RE2018/704, Transcript of Proceedings [2018] FWCTrans 244 (13 July 2018)

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PN1

THE COMMISSIONER: Yes, good morning. We might start by taking the appearances in the matter, please.

PN2

MR T HAENEN: Toby Haenen, director Engine Swim.

PN3

MS V WILES: Wiles, initial V, for the manufacturing division of the CFMEU. Thank you.

PN4

MR HAENEN: Pardon me, Commissioner, it's my first time appearing before the Commission so I am a little unfamiliar with the protocol if I can be excused.

PN5

THE COMMISSIONER: We try to be as flexible as we can with these things. I don't think we need to worry too much about protocol in all of this, but, Mr Haenen, it's your application and we have listed it today for mention and directions. It appears that you're aggrieved about the frequency of visits from someone from the CFMEU or something.

PN6

MR HAENEN: That's correct, Commissioner. Should I explain my stories, is that - - -

PN7

THE COMMISSIONER: You can give me a brief outline of what it is that concerns you, yes.

PN8

MR HAENEN: Sure. So first of all we were given an entry of notice which was approximately back at the beginning of May. We're a small swimwear company in Melbourne. We employ less than ten people, probably about six full-time people, so one in accounts, two in design, one is the manager of warehouse and a customer service.

PN9

Due to the notice we had initial objection to it, but then sort of permitted the notice to be done. The notice was taken and unfortunately – well, no one was interested in it. Just probably a month later we've had the same entry notice be applied to us and, you know, demanding that lunch – a period of the whole lunch break be available to the entry notice, and on those grounds I thought it was quite unfair that this be given to us in a short period of time given only a month ago our experience with it.

PN10

I also just make note that on my objection to the entry notice the correspondence between myself and the entry notice organisation was that – you know, I just – I felt rather intimidated by actions of severe penalties that I could be responsible for should I not permit the entry notice.

PN11

THE COMMISSIONER: I suppose we should perhaps just start from the beginning in all of this. The Fair Work Act does give permit holders rights of entry and those individuals with those permits I think are required to give 24 hours' notice. These are entries that are being taken under a particular section of the Act, section 484, which deals with certain arrangements. Obviously if the frequency of the exercise of the right of entry is something that is seen to be unreasonable, although I think there's quite a high bar here, I think it involves the unreasonable diversion of the occupier's critical resources. But anyway if ultimately the frequency of the exercise of the rights of entering is unreasonable then the Commission can make orders to stop that unreasonable conduct.

PN12

What happens with one of these applications generally is that the parties might discuss particular arrangements that could accommodate the respective positions of the parties and come to some agreed understanding about what might happen. If that can't occur then an applicant with one of these matters can seek an order and that would require the Commission to hold a formal hearing and take evidence before any order could be granted. So when one of these matters starts off we ordinarily try to adopt what you might describe as the course of least resistance, that is let's see if we can sort out arrangements that might be mutually acceptable, but I think we have to do that from the starting point of understanding that even if we don't like it as the employer or the occupier of premises there are rights for permit holders that they can exercise for these purposes.

PN13

Ultimately I would think that if those – if the right of entry is being utilised unreasonably then ultimately the Commission could stop that, but as I say it might be that there could be some capacity here to try and find some understanding or broad accommodation for this. What I am suggesting here, Mr Haenen, is that although it might be to some extent a disruption and it might not be something that you want the right of entry exists as a matter of legal entitlement. It can be removed, but I mean the circumstances for that don't seem to be present at this stage. But I think probably more importantly it might be worthwhile contemplating some discussion with the CFMEU which might lead to an understanding about what may or may not happen.

PN14

I would have thought perhaps the frequency of a monthly visit if there was no success ultimately for the CFMEU it might give up wasting its time if that's what occurs, and certainly if there was some other unreasonable aspect of the exercise of the right of entry then that could be dealt with, but broadly speaking the right exists and it's something that before it could in any way be limited or altered other than what is required in the Act, which is I think a 24 hour notice period, you would have to establish the unreasonableness of the activity, and to be very blunt about it I think one visit one month and another visit another month probably is not really going to satisfy that idea. If you were getting weekly visits and so forth then I might think that's pretty unnecessary, and look if it is the case as you suggest that no one's really interested in listening to whoever it is that comes in for these discussions ultimately that's going to prove to be just a pointless exercise I would have thought.

PN15

What I am really interested, and I will hear from Ms Wiles about this in a moment, but I am keen to invite the prospect of there being some discussion between the parties as to whether an understanding might be able to be reached irrespective of what rights or anything else exists about how this could work creating limited disruption for the employer. Ms Wiles, what do you want to say about the matter?

PN16

MS WILES: Thank you, Commissioner. Are you comfortable if I remain seated at the Bar table or would you prefer me - - -

PN17

THE COMMISSIONER: Yes, if you are more comfortable I would think, and so am I.

PN18

MS WILES: Yes, thank you. Commissioner, thank you for that. The union is actually quite perplexed by this application. At all times in this matter the union and its permit holders have complied with all provisions of Part 3.4 of the Act, and in fact on the contrary it has been the applicant who has breached aspects of Part 3.4 on at least two occasions in denying access.

PN19

We say that the application is misconceived. It is without foundation and should be withdrawn. We have on a number of occasions advised the applicant, or suggested to the applicant that the company should obtain legal advice. We don't know whether that's occurred or whether it's occurred and it's been incorrect or whether it's occurred and it is correct and it's been rejected by the applicant, but in any event in our view the applicant has breached the Act on a number of occasions. So in that respect we are obviously very perplexed by this application.

PN20

The grounds of the application at paragraph 2.1 basically refer to two aspects. One is the frequency and the other is whether a request under section 491, 492A or 499 is reasonable. In relation to the frequency ground the facts are that the union's permit holder Ms Lyn Nguyen has exercised right of entry on only one occasion, on 3 May 2018, and that was for a total of 15 minutes in the tea room at the tea break, and that entry took place after the applicant initially denied right of entry, and that's in relation to that denial.

PN21

Ms Nguyen the permit holder subsequently provided a second entry notice on 12 June, so almost five weeks later, again for an entry under section 484 and for that entry to take place on 14 June. So that was actually 48 hours' notice, and again the company refused access to Ms Nguyen.

PN22

In relation to the other grounds indicated in the application we say that none of those grounds bear any relationship at all to the factual matrix of this case and are of no relevance at all.

PN23

In terms of the union's position we do reiterate that the application is misconceived and should be withdrawn and we again encourage the applicant to obtain some appropriate legal advice about their obligations and rights under the Act.

PN24

If the applicant continues to press the application it will be strongly opposed by the union. Obviously if the matter is set down we will comply with any directions that the Commission issues in relation to that. But just following on from your earlier comments, Commissioner, we do think this is a matter that should be able to be resolved without directions being issued or the matter being set down, and my instructions are that the union is prepared to participate in further discussions. We initially thought that those discussions might be in the form of a conference facilitated by the Commission. If that was a suggestion acceptable by the applicant and the Commission then we would propose that that conciliation be held in Melbourne where both parties are generally located.

PN25

So, yes, in summary we think the application is misconceived. On the contrary we think the applicant has breached the Act. We are here to resolve it, but if the matter goes ahead we will defend it strongly.

PN26

THE COMMISSIONER: All right. Thank you. Mr Haenen, do you think that some discussion with the CFMEU about some agreed arrangements for this might help?

PN27

MR HAENEN: Thanks, Commissioner. Yes, most certainly. I've been involved in a number of different businesses from learn to swim through to the particular style of business we're in now. Discussions always is certainly the first port of call. I guess that in relation to what was said before about the first entry notice this is the first time I've been ever issued with a union notice, a notice of listing, so despite my experience I haven't come across this type of listing before of entry notice. I guess I was a little confused and nave to understand the content of the entry notice given that it wasn't sort of based on a letterhead or didn't have a company stamp or didn't seem to have any sort of – you know, authority other than a squiggle signature listing who it was.

PN28

Of course once I denied initial entry we were then told to seek legal advice. I was advised by a third party HR and OHS company that we would – there is a section which permits the right of entry, which we did permit during the tea break. I guess probably the biggest discussion here and it's when we talk about the relevance of the whole case is really about that and I just don't see how the relevance of approaching and entering a business with half a dozen people that are not in the manufacturing sector, they're actually in the customer service, designers and accounts, how that actually fits into that section, but despite that I am happy for anyone to walk in, ask every individual if they would like to join the union or participate in discussions and let's be done with that.

PN29

I guess I just tried to nip it in the bud at the first point where it seemed like the second entry notice of listing entry notice was more of a nuisance in the fact that they received no traction on the first visit and it became then more of a nuisance notice that they would occupy the lunchtime of people in the business, and from my understanding and if I could pass this understanding on from the particular involved that they have no interest in listening or joining the union.

PN30

Now, probably from a personal point of view I'm there to help and assist and protect my workers as well. I understand, and certainly this is not a dispute over whether the entry notice is permissible or not, I just feel it's unreasonable on the grounds of being a nuisance and given the unsuccessful first entry notice. The entry notice was denied on its first application due to the unprofessional service in which it was delivered, and then in the partly threatening terms of which it was executed if I disagreed with it.

PN31

So there is an explanation on the first grounds and the second grounds is I'm hoping to at least have a discussion upon why another further entry is required with the same small group of people. If the Commissioner enforces that or highly recommends that then we will be subject to nothing less than having that done. I guess the other question was the timing of the entry notice. We can make time available for every single person in the company, five people in the company, to participate in an entry, but whether that's fair and reasonable to allow them to be present during an occupier lunch time period I think is very unreasonable.

PN32

We also as a small company we don't have set lunchtime breaks. People are encouraged to have an hour of breaks and lunch as they feel throughout the day. So lunch may vary between 11.30 in the morning until 2.30 in the afternoon and people are given great flexibility in deciding when they wish to break, eat, take whatever. So by having us to, you know, change our sort of our behaviour around to accommodate this through a whole lunch break I thought was unreasonable as well.

PN33

I guess, Commissioner, the main reason I'm sitting here is I feel – I do feel threatened by the union. It's not for obviously the direct purposes of having staff join them, but just I think in the end which pushed the button for me to make an application here today was the threat of severe penalties and action taken against me. We're a small business, we're a community business and we partner – we spend a lot of money on partnerships throughout the community and we're a good standing community company and people are treated very well and I just think there was unreasonable demands.

PN34

THE COMMISSIONER: Yes. I suppose though, and it's understandable occupiers can feel threatened because the Act does provide for these rights of entry for these purposes, but really to avoid the concern of that sort of concept of a threat it might be better in these circumstances, and entirely without prejudice to your application being pursued after this, it might be that perhaps the best thing to try to do would be to say, well, look, maybe the idea of actually facilitating a visit with plenty of notice and plenty of accommodation for the individual person to discuss with the handful of employees you've got whatever it is they want to discuss. That might be something that's worth contemplating. Sometimes that sort of approach is better than simply saying, well I object to this and I'm reacting very much pushing back against it, and instead saying, maybe the sensible thing to do here might be to say, well, look, okay, why don't we pick a date, I don't know, next week or the week after, whenever it is, you send us your entry notice for that time and on that day and we will let the people know that you're coming, you can have a talk to them at this time which is most convenient for everyone and then let's see what emerges from that.

PN35

If you were to get another visit or an entry notice for the next week or something I am sure that you would have some grounds for saying this is deliberately trying to provoke and it's unreasonable. But my suggestion here might be what if we looked at sort of constructing an organised event, if I can put it that way, saying, look, you're welcome to talk to our staff, we will actually facilitate that. Let's give ourselves a week's notice or more, we will put it together for you, you talk to them and then let's see what emerges after that.

PN36

It might be – and this is one of the things I think you would probably appreciate – the union has limited resources itself, it's not going to keep coming knocking on your door if it's just really wasting time and their resources. It's pointless. So sometimes these things are – it's worth trying this sort of idea of, well we will have a little cooperative organised event and we will see what happens after that.

PN37

As I say if it doesn't prove to be successful and we still have ongoing problems that's entirely without prejudice to your application here. You can obviously press ahead with that and you might be in a stronger position if there were some more frequent visits after the organised event that I am contemplating. But I think in the circumstances it might be better to consider that and actually say, well, okay, we understand that the law, the Fair Work Act gives these rights and so forth. It is a little bit perhaps intimidating for some smaller businesses and so forth. Let's avoid all of that, let's organise an actual event, we will actually have an organised visit and then we will see where we go after that.

PN38

As I say if it turns out to be the case that all of these individuals are quite resistant to joining the union and so forth the union will move on to another place where it might get a better reception to put it bluntly, and if it doesn't and it sort of just continues to badger you and persist with what appeared to be then unreasonable and totally disruptive exercises of the right of entry then your case would be much stronger I think, Mr Haenen.

PN39

So you don't have to do this, but my suggestion to you would be this, that you actually say, and discuss this with Ms Wiles in a minute, and you say, okay, why don't we actually organise this well in advance, a day next week or the week after or something. We will let everyone know that you're coming and you can have a discussion with the employees and then we will see whether or not as a result of that there's some understanding about all of this and hopefully some sort of clear outcome as to what might happen after that. Mr Haenen, do you want to have that discussion?

PN40

MR HAENEN: Yes, I am listening, Commissioner, thank you. Look against what – you know, personal opinion if that would be the only means and grounds of reaching some settlement and to move forward from this then that would be required and we would be accepted - of course coming in here for other periods wouldn't be great business decision, so we'll just need to sort something out.

PN41

THE COMMISSIONER: I think it's something worth trying, because it might prove to be the most successful thing from your perspective. As I say all of your employees are reluctant, there's no compulsion on them to participate in the discussion, and if they're all reluctant and so forth the union person, Ms Nguyen, is probably going to say, well that hasn't proved to be terribly successful so I will move on. Alternatively there might be one or two people – they might say one thing to you of course and another thing to Ms Nguyen, I don't know, and then they might say, okay, we would like to have the union represent us in respect of an issue or something. I don't know, I can't predict what would happen. But I am just suggesting that that approach, at least initially, and it's without prejudice of ultimately you mounting a case if you wanted to, but it seems to me it's worth trying that approach first of all and seeing where that takes you. It might mean that the whole matter is sorted out much more quickly than to run a full case on a right of entry dispute.

PN42

MR HAENEN: Sure.

PN43

THE COMMISSIONER: Ms Wiles, would you be open to having that discussion and seeing whether we could actually come to some agreed arrangement for an organised event like I am discussion?

PN44

MS WILES: Commissioner, I would need to get instructions and I am at a bit of a disadvantage because the organiser Ms Nguyen is currently on a period of personal leave. So I would want to discuss the option with her. I mean obviously your suggestion would also be of no prejudice to the union's rights as well in relation to these matters. I just want to – I do feel like I should respond to a number – I know this isn't a hearing, but I do feel like I need to respond to a number of issues raised by Mr Haenen.

PN45

One is he raised the issue about the original entry notice being in unprofessional form. The entry notice is in the form as required by the Act and it was emailed to him in an appropriate and professional way. So I don't really understand his point about that.

PN46

The issue about lunch breaks and him indicating that there are variable lunch breaks between 11.30 and 2.30; this is an extremely common scenario in the TCF industry. It happens in many places and really has no impact on the union's right of entry. As you would be aware the Act allows a union to exercise its rights under section 484 to hold discussions in workers meal breaks, and if that period is between 11.30 and 2.30 then the union has a right to hold those discussions with people who are interested in having those discussions during that period. So we don't see that that's a barrier or a problem, and in fact Ms Nguyen did ask Mr Haenen in email correspondence to advise her of the meal breaks, which was not provided.

PN47

In relation to – it's an irrelevancy really, but in terms of union members – I mean the right is to hold discussions with people who we are eligible to represent and to members or capable of being members of the union who wish to participate in those discussions.

PN48

Then on the issue of threats all the union has done is indicate in writing to Mr Haenen on behalf of his company that he was in breach, or his company was in breach of the Act. We suggested that he get legal advice and put him on notice that breaching the Act can attract civil penalties. We don't consider that to be a threat, that's essentially just the fact. So particularly in context of two refusals of right of entry. I put those matters on the record.

PN49

In terms of trying to progress the matter as I said I would need to get instructions. We are obviously interested in trying to resolve the matter, and obviously those discussions would be without prejudice to the company and to the union.

PN50

THE COMMISSIONER: All of this is without prejudice to both sides positions. I stress that.

PN51

MS WILES: Yes, thank you. As I said if we are unable to come to some resolution then the company is within its rights to come back here as is the union to initiate or consider its own legal options in relation to the refusals of entry. This matter should be resolvable. As we said we think the application should be withdrawn, but if the company is not prepared to do that then, yes, we do reserve our rights in relation to our own legal position.

PN52

THE COMMISSIONER: I understand that. What's the anticipated length of time of absence of Ms Nguyen, do you have any idea?

PN53

MS WILES: I do, Commissioner. We have been advised that she's on personal leave until – just let me check this – she is due back on 3 July. That's the sort of most latest notice that we have got. We could potentially hold discussions in that week with the company.

PN54

THE COMMISSIONER: Of the week of the 3rd – I will check in a second – but in that week you mean?

PN55

MS WILES: In that week, yes, which is really only a week away in any event I think. Yes.

PN56

THE COMMISSIONER: Yes, it's the week after next so it's not that far. Everything you have said is correct and as I stress this is without prejudice to whatever might happen with the application, but I am keen here for there to be some communication between perhaps yourself, Ms Wiles, and Mr Haenen after I finish. So why don't we tentatively contemplate this out and this position, that subject to Ms Nguyen being back and capable of doing all this and getting agreement from her perspective, because she will be the person doing the actual entry I would think - - -

PN57

MS WILES: That's correct, yes.

PN58

THE COMMISSIONER: - - - why don't we loosely get an understanding that perhaps later in that week on the 5th or the 6th or something we will actually make, we will arrange something. We will say and we will tell the staff, tell the employees that this is going to be something that will be facilitated, this will be the time Ms Nguyen will be here, any of you that want to participate in that are welcome to do so, and we will actually say this is where Ms Nguyen will be and she will come to the meal room or whatever it is and if you don't want to participate there's no obligation on you to participate, but equally if you want to participate then you're free to do so.

PN59

So we just put the basic arrangements in place and then as I say subject to Ms Nguyen's capacity and agreement to all of this, because she might have other things she's got to do, I don't know, but if we put together that sort of prospect of there being actually an agreed sort of thing then after that if that hasn't led to a sort of understanding or a suitable sort of solution then Mr Haenen is quite at liberty to then seek to have this matter proceed further and obviously we would then list it again.

PN60

Probably the suggestion of a further conference actually in Melbourne where we could be face to face rather than via video link might be helpful, but from my perspective that can't occur immediately, we have just got some logistical difficulty with all of that, but let's see what emerges. I would like to suggest this, that I simply adjourn the matter without fixing a date for further proceedings on the anticipation that there will be discussions that hopefully will lead to an actual organised and agreed event involving the entry of Ms Nguyen for discussions as anticipated under section 484 of the Act, and that that's likely to occur somewhere around the end of the first week of July.

PN61

Then, Mr Haenen, you will be required to notify my chambers as to whether there's any success with that process or whether that has proven to be unsuccessful and if you want the matter relisted for further proceedings then we will endeavour to do that as quickly as practicable. Maybe, Ms Wiles, we could even go this far, we could even actually indicate perhaps the day of that week that we would be talking about and the time, all subject of course to confirmation once Ms Nguyen is back on deck so to speak, and, Mr Haenen, there might be an exchange of communication between yourself and Ms Wiles about broadly what's being contemplated here. At the suggestion of the Commissioner this is the idea, and then if it materialises into something fine. If it doesn't then by all means you are entitled to press your application and then we can have it relisted again for a further proceeding. Mr Haenen, are you content with that course of action?

PN62

MR HAENEN: Yes, noted, thank you, Commissioner.

PN63

THE COMMISSIONER: So as I say it might be worthwhile having a brief discussion with Ms Wiles now about this and how we might look at the broad arrangements that could be agreed upon, the event that I am contemplating. Then in due course, Mr Haenen, we would need some advice from you. I know it's unlucky for some, but perhaps by no later than Friday the 13th you might communicate with my chambers just indicating whether you remain aggrieved or whether things are progressing satisfactorily. If things are progressing satisfactorily then obviously we will just leave the file open for a short period. If however you want to press for the application to be dealt with then you should indicate that in any communication and we would then obviously deal with that. I think logically though that might need someone from the Commission in Melbourne to take over the matter because dealing with this from Sydney via video link is not the most appropriate way. Let's hope it's the alternative, let's hope it's something that is sorted out as a result of this anticipated potential planned event. The obligation, Mr Haenen, is to simply communicate with my chambers by no later than close of business on Friday 13 July. That's just a simple email to us advising us of what's happening and particularly whether or not you want some further proceeding.

PN64

MR HAENEN: Understood and agreed, thank you.

PN65

THE COMMISSIONER: Very well. On that basis then the proceedings now stand adjourned.

ADJOURNED TO A DATE TO BE FIXED [11.43 AM]

Fair Work Commission Transcripts

RE2018/ 704 , Transcript of Proceedings [2018] FWCTrans 244 (13 July 2018)