Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991

Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991

Section 484 of the Fair Work Act 2009 (Cth) confers a right of entry to hold discussions with employees only during their mealtimes or other breaks, not before commencement of their scheduled working hours; 'other breaks' does not include time before a shift starts. There was therefore no contravention by the respondents in refusing entry at 5.15am when no relevant break was occurring.

Parties
Applicant: Construction, Forestry, Mining and Energy Union; First Respondent: BHP Billiton Nickel West Pty Ltd; Second Respondent: Stacey Scaffardi; Third Respondent: Micahel Constable
Jurisdiction
Australia
Judgment Date
24 August 2017
Procedural Posture
Originating Application / Judgment
Outcome
Application dismissed
Legal Topics
Right of Entry, Interpretation of Fair Work Act 2009 (cth) Sections 484 and 490, Statutory Construction, Balance of Rights (organisations, Employees, Occupiers)
Industrial Law Employment Law Right of Entry Interpretation of Fair Work Act 2009 (cth) Sections 484 and 490 Statutory Construction Balance of Rights (organisations, Employees, Occupiers)

Case Brief

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Parties

Construction, Forestry, Mining and Energy Union

Applicant

BHP Billiton Nickel West Pty Ltd

First Respondent

Stacey Scaffardi

Second Respondent

Micahel Constable

Third Respondent

Procedural Posture

Originating Application / Judgment

Legal Issues

  1. 1 Whether s 484 of the Fair Work Act 2009 (Cth) gives a right of entry to union officials for the purpose of holding discussions with employees before the commencement of their scheduled working hours
  2. 2 Meaning of 'mealtimes or other breaks' in s 490(2) of the Fair Work Act
  3. 3 Whether refusal of entry at a time before a shift is a contravention of s 501

Ratio Decidendi

Section 484 of the Fair Work Act 2009 (Cth) confers a right of entry to hold discussions with employees only during their mealtimes or other breaks, not before commencement of their scheduled working hours; 'other breaks' does not include time before a shift starts. There was therefore no contravention by the respondents in refusing entry at 5.15am when no relevant break was occurring.

Court Disposition

Application dismissed

Orders

  • The proceeding is dismissed.