RE2015/1173, Transcript of Proceedings [2015] FWCTrans 494 (26 August 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052324

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COMMISSIONER BISSETT

RE2015/1173

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

National Union of Workers

and

Costa's Pty Ltd

(RE2015/1173)

Melbourne

4.35 PM, THURSDAY, 13 AUGUST 2015

PN1

THE COMMISSIONER: I'll take appearances.

PN2

MS A WYRICK: A Wyrick. I'm with the National Union of Workers.

PN3

THE COMMISSIONER: Thank you.

PN4

MS F BELL: Fiona Bell, Costa's Pty Ltd.

PN5

THE COMMISSIONER: Thank you, Ms Bell. I've listed this matter for an urgent hearing because I did today receive an email from the NUW - from you, Ms Wyrick - where you said:

PN6

In our view, this matter is quite urgent and we request the Commission make an interim order concerning this dispute, in accordance with section 582(2).

PN7

I'm not predisposed to making interim orders certainly when no‑one tells me what the form of the order is that's being sought, which you didn't do. Also I wasn't quite sure from the file exactly what the issue in dispute was either. I thought that it was better to have the matter listed. You can make what submissions you want and, if you're still pressing the interim order, then I will consider that.

PN8

Having looked at the file, I notice that the last attempts to exercise a right of entry were yesterday and today. I'm not quite sure when the next attempt is; whether it's already scheduled, whether the notice has been given to the company or not. I'm not quite sure whether an interim order is still required. I thought this is an opportunity for you to make whatever submissions you want.

PN9

If the parties think that it's useful, we can at some stage go into conference and see if we can't fix it altogether, but perhaps you might at least for my information purposes, Ms Wyrick, give me some background to the dispute.

PN10

MS WYRICK: Sure. I apologise that it wasn't clear from the application that has been provided. We have had an issue concerning the right of entry at this site on 30 and 31 July, then again on the 12th and today on the 13th. Right of entry has been put in for tomorrow and the organisers would very much like access to the break areas to hold discussions with workers.

PN11

We have asked for an interim order because we were unable to gain access to what we would view as the appropriate areas to hold discussions in previous visits. The organisers put an amount of time and planning into these visits. There is an amount of training that happens and also organisers who are based in Melbourne fly to the area and stay in the area, and have other interactions with workers outside of the workplace but certainly would expect to be able to hold discussions in the break room. We view this matter as urgent, because there is a right of entry for tomorrow and we hope to get in to hold discussions.

PN12

In seeking the interim order, we believe the balance of convenience clearly favours the NUW, in that it would prevent the NUW from holding discussions with employees of the company and from receiving information at work from the NUW officials. These are rights recognised in section 480 of the Fair Work Act and consistent with the objectives of the Act as set out in section 3(e):

PN13

Enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented.

PN14

It is our understanding from the officials' conversations with Ms Bryony Hackett, the site manager, that in order to access the break areas, the officials would have to undergo an induction. This is a normal function of companies. It's very often that organisers undergo inductions. The problem in this instance is that the company will not provide an induction for the organisers to enter the site and this is why we're asking for an interim order if it's really just the need to undergo an induction.

PN15

Ms Bryony Hackett has informed the officials that should there be an order to make the company - allow an induction for the officials, they would then gain access. We feel that that is really unnecessary if that's really the only contingency.

PN16

THE COMMISSIONER: Sorry, did you just say that Ms Hackett - is that her name?

PN17

MS WYRICK: Yes, Bryony Hackett.

PN18

THE COMMISSIONER: Did you say she had said to the organisers that if the Commission issued an order directing them to provide the induction, then they would?

PN19

MS WYRICK: Yes. From the officials' notes on the conversations with Ms Hackett, even going back to the 30th, the 31st and yesterday, Ms Hackett's instructions are to "take it up with the Commission and if we're made to allow access, we will then."

PN20

THE COMMISSIONER: Okay. Do you have a draft order?

PN21

MS WYRICK: I do not.

PN22

THE COMMISSIONER: It makes it quicker and easier.

PN23

MS WYRICK: Yes. I'm sorry, I had a conference before this and I wasn't able to prepare one.

PN24

THE COMMISSIONER: I understand from the correspondence that has gone backwards and forwards between the NUW and the company that there is a location where the company is saying that the union can meet with the employees. What is the issue with that location?

PN25

MS WYRICK: That location is outside of the normal work area. In our view, the location of the room - and the site manager has also offered the parking area. We don't find these locations an appropriate area to hold discussions. The location of the room or a parking area would make it difficult for persons to participate in the discussions because the room is not easily accessible during meal times and other breaks. They would have to leave the glasshouse and go outside. We don't view that as an appropriate location - or the parking lot.

PN26

THE COMMISSIONER: Because they have to go outside?

PN27

MS WYRICK: Because there is a nature of hygiene in the glasshouse. It would take some additional steps for them to leave the facility in order to go to the parking lot to have a discussion. It's also meant to snow there today, so for various reasons we don't believe that this is an appropriate area.

PN28

THE COMMISSIONER: So part of the reason is it's outside this hygiene area that has been established?

PN29

MS WYRICK: It takes additional steps to either access the room or to the parking lot and then to go in and to be prepared to work again.

PN30

THE COMMISSIONER: Yes.

PN31

MS WYRICK: That takes away from breaks or from the times that discussions would be allowed to be held. Additionally there is some, I guess, fear of being known. If you're obviously accessing that room, you're passing by the office in plain sight of being known to go out of your way to speak to union representatives.

PN32

THE COMMISSIONER: Okay. Thank you. Ms Bell?

PN33

MS BELL: Commissioner, I would like to respond first that there has been no refusal or obstruction for the right of entry. We respect the right of entry rights that the NUW have. On 30 July, we wrote to Mr Sam Roberts, the central branch secretary, about our critical plant‑out period; to advise him what the restrictions regarding hygiene protocols were and also to advise that we would provide a reasonable room. We provided advanced notice of that.

PN34

In regard to our risks from a crop perspective, I think it's quite important that we cover those. There are four main risks to our crop from a hygiene perspective. These are predominantly spread by people between growing areas and regions. Obviously I'm not a technical expert and we most likely would have provided that support if we had a little bit more notice.

PN35

THE COMMISSIONER: I appreciate that.

PN36

MS BELL: So I might have to refer to some documentation on that. However, during our plant‑out period, what we need to do is photo‑sanitise our glasshouse. We're quite unique in the way that we're set up, so we've essentially got one 10‑hectare block and another 10‑hectare block separated by the amenities. The lunch room is actually smack bang in the middle of those facilities. What we're looking for at that time is protection from a cross‑contamination standpoint. The four main tomato - - -

PN37

THE COMMISSIONER: Sorry, could I just ask can you get into the lunch room without going through those 10‑hectare blocks?

PN38

MS BELL: Not without going through the main part where there is that cross‑contamination. The access point would always be exposed at that point. It probably actually would have been useful if I had a map. Essentially you've got the main entry point, which is down a hallway, and you've got your foot baths and your wash areas.

PN39

THE COMMISSIONER: Yes.

PN40

MS BELL: In one area you've got one glasshouse and then as you walk through to the lunch room, you've got your other glasshouse on the other side of that lunch room.

PN41

THE COMMISSIONER: So to access the lunch room, a person needs to go through the decontamination foot bath and whatever else.

PN42

MS BELL: Correct, yes. The four main bacterial diseases that we're maintaining hygiene control are our bacterial speck, our spot, bacterial wilt and bacterial canker. Canker is probably the worst in regard to that, because there are no known controls for that. Once again, the most known control for that is exposure to people moving between growing regions and growing areas. What we're looking at is really limiting that exposure.

PN43

During that period - and as we wrote to Mr Sam Roberts, we advised that we actually try and limit externals into the building during that time. That's really just from a risk control perspective and that includes customers such as Aldi and Coles, and customers that really would be going to those growing farms and growing regions. Bacteria canker: we've actually had a hundred per cent loss of our crop in the last six years from canker, so it is something that can cause significant risk across our glasshouse. We're actually quite unique in having that central amenity in our building to any other glasshouse in Australia.

PN44

The young plants are actually the most vulnerable to diseases, so it's in those first three months of plant‑out. Essentially glasshouse 2 is that first section when you walk through that walkway and that was planted out at the end of July, so we provided advance notice about that. Then the second plant‑out for the other glasshouse starts at the end of July. There is those three months where it's most crucial to the crop to make sure that we don't have that exposure.

PN45

We've had that quite strict across externals, so we've actually maintained that strict protocol for any other external customers and visitors, including the AWU, who, to be completely transparent, have got a similar hearing tomorrow with the Commission.

PN46

THE COMMISSIONER: The AWU have?

PN47

MS BELL: Yes. Correct.

PN48

THE COMMISSIONER: Do they?

PN49

MS BELL: Yes.

PN50

THE COMMISSIONER: On the same matter?

PN51

MS BELL: Tomorrow, yes.

PN52

THE COMMISSIONER: Do you know who that is before?

PN53

MS BELL: Sorry?

PN54

THE COMMISSIONER: Do you know who is hearing that?

PN55

MS BELL: That is Johns C, I believe.

PN56

THE COMMISSIONER: You don't happen to have the case number for tomorrow, do you?

PN57

MS BELL: The case number? Let me just check.

PN58

THE COMMISSIONER: Is it being heard in Sydney?

PN59

MS BELL: No, it is via teleconference in Melbourne. I don't have the case number. Apologies.

PN60

THE COMMISSIONER: No, that's okay.

PN61

MS BELL: It is at 9.15 in the morning.

PN62

THE COMMISSIONER: Ms Wyrick, were you aware of the AWU - - -

PN63

MS WYRICK: No, I am not aware of that.

PN64

THE COMMISSIONER: That's okay.

PN65

MS BELL: I just want to reiterate that obviously we're quite aware of the rights of the NUW and we wanted to provide a reasonable room. That's why we provided advance notice. The room that we provide is at the entry and exit to the glasshouse, and it actually provides for access to our employees when they enter and exit the building for meal and smoke breaks.

PN66

Since 19 May, we've had 12 visits from the NUW where they have been provided access to the lunch room as normal. From 30 July when we advised Mr Roberts, we have provided the reasonable room and there have been five visits since that time, and we fully expect - - -

PN67

THE COMMISSIONER: In the reasonable room? In the alternative room?

PN68

MS BELL: What we would believe is reasonable, sorry.

PN69

THE COMMISSIONER: No, that wasn't a criticism of the terminology, but you're saying that the NUW have exercised access - exercised their right of entry- and they have used, let's call it, the alternative room five times?

PN70

MS BELL: Yes. Five times since 30 July.

PN71

THE COMMISSIONER: It's only 13 August.

PN72

MS BELL: Yes. There have been quite a number of visits, but I think it's - I guess what I was wanting to address is that we have allowed them use of the lunch room. It's just during our plant‑out period that we're having to be mindful of that exposure and just to reduce that risk. Advice to Mr Roberts was that we're quite happy to provide access to a lunch room once that risk has passed and we believe that that room at the enter and exit should be appropriate for their visits in the meantime. It's really just a period of time while that crop is vulnerable. We have experienced that loss before, so we do see it as quite a high risk.

PN73

During a canker outbreak, if we have 200 workers in a glasshouse, effectively once that outbreak occurs we essentially have to reduce the head count to 50 whilst we replant and re‑sanitise. That's a huge loss in wages. It's a million and a half. You know, we are quite proud as a facility in Guyra. It's roughly a population of 2200 people in Guyra. We can make up to 500 full‑time positions available in our glasshouse and we're quite proud of that, and that we're able to commit to the community in that regard.

PN74

I guess from our perspective it's about making sure that we maintain that risk whilst also providing a reasonable and adequate room for the NUW to continue with their visits. I think we've continued to remain transparent and respectful in our communications in that regard.

PN75

THE COMMISSIONER: What is the process for entering into the facility during this particular period?

PN76

MS BELL: For externals or for employees?

PN77

THE COMMISSIONER: Well, for employees and externals. I would imagine coming from home, it doesn't matter - - -

PN78

MS BELL: It's more the externals in regard to having that control and - being able to monitor and control where they've been and what regions they've been, so the controls are much more strict in those areas. Like we said, we try to actually limit them entering the glasshouse and we provide those alternative spaces where we do let our customers like the Coles and the Aldis know in advance, and they actually don't visit us at that time.

PN79

THE COMMISSIONER: What would you do if I decided to visit the site? What would the process be?

PN80

MS BELL: Essentially what we'd ask is that the visits into the internal site don't occur until we've passed this exposure - - -

PN81

THE COMMISSIONER: I'm a Commissioner. I want to come and do an inspection.

PN82

MS BELL: Then we've also got access to the admin building, which is outside the glasshouse.

PN83

THE COMMISSIONER: I appreciate that you probably asked your employees where they have been. So this is an emergency and I'm going to access the site. What is the protocol that you go through that would allow me to access the site or that would allow someone from the Costa's office in Melbourne or Geelong to enter the site? You must have a protocol for other people to get into that building.

PN84

MS BELL: Essentially it would be having to ensure that someone changes their shoes and their clothing when they arrive. With probably an internal employee, we could quite clearly say, "You're not allowed to come from another site wearing the same clothes, the same shoes," so it would be about making sure that they come in with essentially, you know, no exposure. They're bringing no exposure in with them.

PN85

THE COMMISSIONER: But how do you do that? I mean, I could come along and I could have a nice clean pair of shoes - - -

PN86

MS BELL: It's very difficult.

PN87

THE COMMISSIONER: Yes, I appreciate it's very difficult. What I'm trying to do is understand how difficult.

PN88

MS BELL: I guess that's the thing. We find that so limiting to control and monitor, that we actually ask and request that visits don't occur internally during that period. We maintain that with all our externals.

PN89

THE COMMISSIONER: So you're telling me that you don't allow any external person to visit that site for a three‑month period?

PN90

MS BELL: Not within the internal area. We have had some external visitors enter the hallway, for example. There is a vending machine just in the initial hallway. That person doesn't go past that entrance point. Also any visitor will come through the admin area. So they can come in through the initial hallway and access through the admin part of the building.

PN91

THE COMMISSIONER: To access the alternative room - the alternative location for the union to meet - do the employees need to go outside?

PN92

MS BELL: Yes, correct.

PN93

THE COMMISSIONER: They do?

PN94

MS BELL: Yes.

PN95

THE COMMISSIONER: Okay. Thank you. Ms Wyrick, you're telling me that your organisers haven't told you that the AWU is also there? They're trying to exercise a right of entry, it seems, at exactly the same time that you are.

PN96

MS WYRICK: The officials haven't run into AWU officials. I mean, certainly we're aware that they're occasionally on the site. No, we were not aware that they were also - - -

PN97

THE COMMISSIONER: There can't be that many union officials running around this part of New South Wales.

PN98

MS WYRICK: I agree. It is interesting and certainly the first I've heard of it. If the officials were aware of it, they definitely would have made me aware.

PN99

THE COMMISSIONER: They seem to have a very similar complaint to yours. I'm a bit concerned that there are two applications being dealt with by separate members of the Commission at the same time. It's just a question of how they have come in and what people have put on their application forms; whether they've been sent off in the right direction. Sorry, Ms Wyrick, do you want to respond to what Ms Bell has said?

PN100

MS WYRICK: Yes. I would just like to make a couple of points. There are currently - - -

PN101

THE COMMISSIONER: I'm sorry, Ms Wyrick. Just before you do, there is one question I need to ask you, Mr Bell. Ms Wyrick said earlier that Ms Hackett had said, well, if the Commission makes an order, then the company will comply. Do you know what she meant by that?

PN102

MS BELL: Yes. Ms Hackett has been in correspondence with myself quite regularly about the visits. On a number of occasions, we have had quite difficult relations with the NUW in regard to not responding to reasonable instructions. An example is actually on 30 July, we provided instructions that the union officials were required to call Ms Bryony Hackett when they required toilet breaks and we would escort them to the appropriate part of the building.

PN103

It was discovered that the union officials had entered the main part of the glasshouse. They had contacted an admin person who was new and, unfortunately, we had that breach of hygiene. We had to have quite a significant clean‑up after that period and we had to disinfect that whole entry way because of that risk, but we felt that the instructions were quite clear. We have had quite a number of times when we have made these instructions, that they've breached across not only our tomato category but our berry. I've got quite a few letters here to Mr Sam Roberts about these breaches. I'm happy to provide a copy.

PN104

THE COMMISSIONER: What Ms Wyrick said was that Ms Hackett said, "If the Commission makes the order, then we'll grant the right of entry." I'm just trying to understand what she - - -

PN105

MS BELL: Sorry, I was getting to that point. We entered into quite a few conversations about these instructions and at numerous times we found that the union officials didn't agree with the instructions. We maintained our right that these were reasonable instructions in regard to our hygiene and safety protocol, but Ms Hackett did advise that she got to the point where she advised that we have provided our information through to the union officials on a number of occasions and we would like to just reiterate that we have that reasonable space.

PN106

THE COMMISSIONER: Thank you. Sorry, Ms Wyrick.

PN107

MS WYRICK: I guess I'll just address that instance. We were not aware of any restrictions to the right of entry prior to the organisers attempting to enter the premises on 30 July. There is correspondence between Mr Sam Roberts, the assistant secretary of the branch - of NUW - and he had a conversation with Mr Carl Phillips, and then Mr Phillips sent the information concerning a period of 22 weeks.

PN108

It was not malicious on the part of the organisers to want to access a toilet and to ask for an escort, which they received. By asking for that, it just wasn't an action of malice in any possible way. We are very respectful to the business and to the needs of the business. There are, you know, inductions on sites where I have had to change my shoes. This is not an abnormal process and we would be more than willing to - - -

PN109

THE COMMISSIONER: I think it's more than shoes. I think the problem here is not just shoes. It's where you have been and what you're bringing in on your clothing.

PN110

MS WYRICK: Yes, which is why they would prefer that you don't bring in the shoes. I assume that they have shoes for the workers to wear, because the difference between what the company is calling externals and employees - you can ask the same of employees and externals where they have been, but there's no guarantee, you know, of where they have been. I just assumed that there is - - -

PN111

THE COMMISSIONER: One suspects that when the company asks their employees not to travel to other planting areas and employees give an undertaking that they haven't, that the company act in good faith on that.

PN112

MS WYRICK: Sure.

PN113

THE COMMISSIONER: If their employees aren't telling them the truth, well, that's perhaps a matter that will come up in different proceedings.

PN114

MS WYRICK: Yes. That's really irrelevant. My point is that we're willing to undergo whatever safety procedures we would need to undertake to access an appropriate area. The visits that were mentioned, we have not - I think there is some confusion about the notices that we've provided and what had occurred, which is that the room wasn't accessed and in different instances there was the parking lot where - you know, outside of the gate, that the organisers used in an attempt to hold discussions with workers. Certainly the room hasn't been used and it's still not an agreed space that's appropriate to hold discussions. I think that's it.

PN115

THE COMMISSIONER: Thank you. We will go off the record.

OFF THE RECORD [5.06 PM]

ON THE RECORD [5.22 PM]

PN116

THE COMMISSIONER: I would like to thank the parties for their submissions and assistance in terms of this application for interim orders to be made with respect to the application that I have got before me. In the circumstances of the matter before me and taking into account the information that has been provided by the company with respect to the security of the crop, I am not convinced that the balance of convenience favours the granting of an interim order as sought by the NUW. For that reason, the application for an interim order is refused.

PN117

I would very strongly recommend, however, that given I have refused that interim order request, that means the union will be required to meet with the workers either in the alternative facility, as it has been described, or I understand potentially in a small meeting room in the administration area. With respect to this, first of all, an NUW organiser who is up there exercising their right of entry should have a look at the meeting room in the administration area and consult with the workplace delegate or members - whoever is most appropriate - about whether that is an area that the workers would be comfortable using to visit the union. If that room is not suitable, then at the moment the alternative room is the facility that is available.

PN118

In either case, given that the room for the meeting will be outside the hygienic area and the controlled area at the site, I very strongly recommend that the company provide employees with an extra five to 10 minutes of paid time on either side of the lunch break, however it is best to organise, to give the employees adequate time to move out of the hygienic area but then, more importantly, to go through the appropriate protocols prior to moving back into the hygienic area. I recommend that the company provide the NUW with a comprehensive briefing of the hygiene issues associated with the area at this particular time and that the NUW and the company see if you cannot find a resolution to the right of entry problem.

PN119

The NUW should advise me within the next week - so by close of business next Thursday or earlier if that is the case - on whether they want this application heard in full given that I have only made a decision on the application for interim orders today. Anything else? No? We will adjourn. Thank you.

ADJOURNED INDEFINITELY [5.25 PM]