A Break is a Break

Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd 

[2016] FWC 3829 (12 July 2016)

When two union officials virtually told an employer when and where they intended to enter the employer’s premises to talk to the employees, little did they expect a level of resistance to their demands that would see them denied entry except when the employees were on normal breaks.

The officials thought they would turn up before the employees started their day shift, but the employer said they could only exercise their legislative right of entry in “breaks”. The employer said the time before a shift commencement, when employees were arriving for work and getting ready to start, was not a “break”. Therefore the officials could not enter then. Instead, the employer advised the officials of the times of the employees’ breaks and told the officials these would be the only times they could enter the premises for the purposes of talking with the employees.

The union disputed this and filed a claim in the Fair Work Commission, arguing that the right of entry was not meant to be construed so narrowly. The union called on the Fair Work Act’s Explanatory Memorandum in support of its contentions. But the FWC was unmoved, making it clear it did not need to look beyond the words of the statute to find out the true meaning of the right of entry, and the limits on it. The FWC found that “breaks” meant meal breaks and smokos during normal working times, and not any time either side of a shift.

In a long and detailed decision, FWC made the point that for centuries the common law rights of an occupier of premises to decide who and when anyone may enter have been sacrosanct.  Only very limited restriction of those rights through statute to permit authorised entry regardless of an occupier’s rights are ever agreed to by the parliament.

This decision is important because it has clarified employers’ rights and provided a reference point from which to establish more control over the issue.