21 Jul 2016

Permit holders can't enter premises before or after work to hold discussions

By Matt Kelleher, Ebony Creek

Right of entry permit holders are not allowed to exercise their entry rights before or after an employee's shift time.

The Fair Work Commission in Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2016] FWC 3829 has clarified the meaning of the phrase "other breaks" in section 490(2) of the Fair Work Act 2009 (Cth) and whether it includes the period before or after an employee's shift.

Right of entry

Section 484 of the Fair Work Act allows permit holders to enter premises for the purposes of holding discussions with eligible employees. Section 490(2) of the Fair Work Act provides that this right may only be exercised by the permit holder during mealtimes or other breaks. Whether “other breaks” includes the period before and after work is not defined in the Fair Work Act.

What is this case about?

This case involved a dispute between BHP Billiton Nickel West Pty Ltd and two CFMEU officials. BHP refused to let the two officials enter the premises to hold discussions before the employees had commenced work, at its plant in Kwinana.

The CFMEU argued that the officials could exercise their entry rights before employees commenced their shift because it would fall within the meaning of “other breaks” in the Fair Work Act. The union said this would be allowed provided the discussions were held within the working hours of the premises which operated 24 hours per day.

BHP's position was that the text of the Fair Work Act is clear and unambiguous and that before work was not a “break from work”. The period of time outside the employee's working hours or shift times should properly be considered as “non-working hours” and not an “other break” for the purposes of section 490(2) of the Act.

BHP also successfully opposed the union's application on jurisdictional grounds on the basis that the application would require the Commission to exercise judicial power and not arbitral power. While this jurisdictional objection was granted, Commissioner Williams went on to determine the substantive merits of the application. This article is only intended to focus on those substantive findings.

Does “other breaks” include before and after work?

Commissioner Williams considered whether the ordinary meaning of “other breaks” included the periods before or after a relevant employee's shift. The Commissioner interpreted “breaks” to mean interruptions in the continuity of an employee's work, the stoppage of an employee's work or a brief rest from an employee's work. The ordinary meanings of the words “other breaks” was not ambiguous or obscure.

Based on the ordinary meaning of the words, “other breaks” was found not to include a period of time before an employee's shift begins or the period after it has ended. The Commissioner found that allowing the meaning of the phrase to extend to before and after work would create uncertainty and further disputes about when would be a reasonable time to hold discussions.

In reaching these findings, the Commissioner placed importance on the objects of the right of entry provisions in the Act which are to balance the rights of organisations to hold discussions and the right of occupiers and employers to go about their business without undue inconvenience.

What does this mean for employers?

This decision confirms that an occupier of premises has the right to refuse entry to a permit holder for the purpose of holding discussions if he or she seeks to do so before or after work at a premises. Permit holders can therefore only enter premises during a “break” which interrupts, suspends or stops the employees' work for a brief time.

If you require any advice in relation to when permit holders can enter the premises please do not hesitate to contact us.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.