN3261
Now, it appears that some of those workers of their own volition do that anyway because the records of Mr Milne that there is an attendance from other contractors there but - so that that happens, but it is limited. And as I say, it's - what is in dispute here is the position that's put forward by the respondent, it's an absolute rule on their part that this not occur.
PN3262
Now, order 4 of our draft order that FWW immediately withdraw its requirement that discussions between permit holders of the CFMEU and employees who wish to participate in discussions were limited to three allocated areas, is based on the original correspondence that was received from the respondent prior to the introduction of the Fair Work Act where they indicated that all union meetings would be restricted to those three areas.
PN3263
Now, it's apparent from the site inspection that they're not simply restricted to those three areas. The rationale behind that particular one is more to do with the fact that the decision to allocate areas should be based on a variety of things, including the practicality for employees to be able to - who are entitled to attend to attend those meetings. So, for example, if the particular contractors/employees are no where near those sites, then there should be no such imposition of a rule to that extent. It should be something that can be sorted out as a pragmatic level on the day. So, effectively, the order seeks the withdrawal of the imposition of that condition.
PN3264
THE COMMISSIONER: There's no evidence, is there, that the occupier is saying to Mr Upton, "You can have your meeting in Site B West, but the contractors - the contractor that has been nominated or agreed that he wishes to meet with their employees, are artificially at some distance from them - in other words, their crib rooms are nowhere near that location? In other words, there was a closer meeting facility which wasn't nominated. In other words, it's not being done capriciously in that sense?
PN3265
MR SWINBOURN: I don't believe the argument is being done capriciously but I think the practical effect of it, given the nature of the site, is that it's sometimes occurring, I think the example, was given of AGC employees being - having crib rooms at a number of locations. And I think that's reflected in exhibit R1 which shows that AGC has a number of places. They're not the only ones that fall into that category themselves. So as I say - although we would probably, undoubtedly, love the employees to provide a bus for them to all be transported - so we have some regard to the practicalities of that.
PN3266
And we exercise considerable number of entry onto that site, because it's a large site. It's difficult to get around to seeing everybody. There's a lot of people, and as I say we're not proposing that - in every circumstance it's going to have to be imposed to that extent.
PN3267
I've discussed reasonableness and our orders with respect to that, and I don't propose to revisit that. I think I've made my position clear on that. And also in respect to the order 7 proposal. And as I say, it doesn't say the crib rooms, it says;
PN3268
If no such area is available FWW will allow permit holders from the CFMEU to engage in discussions with employees who wish to participate in those discussions in the area where they have their meal breaks.
PN3269
Now, we know that the area where they have their meal breaks includes the smoking area, where the ablutions blocks, and things like that are, so where - that might not necessarily result in it having to be in the crib huts, but in the area of that. I'll turn to the issue of the observation of the permit holders and the meetings. Now, I'm aware that in the BGC matter in which you heard you made comment about saying that employers are entitled to observe union meetings. You may or may not recall making that particular comment. But we would say there is that whilst there is a legitimate interest in the employer to maintain safety on the site, and there's a legitimate interest in the employer to be aware of what's going on.
PN3270
The degree to which they have an interest that actually goes on inside the union meeting itself is limited. And there is a very fine line in terms of where you go from simply being aware and watching what's going on, to actually recording and taking information, and feeding information back through the system which could generate an apprehension in employees' minds that they are being watched and that gives rise to the fear of victimisation and intimidation.
PN3271
And so to the extent that there is observation it should - and that - particularly, if you're of the view that they're entitled to do that, there should be some clear indication to how that should be conducted and how far away they should be and to ensure that there is no hint that they're their to spy on the particular people and things of that nature. As I say, I think it's apparent from the evidence that was given by the employees that actually work on the site that they have an apprehension of that occurring.
PN3272
And it's not just the representative of the CCI, there's also the employer representatives that also turn up to watch the meetings. And from that perspective they're not watching the meetings in terms of watching them for the purposes of safety, they're watching them to mark time as they indicated, but for whatever purpose we don't know. It seems to me to be creating a very negative environment for the employees in which to have their relationship. And the removal of that fear on their part would be desirable, I think, in many respects. And as I say, our position, of course, is that observation should be limited - well, whether it's necessary in the first place, but if it is that it should be severely limited to ensure that it meets the minimum of safety with respect to that but goes no further than that issue.
PN3273
I, unfortunately, jumped ahead of myself, and I just wish to make some comments in relation to my learned friend's submissions, particularly, in relation to Mr Windas and the submissions that a protocol must deal with behaviour of the kind of Mr Windas. And what we would say is that whilst that might be part of it, reference should have - to the fact that the Act itself provides remedies for the kind of conduct that Mr Windas was engaged in, and that that's evidenced by the fact that the respondent, herself, had made an application, I think to have Mr Windas' permit removed and from that perspective it's not the only means of dealing with the conduct of Mr Windas. And I accept Mr Dixon's submissions that they weren't suggesting that the CFMEU was associated with Mr Windas in any way, and we would respectfully submit that any such conclusion should not be made, and that to the contrary, the CFMEUs conduct apart from this issue about who's engaging in discussions, has not actually been brought into question generally.
PN3274
I think that it would be fair to say that the relationship between the relevant players is still civil. Everybody talks to everybody. There is an exchange of information, and I think that ought to be recognised. We're not into ..... warfare here between each other, which appeared to be the case between the AMWU and the occupier at some stage.
PN3275
The issue of rain was brought up, and I have brought it up, and we would - to the extent that we can seek to amend our orders, we would also wish to include that order 6(i) to include that sufficient shelter from the elements should include protection from the rain. Now, whilst it doesn't rain that often on the site, it still does rain on the site, and Mr Dixon did make the submissions that there were no covered areas on the site, but I would hasten to add that there are covered areas. The crib rooms are covered areas and that I would have thought that rather than the union having to pull up at stumps and move on, that if there was an issue with rain then, certainly, in those circumstances, that access to the crib rooms was no unreasonable. And I think that was even recognised by Watson SDP in his case involving BGC to the extent that it didn't - it didn't impose an unreasonable imposition on the people in those rooms in those limited circumstances. So I think rain is a consideration. It does rain in the north west, sometime very heavily, sometimes not, and it's something that should be taken into consideration.
PN3276
The Harbourworks Clough and both CBI was raised, and whilst we don't challenge the assertions that they're finishing up on the job, they are still on the job at this point in time, and potentially on the job by Mr Upton's understanding, maybe until at least February, and I think Mr Gibson made concession in his own evidence that how long they're exactly going to be in there - can't be certain because they're finishing up on the job. So whilst it may not be a significant issue, we believe it should still be dealt with in the terms of the consideration of these matters.
PN3277
In relation to the points Mr Dixon raised about the CBI crib facilities on Site A, I understood from the evidence given by the respondent that when CBI goes, somebody else is in all likelihood going to occupy those crib rooms, that the crib rooms themselves wouldn't go with CBI but that CBI would just be off the job.
PN3278
MR DIXON: No, no, no, that wasn't the evidence. CBI - - -
PN3279
THE COMMISSIONER: I thought the evidence of the construction director was that they were going to be removed altogether - unless I'm confused - - -
PN3280
MR SWINBOURN: Well - - -
PN3281
THE COMMISSIONER: - - - about the crib rooms we're talking about.
PN3282
MR SWINBOURN: Well, I stand to be corrected on checking the transcript, as is often the case with these matters. I'm not suggesting in any way that Mr Dixon was misrepresenting the evidence, but what I'm saying is that my understanding from the evidence generally is that when crib - when crib huts are vacated, they're almost always taken up by somebody else rather than being removed from the site altogether.
PN3283
I've made some points about fairer RCA and what we believe is a totally unreasonable location for the meeting. And I would suggest in that particular case if no other facilities are available that the crib room certainly would be a reasonable one there.
PN3284
THE COMMISSIONER: Do you have any comment about eligibility, question mark, of the RCA?
PN3285
MR SWINBOURN: I did look at Mr Gibson's statement in relation to that. And he's given a list that he provided. And he concedes at least 14 - I believe it was 14 crane - mobile crane operators - and that's at paragraph 37 of his statement. So 14 is, at least, some. I mean, they may not all still be there, but whilst they're on the project that remains an issue.
PN3286
And I must address this as well: Mr Dixon has said on a number of occasions, we don't cover fork lift drivers, and we would dispute that. The rules of the union at rule 2E - and that's page 8, if I just quote the precise section. E(a) says:
PN3287
An unlimited number of classes of engine drivers, firemen, crane drivers, mobile crane drivers, and fork lift drivers.
PN3288
It squarely has forklift drivers in there. It specifically names them. I'm not aware of any authority that has limited the respective fork lift drivers, and Mr Glynn was one of the employees who gave evidence, described himself as a fork lift - a storeman/fork lift driver, and he gave a description of his activities which to my view were substantially involved in fork lift driving activities. And the assertion of Mr Gibson that he wasn't entitled to be a member of the union is completely rejected in that particular case. We do take issue with that and as I say the fork lift drivers are not limited in any way as are any other engine drivers in relation to those - there being work on a civil or mechanical engineering site. That doesn't apply to the FEDFA rules in relation to that part, and that's my understanding of it. I will concede that they are complex and often difficult to understand clearly.
PN3289
I believe I've covered everything I think to cover in, perhaps, a little bit of a round about way, but - unless the Tribunal has any further questions of me that's our case, and - - -
PN3290
THE COMMISSIONER: Very well. No, Mr Swinbourn, I think that that deals with everything I want to do. Mr Dixon, is there anything arising out of that you want a quick opportunity to respond to?
PN3291
MR DIXON: Your Honour - Mr Commissioner, just two very brief points if I may? The first relates to section 505, and the question of whether the ability to confer additional rights in respect of a dispute about whether a request under section 491 and 492 was reasonable extends to an issue such as an obligation to construct a new facility is certainly questionable in my respectful submission. But regardless of how the Tribunal might interpret that provision, the very concept of imposing such an obligation on a site of this kind on a moveable basis would not, in our respectful submission, be satisfied under section 505(4). It would not be fair between the parties concerned to create such additional obligations for all the reasons that one takes into account for the fact that these particular facilities are of a temporary nature, have to be moved, et cetera.
PN3292
The second point just deals with the matters raised in respect of meeting with employees of multi contractors. And a fairly theoretical analysis was offered to the Tribunal, namely, that there may be circumstances where crane drivers have licence issues and they may wish to meet. The submissions did not identify in any practical way which contractors/employees on any one occasion - or grouped in any particular configuration across the site, might reasonably be subject to such a joint meeting.
PN3293
How it will occur, or how the CFMEU will act within the scope of its rights under section 484, because it does not confine its approach to meeting with contractors/employees who are eligible - it's request is multi contractor and the propositions put do not extend from - to how safety - from a safety point of view that would be managed.
PN3294
And the last point I wish to make in respect of this issue is that, of course, there has been no restriction on the number of occasions upon which the union can legitimately enter the site to visit contractors, so that there's nothing preventing eligible employees from one contractor having a meeting, and then eligible employees from another contractor a day later being able to meet. So for those reasons the theoretical analysis from a practical point of view simply does not assist.
PN3295
There's one last matter - may I just take some instructions, thank you. In respect of the question of the union's eligibility rules and the question of fork lift drivers, one's got to draw a distinction between the capacity in which someone is employed and if you're employed, for example, as a storeman who happens to do fork lift driving, you would not be eligible. If you're employed full time as a fork lift driver, you may be eligible under that particular rule.
PN3296
It's, of course, as you've gathered from our earlier submissions, not critical for you to make a definitive finding of every area of eligibility. Because despite Mr Swinbourn's best efforts there was no challenge to the submission made by the respondent that the CFMEU does meet with people beyond its eligibility rule and takes no efforts to prevent that. And we have specific examples to support a conclusion in that regard. Thank you, Commissioner, that's all I wish to say in reply.
PN3297
THE COMMISSIONER: Thank you. Very well. I shall be reserving my decision and in due course will provide that decision in writing to the parties. Thank you for your time and your cooperation over the last few days in terms of the inspections and the hearings, and I appreciate the less than ideal hearing arrangements that we were all required to endure in Karratha. Thank you.
<ADJOURNED INDEFINITELY [1.13PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #R12 RULES OF THE CFMEU PN2977
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