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FWC clarifies ‘other breaks’ under union workplace entry laws

WORKPLACE entry laws can be a contentious issue at the best of times, however, a recent decision of the Fair Work Commission has clarified the meaning of ‘other breaks’ under the Fair Work Act, writes AREEA employee relations consultant Lee van der Burgt.

IN exercising a union workplace entry request to hold discussions with employees, permit holders are limited, under section 490 of the Fair Work Act 2009 (FW Act), to enter only:

  • during working hours;
  • during mealtimes or other breaks to hold discussions with workers; and
  • on the date specified in the entry notice or exemption certificate for entry.

In Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2016] FWC 3829, an application made by the CFMEU under section 505 to deal with a right of entry dispute sought orders for two of its officials to be allowed to enter the work premises ‘to hold discussions with workers before or after their shift, provided the discussions are held within the working hours of the premises’ which they had been prevented from carrying out.

The contention between the parties was the meaning of ‘other breaks’ which the CFMEU asserted included periods before and after the workers’ shifts. This is based on the Explanatory Memorandum (EM) for the Fair Work Bill 2008, at paragraph 1962, which reads:

“An example of other breaks would include holding discussions before and after an employee’s shift, provided the discussions are held within the working hours of the premises.”

The decision

In handing down his decision to dismiss the application, Commissioner Williams stated the ordinary meaning of the words ‘other breaks’, is not ambiguous or obscure nor does it lead to an absurd or unreasonable result.  As such, subject to rules of statutory interpretation, there is no basis for the need to consider the EM as a guide to interpret the meaning of ‘other breaks’ and that it is doubtful Parliament intended to legislate a right to enter a premises to hold discussion at times when the employees may not necessarily be there.

The Commissioner added that to interpret that a right existed would be contrary to the objects of the Act which is to seek to balance the right of occupiers of premises and employers to go about their businesses without undue inconvenience.

Implications for employers

Employers must have an understanding of the right of entry provisions contained within the FW Act to ensure unions are not hindered in exercising their lawful rights, while not having unfettered access which disrupts the employer’s business.

This decision clarifies that permit holders have a lawful right to hold discussions in breaks that occur during the course of the working day, not before or after, and only during those breaks which cause the least disruption to the employer’s business.

AREEA’s experienced team of workplace relations consultants are available to provide advice on the rights of permit holders to enter a work premise to ensure obligations under the FW Act are being met. Contact an AREEA consultant near you.

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