A ‘right of entry’ dispute between BHP Billiton Mitsubishi Alliance (BMA) and the CFMEU over the union’s access to small rooms within heavy machinery has taken a disappointing twist, with a Full Bench of the Fair Work Commission (FWC) quashing on appeal an earlier decision that was favourable to the coal employer.

IN WHAT marks the first occasion a Full Bench of the FWC has been called to examine the contentious ‘default lunchroom’ sections of the Fair Work Act’s right of entry provisions, the CFMEU has successfully appealed an earlier decision which prevented its access to crib rooms attached to draglines at BMA’s Caval Ridge Coal Mine.

Background and original decision

Under s.492 of the Fair Work Act, the CFMEU had sought access to the small crib rooms attached to two draglines (large mining excavators) to hold discussions with three employees of BMA Caval Ridge.

S492 provides that where there is a failure to agree on a suitable location for discussions with workers, a union entry permit holder may hold discussions where employees ordinarily take meals or other breaks.

In 2015, the CFMEU asked the FWC to arbitrate a dispute (the power for which is listed under s505) given the employer’s position that the crib rooms attached to the draglines should not be deemed suitable meeting places under s492.

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.

For detailed background on the dispute and the original decision, read AREEA’s earlier summary here.

Grounds of appeal

The CFMEU appealed the decision of DP Asbury on the grounds of:

• The Deputy President’s interpretation of s.492(3)(b) of the Act was contrary to the grammatical meaning of the words, inconsistent and contrary to the purpose of the provision and inconsistent with the objects of the Act.

• The Deputy President was wrong in failing to interpret s.492(3)(b) as meaning that if a room was considered appropriate for the purpose of taking meal or other breaks, then it should be appropriate for discussions with a permit holder.

• The Deputy President was wrong in failing to find that if an area was provided to employees with all things associated with eating meals, then it was provided by the employer so the employees could take their meal and other breaks and therefore fit the definition of a default meeting place.

Counsel for the CFMEU also submitted that this matter raised an important question about the construction of s.492(3)(b) of the Act, which had not been previously examined by a Full Bench of the FWC, and would have ‘significant consequences’ for other permit holders in the mining industry.

Full Bench ruling

On appeal, the Full Bench found that the crib rooms attached to the draglines ‘clearly’ fulfil the requirements of s492(3)(a), being an area in which the employees ‘ordinarily’ take their meal or other breaks.

Then turning its attention to whether the dragline crib rooms fell within the description of paragraph (b), the Full Bench also agreed with the CFMEU that DP Asbury was incorrect in interpreting s.492(3)(b) as meaning that the area must be for the ‘primary’ or ‘single’ purpose of taking a meal or other breaks.

“We do not consider that the use of the area for multiple purposes deprives it of the description in paragraph (b). The words of the paragraph do not require a sole purpose or a sole use and there would be few areas of any workplace that could fit such a description,” the Full Bench said.

“In our view the key consideration is the purpose or purposes of providing the area from the employer’s perspective. As the area is provided, in part, for the taking of meal and other breaks it satisfies the description in paragraph (b).”

The Full Bench allowed the CFMEU’s appeal, quashed the original ruling and allowed permit holders to access the draglines as specified by the union.

“In our view, subject to compliance with all other provisions relating to Right of Entry, a permit holder can access the specified locations because they are provided by (the employer) for the purpose of taking meal and other breaks. We therefore respectfully disagree with the conclusion reached by the Deputy President.”

Read the full decision here.

Implications for AREEA members

The key risk for AREEA members in this case is that any area in which employees are provided facilities to take meal or other breaks would likely be deemed appropriate areas for unions seeking access under the Fair Work Act’s ‘default lunchroom provisions’.

Therefore, when considering areas to allow for the taking of meal or other breaks, be aware that unions may successfully argue that those areas should be available to their permit holders for the purposes of union membership discussions.

For advice on this matter or all other union site entry queries, contact your local AREEA office to speak to one of our expert consultants.

AREEA executive director, policy and public affairs, Scott Barklamb, said the underlying problem remained the ‘previous government’s decision to unnecessarily extend union powers to enter workplaces, ignoring the practicalities of managing site entry, and overturning long standing and widely accepted entry rules’.

“For all the technicalities of this matter, our clear position remains that there shouldn’t be automatic or presumed access granted to employee lunchrooms, let alone small pseudo-meal areas located within heavy industrial machinery,” he said.

“Disputes on discussion locations were rare prior to the Fair Work Act because union ‘right of entry’ laws were consistent, well understood and respected by all parties. They did not attempt to force access into employee lunchrooms and impose an impractical approach to the location of workplace discussions.  We need to return to this situation.”

Over coming weeks, AREEA will be calling on our law makers to restore the long standing pre-2009 rules on site entry by passing the Fair Work Amendment (Remaining Measures 2014) Bill 2015. AREEA is particularly concerned to see the 1 January 2014 default lunchroom provisions, with which this case deals, repealed as a matter of priority. See related story here.