The Fair Work Commission (FWC) has found that cabins attached to draglines at a Queensland coal mine are not appropriate places for a union to meet with workers to hold discussions, in the process clarifying the triggers for the default lunchroom provisions under the Fair Work Act, writes AREEA senior workplace policy adviser, Lisa Matthews.

SINCE 1 January 2014, s.492(3) has provided that, following a failure to agree with an occupier on a location for discussions with workers, a permit holder may conduct interviews or hold discussions in any room or area in which one or more persons who may participate in discussions ordinarily take meal or other breaks, and which is provided by the occupier for that purpose.

In this case, the Construction, Forestry, Mining, Energy Union (CFMEU) asked the FWC to arbitrate a dispute under s.505 over whether one of its officials should have been granted entry to two draglines at the BHP Billiton Mitsubishi Alliance (BMA) Caval Ridge Coal Mine when he sought to hold discussions with workers in September 2014 following a failure to agree with BMA on a location.

The company had refused access to the draglines but had facilitated access to “mobile crib facilities”, offering to alert dragline employees to the union’s presence and pay for their travel time to and from the draglines some kilometres away. The company also offered to provide transport.

Are dragline crib rooms default locations?

The CFMEU had sought access to the two dragline crib rooms to hold discussions with three operators. Draglines are large excavators with a bucket pulled in by a wire cable and are designed and placed on mine leases for the purpose of undertaking mining by removing waste material from coal.

At the Caval Ridge Mine, draglines had a room / cabin attached, referred to as “crib rooms”, in which workers could store food and drink and take their meals. The cabins were also used by workers to check safety instructions, complete training on computers, and meet with supervisors.

It was to those cabins that the CFMEU sought entry to hold discussions with dragline employees under the default provisions in s.492(3).

The FWC had to decide whether the dragline crib rooms constituted a default location under s.492 and whether the threshold of failing to agree on a location had been met.

In her 2 November 2015 decision, Deputy President Ingrid Asbury found the dragline crib rooms were not rooms or areas within the meaning of s.492(3) given that those areas on the dragline were primarily functional work areas, i.e. areas within operating pieces of equipment.

“The fact that draglines are very substantial pieces of equipment of such proportions that they contain an area of the kind in dispute in these proceedings does not make draglines any the less pieces of operating equipment,” the DP said.

“That a functional work area on a dragline has facilities in which employees can store and prepare food and drinks to consume either in the area itself or in the operating cabin of the dragline, does not make that area an area provided for the purpose of taking meal or other breaks.”

The relevant consideration was that the purpose or primary purpose of the draglines was as a work area although operators could choose to have their meal breaks on the dragline or travel between 2kms and 4kms to a mobile crib facility.

Other considerations that informed the DP’s decision was that the mobile crib facility had a full kitchen while the draglines had kitchenettes; and the mobile crib facility had toilets and the draglines did not. In short, the mobile crib facility was a room provided for the purposes of employees taking meal or other breaks, while the draglines were not provided for that purpose, the DP found.

While the CFMEU official had the right to approach employees on the draglines to ascertain whether they wanted to participate in discussions, and employees may have found it inconvenient to leave the draglines and travel to mobile crib rooms to participate in discussions, those considerations did not outweigh the fact that draglines were not default meeting places.

The threshold of “failing to agree”

Had the FWC found the draglines were a location to which the union had default access under s.492(3), the parties in this case had met the threshold of failing to agree on a location, thereby triggering the default lunchroom provisions, DP Asbury said.

Each party had proposed a room or area for discussions and had given reasons for proposing that room or area. Each party had also allowed the other party to consider the proposed areas or rooms and had responded.

That being the case, it was not within the FWC’s power to determine that either the CFMEU or BMA were being unreasonable in their insistence on a particular location.

“The most that can be said is that each holds a view based on a number of considerations, including principle, and it is highly unlikely that either [the CFMEU] or BMA will depart from their respective views,” the DP said.

The threshold to trigger the default lunchroom provisions under s.492(3) had been met by the parties’ failure to reach an agreement on a location for discussions. However, in this case that was a moot point given the DP’s finding that draglines were not default locations available under s.492(3) because they were primarily operational facilities, not lunchroom facilities.

Limits on the FWC’s power to arbitrate

In handing down her decision, DP Asbury noted the “tension” between the FWC’s power to arbitrate right of entry disputes under s.505 and the way s.492 was framed.

“Any discretion that the commission previously had to determine the reasonableness of a location for discussions conducted by a permit holder has been removed by the 2014 amendments. Instead, where entry is sought under s.484 of the Act, the focus in s.492 is on the occupier and the permit holder reaching agreement about the room or area in which discussions will be held,” the DP said.

The FWC is therefore not empowered to arbitrate a dispute about whether it is reasonable for a permit holder or occupier to insist on using a particular room or area to hold discussions, she said. Where the location proposed by the union is one that falls within the meaning of a default location in s.492(3), provided the failure to agree has triggered that provision and the permit holder has complied with all requirements of the Act, the FWC has no power to rule on the reasonableness of that location.

It was therefore “probable that circumstances in which the commission would make an order or determine that the default location chosen by the permit holder should not be used for discussions, will be rare”, the DP said.

Implications for AREEA members

This is an important decision for AREEA members as it clarifies: what is meant by a failure to agree on a location to hold discussions; what is meant by a room provided for the purpose of employees taking meal or other breaks; and that, as of 1 January 2014, the FWC has no power to arbitrate disputes over the “reasonableness” of meeting locations where the default lunchroom access provisions have been triggered.

While in this decision the FWC explores the operational difficulties associated with giving the union access to particular dragline crib rooms, the reason the FWC deemed the draglines unsuitable places to hold discussions was because they were not provided by the occupier for the primary or sole purpose of employees taking meal or other breaks. The draglines were multi-functional areas that were primarily operational in nature despite dragline employees typically taking meal and other breaks there.

The decision confirms that where a location meets the definition of a meal room under s.492(3), following a failure to agree on a location, the FWC cannot arbitrate a dispute over the reasonableness of that default location. Nor can it deem an alternative lunchroom designated by the employer as the preferred location over any default location chosen by the union.

Fair Work Amendment Bill changes fail

The Fair Work Amendment Bill 2014 originally contained provisions that would have removed the 1 January 2014 default lunchroom provisions. However, those changes did not make it through a recent Senate amendment process and will not be enacted when the legislation comes into effect.

The current default lunchroom provisions will remain for the foreseeable future.

Please contact your local AREEA consultant for further information or advice in relation to these matters.