​Right of entry “during breaks” excludes before/after shifts

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​Right of entry “during breaks” excludes before/after shifts

Right of entry by union officials to workplaces only applies to meal and rest breaks during work shifts, the Full Court of the Federal Court has ruled.

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Right of entry by union officials to workplaces only applies to meal and rest breaks during work shifts.

A Full Court of the Federal Court dismissed an appeal by a union that claimed that “right of entry” during breaks could also include coming on-site shortly before employees commenced work or shortly after they finished.

Facts of the case


Two officials of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) requested entry to a workplace to meet with employees at a time shortly before they were to commence their work shifts. The employer refused them entry at that time, on the ground that provisions of the Fair Work Act only allowed right of entry to meet employees during meal breaks or other work breaks. In other words, only during a work shift when employees worked before or after the meetings. 

The CFMMEU claimed that the employer had breached sec of the Fair Work Act 2009 by refusing entry, but the Federal Court dismissed its claim. The CFMMEU then appealed against the decision to a Full Court of the Federal Court.

The arguments


The parties relied on different interpretations of “work breaks” in sec 490(2) of the Fair Work Act. The Act states that discussions with employees may be held “only during meal times or other breaks”. The union claimed that “break” meant “any time that an employee is at work but not working”, therefore it covered times when an employee had arrived for work but not yet commenced, or had finished a shift but not left the workplace. It claimed that the Explanatory Memorandum for the Fair Work Bill referred to “other breaks” as including holding discussions before or after a work shift provided it was within the working hours of the workplace. The workplace in question operated 24/7 and it was common practice for employees to arrive at work about half an hour before shifts commenced to prepare for work and/or attend pre-shift meetings.

The CFMMEU argued that the meaning of “other breaks” was ambiguous, and could include times that employees were present at the workplace but not working.

The employer claimed that the ordinary meaning of “meal or other breaks” only referred to an interruption to the continuity of a work shift, therefore it could only occur during a shift. The employer allowed the CFMMEU officials right of entry to meet with employees at another time, and the union presented no evidence as to why it had to meet with employees before they started work instead of during a work break.

In issue


The issue for the Full Court to decide was the meaning and scope of “other breaks” under sec 490(2) of the Fair Work Act 2009. 

Decision


The Full Court agreed with the employer’s interpretation of “meal or other breaks” (see under The arguments above). The CFMMEU’s interpretation could mean that a break was any time that the employee was not at work. Therefore, the CFMMEU officials did not have the right to enter the workplace at the time they requested, before the employees had started work. There was no ambiguity in the meaning of the words, therefore the wording in the Bill’s Explanatory Memorandum was irrelevant and need not be referred to.

The bottom line: The meaning of “meal or other breaks” is confined to breaks that occur during a work shift, that is an interruption to the continuity of a work shift. It does not include times before or after a work shift.

Read the judgment


Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107
 
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