PR934790 AW800937 PR934790 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.99 notification of industrial dispute Victorian Association of Forest Industries and Construction, Forestry, Mining and Energy Union (C2003/1953) TIMBER AND ALLIED INDUSTRIES AWARD 1999 (ODN C No. 00031 of 1950) [AW800937 PR903130 ] Timber industry COMMISSIONER BLAIR MELBOURNE, 17 JULY 2003 Terms and conditions of employment. DECISION [1] This decision arises from a notification by the Victorian Association of Forest Industries (the Applicant) under section 99 of the Workplace Relations Act 1996 (the Act). The matter in dispute is the correct application of the provisions of Division 11A of the Act regarding entry and inspection of premises by organisations. In their notification it is alleged that disruption is occurring by the activities of the Construction, Forestry, Mining and Energy Union (the Union). [2] The matter was originally dealt with on 28 April 2003 by way of hearing and subsequently by conference. The matter was further dealt with on 13 May 2003 and at that time the matter was set down for arbitration on 24 June 2003. [3] At the hearing on 24 June 2003 Mr P Ryan continued to appear on behalf of the Applicant with Mr S Moore seeking leave to appear on behalf of the Union. Leave was granted to Mr Moore to appear on behalf of the Union, with Ms J Calvert continuing to appear also on behalf of the Union. [4] Pursuant to directions issued by the Commission on 19 May 2003 an outline of argument was presented by Mr Ryan, which states the following: "Reasons for Seeking Assistance of Commission Circumstances giving rise to Notification of Dispute Details of alleged dispute Exhibit will outline details of Companies served with Notices/Demands made and visits undertaken Harassment/disruption to Business operations Orchestrated campaign - foreshadowed some time ago Remedies and Form of Assistance Sought From AIRC An order regarding appropriate application of Division 11A Entry and Inspection of Premises - Order being sought as a result of conciliation being unsuccessful." [5] Attached to this decision is a draft of the order being sought by the Applicant in the matter. [6] Under the heading "Why Matter can and Should be Dealt With by AIRC Rather Than Federal Court" the Applicant contends: 1. Commission has power under s285G of the Act; 2. Dispute is unlikely to be resolved without the involvement of the Commission; 3. Commission is familiar with the nature and type of dispute 4. s110 Procedure of the Commission; and 5. s110(2)(c) Commission shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form; [7] Under the heading "Principle Grounds" it is contended by the Applicant that s285B empowers entry to an employer's premises, overriding the employer's common law right to exclude persons from the employer's premises. They state further that the right is given only to investigate suspected breaches. They state that 285B(3) allows for the inspection of documents, viewing of work and machinery and interviewing employees during working hours when such actions are relevant to the suspected breach. They state further that it does not require an employer to produce all documents held, allow inspection of every machine or allow interviews with every employee. It is contended by the Applicant that logic, common sense, and equity dictate that, to enable an employer to comply with s285B, the employer must be advised of the nature of the suspected breach. The Applicant further contends that a breach of s285B exposes an employer to the potential of a fine imposed by a court. They state that the provision must not be interpreted in such a manner as to require an employer to give unfettered access to premises, documents, and employers etc merely to comply with the Act when clearly the right given to permit holders by the Act was intended to be a limited right for a specific purpose. [8] Under the heading "Names of Witnesses That Will be Called and Statement/s of Evidence" the Applicant states as follows: "It is not anticipated that there is any controversy over the facts in that the various union permit holders have sought entry to a number of premises allegedly to investigate suspected breaches and the employers, in the main, have denied entry pending information in relation to the suspected breach, such information having been withheld by the permit holder. If these facts are contested, the Applicant will call a representative employer to give such evidence." [9] Under the heading "Documents to be relied upon" the Applicant states that they intend to rely upon the Workplace Relations Act and Regulations 1996 , Timber and Allied Industries Award 1999 [AW800937], the proposed MOU and the Draft Order. [10] The Applicant then outlines the list of authorities upon which they intend to rely. They are as follows: AMEIU v. Australian Food Corporation [2001] FCA 1709 AMEIU v. T&R Murray Bridge [Print PR927815 ] CFMEU v. McConnell Dowell Constructors [Print P6606] [11] The Respondent (the Union) provided, in accordance with the Commission's directions, their outline of argument. In that outline of argument they provided what they believed to be the factual background in regards to permit holders seeking access to premises of a number of employers. It is alleged that they sought access pursuant to ss285B and 285C of the Act. It is alleged by the Respondent that the Union gave written notice within the requisite time of the intention of the permit holder to enter the respective employer's premises pursuant to s285B and/or s285C of the Act. [12] They state that at least in respect of the request to enter premises pursuant to s285B of the Act, each of the employers refused or denied the relevant permit holder's request to enter their premises. [13] They further state that the reason relied upon by each of the employers for denying or refusing the permit holders entry to their premises pursuant to s285B was because the permit holder did not inform each employer of the nature of, or details about, the suspected breach which they sought to investigate by entering the premises and exercising those powers provided by s285 of the Act. [14] The Union accept that in respect of each of the employers, other than McCormack Timers, the permit holders did not notify each respective employer of the nature of, or details about, the suspected breach that they sought to investigate by entering their respective premises. In the case of McCormack Timber, that employer was informed of the following: "The permit holder suspects that, in relation to your company's employment of its employees, breaches have occurred, or are occurring, of provisions of the Act, and provisions of the Timber and Allied Industries Award 1999 [AW800937 ]." [15] The Union accepts that the controversy between the parties is whether in exercising their rights of entry pursuant to s185B of the Act, the permit holders are required to notify or inform the employers about the nature of, or details about, the specific breaches of the Act or Award which is sought to be investigated by entering the employers' premises and exercising the powers detailed in s285B of the Act. [16] The Union raises the jurisdictional argument. They state: "Insofar as the Commission finds that there is in existence an "industrial dispute" within the ordinary or statutory meaning of the term, the said dispute is not about "the operation" of Division 11A of Part IX of the Act. More accurately, the controversy between the parties concerns competing contentions as to the correct construction of s285B and related provision." [17] They state further: "Disputes about the operation of Division 11A presuppose and assume the identification of the parties' rights and obligations. The present controversy concerns a difference of opinion as to the existence or otherwise of specific rights and obligations, rather than the manner by which or the circumstances in which the rights and obligations are exercised or observed. "As a consequence of the above, the Commission does not have jurisdiction to exercise its powers under Part VI of the Act to prevent and settle any industrial dispute it finds to be in existence, for the reason that there is no subsisting industrial dispute "about the operation" of Division 11A." [18] Regarding s111 (1)(g)(iii) Application, the Union states: "If, contrary to the above submissions, the Commission is satisfied that it has jurisdiction to exercise its powers to settle the dispute, the CFMEU makes application for the Commission to exercise its powers under s111 (1)(g)(iii) of the Act to refrain from further hearing or determining the industrial dispute on the basis that further proceedings are not necessary or desirable in the public interest. [19] Regarding the issue of whether the orders sought are beyond the Commission's powers, the Union states, at Clause 18 of their outline of argument: "If, contrary to the above submissions, the Commission finds that it has jurisdiction in respect of this matter and further that it refuses the CFMEU's application under s111 (1)(g)(iii) of the Act, the CFMEU's further contention is that the Commission does not have power to make the orders sought. "With certain specific exceptions, the draft order proposed by VAFI simply re-states the requirements of Division 11A in respect of right of entry. The most significant exception to this is proposed order 2.1. This order requires a permit holder to inform an employer of the Award clause or section of the Act, which it is suspected, has been breached, the individual members or categories of members affected and the time-frame over which the alleged breach is believed to have occurred. "Section 285G(1) expressly limits the types of order the Commission may make. Specifically, the Commission is enjoined from making an order which confers "powers that are additional to, or inconsistent with, powers exercisable under this Division. "The CFMEU's contention is that the Commission does not have power to make the relevant order because the matter there prescribed, involving the specification of the breach to the employer, the identification of employees and the time-frame of the alleged breach, are powers that are additional to or inconsistent with those contained in Division 11A." [20] Division 11A sets out the following: "285A Permits (1) A Registrar may, on application by an organisation in accordance with the regulations, issue to an officer or employee of the organisation a permit in the form prescribed for the purposes of this section. (2) The permit: (a) remains in force until it expires or is revoked under this section; and (b) expires at the earlier of: (i) 3 years after the day on which it was issued; or (ii) the time at which the person to whom it was issued ceases to be an officer or employee of the organisation concerned. (3) A Registrar may, on application in accordance with the regulations, revoke the permit if he or she is satisfied that the person to whom it was issued has, in exercising powers under this Division, intentionally hindered or obstructed any employer or employee or otherwise acted in an improper manner. (4) An application for the revocation of a permit must set out the grounds on which the application is made. (5) A person to whom a permit has been issued under this section must, within 14 days after the expiry or revocation of the permit, return the permit to the Registrar. (6) If one or more permits issued to a person under this section have been revoked, the Registrar must take the fact into account when deciding whether to issue a further permit under this section to the person. 285B Investigating suspected breaches of Act etc. (1) This section applies if a person who holds a permit in force under this Division suspects that a breach has occurred, or is occurring, of: (a) this Act; or (b) an award, an order of the Commission, or a certified agreement, that is in force and binds the organisation of which the person is an officer or employee. (2) For the purpose of investigating the suspected breach, the person may enter, during working hours, any premises where employees work who are members of the organisation of which the person is an officer or employee. (3) After entering the premises, the person may, for the purpose of investigating the suspected breach: (a) require the employer of the employees to allow the person, during working hours, to inspect and, if the person wishes, to make copies of any of the following that are kept by the employer on the premises and are relevant to the suspected breach: (i) any time sheets; or (ii) any pay sheets; or (iii) any other documents, other than an AWA, an ancillary document or a document that shows some or all of the content of an AWA or of an ancillary document; and (b) during working hours, inspect or view any work, material, machinery, or appliance, that is relevant to the suspected breach; and (c) during working hours, interview any employees who are: (i) members of the organisation of which the person is an officer or employee; or (ii) eligible to become members of that organisation; about the suspected breach. (4) For the purpose of investigating the suspected breach, the person may (regardless of whether the person exercises powers under subsection (2) or (3)) require the employer of the employees mentioned in subsection (2): (a) to produce documents of the kind mentioned in any of subparagraphs (3)(a)(i) to (iii) at the premises at which the employees work or at some other agreed place; and (b) if the documents are to be produced at the premises at which the employees work-to allow the person, during working hours, to enter the premises and: (i) inspect the documents; and (ii) if the person wishes to do so-make copies of the documents; and (c) if the documents are to be produced at some other place-to allow the person, at an agreed time, to inspect the documents at that place and, if the person wishes to do so, to make copies of them. (5) In this section: ancillary document has the same meaning as it has in Part VID. 285C Discussion with employees (1) Subject to subsections (2) and (3), a person who holds a permit in force under this Division may enter premises in which: (a) work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and (b) employees who are members, or eligible to become members, of that organisation work; for the purposes of holding discussions with any of those employees who wish to participate in those discussions. (2) The person may only enter the premises during working hours and may only hold the discussions during the employees' meal-time or other breaks. (3) The person may not enter premises if all of the following conditions are satisfied: (a) no more than 20 employees are employed to work at the premises; (b) all the employees at the premises are employed by an employer who is the holder of a conscientious objection certificate in force under section 267, that has been endorsed by the Registrar as provided in subsection (4); (c) none of the employees employed at the premises is a member of an organisation. (4) Subject to subsection (5), a Registrar may, on the application of an employer, endorse a certificate issued to that employer under section 267 if the Registrar is satisfied that the employer is a practising member of a religious society or order whose doctrines or beliefs preclude membership of an organisation or body other than the religious society or order of which the employer is a member. (5) A Registrar must not endorse a certificate under subsection (4) unless satisfied that, at the time application is made for endorsement, all of the employees employed by the applicant have agreed that the applicant's certificate should be endorsed. (6) An application under subsection (4) may be made at the time of an application under section 267 or at any later time. (7)The endorsement of a Registrar under subsection (4) remains in force for the period that the certificate remains in force. Note: A certificate issued under section 267 remains in force for the period (not exceeding 12 months) specified in the certificate, but may be renewed. A Registrar's endorsement under subsection (4) does not remain in force when a certificate is renewed, but a new application for endorsement may be made. 285D Conduct not authorised under sections 285B and 285C (1) If: (a) a person proposes to enter, or is on, premises in accordance with section 285B or 285C; and (b) the occupier of the premises requires the person to show his or her permit; the person is not entitled under that section to enter or remain on the premises unless he or she shows the occupier the permit. (2) A person is only entitled to enter premises, and exercise powers, under section 285B or 285C if the person has given the occupier of the premises at least 24 hours' notice of the person's intention to do so. (3) A person is not, in exercising any powers under section 285B or 285C, entitled to enter any part of premises used for residential purposes, except with the permission of the occupier. 285E Conduct in relation to sections 285B and 285C attracting civil penalties (1) A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee. (2) The occupier of premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B or 285C. (3) An employer must not refuse or fail to comply with a requirement under paragraph 285B(3)(a) or subsection 285B(4). (4) A person must not otherwise intentionally hinder or obstruct a person exercising powers under section 285B or 285C. To avoid doubt, a failure to agree on a place or a time as mentioned in paragraph 285B(4)(a) or (c) does not constitute hindering or obstructing a person exercising such powers. 285F Civil penalties (1) In this section: eligible court means: (a) the Federal Court of Australia; or (b) a District, County or Local Court; or (c) a magistrate's court. penalty provision means subsection 285A(5) or 285E(1), (2), (3) or (4). (2) If a person contravenes a penalty provision, the contravention is not an offence. However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision. (3) The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases. (4) An application for an order under subsection (2) may be made by any person. (5) An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision. 285G Powers of Commission (1) In spite of section 89A, the Commission may exercise its powers under Part VI of this Act to prevent and settle industrial disputes about the operation of this Division, but must not make an order for that purpose conferring powers that are additional to, or inconsistent with, powers exercisable under this Division. (2) However the Commission does have power, for the purpose of preventing or settling the industrial dispute, to revoke a permit issued to a person under section 285A. If it does so, it may make any order that it considers appropriate, for the purpose of preventing or settling the industrial dispute, about the issue of any further permit to the person, or of any permit or further permit to any other person, under that section." [21] A number of references were referred to by the Union to substantiate their argument. [22] The Applicant in the matter submitted further contentions as provided for by the Commission in response to the argument of the Union. Those were references made to the G&K O'Connor Pty Ltd, [ PR902272 ] a full bench decision of the Commission dated 14 March 2001 and Newcastle City Council v. GIO General Limited a decision of the High Court of Australia dated 2 December 1997. [23] In G&K O'Connor Pty Ltd [ PR902272 ] the full bench decided to grant an adjournment pursuant to s111 (1)(g) of the Act as there was a proceeding on foot in the Federal Court dealing with matters relating to proceedings in the Commission. In that decision the full bench said: "We are of the view that on balances it would be desirable to await the outcome of the proceedings before Conti J before further dealing with the matter. In our view the determination of Conti J of the matters before him should significantly expedite the hearing of the application and s111 (1)(g). Moreover we note that the programme established by Conti J for the disposition of the matter is relatively expeditious." [24] In Newcastle City Council v. GIO General Limited VAFI submits that this case is irrelevant given that the legislation has given the Commission the power under s285G to make orders in relation to the operation of the Division including s285B. They state: "The Commission is asked to do no more than, and indeed, empowered to do no more than make orders resolving disputes over the operation of the Division, where such orders are not additional to or inconsistent with the powers exercisable under the Division." [25] They further state: "If the Commission is empowered, on the basis of a CFMEU application as in Moranbah, to issue orders granting rights to meet in crib rooms where those words are not specifically used anywhere in the Division, then we submit that the Commission is equally empowered, on the basis of a VAFI application, to issue orders requiring the nature of the suspected breach to be advised to the employer prior to entry where those words are not specifically used in the Division. Using the language of McHugh J in the Newcastle case, we do not consider this to be a "strained construction" to achieve the legislative purpose. However, if it is, it is not a construction that is either "unreasonable or unnatural". Indeed the decision of the Commissioner O'Callaghan (sic) is very strong support for the submission that the order sought by VAFI is both "logical and fair", quite the opposite of being "unreasonable or unnatural." [26] In supplementary submissions on behalf of the Union, they state as follows: "VAFI misconstrues the decision in G&K O'Connor [ PR902272 ] by presenting the considerations relied upon by the Full Bench in that case as a definitive and universal test to be applied in respect of every s111 (1)(g) application. Although the decision is significant as the most recent Full Bench authority on application of the present type and provides important guidances as to the types of considerations to which the Commission may have regard in applications of this type, the Full Bench did not purport to exhaustively identify all considerations which may be relevant to such applications, nor did it characterise the considerations to which it had regard to as being definitive test to be applied in all such applications. " [27] The Union further states in their supplementary submissions: "It is equally desirable that the Commission here refrain from further hearing VAFI's application s285G as the public interest would be served by such course in the following ways: (a) On the basis of pleadings filed in the Federal Court proceedings, it is plain that those proceedings will require the determination of the single issue for determination by the Commission; namely whether there is an obligation on a permit holder to disclose to an occupier of premises details about the nature of the suspected breach which he/she seeks to investigate; (b) The pleadings in the Federal Court proceedings demonstrate that various other issues relating to the exercise of power under ss285B and 285C are in contest between the parties and will accordingly be the subject of determination in those proceedings." [28] In dealing with their response to Newcastle City Council v. GIO General Limited , the Union alleges that VAFI submissions are misconceived and begs the question for determination by the Commission. They state: "Pursuant to the terms of s285G the Commission has no power to make an order which confers powers that are additional to or inconsistent with powers exercisable under this Division. Accordingly, for the Commission to make the order sought by VAFI, it must be satisfied that the requirement that a permit holder specify: (a) the nature of the suspected breach; (b) the individual members or categories of members affected; (c) the timeframe over which the alleged breach occurred; and (d) the time of the intended entry, as sought by VAFI in its proposed order, does not involve the conferral of powers which are inconsistent with or additional to those contained in Division 11A." [29] The Union further states: "The answer to this question depends squarely upon whether or not Division 11A provides that an occupier of premises has powers to require the above information to be provided by a permit holder, or alternatively, whether or not a permit holder's powers under the Act are made conditional upon the above information being provided. If the answer to these questions is `no", the Commission has no power to make the orders sought." [30] The Union goes on to state: "VAFI has not taken issue with the CFMEU's contention that Newcastle CC and the observations of McHugh J at pp.642-643 do not represent the correct approach for the implication of words in statutory instruments. The test is clear. Words will not be implied into an Act unless the following conditions are met. (a) the Court must know the mischief with which the statute was dealing; (b) the Court must be satisfied that by inadvertence Parliament overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved; and (c) the Court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the affect." [31] Based on the material provided to the Commission and the arguments of the parties, the Commission believes that it does have power to make the order sought by VAFI if it felt that it was desirable and in the best interest to issue such orders. [32] The Commission relies upon the full bench decision in Moranbah North Coal (Management) Pty Ltd and CFMEU (Print T4893) and a subsequent decision of Senior Deputy President O'Callaghan in [ PR927815 ] where he quotes from the full bench in Moranbah North Coal where they state: "We think the words of the Supplementary Explanatory Memorandum to which we have earlier referred summarise Parliament's intention that the Commission was to have power, limited in the way described to prevent or settle disputes arising from the operation of the right of entry provisions. For that reason, and for reasons given earlier, we hold that the terms industrial dispute in s285(G)(1) should be given its ordinary meaning, free of the restrictions contained in s41(1) of the WR Act." [33] The Commission accepts the full bench decision and its ability to make the orders based on the satisfaction of the Commission that there exists a dispute over the operation of s285B and that the dispute is unlikely to be resolved without the involvement of the Commission. [34] However, in finding that the Commission does have power to issue the orders required by VAFI in this matter, the Commission will not issue the orders sought. It does so because it believes that such orders would be inconsistent with the requirements of the Act and a substantial curtailment of the requirements of the permit holder. [35] The Commission is satisfied that a complainant or a number of complainants would unnecessarily be identified and for that matter could be singled out by employers for lodging complaints with the Union regarding alleged breaches. [36] The Commission is satisfied that it was not the intention of Parliament to place an employee's ability to raise issues with its union about alleged breaches thereby indentifying individual union members and placing their possible ongoing employment in jeopardy. The Commission is also of the view that for a requirement of the Union to identify an individual or individuals is an infringement upon a person's privacy by highlighting that a person is a member of an organisation that they are legally entitled to be a member of without the authority and, in some instances, without the knowledge of the employer of their workplace. As stated earlier, detailing this information could have the consequence of placing an employee's employment in jeopardy. [37] It would possibly assist the employer of if the Union were to identify the nature of the suspected and relevant clauses of an award or agreement, however the Commision believes that this may not be possible given that the Union after being advised by a member or members that there is something not quite right with their pay slip or packet but cannot identify something specific by way of a specific clause or agreement . If it were mandatory to identify a clause of an award or agreement then this may hinder a union's right to pursue a suspected breach on behalf of their members. [38] For these reasons only, the Commission will not issue the orders sought by VAFI and will dismiss the application accordingly. BY THE COMMISSION: COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code D> DRAFT ORDER AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION WORKPLACE RELATIONS ACT 1996 S 99 Notification of Industrial Dispute IN the matter of: VICTORIAN ASSOCIATION OF FOREST INDUSTRIES and CFMEU . C. No. 1953 of 2003 ; S99 Notification of Industrial Dispute re Right of Entry Provisions TIMBER & ALLIED INDUSTRIES AWARD 1999 Various employees Timber and Allied Industries Commissioner Blair Melbourne Right of Entry and inspection of premises etc. ORDER A. Further to a decision of the Commission and in accordance with Section 285G of the Workplace Relations Act 1996 it is ordered that ; The following process shall apply to the above between the CFMEU FFPD Division and VAFI and it's members. 1. ENTRY to PREMISES - Section 285D Entry to be as provided for in Section 285D: 1. Person seeking entry must provide 24 Hours Notice (or such earlier time as agreed) 2. Permit to be shown if requested by employer 2. ACCESS TO RECORDS AND INVESTIGATION OF SUSPECTED BREACHES - Section 285B The following procedure shall apply: 1. s.285B Notice to specify: (a) nature of suspected breach by identifying the relevant Clause/s of the Award and / or Section/s of the Workplace Relations Act (b) individual members or categories of members affected (c) timeframe over which the alleged breach occurred (d) time of visit - employer to allow 30 minute leeway 2. Discussions with employees about the suspected breach not to unduly interfere with work in progress 3. CFMEU official may inspect and make copies of records of members subject to alleged breach 4. If records are kept off site, or special circumstances exist to justify a delay in producing records, CFMEU will allow a reasonable extension of time to produce records 5. If photocopying is required, it may be done by CFMEU official or by Company personnel subject to payment of costs involved. (20 cents per page) 6. Process not to hinder, obstruct or unduly interfere with business operation 7. Employer is not required to attend for interview by union official but will not intentionally hinder or obstruct union official 3. DISCUSSIONS WITH EMPLOYEES - Section 285 C 1. Unless otherwise agreed, discussions are only to be held during the employees' meal time or other breaks only 4. DISPUTE RESOLUTION 1. Any dispute in relation to the application of the Memorandum of Understanding will in the first instance be discussed between the Company's nominate representative and the State Secretary or such other nominated representative of the CFMEU FFPD Division. 2. In the event the matter remains unresolved the matter will be referred to the AIRC for resolution prior to proceedings being instituted in any other jurisdiction. B This Order shall come in to force from 25 June 2003 and shall remain in force for a period of 12 months BY THE COMMISSION COMMISSIONER BLAIR