The Fair Work Commission (Commission) has followed a strict approach to the construction of provisions enabling union right of entry to hold discussions with employees. In Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd  FWC 3829, Commissioner Williams clarified that section 490(2) of the Fair Work Act 2009 (Cth) (FW Act), which restricts the exercise of such a right to “mealtimes or other breaks”, does not allow permit holders to enter premises to hold discussions with employees before or after work.
BHP Billiton Nickel West Pty Ltd (BHP Billiton) operates the Kwinana nickel refinery in Western Australia, which operates 24 hours per day.
BHP Billiton refused entry to the premises to two CFMEU officials who sought to enter in order to hold discussions with workers employed by BHP Billiton contractors before the start of their 6am to 6pm shift.
The CFMEU brought proceedings in the Commission under section 505 of the FW Act, which allows the Commission to deal with a dispute about the right of entry provisions in the FW Act. The question before the Commission was whether permit holders are entitled to exercise a right of entry to hold discussions with workers before or after the particular workers’ shift, provided that work is being conducted on the premises at the time.
Commissioner Williams dismissed the CFMEU’s application on jurisdictional grounds (relating to the Commission’s powers under section 505 of the FW Act) and also on the grounds that the periods before and after an employee’s shift are not a “break” from work, during which discussions can be held.
Right of entry to hold discussions during “other breaks”
Section 484 of the FW Act allows permit holders to enter premises for the purposes of holding discussions with employees who work on the premises and are eligible to be represented by the permit holder’s organisation. However, section 490 of the FW Act provides that this right of entry may be exercised:
- Only during working hours; and
- In the case of discussions under section 484 of the FW Act, only “during mealtimes or other breaks”.
The CFMEU argued that the term “break” encompasses any interruption from, or suspension of, work, and includes the time between the conclusion of a working day and commencement of another working day and times when work is, for whatever reason, not being performed. The CFMEU argued that if workers were on site but not working prior to or after their own shift but during the working hours of the site, they were on a “break”.
In support of its argument, the CFMEU relied on a decision of Vice-President Lawler regarding the almost identically worded provisions of the old Workplace Relations Act 1996 (Cth) (repealed) (Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office  AIRC 253). In that case, Vice-President Lawler held that employees who, during the working hours of the establishment, had not yet started work or had finished work could properly be seen as being on a “break” from work. In line with that decision, the Explanatory Memorandum to the FW Act specifically referred to the periods before and after an employee’s shift (provided they are during the premises’ working hours) as examples of “other breaks” for the purposes of section 490(2).
However, Commissioner Williams rejected this analysis. The Commissioner found that the ordinary meaning of the term “break” involves an interruption in the continuity of an employee’s work, the suspension or stoppage of an employee’s work, or a brief rest from the employee’s work. Work must have begun and must be going to continue in order for a break to interrupt, suspend or stop it. Thus, “other breaks” could not include the time before an employee’s shift had begun or after the shift had ended.
Commissioner Williams noted that the CFMEU’s interpretation would result in uncertainty regarding the parties’ rights and obligations. In particular, there would be no certainty as to how long before or after an employee’s shift a permit holder could properly exercise a right of entry (in the context of a 24/7 worksite). This would involve inconvenience to occupiers and employers in going about their business and be an uncertain encroachment on their common law property rights.
Lessons for employers
This decision provides clarity for employers about when unions can enter premises to hold discussions with employees. This decision also confirms that occupiers of premises may refuse entry to a permit holder seeking to hold discussions with employees at the premises before or after the employees’ shifts. Permit holders can, therefore, only enter premises during a “break” which interrupts, suspends or stops the employees’ work for a brief time.
This article is written by Michael Will, Partner, and Katie Weir, Senior Associate