RE2009/10898, Transcript of Proceedings [2010] FWATrans 551 (29 March 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25158-1

COMMISSIONER WHELAN

RE2009/10898

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

Susan Day Cakes Pty Ltd
and
Liquor, Hospitality and Miscellaneous Union
(RE2009/10898)





Melbourne

THURSDAY, 11 MARCH 2010

PN1

THE COMMISSIONER: Good morning everyone. This matter has essentially been before me once before, although since then additional and further issues have arisen and the company has asked for the matter to be re-listed. The basis upon which that has been re-listed and I will hand over to Mr Wilson to indicate the reasons why, but my intention is to see if we can resolve this matter. Mr Wilson.

PN2

MR M. WILSON: Commissioner Whelan, good morning. On 2 February you heard our application against Mr McCourt of the LHMU. That was to do with the matters arising out of intimidation of five staff members at the organisation, Susan Day. We indicated at that hearing that we had allocated Mr McCourt the opportunity of using our training room so that he could then have private confidential conversations with staff and yet allowing our staff to have their normal meal breaks in peace. We discussed at that hearing the use of the training room and its appropriateness of which you indicated at the hearing that you considered the training room was appropriate.

PN3

You also might recall that we discussed some inappropriate behaviour which I think we addressed more than adequately in that hearing. Since that matter was dealt with we have received a written complaint by a member of our staff consultative committee, making certain allegations about harassment and if the court pleases I would like to read that to the court.

PN4

THE COMMISSIONER: Very well.

PN5

MR WILSON:

PN6

Mr Barry Wilson, I am writing this letter of complaint to you against MR Sean McCourt of the LHMU. I was approached by Mr McCourt at work whilst going to clock off for the day. He asked if I would like to put my name forward for union rep. I told Mr McCourt that being on the consultative committee was enough for me and I didn't want to be a union rep. Then Mr McCourt approached me again and said he was putting my name forward as a union rep. I told him no, I didn't want him to do that as I wasn't interested in being a union rep. After being asked twice and telling him no, the final straw came when Mr McCourt phones me at home after work asking me again to be a union rep. I still tell him no, I'm not interested, that I am happy just being on the consultative committee. The next day I talk to a fellow member of the consultative committee and they told me to talk to you about my problem. When Mr McCourt comes into the workplace I try to avoid the room he is in which is next to the label room. If I have to print labels instead of going straight through the middle of the factory I go to the far side of the factory and down to the label room so I don't have to talk to him. I am starting to feel harassed and intimidated by him and I believe that if I wasn't on the consultative committee he would leave me alone. I became a union member so I would have help if I needed it when dealing with management. I did not expect management to be the one helping me to deal with the union.

PN7

Commissioner, the particular staff member has been with the company for seven and a half years, been on the staff consultative committee for about six, 12 months, somewhere around that period. She is a proud union member and so it was quite a bit step for her to come to the general manager's office with another consultative committee member and the matter ended up in tears in my office. She was very emotional and very upset about the matter and then I sought your assistance the next day to deal with this matter. The staff member concerned is in the conference room D, if you wish to speak to her or have her in the witness box and we would appreciate you assistance.

PN8

THE COMMISSIONER: I hope that it won't be necessary, Mr Wilson. Ms Gunn, prior to Mr Wilson reading that out were you aware of these issues?

PN9

MS GUNN: Yes, we received the complaint and the email that was forwarded to us after we requested the Commissioner's Associate brought that to us.

PN10

THE COMMISSIONER: What do you or Mr McCourt wish to say in relation to it?

PN11

MS GUNN: Do you want me to stand?

PN12

THE COMMISSIONER: You can remain seated, Ms Gunn, that's all right.

PN13

MS GUNN: The first thing I would like to say that since our last hearing on 2 February 2010, Sean has complied with his undertakings. He has not spoken to staff through the fence. On Monday 22 February Sean did provide 24 hours notice prior to conducting a site visit. He contacted Mr Frederick Borg by telephone on the Sunday prior and informed him of his upcoming visit. Mr Murray Wilson did at no stage raise his concerns, issues, grievances with Sean McCourt's behaviour with Sean, prior to seeking Fair Work Australia's involvement. Further, Mr Murray Wilson did not provide a copy of the complaint he made to Fair Work Australia on 26 February, we only obtained a copy of the company's complaint by requesting that the Commissioner's Associate forward a copy to us.

PN14

Sean has also continued to visit with members in the special room provided by the company instead of the tea room. This is despite the union's view that the tea room is the preferable venue for having discussions with members during their breaks. In fact we continue to hold out hope that the company will change its view about Sean's presence in the tea room. Members have spoken to Sean to the effect that they would prefer him to have access to the tea room to speak to them. In the last few days many Susan Day employees have signed a petition seeking that Sean be allowed access to the tea room to speak to them. Commissioner, I have the original petition here if you would like to see it and I note that there are 61 signatures on the petition.

PN15

In addressing the complaint letter from our member Carol Harvey, Sean denies having harassed Carol. He admits to speaking to her, but did not speak to her inappropriately. The compliant letter is undated. We do not know when the complaint was written by Carol or when it was received by the company. Further, we have not been advised of the manner in which the complaint came to light. Carol does not make reference to the dates in which she claims she spoke to Sean and Sean has visited the site on numerous occasions and recounts speaking to Carol on many occasions.

PN16

THE COMMISSIONER: Ms Gunn, did Mr McCourt ask her on a number of occasions to do something when she had said no.

PN17

MS GUNN: It is true that Sean identified that our member, Carol, would be a good leader and delegate for the site and suggested this to her and we contend that by Sean suggesting this to Carol this is not harassment.

PN18

THE COMMISSIONER: Suggesting something to somebody is not harassment, continuing to ask them when they say no can be harassment, Ms Gunn.

PN19

MS GUNN: Noted. On the basis of all this we say there is no basis that Fair Work Australia take any action in relation to this matter. The matter should not even have been brought back to Fair Work Australia for conciliation. In future if the company has any concerns it can raise them directly with LHMU first and these are all of the matters that we see relevant to the issue of Sean's injury at this work site. However, given we are here back before the Tribunal we think it appropriate to raise some other matters if we may.

PN20

The LHMU has been concerned that the company is not complying with the good faith bargaining requirements in the Act. 1) since the last time we were before the Tribunal the company has distributed a notice of employee representational rights, indicating its intention to have enterprise bargaining discussions with employees; 2) the LHMU has significant membership on site and is therefore a bargaining representative for these employees within the meaning of the Act. Our role as a bargaining representative is being hampered by the company's refusal to allow Sean to enter the tea room and have discussions with the employees. We have also asked for permission to have mass meetings with members to discus the enterprise bargaining process, to canvass for issues and to develop a log of claims. So far the company has refused to allow us to have these meetings.

PN21

On or about February Sean was advised by a member that the company had printed and distributed copies of the union resignation letter for staff to sign, an action which displays an anti-union sentiment from the company and yesterday the company called a mass meeting with employees, production was halted so that all employees could attend the meeting. All employees were paid for attending the meeting. In the meeting the company announced that there would be a mass meeting with Sean the following week but it would be outside of work hours and employees would not be paid for attending the meeting with Sean to discuss enterprise bargaining negotiations.

PN22

There is a custom and practice on site to stop production and pull staff together on paid time to discuss workplace issues. In light of the fact that the company has denied employees to have this opportunity with their union is unreasonable. It is unreasonable to expect all employees to attend a meeting with their bargaining representative to discuss workplace issues and not to be paid. This also presents a problem during the negotiation process when Sean must report back to all members. If all employees do not attend the meeting as they may need to leave work for personal and family commitments how will they be informed of the progress that is being made, and the union is not asking for something that has never happened before at this site by requesting the company approve mass meetings on paid time.

PN23

To ensure that the company is complying properly with its good faith bargaining requirements we ask that the company immediately give its permission to union members to have mass meetings at appropriate times and that union officials be permitted to attend those meetings. In the meantime we are prepared to continue to comply with the undertaking to visit with members in a special room provided, despite our members request that Sean be allowed access to the tea room, and notwithstanding our view that the tea room is the appropriate venue for Sean's visits. That concludes what I have to say, the speech.

PN24

THE COMMISSIONER: Mr Wilson, there has been a couple of issues raised in terms of what Ms Gunn has said that relate to the bargaining process. I'm not specifically dealing with the bargaining process today and it is clearly open to the union to actually seek particular orders under those provisions if they wish to do so. But given the issues have been raised, I will give you the opportunity to respond to them.

PN25

MR WILSON: Thank you, Commissioner. First of all if I may just address each of those points and unfortunately there are some errors in fact which I need to address. The 24 hour notice that was referred to, it was a text message to the factory manager on the Sunday who was attending the bereavement down at Portland. The union organiser had my mobile number and there was no call through and I don't consider that a phone call at 1.30 or thereabouts on a Sunday afternoon for a 10 o'clock meeting on the Monday was acceptable. The letter, just for your information, is undated from
Ms Harvey. We received it (indistinct) on 25 February.

PN26

THE COMMISSIONER: Very well.

PN27

MR WILSON: With regards to the harassment, I am advised by Ms Harvey during the interview that I had with her when she first raised the matter with me that this had been occurring over some period of time, months rather than days or even weeks. The reason we didn't raise the matter with the LHMU is that I have communicated with the LHMU on a number of occasions and we are yet to have a response back. This matter has been before, and I think your summary of the last hearing on 2 February was more than enough warning. With regards to mass meetings unfortunately the union's facts are wrong. There was no stoppage of production, production continued on.

PN28

This was an opportunity to address some issues that had been raised through our management structure from employees about partition and the fact that we, that is management, was being told we were not proactive in trying to get the negotiations underway. On 9 November, Commissioner, we had an agreement between Sean McCourt, Frederick Borg and myself that we would start the negotiations for the EBA in February. Management has been ready and willing to undertake negotiations. We have told our staff members that, we have told Sean that, and to say we are not bargaining in good faith is not fair. I did put out a note to staff asking them who they wanted to appoint as bargaining agent and I advised the staff at the meeting yesterday and the main purpose of that meeting yesterday was to tell them that we recognise that the LHMU and the four people nominated by the staff would certainly be sitting with us to negotiate the EBA, and I said that all five people that were mentioned would be at the meetings and we would not exclude anybody.

PN29

We reiterated, in fact we welcomed the union's involvement in the process. There are a lot of people on our staff whose English is a second language and certainly don't understand the complexities of the Industrial Relations laws. So there is no hint whatsoever that we're being anti-union. I think that just about addresses all the issues. As far as good faith bargaining we are - - -

PN30

THE COMMISSIONER: The other issues that were raised by Ms Gunn I must admit which cause me concern was the allegation that the employer was distributing letters of resignation.

PN31

MR WILSON: Yes, I was asked by an employee how do I get out of the union and I personally printed out a pro forma for that person and I must admit I can't even give you the name of the person because they are not that well known to me. So I simply printed it out and left one copy. So if anybody has made other copies or whatever there was no intention to be anti-union, it was simply the assistance - - -

PN32

THE COMMISSIONER: It was one person.

PN33

MR WILSON: Only one, yes.

PN34

THE COMMISSIONER: Very well. Mr Wilson, is there any difficulty with the union having lunch time meetings on the site?

PN35

MR WILSON: What we have done in the past, Commissioner, is that once the bargaining actually starts we are very happy for paid meetings to occur where management and union or the staff representatives can put arguments to the staff and to answer questions. We have done that previously with the last time the union was in which is about three years ago I believe, but what we are saying at the moment is that we are happy to facilitate a meeting on site and we have even suggested - written to Sean suggesting times and he has given us a date of 15 March and we have proposed two times that he would be convenient so that production continues on. Once we start our machines it's very hard to stop it.

PN36

THE COMMISSIONER: No. So what you are saying is the practice has been to have report back meetings - paid report back meetings after the bargaining discussions have been occurring, is that what you're saying?

PN37

MR WILSON: Yes. The union has been on site since 20 October and I have said to Sean personally he is now wanting mass meetings. I have asked him both personally and in writing what are you doing with your time, if now you are delaying the start of the negotiations. I mean management recognises that to keep good staff we need to be prepared to put through a pay rise. We have never backed off on that but it is frustrating that we have made a commitment to our staff in November that we would start negotiations in February, we are now being delayed by a whole series of mass - - -

PN38

THE COMMISSIONER: Well, we're in March now.

PN39

MR WILSON: Correct.

PN40

THE COMMISSIONER: Thank you, Mr Wilson. Ms Gunn, I suppose there's a couple of issues here. One is that in terms of the bargaining process it is a requirement in fact that the employer provide a notice of representational rights to the employees and those employees are entitled to nominate themselves or somebody else or the union as their representative and if they don't nominate anybody and they are a union member then the union is their representative by default. I don't think there is any issue that the union has members and that the union represents those members in terms of the bargaining process and that if there are individuals who are also nominated as bargaining requirements then they are part of the bargaining process as well and that occurs in any circumstance and in any workplace in terms of the bargaining process. Are you saying that when you agreed back last year that the bargaining would start in February that at that point in time or up until February you had not sought to provide a log to the employer as to what were the matters that the union wish to bargain.

PN41

MS GUNN: Can I consult with Sean, Commissioner?

PN42

THE COMMISSIONER: Yes.

PN43

MS GUNN: What Sean has just recounted to me is that from first going on site his communications with the members have been that somewhere down the line there would be a mass meeting with all members to endorse a log of claims and to discuss issues and to obviously canvass for issues and to compile a log of claims, present that log of claims and endorse that and also to endorse a delegate and that hasn't actually occurred because the company hasn't allowed those mass meetings to take place.

PN44

THE COMMISSIONER: Why do you say the company has not allowed the mass meetings to take place. Has the company said - all I understand is the argument you have been having about is whether they should be paid meetings or not. There is nothing stopping you, as I understand it, either under the Act or in terms of what the employer has said or done to have a meeting of your members during a lunch hour for the purposes of endorsing a log of claims.

PN45

MS GUNN: It has been our position that it's only fair to have a meeting on paid time so that all members and all employees can attend that meeting.

PN46

THE COMMISSIONER: That might be your view, Ms Gunn, but there is nothing in the law as I understand it that says that you have to, and if the process of starting this negotiations is being delayed because you and the employer are arguing about whether the meeting should be paid or not you're never going to start negotiating.

PN47

MS GUNN: We haven't been given a designated place to hold that mass meeting, whether it be on paid time or unpaid time.

PN48

THE COMMISSIONER: Where are these meetings usually held?

PN49

MS GUNN: It's normally been in the tea room, the custom and practice of the site of meetings paid or not paid they have been in the tea room.

PN50

MR WILSON: Commissioner, may I add?

PN51

THE COMMISSIONER: Yes.

PN52

MR WILSON: First of all the discussion about mass meetings only arose last week for the first time. In the past we have had some meetings held in the staff tea room, at other times they have been held outside in a smokers shed where there has been a request because of confidentiality issues or whatever. So we have not designated a spot but we are happy to do that right here and now if that assists with the process.

PN53

MS GUNN: If I can address that?

PN54

THE COMMISSIONER: Yes.

PN55

MS GUNN: That is incorrect entirely. Last week was not the first time that Sean has requested mass meetings. He has requested to have a mass meeting since he has been on site with the company and as our petition states that we've got 61 members there, members, non-members, that would like the union to be allowed to come into the tea room during breaks so that they can speak to him about the collective agreement and it hasn't happened.

PN56

MR WILSON: I'm sorry, Commissioner, but we are prepared to take the witness box on that under oath.

PN57

THE COMMISSIONER: Look, basically I think that for the purposes of endorsing a log of claims and to have capacity of the employees to ask the union questions in relation to the bargaining then the union is entitled to have a meeting in an appropriate place with sufficient space for the number of employees to have that meeting and that during the course of the negotiations there needs to be the capacity for the bargaining representatives to report back to the employees as to the conduct of the negotiations and to get feedback from them.

PN58

There is no requirement under the Act that in order for bargaining to start that there needs to be a particular type of meeting or that the meeting is paid or whatever. But it seems to me that it is important that this bargaining process begin and that in order for that bargaining process to begin the union needs to have the employees endorse the claims that it is going to take into the bargaining process and the union therefore needs to be able to have a meeting with the employees for that purpose in an appropriate place. Now I don't know what's an appropriate place on the site but there is obviously - the tea room seems to me to be an appropriate place in terms of size.

PN59

This is not a situation where Mr McCourt is meeting with employees individually, this is a meeting where you need sufficient space for people to meet and to ask questions and for those matters to occur. It seems to me it shouldn’t be too difficult for that to occur and for that to be resolved so that the process can then start. Once the bargaining has started then obviously the bargaining representatives need to be able to report back to the employees on some sort of a regular basis. You set up a program of meetings and then you set up a program of report backs so that the bargaining representatives can report back to the employees and say this is where we're up to, this is what's happening, this is what's agreed, this is what is not agreed and get feedback as to what people wish to pursue and maybe things that they don't want to pursue any further. That is the normal process of the bargaining and that needs to be able to start.

PN60

I think that needs to happen quickly because I think probably everyone is getting a bit frustrated about the whole thing on both sides. So I think coming out of today that there should be before we leave this room an agreement as to when and where that meeting is going to occur and there should also be an agreement that following that meeting when you have the first actual meeting of the bargaining group, whoever those people are so that you can actually start this process. At that first meeting you then set a time table for further meetings and for report backs so that the employees can be informed as to what is going on and have the opportunity to feed into the bargaining process.

PN61

In the meantime Mr McCourt if you want to meet with people outside of that you meet by giving notice and by meeting with them in the training room. That seems to me to be an appropriate way for this to get on its head. If Ms Harvey wants an apology from
Mr McCourt, that's a matter between Ms Harvey and Mr McCourt as far as I am concerned. The issue has been raised and I think all I can say is that Mr McCourt is entitled to ask Ms Harvey to be a union representative, she is entitled to say no and no means no, as far as I'm concerned that's it and I don't know that we need to delve into anything further than that. If you wish my assistance in the bargaining process I am happy and prepared to assist in that bargaining process if you run into difficulties but I think it needs to start happening.

PN62

MR WILSON: Commissioner, if I may.

PN63

THE COMMISSIONER: Yes.

PN64

MR WILSON: Last Friday I sent an email off to Sean confirming that the 15th of the 3rd which is next Monday, we accept that as his proposal for that date for meeting. We have put forward times of 1.30 for our afternoon shift as they start duties at two o'clock or earlier if he wanted and we would be happy to notify our staff. We in fact notified them yesterday of these times subject to change, and also a second meeting for the day shift to start at two p.m. for as long as he needed them, we are happy to make the canteen available. We have got full production on at the moment so getting a mass meeting per se is - - -

PN65

THE COMMISSIONER: A bit difficult.

PN66

MR WILSON: - - - is a bit difficult but I am prepared to do whatever needs to be done to try and facilitate two meetings back to back so that Sean's time is not wasted.

PN67

THE COMMISSIONER: He can maximise the people that you can get there.

PN68

MR WILSON: Yes, and also to have all our staff in that one room is very crowded and I think that's one of the other reasons they actually had it outside on a previous occasion. It will be very crowded.

PN69

THE COMMISSIONER: But if you have two meetings back to back it shouldn't be so crowded.

PN70

MR WILSON: Correct. We're happy, and in fact we would be delighted if they would move ahead quickly.

PN71

THE COMMISSIONER: All right. Ms Gunn.

PN72

MS GUNN: Other than our disappointment that the company won't consider allowing Sean to meet with our members employees during paid time, other than that disappointment we will accept 15 March in the tea room at those (indistinct) times to meet with - - -

PN73

THE COMMISSIONER: It appeared to me from what the company was saying that once the bargaining process got going and there were report back meetings that were scheduled following the discussions then when and how those meetings were held in order to provide access to the employees to the bargaining representatives is a different matter, is my understanding as to what the company was saying, that the report back meetings could be in paid time. But this is a meeting for Mr McCourt to meet with the union members to endorse the log of claims, that is my understanding is what is scheduled for next Monday. Once the bargaining process starts and you set out a time table you would put into that time table your report back meetings as well.

PN74

MS GUNN: Yes.

PN75

MR WILSON: Commissioner, I am also prepared to put on the table two p.m. next Wednesday for a first meeting of that consultative meeting if that is acceptable to the five representatives when the union and the four delegates meet.

PN76

THE COMMISSIONER: Perhaps Mr McCourt if you could get back to Mr Wilson to see if that two o'clock is fine for the union to attend and obviously the other bargaining representatives it's up to the company to release them to attend the meeting if they are employees off the floor. I think we might leave it there this morning but feel free to get in touch with me either of you if you feel that you need some assistance.

PN77

MR WILSON: Thank you.

PN78

MS GUNN: Thank you.

PN79

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