Gooley dissents but TWU loses battle with DHL

TWU loses appeal to gain greater access to DHL warehouse despite raising "significant questions" about right of entry provisions

By Brad Gardner | September 1, 2011

The Transport Workers Union’s attempt to gain greater access to its members at a DHL Supply Chain warehouse has failed again despite raising "significant questions" about right of entry provisions.

The full bench of Fair Work Australia has upheld Commissioner Greg Harrison’s ruling from earlier this year rejecting the union’s bid to use the lunchroom at DHL’s Arndell Park premises in NSW for meetings.

In its appeal, the TWU reiterated its complaint that the room allocated to it discourages employees from attending meetings because it is located close to management.

The union also complained that Harrison failed to consider that employees had no way of knowing if a TWU official was on site.

In a 2-1 majority ruling, the full bench ruled that "the TWU has not established that there are any manifest errors in the Commissioner’s decision".

"In particular it has not been shown that there was any such significant error of fact made by the Commissioner as would warrant interference by an appeal bench," the written judgement says.

But in a written dissent, Commissioner Anne Gooley says Harrison failed to consider that employees did not know when a union official was present and that DHL did not advise employees if an official had entered the premises.

The TWU claimed the practice "defeats the very purpose of the exercise of right of entry".

"In this matter the employer did not refuse to notify all relevant employees however it is clear DHL made no attempt to notify employees generally of the presence of the permit holders. It is no answer to say the permit holders can notify employees of his or her presence," Gooley says.

Referring to the section of the Fair Work Act that covers right of entry provisions, Gooley writes: "This appeal raises significant questions regarding the operation of Part 3-4 of [chapter 3 of] the FW Act…"

The former Maurice Blackburn lawyer found there was evidence to show the location of the room had an effect on employees.

During initial proceedings, union delegate Lester Denetto told Fair Work Australia: "It is very intimidating to go to see a union organiser in the middle of management offices where you can be seen by management."

Gooley criticised Harrison for saying Denetto’s evidence, which DHL did not dispute, only described his feelings and the possibility that people may feel intimidated.

"This evidence should not be lightly put aside in the circumstances where the evidence was not challenged by DHL," she says.

"That employees were discouraged or intimidated is a relevant consideration and by failing to have regard to this, Commissioner Harrison erred."

Gooley also rejected Harrison’s argument that management could monitor staff if it wanted to regardless of where access was granted. She says employees are required to go out of their way to meet officials in the allocated room as opposed to the lunchroom.

"In more public areas it would not be clear to any observers whether the discussions were initiated by the permit holder or the employee," Gooley says.

DHL says the air-conditioned room has a solid door, blinds that can be opened and shut, table and desk, chairs and a whiteboard.

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