The High Court has recently dismissed the applications made by BM Alliance Coal Operations and Central Queensland Services (BMA) for special leave to appeal a decision of the Federal Court which had confirmed an earlier decision of the Full Bench of the Fair Work Commission that effectively granted CFMEU officials access to areas that form part of dragline machinery used by BMA at the central Queensland Caval Ridge coal mine.

The dispute about CFMEU access has been ongoing since September 2014.  This decision exhausts BMA’s final avenue for review, and effectively confirms the view of the Federal Court regarding the operation of the controversial “lunchroom access provisions” under amendments made to s 492 of the Fair Work Act by then-Workplace Relations Minister Bill Shorten in 2013.

It is the first time this amended provision has been tested at this level since it commenced operation on 1 January 2014.

The decision has implications for employers who are unable to reach agreement on a room or area in which union officials may conduct an interview or hold discussions with employees when exercising rights of entry under the current right of entry provisions, and has highlighted the need to return balance to union workplace entry laws.

Background

The dispute arose when BMA and the CFMEU failed to reach agreement on a room or area in which a CFMEU entry permit holder was to conduct interviews or hold discussions with employees working on two draglines. The CFMEU sought to hold these discussions in areas situated between the operator’s cabins and the operational housing on each of the draglines, arguing they are areas in which the relevant employees ordinarily take their meal or other breaks and which are provided for the purpose of taking those breaks.

As reported by AREEA, the Fair Work Commission at first instance found that the areas on the draglines were not rooms or areas within the meaning of s 492(3) given that those areas were primarily functional work areas, i.e. areas within operating pieces of equipment.

The decision was overturned by a Full Bench of the Fair Work Commission, which found that the words of s 492(3)(b) do not require that the room or area concerned must be provided for the single or sole purpose of taking meal or other breaks. The decision of the Full Bench was upheld by the Federal Court. Read AREEA’s article regarding the Full Bench decision here.

BMA applied to the High Court for special leave to appeal. In a decision handed down on 15 August 2017, the High Court found “[t]he application for special leave to appeal discloses no reason to doubt the correctness of the decision of the Full Court of the Federal Court”. The High Court dismissed the application and awarded costs to the CFMEU.

Implications

AREEA chief executive Steve Knott has previously noted that “this leaves the employer with the prospect of having to transport union officials to the draglines, shut down production-critical equipment, and allow the officials to approach employees in a confined private space – with or without the employees’ request or consent.”

This decision is not only significant for the future exercise of right of entry powers at BMA, but also represents a precedent which may be relevant to other operations in the coal industry and at many other Australian workplaces.

Given the size, location and type of machinery used on various resource projects as well as the significant safety obligations that apply, AREEA has long advocated for employers to retain the capacity to reasonably direct permit holders in relation to the locations at which they hold discussions and their conduct during visits.

With the interpretation of the amended section settled, it is now more important than ever for the legislature to return balance to the union workplace entry laws by removing access to employee lunch rooms when other suitable meeting rooms are available.

AREEA is the resource industry’s specialist for all workplace relations matters, including right of entry. For information about this case or similar matters speak with an AREEA consultant today.