WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

-v-

MR DARYL RICHARD D'SYLVA AND MS TERESA ANTOINETTED'SYLVA T/AS PERIWINKLES LEARNING AND CHILDCARE CENTRE

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD THURSDAY, 29 SEPTEMBER 2005, THURSDAY, 13 OCTOBER 2005

DELIVERED THURSDAY, 13 OCTOBER 2005

CLAIM  NO. M 75 OF 2005

CITATION NO. 2005 WAIRC 03187

CatchWords Right of entry - notice to employer - authorised representative

Legislation:

Industrial Relations Act 1979 – sections 49G, 49H, 49J, 49M, 49N, 49O and 83E.

Children’s Services (Private) Award No A 10 of 1990 – clause 17

Result Failure to give proper notice.  Claim dismissed.

REPRESENTATION 

CLAIMANT Mr M Swinbourn of the Liquor, Hospitality and Miscellaneous Union, WA Branch appeared for the Claimant.

RESPONDENT Mr D Johnstone of Workplace Relations and Management Consultants Pty Ltd appeared as agent for the Respondent.

REASONS FOR DECISION

The Facts

1         The Claimant is an organisation of employees registered under Part II of Division 4 of the Industrial Relations Act 1979 (the Act).  The Respondent is the occupier of premises at 68 Gilbertson Road, Kardinya and other premises carrying on the business known as Periwinkles Learning and Childcare Centres (Periwinkles).  The parties are subject to the Children’s Services (Private) Award No A10 of 1990 (the Award).

2         Ms Gayle Heron and Ms Karma Lord are and were at the material time organisers employed by the Claimant.  Each were also authorised representatives as defined in section 49G of the Act appointed pursuant to section 49J of the Act.

3         Ms Heron, on or about 8 June 2005, contacted the Kardinya branch of Periwinkles and informed the co-ordinator thereof of the fact that it was intended that authorised representatives would attend the premises to hold discussions with relevant employees who wished to participate in those discussions.  “Relevant employee” as defined in section 49G, means an employee who is a member of the organisation or who is eligible to become a member of the organisation.  Ms Heron testified that at that time, the date and time of the visit was discussed and arranged.  Having made the necessary arrangements a notice confirming the arrangement was faxed to the Kardinya branch of Periwinkles using the fax number that the co-ordinator had confirmed was the correct fax number for the Respondent’s business at that location.

4         The notice (exhibit 8) was in the following terms.

5         The notice was transmitted to the Respondent’s business and a message confirmation document receipt was generated by the Claimant’s fax machine signifying successful transmission.

6         The Respondent denies that the notice was received.  Mr Daryl D’Sylva testified that the fax number used was not at the material time used for fax purposes.  He said that at the material time the number was used as a telephone line.  He testified also that the fax machine was not operational in that it was not loaded with paper.  Simply put, at that time and for months beforehand, the Respondent’s business at that location did not receive any faxes.  Consequently the notice sent to the business was not received by him.

7         At about 10.05 am on 15 June 2005 Ms Heron and Ms Lord entered the foyer of Periwinkles at Kardinya for the purpose of exercising their powers pursuant to section 49H of the Act.  They intended to engage in discussions with relevant employees.  Upon entering the foyer of the centre they were greeted by Ms Farzaneh Asadi, the centre’s co-ordinator.  They introduced themselves and explained that they were from the Claimant.  Ms Asadi told Ms Heron and Ms Lord that she recognised them from a previous encounter and that the situation was unchanged in that she could not let them enter and speak with workers.  She suggested that the representatives could leave some brochures behind.  She was told that was not appropriate because they needed to speak with the workers which were their right.  She was informed that it was an offence to hinder them in the exercise of their “right of entry” powers under the Act.  Ms Asadi became a little distressed and informed Ms Heron and Ms Lord that she was under instruction from Mr D’Sylva, the owner of the centre that she could not let them in.  She told them that they should speak to Mr D’Sylva about the matter as it was he who had instructed her not to allow entry.  After some further discussion Ms Heron and Ms Lord left when it became apparent to them that they would not be permitted entry.  They consequently left at about 10:15 am.

8         Ms Asadi was not called to give evidence and Mr D’Sylva was not present when the aforementioned discussions took place.  Accordingly the evidence given by

9         Ms Heron and Ms Lord with respect to what occurred on 14 June 2005 remain unchallenged.

10      The only other evidence of relevance was given by Mr D’Sylva.  He testified concerning the operational aspect of the business at Kardinya.  I need not address his evidence nor do I need to address the evidence given by Ms Lisa Forester, an organiser and authorised representative employed by the Claimant.  Her evidence of her conversation with Mr D’Sylva concerning entry onto premises at another location is not relevant to my considerations.

The Claim and Response

11      The claim is made pursuant to section 83E of the Act.  It is alleged that the Respondent contravened section 83E of the Act.  It is alleged that the Respondent contravened section 49M(1) of the Act by refusing and/or intentionally and unduly hindering or obstructing authorised representatives of the Claimant exercising power conferred by Part II Division 2G of the Act.  The evidence dictates that the Claimant alleges that the Respondent failed to comply with section 49H of the Act.

12      Relevantly section 49H provides.

49H. Right of entry for discussions with employees

(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.

(2) If an award, order or industrial agreement that extends to the relevant employees makes provision as to entry onto premises by an authorised representative and —

(a) does not require notice to be given by the representative; or

(b) requires a specified period of notice to be given by the representative,

the authorised representative is not required to give notice under this section.

(3) If subsection (2) does not apply, the authorised representative is not entitled to exercise a power conferred by this section unless the authorised representative has given the employer of the employees concerned at least 24 hours’ written notice.

13      The conduct giving rise to civil penalties for a failure to comply with section 49H of the Act is set out in section 49M of the Act which states:

49M. Conduct giving rise to civil penalties

(1) The occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person entitled to enter the

premises under section 49H or 49I.

(2) A person must not intentionally and unduly hinder or obstruct an authorised representative in the

exercise of the powers conferred by this Division.

(3) A person must not purport to exercise the powers of an authorised representative under this Division if the person is not the holder of a current authority issued by the Registrar under this Division.

Section 49O of the Act outlines the avenue for enforcement by providing:

49O. Enforcement of this Division

A contravention of section 49J(9) or 49M(1), (2) or (3) is not an offence but those subsections are civil penalty provisions for the purposes of section 83E.

Section 83E of the Act contains the powers of the Court to deal with a contravention of section 49M of the Act.

83E. Contravention of a civil penalty provision

(1) If a person contravenes a civil penalty provision, an industrial magistrate’s court may make an order imposing a penalty on the person, not exceeding —

(a) in the case of an employer, organisation or association, $5 000; and

(b) in any other case, $1 000.

(2) Subject to subsection (3), if a person contravenes a civil penalty provision an industrial magistrate’s court may, instead of or in addition to making an order under subsection (1), make an order against the person for the purpose of preventing any further contravention of that provision.

(3) In the case of a contravention of section 49D(2) or (3), the court is not to make an order under subsection (2) instead of making an order under subsection (1) but may make an order under subsection (2) in addition to making an order under subsection (1).

(4) An order under subsection (2) —

(a) may be subject to any terms and conditions the court thinks appropriate; and

(b) may be revoked at any time.

(5) An interim order may be made under subsection (2) pending final determination of an application under this section.

(6) An application for an order under this section may be made by —

(a) a person directly affected by the contravention or, if that person is a represented person, his or her representative;

(b) an organisation or association of which a person who comes within paragraph (a) is a member;

(c) the Registrar or a Deputy Registrar; or

(d) an Industrial Inspector.

(7) An application under subsection (6) must be made in accordance with regulations made by the Governor.

(8) The standard of proof to be applied in determining whether there has been a contravention of a civil penalty provision is the standard observed in civil proceedings.

(9) A person must comply with an order made against him or her under subsection (2).

Penalty: $5 000 and a daily penalty of $500.

(10) Where, on an application under subsection (6), the industrial magistrate’s court does not make an order under subsection (1) or (2), the court may, by order, dismiss the application.

(11) An order under subsection (1), (2) or (10) may be made in any case with or without costs, but in no case shall any costs be given against the Registrar, the Deputy Registrar, or an Industrial Inspector.

(12) In proceedings under this section costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the industrial magistrate’s court, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.

14      The Respondent does not take issue with the fact that authorised representatives employed by the Claimant are and were entitled to enter the Respondent’s premises at Kardinya for the purpose of holding discussions with relevant employees.  The Respondent concedes that the Respondent employs relevant employees pursuant to the Award.  Furthermore the Respondent does not take issue with the fact that they occupied the Kardinya premises on the material date.  Further, no issue is taken about the Claimant’s standing and/or capacity to bring the claim.  In essence the Respondent resists the claim on two grounds being firstly that proper notice was not given, and secondly that the timing of the proposed entry offended clause 17(2) of the Award.

Determination

15      Subsection (2) of section 49H provides that if an award, makes provision as to entry onto the premises by an authorised representative and

(a) does not require notice to be given by the representative; or

(b) requires a specified period of notice to be given by the representative,

then the authorised representative is not required to give notice under the section.

Clause 17 of the Award provides.

17. - TIME AND WAGES RECORD AND RIGHT OF ENTRY

(1) A record of the time worked and wages paid to each employee employed under this award shall be maintained by the employer and shall be available for inspection by an accredited representative of the Union upon the giving of reasonable notice to the employer.

(2) Accredited representatives of the Union shall be permitted to interview employees on the business premises of the employer during non-working times and meal breaks.  Provided that the duly accredited representative shall notify the employer beforehand of their intention to exercise their rights under this clause.

Provided further that nothing in this subclause shall empower a duly accredited official of the union to enter any part of the premises of the employer, pursuant to this subclause, unless the employer is the employer or former employer of a member of the Union.

Before exercising a power of inspection the representative shall give reasonable notice of not less than 24 hours to the employer.

16      It will be obvious that subclause (1) together with the third and fourth paragraphs of clause 17 relate to entry for the purpose of “inspecting” time and wages records.  There is specific reference to inspection in subclause (1) and the fourth paragraph.  Inspection is totally different to what was sought to be done on the material date.  Accordingly those provisions have no application in this matter.  Similarly the third paragraph, of necessity, must relate to the inspection provision.  That is the case because of its reference to “former employer of a member of the Union”.  Obviously that would not apply to the Respondent’s situation on the material date.  Paragraph three is, therefore, demonstrably an enabling provision to allow a duly accredited official of the Union to enter premises for the purpose of inspecting time and wages records of current and former employees.

17      It follows therefore that the only relevant provision in the Award is clause 17(2).  In that regard accredited representatives referred to therein should be read to mean authorised representatives.  That subclause does not dispense with the requirement to give notice nor does it require a specified period of notice to be given.  Consequently clause 17(2) of the Award does not comply with the prescriptive requirements of section 49H(2) of the Act and enlivens the operation of section 49H(3) of the Act.  Section 49H(3) of the Act prescribes that the (my emphasis) authorised representative is not entitled to exercise a power conferred by the section unless the (my emphasis) authorised representative has given the employer of the employee concerned at least 24 hours’ written notice.

18      In my view the provision requires a particular identified authorised representative to give 24 hours written notice of his or her intention to enter the employers’ premises for the purpose of holding discussions with employees.  It is axiomatic that the authorised person must identify him or herself by name, because the provision is more specific.  The notice must be given to the employer.  In that context “give” means addressed to the employer giving specific details as to the entry.

19      In my view exhibit 8 does not constitute such a notice.  It does not specifically identify who sent it and it is not addressed to the employer.  In reality it is no more than a flyer directed at employees informing them of the intended visit.  It falls far short of the notice that is required to be given pursuant to section 49H(3) of the Act.  I find that section 49H(3) has not been complied with and therefore the authorised representatives were not authorised to enter the premises on 14 June 2005.

20      Even if I am wrong in that conclusion I find that there is insufficient evidence to establish that Mr D’Sylva was given written notice of the proposed entry.  Although it can be established that a fax was sent on 8 June 2005 from the Claimant to the Respondent, I cannot be satisfied that Mr D’Sylva received it.  Indeed the uncontroverted evidence is that he did not receive the same because the fax machine was not being utilized.  I was not presented with any technical evidence regarding the operations of fax machines that would have destroyed the credit of Mr D’Sylva’s evidence.  In those circumstances I have no particular reason to reject his evidence in that regard.

21      Given my findings I do not propose to consider the second limb of the Respondent’s submissions.

22      I cannot be satisfied on the balance of probabilities that there was compliance with section 49H(3) of the Act which was in this instance a necessary precondition for entry.  Accordingly the alleged failure to comply with section 49M is not made out.  The Respondent was not required to allow entry on the material date because the prerequisite for entry had not been met.

23      The claim is dismissed

G Cicchini

Industrial Magistrate