Fair Work Australia (FWA) has determined that an employer’s request for union discussions to take place in rooms located a considerable walk from some employees’ work locations was unreasonable.
Implications for employers
This decision highlights the need for employers to carefully consider whether a request to hold discussions in a particular room or area is reasonable, in order to avoid costly disputes with unions. This will require consideration of whether the location is in close proximity to the employees’ work locations and whether the meeting can take place, with certainty, at a particular time and for a sufficient duration. In the event of a dispute, employers will need to provide persuasive evidence as to why the request was reasonable. Whilst evidence of the employer’s subjective intention will be relevant, it is only one factor a court or tribunal will consider.
The employer, Rio Tinto Aluminium (Bell Bay) Ltd (Rio Tinto), requested that the Australian Workers’ Union (AWU) only have discussions with employees in particular rooms at the employer’s premises. The rooms were situated in the “administration building”. Walking to and from the administration building was often time consuming. This was because of various crossing points on the site which caused delays. The building was also a distance of eight to fifteen minutes from some employees’ work locations. Additionally, employees’ breaks did not necessarily coincide with the visits of the AWU, and meetings were often of limited duration due to the fact that the time and duration of breaks was determined by Rio Tinto’s operational requirements.
The AWU submitted that the request was not reasonable and that Rio Tinto had the intention of intimidating, discouraging and making it difficult for the employees to participate in the discussions. Rio Tinto submitted that discrete and extended breaks could be granted to employees for the purpose of attending discussions, and that the request should not be judged according to the preference of the AWU, which was for discussions to be held in the crib rooms. Rio Tinto submitted that holding meetings in the crib rooms would inconvenience employees who did not wish to participate in the discussions.
FWA concluded that the request was not reasonable in the circumstances, at least in relation to the employees working in locations that were not in close proximity to the administration building. FWA considered the:
- operational requirements of the flexible working regime;
- variability of times when breaks were taken;
- duration of the breaks;
- distance between certain work locations and the administration building;
- time required to travel to and from that location; and
- uncertainty and variability of transit times,
as being relevant circumstances in relation to the “unreasonableness” of the request.
FWA held that an intention on the part of Rio Tinto to intimidate, discourage, or make it difficult for the employees to participate in the discussions, had not been made out in the evidence. Importantly, FWA emphasised that the subjective intention of the employer is “ancillary” to, and a component of, “a much wider field of general consideration of whether or not a request is reasonable or unreasonable”.
FWA concluded that the possibility of discrete and extended breaks being available for meeting purposes had not been communicated to employees or the AWU prior to the proceedings, and that the occurrence and “the duration of any such break, if it were to be granted, (would) likewise be highly contingent upon operational requirements”.
FWA ordered discussions to be held in all crib rooms and noted that this was “not to serve the (AWU’s) convenience” but rather because “the crib rooms (could) accommodate the discussions … without undue inconvenience to any person including, most pertinently, Rio Tinto”.
AWU v Rio Tinto Aluminium (Bell Bay Ltd)  FWA 3878