The Fair Work Commission (FWC) has decided that the
phrase 'other breaks' under section 490(2) of the Fair
Work Act 2009 dealing with union right of entry does not
include the period before or after an employee's shift.
Therefore union permit holders do not have a right under the FWA to
enter an employer's premises to speak with employees outside of
their rostered hours.
In Construction, Forestry, Mining and Energy Union v BHP
Billiton Nickel West Pty Ltd  FWC 3829, managers at the
BHP Billiton Nickel Kwinana refused entry to two CFMEU permit
holders who applied to enter the Kwinana premises before the start
of a shift to hold discussions with employees of contractors
engaged by BHP.
Right of entry
The CFMEU sought an order from the FWC to allow union permit
holders to enter BHP's premises at any time that operations
were conducted on the site, arguing that the periods before and
after employee shifts were 'other breaks'.
BHP argued that the start and end of an employee's shift
does not constitute part of their working day and that those times
cannot be considered 'other breaks' for the purpose of
section 490(2) of the FWA. BHP submitted that to uphold the
CFMEU's argument would result in an 'absurd' situation
where permit holders could enter an employer's premises at any
time. BHP also argued that the purpose of sections 484 and 490 of
the FWA was to 'strike a balance' between the competing
rights of an employer and employee and that the legislature did not
intend the permit holder right of entry provisions in the FWA to be
BHP also raised a jurisdiction argument that the CFMEU's
application was not a dispute giving rise to the jurisdiction of
the FWC but an application concerning statutory interpretation,
which was a judicial function of the Court.
The CFMEU submitted that the FWC had jurisdiction to hear and
decide their application because it was asking the FWC to interpret
the term 'other breaks' under section 490(2) of the FWA as
part of an assessment of the CFMEU's rights of entry
BHP objected to the CFMEU's application being heard because
BHP argued that the FWC did not have the jurisdiction to hear and
decide the matter because:
the application was not about an existing workplace
the CFMEU's evidence simply speculated that the conditions
entitling CFMEU permit holders to enter Kwinana may arise in the
the application required an exercise of judicial power to
interpret the statute.
The FWC found that it did not have the jurisdiction to hear the
CFMEU's application because the CFMEU was seeking the
enforcement of an existing right under section 490(2) of the FWA,
which required the exercise of judicial power. For that reason the
FWC dismissed the application.
The FWC then considered the arguments about the meaning of
'other breaks' and found that the ordinary meaning of the
phrase should be construed as a break in an employee's shift
within the employee's working hours. On that basis, the
operating hours of the employer's premises is irrelevant. The
FWC found that it is the employee's working hours and the
breaks that occur between the commencement and cessation of the
employee's working day that is considered by section
The FWC also found that the operating hours of the
employer's premises are relevant only to the right of entry for
permit holders to investigate suspected contraventions or safety
breaches. The FWC found that if the CFMEU's application was
taken to its logical conclusion, a permit holder could enter an
employer's premises at any time. In the Kwinana instance, the
CFMEU would have 24/7 access to the site, which would be
inconsistent with the object of Part 3-4 of the FWA to balance the
rights of organisations to hold discussions and 'the right of
occupiers of premises and employers to go about their business
without undue inconvenience'.
The FWC also found that the employees that the CFMEU sought to
speak with at the Kwinana site were not employees of BHP and were
not authorised to be on the site any longer than necessary to
complete work-related functions. For that reason the employees were
not authorised to be present on site at the times the CFMEU
proposed to hold discussions with them.
This decision provides further clarity for employers about when
unions can enter premises to hold discussions with employees.
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
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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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