Court clarifies meaning of “other break” under Fair Work Act and rejects pre-shift entry by union officials

The Federal Court of Australia has clarified that union officials are not authorised to enter to hold discussions with employees before those employees start work. Rather, union officials can only enter workplaces to hold discussions during designated break times.

In the case of Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991, the Court considered whether two union officials be allowed to enter work premises to hold discussions with employees between 5.15am and 6.30pm (focusing on the times of changeover of shift) in circumstances where:

  • The working hours of the nickel refinery were 24 hours per day;
  • Employees were working consecutive 12 hour shifts from 6am – 6pm and 6pm – 6am.

In making its decision, the Court referred to sections 484 and 490 of the Fair Work Act 2009 (Cth) (Act) which relevantly provide that:

  • a permit holder may enter premises for the purposes of holding discussions with one or more employees who perform work on the premises, whose industrial interests the permit holder’s organisation is entitled to represent, and who wish to participate in those discussions; and
  • permit holders may exercise a right of entry only during working hours; only during mealtimes or other breaks; and only on a day specified in the entry notice or exemption certificate for the entry.

The CFMEU relied on the Explanatory Memorandum (EM) for the Fair Work Bill 2008 to argue that what is meant by “other breaks” in section 490(2) of the Act includes “holding discussions before or after an employee’s shift, provided the discussions are held within the working hours of the premises”.

BHP Billiton disputed that the period before and after the relevant employee’s shift is an “other break” and argued that while the EM provides an example which may apply in some cases, there were no designated breaks before or after the relevant employee’s shifts on the site.

Decision

The Court determined that the union officials could not exercise their right of entry prior to or after shift because the employees were not on a break during those periods and the Fair Work Act did not authorise entry for the purposes of holding discussions with such employees prior to their scheduled working hours commencing.

The Court identified two difficulties with the CFMEU’s reliance on the EM:

  • There is no ambiguity or obscurity in the meaning and application of sections 484 and 490 of the Act; and
  • Reliance cannot be placed upon secondary material to alter the meaning to be given to the natural and ordinary meaning of the words employed by the legislature.

The Court concluded thatreliance cannot be placed upon the Explanatory Memorandum, or even if it can, such reliance cannot displace the natural and ordinary meaning of the words employed by ss 484 and 490 so as to authorise the entry upon the premises…”

Key points for employers

Permit holders are able to hold discussions with workers during breaks, but not before or after the employee’s shift where there is no designated break.

It is important for employers to understand right of entry provisions of the Act, including their rights to refuse entry in circumstances where compliance with the Act has not been met and may disrupt business.

Further, if the right of entry requirements are not properly enforced, employers/ businesses risk the entry being categorised as a permitted or authorised entry outside the bounds of those provisions. This would mean that the visit is not regulated by the Fair Work Act and therefore the requirements (and penalties for non-compliance) cannot be invoked should the visit get out of hand.

This article was written by Manja Lalovic, Lawyer – Workplace Relations and edited by Stephen Hughes, Principal Lawyer – Workplace Relations.