Mexican Standoff in the storeroom: the right of entry of union officials under the Fair Work Act 2009 (Cth)

02 June 2020

An early learning centre and its director have been fined $3,780 for contraventions of the Fair Work Act 2009 (Cth) (FWA).

The Federal Circuit Court considered that Paisley Park Early Learning Centre (SA) Pty Limited, by restricting a union representative to holding discussions in a storeroom, had intentionally hindered or obstructed her from exercising her right to entry on the premises.

In issue

  • The Court needed to determine whether a permit holder’s right of entry under s492 of the FWA had been intentionally hindered or obstructed.

The background

Ms Bayer, a representative of the United Workers Union (UWU), had obtained a permit pursuant to the FWA to attend Paisley Park Early Learning Centre (SA) Pty Limited’s (Paisley Park) centres located in Playford and Burton for discussions with employees. The UWU provided the requisite notice to Paisley Park, and nominated the staff rooms of each centre as the venue to hold those discussions.

On 9 October 2018, Ms Bayer attended the Playford centre and was directed to a storeroom which contained a photocopier, some lockers, a desk and a few chairs.

Paisley Park indicated that she had been placed in the storeroom because some of the staff were uncomfortable at the prospect of the staff room being used by union officials for discussions with employees.

It also cited occupational, health and safety (OHS) requirements relating to the employee’s right to have their breaks in peace and quiet without interference, as well as the staff-children ratio of the centre, for the change in venue. Paisley Park alluded to s491 of the FWA, which provides that a permit holder must comply with any reasonable request by an occupier for the permit holder to comply with OHS requirements.

The UWU contacted the centre director requesting that the proposed meeting take place in the staff room. The centre director advised that Paisley Park’s position was the same regarding the use of the staff room at its Burton centre. Ms Bayer attended the Burton centre as scheduled and remained at another storeroom for about twenty minutes before leaving.

The UWU commenced proceedings against Paisley Park and its director, Mr Raue, alleging contraventions by them of s502(1) of the FWA. The issues in this case were whether:

  1. Ms Bayer was entitled to use the staff room for her discussions under s492;
  2. The OHS requirements relied upon by Paisley Park were objectively necessary; and
  3. Paisley Park had intentionally hindered or obstructed Ms Bayer whilst she exercised her right to enter.

The decision

The Court clarified that s492 provided that the permit holder could conduct interviews or hold discussions in rooms or areas agreed with the occupier. The permit holder’s right to hold discussions in a room where employees ordinarily take meals and other breaks only arises, however, where the permit holder and occupier cannot agree on a room or area.

It was noted that no prior discussions or negotiations took place between Paisley Park and the UWU regarding alternative locations. Ms Bayer was told of the venue change after the decision by Paisley Park. Paisley Park asserted that the condition of s 492(2), regarding the permit holder’s right to hold discussions in a room where employees ordinarily take meals and other breaks, arises when the parties cannot agree on a venue as distinct from the situation where the parties are mutually unwilling to agree. In this regard the Court described the dialogue between Paisley Park and the UWU as a ‘Mexican Standoff’, where effectively neither party engaged in reaching a compromise.

The Court held that Ms Bayer had unequivocally indicated that the room allocated was unsuitable, but did not provide a specific reason why. Judge Brown however adopted a common sense approach and noted that the room did not have facilities to prepare food and beverages, and by implication, it was not a location predisposed towards opportunistic meetings. Further, Paisley Park had not forewarned Ms Bayer that the staff room would not be available to her. In the circumstances the Court considered that the parties were effectively unable to agree on an appropriate location, and therefore the default position of s 492(3) entitled Ms Bayer to hold her discussion in the staff room.

In relation to the OHS objections raised by Paisley Park, the Court considered that they were neither reasonable nor necessary and noted that:

  1. It would not seem unreasonable for Paisley Park to at least contemplate a fall-back position regarding temporary accommodation of staff who did not wish to be exposed to Ms Bayer on their breaks; and
  2. Paisley Park had sufficient time to attend to any issues in regards to the staff-children ratio.

The Court accordingly held that Paisley Park and Mr Raue had each contravened s502(1) of the FWA, and imposed fines totalling $3,780.

In reaching its decision the Court also observed that:

  1. Although there was no evidence suggesting that employees were deterred or impeded from approaching Ms Bayer, the UWU asserted it made it more difficult for Ms Bayer to go about her functions;
  2. The store room was not routinely utilised by employees during breaks and that employees, especially those reticent to speaking to union officials, would not be exposed to the presence of Ms Bayer;
  3. There was at least a greater potential for employees to seek to engage with Ms Bayer in the staff room than if she had been in a separate room not so frequented by staff;
  4. Ms Bayer was unable to attract interest in the services offered by the UWU at times when employees were not directly engaged in their duties;
  5. The rooms allocated were materially different in nature to the staff room, and had the consequence of making it more difficult for Ms Bayer to discharge her union functions; and
  6. Paisley Park was therefore required to make the staff room available to Ms Bayer once the impasse became apparent.

Implications for you

The decision is a timely reminder to employers that they ought carefully consider and assess union requests to exercise statutory rights of entry, and adopt a common sense and practical approach to resolving issues that may arise in that regard.

United Voice v Paisley Park Early Learning Centres (SA) Pty Limited & Anor [2020] FCCA 578

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