DECISION

Fair Work Act 2009
s.505—Right of entry

Bervar Pty Ltd t/a Della Rosa Fresh Food
v
United Workers’ Union
(RE2020/373)

Dispute about the operation of Part 3-4 – limitations sought on union entry due to COVID-19 – no failure by permit holders to comply with relevant s 491 requests – insufficient evidence of OHS requirements – suggested cooperation – application dismissed

[1] This decision concerns an application under s 505 of the Fair Work Act 2009 (Act) lodged by Bervar Pty Ltd (company). The application relates to a dispute about the operation of Part 3-4 of the Act, which deals with union right of entry. The company seeks orders from the Commission that would either suspend or restrict the exercise by the United Workers’ Union (UWU) of entry rights under the Act at the company’s facility at Campbellfield in Victoria, where it manufactures and distributes frozen pizzas. The company contends that the proposed restrictions are warranted in light of the current COVID-19 pandemic and the recent conduct of the union and its officials.

[2] The company frames its application by reference to ss 491 and 499, which provide that permit holders must comply with any reasonable request by the occupier of a premises to comply with an occupational health and safety (OHS) requirement that applies to the premises, and must not exercise a state or territory OHS right unless they comply with such a request.

[3] The application is opposed by the UWU. The union contends that its officials have acted appropriately at all times, and that the orders sought by the company would unjustifiably fetter its statutory rights. The union says that it has complied with its obligations under the Act and has not failed to comply with any relevant requests for the purpose of ss 491 or 499.

Factual background and submissions

[4] The company contends that on three occasions in successive months, in April, May and June 2020, the union sought entry to its premises to investigate alleged safety contraventions in the absence of proper grounds. It considers that the union has been engaged in an industrial ‘campaign’ against the company that is intended to place pressure on it for an industrial purpose that is related, as I understand the contention, to the union’s profile and membership at the site.

[5] On 21 April 2020, two organisers of the union, Mr Adam Auld and Mr Liban Ibrahim, attended the site. Mr Auld gave to Mr Cameron Blewett, the company’s industrial relations manager, two notices of suspected contravention of OHS standards. They related to union concerns that the company had not made adequate safety arrangements to protect against transmission of COVID-19. Mr Auld’s evidence was that these matters had been raised with the union by members working at the company. Mr Auld sought entry to the site. Mr Blewett refused. Following the intercession of WorkSafe Victoria, Mr Auld was allowed to enter the site, but was not permitted to inspect the premises. A discussion occurred in the reception area. Mr Auld asked Mr Blewett a series of questions about the company’s COVID-19 safety measures. Mr Blewett answered the questions. Mr Auld’s evidence was that he then left the site but was not satisfied that he had been able to investigate his concerns because he had not been able to inspect the premises. He also considered some of Mr Blewett’s answers to have been evasive or incomplete.

[6] On 7 May 2020, Mr Auld and Mr Ibrahim attended the site and gave Mr Blewett another notice of suspected contravention of OHS requirements. It alleged that the company had failed to make any reasonable adjustments in its cleaning schedule in response to the pandemic and had not arranged for cleaning of frequently touched surfaces, such as touch pads on machines, and in washrooms and the canteen. Mr Blewett told Mr Auld and Mr Ibrahim that the notice was too general and asked where the alleged complaints had come from. Mr Auld replied that the union had received a number of calls from members about social distancing and cleaning arrangements. A WorkSafe inspector attended the site. He told Mr Auld that he believed the notice of suspected contravention was too broad and that it should be recast to explain the origin of the concerns. Mr Auld replied that the union needed to protect the identity of the employees concerned. The inspector suggested that the notice be amended to say this, and that the union then be allowed to inspect three bathrooms and the canteen. Mr Auld was then allowed to enter the site, and Mr Blewett accompanied him to the canteen and the bathrooms. Mr Auld asked if he could speak to the cleaners and see the cleaning log. Mr Blewett said no. Mr Auld asked to see a copy of the company’s COVID-safe plan. Mr Blewett said that there was no plan but that the company adhered to government requirements. Mr Auld said that during the visit, he was told that the company would deal with WorkSafe about safety issues.

[7] On 10 June 2020, Mr Ibrahim, together with organisers Ms Claire Lewis, Mr Taqi Azra, and Mr Thomas Czech, attended the site and presented the company with three notices of suspected OHS contraventions. They related to concerns about insufficient physical distancing in production areas and a lack of risk control measures such as masks, hand sanitiser, cleaning products and gloves; hazardous manual handling; and ineffective guards on machines in production areas. Mr Blewett did not accept the genuineness of the notices and refused entry. WorkSafe inspectors were again called to the site. According to Ms Lewis, they confirmed that the notices of suspected contravention were valid and attempted to negotiate with the company to allow the officials to enter. However, after waiting nearly one hour to be allowed onto the site, the four officials left.

[8] Mr Blewett did not believe that the concerns raised by the union on 10 June 2020 were genuine, because during an earlier conciliation conference in the Commission on 28 May 2020, the union representative had said that there were no outstanding OHS issues. Mr Blewett also said that the union had been told that the company had closed the building off to visitors, and that access was permitted to production areas only once the day’s production had been completed. Mr Blewett said that he considered this event to be a ‘show of force’ by the union, with the purpose of intimidating the company.

[9] Mr Auld gave evidence about the union’s response to the COVID-19 pandemic. He said that in March 2020, the UWU implemented special measures for conducting visits to work sites. These include requiring organisers to implement social distancing practices, to use hand sanitiser, and to comply with site safety practices such as temperature tests and use of PPE. Mr Auld said that the current version of the Victorian government’s stage 4 lockdown arrangements for workplaces is contained in the Restricted Activity Directions (Restricted Areas) (No 8). They permit ‘union/peak body/employer organisation officials attending a worksite as permitted by law or for Occupational Health and Safety (OHS) advice.’ The UWU has issued organisers and other employees with ‘permitted worker’ permits.

[10] Mr Auld’s evidence was that the UWU has in place a stage 4 site visit policy, which provides that meetings and discussions should occur remotely, where this can be done effectively. Officials must also inform their director if a site visit is required and seek approval for the visit. Mr Auld said that, while the UWU is seeking to minimise visits to workplaces as much as possible, it is important that the union retain the ability to enter premises in order to properly represent the industrial interests of members, including in respect of OHS issues.

Submissions

[11] The company contends that the union’s notices of suspected contraventions referred to above were not legitimate and served an ulterior purpose. It also says that it was unreasonable for the union to send four officials to seek entry to the site on 10 June 2020. More generally, it contends that the entry of union officials to the site is not appropriate at the present time, given the state of emergency that has existed in Victoria since March 2020. Alternatively, the company contends that if the union has genuine concerns about the health and safety of employees, it is appropriate in the current environment that it first contact the company to raise its concerns before seeking entry to the site.

[12] The company asks the Commission to issue one of the following orders. Order 1 would suspend all physical entry to the site by the UWU and its representatives while Victoria is in a declared state of emergency. Alternatively, order 2 would require that, if the union has a genuine OHS concern, it must first raise the matter with the company by contacting Mr Blewett, and, prior to entry being sought, consult the Commission about the reason for the proposed entry.

[13] The union submitted that employees of the company have held genuine concerns over health and safety at the site, including in relation to inadequacies of arrangements to mitigate the spread of COVID-19, and that each of the three occasions when entry has been sought to the site were based on legitimate concerns. It says that the union is very aware of the threat posed by the virus but emphasises that no government in Australia has issued a directive that would remove union officials’ right to enter premises to have discussions with workers or investigate contraventions of relevant laws.

[14] The union contends that the company’s stated case simply does not call into question the genuineness of its efforts to seek entry to the site on the three occasions to investigate suspected contraventions. As to the site visit on 10 June 2020, the union relies on the evidence of Mr Auld, Ms Lewis and Ms Czech that there were several suspected contraventions to investigate, that the site is a large one, that it is not uncommon for several officials concurrently to attend one premises, and that the attendance of its officials at the site on that day was reasonable in the circumstances.

[15] In response to the company’s contentions concerning ss 491 and 499, the union submitted that there is no basis for the Commission to conclude that its officials have failed to comply with any reasonable request by the company to comply with an OHS requirement that applies to the site, for the purpose of ss 491 or 499. It says that the company’s purported requirement that no officials enter the site during the state of emergency was plainly not reasonable, and that any requirement that officials contact the company about safety or other concerns before seeking entry is not warranted and impractical, and therefore not reasonable.

Consideration

[16] Section 505 provides that the Commission may deal with a dispute about the operation of Part 3-4, and that it may do so by arbitration (s 505(2)) or, as the note to s 505(2) makes clear, by mediation, conciliation, or by making a recommendation or expressing an opinion.

[17] The company contends that the union has sought entry to its premises without genuine cause and that, for this reason, and also to reduce the risk of COVID-19 transmission, the Commission should by order prevent or limit the union’s entry to the site. Although the company sought orders under s 505 and made brief reference to ss 419 and 499, its application and written submissions did not articulate the relevant dispute about the operation of Part 3-4. The Commission cannot issue orders under s 505 simply because there is a disagreement about right of entry. It is necessary to identify what are the relevant provisions of Part 3-4, the operation of which is in dispute; to consider whether the intervention of the Commission in a particular way will deal with the dispute; and if so, to determine what discretionary considerations tell for or against the proposed intervention.

[18] At the hearing, the company submitted that the dispute in this matter relates to its contention, and the union’s denial, that permit holders have failed to comply with reasonable requests by the company that they comply with an OHS requirement that applies at the premises, contrary to s 491, and that they have also sought to exercise state OHS entry rights without complying with the requirement, contrary to s 499. I accept that this is a dispute about the operation of Part 3-4. However, I cannot identify any reasonable request with which the permit holders have failed to comply. My conclusion in this regard, which I explain below, deals with the dispute.

[19] First, the company contended that, during Mr Auld’s entry to the site in April, Mr Blewett told him that the company had a policy to restrict entry to the site to essential persons, and that this constituted both the establishment of an OHS requirement, and a reasonable request that the union observe it. However, Mr Auld was permitted to enter the site in April, albeit only following the intervention of WorkSafe. There were evidently exceptions to any requirement prohibiting site entry to non-essential persons. The union’s permit holders have not failed to comply with this requirement. They have only entered the site when the company has permitted them to do so. Furthermore, in my opinion, a blanket rule that no entry be permitted during the current state of emergency in any circumstances, to any part of the company’s site, would not be reasonable in the absence of a compelling justification supported by evidence, which has not been presented in this case.

[20] Secondly, the company contended that it has requested the union’s permit holders to comply with an alternative requirement not to seek entry to investigate suspected contraventions without first contacting the company about the concerns. It said that it had relayed its request to the union to comply with this requirement during and after a conciliation conference convened before the Commission in May pursuant to the present application. However, even accepting that the company established such a requirement and conveyed it to the union, there is then the question of whether this requirement was an ‘occupational health and safety requirement’, and whether it was reasonable for the purposes of ss 491 or 499. The company’s evidentiary case does not establish either of these things. The company has not led sufficient evidence about the nature of the COVID-19 transmission risk at its premises, and why its alternative requirement is proportionate to the risk.

[21] In this regard, the present matter can be contrasted with CFMMEU v Cape Preston Port Company, 1 where the union contended, pursuant to its application for orders under s 505, that the company’s refusal to allow non-essential persons to enter its ‘transhipper’ vessel was not a reasonable request to comply with an OHS requirement for the purpose of s 491. The company, in support of its contention that its position did reflect such a reasonable request, adduced detailed evidence about the nature of the risk posed by entry to the vessel, and why union entry to an alternative landside venue on the company’s property was a convenient and appropriate alternative.

[22] Thirdly, it appears from the company’s materials, and the evidence of Mr Blewett, that the company advised the union of a requirement that it will not permit entry to food production areas until after the day’s production has concluded. It appears from the evidence that WorkSafe agreed with the company that this was a reasonable requirement. However, again, permit holders have complied with this request. They have not entered food production areas.

[23] The company’s case focused substantially on what it considers to have been unfounded notices of suspected contraventions. I do not accept that the union’s efforts to gain entry to the company’s premises on the three occasions in question were in furtherance of an ulterior motive or purpose. I accept the evidence of Mr Auld and his colleagues about their reasons for seeking entry. In any event, whilst such matters might have been relevant to the exercise of discretion, they do not affect the analysis of whether permit holders have failed to comply with a reasonable requirement to comply with an OHS requirement. That is, they are not relevant to the dispute that is said to exist about the operation of Part 3-4. A contention that permit holders are seeking entry for ulterior motives might be relevant to an alleged contravention of s 503 (giving the impression that something is authorised by the Part when it is not so authorised; see also the note to s 481(3)). However, no contention of such a contravention was raised in the proceeding. In any event, I doubt that the power of the Commission to arbitrate disputes about the operation of Part 3-4 extends to making orders effectively preventing the recurrence of a contravention of a civil remedy provision. Such matters are for a court.

[24] I have concluded that the evidence does not establish that there has been any failure by a permit holder of the UWU to comply with a reasonable request by the company to comply with an OHS requirement. This conclusion suffices to deal with the dispute about the operation of Part 3-4. There is no proper basis for the Commission to make an order in relation to this matter, because the premise of the company’s position has not been established. Moreover, I note that the union has not sought to enter the site since June 2020. The absence of any recent manifestation of the dispute about the operation of Part 3-4 would in any event have been a discretionary consideration telling against the making of orders.

[25] To assist the parties to avoid further disputation in the event of any suspected contraventions arising in the coming weeks, I will offer the following view. I consider that, at the current time, when Victoria remains in a declared state of emergency and disaster, it would be a very good idea for the parties to cooperate and deal with any concerns about suspected contraventions remotely, in those cases where it is reasonably practicable to do so. Victorians have been told that, in order to defeat a pestilence, they must abide unprecedented restrictions. It would be appropriate in this setting that, where practicable, during the stage 4 lockdown, the union first contact the company and ask it to investigate and remediate suspected contraventions before seeking entry to the site, and that the company for its part actively cooperate by immediately investigating concerns raised by the union, reporting back, and taking any necessary remedial action. Such an approach would appear to be consistent with the union’s stage 4 site visit policy.

[26] The union says that contacting the company about suspected contraventions will just allow the company to cover them up. But it may also allow the company quickly to fix any problems. If it does not do so, the union will soon find out. There are evidently union members working at the site who are willing and able to relay concerns about safety in the workplace. I recognise that there is presently little trust between the parties, but a new cooperative approach to dealing with safety concerns might provide an opportunity for a measure of trust to be established.

[27] The application for orders under s 505 is dismissed.

DEPUTY PRESIDENT

Appearances:

C. Blewett for Bervar Pty Ltd
Y. Bakri of counsel for the UWU

Hearing details:

2020
Melbourne
21 September

Printed by authority of the Commonwealth Government Printer

<PR722142>

 1   [2020] FWC 4502