Australia: Federal Court clarifies right of entry to hold discussions

The Federal Court has clarified that a right of entry to hold discussions with relevant employees under section 484 of the Fair Work Act 2009 (Cth) (FW Act) cannot be exercised before or after those employees’ scheduled working hours.¹

Background

BHP Billiton Nickel West Pty Ltd operates the Kwinana Nickel Refinery in Western Australia (Refinery). The working hours of the Refinery are 24 hours a day, 7 days a week.

On 14 October 2015, during a major shutdown at the Refinery, two CFMEU officials, Mr Doug Heath and Mr Troy Smart, sought to exercise right of entry for the purpose of holding discussions with employees of two contractors working at the Refinery. The officials sought to enter the Refinery to hold discussions with the relevant employees before the start of their shifts.

The officials were refused entry on the basis that there were no scheduled mealtimes or breaks for those employees at that time.

The CFMEU commenced proceedings, alleging a contravention of section 501 of the FW Act.

The issue

Section 490(2) provides that a permit holder may hold discussions under section 484 ‘only during mealtimes or other breaks’.

The issue in dispute in these proceedings was whether the phrase ‘other breaks’ included the period before the commencement of the relevant employees’ shifts. If it did, the officials could exercise their right of entry and hold discussions with employees at that time.

Key points from the judgment

Justice Flick drew a distinction between when a right of entry could be exercised and when discussions could be held:

• right of entry for a relevant purpose can be exercised ‘during the working hours of the premises’ (section 490(1)). On the facts of the present case, the working hours of the premises were 24 hours a day; and
• a permit holder may ‘hold discussions’, ‘only during mealtimes or other breaks’ (section 490(2)).

His Honour went on to express what would constitute a lawful, and an unlawful, right of entry.

a) What would constitute an unlawful right of entry?

Justice Flick stated that the limitation in section 490(1) of the FW Act does not entitle a permit holder to seek entry to premises when:

• the premises are shut;
• when no work is being undertaken; or
• when no-one is present.

His Honour confirmed that it would be an unlawful exercise of the right of entry in the following circumstances:

• an entry ostensibly to hold discussions, but in fact for some entirely different purpose;
• when it is known that there are no employees on site whose interests they are entitled to represent;
• at a time when it is known that employees who may wish to hold discussions with the permit holders are in fact performing scheduled work;²
• outside of the scheduled working hours of the employees with whom discussions are to be held.³ This was in part on the basis that the term ‘break’ conveys the notion that there is a break in something which is otherwise happening - it is not possible to have a ‘break’ before the working hours of that particular employee or class of employee commences or after they have finished;⁴ or
• at a point of time when those exercising the right of entry accepted that their stated purpose of then holding discussions could not be achieved. (On the present facts, the only times at which discussions could be held were the scheduled breaks of 9am, midday and 3pm).

Any purported exercise of right of entry when it could not be exercised would properly be characterised as either not authorised or as an abuse of power.

b) What may constitute an lawful right of entry?

Importantly, His Honour left open a lawful exercise of the right of entry where there may be genuine uncertainty as to whether:

• employees with whom a permit holder is entitled to hold discussions would be present on site;
• any such employees are working;
• when the relevant employees’ ‘mealtimes or other breaks’ are to take place; or
• when the relevant employees start or finish work.

His Honour stated the absence of such employees, or the fact that no employees may wish to participate in discussions, or that there may be no mealtimes or other breaks during which discussions may be held does not preclude a lawful exercise of the right of entry: that is, the lawfulness of the right of entry would remain.

c) Other key findings

In addition to the findings above, His Honour also:

• noted that the natural and ordinary meaning of the phrase ‘mealtimes and other breaks’ is those times when an employee may be at work but not physically engaged in discharging the responsibilities for which the employee has been employed;
• considered that the meaning and application of ss 484 and 490 of the FW Act could be resolved by reference to the natural and ordinary meaning of the words employed by the Legislature, and did not consider there was any ambiguity or obscurity justifying reliance on the Explanatory Memorandum; and
• confirmed the longstanding principle that reliance cannot be placed on secondary material (such as the Explanatory Memorandum) to alter or displace the natural and ordinary meaning of the words employed by ss 484 and 490 of the FW Act.

Key takeaways for employers / occupiers

In light of this decision, employers and occupiers should:

1. Review their right of entry procedures and protocols to ensure they are consistent with this new guidance from the Federal Court on when right of entry is authorised, and when it is not authorised.
2. When receiving a right of entry notice, consider whether the minimum requirements in the FW Act have been met. In particular, consider the purpose for which, and the days and times at which, the right of entry is being sought to be exercised. If unsure about whether the permit holder may lawfully exercise a right of entry, seek advice.
3. Consider whether to confirm certain matters to the permit holders, such as making it known to them what the working hours of the premises are, what the scheduled working hours of relevant employees are, what the ‘mealtimes or other breaks’ of the relevant employees are. If the permit holder disputes any of these points, ask them to explain their position, and consider this. Seek advice if unsure how to proceed.
4. Be aware of when they have a right to refuse an unauthorised right of entry, but remember that refusal to provide entry of an authorised right of entry constitutes an offence. If unsure whether a particular exercise of right of entry is authorised, seek advice.
5. Remember that the right of entry regime provides a legislative entitlement to permit holders to enter premises provided minimum requirements are met, but there is nothing stopping employer/occupiers from waiving their common law rights and allowing entry in particular cases. However, we recommend seeking advice before doing this.

If you would like to discuss this matter, please contact Anthony Longland or Anna Creegan from our Perth team. 

[1] Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991. Herbert Smith Freehills acted on behalf of the respondents in these proceedings.

[2] All such circumstances did not arise on the facts of this case.

[3] At [32].

[4] At [35].