RE2014/43, Transcript of Proceedings [2015] FWCTrans 137 (23 March 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009                                                     1051512-1

                                                                                                                   

VICE PRESIDENT WATSON

RE2014/43

s.505 - Application to deal with a right of entry dispute
 
Aero-Care Flight Support Pty Limited
and 
Mr Mick Ehlert; Transport Workers' Union of Australia
(RE2014/43)

Melbourne

10.01 AM, TUESDAY, 3 MARCH 2015

PN1

THE VICE PRESIDENT: Any changes in appearances? It appears not. Ms Dan is not with you today?

PN2

MR MURDOCH: That's so, your Honour.

PN3

THE VICE PRESIDENT: Yes. Thank you, Mr Murdoch. Well, I have listed the matter for submissions as agreed and I've received the written outlines of the parties. But it's over to the parties to add any supplementary submissions they wish to. Mr Murdoch?

PN4

MR MURDOCH: Yes, Thank you, your Honour. Your Honour, it's not our intention to traverse the evidence which is largely in affidavit form, not is it our intention to traverse the arguments which have been submitted now in three outlines. But I make mention of the fact that the applicant has filed outlines dated 17 November 2014, 8 January 2015 and finally the outline of submissions which is dated 6 Feb 2015.

PN5

THE VICE PRESIDENT: It says your case has metamorphosed, undergone a metamorphosis from its original position.

PN6

MR MURDOCH: Your Honour, that's correct and these matters are dynamic. And it's to be noted that prior to our clients bringing the matter on for arbitration that it was initially before a member of the Commission and there was a process of conciliation which involves proceedings before the member and additionally, discussions and exchanges between the parties.

PN7

And some of the parties I refer exclusively to representatives of Mr Ehlert and also the union. So that it's to be emphasised that bringing the matter on for arbitration was not our first recourse. The first recourse was to endeavour, with some serious attempt, and with devotion of resources to try and get a solution and some accommodations at a party to party level. That process, regrettably, failed and we are here.

PN8

Now, so far as your Honour's comment about the case morphing as it's proceeded, there have, of course, been some significant developments, not the least of which was the fact that internally, the union took Mr Ehlert away from his earlier duties as the organisation for the Gold Coast Airport and the evidence was quite clear that he'd been removed from that area of responsibility and replaced with another official.

PN9

Now, it is not suggested that he would never have involvement with airports, but the suggestion was that he didn't have the primary responsibility for the Gold Coast airport. So that's probably a material and very good illustration of the way in which changing circumstances over time have an influence on the way in which cases such as this need to be conducted.

PN10

Your Honour, the hearings also enabled a process of crystallisation of the issues and when I refer to the issues, I refer to the key issues which appear to remain in dispute between the parties. And if I might refer your Honour to our February outline. We've endeavoured to summarise then in paragraph 3 and they, in our submission, were acknowledged by the union witnesses as matters that would remain as key areas of difference between the parties. And where the union witnesses acknowledged under cross-examination that they would also be assisted through attaining clarification in relation to the rights, duties and responsibilities of the respective parties in the context of airports in relation to those matters.

PN11

Your Honour, the first of the matters which we identify as a key issue is the failure to attend only during breaks of the applicants’ workers, specifically also in respect of Mr Ehlert seeking to exercise rights of entry early in the morning. Now, your Honour, while that refers to Mr Ehlert, that's not an issue which, as we understand the view of the union, was confined to Mr Ehlert. And what we're getting at there, your Honour, is the issue that our clients take with notifications being given that an entry is to occur at or before 5 am in the morning, in circumstances where their business activities commence at 5 am and there is no prospect of anyone having a break for some two hours after the proposed entry time.

PN12

So it was that question which triggered the chain of disputation between the parties. The other matter which developed as an issue when relationships between the parties became strained, was the union asserting that, having gained entry and having conversed with employees during breaks, that union officials are entitled to remain on the premises doing their own union work, working on their laptop etc, and waiting around until such time as there might be another break.

PN13

You will recall, your Honour, that that unfortunately led to the episode dealt with in the evidence where Federal Police were called to intervene in respect of Mr Ehlert declining to leave the lunchroom after the meal break was over.

PN14

There's also, your Honour, the matter of frequency of breaks and so far as frequency is concerned, I'd draw your attention to the way in which we've dealt with that in the earlier outline of 8 January and at paragraphs 35 to 39 we've summarised, as an example, the frequency of right of entry notices at the Gold Coast Airport. Paragraph 37, over a period of 14 weeks Mr Ehlert served nine right of entry notices on the applicant for the Gold Coast Airport resulting in entries or attempted entries on average once in every 10 or 11 days.

PN15

Now, your Honour, we acknowledge that since the proceedings have been in the commission, that there's been a break in that frequency pattern. However, our clients are apprehensive that since the union, through its witnesses, continued to assert that that level of frequency was reasonable, that conclusion of the current matter in the Commission is more likely than not to lead to that level of frequency being re-instituted.

PN16

The fourth of the areas that we've identified as key issues is that the Transport Workers' Union does not accept that an overlying occupier with additional legislator obligations can impose overriding conditions on a permit holder and this relates to the tension that has existed between our client, Mr Ehlert and the union since the Gold Coast Airport, through its officer, Mr Curtis, issued notices both to Mr Ehlert and our client in relation to the access to air site areas.

PN17

So far as that final key issue is concerned, your Honour, we emphasise that prior to the issue of the directive by Mr Curtis, it had been the practice of Aero-Care to escort union officials into the air site area to access the lunch room. The TWU officials concerned had an ASIC card and the matter became an issue of conflict between Aero-Care and the TWU post the issue of the directive by the Gold Coast Airport Corporation.

PN18

Your Honour, so far as the matters to be dealt with today are concerned, there are several features of the submissions which have been submitted on behalf of Mr Ehlert and the Transport Workers' Union that I wish to take you to for the purpose of answering them. Your Honour, in paragraph 23 of the most recent submissions from the union, there's a submission to the effect that an adverse inference should be drawn against our clients because we have not put into evidence schedules of flights for the Gold Coast or any other airport, the rosters for any of the dates Aero-Care maintains are in dispute or the timesheets for employees rostered on the relevant dates.

PN19

In our submission, your Honour, there was no need to provide that evidence because there was, in my submission, a strong body of unanswered evidence that the flight schedules - and I've used Gold Coast as an example - are highly predictable and whilst there may be short interruptions to schedules, the high degree of predictability remains constant.

PN20

There was also, in relation to the Gold Coast Airport, the uncontradicted evidence that the early morning operations which commence at five, are related to aircraft which have come in the evening before and which are at the coast and being prepared for departure at their scheduled times. In other words, there's no prospect of delay through late arrival of incoming aircraft. That's part of the operational cycle at the Gold Coast.

PN21

It's a daily occurrence and the evidence of our clients that the crews that start at five are engaged for at least the next two hours in the activities associated with those highly predicable activities. So that there is nothing, in our submission, which necessitated the need to establish what's already established on the evidence by means of providing schedules or rosters.

PN22

Your Honour, we don't of course, run away from the fact that in activities involved with the operation of aircraft, that from time to time there may be changes in schedules. But it's important, your Honour, to note the commitment which our client gave in the submission of 8 January 2015 and which is contained in paragraphs 25 through to 35, but particularly paragraph 32. And this is the part of that submission which deals with proximity to breaks.

PN23

Paragraph 32, we've said this:

PN24

The applicant is willing to provide an undertaking to notify the relevant representative of the second respondent upon the service of a valid right of entry notice of the likely allocation of meal breaks to its staff at the relevant airport for the day on which the right of entry notice is effective, in order to ensure relevant representatives of the second respondent to schedule their attendance at the airport shortly prior to the commencement of those meal breaks and to notify with all reasonable notice of any subsequent changes to that notified timing.

PN25

So that, your Honour, if there be a practical concern on behalf of the respondents in relation to the predictability of breaks, our clients have at all times been willing to observe the undertaking that they offer in paragraph 32. There is no need for officials to arrive at 5 am in the morning to enter and to wait around for two hours - two hours plus, for persons to commence having their breaks.

PN26

So, you know, in terms the submission that's made, that there should be an adverse inference through failure to provide schedules etc, there is no adverse inference because those documents are unlikely to have gone to any material matter in dispute.

PN27

In paragraph 24, your Honour, of the union's most recent submission, they say:

PN28

Resource allocation for a particular day is not a matter that could be known by the Transport Workers' Union.

PN29

Again, I emphasise the undertaking offered by our clients contained in paragraph 32 of the January submission, that being the undertaking that I read out a couple of minutes ago.

PN30

Your Honour, there's also, in the union's submission at paragraph 25, a particular submission related to the union's erroneous interpretation of the legislative reference to paid breaks or other breaks. The gist of the union's submission appears to be that other breaks encompasses periods in which employees are - of work time, in which there may be some inactivity in respect of their physical work.

PN31

Now, the union appeared to assert that other breaks encompasses periods where there may be inactivity in relation to physical duties. We strongly submit that that is an error. Now, so far as the legislation is concerned, the relevant provision, of course, is section 490. Your Honour, subsection (1) provides that:

PN32

The permit holder may exercise a right only during working hours.

PN33

But then subsection (2) provides that:

PN34

The permit holder may hold discussions, under section 484 only during meal times or other breaks.

PN35

Your Honour, in our submission, the word "other" is relevant to ascertaining the proper construction of that language. The word "other" invokes the orthodox statutory interpretation tests, particularly Joost and Generis(?), so that in our submission, the other breaks category has to be of the same genus as meal times. The characteristic, your Honour, of meal times is that during meal times employees have the right to occupy themselves according to their own wishes and desires.

PN36

In other words, during meal times, employees are free to partake in food, refreshment, to play cards, to talk, make phones calls of a private nature, etc. During meal times they're free from the directions and the requirements to perform dugites at the behest of the employer. Now, that's in total contrast from the situation of these periods of inactivity, that the union would wish to assert are captured by the phrase "other breaks".

PN37

The important thing here, your Honour, is that whilst there may be periods where a crew are sitting on an Aero‑Care vehicle watching a flight taxi in, they're in a baggage room waiting for bags to come on to a conveyer belt, etc, etc, yes there may be interludes of freedom from physical activity, but nevertheless, during those interludes where there's no physical activity, they are on paid time and in the truest sense, they are in the employer's time. And the employer is totally free and within the employer's rights, to give them directions to perform duties, whether they be direct operational duties or whether they be educational duties such as, in the case of this employer, performing puzzles(?).

PN38

So that our submission is that where there's a reference to "other breaks", that that reference is in the legislation to pick up those types of breaks that are known in industrial and indeed, in community circles as "tea breaks, smoko breaks, rest pauses" etc, where there is an industrial recognition that employees in many industries and callings have the entitlement, apart from a meal break, to a break such as a tea break or a rest pause etc.

PN39

We strongly submit that "other breaks" cannot have been intended by the legislature to encompass periods in which employees had a few minutes, or indeed more than a few minutes, of physical activity because of the ebb and flow of the operations that they're employed to undertake.

PN40

Your Honour, there's also a submission in paragraph 35 of the most recent submission from the union, and it advances the proposition that "other breaks" includes before and after shift, when workers are not working and are on a break between shifts. Your Honour, it's perhaps true that if workers are involved in split shift type of rosters, such as a bus driver or some activity like that, that one could stretch the language to say that the period between the two splits of the shift was a break. But in our submission, it strains the language to suggest that time prior to commencement of work or time after the cessation of a day's shift, is to be regarded as another break.

PN41

Your Honour, the other matter, of course, which becomes relevant there is that particularly in relation to the early mornings, notifications for entry at 5 am or earlier also run foul of section 490(1)because the permit holder may exercise a right only during working hours. So that - and particularly in relation to the assertion that there's a right to come prior to the start of the day's work, for the purpose of holding discussion. In our submission, that argument is unsustainable.

PN42

Your Honour, we also wanted to refer you to the union's submission at paragraph 117 and 118. These are matters that deal with the air side, land side divide, as the union call it. And our submissions in answer to what the unions assert in this respect, need to be seen in the context of what I said to you earlier. Namely that the air side, land side issue is not the prime issue between the parties, but it is an important consequential issue. Consequential because it flows from the fact that our client operates in an airport security environment and is subject to the legal obligations which are imposed on it, both by Federal law and also pursuant to Federal law by the Gold Coast Airport Authority and the other authorities that issue airports.

PN43

If we look at paragraph 117 of the union's submission, it's submitted that the air side, land side divide is one that relates to issues of airport security rather than occupational health and safety. Now, what that seems to be getting at is that there's a recognition by the union that under section 491 of the Act:

PN44

A permit holder must comply with the reasonable request by the occupier of the premises, to comply with an occupational health and safety requirement that applies to the premises.

PN45

The union, somewhat artificially, endeavour to make occupational health and safety and security mutually exclusive concepts. That, of course, is a folly because in our submission, airport security is directed toward the preservation of the safety of persons and property in the precincts of the airport and, indeed, aircraft passengers and crew. But that need to secure and protect extends, of course, to employees at the airport and indeed, employees that were involved in air crews. So that airport security, in our submission, is inextricably intertwined with the occupational health and safety of persons employed at and about the airport.

PN46

We forcefully submit that the obligations under section 491 of the Act require the permit holder to be compliant with the security arrangements which are in place and which are sought to be enforced by the occupiers at the relevant airport.

PN47

Your Honour, I use the term "occupiers" in the plural because it's to be noted that under section 491, that the concern is with the reasonable request by the operator of the premises. In our submission, so far as the Gold Coast Airport is concerned, this is a classic case where there is more than one occupier. Certainly the Airport Corporation is an occupier, but in our submission so too is Aero-Care. So that it matters not at all whether security directives emanate from the Airport Corporation or they emanate from our client or our client is involved in implementing a directive which comes from the airport owner.

PN48

In that respect, your Honour, I point out that under section 12 of the Fair Work Act, the definition of occupier of premises reads like this:

PN49

Occupier of premises includes the person in charge of the premises.

PN50

So that, your Honour, requires attention to be given to the word “includes” and the key phrase is “person in charge of the premises,” but, in our submission, the reference to a person singular doesn’t exclude the situation recognised at common law, that there may be more than one occupier of a particular premises.

PN51

Coming back to the flawed submission of the union that I’ve been answering, the attempt on the part of the union to exclude from occupational health and safety security directives and security-based flaws is, in my submission, quite flawed. Also, your Honour, in that paragraph 117, the union go on and say:

PN52

In any event, the evidence concerning the realities of the dangers posed to a permit holder, and by a permit holder in walking 50 steps or 50 metres to a meal room under escort, should be enough to dismiss any notion that it is a reasonable request that the permit holder comply with the requirement that he or she not enter an entire part of the building as there would be no sense of proportionality between the occupational health and safety risks and the request.

PN53

So far as those matters going to proportionality are concerned, your Honour, could I refer you back to our January outline because in that from paragraph 3 through to, and including, paragraph 28, we've dealt extensively with the relevant Aviation Transport Security Act provisions and the Transport Security Regulations made under that Act. We've also dealt with the purposes of the legislation, including the purposes for establish airside security zones that include controlling the movement of people within airside areas and restricting access to airside security zones within airside areas.

PN54

We've also, your Honour, dealt with the steps that the Gold Coast Airport has put in place, and this is paragraph 24 of our January submission, the publication by the Gold Coast Airport of Airport Security and Emergency Awareness Guide. We've given the online reference to that and we've noted in paragraph 26 that the baggage area at the Gold Coast Airport is an airside area which is also a security restricted area or SRA.

PN55

So, your Honour, it’s not a matter, with respect, of the union submitting that issues of proportionality arise. It’s not a matter of suggesting that they only have to walk 50 metres to a meal room. The reality is that there is aviation security legislation. The reality is that there are local rules and regulations which have been imposed pursuant to the aviation security legislation and there are obligations which our clients are obliged to comply with.

PN56

So when one comes to examine whether requirements are reasonable, reasonableness has to be tested against the particular circumstances of the case and this case is involved entirely with airports and entirely with workplaces where they're inescapably caught up in the web of Federal safety laws and the consequential regulations put in place by the airport owner operators. So what might be reasonable at a freight terminal in an industrial area on the fringe of a city is not indicative of what’s reasonable in the context of this very special suite of circumstances that prevails at an airport.

PN57

The union’s submission at paragraph 118 goes on and says:

PN58

Further, a request –

PN59

and I think there’s an error here it says “not to refrain” but I think it means –

PN60

further, a request to refrain from entering all airside areas has practical consequences of greatly reducing the likelihood of discussion occurring with ground staff who take their breaks in the airside baggage handlers’ meal room. A request which hinders or impedes or frustrates a statutory right of entry may be considered a request that is not reasonable.

PN61

Your Honour, it’s a matter of balance and I reiterate what I’ve said about the implications of the Federal airport security laws and the consequences for our client as an occupier of spaces within such a premises. Your Honour, somewhat related to the union’s submissions as to the lack of reasonableness when it comes to our client’s obligation to observe the restrictions that apply to particular areas are the submissions that the union make which are resistant to the system of inductions which are put in place by our clients.

PN62

Quite a bit of the union’s submission adopts a sadly mocking tone which seeks to trivialise the inductions that have been put in place. For example, in paragraph 96 of their submission, they say:

PN63

There are tea and coffee making facilities, but possibly not a microwave oven. The induction training does not canvass the danger posed by users of the tea and coffee making facilities.

PN64

But if we look back at paragraph 89 we see what appears to be the serious theme of the union position on inductions in that they say in paragraph 89:

PN65

There is no dispute about the right of the applicant to require an induction on each occasion.

PN66

But then they say:

PN67

What is disputed is the necessity to require an induction on each occasion.

PN68

In our submission, your Honour, you would accept the evidence given on behalf of our clients that because of the particular security levels that pertain at airports where there are heightened levels of alertness, the potential for daily events which may have a bearing on the way the airport operates that our client has a policy that where persons other than their own staff need to come into Aero‑Care occupied areas that there should be an induction.

PN69

Your Honour, we forcefully contend that it was eminently reasonable that there be an induction and that it be done on the occasion of each visit. The fact that a union official might hold an ASIC card, in our submission, is not a feature that provides any basis for excluding that person from the need to undertake an induction. The evidence is that the ASIC card is personally an identification and also a confirmation that there’s been a security check on the individual person.

PN70

It isn't an indication that the person is knowledgeable of or equipped with the level of local events which dispenses with the need for an induction.

PN71

THE VICE PRESIDENT: Mr Murdoch, is there any evidence as to the length of the induction commonly conducted for people who might come from time to time, non-employees?

PN72

MR MURDOCH: Your Honour, there is. Before I sit down, I'll try to find it. I think it’s in the evidence of one of the witnesses from the Gold Coast.

PN73

THE VICE PRESIDENT: Yes, thank you.

PN74

MR MURDOCH: It’s in Ms McNamara’s. Your Honour, just rounding off on this matter of inductions, paragraph 90, the union also take issue with the argument which we've advanced that the issuing of notices and the attempt to enter at 5 am or earlier is a hindrance and an inconvenience to our clients because of the fact that the senior managers don’t start work at those times and they need to be specifically brought in for the purpose of conducting inductions.

PN75

The union answer to that in paragraph 90 is to say:

PN76

If it is inconvenience, that could be mitigated by asking inductions to lower level employees.

PN77

Your Honour, our submission is that it’s for the employer involved as an occupier to determine at which level of the organisation such inductions should be conducted. Your Honour, there are some other matters raised in the union submission that I propose to go to. In paragraph 119 of their submissions, the union refer quite briefly to the Aviation Transport Security Act and the Aviation Transport Security Regulations. I reiterate that we've dealt with the legislative provisions at length in the January submission, but the union place considerable weight on regulation 3.15 sub (iii) which they quote in paragraph 119 of their submission.

PN78

The thrust of the submission as developed in paragraph 120 seems to be that it’s said that the union officials, such as Mr Ehlert are authorised – persons who are authorised to go into particular airside access areas and they then say that by displaying a valid ASIC or an alternative form of ID that, in effect, it gives them an unfettered right to enter. In our submission, that puts quite a strained interpretation on the word “authorised”. Authorised, I’d submit, clearly connotes that there’s been authority conferred by an entity which has the right to provide an authorisation pursuant to either the Aviation Transport Security Act or by the Aviation Transport Security Regulation.

PN79

In our submission, to tangentially say that because a person has issued a right of entry notice under the Fair Work Act, that provides them with authority is to quite unduly and impermissibly strain the language of the regulation. Your Honour, at paragraph 129 of the union’s submission, in the last sentence of that paragraph the union say:

PN80

The effort taken by Mr Keeley to spy on Mr Ehlert during this time is not an inconvenience that may be taken into consideration because it is incapable of founding a dispute as to the operation of part 3-4.

PN81

That observation related to the evidence which was provided through Mr Keeley as to Mr Ehlert being observed out on the airport tarmac and within the circle of safety. The suggestion that Mr Keeley was spying on Ehlert is an observation which is, in our submission, inappropriate. I’d submit that it’s manifest that in the context of aviation security, aviation and airport safety, security and safety is everyone’s business and an observation that was made of a person in a critical operation area such as the circle of safety with no apparent reason to be there is a matter which, in our submission, justified observation and justified reporting to the operator of the airport. The suggestion by the union that that was spying on Mr Ehlert is a sad indication that it would appear that the union don’t take seriously their level of security and safety which is essential in contemporary circumstances to the operation of an airport.

PN82

Your Honour, that particular submission was made in a tranche of the union’s submission that commences at paragraph 122 and is under the heading of what’s styled irrelevant evidence. Wrapped up in the events which are said to be irrelevant are the activities of Ms Stewart at Perth Airport on 23 October; the 4 November 2014 episode at the Gold Coast Airport where multiple representatives of the union arrived and demonstrated in the public area and, of course, the activities of Mr Ehlert on 24 September.

PN83

Your Honour, true it is that none of those matters were in any way purported exercises of right of entry. However, they are relevant to the present matter because what they demonstrate is that there is a need to do whatever can be done through an arbitration to settle the points of difference between the parties that do relate to right of entries. The reason for that is simply that it’s manifest from the other activities that the union describe as irrelevant evidence that there is a broad-based campaign on behalf of the Transport Workers Union directed at Aero‑Care and its employees. The fact that the campaign is broad-based and ongoing would suggest that there is likely to be ongoing tension in relation to right of entry differences between the parties unless through this arbitration the matters of difference are able to be clarified.

PN84

Your Honour, going back to your earlier query, in the affidavit of Emma Jane McNamara, which was dated 23 October 2014, at paragraphs 10 and 11 - your Honour, you'll see at paragraph 10 that on 18 June 2014, Mr Ehlert arrived at Aero‑Care’s premises at approximately 9.30 am and she says she took him through the site induction and then in paragraph 11 at approximately 9.40, she escorted Mr Ehlert to the airside area. So that’s a practical example where the induction took 10 minutes. That was an induction that was carried out by Ms McNamara, who’s the manager of airport services at the Gold Coast Airport. Your Honour, it’s, in our submission, not an unreasonable basis of induction.

PN85

Your Honour, just to round off on a couple of other matters that might be of assistance, I’ve mentioned in earlier submissions the definition of occupier in section 12 of the Act, and it’s to be noted that a word search of the Fair Work Act using the term “occupier” suggests that apart from the definition in section 12 and the power of inspectors under section 708, the term “occupier” appears only in the span of provisions from section 480 to section 521D of the Fair Work Act and that, of course, is the span of provisions dealing with right of entry in part 3-4 of the Fair Work Act.

PN86

Consequently, it seems that occupier is only defined in section 12 for the purpose of the right of entry provisions pertaining to union officials and inspectors. There’s nothing in the Fair Work Act explanatory memorandum for part 3-4 of the bill, which deals specifically with what was intended by parliament in its use of the word “occupier”. There’s nothing in the explanatory memorandum for section 12 of the Fair Work Bill which provides a guide as to what was intended.

PN87

So far as the ordinary meaning of the term “occupier” was concerned, its ordinary meaning would suggest in dictionary definitions is usually expressed in terms like this:

PN88

A person in possession of land or buildings as owner, tenant or trespasser. If he is a trespasser, he may obtain a right to lawful occupation if the owner accepts money for him as rent, in which case a tenancy may be created, or through adverse possession for a sufficient period.

PN89

There’s a recent case, your Honour, Australian Meat Industry Employees Union v Fair Work Act in the Full Federal Court on 8 June 2012, but that appeal from your Honour’s decision didn't provide any specific commentary on who was an occupier. But there is in that case some analysis of competing tensions between occupiers and permit holders.

PN90

We note the case because at paragraph 47 the Full Court observed that the right of entry provisions in the legislation is a statutory right which diminishes the common law rights of an occupier. Your Honour, paragraphs 50 to 88 of that Federal Court decision provide an analysis of when the conduct of an occupier in making a request is reasonable, but regrettably the court said nothing to define with any particularity the term “occupier”.

PN91

THE VICE PRESIDENT: What’s the name of that case, Mr Murdoch?

PN92

MR MURDOCH: Australian Meat Industry Employees Union v Fair Work Act [2012] FCAFC 85, 8 June 2012.

PN93

THE VICE PRESIDENT: Yes.

PN94

MR MURDOCH: Your Honour, I'll mention briefly a couple of other cases. The South Australian Supreme Court case Permanent Trustee Australia Ltd v Valeondis, a decision of Bleby J. The relevant paragraphs are 11 to 14. It provides confirmation we’d suggest of the common law provision that there can be at common law more than one occupier of a particular premises.

PN95

There’s also, your Honour, a High Court decision in Jones v Bartlett 205 CLR at page 165. I’d refer your Honour to paragraph 45 and also to paragraphs 149 to 152. The High Court in that case also appeared to accept that at common law there can be more than one occupier. Your Honour, in referring to those common law cases, though, I'm sensitive to the fact that there is a definition of occupier in the Fair Work Act and emphasise, as I did earlier, that the definition uses the word “includes” which tends to suggest, in our submission, that one needs to look at the purpose of the right of entry provisions in the Fair Work Act to reach the proper construction of the term “occupier” because so much of the thrust of the right of entry provisions in the Fair Work Act is directed at endeavouring to get a balance between the rights of employers and the rights of union officials seeking access.

PN96

But perhaps unhelpfully the notion of occupier is intertwined into this process so that it would appear that the legislature was endeavouring to strike a balance between unions seeking access on the one hand and on the other hand, occupiers, but plainly, we’d suggest doing so where the legislature envisaged that employers would normally be occupiers because unless one gives an expanded interpretation of occupier, there would be no balance in our submission, no balance in the legislative scheme between the rights of employers and the rights of unions.

PN97

Your Honour, I should also refer you to a recent decision of the Full Bench of the Fair Work Commission in Construction Forestry Mining and Energy Union v Bechtel Construction, 18 February 2015. It related to a circumstance where there was an appeal against an order of a single member of the Commission. The order had imposed certain restrictions in relation to right of entry permits and that had been done as part of an arbitration into a right of entry dispute between the CFMEU and the employer.

PN98

To summarise the case, it related to whether the suspension of permits was an appropriate order on the arbitration or whether the suspension of permits was a sanction related to past conduct as distinct from a means of dealing with the current dispute. The circumstances, your Honour, are different from those that present in the present matter and they're different because in the present matter our clients assert that there are live issues current between the parties and, as I’ve submitted earlier, the witnesses for the union accepted that there were live issues which needed to be dealt with and solved.

PN99

Your Honour, the relevant paragraphs are paragraphs 33 and 34 of the Full Bench decision. The conclusion in the particular case is summarised in a few lines. At paragraph 34 the Full Bench said:

PN100

There are circumstances in which an order suspending a permit will be appropriate to deal with an ongoing dispute. It is not necessary to exhaustively deal with the situations that such an order might be suitable, but it is sufficient to note that a suspension order could be appropriate in a situation where a finding is made that it is likely that the permit holder will repeat the behaviour that gave rise to the dispute unless the permit is suspended.

PN101

In the early paragraph, 33, in about the eighth line, the Full Bench said:

PN102

In respect that case what is not clear, however, is the nexus between that past conduct, the ongoing dispute between the parties and the way in which a suspension would deal with the dispute.

PN103

Your Honour, apart from that, there’s a high level discussion that may be of some assistance in relation to what the Full Bench accepted was capable of giving rise to a dispute that was susceptible to arbitration in relation to matters pertaining to differences over right of entry. Your Honour, otherwise we rely on the materials that we've set forth in the evidence presented on behalf of our client and also in the three written submissions.

PN104

THE VICE PRESIDENT: Can I just clarify something with you, Mr Murdoch? Paragraph 6 of the most recent submissions, you say that the appropriate course is for the Commission to make findings as to the appropriate interpretation and application of the provisions? Then the parties will be able to make submissions on what specific orders might be appropriate. The submissions refer to interpretation issues, primarily by reference to a decision of Gostencnik DP in Austral Bricks.

PN105

MR MURDOCH: Yes, your Honour.

PN106

THE VICE PRESIDENT: I don’t apprehend that there’s any disagreement in your submissions as to those principles.

PN107

MR MURDOCH: That's so, your Honour.

PN108

THE VICE PRESIDENT: And construction.

PN109

MR MURDOCH: That's so.

PN110

THE VICE PRESIDENT: Why are you asking me to go beyond that interpretative task or is it simply to indicate whether I agree with the Deputy President’s analysis? I assume it is to go beyond that in relation to the matters raised in this case and the key issues you've identified in paragraph 3.

PN111

MR MURDOCH: Yes, it is, your Honour.

PN112

THE VICE PRESIDENT: Is that how I should understand it? You say that applying the principles of interpretation adopted by Gostencnik DP, essentially, and other cases, I should address the key issues identified in paragraph 3 and indicate the appropriate way in which those legislative provisions are interpreted and applied in relation to those matters and then to hear further from the parties in relation to the specific orders.

PN113

MR MURDOCH: Your Honour, what you've said correctly summarises our position, but let me enlarge just a little. I’ve emphasised that considerable resources were put into the conciliation at the negotiations that preceded this and without divulging the particular things that were said during the negotiations, parties have wound up in arbitration because they couldn't bridge the gap on key issues.

PN114

It had always been our desire that if we could get clarity on those particular issues, that the parties may have been able to develop then some operational protocols so that it would be, in our submission, a task worth undertaking. If we get clarity on those issues for the parties to, at the very least, have another attempt at developing some protocols.

PN115

There was a history of that, your Honour, in a limited sense. There had been a minor – when I say “minor” an isolated episode in early 2014 at the Brisbane Airport related to a particular right of entry dispute. That matter came before Asbury DP and was resolved in conciliation through establishing some particular protocols for a particular situation that had arisen there.

PN116

It’s not as if these matters can’t be solved through protocols, but this is an instance where the parties couldn't themselves get there, that they may be able to get there if they get clarity on the issues. I'm sorry if I’ve been long winded about that, your Honour, but that’s where we want this to go because going forward, our clients believe they’ve got a future in the industry and they're not silly enough to suggest that the Transport Workers Union won’t be there in the long time so there will be right of entry situations. They need to be managed, but they need to be managed according to the law.

PN117

THE VICE PRESIDENT: The TWU doesn't appear to share the objective of developing operational protocols by way of this application because they say the application should be dismissed or maybe the reasons for dismissal would then become a basis for development of protocols.

PN118

MR MURDOCH: Your Honour, our strong submission is that if the application doesn't assist the parties to get clarity on those key issues that it simply reverts to a situation where there’s ongoing conflict and discord between the parties. The arbitration has been the means that we've sought to utilise to get some sensible clarity in relation to those key issues and we’re apprehensive that without clarity that we'll simply have ongoing issues between the parties, not just at the cross‑examining but at the other airports around Australia where Aero‑Care have employees.

PN119

So, your Honour, it’s a matter of considerable importance industrially, we’d contend that through this arbitration the parties be given a high measure of certainty. The other aspect of this, of course, your Honour, is as we've emphasised, the parties are in conflict in a particularly sensitive area of industry and if ever there were a case to get some clarity, it is in this high security, high potentially safety risk area of aviation.

PN120

Your Honour, we would urge the Commission to endeavour to provide a way forward for the future which is not a way forward that’s beset with difficulties and the issues which have beset the parties over the last 12 months.

PN121

THE VICE PRESIDENT: Yes, thank you, Mr Murdoch. I will mark your latest outline of submissions exhibit M18.

EXHIBIT #M18 OUTLINE OF SUBMISSIONS FOR MR MURDOCH QC

PN122

THE VICE PRESIDENT: And I'll mark the TWU’s outline of submissions exhibit R10.

EXHIBIT #R10 TWU'S OUTLINE OF SUBMISSIONS

PN123

THE VICE PRESIDENT: Mr Rebetzke.

PN124

MR REBETZKE: Thank you, your Honour. Of course, I rely upon the submissions which have now been marked as exhibit R10. I also rely upon the earlier submissions which were filed, dated 17 December 2014. There are a number of interpretations which are sought by the applicant, one of which is – if I understand these submissions correctly – that it’s urged upon the Commission that your Honour would interpret the law to find that there is an implied restraint that entry can only be at times reasonably proximate to breaks and, in particular, the applicant urges the Commission to restrict the relevant breaks to those that are referred to in the Aero‑Care Collective Agreement.

PN125

The difficulty is that that – even if your Honour were to agree with that interpretation, and I strongly urge your Honour that ultimately you would not reach that interpretation and I'll come to that in a moment, but even if your Honour were to make that observation, that would not give a level of clarity or any measure of clarity in the particular factual circumstances in this case because it still leaves open the question of what is reasonable, how long is reasonably proximate and of course there are particular factual issues related to this workplace relating to workplace flexibility, such as staggered shift starts and staggered meal times, as well as the issue of downtime and the breaks that my learned friend urges the Commission to exclude from the ambit of the phrase “or other breaks”.

PN126

An observation by your Honour that an implied constraint is that entry can only be at times reasonably proximate to breaks doesn't really assist in the grand scheme of things. But can I develop at this stage why your Honour should not make that observation in the first place. It is perhaps the one point with which the respondents disagree with Gostencnik DP in the Austral Bricks case. However, the Deputy President did not purport to determine the point. It’s an observation he makes at paragraph 29 of the decision. I can hand to your Honour a copy of Austral Bricks.

PN127

THE VICE PRESIDENT: I have a copy.

PN128

MR REBETZKE: Thank you, your Honour. I might take this opportunity - your Honour, I do have a bundle of decisions which are referred to in my written outline, should they be of assistance at some stage. I don’t propose to take your Honour through them at length today, but for the sake of completeness.

PN129

THE VICE PRESIDENT: Yes.

PN130

MR REBETZKE: There are a number of observations made at paragraph 29 of Austral Bricks, most of which are reasonably uncontroversial and supported by authority. The part of the paragraph that is in dispute is that part that starts:

PN131

Another implied constraint might be that entry under section 484 is only authorised at times that are approximate to meal times or other breaks since discussions with employees are only permitted during those times or breaks. This would be consistent with the view that the right of entry conferred on a permit holder by section 484 should not be construed as giving any greater right than that which is necessary to achieve the statutory purpose, namely, to permit a permit holder to hold discussions with particular employees during their meal time or other breaks. However, it is unnecessary for present purposes to determine whether this is correct.

PN132

I apprehend that the applicants’ case really intends to stretch the boundaries and have your Honour reconsider that point and determine whether that statement is correct. The Deputy President helpfully sets out a passage at paragraph 24 of the decision from J J Richardson and Sons v Fair Work Act [2012] 201 FCR at 297 where Flick J sets out three long established and fundamental principles to statutory construction, the first being the so-called golden rule is that you may only intervene, I guess, to avoid absurdity and inconsistency, but no farther. So there’s a break upon interfering with the ordinary sense of words.

PN133

The second rule that’s discussed by Flick J is that it’s a strong thing to read into an Act of parliament words which are not there and in the absence of clear necessity, it’s the wrong thing to do and the third being the purpose. In my submission, there is no clear necessity to read into the Act additional words that the right of entry is constrained insofar as it can only be exercised at times reasonably proximate to breaks, whatever the term meal times or other breaks means.

PN134

It’s not necessary because the language of the statute already provides a constraint upon the exercise of the right and that is that the exercise of right must be for one of the purposes set out in section 484, but it’s for the purposes of holding discussions with one or more employees or TCF award workers:

PN135

(a) who perform work on the premises; (b) whose industrial interests the permit holder’s organisation is entitled to represent; and (c) who wish to participate in those discussions.

PN136

There was, of course, in the earlier version of this provision prior to the Fair Work Act the additional requirement that not only must the union’s eligibility rule be able to cover the employees, but there is the additional requirement that employees must be on premises that were covered by an industrial agreement to which the union was a party and that is now absent from the Act.

PN137

The question of whether the objective presence or otherwise of particular classes of employees as set out in the predecessor of section 484 was the subject of some litigation in a series of cases involving the Construction Forestry Mining and Energy Union v John Holland Pty Ltd. Your Honour, if I hand to you a full Federal Court decision of the CFMEU v John Holland [2010] 186 FCR at page 88, a decision of Spender, Dowsett and Logan JJ and a decision which followed the Full Court’s decision when the Full Court remitted some questions to a single judge in John Holland v CFMEU [2011] 195 FCR at page 280. That's a decision of Greenwood J.

PN138

Taking the Full Court decision first, your Honour, you'll see that the facts involved a permit holder who was unsuccessfully prevented from entering a work site. There was a finding that objectively the permit holder’s union did not have eligible employees at the site and a finding at first instance that the permit holder had contravened the Act by hindering the member of management who took it upon himself to follow the permit holder around the site.

PN139

There are some obiter observations in the judgments of the Full Court about whether a member of management following someone around could constitute hindering, but the real point of the decision is that the majority, that is Spender and Dowsett JJ, both held that the relevant question under section 760, which is the predecessor to section 484 of the current Act – the relevant question was whether the permit holder had the prescribed purpose. That can be found in the judgment of Spender J at paragraph 8. So the question isn't whether objectively there were eligible employees on site. The question is did the permit holder have the prescribed purpose and one can readily see the parallels between the situation in the John Holland decision and the present instance where it is suggested that as a matter of fact, employees are not on a meal break.

PN140

In fact, I digress and say the evidence of the applicant never went that high. The evidence of the applicant was that there was a high predictability that there would be no employee on a meal break at a particular time or times, but there was never any evidence led that on the relevant days there were no employees on any particular type of break. Your Honour will recall that I practically dared the applicant to tender the rosters and other relevant information and they didn't materialise. Indeed, your Honour can draw an inference that that material would not have assisted.

PN141

Of course, there was also the evidence that the meal breaks, the ones that are provided for under the collective agreement, were not meal breaks that were rostered in advance of time or scheduled in advance, but they were ones that were allocated during the course of the shift and we had no evidence from the supervisors whose duty it was to allocate the meal breaks during the shift. So no evidence from the supervisors in respect of the relevant shifts and more than that, we had concessions in cross‑examination from the managers that at the times they were dealing with Mr Ehlert, they hadn’t made contemporaneous inquiries with the supervisor or supervisors as to whether employees were on breaks.

PN142

The evidence never went so far as to establish that objectively there were no employees on breaks on those relevant dates. Even if the evidence did go that high to show that there were no employees objectively on breaks, and I'll come to the definition of all “other breaks” in a little while, that’s not the correct text according to CFMEU v John Holland. The correct test always comes back to: did the permit holder have the prescribed purpose.

PN143

The relevant passage on Dowsett J’s reasons can be found at page 97 of the Federal Court Report at paragraph 39. His Honour says:

PN144

Authorisation of entry pursuant to section 760 is not dependent upon satisfying that criteria.

PN145

So he’s referring to the objective criteria, whether there are eligible employees on site, and one can interpret in this present case you could read, “Not satisfied on satisfying that there are workers on a break”:

PN146

The permit holder must, rather, satisfy the requirement that he or she have the required purpose, establishment of or challenge to the existence of such purpose may involve examination of whether there was an adequate factual basis for having the prescribed purpose. If, for example, the permit holder did not have some basis for a belief that there were eligible employees on the premises then it may be difficult to conclude that he or she had the purpose of entering into discussions with people fighting that description. His or her purpose may rather have been to discuss whether there were such people on the premises. Of course, a person may have more than one purpose. Authorisation pursuant to section 760 is not dependent upon the permit holder having reasonable grounds for a particular belief.

PN147

What can be distilled from CFMEU v John Holland is that the question always comes down to: what was the purpose. That's a question of fact as to whether the permit holder had a basis, an adequate factual basis, for holding the prescribed purpose. There doesn't seem to be any serious challenge in the present case that Mr Ehlert did not hold the purpose of entering for the purpose of holding discussions with relevant employees.

PN148

There is some suggestion that his purpose may have changed because he asked for a tour on the tarmac and I have dealt with that in the written submissions. I say that doesn't change the purpose for which he entered; the fact that he says, “Can I go down with you and have a look at the workers working on the tarmac?” and that’s because if they allowed him to do that, he’d be an invitee. It’s also suggested that his purpose might change because he used his telephone – I think that was put to Mr Pfund when he was being cross‑examined – or using a laptop to do union work while waiting for employees who were on a break.

PN149

The observation by Dowsett J at paragraph 39 that a person may have one purpose is of course apposite. As a matter of fact, I submit that there’s insufficient basis to conclude that Mr Ehlert or Mr Pfunds or any of the other permit holders’ purpose changed because of any of the matters that are complained of. It’s not a sole purpose test and the law is not particularly favourable to implying a sole purpose test in Australia, take for example, the High Court’s position in respect of legal professional privilege where it was once a sole purpose test, but it is no longer. But there’s no basis for reading into section 484 of the Fair Work Act that the purpose for remaining on premises must be for the sole purpose of holding discussions.

PN150

The question remains whether the permit holder still holds the purpose of having discussions and the evidence is that Mr Ehlert remained because he thought that there would be further people on a break. If that were not the case, one would have expected the provision of the rosters and the flight schedules and so forth because we’re talking in terms of the rights of entry that were exercised by Mr Ehlert - we’re talking about entries that are in the morning.

PN151

We've heard a lot about very early morning entries, but when one looks at the times at which entry was gained and I’ve set out a table or a chronology in my outline at page 21. Your Honour will see, with the exception of 9 July when entry was gained at 12.55 in the afternoon for two hours and 15 minutes, all of the entries were in the morning in the context of working hours starting at somewhere around 5 am going through to 11 pm at night with the last flight.

PN152

There can’t be any reasonable implication that there wouldn't be employees or that Mr Ehlert would have formed the view or, rather, would not have any basis for a belief that there would be further breaks taken during the course of the day after he had entered at those times.

PN153

Your Honour, in the follow up decision of Greenwood J, the relevant passage that I’d take your Honour to is at page 308 of the Federal Court Report, commencing at paragraph 141 and 142. That seems to go even a little bit further than the previous decision. Of course, that’s not to say in the present case that having gained entry subjectively that there would be relevant employees with whom discussions could be had, but a permit holder could have discussions at times that were outside meal times or other breaks. That's dealt with specifically in the legislative scheme.

PN154

Insofar as section 490 makes the distinction between exercising a right of entry, subparagraph (1), and that right is to be exercised only during working hours and the distinction is between that right and subparagraph (2) which directs permit holders that they can only hold discussions during meal times or other breaks, the consequence then of holding discussions with employees at times other than meal breaks or other breaks is that section 486 comes into play, which specifically refers to authority to enter or remain on premises.

PN155

So, arguably, if the permit holder gains entry and holds discussions at the time outside of meal times or other breaks then the authority to remain is revoked by operation of section 486, but the corollary isn't true that if a permit holder enters and doesn't hold discussions there’s no mechanism to revoke the right of entry unless the purpose for the right of entry is absent.

PN156

That is a real constraint because if the finder of fact finds that there is no basis for holding that purpose then the permit holder will in fact be a trespasser and potentially under the terms of the safety legislation, so the airport safety legislation, they might be more than a mere trespasser at common law.

PN157

It’s not necessary to imply a constraint regarding the time at which the right may be exercised. To do so would be contrary to the scheme set out in part 3-4, which makes the distinction between entry and discussions. It’s contrary to the scheme which provides for entry with notice on a particular day not a particular time of day and, of course, if the legislature had wanted to restrict the time at which entry could be made during the day, it could have done so in express language and, indeed, did so insofar as restricting that to working hours.

PN158

An implied constraint as proposed would be both contrary to the legislative scheme and unnecessary and for those reasons it should not be implied. There’s particular issues relating to practicality of making such an observation, which I have set out in my written submissions at paragraph 9 subparagraphs (f), (g) and (h). I’ve dealt with (f) and (g) already about the particular challenges of the flexible work arrangements at this work site, but I haven't dealt with (h) yet and that is the fact that it does appear that Aero‑Care doesn't have the exclusive occupation of its premises and one needs to be cognisant of the fact that there are employees of other employers who may fall within the definition of meal times or other breaks and, indeed, there seemed to be some evidence regarding employees of Oceania and I think the other one was called AGH.

PN159

The right of entry provisions with respect to discussions can be distinguished with the right of entry provisions in relation to – if I can call them – investigative purposes and that’s section 487 subparagraph (1) where the requirement to give an entry notice is – in the case of investigative entries or work occupational health and safety entries, et cetera, there has to be a notice given, both to the occupier of the premises, and any affected employer and in subparagraph (b) your Honour will see in respect of holding discussions, it’s only the occupier of the premises that gets the entry notice.

PN160

So the facts of this case there’s the particular difficulty of having one employer in respect of the premises seeking to control the time at which the permit holder enters the premises by reference to when the employer predicts that its own employees will be on breaks, but doesn't take into consideration when employees from other companies may be taking their breaks on the same premises and to restrict the time of entry by reference to one employee on the premises rather than all of the employees would be in error it’s submitted.

PN161

Finally, if I can come to the interpretation of the phrase “meal” I think I’ve referred to it in my submissions as “meal breaks or other breaks”. I think the legislation actually uses the phrase “meal times or other breaks”. I should just double‑check that, your Honour, “meal times” plural “or other breaks”. That's a formulation that goes back to 1996 to a set of provisions that were introduced as a joint democrat government amendment to the industrial legislation at that time, but was re-enacted and I can say that the relevant Hansard discussion back in 1996 doesn't appear to shed any particular light on the interpretation of the phrase in question. I think the phrase in question was slightly different. I think it was “meal time or other breaks” meal time in the singular, but the provision was re-enacted with the Fair Work Act and the explanatory memorandum does deal with the phrase and the relevant part of the explanatory memorandum is set out in my submissions at the top of page 6. It’s also referred to in my learned friend’s submissions. The explanatory memorandum says:

PN162

When entering for discussion purposes under subdivision B, a permit holder may only hold the discussions during meal times or other breaks. Discussions cannot occur during paid work time. An example of other breaks would include holding discussions before or after an employee’s shift, provided the discussions are held within the working hours of the premises.

PN163

A submission made in the written submissions was that regard should be had to the explanatory memorandum to find that the phrase “or other breaks” doesn't refer to paid breaks. As I understand, my learned friend has finessed that somewhat today and doesn't rely upon that, but I repeat what I say in the written outline that the explanatory memorandum refers to paid work time not to paid time.

PN164

In respect of the submission by my learned friend that time “before or after a shift” should be a strained interpretation of the phrase “or other breaks”. It does seem that if one has regard to the explanatory memorandum that the legislature specifically had in mind time before and after an employee’s shift and it’s not that much of a strain, particularly in the factual circumstances of the present case, where there was evidence of employees performing multiple shifts on the same day.

PN165

If one accepts that “or other breaks” includes time before or after a shift ends, really the interpretation to be given to the phrase “meal times or other breaks” is time during which the employee is not as a matter of fact then subject to directions as to the work that should be performed. I think my learned friend was saying that in respect of these periods of downtime, these short breaks that are during paid time, that there’s some distinction between that and the unpaid breaks provided for in the collective agreement because the employer retains the right to direct the employee to stop having a break, to go and do something.

PN166

In my submission, it’s a question of fact. If in fact the employer exercises the right to direct an employee to go and do something then they cease being on a break. If in fact they're not the subject of a direction then they are on a break. It’s a question of fact not a question of law. There’s no basis for reading the phrase “or other breaks” ejusdem generis or by reason to the ejusdem generis rule because there’s only one other matter in the list, that’s meal times, and meal times is merely really in the industrial sphere the most obvious example of a break taken by a worker and one can well understand why the legislature specifically refers to meal times.

PN167

The phrase “or other breaks” must be given meaning. There is no warrant, in my submission, to add words into the formulation, such as sought to be done by Mr Shelley in correspondence with Mr Ehlert where he talks of “meal break or other recognised/authorised break”. That's a gloss on the statute. Of course, there may be circumstances, one can envisage, during which there may be a – if we use the term - “recognised break” where the employer retains the right to give directions to an employee to end a break or go and do something because of operational reasons. It might be because of some clause that’s been negotiated in an agreement.

PN168

The mere fact that the employer retains some right to make directions to an employee doesn't change the character of the break. Indeed, an employee on the unpaid meal break provided for in the collective agreement in this case may still be the subject of the directions of the employer as to certain matters and perhaps to the extent of maybe ending a break. Certainly, the certified agreement writes into its terms a large degree of flexibility with respect to the taking or the staggering of meal breaks to meet its operational requirements.

PN169

In my submission, the words “or other breaks” must be given meaning. One can have regard to the explanatory memorandum which specifically recognises the time before and after a shift ends and that the way in which one should understand the phrase “or other breaks” is times at which the employee is not in fact working. Of course, to find or interpret it in any other way would case all manner of practical difficulties because the permit holder will not know whether an employee who wants to have discussions with them – it will be readily apparent to the permit holder that they're on a break if the worker is wanting to have discussions with them because they're not working, but there’s no warrant for implying an additional requirement upon the permit holder to make inquiries of the employer as to whether the worker’s break is paid or unpaid, one that’s referred to in the relevant collective agreement or whether it’s referred to – or comes about through other means.

PN170

There’s a real practical difficulty with any interpretation which would require the permit holder or constrain a permit holder’s ability to hold discussions in circumstances in which the permit holder does not have the relevant knowledge as to the characterisation of the particular break.

PN171

Your Honour, if I can move now to the issue of the – firstly, if I deal briefly with the issue of frequency. I rely upon the written submissions I make with respect to the section 505A case. At page 20 of the submissions, your Honour will see that I set out a chronology on page 21. The evidence of the management witnesses had the flavour that the permit holders didn't hold discussions with very many employees. If that’s true then one might think that the TWU permit holders might be justified in holding more frequent rights of entry.

PN172

There is the suggestion that the nominal expiry date of the collective agreement is a relevant factor and the respondents reject that contention. There is no reason to read down the word “discussions” which appear in section 484 and, indeed, the objects of 3-4 specifically refer to discussions with potential members, so recruitment specifically seems to be referred to by the legislature in terms of the activity of discussions. If there be any sort of doubt about that, recruitment is specifically referred to as being a matter that permit holders must have the right to do.

PN173

In the Senate Hansard there’s a – if I hand to your Honour a copy of the committee discussions - in respect of the Workplace Relations and Other Legislation Amendment Bill of 1996 and your Honour will see that the particular provisions are moved by Senator Murray, who I understand is – I stand to be corrected if I'm wrong – a Democratic senator. The second page of the printout at the bottom of the page is section 285C, which contains the relevant provision and over on to page 3, the formulation “employees’ meal time or other breaks” that I’ve just been discussing.

PN174

Your Honour, if you were to turn over to page 7 of the printout, under the heading Gov Democrat Amendment 160, in the sixth paragraph Senator Murray says:

PN175

In our view, unions should be concerned about the rights that 33 per cent of members that are their members, they must have the right to recruit and meet with employees.

PN176

We have provided that. But in terms of enforcement, that should come back to only where they have members. Indeed, that distinction between right of entry for discussions on one hand; and right of entry in respect of investigations is maintained to this day. So discussions may include recruitment, but it’s certainly no basis for restricting discussions in section 484(2) discussions pertaining to enterprise bargaining. Of course, the insurmountable difficulty that the applicant has in respect of its frequency application is the requirement that a frequency can’t be made unless there’s a finding that there’s an unreasonable diversion of critical resources and I rely on the submissions that I set out at page 24 and over to page 25 of my written submissions to reach the submission that that test simply can’t be reached and there’s no satisfactory evidence upon which the Commission could conclude that the frequency of entry which is set out in that chronology on page 21 has in the future, if it continued in the same vein, cause any diversion of critical resources.

PN177

So I guess in respect of frequency, the respondents have two thrusts to their submission. One is there’s no question of diversion of critical resources so there is no jurisdiction to make in the orders, but the second thrust is that the frequency is not such by any stretch that the Commission would intervene to curtail the rights that have been exercised.

PN178

Your Honour, can I turn now to the issue of the airside meal room access? This is dealt with in the written submissions from paragraph 91 onwards. It is true that the applicant did, until quite late in the piece, allow access airside to the baggage handlers’ meal room and it is true that the occasions on which access was denied fall after the email, Mr Curtis’ email, which we have heard a lot about. However, the chronology of matters which are set out at paragraph 98 of my written submissions indicates that this issue of access to airside areas only seems to have become an issue after Mr Shelley decided that he would make an application to the Commission concerning right of entry issues and they seem to be right of entry issues relating to the proximity to meal breaks. At that stage it seems that there was a notion of a rostered meal break in the original application which seems to have gone by the way.

PN179

The email from Mr Curtis, which forwards an email from one of his employees, which was sent to Mr Ehlert, is not unambiguous at all. It doesn’t specifically deny permission to Mr Ehlert to go airside but states that airside areas or access to airside areas are restricted. Indeed, that is the case. Mr Ehlert read that and gave evidence in respect of the way he read that email in the light of earlier communications to him from Mr Curtis. Of course, the email goes on and discusses what should occur if Mr Ehlert was required to enter the airside areas. Now, it seems the applicant has seized upon this email; the response conveniently so, and in a mischievous way, and applied an interpretation of the email which is strained. Certainly Mr Shelley conceded that the relevant paragraph, which I set out at paragraph 99 of the written outline, can be read different ways and he mentioned in evidence that it would have been helpful if there had been some commas used, or a comma.

PN180

The first point to be made in respect of this whole issue is that the reliance upon the email from the Gold Coast Airport Ltd is, in the respondent’s submission, disingenuous and if there was in fact a direct and unequivocal requirement or direction of the Gold Coast Airport Authority that Mr Ehlert was not to be allowed access to airside areas, then, your Honour, you would have heard evidence from Mr Curtis to that effect. We heard evidence that Mr Curtis remains in his managerial position at the Gold Coast Airport yet there’s no evidence from that quarter. So that’s the first point.

PN181

The second point is that one has to have some rational relationship if one is to characterise, as the applicants have in their most written submission, denial of entry to airside as a reasonable request under section 491 related to occupational health and safety requirements. There has to be some rational relationship, in my submission, between the risks posed by the entry to the premises - and in this case the evidence was of variously either 50 steps or 50 metres to the baggage handlers' meal room. There has to be some rational relationship between the risks posed by that action and the request, if we characterise the refusal to allow access to airside areas as a request - and I don't concede on the evidence that it was necessarily of that character.

PN182

Indeed the evidence of the respondent's witnesses was more of the tenor that, "Well, relying upon the email from GCAL that we just couldn't let you in. It's not us. It's the overlying occupier. We're just, you know, complying with directions". But if one characterises it as an occupational health and safety request - and I'm prepared to concede my learned friend's point that issues of airport security may fall within the ambit of occupational health and safety – there still needs to be a rational relationship between the risk posed, including the security risks and the request being "Do not enter the whole part of the premises that are airside".

PN183

That has to be looked at in context that there are employees, workers with the same security clearance, the ASIC card, who are behind that airside line and conducting work, and there is no evidence of any particular risk posed by Mr Ehlert or any other permit holder who have obtained the clearances to obtain an ASIC card. There's no evidence of any security risk posed by them or to them insofar as walking from the screening point to the meal room and back again.

PN184

In my submission a request that's to the effect a blanket exclusion from a whole segment a part of the premises bears no rational relationship in the facts of this case to the risks posed. Therefore the request, if it be termed a request, is not reasonable. It also has the effect of denying access to those employees who take their meal breaks almost exclusively in the baggage handlers' room, so that group of employees who are the ground staff.

PN185

There's a specific observation of Flick J in the AMIEU v Fair Work Australia case that my learned friend took your Honour to earlier which I've footnoted at paragraph 118 of my submissions in that regard. The submissions made by my learned friend regarding the Aviation Transport Security Act and the Aviation Transport Security Regulations didn't address regulation 3.17A of the regulation or section 131 of the Act, to which I refer at paragraph 120. Right of access is specifically referred to in the regulation. The regulation says:

PN186

To avoid doubt nothing in this regulation is taken to affect any right of access or privilege granted by or under any other Commonwealth law.

PN187

And of course the Fair Work Act is another Commonwealth law that provides for a right of access, and regulation 3.17A certainly operates to ensure that the right of access provided under the Fair Work Act survives or continues in existence notwithstanding anything contained in the regulations. There's no basis for – the submission made by my learned friend that the term "authorised" in regulation 3.15(3) doesn't include authorised by the Fair Work Act doesn't have – isn't an attractive submission, in my submission.

PN188

The authority given by section 484 of the Fair Work Act is an authorisation granted by law and there's no basis for reading down the term authorised as it appears in the regulations. In any event the Fair Work Act is not a – the right of access in the Fair Work Act is not affected by anything in the regulation according to the terms of the regulation itself.

PN189

Even if that provision was not contained in the regulation, I've noted that there is longstanding High Court authority of Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 which would require the more recent legislation, being the Fair Work Act 2009, to prevail to the extent of any inconsistency. Your Honour, I've included a copy of Goodwin v Phillips in the bundle I've handed to the Bench. The relevant part of the judgment which is relevantly referred to in this context is that of the Griffith CJ at page 7 of the Commonwealth Law Report at the bottom of the page where his Honour says:

PN190

Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.

PN191

So in my submission the five – I didn't count them but there are many pages in the second set of submissions of the applicants that deal with the Security Act and Regulations and that ultimately, your Honour, that's no more than smoke and that there is no impediment to the Fair Work Act applying in the context of an airport. Of course the permit holders in this case have – while they may not have been required to do so - have tried to defer to the requirements and have gone and obtained security clearances and so forth to obtain the ASIC card. In my submission it was not necessary for them to do that, but it's an additional matter that is clearly relevant to the questions of reasonableness of any request that may be made in the name of security.

PN192

The other main point that the respondents make in respect of this issue of entry to the airside baggage handlers' meal room is that the preponderance of the evidence seems to suggest that Aero‑Care is not the occupier. My learned friend tries to save the position by saying there can be more than one occupier, and I accept that at common law there may be. That the common law recognises the concept of there being more than one occupier of the same premises at the same time.

PN193

Such was recognised by Gaudron J in Jones v Bartlett, which is a decision that my learned friend referred to. There is a discussion of this issue as relates to the question of who is an occupied by Flick J in Darlaston v Parker (2010) FCA 771. I'm not sure that I've provided a copy of that to your Honour and, if not, I haven't come prepared with a copy. But the relevant discussion from Flick J which refers to Jones v Bartlett at is at paragraph 92 to 95. But the point I make is that whether there be one occupier or two occupiers, it seems on the evidence of Aero‑Care, if one accepts Aero‑Care's evidence, that it doesn't per se have a difficulty with entry to the baggage handlers' meal room. It's all because of this email from Mr Curtis and the attitude taken of the direction taken or given by the Gold Coast Airport Authority.

PN194

If indeed that is the case and it seems on – I'll digress for a moment. It seems that the evidence is that on some levels the applicant – on the applicants’ evidence it would be preferable for discussions to be held in the baggage handlers' meal room because there were belated objections relating to confidentiality which were raised in respect of the landside crew room, which do not appear to have the same application to the baggage handlers' meal room. But be that as it may, the real dispute on the evidence of the applicant is a dispute between the Gold Coast Airport Authority as the - I think they term it the overlying occupier – and the permit holder.

PN195

In truth a dispute of that nature isn't amenable to resolution by any orders that could be made by this Commission in the present proceedings, because the Gold Coast Airport Authority as the overlying occupier is not a party to the proceedings. And the obvious course to be taken, now that the respondents have a greater awareness of the difficulties faced by the applicant in this regard, would be to provide a future right of entry notice to the Gold Coast Airport Authority in respect of those premises which are airside or described in the regulations as being airside.

PN196

Premises are defined in the Act as including part of a premises, so it would be open to a future permit holder to issue a right of entry notice to the airport authority in respect of that part of the premises which is described in the regulations as airside. Whether or not the notice would need to be provided also to Aero‑Care as a co-occupier is neither here nor there. But the issue of the notice to the Gold Coast Airport Limited would resolve the apparent dispute between the Gold Coast Airport and the TWU, or at least it may create a fresh dispute, your Honour.

PN197

It's certainly a matter that can't be resolved in the present proceedings and is a matter which is ripe for exploration between the TWU and the Gold Coast Airport Limited. Having regard to the saving provision in the regulation that I referred to earlier, to Goodwin v Phillips and to the need to have a rational relationship between any health and safety request and the risks, one can readily envisage that a future permit holder who wished to give notice to the Gold Coast Airport would obtain, or that there should be no impediment to them obtaining, access.

PN198

However that is conjecture, and it's pure speculation whether such a permit holder and an official would go down that path. One speculates as to the response of the Gold Coast Airport Limited. But the key point is that the dispute is clearly between a party who is not a party to these proceedings, and the key to the resolution of the airside/landside aspect lies elsewhere, in my submission. Your Honour, the applicants have characterised the opinion issued by Commissioner Asbury in the matter of Transport Workers Union v Followmont Transport as being irrelevant.

PN199

Your Honour, I would commend to the Commission re-reading or having regard to the reasoning given by the now Deputy President, I understand, in the opinion issued on 23 October 2012. A copy of the opinion can be found in two places. One is attachment MC2 to the affidavit of Miss Cerrato which is exhibit R9 in these proceedings. It's also attached as an attachment marked TP1 to the affidavit of Mr Pfund which is exhibit R7. The respondents don't necessarily concur with every remark made by Commissioner Asbury or Deputy President Asbury, but the reasoning is instructive.

PN200

At paragraph 20 – well, it really starts at paragraph 16 and onwards where her Honour analyses the relevant right of entry provisions in the Act, notes that there is a distinction in the Act between the right to enter premises and the right to hold discussions. Her Honour goes on and sets out the relevant provisions that are relevant to interpreting how the scheme works. At paragraph 20 the then Commissioner concludes as follows:

PN201

I can see no basis for interpreting the provisions of the Act relevant to right of entry for the purposes of section 484 of the Act to say that the permit holder is restricted to entering only within time slots set by the employer.

PN202

And, your Honour, it really does seem that in effect that's what the applicant desires in the present case; to be able to nominate the times at which the right of entry may be exercised. At paragraph 21 the Commissioner makes the observation that right of entry is exercised at times that are reasonably proximate to non-working periods. That's an observation that the respondents respectfully disagree because of the reasons I developed earlier, that it's unnecessary to read that constraint into the Act, and that the test is whether the permit holder is seized of the requisite purpose.

PN203

However it's instructive that having made that observation, down at paragraph 25 the Commissioner finds that:

PN204

A period of some two hours would be held reasonable, or would not at least be unreasonable, insofar as a permit holder staying on premises until the start of the next break at 3 pm.

PN205

Of course the distinction between this case, where it seems there are set meal times albeit in the context of some employees starting a little bit early and finishing a little bit late, but there are set meal times. Paragraph 23 is quite commonsensical. The Commissioner notes that:

PN206

If work breaks are taken within a regular window it might not be reasonable for a permit holder to set up camp at the employer's premises for the entire span of the ordinary working days that apply in those premises.

PN207

Of course in the present case with Aero‑Care's employees that's not the case that work breaks are taken within a regular window. Then the Commission goes on and says:

PN208

If there is flexibility in the times when breaks are taken or when employees start and finish work it may be reasonable for a permit holder to remain at the workplace over a longer timeframe.

PN209

And that's really a common sense approach. Your Honour, there's no evidence at all that Mr Ehlert has stayed for lengthy periods of time after any person has finished their – any worker has finished their break. The right of entries effected by him, apart from the one occasion which was in the early afternoon, were all in the morning in the context of a span of hours going from the early morning to late evening. And it could be well anticipated that there would be employees on both the allocated meal breaks that are referred to in the collective agreement as well as the other types of breaks, the downtime periods. In that respect there is the evidence of the two employees of Aero‑Care who suggest that the downtime may be much more significant than the downtime that's conceded by management.

PN210

THE VICE PRESIDENT: How much longer do you have to go, Mr Rebetzke?

PN211

MR REBETZKE: No more than 10 minutes I would think, your Honour.

PN212

THE VICE PRESIDENT: Well we might continue then.

PN213

MR REBETZKE: Thank you. There is a reference in my written outline to the specific evidence of the two employees in respect of the length of those paid breaks or downtime, and your Honour will see that they can be significantly more lengthy than the breaks which the management witnesses refer to, but they're of the same type. There is of course the issue of the staggered shift times, both staggered meal times and staggered shift times throughout the day.

PN214

In respect of my learned friend's submissions about early morning access, there is the evidence that employees commenced shifts at different times throughout the day. Whilst it may be the case that at the very start of the working day, the working hours, it might not be permissible to speak to – to have discussions with employees before the start of their shift, if that means it's before the span of working hours. But there was no evidence in terms of the rosters et cetera to show that employees did not commence work on shifts that commenced after the first employee started at 5 am. So that's a lacuna in the evidence.

PN215

And despite the evidence of the predictability of the allocated meal times recognised under the collective agreement, whilst there may be some predictability that they won't start to happen until 7.30 there is an expectation - or at least on the evidence - that there may be employees that start at periods between the first employees start work at five and 7.30 when there are meal times. So there is at least a basis for a purpose to be exercised by a permit holder entering early in the morning, to be able to have discussions with employees who start their staggered shifts after the first employees start; in addition to being available to have discussions with the employees who may be not working or on downtime at some period, whether that be a short period or a more lengthy period.

PN216

Your Honour, if I can deal briefly with the question of orders. The submission of the respondents is that regardless of whatever view the Commission takes of the law and in this matter, that this is not a case for the settling of a dispute by the making of orders. There is the changed circumstance that my learned friend points to, that Mr Ehlert is no longer the primary organiser for the Gold Coast Airport. There's the circumstance that the permit holders were acting – well, there's no suggesting that they were acting other than in good faith and they were acting within the boundaries of the law which were described by this Commission in the opinion of Commissioner Asbury in the Followmont matter, and no indication at all that they would not be responsive to overtures by the Commission to resolve the matter by way of an opinion or recommendations.

PN217

My learned friend avoids the discussion of the orders sought by the applicant perhaps for good reason. The orders sought in the application are a veritable wish list and perhaps in the context of how the evidence has fallen at the end of the day is perhaps somewhat embarrassing. The applicant certainly – sorry, the respondents certainly submit that each of the orders sought in the application at paragraph 4 would be inappropriate or overkill, for want of a better phrase, to resolving any dispute between the parties.

PN218

The orders in respect of the second respondent, that is the Transport Workers Union, the primary submission is again that the Commission would not be minded to make any of those orders. They're sort of quite inappropriate to the circumstances, whatever view of the law is taken. But further than that it is submitted that insofar as orders are sought in respect of future permit holders associated with the Transport Workers Union are concerned - and they are the orders sought at paragraph 4D of the application – I submit that there is no power in this Commission in these proceeding to make the orders that are sought, and I will make this brief. There is a – the relevant power to make orders in section 505(2)(d) is concerned with an order about making the future issue of entry permits to one or more persons, whereas there is a more specific provision in section 508(2)(d) that gives the power where there has been a misuse of rights under Part 304:

PN219

...requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions...

PN220

The applicant does not invoke and has not in its final submissions submitted a misuse of rights as referred to in section 508, and the applicant lacks the standing to bring an application under section 508(3) which may only be brought on the Commission's initiative or on an application by an inspector. In my submission the specific reference in section 508(2)(d) in respect of putting restrictions on future entry permits in relation to an organisation is a specific provision that precludes the more general provision from being used in section 505(2)(d), to make an order generally about the future issue of entry permits in relation to the Transport Workers Union of Australia.

PN221

It may be that under 505(2)(d) the Commission might make an order about the future issue of entry permits to particular people who are named. But in my submission when one looks at the scheme and compares that provision in section 505 with the provision in section 508, that it's not intended by the legislature that in proceedings of this type a union would have all of its future permits the subject of a particular entry permit.

PN222

To read it in that way of course would undermine the scheme of the Act which for example requires that the powers in relation to future issue of permits in relation to an organisation under section 508 to be only exercised by a Vice President, Deputy President or Full Bench. I know the Commission as constituted is constituted by a Vice President but that doesn't mean that one should interpret section 505 as giving the Commission the power to issue orders of the nature sought by the applicant in respect of future permits in relation to the Transport Workers Union more generally.

PN223

Unless there are any other matters, your Honour, those are my submissions. I would emphasise, your Honour, that the collective agreement which is attachment GS2 to exhibit M3 itself, the terms of that agreement are worthy of examination in respect of the factual circumstances, particularly clause 11.9 and 11.10 which specifically requires the company to or allows the company to stagger meal breaks to meet operational requirements, and also clauses 10.3 and 11.2 which talk about start and finishing times. If your Honour might just allow me to check my notes to check that there aren't any other matters that my learned friend raised earlier today that I would not wish to address upon but, saving that, I think I'm finished. Yes, I have nothing further. Thank you, your Honour.

PN224

THE VICE PRESIDENT: Mr Murdoch would you like a short break before you make any reply? I don't know how long you propose to be?

PN225

MR MURDOCH: Your Honour, it would be about 10 minutes and I could go straight on. But it's what suits you and suits the parties.

PN226

THE VICE PRESIDENT: Yes, well please proceed. Yes.

PN227

MR MURDOCH: Thank you, your Honour. Your Honour, so far as standing is concerned it's not challenged that an application for an arbitration of this kind may be made by either – well, a permit holder, a permit holder's organisation, an employer or an occupier of premises so that in terms of our standing under section 505 I would submit that we have standing on two bases. Your Honour, so far as the argument that was put in relation to orders as to the suspension or revocation or orders about the future issue of permits to one or more persons, there's no need, in our submission, to read that down, because those provisions are there as an indication of some of the discretionary remedies which are available on an arbitration under section 505A.

PN228

The other provision under section 508 really deals with a separate more specific remedy which is capable of being pursued in the event of certain abuses of a permit. But the arbitral remedies should not, in our submission, be read down and indeed, your Honour, it's to be seen that the discretionary remedies that are available under section 505A have the catch-all at the end, "any other orders it considers appropriate", the it of course being the Commission, and additionally under subsection (6) there's a direction to the Commission that in dealing with the dispute the Fair Work Commission must take into account fairness between the parties concerned.

PN229

Your Honour, my learned friend referred to the decision in the Followmont matter but the ruling that the member, now Deputy President Asbury, gave in that matter was plainly to the effect that entry for the purpose of holding discussions should be effected at a time proximate to the break. And the narrative in the decision makes it clear that she was talking about a reasonably proximate time to enable the union official to set up in preparation and to pack up at the conclusion. Certainly it's true that the member contemplated that an appropriate room could be found to enable the union official to stay at the Followmont depot awaiting the commencement of the next break, but in terms of the proximate arrive and proximate departure there was a very clear view taken.

PN230

Moving briefly to another matter, it was put by my learned friend that the directive from the Gold Coast Airport Corporation was ambiguous. The documents can speak for themselves, your Honour, but may I refer to the affidavit of Gregory Shelley of 3 October 2014 and to the attachment to it, GS11. That exhibit includes the email from Brett Curtis at the Gold Coast Airport to Emma MacNamara and to a series of other employers at the Gold Coast Airport, and it is quite unambiguous in that it says:

PN231

The email also confirms our access arrangements on the Gold Coast Airport for the TWU which is to be via the formal right of entry permit and that airside areas of the airport are restricted to those with an operational reason i.e. to assist with the operation of the airport or an aircraft.

PN232

Your Honour, that is the direction that has been given to our clients and the other employers. Additionally, your Honour, you'll note that in cross‑examination Mr Ehlert and Mr Paulos said that the union had approached the Gold Coast Airport Corporation re the directive of September last year and they had had no success in having it revoked. Further to that, your Honour, the episode less than a fortnight later, namely on 24 September 2014 which is dealt with in Mr Keeley's affidavit of 22 October 2014, or M14, at paragraph 25 he deals with the incident of 24 September 2014 where Mr Ehlert was out on the tarmac and it's clear that when that was reported to the airport corporation, that they had Mr Ehlert removed.

PN233

So that that appears to confirm the direction given in the email to the employers that TWU officials were only to access the airside areas for operational reasons. So that the submission that our clients have latched on to the direction from the airport corporation because our clients are said to be disingenuous is a submission that has no basis. Additionally it was said that there was no evidence pertaining to the meal times at Gold Coast Airport during the mornings. So far as that's concerned I would refer to the affidavit of Greg Shelley of 8 January 2015, and to paragraph 2(g)G and subparagraphs (i) through to (iv).

PN234

Those paragraphs deal very specifically with what happens at that airport between 5 am and 7.30 am each day and the fact that typically no Aero‑Care airline service agent would have an allocated break to 7.30 am, as Aero‑Care rosters are programmed for maximum efficiency. Your Honour it will be apparent from my learned friend's submissions that there is a significant disagreement between the parties as to what construction is to be put on the reference in the legislation to meal times or other breaks.

PN235

The proposition that has been advanced here today on behalf of the union is that "or other breaks" encompasses times during the work day when employees are not physically active. That is a particularly broad and, we submit, impermissible construction because it would encompass a wide variety of times where personnel are on duty, being paid, but the subject of a temporary interlude when they may be physically inactive but nevertheless awaiting further instructions or awaiting the next phase of their work. In our submission that situation is to be dramatically contrasted with the situation where there's a meal time or other breaks.

PN236

The word breaks, in my submission, clearly connotes that there is a break in the period in which they're on duty. A person can be on duty and not physically active. But in my submission for it to be a break it has to be a circumstance where they're not on duty. Your Honour, through the submissions for the union there's also a degree of, with respect, confusion in relation to paid and unpaid meal breaks. The industrial practices which the Commission has presided over for a long time have involved industrial instruments where some meal breaks are paid.

PN237

They're often known as crib breaks, they're often associated with rostered shift arrangements. Other meal breaks are non‑paid. It doesn't really matter because on a meal break the employee has downtime when they're not on duty, whether it's paid or whether it's not paid. It's their meal break. They're not on duty. The reference to other breaks, in my submission, contemplates breaks of the same character where for a period of time they're not on duty. And I went through this morning the examples of tea breaks, smoko breaks, rest pauses et cetera. Your Honour it was also suggested that there had been no evidence in relation to the inconvenience to the employees of our client arising from the frequency and the time of the visits under the right of entry permits.

PN238

Your Honour in that respect I would refer to the affidavit of Mr Keeley of 23 October 2014 which is M14, and from paragraphs 21 through to 26 where you will see the details that relate to the period around September 2014 where there had been a series of very early visits and contacts with management of Aero‑Care, contacts instituted by Mr Ehlert and which had led to the need for Aero‑Care personnel to be available to conduct inductions and see Mr Ehlert on to the premises. You'll see for example at paragraph 24 that on 24 September Mr Keeley was again required to attend the workplace at 4.45 in order to meet Mr Ehlert. He says:

PN239

Again this caused me to work a 12 hour day leaving me extremely fatigued.

PN240

He details various phone calls from Mr Ehlert at times such as 4.40 am in the morning. It in my submission is a matter of fact. But ultimately, your Honour, it's not a question of whether there's evidence or not; there was ample evidence as to the inconvenience arising from the frequency and also the times. They're our submissions. Thank you.

PN241

THE VICE PRESIDENT: Thank you Mr Murdoch. I thank both counsel for their submissions in the matter. I'll reserve my decision. We'll now adjourn.

ADJOURNED INDEFINITELY                                                           [1.51 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M18 OUTLINE OF SUBMISSIONS FOR MR MURDOCH QC

................................................................................................................................. PN121

EXHIBIT #R10 TWU'S OUTLINE OF SUBMISSIONS................................. PN122