RE2014/1474, Transcript of Proceedings [2015] FWCTrans 338 (12 June 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051888

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DEPUTY PRESIDENT ASBURY

RE2014/1474

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

Construction, Forestry, Mining and Energy Union

and

Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance
(RE2014/1474)

Brisbane

10.06 AM, MONDAY, 18 MAY 2015

PN1

THE DEPUTY PRESIDENT: Thank you, please be seated. Okay, closing submissions.

PN2

MR ANDERSON: Yes.

PN3

THE DEPUTY PRESIDENT: I've read both of the parties' submissions.

PN4

MR ANDERSON: Thank you, Deputy President.

PN5

THE DEPUTY PRESIDENT: So if you'd like to speak to them, Mr Anderson, thanks.

PN6

MR ANDERSON: Thank you. Deputy President, the applicant relies on the final written submissions, as you have suggested, dated 16 April 2015 and also the outline of submissions filed by the applicant on 21 October 2014. There are agreed questions for this arbitration. The applicant submits that both of those questions should be answered in the affirmative. Namely that the specified locations are a room or area for the purposes of section 492(3) of the Fair Work Act, and that in all the circumstances Mr Pierce was entitled to hold discussions in the specified locations when exercising a right of entry under section 484 of the Act.

PN7

The applicant briefly refers to the notation contained with the questions for arbitration and the term used by the respondent as a corridor to describe the specified location. The applicant submits that this shows that the respondent has been trying to avoid the application of the Act by offering different versions as to what in reality is clearly a crib room location provided for the purposes of employees taking their breaks in those locations.

PN8

There has been various references throughout this case by the respondent and indeed prior to these proceedings being filed; they've called it a corridor, they've called it an office. Neither of those terms are correct and that is not in reality what the locations are. The applicant advised the Commission and indeed the respondent last night that it would be seeking to tender a document. The document is a submission made by BHP Billiton to the Productivity Commission dated 29 March 2015. The applicant seeks to rely on that document in these proceedings and is able to hand up a copy of that document, Deputy President.

PN9

THE DEPUTY PRESIDENT: What relevance does it have to this matter do you say, Mr Anderson?

PN10

MR ANDERSON: Deputy President, the relevance to these proceedings comes under a number of heads. If I can refer the Commission to page 6 of the document. Firstly there's a section under the title "Business impact" towards the bottom of the page. Now in that section the submission deals with what seem to be their concerns and the applicant's submission is that those are the real concerns and they've never been put to Mr Pierce. The issues identified in that submission suggest that the real issue behind their objection to Mr Pierce's right of entry is indeed supervisors having to drive Mr Pierce around and other health and safety concerns.

PN11

Those are not matters that were put to Mr Pierce during his attempts to reach agreement. The applicant submits that the relevance of that is that it shows the respondent has been taking a contrary position in the public and a different position here in these proceedings. Additionally the applicant submits that the document shows that the company had been taking a public position which suggests that the Act is a problem for them, that Mr Pierce is allowed to do what he has done under the existing provisions and that they're seeking to change the legislation to avoid the scenario we're now dealing with. So in respect of the Productivity Commission submission from BHP that's what we say the relevance is, Deputy President.

PN12

THE DEPUTY PRESIDENT: So you say somehow this submission to the Productivity Commission is different to the submissions or the cases that was conducted in the Commission?

PN13

MR ANDERSON: Yes, it's a suggested position, Deputy President, that they have a problem with the law as it exists. We can look towards the top of page 6 at the consequences, the problems they see with the legislation as it exists. Now it specifically, if I can refer to the final sentence under the heading "Consequence" they take a different position there in respect of the CFMEU and they're saying that the CFMEU is seeking to get onto the dragline cabin itself. But it's contrary to the position in the agreed questions for arbitration where the area specified is a location between the operators' cabin and the housing.

PN14

THE DEPUTY PRESIDENT: Technically the whole thing is the cabin, isn't it?

PN15

MR ANDERSON: Not in our submission, Deputy President. Not at all. And again under the heading "Legislative provision" the position stated there, and I refer to the last two lines that continues on to:

PN16

Union representatives would have the right to enter any area where one or more persons normally take their meal breaks.

PN17

That position is contrary to what the respondent has been saying in these proceedings.

PN18

THE DEPUTY PRESIDENT: Well isn't that just simply paraphrasing what the legislation says?

PN19

MR ANDERSON: In the context where they're seeking to change that legislation because they know that the position they're putting is wrong.

PN20

THE DEPUTY PRESIDENT: It's a free world, Mr Anderson. Parties are permitted to make submissions to the Productivity Commission. All that the first paragraph does surely is paraphrase the legislation and then it gives as a consequence the issue in dispute in this case? It's just - I mean it's irrelevant to me what the company submits to the Productivity Commission. It wasn't before me in the hearing. I don't see why I should even take it into account.

PN21

MR ANDERSON: Because the submission was made after the hearing, for a start. Secondly, we again refer to the objections contained in this document. They don't line up with what they have told Mr Pierce in the context where the company have also failed to call a relevant witness, Mr Sean McKenzie. And the company's true motivations in seeking to exclude Mr Pierce from those draglines seem to be contained in this document. That s what we say the relevance is.

PN22

THE DEPUTY PRESIDENT: But it seems to be this whole case is being conducted on the basis that it's Mr Pierce. The issue is whether an official of the CFMEU who holds a permit has the right to enter - I mean, Mr Pierce is but one official of the CFMEU who holds a permit.

PN23

MR ANDERSON: He is the permit holder who is mentioned in the question for arbitration, Deputy President.

PN24

THE DEPUTY PRESIDENT: Yes, and it's really whether a permit holder - if Mr Pierce, God forbid it happens, but he could walk under a bus tomorrow and it wouldn't be suggested that somebody else who holds a permit wouldn't seek to exercise whatever rights Mr Pierce sought to exercise.

PN25

MR ANDERSON: I wouldn't necessarily disagree with that, Deputy President, but in this case we are dealing with Mr Pierce and the context of that leads on to the attempts to reach agreement and the specific attempts that were made. So it is specific to these circumstances.

PN26

THE DEPUTY PRESIDENT: But if the question is answered in the affirmative the result is that a permit holder, not just Mr Pierce, but a permit holder from the CFMEU would have the right to enter the premisess, not just Mr Pierce.

PN27

MR ANDERSON: In circumstances where agreement has been sought and not been able to be achieved.

PN28

THE DEPUTY PRESIDENT: So you say each - if Mr Pierce is replaced by another person we'd have to go through this whole exercise again? We're not just answering the question as to whether a permit holder has the right to do this.

PN29

MR ANDERSON: The parties would necessarily need to try and reach agreement.

PN30

THE DEPUTY PRESIDENT: Each time a different person wants to enter?

PN31

MR ANDERSON: Yes. There may be changes, for example if - and this is just a hypothetical scenario, Deputy President. But if in one case the alternate proposal by the respondent differed in some way, for example if the alternate location they proposed was in direct proximity to the draglines at that time. There are different circumstances that may apply in the future. The parties should try and reach agreement in accordance with the Act on each occasion.

PN32

THE DEPUTY PRESIDENT: So theoretically we could have an arbitration every time the dragline moves 600 metres in another direction?

PN33

MR ANDERSON: Theoretically. I wouldn't expect that to be the case and it's not our submission - - -

PN34

THE DEPUTY PRESIDENT: Well, I hope not.

PN35

MR ANDERSON: - - - that we're going to be back here, and we don't want to be back here every time. We hope that these proceedings would resolve at least a substantial number of the issues for future occasions.

PN36

THE DEPUTY PRESIDENT: Thank you.

PN37

MR ANDERSON: Next, Deputy President, I want to deal briefly with some objections that were raised in respect of Mr Pierce's evidence, and there was a table of objections provided by the respondent at the hearing. Very briefly, and credit where credit is due the respondent has indicated that in respect of Mr Pierce's evidence and the objections it's a matter of weight as opposed to seeking exclusion of the items mentioned.

PN38

The applicant submits that in the context of Mr Pierce's experience, which was detailed in his statement to this Commission, significant weight should be afforded to the statements made, his opinion provided in that statement based on his experience. One of the major objections contained in that document provided by the respondent is to Mr Pierce's use of the term crib rooms. We think that matter can be dispensed with easily. The applicant has indicated in the agreed statement of facts that that's what they call the crib room. Mr Pierce has used that language and really nothing rests on that particular objection in our view.

PN39

Next, Deputy President, I want to turn to the submissions in respect of attempts to reach agreement. The applicant's submission is that it's absolutely clear that Mr Pierce attempted to reach agreement. That's summarised from paragraph 18 of the applicant's final submissions. There was an acceptance at hearing from Mr Gibbons that there was a policy in place on the part of the respondent which applied to the group, and that that policy provided that right of entry visits would not occur on draglines. The applicant's submission is that that makes it fundamentally clear that the respondent did not engaged in a genuine attempt to reach agreement with Mr Pierce.

PN40

Their mind was closed and the reasons which are also contained in that Productivity Review were not put to Mr Pierce. There was no opportunity to respond to those. When Mr Pierce received any correspondence from the company, a response was provided and it was a genuine attempt. Just because he disagreed with the respondent it does not mean that he did not genuinely try and reach agreement. The applicant's further submission is that Mr McKenzie was the one calling the shots. He was the one that communicated the company's position, particularly in relation to several denials of Mr Pierce's request where he simply stated that the draglines were operational equipment without further explanation.

PN41

We say that the respondent has not called him and they've not called him for a reason, and we ask the Commission to draw an inference in that respect in relation to the true motivations of the company; and further in any event Mr Gibbons has clearly articulated at hearing that there was a policy in place, he was bound to follow that policy, and that said that there would be no visits to the draglines. If that's not a closed mind I don't know what is, Deputy President. Next I want to deal briefly with the Austral Bricks decision. The applicant has submitted that that case is clearly distinguishable from the present circumstances.

PN42

In this case the applicant or Mr Pierce as a minimum made a genuine effort to try and agree on a location for the right of entry visits. The applicant submits that it's clear that it cannot be said that Mr Pierce simply held a fixed view. He responded, he provided reasons, and he disagreed with the respondent's position so far as they articulated one. The respondent appears to be saying that because Mr Pierce didn't agree with their position that he didn't attempt to reach agreement in a genuine manner. That's clearly and plainly absurd, in our submission. He's not obliged to agree with the company.

PN43

We refer to paragraphs 34 to 62 of Mr Pierce's statement filed in these proceedings, and particularly to a document attached to that which is SP14. That letter clearly shows consideration of the limited position that the company had put. He expressly stated that he remained open to further suggestions from the company or articulation of their views. That was not provided by the company. There can be no criticism of Mr Pierce's actions in those circumstances, and he did genuinely try and reach agreement.

PN44

The applicant hasn't simply failed to consider any of the matters outlined in the Austral Bricks case. Those issues were simply never raised by the respondent. They simply maintained a position whereby they said that it was an operating piece of equipment without further explanation. The issues they now rely on weren't even mentioned when the company sought to engage solicitors just prior to Mr Pierce exercising a right of entry. There's a document, SP18, which contains some objections or the position of the company at that point in time and at that time really what they said was that they didn't consider it to be a crib room, he would be hindering and obstructing due to close proximity.

PN45

By that the applicant submits that what they mean there is in close proximity to the operator. They were raising concerns which they're now not pressing and in addition at that point they raised OHS requirements. That letter was responded to on behalf of Mr Pierce, addressing each of those matters. He considered those matters, he disagreed. Agreement could not be reached in those circumstances. The applicant submits that the applicant in the circumstances clearly reached a threshold envisaged by section or to invoke section 492(3) of the Act. I briefly mention a few differences between the present circumstances and the Austral Bricks case, and if I can just refer to the relevant paragraphs.

PN46

At paragraph 18 of the decision it's stated that the alternatives weren't really considered. They were in this case. At paragraph 20 an explanation was sought by the company as to the permit holder's position. Mr Pierce has provided an explanation of this provision. He did so in the context of trying to reach agreement in a genuine manner. There are a number of differences in respect of allegations of unauthorised discussions occurring. That's referred to at paragraph 52 of the Austral Bricks decision. At paragraph 55 there's a suggestion that the parties, or at least the permit holder, was simply going through the motions. In this case that's clearly not applicable.

PN47

At paragraph 57 there's a reference to a fixed view being held without regard to the other's position. Mr Pierce has responded in each case to correspondence and the position of the company. He has articulated his reasons appropriately in the circumstances, and it's on that basis that we say that the recommendation and the specific elements of that recommendation shouldn't apply in this case. It's not a failure to deal with it on behalf of the applicant. What we're here saying is that Mr Pierce in whatever way the Commission looks at it genuinely tried to reach agreement, and in the circumstances agreement could not be reached.

PN48

Deputy President, I now turn to the construction of section 492(3) of the Act and the applicant in this respect relies on its final submissions at paragraphs 26 to 56. The applicant submits that the evidence is fundamentally clear before the Commission that the employees concerned, those of the draglines, ordinarily take their breaks in the specified locations. They are directed at the very least to take the meal and other breaks in one of two locations. The applicant submits that the reality is they ordinarily take them in the draglines. The applicant submits that it cannot be said that those locations, either of them, are not provided for that purpose.

PN49

The employer directs the employees where to take their crib breaks. There may be some degree of autonomy in respect of a decision between the two locations, however that does not mean that that location is not provided for the purpose of taking those meal and other breaks. That direction from the employer was accepted by Ms De Vere in cross‑examination and we refer the Commission to paragraph 36 of the applicant's final submissions in respect of that issue, and that's in the context of the relevant enterprise agreement.

PN50

Further in respect of the reality of the situation the applicant has made comment at paragraph 39 of their final submissions in respect of the BMA Enterprise 2012 Agreement where dragline crib rooms are specifically referred to. There is no basis for a distinction between the operations at Caval Ridge, we say, and the other BMA mines, and again that's evidenced in our view by the use of the Caval Ridge situation by the respondent in their submissions to the Productivity Commission. In relation to the issue of the purpose of those specified locations, the applicant relies on its final submissions at paragraph 43 to 52.

PN51

The applicant maintains that it's clear that that room was provided for the purpose and that it is in fact at least the dominant purpose, and in any event section 492(3) does not require the location to be provided for a single or primary purpose, as the respondent submits. It is provided for that purpose. That does not preclude, and the Act does not preclude, the possibility that that room is used for other purposes or provided for other purposes. Despite some of the evidence of the respondent's witnesses we submit that it's fundamentally clear that that room is provided for that purpose.

PN52

It contains a fridge, a toaster, a toasted sandwich maker, a microwave oven, a portable benchtop oven or a pie warmer. There are facilities, cupboards for storage of crib. There are inbuilt structures in place in that room which are there only for the purpose of employees taking their crib breaks there. We submit that the suggestion that it's not provided for that purpose is plainly wrong. Mr Pierce's evidence in respect of these issues, whilst there are some objections, should be relied upon by the Commission in our submission. He has had significant experience at other sites. He has talked to employees. He knows what the reality is and he has given that evidence before the Commission.

PN53

There are a number of matters raised in the respondent's submissions including the possibility that there may be some actions on behalf of Mr Pierce, or that might fall foul of the applicable rules including hindering and obstructing. The applicant's position as stated in its final submissions is that it's fundamentally clear that if Mr Pierce steps beyond the bounds of his powers and functions or ability to exercise the right of entry the respondent has a remedy. There is no evidence that Mr Pierce has fallen foul of those provisions. In the context of the Act there are remedies there.

PN54

The mere possibility that is put by the respondent is not enough to suggest that somehow this provision should be read down to limit Mr Pierce's ability to enter the location. The respondent has also maintained a position that the location is a confined space. Now the applicant's submission is that that's clearly not a logical conclusion on the basis of the evidence. The witnesses agreed, the respondent's witnesses agreed, that they had seen numerous people in that location, up to four or five, and that's not to say there couldn't be more.

PN55

There's no evidence from the part of the company that any particular rules apply to that location in terms of entering the specified location. It's simply not a confined space. The industrial context of the word confined space is, in the applicant's submissions, quite clear and it doesn't apply to the specified location in these circumstances. Nor is it a corridor or an office as the respondent has termed it. It's not a confined space either. The respondent has made submissions in respect of freedom of association.

PN56

There is simply no evidence before the Commission to draw a conclusion that there would be any impact, and regardless of that there would be remedies as there are on any other right of entry visit. Those are available if the permit holder falls foul of the legislation. The respondent's submissions also posit that there's some absurdity in that if the Commission finds in the applicant's favour, all of a sudden there's going to be rights of entry on various other equipment including excavators. It's simply not the case. The applicant has never sought to exercise a right of entry in respect of those particular locations. It's merely speculative on the part of the respondent.

PN57

It's conceivable that a permit holder might seek to gain right of entry to that type of equipment, however they would have to comply with the Act, try and reach agreement, and if there is still a remaining dispute and the parties can't reach agreement there is an avenue through the Fair Work Commission, as we are here today, to resolve that situation. It's not one that we're dealing with today. The real absurdity created by the respondent's position is that if the respondent is correct they could simply assert that other locations are used for other purposes as well. That clearly cannot be the case.

PN58

The crib rooms in the other locations, as the evidence has exposed, is that they're used on occasion for people completing paperwork, just as the dragline crib rooms are, they contain computers, access to documents, standard operating procedures. There is nothing stopping the respondent from running the same argument in respect of those locations. That's the real absurdity, the applicant submits. Deputy President, aside from any questions the Commission might have, that's all we intend to state at this point.

PN59

THE DEPUTY PRESIDENT: No, thank you. I don't have any questions. Thanks Mr Anderson.

PN60

Mr Murdoch?

PN61

MR MURDOCH: Yes, thank you, your Honour. Can I just note that my client relies upon the written submissions filed 10 November 2014 and also its closing submissions filed 30 April 2015, and I'd ask with respect that the Commission take those documents as read. Can I deal firstly with the document that my friend has sought to tender. I don't intend to dwell very long on that document. Can I just say this about it. It's clear from any reading of it that it's a policy document that has been submitted by BHP Billiton to the Productivity Commission.

PN62

In my respectful submission this document and what it contains may be relevant for the purposes of the considerations of the Productivity Commission but, with respect, it's not relevant for the purposes of your considerations. What's relevant for the purposes of your considerations is of course the Commission's interpretation, after hearing the submissions of the respective parties, of the relevant provisions of the Act to be considered in this matter and the evidence that has been put before the Commission by the respective parties; not policy statements made in a document to an unrelated forum. So in my submission the Commission can put this document to one side and not give it any further consideration.

PN63

Can I then deal with the matters that in my submission are before you. I want to deal with the matter in essentially three stages. I want to first deal with the correct interpretation and application of that interpretation to the facts in this case of section 492(3). I then want to deal with the question of whether or not there has been agreement or attempted agreement for the purposes of that section, and then I want to address you briefly on what in any event should be the disposition of this matter.

PN64

So dealing with those matters in turn, section 492(3) is a quite specific section both in terms of the words that it uses and also in terms of what its purpose is. When one analyses section 492(3) in the context of section 492 as a whole it becomes apparent that section 492(3) only applies where section 492(2) is met. So it's not a section of general application, that's the first point. The second point is that because it's not a section of general application, section 492(3) deals with what is in effect the default location for the holding of interviews and discussions. One only gets to that section and the application of that section where there can't be agreement between the relevant parties in respect of where discussions should be held.

PN65

So the fact that section 492(3) identifies the default location is, in my submission, a powerful indicator in itself that the area or room referred to in 492(3) can't be given too broad an application. Because if it did it would then call into question the need for there to be discussion, negotiation, debate between the parties at all for the purposes 492(1). Now the second point to note about section 492(3) is its structure. It provides for the default position of conducting the interview or holding the discussions in any room or area where both (a) and (b) are satisfied. Now subsection (a) deals with:

PN66

A room or area in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks.

PN67

That must be satisfied and even if it is satisfied there's then subsection (b):

PN68

The room or area, even if it is one in which people ordinarily take meal or other breaks, it must be a room or area that is provided by the occupier for the purpose of taking meal or other breaks.

PN69

So it's not enough that it's a location where people do take meal or other breaks. It's not enough that it's a location where people are permitted to take meal or other breaks. It is not enough if it's a location where people take meal or other breaks notwithstanding that's not the purpose of the area. It must be a room or area that is provided by the occupier for that purpose. Now the difficulty, in my respectful submission, for the applicant in this case, the fundamental difficulty for the applicant in this case is that the area here regardless of whether one describes it as a corridor, as a crib area or whatever, the area here on the evidence is clearly a multipurpose area that is not provided by my client for the purposes taking meal or other breaks.

PN70

Once that's accepted it's irrelevant that people might be allowed to take their meals there. It's irrelevant people might take their meals there, and I'll take you in a moment to the evidence which demonstrates that this is not a room that is provided for the purposes taking meal or other breaks. In respect of the interpretation that I suggest is the appropriate one to be accepted there needs to be care, in my submission, to not read section 492(3) too broadly. There needs to be care not to read it too broadly, certainly because of the actual structure of the section itself, but there also needs to be care to not read it too broadly because of the nature of the activities that the section is dealing with.

PN71

Not only is it the default room it's also a room that is to be used for right of entry. Now as you will have seen from the discussion set out in the Boral case that I'll take you to in a moment, and as you will have also seen from the various Federal Court authorities that I've referred to in the written submissions it's accepted, in my submission, that care needs to be taken when interpreting provisions that apply to and provide for a right of entry.

PN72

That's because the mere fact that right of entry is allowed is something which is an incursion into the rights of an occupier. It is a departure from the rights of an occupier that exists generally at law, so there needs to be caution when interpreting such provisions. Now to make good that submission can I just ask you to note in particular what Gostencnik DP said in the Boral case and I'll just - do you have a copy of that? I can hand one to you if you like? I'm instructed that we've already provided a copy of that to you.

PN73

THE DEPUTY PRESIDENT: Yes. Yes, there's one here.

PN74

MR MURDOCH: Can I ask you please to turn to paragraph 26 and paragraph 26, there's no need that it be read into the record but I'll just pause to allow you to note it. It's an acknowledgement by the Deputy President of the principles that I've just taken you to.

PN75

THE DEPUTY PRESIDENT: Yes.

PN76

MR MURDOCH: And further to that end can I ask you to go to some paragraphs in two Federal Court decisions, one being Darlaston v Parker, the second being AMIEU v Fair Work Australia, and I'll hand you a copy of those. In the Darlaston case, your Honour, can I ask your Honour to go to paragraph 44?

PN77

THE DEPUTY PRESIDENT: Yes.

PN78

MR MURDOCH: And you'll note that paragraph 44 itself extends over a couple of paragraphs.

PN79

THE DEPUTY PRESIDENT: Yes.

PN80

MR MURDOCH: And then the AMIEU case, can I ask your Honour to note in particular what was said by their Honours at paragraph 57 - I beg your pardon, 56 through to paragraph 59 in particular, and you'll note from paragraphs 56 through to 59 a reference to a range of other cases including some cases of some antiquity stressing the importance of the rights of occupiers. You'll note the Earl of Chatham's comments in particular.

PN81

THE DEPUTY PRESIDENT: Yes, and Entick v Carrington. Yes.

PN82

MR MURDOCH: And then cases of - a modern re-statement of such principles can also be seen in the Meneling Station case that's extracted at paragraph 59. So in my submission there is the established principle of the need to adopt care in not interpreting right of entry provisions too broadly. The other point that's relevant, in my submission, is the need to interpret section 492(3) in its context. As is set out in the written submissions the context in this case comes from a range of sources, one being the Part 3-4 itself, the objects of which are contained in section 480; and you'll note in section 480 of the Act that that word "balances" appears, which is also a word that was referred to in the Meneling Station extract that I took you to a moment ago. That the object is to establish a framework for officials to enter that balances rights and importantly it needs to balance rights - and this is subparagraph (c):

PN83

the right of occupiers of premises and employer to go about their business without undue inconvenience.

PN84

Another matter to be noted in respect of the context when one interprets section 492(3) are the objects of the Act generally and I'd ask you to turn briefly to section 3 and to note that amongst the objects of the Act we see subsection (3)(e) which has an emphasis there on the recognition of the right to freedom of association. Can I then ask you to turn back to Part 3-4 and to go to section 484(c), and of course in the event that a person does enter to hold discussions, and of course this case is about the location of those discussions, the very entry to hold discussions is subject to restrictions and constraints. One being that:

PN85

Where a permit holder enters premises for the purposes holding discussion with one or more employees

PN86

et cetera, that entry to hold discussions can only occur in respect of persons who wish to participate in those discussions. Now in my submission that's another factor that needs to be borne in mind in applying section 492(3) because given that we have a part which restricts the extent to which discussions occur that restriction, in my submission, is relevant in determining for the purposes of section 492(3) how broadly the concept of the purpose of taking meal or other breaks is to be interpreted. Because if that section is read too broadly it can be read in such a way that it is inconsistent with the capacity of people to not wish to participate in discussions.

PN87

Now it seems that the approach that's taken by the union in this case is that section 492(3)(b) should be read in such a way that provided that the room or area in question is a room or area in which conceivably people can take meal or other breaks, that it's caught by section (3)(b). The difficulty with that interpretation is that that is not an interpretation that is consistent with the words of the section. It's not consistent with the approach of not reading such provisions in a fashion that is overly broad given the nature of such sections. It's not consistent with, in my submission, the objects of the part which require the part to operate in a balanced way and it's not consistent, in my submission, with interpreting section 492(3)(b) in such a way that it can operate consistently with other provisions of the Act such as 484.

PN88

The words that are used, in my submission, should be applied to mean what they say. A room that is provided by the occupier for the purpose of taking meal or other breaks, and if it is read in that way in the facts of this case it doesn't have the outcome that there is no place for discussions to occur because, as the facts in this case demonstrate, in this case there is a purpose-provided crib facility which can be used by the relevant employees, which ably satisfies section (3)(b). Whereas if one applies the broad interpretation, the overly broad interpretation that the union wishes to place on section 492(3)(b), in my submission it leads to a range of circumstances which couldn't have been contemplated sensibly by the legislature and which fundamentally could be seen to cut across the balanced approach which the objects suggest should be taken.

PN89

Essentially if the union's approach was adopted then discussions could occur wherever employees are allowed to take their break be it, yes, I accept that this case is not about taking a break or holding discussions in the cab of heavy equipment. It's not a case where this case is about taking a break in a crane. However that's where the section would be able to be applied were the broad interpretation of the union accepted. If the union's interpretation were accepted, if employees took their crib up in the crane that's where the discussions could occur.

PN90

If their interpretation were accepted, if an employee simply had their crib in some part of the work area where there happened to be a chair where they could sit down and have their cup of tea and have their sandwich, that would be where on the union's interpretation of section 492(3) breaks could be taken. They're not extreme examples. Their real, practical examples of what could arise were the impermissibly broad approach that's put forward by the union to be accepted. So answering the question applied on the union's interpretation would lead to discussions being able to occur at diverse locations throughout the employer's premises where people happened to be allowed to take a meal.

PN91

It would lead to a situation where there could clearly be inconvenience and disruption to an occupier were such diverse locations able to be utilised, and it would also lead to a situation where the ability of employees not to participate in discussions could be significantly cut across. Whereas if one applies the section in the way in which it was intended, that being a place where people take their meals in a place that's provided for that purpose, then none of those difficulties arise and, importantly, the union can still have discussions with employees in a way that is consistent with the operation and intention of Part 3-4.

PN92

So in my submission all of those matters point quite compellingly to why it is that the correct interpretation of section 492(3)(b) is that the place which is referred to in that section is the place that is actually provided by the occupier for the purpose of taking meals, not a place where there's some incidental use, such as in the present case, for the purposes of meals. Now once that's accepted on the facts of this case, the area in dispute simply can't be the subject of an order under section 492(3) because on the facts of this case it is certainly not an area or a room provided for the purpose of holding meal or other breaks.

PN93

Now the facts are set out extensively in the written submissions but just to remind you of a few matters that demonstrate the multifaceted nature of this area, as opposed to it being provided for the purpose of meals, is the fact that it is the place where the cab is accessed, it's a place where there is a range of equipment including safety equipment stored. It's a place where paper and computer work in respect of the operation of a dragline is performed. It's a place where training in respect of the occupation of the dragline is performed. It's a place where discussions occur in respect of the operation of the dragline including discussions between and with supervisors, with maintenance persons.

PN94

Yes, there are various meal type devices there but it must be remembered that those facilities, and on the evidence, are also able to be utilised for the purposes of sustenance such as coffee and tea et cetera being provided to the operator while the operator is actually operating the dragline. The fact that intermingled with all of those uses that are directly associated with the operation of the dragline it's also possible for people if they wish to take their crib in the area doesn't transform it into an area provided for the purposes of taking meals. In fact one can test the theory of the union by considering it in this way.

PN95

If the various devices that the union refers to such as microwaves et cetera were removed from the area, would that change its purpose? The answer is no because it would still remain the multipurpose area that I've described. So in my submission when one applies - I beg your pardon, when one interprets section 492(3) correctly and when one applies that interpretation to the facts of this case, it's certainly not a room provided for the purpose of taking meal or other breaks. Such activities are barely incidental activities but are certainly not the activities which are the purpose of the provision of the area. Now unless there were any particular matters that you wished me to further deal with in respect of the interpretation and application of 492(3), that was all I wished to say about that.

PN96

THE DEPUTY PRESIDENT: Thank you.

PN97

MR MURDOCH: Can I then move to deal with the other or second aspect of the case, being whether or not this is a case in which section 492(2) applies. I rely upon what's set out in the written submissions primarily in that respect. There are comprehensive submissions made in that regard, particularly in the closing submissions from paragraph 76 to paragraph 82. But can I just remind you briefly of a couple of observations of Gostencnik DP and then briefly say why, in my submissions, those observations are relevant here. Can I ask you to go back to the Austral Bricks case and to go to paragraph 38 firstly?

PN98

THE DEPUTY PRESIDENT: Yes.

PN99

MR MURDOCH: His Honour there has set out what in his view amounts to trying to agree and notably in his Honour's view, and a view that my client submits is correct:

PN100

trying to agree involves more than turning up to the discussion with a fixed view and without a preparedness to consider the other party s view about the location in which discussions should be held.

PN101

Can you then go to paragraph 55?

PN102

THE DEPUTY PRESIDENT: Yes.

PN103

MR MURDOCH: Just note the first line in paragraph 55 and then can I ask you to go to paragraph 67 where his Honour sets out what reasonable steps to try to reach an agreement means in the particular recommendation. Can I then ask you please to take up the closing submissions of my client and as I said, this issue is dealt with from paragraph 76 to 82, but can I ask you particularly to note what is set out in paragraph 81 at subsection (c) which begins on page 33.

PN104

THE DEPUTY PRESIDENT: Yes.

PN105

MR MURDOCH: Now without reading those matters into the record, in my submission when one tracks through the statements of Mr Pierce referred to in subparagraph (c) it becomes readily apparent that Mr Pierce didn't genuinely try to reach agreement with my client but at all material times had a focused, in fact a fixed view that he was entitled to access the area in question in this case. There appears to have been no real consideration as to the appropriateness of the alternative venue, and one wonders why the alternative venue is consistently rejected if it was properly considered, when one takes into account all of the steps that my client was prepared to take to auspice access to that venue.

PN106

It seems that regardless of what my client sought to do it wouldn't have mattered what it sought to do in respect of auspicing discussions in the purpose-built crib room. None of that would have been accepted and that's because there is this singular, fixed focus on getting access to the dragline regardless and irrespective of all of the reasons why, as has been set out in my submissions already, both written and oral, the dragline is a singularly inappropriate place to hold the discussions. Can I then move to deal with the third matter I wanted to address you on, being the disposition of this matter, and can I ask you to go back to the questions posed. They're set out in numerous places in numerous submissions of the parties.

PN107

But if you have my client's closing submissions, if you go back to paragraph 4. The questions are firstly dealing with whether or not the specified locations are a room or area in which discussions may be held for the purposes of section 492(3). Well, that first question in my submission will be resolved assuming that you're satisfied that 492(2) is satisfied. That first question will be resolved by the Commission interpreting the legislation and then applying the legislation to the facts. But then there's the second question which deals with in all of the circumstances, which in my submission allows the Commission some latitude in respect of how it determines this dispute.

PN108

In my submission even if you were to find - and of course this is against what I say is the correct view - even if you were to find that this room was a room in which discussions may be held for the purposes section 492(3) you still have the capacity, in my submission, under the second question to not find for the purposes resolving this dispute that Mr Pierce is entitled to hold discussions there, and that's because even if you were to find that it was a room for the purposes of 492(3) there are still the range of practical difficulties that exist in respect of that room being used as the room to hold discussions that have been identified in the evidence.

PN109

And there is the fact that there is the capacity particularly with the assistance that my client has been prepared to offer in respect of allowing operators to access the alternative place, that being the purpose‑built crib room, for discussions to be held there. So there's no suggestion that the purpose‑built crib room is not also a room for the purposes of subsection 492(3). So in my submission you have the capacity and you would be able to, and my client would submit that you should, find that in any event this dispute should be disposed of on the basis that Mr Pierce should not be entitled to hold discussions in the dragline, but that such discussions can and should occur in the purpose‑built crib room. Unless there's anything further, they're my submissions.

PN110

THE DEPUTY PRESIDENT: No, thank you, Mr Murdoch.

PN111

Mr Anderson do you have anything in reply?

PN112

MR ANDERSON: Yes, thank you, Deputy President. I might just deal with one of the last points my friend was making, suggesting that the alternate crib room proposed by the respondent is still a room under section 492. That might be the case if the employees ordinarily took their meal and other breaks there but they do not, and that's the evidence before the Commission. Secondly, I just want to refer to the decisions my friend mentioned earlier and in particular the Darlaston case, and I refer to paragraph 44 of that case:

PN113

the encroachment is no greater than the statute allows expressly or by necessary implication.

PN114

In this case we say that the statute is quite clear and indeed in any event there would be a necessary implication because the employer, as I've submitted earlier, could simply say that the purpose of these other rooms is not for the purposes of crib. It's not the applicant's position that a right of entry can be exercised just wherever employees happen to be eating a sandwich. That's clearly not our position and we reject that submission. What we have here is a room where they've got inbuilt structures for the purposes of taking meal or other breaks. This is not some attempt by the applicant to hold right of entries in someone's personal office where they happen to be eating a sandwich.

PN115

That is a different case and it is not what we're here to decide. I note that the applicant has previously referred to - and this is in the applicant's outline of submissions at paragraphs 14 and 15 - the term premises used in the Fair Work Act. That clearly contemplates premises in the context of mine operations, various equipment vehicles. That is relevant, in our submission, to the context in which the term "room or area" is mentioned in 492 of the Act.

PN116

The scope is not limited to fixed plant in any way. The submissions made in respect of cranes and other equipment, it may well be the position that a permit holder is entitled to conduct a right of entry visit on a crane but that's not what we're deciding here and we don't have those facts in front of us. My friend suggested that Mr Pierce had a focused or fixed view. He may well have had a focused view. Certainly initially the evidence would appear that he was focused on exercising a right of entry at the dragline crib rooms.

PN117

That's the location which he proposed that the visit would occur. There is nothing wrong with that. It is quite a different thing to say that that was a fixed view, and the evidence before the Commission and the correspondence which is attached to Mr Pierce's statement and also the agreed outline of facts clearly demonstrates that Mr Pierce responded to the concerns or to the issues raised so far as they were raised, and there weren't many. Indeed really the primary question from the respondent was simply that Mr Pierce couldn't go there because it was operational equipment. He has dealt with that.

PN118

He has dealt with several other matters and he has expressed his view. He has decided in the circumstances and based on the exchanges that the dragline crib rooms were an appropriate location, and he's entitled to do so. It's not a case of no matter what my friend's client did or did not do. His client really didn't do anything apart from say that it was operational equipment and they put their first position which was the alternate - what has been termed the alternate crib room but essentially it's their alternate position or their first position.

PN119

That's predicated on the basis of a policy which says - and the witnesses were obliged to follow - but it says that they will not permit access to the draglines. That is the fixed view here. Finally by way of reply I simply mention that the agreed questions for dispute as raised by my friend talks about all the circumstances. That is correct. We submit that in all the circumstances, regardless of what my friend has said, that Mr Pierce was indeed entitled to exercise a right of entry and hold discussions in those locations. The question as it's phrased to be decided by arbitration is "In all the circumstances was Mr Pierce?"

PN120

What we submit in respect of that is that that should be formulated on the basis of the information that was there at the time. The evidence in respect of that is simply that the respondent took the view that it was operational equipment and again, contrary it seems to the position publicly adopted, and in the absence of the real decision maker or person who was communicating their position, who again simply wasn't called before this Commission. Deputy President, those are the reply submissions of the applicant unless you have any questions.

PN121

THE DEPUTY PRESIDENT: No, thank you. I'll indicate that I'll reserve my decision and I will issue it in due course. I'll adjourn.

ADJOURNED INDEFINITELY [11.17 AM]