An employer’s right to decide - lunch room v meeting room
Livingstones often fields calls regarding union right of entry to hold discussions with employees. One of the questions that continues to be raised is whether the employer has the right to direct the union to use a specific room for the purposes of holding such discussions. In a number of instances the employer’s decision is based on employee requests that meetings be conducted away from rest areas and lunch rooms to accommodate those who do not wish to participate. Not surprisingly, the unions continue to push for access to lunch rooms and rest areas as they provide for more ready access to employees and in their view employees feel less discouraged in participating in such discussions.
Section 492(1) of the Fair Work Act 2009 (the Act) provides that a union official (referred to as a permit holder) must comply with “any reasonable request by the occupier of the premises to conduct interviews or hold discussions in a particular room or area of the premises”.
Section 492(2) of the Act provides that a request by the occupier of the premises is unreasonable if:
“(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or
(b) the request is made with the intention of:
(i) intimidating persons who might participate in the interviews or discussions; or
(ii) discouraging persons from participating in the interviews or discussions; or
(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason”
However section 492(3) of the Act provides that a request is not unreasonable only because the room, area or route “is not that which the permit holder would have chosen.”
In the recent case of TWU NSW branch v DHL Supply Chain (Australia) Pty Limited [2011] FWAFB 3371 (24 August 2011) a full bench clarified what is deemed ‘a reasonable request’ by an employer to use a particular room.
The matter was originally heard by Commissioner Harrison on 10 March 2011 after an application was lodged by the TWU seeking orders that DHL allow TWU officials access to the lunch room to hold discussions as well as a further order that the Company not monitor employee attendance at any such meetings. The TWU argued that the allocated rooms were not fit for the purpose of holding discussions and that the direction was made with the intention of intimidating or discouraging employees from participating as management was able to monitor access to the rooms.
Commissioner Harrison inspected the DHL premises and after considering the evidence presented by both parties made a number of findings namely:
• That there were no restrictions on employees accessing the allocated rooms;
• The allocated rooms were private (although close to the managers’ offices);
• there was no persuasive evidence of monitoring of meetings by management so as to discourage or intimidate employees from participating in discussions ;
• the Company preferred to deal with the National Union of Workers (NUW) (with the NUW having access to the lunch room out of meal break hours); and
• a petition signed by 38 of 45 warehouse employees at the site objecting to meetings taking place in the meal room during their meal breaks.
The Commissioner concluded that the request by the Company to allocate the rooms of their choosing was a reasonable request in accordance with section 492(1) of the Act and that the allocated rooms were fit for the purpose of holding the discussions. The application was subsequently dismissed.
The TWU appealed the decision submitting that Commissioner Harrison erred in finding that the Company’s direction that the TWU use particular rooms was reasonable for the purposes of section 492(1) of the Act. The TWU also disputed Commissioner Harrison’s findings detailed above and in addition submitted that the Commissioner failed to consider as a relevant factor that the allocated rooms were not fit for the purpose as its location in the premises was such “that employees would not know when the TWU officials were present”. The full bench found that “although it might be preferable to the TWU to have a more ‘visible’ location in which to conduct interviews and discussions with employees during meal breaks, that does not mean that it was unreasonable for the Company to request that other rooms be used”.
The full bench concluded that the TWU had not established that there were any significant errors of fact or other deficiencies in the decision as would warrant granting permission to appeal and that on examination of the evidence and material before Commissioner Harrison, the conclusions which he reached were “soundly based and open to him”. Accordingly the appeal was dismissed.
Be action positive - If you have any queries relating to right of entry, contact your Livingstones consultant.
