Lindsay Carroll, AMMA Employee Relations Lawyer

The Federal Court has upheld an employer’s decision to refuse entry to its premises by two CFMEU organisers who were seeking to exercise rights of entry to hold discussions with employees under the Fair Work Act 2009, finding that the time before or after a shift cannot amount to a ‘break’ for the purposes of the Act.

Background

Under the Act, where a union official who holds a permit under the Act seeks to enter premises to hold discussions with eligible employees:

  1. the entry may be exercised only during working hours; and
  2. discussions may only be held during meal times or other breaks.

In 2015, two CFMEU organisers gave notice of entry to premises occupied by BHP Billiton Nickel West (BHP) at Kwinana for the purpose of holding discussions with employees prior to their shift.  BHP wrote to the organisers refusing entry, advising that there were no breaks occurring during the period which the organisers sought to enter.  BHP’s correspondence also identified when crib breaks would occur.

The organisers claimed that they were entitled to exercise entry and referred to the Explanatory Memorandum to the Act, which states that ‘other breaks’ would include holding discussions before or after an employee’s shift, provided the discussions are held within the working hours of the premises.  The nickel refinery on the premises operated 24 hours a day.

BHP accepted that the organisers could exercise their right of entry for the purposes of holding discussions with eligible employees during any of their designated breaks, however denied that there was a right to hold discussions prior to an employee’s shift.  The CFMEU brought proceedings in the Federal Court alleging a contravention of the Act.

Decision

Justice Flick found the reliance cannot be placed upon the Explanatory Memorandum to displace the ordinary meaning of the words in the Act and that the ordinary meaning of the words in the Act do not confer a right to hold discussions before employees’ shifts commence.

It was held that the language in the Act was unambiguous.  Considering the natural meaning of the phrase ‘other breaks’, Justice Flick noted that it is not possible to have a ‘break’ during something that is not otherwise happening.  Any time outside of the employees’ working hours could therefore not be deemed a ‘break’, despite the continuous operations at the premises.

Although the CFMEU officials could enter the premises before the shift commenced, as it would be during the working hours of the premises, it would not be possible to enter for their stated purpose of holding discussions with the relevant employees until their designated breaks, later in the day.

Implications for employers

This decision confirms that, while a permit holder may exercise a right of entry under the Act during working hours, in circumstances where it is clear when employees working on premises start and finish work and take their breaks, if the permit holder is seeking to hold discussions with eligible employees the discussions may only take place during recognised break times, and not before or after a shift..

For more information regarding union right of entry at your workplace, contact Lindsay Carroll, Workplace Relations Counsel on [email protected] or 0419 887 303.