Federal Court Rejects Pre-Shift Right of Entry

The CFMEU challenged an employer’s decision to block two officials from entering a work site to hold discussions pursuant to section 484 of the Fair Work Act some 45 minutes before the 6am start of the workers' 12-hour shifts.

The union organiser sought to hold discussions between 5.15am and 6.30pm and during their "crib and meal breaks".

The company argued that s490 only allowed the union to exercise its s484 entry right during employees' "meal times or other breaks" – and there were none in the period in which they sought discussions.

The company told the Commission that if the organisers wanted to hold discussions outside those times, they could do so off-site, which includes "the car park and smoking hut".

The union challenged the company’s decision in the Federal Court but Justice Geoffrey Flick said he could not rely on the Fair Work Act's explanatory memorandum, and even if he could, "such reliance cannot displace the natural and ordinary meaning of the words employed by ss 484 and 490 so as to authorise the entry upon the premises sought by [the organisers]".

The Federal Court rejected the CFMEU argument and concluded that, based on the facts of the case the organisers could not enter the site at the time sought because the employees it was seeking to hold discussions with, were not on a break.

Alternatively, s484 did not authorise entry for discussion purposes before the employees started work. The organisers could only hold discussions during designated breaks.
[Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991 (24 August 2017)]

Disclaimer: The above summary is not legal advice. Employers should contact NECA Legal (WA) Pty Ltd to discuss union right of entry on (08) 6241 6129 or email  necalegalwa@ecawa.org.au