Right of entry permit holders are not allowed to
exercise their entry rights before or after an employee's shift
The Fair Work Commission in Construction, Forestry, Mining and
Energy Union v BHP Billiton Nickel West Pty Ltd  FWC 3829 has
clarified the meaning of the phrase "other breaks" in
section 490(2) of the Fair Work Act 2009 (Cth) and whether it
includes the period before or after an employee's shift.
Right of entry
Section 484 of the Fair Work Act allows permit holders to enter
premises for the purposes of holding discussions with eligible
employees. Section 490(2) of the Fair Work Act provides that this
right may only be exercised by the permit holder during mealtimes
or other breaks. Whether "other breaks" includes the
period before and after work is not defined in the Fair Work
What is this case about?
This case involved a dispute between BHP Billiton Nickel West
Pty Ltd and two CFMEU officials. BHP refused to let the two
officials enter the premises to hold discussions before the
employees had commenced work, at its plant in Kwinana.
The CFMEU argued that the officials could exercise their entry
rights before employees commenced their shift because it would fall
within the meaning of "other breaks" in the Fair Work
Act. The union said this would be allowed provided the discussions
were held within the working hours of the premises which operated
24 hours per day.
BHP's position was that the text of the Fair Work Act is
clear and unambiguous and that before work was not a "break
from work". The period of time outside the employee's
working hours or shift times should properly be considered as
"non-working hours" and not an "other break"
for the purposes of section 490(2) of the Act.
BHP also successfully opposed the union's application on
jurisdictional grounds on the basis that the application would
require the Commission to exercise judicial power and not arbitral
power. While this jurisdictional objection was granted,
Commissioner Williams went on to determine the substantive merits
of the application. This article is only intended to focus on those
Does "other breaks" include before and after
Commissioner Williams considered whether the ordinary meaning of
"other breaks" included the periods before or after a
relevant employee's shift. The Commissioner interpreted
"breaks" to mean interruptions in the continuity of an
employee's work, the stoppage of an employee's work or a
brief rest from an employee's work. The ordinary meanings of
the words "other breaks" was not ambiguous or
Based on the ordinary meaning of the words, "other
breaks" was found not to include a period of time before an
employee's shift begins or the period after it has ended. The
Commissioner found that allowing the meaning of the phrase to
extend to before and after work would create uncertainty and
further disputes about when would be a reasonable time to hold
In reaching these findings, the Commissioner placed importance
on the objects of the right of entry provisions in the Act which
are to balance the rights of organisations to hold discussions and
the right of occupiers and employers to go about their business
without undue inconvenience.
What does this mean for employers?
This decision confirms that an occupier of premises has the
right to refuse entry to a permit holder for the purpose of holding
discussions if he or she seeks to do so before or after work at a
premises. Permit holders can therefore only enter premises during a
"break" which interrupts, suspends or stops the
employees' work for a brief time.
If you require any advice in relation to when permit holders can
enter the premises please do not hesitate to contact us.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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