Re Australasian Meat Industry Employees Union v Thomas Borthwick and Sons (Pacific) Limited [1991] FCA 479; (1991) 32 FCR 64 (1991) 39 IR 379 (18 October 1991)

FEDERAL COURT OF AUSTRALIA

Re: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION
And: THOMAS BORTHWICK and SONS (PACIFIC) LIMITED
No. V I37 of 1990
FED No. 618
Industrial Law
[1992] FCA 89; (1991) 32 FCR 64
(1991) 39 IR 379

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - award - right of union official to enter employer's premises for purpose of interviewing employees - whether card stating that official authorised to represent union was an authority for purposes of right - employer representative announcing intention of accompanying union official to ensure meeting not held - whether imposition of condition on exercise of right of entry - whether interview and meeting mutually exclusive.

Words and phrases - "authority" - "interviewing" - "interview".

Industrial Relations Act 1988 ss. 155, 178, 286.

Thomas Borthwick and Sons (Pacific) Limited (Portland) Interim Award 1989 cl. 24.

HEARING

MELBOURNE
18:10:1991

Solicitors for the applicant: Ryan Carlisle Thomas

Counsel for the applicant: Mr R. Hinkley

Solicitors for the respondent: Dunhill Madden Butler

Counsel for the respondent: Mr T. Guinane

ORDER

The application is dismissed.
(Note: Settlement and entry of orders is dealt with by O. 36 of the Federal Court Rules.)

DECISION

The applicant claims against the respondent a penalty for breach of award, pursuant to s.178 of the Industrial Relations Act 1988 ("the Act"). The applicant is an organisation of employees, registered pursuant to the Act. The respondent is a company, which operates a meat works at Portland, at which it employs members of the applicant. The applicant and the respondent are the two parties to the Thomas Borthwick and Sons (Pacific) Limited (Portland) Interim Award 1989 ("the Award"), an award made under the Act. In the Award, the applicant is described as "the Union" and the respondent as "the employer".

Clause 24 of the Award provides as follows:
"A duly accredited representative of the unions (sic.) shall
have the right to enter the employer's premises during the
meal hour for the purpose of interviewing employees on
legitimate union business on the following conditions:
(a) that they produce their authority to the
manager or such other person as may be appointed by
the employer;
(b) that they interview employees only at the place
where they are taking their meal;
(c) that not more than two representatives visit
the premises at any one time;
(d) that not more than two representatives visit
the same premises more than once in a week; and
(e) that if the employer alleges that a
representative is unduly interfering with its business or

is

creating disaffection amongst its employees or is offensive
in his/her methods, or is committing a breach of any of the
previous conditions, the employer may refuse the right of
entry but the representative shall have the right to bring
such refusal to the board of reference."

The applicant alleges that on 29th November 1990, the respondent committed a breach of clause 24. In terms of the application as it was amended at the trial, it is alleged that the respondent did "impose a condition on the exercise of the rights conferred on Mr Brittain...in that it did require that a representative of the Respondent be in attendance while Mr Brittain interviewed employees on legitimate union business at its premises at Portland when exercising his rights under that clause, provision for which condition was not made in that clause."

2. The Mr Brittain referred to is James Crosbie Brittain, who is employed by the applicant as an organiser for the Wimmera and the Western District in Victoria. The respondent's meat works at Portland are within the Western District, and therefore part of Mr Brittain's responsibilities. On 24th November 1990, Mr Brittain was in possession of a card, headed with the name of the applicant and the words "Victorian branch", and signed by the president and secretary of that branch. The text of the card asserted that the bearer, Mr James Brittain, "is an Official of the above Union and is duly authorised to examine Time Books and to represent the Union".

3. At approximately 12.00 noon on 29th November 1990, Mr Brittain arrived at the gatehouse of the respondent's premises at Portland. He spoke to John Alexander Parry, the security officer stationed in the gatehouse, who contacted Walter Wilson Menzies, the respondent's personnel manager at the works. Mr Menzies came to the gatehouse. Mr Brittain showed Mr Menzies his authority card. There was then a conversation between them, as to which there is considerable conflict on the evidence. At the conclusion of the conversation, Mr Brittain left the premises. It is common ground that he did not go more than a few metres beyond the gatehouse before leaving.

4. Mr Brittain's evidence was that he told Mr Menzies that he was there to interview the members of the shop committee in the lunch room at lunch time on legitimate Union business. According to him, he detailed the business with which he wished to deal in the interview. This business consisted of issues relating to seniority, health and safety, boners' and slicers' tallies, a log of claims known as the ACTU Accord Mark VI, an increase in membership subscriptions of the applicant and certain proceedings in the Australian Industrial Relations Commission. According to Mr Brittain, Mr Menzies twice stated that he would be coming along or would be in attendance to make sure that Mr Brittain did not hold a meeting. Mr Brittain was certain that Mr Menzies used the words "in attendance". Mr Brittain's evidence was that he told Mr Menzies that the conditions he was placing on Mr Brittain's entry to the plant were unacceptable, and left. It was put to him that he walked some five metres from the gatehouse towards the boners' dining room; Mr Brittain did not recall having done this.

5. The evidence of Mr Menzies was that Mr Brittain stated that he was there to interview the shop committee in the lunch room during their meal break on legitimate Union business. In his evidence in chief, Mr Menzies emphasised the definite article preceding the words "shop committee", not so as to indicate that this emphasis has been placed by Mr Brittain, but so as to indicate that Mr Brittain had indicated an intention to interview the shop committee, as distinct from the members of the shop committee. According to Mr Menzies, the specific items of Union business which Mr Brittain said he had detailed were not mentioned. The evidence of Mr Menzies was that he explained to Mr Brittain that the Award gave him a right to interview, but not to hold meetings. Mr Menzies said that he told Mr Brittain that he would go along to ensure that the Award rights were carried out. According to him, Mr Brittain walked some five metres in the direction of the boners' dining room, then threw his arms in the air, said, "That's unacceptable", and turned and walked back through the gatehouse.

6. Mr Parry also gave evidence. Because he was attending to his duties, he heard only snatches of the conversation, but his evidence is useful in resolving the issues in a couple of respects.

7. Each of Mr Brittain and Mr Menzies made notes of the conversation a short time after it took place. Mr Brittain went to his car and hand-wrote his notes. Mr Menzies went to his office and typed his notes on a personal computer. In each case, the notes were in evidence. Mr Brittain's notes were tendered by counsel for the applicant in re-examination of Mr Brittain. Counsel for the respondent objected to the admissibility of the notes. I ruled them admissible, because of the course which counsel for the respondent had taken in cross-examining Mr Brittain. I held that, although counsel for the respondent did not suggest expressly that Mr Brittain had invented his account of the conversation, the only logical conclusion which could be drawn from the manner of questioning was that a suggestion of recent invention was being made. Counsel for the respondent put that the very specific words which Mr Brittain had recounted in his evidence in chief were not used in the conversation at all. Counsel for the respondent submitted that he was merely suggesting that Mr Brittain was mistaken. In my view, mistake was not really a possibility; for Mr Brittain to have given evidence, particularly of mentioning the specific items of business which he wished to be the subject of the interview he sought, it was necessary for him to have invented, consciously or unconsciously, that portion of the conversation if it were not true. Accordingly, his notes became admissible to rebut the possibility of recent invention. The notes made by Mr Menzies were called for and produced during cross-examination of him and were tendered by counsel for the applicant, without objection.

8. I am satisfied that, when Mr Brittain stated the purpose of his visit, he stated that he wished to interview the members of the shop committee, and not simply the shop committee. It is common ground that he was endeavouring to be precise in his language, and to follow the language of clause 24 of the Award. Apparently this desire for precision arose from previous visits made by Mr Brittain to the respondent's premises at Portland, at which times he had been refused admission for the purpose of conducting meetings. He was therefore being careful to assert his right of entry in terms of the Award. Mr Menzies gave evidence that he had the impression that Mr Brittain was being deliberate and exact about his words. Mr Brittain's position in this respect is supported by his notes. So is the position of Mr Menzies, but his notes do not constitute as complete an account of the conversation as do Mr Brittain's. Mr Menzies recorded the statement of the purpose of the visit as "to interview the Shop Committee in their lunch room". On his evidence in chief, the stated purpose was fuller than this, containing a reference to the meal break and to legitimate Union business. The evidence of Mr Brittain on this point is also supported by the evidence of Mr Parry, that he overheard Mr Brittain asking "to interview some of the members". I am therefore satisfied that the word "members" was used in Mr Brittain's statement of his purpose.

9. I am also satisfied that Mr Brittain made specific reference to the items of business which he wished to discuss. His evidence to this effect is supported by his notes. The specific matters are not mentioned in the notes made by Mr Menzies. It is more probable than not that Mr Menzies did not regard it as important to list them when he made his notes, and relied on his notes when he gave evidence that the items were not mentioned.

10. I do not accept the evidence of Mr Brittain that Mr Menzies announced his intention of being "in attendance". The first account of what Mr Menzies said given in Mr Brittain's notes reads, "Menzies then stated that he would allow me entry to the works to interview shops (sic.) committee but would be coming along to make sure it was not a meeting." In cross-examination, Mr Brittain said, "He made it clear to me that he was going along with me to make sure that a meeting wasn't held." I accept Mr Menzies's denial that he used the words "in attendance", as well as his evidence that he never intended to assert any right to be present during any interview. His intention was to explain to those who were to be interviewed that it was not permissible for them to hold a meeting. Again, the evidence of Mr Parry is significant. He recalled hearing Mr Menzies say, "I'll accompany you over". It was not put to Mr Parry in cross-examination that the words "in attendance" were used. I am therefore satisfied that Mr Menzies used an expression or expressions such as "coming along", "going along" or "accompanying", but did not use the words "in attendance". Where Mr Brittain's notes make reference to the second expression of intention by Mr Menzies, they do use the phrase "in attendance", but I am satisfied that Mr Brittain chose to record this expression because he believed it encapsulated what Mr Menzies intended, not because it was used.

11. An issue was raised as to whether Mr Brittain had complied with clause 24(a) of the Award by producing his "authority" to Mr Menzies. It was not contended that Mr Brittain was not a "duly accredited representative" of the applicant. Rather, the argument was that the authority referred to in sub-clause (a) is an authority to enter the particular premises for the particular purpose, and is therefore something different from and additional to the due accreditation as a representative. In putting this argument, counsel for the respondent called in aid s.155 of the Act, which provides, among other things, that, unless the contrary intention appears in an award, an expression used in the award has the same meaning as it has in the Act. He drew attention to s.286 of the Act, and to the requirements that must be expressed in a written authority, in order to justify the exercise of a right of entry to premises given by that section. For an examination of those requirements, reference should be made to Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty. Ltd. (1990) 34 IR 12, especially at p 16. It should be noted that those specific requirements do not arise from the word "authority" itself, but from the other provisions of s.286(1) of the Act. No such specific requirements are to be found in clause 24 of the Award. The word "authority" in each case means the same thing; it means the document which shows on its face that the bearer possesses the requisite status to exercise the right of entry given, in the one case by s.286 of the Act and in the other by clause 24 of the Award. In the latter case, the only requirement is that the person be a "duly accredited representative" of the applicant. The authority required by clause 24(a) is therefore a document which discloses that its bearer is such a duly accredited representative. The document carried by Mr Brittain on 29th November 1990, and shown to Mr Menzies, satisfied this requirement.

12. It is also important that I should say something about the meaning of the words "interviewing" and "interview" as used in clause 24 of the Award. Mr Menzies asserted to Mr Brittain that clause 24 did not permit the holding of a meeting. The word "meeting" does not appear in the clause. The attempt to distinguish between an interview and a meeting was unhelpful. The two terms are not mutually exclusive. Reference to dictionary definitions makes this clear. The Oxford Dictionary defines "interview" as a noun as meaning, "A meeting of persons face to face, esp. one sought or arranged for the purpose of formal conference on some point." The same dictionary defines "interview" as a transitive verb as meaning "To have a personal meeting with (each other)" and as an intransitive verb "To meet together in person". The Macquarie Dictionary contains a definition of the word "interview" as a noun as, "a meeting of persons face to face, esp. for formal conference in business, etc. ...". The attempt to distinguish between an interview and a meeting may have arisen from a passage in the decision of the Industrial Commission of New South Wales in Re Steel Works Employees (Broken Hill Proprietary Company Limited) and Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) Awards (No. 1) (1962) AR (N.S.W.) 334, esp. at p 373, where the Commission said:

"We believe that the state of affairs which
exists under the present state of the law, which
enables an authorized union representative to
enter the plants and converse with and interview
employees in any lunch or non-working time,
provides an adequate means for the passing on of
information of union interest and for the
discussion of difficulties or grievances which
employees may have. It would be a mistake to
think that an interview between a union
representative and employees in a crib-room
cannot result in a decision without the
interview amounting to a meeting. The views of
a majority of persons participating in a
discussion as to whether a particular course
should or should not be adopted can be
ascertained without the discussion becoming a
meeting. If a union representative thinks that
it is necessary to ascertain what is the
majority view of a group of employees on some
industrial question, he can do it in the course
of a discussion in which his part need be no
more than that of conversing with or
interviewing employees. In some cases the line
between a meeting and a discussion may be thin,
but we think that, if all the facts about a
particular gathering were known, it would not be
difficult as a rule to say whether what had
occurred was or was not a meeting. Some of the
indicia of a meeting are: that it is convened
as such by notice, that it has a chairman to
conduct it who calls on speakers in turn, that
motions and amendments are moved and seconded,
that speeches are made, that a vote is taken.
Any gathering which involved all those features
would clearly be a meeting, and, if a union
representative took part in such a gathering, he
would be exceeding his statutory powers under
his right of entry. To make a speech would not
be to converse with or interview employees. But
the presence of one of the indicia we have
mentioned would not necessarily turn a gathering
into a meeting. We see no reason, for example,
why, in the course of conversing with or
interviewing employees in a crib-room a union
representative could not take a vote on a
particular question, for example as to who a
delegate should be."

The sole question which arose when Mr Brittain attempted to exercise the right under clause 24 of the Award was whether he was there for the purpose of interviewing employees. It is plain from the dictionary definitions, and from the views of the Industrial Commission of New South Wales, that Mr Brittain might properly exercise his right of interviewing by having what some might describe as a meeting. The question is not whether a meeting is being, or is about to be, conducted, but whether what is being done, or is to be done, no longer amounts to an interview. It was therefore not within any power of Mr Menzies to exclude Mr Brittain from the premises on the ground that Mr Brittain intended to conduct or might conduct what Mr Menzies thought would be a meeting. Mr Brittain might properly have been excluded if his purpose was to conduct something other than an interview.

13. On the evidence, I am satisfied that what Mr Brittain intended to do fell squarely within the meaning of the word "interview" as used in clause 24 of the Award. He expected to find up to eight members of the shop committee in the boners' dining room, and to pass information to them and receive their views about the subjects which he had specified to Mr Menzies. Even the receipt of collective views, possibly by the taking of a vote, would not have amounted to something other than an interview.

14. That having been said, the question remains whether the respondent committed any breach of the Award on the day in question. It must be remembered that the case which the applicant sought to make was that the respondent imposed an improper condition on the attempted exercise of the right. Counsel for the applicant drew attention to cases such as Murdoch Manufactories Ltd. v Gibb No. 2 (1925) AR (N.S.W.) 82. In that case, an authorised person was permitted to enter workshops or factories during the midday meal for the purpose of enrolling members, collecting members' contributions and carrying out any other union duty. The award in question gave such authorised person reasonable access to the employees. It was held that there was a breach of award, when the authorised person was given a chair and a table and told he might remain seated on the chair at the table and speak to any employees who approached him. The imposition of this condition was held to be incompatible with the right given by the clause in question.

15. In the present case, Mr Menzies did not by any express terms seek to impose any condition on the exercise of the right given by the Award. He stated his intention of coming along, going along, or accompanying Mr Brittain, in order to ensure that the Award rights were carried out. Such an expression of intention cannot itself amount to the imposition of a condition on the exercise of the right. In this respect, it does not matter if the views of Mr Brittain and Mr Menzies as to the nature and extent of the right given by clause 24 were different, nor that the view taken by Mr Menzies may have been incorrect. Before any breach of clause 24 could occur, it was necessary for Mr Brittain to proceed to the exercise of his right. If that exercise were trammelled, for instance by Mr Menzies or any other representative of the respondent insisting on remaining throughout the interview, there would have been a breach. By Mr Brittain's departure before that point was reached, the opportunity to test whether a breach would have occurred was denied.

16. For these reasons, the application must be dismissed.