On 10 January 2011, the Full Bench of Fair Work Australia overturned an earlier decision of Commissioner Roe which had found that representatives of the Australian Meat Industry Employees' Union (AMIEU) were entitled to meet with employees of a meat processing company that supplies meat to a major Australian supermarket (Company) in the lunch room rather than the training room under the right of entry provisions of the Fair Work Act 2009 (Act).
On appeal, Vice President Watson and Deputy President Sams held that the AMIEU must continue to meet with employees of the Company in the training room and not the lunch room.
The Company operates in the meat industry and employs some 350 workers at its Tottenham site to produce "retail ready" meat for a major Australian supermarket.
About 300 of the employees are production employees eligible to be members of the AMIEU.
The Company only has two rooms that AMIEU representatives could meet with its employees and these rooms are the training room and the lunch room.
For a number of years employees had met with AMIEU representatives in the training room. The training room holds between 20 and 25 people and has blinds that can be drawn at all times to ensure privacy. The training room is not in the view of management and is only 30 metres from the lunch room.
There is only one room that employees can take lunch and that is in the lunch room. The employees can only take lunch in the lunch room because:
- the employees need to take off their 'whites' to leave the building - which is a time consuming process; and
- there is no where else to have lunch on the premises or nearby off the premises.
Supervisors also have their lunch in the lunch room.
The AMIEU first raised the issue of access to the lunch room in 2001 and they notified a dispute before the Australian Industrial Relations Commission at that time. The AMIEU has raised the issue of the suitability of the meeting location and requested access to the lunch room at meal times on a number of occasions over the past few years.
In late 2010, the AMIEU made an application to Fair Work Australia under section 505 of the Act and contended that the Company's requirement that AMIEU representatives meet with the Company's employees in the training room was not a "reasonable request" within the meaning of section 492 (1) of the Act.
The AMIEU had sought an order that AMIEU officials be permitted to hold discussions with employees in the lunch room when they are exercising their rights of entry.
Decision of majority on appeal
The majority's decision on appeal is significant for our client and for employers generally for the following reasons:
- The majority confirmed that employers have the right to request permit holders to conduct interviews or hold discussions with employees in a particular room or area of the premises provided that the request is reasonable. A request will only be invalid when it is objectively unreasonable. The mere preference of permit holders for a different room is insufficient.
- When considering if a request is reasonable it is appropriate to consider the legitimate interests of the employer, the legitimate interests of all employees (including employees who may not wish to be involved in discussions) and the legitimate interests of Union permit holders. In this case the majority found that the Company "cannot be criticised" and nor can the Company be found to have an "impermissible intention" by considering the interests of those employees who may not wish to be involved in discussions.
- A room is fit for the purpose of conducting interviews or holding discussions even though it may not accommodate all employees on their meal break at the same time. The majority stated that "we do not consider that the inability to hold a mass meeting of all employees in the training room renders it unfit for the purposes of interviewing employees or holding discussions with employees."
- A request can be unreasonable due to the intention of the employer when making the request. This intention can be ascertained by actions taken or statements made by the employer. In this case the majority found that the Company "provides access to permit holders to hold discussions with employees for a longer period than the meal times and permits its employees to access the union officials during paid working time. It should be said that this practice is more beneficial to employees and the union that the rights of entry provided for in the Act. In our view, this is not action of an employer who intends to discourage employees from participating in interviews or discussions".
Should you have any questions or would like further advice, please contact:
Tim Greenall | Special Counsel
T: +61 3 9242 4721
Laura Simmons-Strempel | Lawyer
T: +61 3 9242 4794
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