Before and after work does not count as break periods for union entry

The Fair Work Commission (FWC) has decided that the phrase ‘other breaks’ under section 490(2) of the Fair Work Act 2009 dealing with union right of entry does not include the period before or after an employee’s shift. Therefore union permit holders do not have a right under the FWA to enter an employer’s premises to speak with employees outside of their rostered hours.

In Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2016] FWC 3829, managers at the BHP Billiton Nickel Kwinana refused entry to two CFMEU permit holders who applied to enter the Kwinana premises before the start of a shift to hold discussions with employees of contractors engaged by BHP.

Right of entry

The CFMEU sought an order from the FWC to allow union permit holders to enter BHP’s premises at any time that operations were conducted on the site, arguing that the periods before and after employee shifts were ‘other breaks’.

BHP argued that the start and end of an employee’s shift does not constitute part of their working day and that those times cannot be considered ‘other breaks’ for the purpose of section 490(2) of the FWA. BHP submitted that to uphold the CFMEU’s argument would result in an ‘absurd’ situation where permit holders could enter an employer’s premises at any time. BHP also argued that the purpose of sections 484 and 490 of the FWA was to ‘strike a balance’ between the competing rights of an employer and employee and that the legislature did not intend the permit holder right of entry provisions in the FWA to be unfettered.

Jurisdiction

BHP also raised a jurisdiction argument that the CFMEU’s application was not a dispute giving rise to the jurisdiction of the FWC but an application concerning statutory interpretation, which was a judicial function of the Court.

The CFMEU submitted that the FWC had jurisdiction to hear and decide their application because it was  asking the FWC to interpret the term ‘other breaks’ under section 490(2) of the FWA as part of an assessment of the CFMEU’s rights of entry dispute.

BHP objected to the CFMEU’s application being heard because BHP argued that the FWC did not have the jurisdiction to hear and decide the matter because:

• the application was not about an existing workplace dispute;
• the CFMEU’s evidence simply speculated that the conditions entitling CFMEU permit holders to enter Kwinana may arise in the future; and
• the application required an exercise of judicial power to interpret the statute.

Findings

The FWC found that it did not have the jurisdiction to hear the CFMEU’s application because the CFMEU was seeking the enforcement of an existing right under section 490(2) of the FWA, which required the exercise of judicial power. For that reason the FWC dismissed the application.

The FWC then considered the arguments about the meaning of ‘other breaks’ and found that the ordinary meaning of the phrase should be construed as a break in an employee’s shift within the employee’s working hours. On that basis, the operating hours of the employer’s premises is irrelevant. The FWC found that it is the employee’s working hours and the breaks that occur between the commencement and cessation of the employee’s working day that is considered by section 490(2).

The FWC also found that the operating hours of the employer’s premises are relevant only to the right of entry for permit holders to investigate suspected contraventions or safety breaches. The FWC found that if the CFMEU’s application was taken to its logical conclusion, a permit holder could enter an employer’s premises at any time. In the Kwinana instance, the CFMEU would have 24/7 access to the site, which would be inconsistent with the object of Part 3-4 of the FWA to balance the rights of organisations to hold discussions and ‘the right of occupiers of premises and employers to go about their business without undue inconvenience’.

The FWC also found that the employees that the CFMEU sought to speak with at the Kwinana site were not employees of BHP and were not authorised to be on the site any longer than necessary to complete work-related functions. For that reason the employees were not authorised to be present on site at the times the CFMEU proposed to hold discussions with them.

This decision provides further clarity for employers about when unions can enter premises to hold discussions with employees.

By Annie Smeaton, Partner and Michelle Cowan, Lawyer

This article originally appeared in the July issue of our Workplace Relations and Safety Risk Management Adviser.