DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Construction, Forestry, Mining and Energy Union
(RE2014/1474)

Dispute concerning right of entry to hold discussions at Central Queensland Services Pty Ltd Caval Ridge Mine – s. 492 Location of discussions – Permit holder seeks to hold discussion in area on operating Dragline – Occupier contends that area on Dragline is not a room or area provided for the purpose of taking meal or other breaks within meaning in s.492(3) – construction of s. 492 – powers of the Commission under s. 505 – Finding that area on Dragline is not a room or area for the purposes of s. 492(3) – Relevance of reasonableness in disputes about operation of s.492 - Finding that permit holder not entitled to conduct discussions in that area.

1. OVERVIEW

[1] The Construction, Forestry, Mining and Energy Union – Mining and Energy Division (the CFMEU) applies to the Fair Work Commission (the Commission) under s. 505 of the Fair Work Act 2009 (the Act) for a determination and an order in relation to right of entry at the Caval Ridge Mine (the Mine). The Mine is operated by Central Queensland Services Pty Ltd trading as BHP Billiton Mitsubishi Alliance (BMA).

[2] The issue in dispute is whether Mr Steve Pierce, District Vice President, CFMEU Mining and Energy Division - Queensland District Branch and a permit holder under the Act - when exercising a right of entry, is entitled to hold discussions with employees in two areas which are located on Draglines identified as Draglines 34 and 35 operating at the Mine. The areas are described in the agreed question for arbitration as the “specified locations”.

[3] The CFMEU asserts that the specified locations are Dragline crib rooms provided by BMA, in which employees ordinarily take their meal or other breaks. Mr Pierce and the management of the Mine have been unable to agree on a room or area in which Mr Pierce is to conduct discussions under the Act and by virtue of the default provision in s. 492(3) of the Act, the CFMEU contends that Mr Pierce is entitled to use the Dragline crib rooms for that purpose.

[4] The CFMEU sought relief in the following terms:

“The Applicant seeks a determination that Mr Pierce, as a permit holder under the Act, is entitled to hold discussions with employees in the crib rooms of Dragline 34 and Dragline 35 at the Respondent’s Caval Ridge Mine, where a valid and compliant entry notice has been given and agreement on the location has not been reached.

The Applicant seeks a declaration that the crib rooms of Dragline 34 and Dragline 35 at the Respondent’s Caval Ridge Mine are rooms or areas in which discussions may be held under section 492(3) of the Act in circumstances where agreement cannot be reached as to location.

An order that the Respondent refrain from preventing Mr Pierce from holding discussions, where a valid entry notice has been issued and agreement cannot be reached, in the crib rooms of Dragline 34 and Dragline 35.”

[5] BMA opposes the application and contends that the specified locations are work areas and do not meet the requirements to be a room or an area within the meaning in s. 492(3) of the Act as they are not provided by BMA for the purpose of taking meal or other breaks. BMA submits that the fact that employees are permitted to take their meals or other breaks in the specified locations does not mean that they are provided for that purpose. BMA contends that the proper construction of s. 492(3) of the Act is inconsistent with the CFMEU’s position. BMA also contends that notwithstanding this the parties have not met the threshold to enliven s. 492(3) of the Act. Further, BMA submits that even if the specified location is within the definition in s. 492(3) of the Act and the conditions in s. 492(2) have been met, it is not reasonable that the location be regarded by the CFMEU or determined by the Commission as the location where the discussions must occur.

[6] The dispute was not resolved by conciliation. BMA accepts that the Commission has power to deal with the dispute by arbitration under s. 505 of the Act, subject to the usual limitations on arbitral powers. The CFMEU did not press all elements of the relief sought in its application and the parties agreed on the following question for arbitration:

1. Where a right of entry is exercised under section 484 of the Fair Work Act 2009 (the Act), are the specified locations a ‘room or area’ in which discussions may be held for purposes of subsection 492(3) of the Act?

2. In all the circumstances, was Mr Pierce entitled to hold discussions with employees in the specified locations on 6 September 2014 when exercising a right of entry under section 484 of the Act?

NOTE: The ‘specified locations’ are areas on Draglines 34 and 35 located at BMA’s Caval Ridge Mine between the Operator’s cabins and the operational housing. The ‘specified locations’ are described as ‘crib rooms’ by the CFMEU and ‘corridors’ by BMA.

[7] The CFMEU and BMA also agreed on a Statement of Facts which has been tendered to the Commission. 1 Evidence for the CFMEU was given by Mr Pierce.2 Evidence for BMA was given by Mr Alan Vere, Dragline Drill and Blast Superintendent3 and Mr Alisdair Gibbons, General Manager.4

2. AGREED FACTS

[8] The agreed facts comprise 28 paragraphs and 11 attachments. Relevantly, Mr Pierce, a permit holder who may enter premises under s.484 of the Act to hold discussions with employees, has corresponded with BMA on some five occasions between July and September 2014, with respect to exercising right of entry and seeking to hold discussions with employees in the specified locations on Dragline 34 and Dragline 35. Mr Pierce has complied in all respects with the notice requirements relating to right of entry under the Act.

[9] The right of entry notices given by Mr Pierce also specify an intention to hold discussions in a number of mobile crib huts: the Hayford Pit Overburden Crib Hut, MIA Crib Hut and Hatford Crib Hut. Mr Pierce’s right to access the mobile crib huts by giving notice as required by the Act is not in dispute.

[10] BMA has responded to the requests for Mr Pierce to hold discussions with employees in the specified locations on Dragline 34 and Dragline 35 by advising the CFMEU that it will facilitate access to mobile crib huts for those employees. The position conveyed by BMA in various correspondence with Mr Pierce responding to his requests for access to the specified locations in Dragline 34 and 35 is that:

● The Draglines are operating equipment;

● Access to the Draglines will not be provided for Mr Pierce;

● It would not be appropriate to conduct right of entry in the specified locations on Dragline 34 and Dragline 35; and

● Employees would be asked to crib in a nominated mobile crib facility.

[11] Mr Pierce’s responses have variously been that he does not accept that the mobile crib facilities are used as a crib facility by the employees on Dragline 34 and Dragline 35; employees on Dragline 34 and Dragline 35 take their crib breaks on the machines as has been the practice in the coal mining industry for many years; BMA’s position is not in compliance with the Act; and the alternative locations are not acceptable.

[12] In a letter dated 1 September 2014, Mr Pierce sought right of entry on 6 September 2014 and stated an intention to meet with employees on Draglines. Mr Pierce sought clarification of BMA’s position and an explanation as to why access would not be allowed to Draglines. The letter states Mr Pierce’s preparedness to genuinely consider any further explanation and his preliminary view that “crib room/areas” on Draglines are a suitable location and facilitate the objects and purposes of the Act and the rights of employees. The letter further states that Mr Pierce is unaware of any reasons why access would unduly disrupt operations or inconvenience BMA. The mobile crib huts are said by Mr Pierce to be unsuitable for a number of reasons including distance from the Draglines, the requirement for employees to travel from their ordinary crib room [on the Draglines] to meet; and that the alternative locations would effectively inhibit Mr Pierce’s ability to initiate discussions with employees.

[13] On 5 September 2014, BMA’s legal representatives wrote to Mr Pierce to confirm BMA’s position and expectations in relation to Mr Pierce’s notified entry at the mine. That correspondence states that access to Draglines will not be provided and that in an attempt to reach agreement on the location for discussions, BMA has offered a reasonable alternative to hold discussions with Dragline Operators in a nominated mobile crib hut and for BMA to notify the Operators of Mr Pierce’s attendance at the mine. The letter goes on to state that the areas on the Draglines are not crib rooms and even if this is not correct, Mr Pierce’s ability to enter them must be read in light of his obligations under s. 500 and s. 491 of the Act. In this regard it is pointed out that the locations are confined spaces and are in close proximity to areas where operational work will be carried out, with the likely result that discussion in those areas will hinder or obstruct BMA by disrupting the continuity of Dragline operations. It is also stated that BMA would be unduly inconvenienced because the Draglines would be required to stop to facilitate Mr Pierce’s access and egress, contrary to the objects of Part 3-4 of the Act. In relation to s. 491 it is stated that Mr Pierce accessing the Draglines will create a safety risk because of the potential to distract Operators and other employees performing work, and that discussions should take place in the location proposed by BMA to comply with OHS requirements on site.

[14] The CFMEU responded on 6 September taking issue with the points raised in the correspondence of 5 September. The response asserts that the areas are crib rooms and contain facilities indicating that this is the case. The letter also states that Mr Pierce will not intentionally hinder or obstruct any person and points out that if employees leave the Dragline to talk to Mr Pierce as proposed by BMA, the Dragline will need to stop potentially six times and that it will stop only twice if Mr Pierce is allowed to conduct meetings in the Dragline crib rooms. In relation to health and safety issues, the letter asserts that these have not previously been raised, and that the CFMEU has knowledge of Dragline operations and related health and safety requirements through its members. Further it is stated that Mr Pierce will comply with any reasonable request in relation to health and safety, including procedures for accessing Draglines and is prepared to engage with BMA in relation to any genuine requirements of this kind. The letter concludes by stating that Mr Pierce intends to exercise his right of entry, including holding discussions with employees on Dragline 34 and Dragline 35, as notified.

[15] Mr Pierce attended the mine and conducted discussions with employees pursuant to section 484 of the Act at mobile crib huts. It is agreed by the parties that to date, discussions with employees pursuant to section 484 of the Act have not taken place on Dragline 34 and Dragline 35 and that no further correspondence has been exchanged between the parties in relation to the subject matter of the Dispute Application. 5

3. EVIDENCE

3.1 Mr Pierce

[16] Mr Pierce gave evidence of his extensive experience as a Union Official and as an employee in the mining industry including a period of 18 years at Saraji Mine. During this period Mr Pierce has gained familiarity with the operation of Draglines and has been on Draglines at a number of mines during right of entry visits and general mine visits. All of those Draglines had crib rooms where employees would take their breaks and Mr Pierce held discussions with employees in Dragline crib rooms without incident. Mr Pierce states that BMA’s assertion that crib rooms on Draglines are not provided for employees to take breaks is completely contrary to his knowledge and understanding.

[17] Mr Pierce also states that he is familiar with the specific processes and procedures – including those relevant to safety and health – in relation to accessing and disembarking from Draglines. The procedures for accessing and disembarking from Draglines would need to be followed by each of the employees taking meal or crib breaks away from the Draglines on four occasions and if Mr Pierce was conducting meetings on Draglines those procedures would only need to be conducted on two occasions. This is considered by Mr Pierce to be more convenient for BMA.

[18] According to Mr Pierce, all Draglines contain crib rooms, generally located behind the Operators’ cabin and separated from other rooms and areas by solid walls and partitions. Employers require employees to take their meal breaks on Draglines. Draglines are often located several kilometres from other facilities that employers provide, including toilets, and the isolated nature of the work means that Operators are often not able to realistically leave the Draglines to use other facilities.

[19] The crib rooms on Draglines are generally treated as crib rooms by employers, including BMA. In this regard, Mr Pierce tendered a diagram produced by BHP in relation to a Dragline at Saraji Mine showing an marked “crib room” 6, and said that the Draglines in the present case are similar to the one at Saraji Mine depicted in the diagram. Mr Pierce also tendered a procedure from BMA’s Peak Downs Mine relating to use of mobile devices and stating that such devices cannot be taken on to mobile equipment “which have integrated crib rooms such as … Draglines”.7 It is Mr Pierce’s understanding that the following facilities or amenities are provided on Draglines, including those at Caval Ridge:

● Fridge;

● Toaster;

● Toasted sandwich maker;

● Microwave oven;

● Portable bench top oven or pie warmer;

● Kettle and/or hot water urn;

● Facilities to store tea, coffee and sugar;

● Cupboards for each shift to store crib supplies in;

● Cold potable water and/or cold water coolers;

● Table, chairs and benches for food preparation and consumption;

● Sinks with hot and cold water for cleaning purposes;

● Two or three doors that separate the kitchen/crib room from the Operator’s cabin, machinery housing and exterior of the Dragline;

● Dishwashing liquid and spray and wipe;

● Broom and mops for cleaning purposes;

● A bin for food and waste scraps.

[20] Mr Pierce maintains that photographs of the Dragline provided by BMA in these proceedings show that the crib room is a separate room and is clearly not a corridor. Mr Pierce further maintains that suggestions by BMA that the room is a corridor or that a vent in the bottom of the door between the room and the Operator’s cabin will lead to distraction of the Operator, are cynical attempts by BMA to support its position and have no real foundation.

[21] Mr Pierce states that the rooms in which he intended and intends to hold discussions are rooms provided for the purposes of employees taking their crib breaks; BMA expects employees to take their crib breaks in those rooms; and employees ordinarily do so. Further, Mr Pierce states that the Dragline crib rooms are perfectly suitable for him to hold discussions in and access to them would not cause any undue inconvenience to BMA. As always, when accessing any mine site, Mr Pierce is prepared to follow any reasonable health and safety directions.

[22] Mr Pierce also outlined attempts to reach agreement with BMA in relation to holding discussions with employees in the crib rooms on Draglines. Correspondence between the CFMEU and BMA in relation to these attempts are also summarised in, and appended to, the Agreed Statement of Facts. Mr Pierce states that despite his efforts he has been unable to reach agreement with BMA in relation to where discussions with Dragline Operators will take place and has considered all matters raised by BMA. Mr Pierce does not agree with the reasons given by BMA for refusing him access to the Draglines and contends that many of the reasons are made up simply because BMA does not want him to visit the Draglines for industrial reasons.

[23] Under cross examination, Mr Pierce agreed Draglines operate continuously over 24 hours other than for maintenance, shift changes or breakdowns, and that when the Dragline is operating there will be an Operator in the cabin and the machine will be swivelling backwards and forwards moving material. Because the cabin of the Dragline moves with the boom, a person standing behind the cabin would have to counterbalance “to a limited degree”. Mr Pierce also agreed that in addition to the Operator there is usually another person assigned to a Dragline and that the other Operator performs tasks inside the cabin and outside the Dragline and said that “quite often” the second Operator will sit in the cabin of the Dragline with the person who is operating it.

[24] Mr Pierce agreed that the area in which he seeks to hold discussions is used by Dragline Operators “to a limited degree” to engage in tasks such as completing paper work. Mr Pierce said that he struggled with the proposition that Dragline Operators would be in the area consulting dig plans while not operating the Dragline, and said that while dig plans might be displayed in the area where he sought to hold discussions, Operators would need to consult them at the start of the shift rather than during the course of the shift. Mr Pierce also agreed that maintenance staff and supervisors would potentially need to access the area but said that he struggled with the proposition that they would do this on a regular basis.

[25] Further, Mr Pierce agreed that he would be required to be escorted while accessing Draglines but maintained that this was no different than when he accessed other crib rooms and that persons escorting him on other occasions had maintained a presence in crib rooms while he was conducting discussions with members, on one occasion sitting less than two feet away from the table at which the discussions were being conducted.

[26] Mr Pierce accepted that the Dragline crib room, subject of the present application, is 1030 mm in width and 4400 mm long but did not agree that only two people would comfortably fit into that area. Mr Pierce accepted that if there were more than two people in the area there would “potentially” not be a ready path of access through it but disagreed that a person wishing to walk through the area would need to push past. In response to the proposition that if he was conducting discussions in the area behind the Operator’s cab in the presence of an escort and at least one Operator who was party to those discussions, that the discussions would not be private, Mr Pierce said that at other sites the escort had either left the Dragline or gone to sit in the Dragline cabin with the door closed.

[27] Mr Pierce agreed that the only way he could have a discussion in private would be if the escort was off the Dragline or in the Operator’s cab with the door closed and that the situation would not be dissimilar to any other area of the mine site but agreed that he would not be able to hold a private conversation in the Dragline crib room and that potentially there would be no other areas on the mine site as small as the area in question, in which he would hold discussions with employees.

[28] In relation to mobile crib huts, Mr Pierce agreed that these are satisfactory areas in which to have private discussions with employees but maintained that they are used for other purposes such as training and are fitted with laptop computers so that employees can undertake reviews of standard operating procedures and other forms of training. Mr Pierce disagreed with the proposition that the mobile crib huts are big enough so that these activities can be undertaken without being in the vicinity of a meeting that he might be conducting.

[29] Mr Pierce also agreed that Mr Gibbons informed him that:

● Arrangements had been made to facilitate Mr Pierce holding discussions with Dragline Operators in mobile crib huts;
● Dragline Operators would be informed of the time and place when he would be available to hold discussions; and
● Dragline Operators would be given access to a light vehicle to travel to mobile crib huts to speak to Mr Pierce.

[30] Mr Pierce said that he was not told that employees would be allowed to travel to attend meetings in mobile crib rooms during working time instead of during their crib breaks. Mr Pierce disagreed with the proposition that the arrangements made by BMA meant that if Dragline Operators wished to attend discussions with him then they could do so and said that it was inconvenient for them to leave the Dragline, their crib facilities and their crib and travel a number of kilometres to a mobile crib room. Mr Pierce agreed that if employees want a toilet break they have to leave the Dragline but said that they do not ordinarily leave for crib breaks.

[31] In re-examination, Mr Pierce said that if employees want to urinate, it is Company policy that they go to the main start up area or the maintenance area. However, there is also a practice whereby employees stand on the off-side shoe of the Dragline and urinate over the edge. In relation to accessibility of the area for an employee while a discussion was being held in the Dragline crib room, Mr Pierce said that persons having discussions could turn sideways to let other persons pass them or could exit out of the back of the Dragline crib room into a store area to allow the other person to pass and then go back into the Dragline crib room. Mr Pierce was also asked what he would do if he was unable to have a private conversation with an employee in the area because another employee was present, and said:

“You’re able to exit the house proper and have a discussion there, exit the Dragline. Or speak to the employees and find out what is the most comfortable place for them to have that discussion. 8

[32] Mr Pierce also said that he had not had a closed mind during communications with Company representatives about the location for discussions with employees and had considered and responded to any issues raised by those representatives.

3.2 Mr Vere

[33] Mr Vere is the Dragline Drill and Blast Superintendent at the Caval Ridge Mine and has held a number of positions at that mine and other mines. Mr Vere gave evidence about the location, layout and facilities of Dragline 34 and Dragline 35. They are the only Draglines and the largest machines at the mine and are used for open cut mining, particularly the removal of the layer of waste material that sits above the coal seam. The Draglines are located 2 – 6 km from the main administration buildings at the mine.

[34] There is a mobile crib hut located approximately 2 – 4 km from the Draglines, depending on where it is located at any one time. The mobile crib hut is placed so that it is accessible by all of the crews performing work on the Draglines and the other mining activities in the Northern area of the Mine. There are a large number of other activities occurring around the Draglines involving dozer push activities, drilling, pre-strip fleets, auxiliary equipment and blast crews.

[35] Mr Vere states that Draglines 34 and 35 are similar models weighing approximately 3300 tonnes and made up of the following components:

● The “tub revolving frame”;

● The “house”;

● The “boom and bucket”; and

● The “cab”.

[36] The tub is the base of the Dragline. It supports the upper body and allows the Dragline to rotate 360 degrees. The house sits on top of the tub and contains machinery and motors for the Dragline. The house of Draglines 34 and 35 is approximately 30 metres long, 25 metres wide and 20 metres high without the boom or the boom supporting structure. The booms of Draglines 34 and 35 are approximately 55 metres in length.

[37] On Draglines 34 and 35 there are two main sections – the Operator cab, where the Operator sits to operate the Dragline, and the area behind the cab relevant to this dispute. The Operator cab is approximately 2000 mm by 2000 mm and contains a seat and the controls for the Dragline. The area behind the Operator cab is 4400 mm in length and 1030 mm wide. According to Mr Vere, that area is a functional work area. It contains two benches – one on either side. On one side of the area there is a work station which has a computer, one or two chairs, a magnetic whiteboard/pin board, a fridge, some cupboards and a small bench. The computer provides access to the BMA portal which includes access to emails, BMA policies and procedures and safe work instructions.

[38] On the other side of the area there is a “half kitchenette”. While the precise facilities vary, they include an urn, a small sink, a microwave, cupboards and drawers and a small place next to the sink that Operators use to store some safety equipment such as earplugs. There is no table but there is a small section of bench next to the computer. The magnetic whiteboard usually has material affixed to it which varies from time to time but can include drawings, designs, internal communications, and Dragline sequencing. Mr Vere considers some of this material to be confidential as it contains information that is commercially sensitive.

[39] The area behind the Operator cab is used for a number of purposes including as an office for the Operator (whilst not operating) to prepare and review paperwork and perform general administrative tasks and for training. There are currently trainees on the Draglines and trainers may come to the Draglines during day shift to provide training. The area is also used by Operators to take a break if they choose to stay on the Dragline to do so. Mr Vere states that the area behind the Operator cab on the Dragline would only comfortably fit two people at any one time. Any more would result in overcrowding. There is no toilet on the Dragline. When employees need to use a toilet they will follow procedures and travel in a light vehicle to the mobile crib facilities. Each Dragline has a light vehicle available for use by Operators.

[40] Draglines 34 and 35 operate continuously over 24 hours per day, seven days per week. There may be occasions when they temporarily cease operating such as to allow for embarking and disembarking, or for maintenance reasons, but these stoppages are as short in duration as possible. There are generally two Operators on the Dragline at any one time, one operating the Dragline and the other completing tasks including paperwork or other administrative work; cable work; dozer work; housekeeping and machine inspections. In addition, during the thirty minute shift changeover, one of the Operators will drive in a light vehicle to collect the Operators who are coming on to shift. During crib breaks and bathroom breaks, one Operator can take the light vehicle to the mobile crib hut while the other Operator continues to operate the Dragline. The timing of crib breaks is managed by the supervisor and one Operator will take a crib break at one time. Dragline Operators act quite autonomously and while supervisors guide the timing of breaks, employees can schedule their breaks provided they are taken within the parameters of the BMA Caval Ridge Enterprise Agreement 2011.

[41] At the time this application was heard, there were three employees on Dragline 34 and 35 on each shift – two experienced Operators and a trainee Operator. Mr Vere said that as the machine is operating it is constantly moving so that persons who are in the Dragline need to counterbalance themselves. Mr Vere also gave evidence about a procedure for boarding and disembarking Draglines which applies to Draglines 34 and 35.

[42] The procedure includes a requirement that the Operator stop the Dragline entirely for a period of two to four minutes while the person boards the Dragline. Various persons board Draglines daily, including Supervisors (at least twice per shift); Superintendents (at least once per shift); Engineers (approximately once per shift); and Maintenance personnel (as and when required but at least once per shift). Visitors to Draglines are required to be escorted at all times unless they are properly trained and are authorised by BMA to be unescorted. A visitor to site who is permitted to access a Dragline needs to be escorted from the gate to the Dragline, while boarding the Dragline, while on the Dragline, while disembarking the Dragline and then while returning to the gate or moving to another location. The escort would usually stand in the Operator cab or in the area behind the Operator cab while escorting the third party onto the Dragline. The escort needs to comply with various procedures for boarding and disembarking from a Dragline.

[43] In relation to crib facilities for Dragline Operators, Mr Vere said that BMA provides a mobile crib facility for workers located at the Northern area of the Mine known as the North Reload Facility Crib Hut or the Horse Pit Crib Hut (mobile crib hut). The mobile crib hut is specifically provided by BMA for employees to take their crib breaks. It is a portable building on wheels, approximately the length of a semi-trailer but much wider. The mobile crib hut has two toilets and other facilities including:

● Stainless steel benches and tables;

● A full kitchenette;

● A pie warmer;

● A double size fridge;

● Coffee and tea facilities;

● Chilled water;

● Air conditioning;

● A two way radio; and

● Computers with access to the BMA network and to authorised sites.

[44] Next to the mobile crib hut is a designated park up area for light vehicles. Mr Vere said that employees have half an hour to take each crib break and the time travelling to and from the mobile crib hut does not count for the purposes of counting the crib break time; the crib break starts from the time that the employee reaches the mobile crib hut and lasts for half an hour. Employees then travel back to the Dragline or work area. Mr Vere contrasted the facilities in the mobile crib hut with those on the Dragline and said that the Dragline has a half kitchenette and no toilet facilities. The facilities on the Dragline are available for employees if they choose to stay at the Dragline for their crib however those facilities are not specifically provided as an area where employees are required to take their crib breaks. Mr Vere also said that there are other pieces of machinery at the mine that have kitchenettes in them - for example the rope shovel and drills have microwaves and fridges.

[45] Mr Vere maintained that planned meetings do not occur on Draglines. Prestart meetings for Dragline Operators occur at the Mine’s administration building and all Dragline Operators, the Supervisor, Engineers and Mr Vere attend those meetings. Right of entry discussions have never occurred on Draglines at the Mine while Mr Vere has been there. Rather, those meetings are held in the mobile crib hut.

[46] When a right of entry notice is received, and it is understood where and when an Official of the Union wishes to conduct discussions, Mr Vere informs all Dragline Operators verbally at the prestart meeting that the Official will be on site. During the prestart meeting Mr Vere lets Operators know that he will be taking the CFMEU Official to the mobile crib hut if they wish to participate in discussions and asks the Operators to let him know if they wish to do so, so that arrangements can be made for them to attend. The arrangements include arranging or confirming transport to the locations where the Union Official will be. Once the Union Official arrives on site, Mr Vere calls Operators on the two way radio to inform them that he is driving the Official to the mobile crib hut. Operators can then use the light vehicle that is available at each Dragline to come to the mobile crib hut if they wish to participate in the discussions. This process was utilised by Mr Vere on 29 July and 26 August 2014 when Mr Pierce came to site.

[47] Mr Vere states that the areas on the Draglines are not a reasonable location for right of entry discussions to be held. They are work areas and in close proximity to persons operating the Dragline. The areas are small, and if someone is not interested in participating in discussions with the Union Official that employee would be placed in a difficult and confronting position. The employee would essentially have to sit and ignore the Official in a very confined area with limited seating facilities. The alternative would be for the employee to tell the Union Official that they are not interested in having discussions and then walk past the Union Official to move away from the discussions leaving the Official with no-one to have discussions with. By using mobile crib hut facilities, all employees have a choice to go and see the Officials.

[48] In relation to the assertion by Mr Pierce that BMA refers to the relevant areas as integrated crib rooms, Mr Vere said that he had never heard that term used at the Mine. In oral evidence Mr Vere said that Operators are able to make coffee, tea or other drinks in the area behind the cab and consume them while they are operating the Dragline. Mr Vere also confirmed that the 1030 mm width of the area is measured from the edge of the bench on one side to the edge of the bench on the other side so that it constitutes the space through which persons on the Dragline walk.

[49] Under cross-examination, Mr Vere agreed that a third Dragline has commenced operating at Caval Ridge. In relation to the new Dragline, Mr Vere said that it is located two to three kilometres from the nearest crib hut which is the Hayford Pre-Strip crib hut. That crib hut is used by any employee working in the Southern area of the mine.

[50] Further Mr Vere agreed that movement of a Dragline would not prevent discussions occurring in the area behind the cabin. That area is variously referred to as a crib room, kitchenette or the Operator cabin. Dragline Operators will have their crib on the Dragline. Mr Vere was shown a diagram of a Dragline located at Saraji Mine and said that the layout of that Dragline differs from the Draglines at Caval Ridge because the Dragline at Saraji has a door from the area behind the Operator cabin leading directly outside while the Dragline at Caval Ridge does not.

[51] Mr Vere agreed that the mobile crib huts referred to in his statement are primarily used by crews other than Dragline Operators and that Dragline Operators ordinarily take their crib on the Dragline in the area behind the cabin. BMA makes sure that it provides places for employees to take their crib breaks and Mr Vere said that he would not direct employees to stay on the Dragline during crib breaks due to the need for them to have access to toilets which are not on the Draglines. Employees on the Draglines are responsible for ensuring that they have supplies of coffee, milk and other consumables aboard the Dragline, but these are paid for by the Company.

[52] In relation to the door between the Operators cab and the area behind it, Mr Vere said that the door is designed to keep noise out to some extent. Mr Vere said that the Draglines at Caval Ridge were completely rebuilt before coming to the mine and the area behind the Operator Cabin was refurbished. Mr Vere agrees that employees sit down and eat lunch in the area. Mr Vere said that he has seen four or five people in that area at the same time including Supervisors, Operators and Maintenance employees. Other persons visit the Dragline from time to time including managers of the Company, some of whom are not familiar with the day to day operations of Draglines.

[53] In relation to the proposition that Operators would be required to tell him that they wanted to see Mr Pierce in a mobile crib hut, Mr Vere said that at the prestart he would inform the Operators that Mr Pierce would be exercising a right of entry that day, and communicate to employees the period that Mr Pierce would be available in the mobile crib hut. Mr Vere said that he has asked employees to tell him that they were going to see Mr Pierce so that arrangements could be made with their Supervisors for them to get to meetings. Operators do not have to tell Mr Vere that they are meeting Mr Pierce on a particular day but Mr Vere maintained that if they did, he could work with Supervisors to make sure that employees could get to the mobile crib hut. Mr Vere did not accept that this would discourage employees from meeting with Mr Pierce.

[54] Mr Vere agreed that whenever any person boards or disembarks from a Dragline, the Dragline is required to stop and that in this regard Mr Pierce boarding a Dragline would be no different than any other employee doing so.

3.3 Mr Gibbons

[55] Mr Gibbons gave evidence about the usual practice that BMA adopts with respect to right of entry. This involves the Union Official sending a notice to Mr Gibbons with a copy to Mr Shaun McKenzie, Employee Relations Manager, or to Mr McKenzie with a copy to Mr Gibbons. A letter is then forwarded by the BMA Employee Relations department to the Official providing details of arrangements for right of entry including relevant crib times and locations. Before the letter of response is sent, the Employee Relations Department engages and consults with appropriate representatives at site as required, including Department Managers, Superintendents and Mr Gibbon as General Manager, to obtain input in relation to crib times and the proposed location for the right of entry discussions. A response letter is then sent by Mr McKenzie to the Union Official seeking to enter and Mr Gibbon is copied into that correspondence.

[56] In his oral evidence, Mr Gibbon referred to a document entitled “BMA HSE procedure for visitors’ access”. 9 Visitors to the Mine Site, including Union Officials exercising right of entry, are required to be escorted at all times. Escorts pick up visitors from the entrance to the site, give them information pertaining to the site and what they can and cannot do on the site and then escort them for the entire visit, before taking them back to the entrance. Mr Gibbons is aware that Mr Pierce sought entry to hold discussions with employees on 29 July, 26 August and 6 September 2014 in the areas on Dragline 34 and Dragline 35. On these occasions Mr McKenzie consulted Mr Gibbon, and Mr Gibbon took advice from Mr McKenzie to ensure that the Mine was complying with legislative requirements and acting consistently with BMA’s approach to managing right of entry. Mr McKenzie then responded to Mr Pierce in accordance with the usual process.

[57] Mr Gibbon agreed that he had a discussion with Mr Pierce on 29 July 2014 but said that he did not tell Mr Pierce that he had been given instructions to restrict his right of entry to mobile crib rooms. Mr Gibbon said that Mr McKenzie advises on Employee Relations matters for BMA and does not have the authority to provide instructions to him on right of entry to a mine. Mr Gibbon held a telephone discussion with Mr McKenzie in which they discussed access to Draglines for the purpose of right of entry discussions and concurred that Draglines were not an appropriate place for such discussions because they are operating pieces of equipment, and, while employees are permitted to take crib on the Dragline and facilities are provided for this, the area itself is a functioning work area that includes an office, standard operating procedures and a computer. Mr Gibbon maintains this position.

[58] Mr Gibbon also said that he told Mr Pierce there was a difference of opinion between BMA and the CFMEU about right of entry requirements for Draglines, the matter appeared to be a stalemate and it was not a matter that could be sorted out that day. Mr Gibbon said that he went on to confirm to Mr Pierce that arrangements had been made with Dragline Operators to facilitate his discussions including:

● Providing an appropriate crib facility for him to meet with Dragline Operators;

● Informing the Dragline Operators of the time and the place where he would be available both in advance of his attendance and after he had arrived;

● Ensuring that Dragline Operators had access to a light vehicle to travel to the mobile crib facility to meet with Mr Pierce if they wanted to participate in such discussions with travel being during working time.

[59] These are the usual arrangements that are in place at Caval Ridge Mine and at other BMA operated mines. Under cross-examination, Mr Gibbons agreed that the Visitor Access procedure came into effect on 30 October, after the right of entry visits subject of these proceedings, but maintained that it is a revised, rather than a new, document. Mr Gibbons also agreed that Mr McKenzie had corresponded with Mr Pierce stating that: “my position has not changed” in relation to Mr Pierce conducting discussions on Draglines but maintained that Mr McKenzie was not making representations on behalf of BMA. Mr Gibbons confirmed that Mr McKenzie had not contacted him prior to some of the correspondence that Mr McKenzie sent to Mr Pierce in relation to this issue.

[60] Mr Gibbon said that he had requested advice from Mr McKenzie in relation to the situation because Caval Ridge Mine was new to the BMA role. Mr McKenzie’s advice was that right of entry was not permitted to Draglines on other BMA sites and that this was standard practice. Mr Gibbons agreed that he is bound to follow that procedure. In response to the proposition that the Company has closed its mind to any alternative location that Mr Pierce might suggest, Mr Gibbons said that the Company had provided alternative crib facilities for Mr Pierce to go to and that Draglines are not areas that are deemed to be “a right of entry area”. Mr Gibbons confirmed that this is a fixed view across BMA and there is an alternate site where the Dragline Operators can have crib breaks so that Mr Pierce could have a discussion with them in that location.

[61] Mr Gibbons disputed the proposition that it was actually Mr McKenzie who was making the decision not to allow access to the Draglines for Mr Pierce and said that while the correspondence was through Mr McKenzie, they had discussed the issue and determined that right of entry discussions would not be permitted on an operating piece of equipment and that the North Reload crib hut was an appropriate facility for those discussions.

[62] In relation to the facilities provided in the Draglines, Mr Gibbons agreed that items, such as microwaves, tea, coffee, milk and other items are provided by the Company but maintained that the area is not a crib room, but rather is part of the Operator’s cabin. Mr Gibbons also maintained that whether Dragline Operators take their crib breaks on the Draglines or in the alternative crib areas depends on the preferences of the Operators. Mr Gibbon agreed that the Company provides the areas on Draglines so that Operators can take their crib there if they like.

[63] In response to Mr Pierce’s assertion that the North Reload crib hut facility is not an area where Dragline Operators take their crib breaks, Mr Gibbons said that it is an area where the Operators can have their crib breaks. The North Reload crib hut has toilets and employees have the ability to have their breaks on the Draglines or in that area. Mr Gibbons said that the Draglines were refurbished approximately 18 months ago and that the refurbishment included the areas in issue in these proceedings. In response to the proposition that the Company could have chosen not to put facilities such as microwave ovens and benchtops in the Draglines, but could have created more office space instead, Mr Gibbons said that there is adequate office space already. Mr Gibbon rejected the proposition that the areas are provided for the purpose of employees taking their cribs and said that they are multi-functional areas.

4. LEGISLATION

4.1 Current Legislation

[64] Chapter 3 of the Act deals with the subject of “rights and responsibilities of employees, employers, organisations etc.” The Objects of Chapter 3 are found in s. 336 in the following terms:

“336 Objects of this Part

(1) The objects of this Part are as follows:

(a) to protect workplace rights;

(b) to protect freedom of association by ensuring that persons are:

(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;

(c) to provide protection from workplace discrimination;

(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

(2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).”

[65] Part 3-4 deals with “right of entry” for persons who are officials of organisations of employees to enter premises occupied by others, for purposes relating to their representative role under the Act and under State or Territory occupational health and safety laws. The Objects of Part 3-4 are set out in s. 480 of the Act in the following terms:

“480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and
(ii) State or Territory OHS laws; and

(b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.”

[66] The term “premises” is defined in s. 12 of the Act as follows:

“premises includes:

(a) any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle or place; and

(b) a part of premises (including premises referred to in paragraph (a)).

[67] Provisions relating to entry to hold discussions are found in Subdivision B of Part 3-4. Relevantly s. 484 provides as follows:

“484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a) who perform work on the premises; and

(b) whose industrial interests the permit holder’s organisation is entitled to represent; and

(c) who wish to participate in those discussions.

Note 1: A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2: A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3: Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.”

[68] In relation to when a right of entry may be exercised, s. 490 provides:

“490 When right may be exercised

(1) The permit holder may exercise a right under Subdivision A, AA or B only during working hours.

(2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks.

(3) The permit holder may only enter premises under Subdivision A, AA or B on a day specified in the entry notice or exemption certificate for the entry.”

[69] By virtue of s. 491 the permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises. With respect to the location of interviews and discussions, s. 492 provides:

“492 Location of interviews and discussions

(1) The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2) Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3) The permit holder may conduct the interview or hold the discussions in any room or area:

(a) in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b) that is provided by the occupier for the purpose of taking meal or other breaks.

Note 1: The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.

Note 2: A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).”

[70] Section 492A deals with the route to the location at which interview or discussions are to occur as follows:

“492A Route to location of interview and discussions

(1) The permit holder must comply with any reasonable request by the occupier of the premises to take a particular route to reach a room or area of the premises determined under section 492.

Note: The FWC may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

(2) A request under subsection (1) is not unreasonable only because the route is not that which the permit holder would have chosen.

(3) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.”

[71] By virtue of s. 505 the Commission may deal with a dispute about the operation of Part 3-4 of the Act. That section is in the following terms:

“505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part, including a dispute about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).

Note 1: Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.

Note 2: Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.

Note 3: Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.

Note 4: Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order imposing conditions on an entry permit;
(b) an order suspending an entry permit;
(c) an order revoking an entry permit;
(d) an order about the future issue of entry permits to one or more persons;
(e) any other order it considers appropriate.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute:

(a) on its own initiative; or

(b) on application by any of the following to whom the dispute relates:

(i) a permit holder;
(ii) a permit holder’s organisation;
(iii) an employer;
(iv) an occupier of premises.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

(5) In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2, 3 or 7 of this Part, unless the dispute is about:

(a) whether a request under section 491, 492A or 499 is reasonable; or

(b) when a right of the kind referred to in section 490 may be exercised by the permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or

(c) whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or

(d) whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or

(e) whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).”

4.2 Previous legislation

[72] The provisions of s. 492 of the Act were amended by the Fair Work Amendment Act 2013 with effect from 1 January 2014. Previously s. 492 provided as follows:

“s. 492 Conduct of interviews in particular room etc.

(1) The permit holder must comply with any reasonable request by the occupier of the premises to:

(a) conduct interviews or hold discussions in a particular room or area of the premises; or

(b) take a particular route to reach a particular room or area of the premises.

Note: FWA may deal with a dispute about whether the request is reasonable (see subsection 505(1)).

(2) Without limiting when a request under subsection (1) might otherwise be unreasonable, a request under paragraph (1)(a) is unreasonable if:

(a) the room or area is not fit for the purpose of conducting the interviews or holding the discussions; or

(b) the request is made with the intention of:

(i) intimidating persons who might participate in the interviews or discussions; or

(ii) discouraging persons from participating in the interviews or discussions; or

(iii) making it difficult for persons to participate in the interviews or discussions, whether because the room or area is not easily accessible during mealtimes or other breaks, or for some other reason.

(3) However, a request under subsection (1) is not unreasonable only because the room, area or route is not that which the permit holder would have chosen.

(4) The regulations may prescribe circumstances in which a request under subsection (1) is or is not reasonable.”

[73] Section 505 of the Act previously provided as follows:

“505 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part (including a dispute about whether a request under section 491, 492 or 499 is reasonable).

Note:

Sections 491, 492 and 499 deal with requests for permit holders to use particular rooms or areas, and comply with occupational health and safety requirements.

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a)	an order imposing conditions on an entry permit;

(b)	an order suspending an entry permit;

(c)	an order revoking an entry permit;

(d)	an order about the future issue of entry permits to one or more persons;

(e)	any other order it considers appropriate.

Note:

The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3)  The FWC may deal with the dispute:

(a)	on its own initiative; or

(b)	on application by any of the following to whom the dispute relates:

(i) a permit holder; (ii) a permit holder’s organisation; (iii) an employer; (iv) an occupier of premises. (4)  In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

(5)  In dealing with the dispute, the FWC must not confer rights on a permit holder that are additional to, or inconsistent with, rights exercisable in accordance with Division 2 or 3 of this Part, unless the dispute is about whether a request under section 491, 492 or 499 is reasonable.”

[74] The Explanatory Memorandum to the Fair Work Amendment Bill 2013 contained a “Statement of Compatibility with Human Rights” which referred to the amendments in relation to right of entry in the following terms:

“Right of entry

The amendments made by Schedule 4 of the Bill engage the right to freedom of association and the rights of people to form organisations to represent their interests. Of particular relevance in the right of entry context is guidance provided by the Committee on Freedom of Association established by the Governing Body of the International Labour Organisation in its 336th Report at paragraph 108 that:

… Governments should guarantee access of trade union representatives to workplaces with due respect for the rights of property and management, so that trade unions can communicate with workers....

 Part 3-4 of the FW Act provides a framework for right of entry for officials of organisations and empowers the FWC to deal with the misuse of rights and disputes.

The object of Part 3-4 is to balance:

•         the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions;
•         the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and
•         the right of occupiers of premises and employers to go about their business without undue inconvenience.

The amendments made by Schedule 4 of the Bill will encourage parties to reach agreement as to how entry by permit holders to workplaces is to be facilitated. The amendments assist organisations in circumstances where agreement has not been possible by:

•         providing for interviews and discussions to be held in rooms or areas agreed by the occupier and permit holder, or in the absence of agreement, in any room or area in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks and is provided by the occupier for that purpose;
•         facilitating assistance with transport and accommodation for permit holders at remote sites; and
•         limiting the amounts that an occupier can charge a permit holder for provision of accommodation or transport at remote sites to cost recovery.

Schedule 4 of the Bill enables the FWC to deal with disputes about the frequency of entry to premises for discussion purposes. This could lead to the FWC placing limitations on the frequency of entry. However, that could only occur if the FWC is satisfied that the frequency of entry would require an unreasonable diversion of the occupier’s critical resources.

Schedule 4 to the Bill also provides the FWC with the ability to deal with disputes about aspects of accommodation and transport arrangements, such as whether to provide accommodation or transport would cause the occupier undue inconvenience.  This will ensure that occupiers of premises are not required to go to unreasonable lengths to facilitate right of entry.

In all cases, in dealing with right of entry disputes, FWC must take into account fairness between the parties concerned.

This amendment also ensures appropriate conduct by permit holders while being accommodated or transported under a transport or accommodation arrangement, consistent with the right of entry framework established by the FW Act.

The amendments in Schedule 4 of the Bill advance freedom of association and provide for right of entry disputes to be resolved with due respect for both the rights of employees to be represented at work and the rights of the occupiers of premises to maintain their property and manage their businesses. These changes to the right of entry framework do not limit the right to freedom of association.”

[75] With respect to the specific amendments to s. 492 and s. 505, Schedule 4 of the Explanatory Memorandum states as follows:

“Item 7 - Section 492

139. Section 492 deals with the conduct of interviews or discussions in a particular location. This item repeals and replaces existing section 492 of the FW Act. New subsection 492(1) provides that the permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

140. New subsections 492(2) and (3) provide that if there is no agreement, the default location for interviews and discussions will any room or area in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks and is provided by the occupier for that purpose. The requirement means, for example, that a permit holder would not be authorised to hold discussions in a personal office or workspace or a room or location which is not provided for or used for meals or other breaks unless it is agreed.

141. Notes to new section 492 refer the reader to:

● the FWC’s power under section 508 to deal with the misuse of rights by a permit holder or organisation; and

● obligations on persons under section 502 not to intentionally hinder or obstruct a permit holder.

142. An example of a misuse of rights under section 508 in these circumstances may be where a permit holder repeatedly seeks to have discussions with a person in a lunch room to encourage that person to become a member of an organisation when the person has made it clear to the permit holder that they do not wish to participate in such discussions.”

...

Item 10 - Subsection 505(1)

147.                This item repeals and replaces subsection 505(1) of the FW Act. Section 505 allows the FWC to deal with a dispute about the operation of this Part. New subsection 505(1) is modelled on existing subsection 505(1) and provides a list of the kinds of disputes with which the FWC may deal. The list is non-exhaustive and is not intended to be a comprehensive list of all the matters that would constitute a dispute about the operation of this Part.

148.                Specific examples of disputes that the FWC may deal with are set out in new subsection 505(1) and include disputes about:

•         whether a request under section 491, 492A or 499 is reasonable;
•         when a right of the kind referred to in section 490 may be exercised on premises in remote areas within the meaning of subsections 521C(1) or 521D(1), despite section 490;
•         whether accommodation is reasonably available (see new subsection 521C(1)) or premises are reasonably accessible (see new subsection 521D(1));
•         whether providing accommodation or transport would cause the occupier of premises undue inconvenience (see new paragraphs 521C(2)(a) and 521D(2)(a)); or
•         whether a request to provide accommodation or transport is made within a reasonable period (see new paragraphs 521C(2)(c) or 521D(2)(c)).

149.                Notes to new section 505(1) refer the reader to the matters dealt with in section 490, section 491, new section 492A, section 499, new section 521C and new section 521D.

Item 11 - Subsection 505(5)

150.                This item repeals and replaces subsection 505(5) of the FW Act. New subsection 505(5) is modelled on existing subsection 505(5) and provides that when the FWC is dealing with a dispute about the operation of this Part, it must not confer rights on a permit holder that are in addition to or inconsistent with rights exercisable in accordance with Division 2, 3 or 7 of Part 3-4. This limitation on the exercise of the FWC’s powers does not apply to disputes about the matters set out in paragraphs 505(5)(a)-(e):

•         whether a request under section 491, 492A or 499 is reasonable;
•         when a right of the kind referred to in section 490 may be exercised on premises in remote areas within the meaning of subsections 521C(1) or 521D(1), despite section 490;
•         whether accommodation is reasonably available (see new subsection 521C(1)) or premises are reasonably accessible (see new subsection 521D(1));
•         whether providing accommodation or transport would cause the occupier of premises undue inconvenience (see new paragraphs 521C(2)(a) and 521D(2)(a)); or
•         whether a request to provide accommodation or transport is made within a reasonable period (see new paragraphs 521C(2)(c) or 521D(2)(c)).”

5. CONSTRUCTION OF RELEVANT LEGISLATIVE PROVISIONS

5.1 General principles

[76] In order to answer the question for arbitration it is necessary to construe the relevant provisions of the Act to which the dispute relates. The approach to the construction of statutory provisions is well established and can be distilled from the cases referred to in the judgment of Justice Flick in JJ Richards v Fair Work Australia: 10

● The golden rule is that the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the statute in which case the grammatical and ordinary sense of the words can be modified to avoid absurdity and inconsistency; 11

● Words that are not in an Act of Parliament should not be read into it and in the absence of a clear necessity this is the wrong thing to do; 12

● The construction of a statutory provision that would best achieve the object of the Act is to be preferred; 13 and

● The requirement to construe an Act in accordance with its object is not a license to rewrite 14  or amend the Act being construed.15

5.2 Approach to right of entry provisions

[77] Cases where previous legislative provisions in relation to right of entry have been considered have emphasised that the rights under Part 3-4 are limited to certain purposes and are subject to express and implied restraints. It has also been pointed out that s. 480 of the Act is an “objects” provision which makes it clear that the objects of Part 3-4 are to establish a framework that balances the rights of employees to representation and the rights of occupiers of premises to determine who is permitted to access premises. 16

[78] These principles continue to be relevant, notwithstanding legislative amendment. In Construction Forestry Mining and Energy Union v Austral Bricks (Vic) Pty Ltd 17, Deputy President Gostencnik extensively considered the present right of entry provisions in Part 3-4 of the Act. His Honour’s decision, while dealing with different issues than those arising in the present case, contains a detailed summary of case law in relation to right of entry provisions and a number of observations and conclusions that are relevant in the current case. In relation to right of entry provisions generally, Deputy President Gostencnik made the following observation:

“The right of entry scheme established by Part 3-4 of the Act is a statutory right to enter business premises of an employer or occupier. As such it is an encroachment on the right of an occupier or employer would otherwise have to determine who is permitted to enter and who may be excluded from entering premises owned or controlled by the occupier or employer. Accordingly, statutory provisions of this kind should be construed so that encroachment is no greater than the statute allows, either expressly or by necessary implication.”  18

[79] Deputy President Gostencnik also pointed out that the right of entry given to a permit holder under s. 484 of the Act is not unfettered and is subject to express and implied constraints, including that it is to be exercised so as to promote the objects of Part 3-4 as set out in s. 480 of the Act. Further, it was pointed out that discussions to be held that are authorised by an entry under s. 484 are limited to particular employees – those who perform work on the premises, whose industrial interests the permit holder’s organisation is authorised to represent and who wish to participate in those discussions. Discussions with relevant employees may only be held at a location determined by reference to the procedure set out in s. 492.

[80] In relation to s. 492 of the Act, Deputy President Gostencnik said:

“The starting point is that the permit holder must hold discussions in those rooms or areas of the premises agreed with the occupier of the premises. If the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to hold discussions then the permit holder may conduct discussions in a room provided to employees for the purposes of taking the meal or other breaks (meal room). The capacity of a permit holder to insist upon holding discussions in a meal room arises only if the permit holder and the occupier cannot agree on a room or area. The primary focus of s. 492 is on an agreed location for the holding of discussions. Indeed it is suggested in the Explanatory Memorandum to the Fair Work Amendment Bill 2013 by which s. 492 was enacted, that the amendments to the right of entry provisions of the Act “will encourage parties to reach agreement as to how entry by permit holders to workplaces is facilitated. The amendments assist organisations in circumstances where agreement has not been possible . . .”  The default location, the meal room, may be used by the permit holder only if the permit holder and the occupier “cannot agree” on a location.

The use of the phrase “cannot agree” is suggestive a degree of improbability of agreement but probably not impossibility. Given the context in which an agreement about a location for discussions might be sought, it seems to me unlikely that the Parliament intended that it must be established that agreement is impossible before the default position operates. Nevertheless it seems to me that more is required to establish that the permit holder and the occupier cannot agree, than each party simply attending the discussion about a location with a fixed view about where the location should be, not being prepared to move from that fixed view and not being prepared to consider the location proposed by the other party. Such a minimal requirement seems to me to be inconsistent with the ordinary meaning of the phrase “cannot agree” and with a scheme that is said to be designed to encourage agreement. It is also inconsistent with the object of Part 3-4 because such an approach pays no regard to the balancing of competing rights set out therein. That parties “do not agree” does not mean that they “cannot agree”.” 19

[81] In relation to the manner in which discussions should be conducted, Deputy President Gostencnik observed:

“It seems to me that in many workplaces it will not be uncommon that during a meal break a lunch room will have present employees who fall within and those who fall outside of the prescribed class of employees with whom a permit holder is permitted to hold discussions. The permit holder should take some steps to ascertain whether those in the room are willing to participate in discussions particularly if the permit holder intends to conduct those discussions by way of a meeting addressing all in attendance. If there are persons who do not wish to participate in discussions, it seems to me that it is incumbent on the permit holder to moderate his or her discussions in a way that will not interfere with the right of an employee to remain in the lunchroom and not to participate in those discussions. That may involve utilising only a portion of the lunchroom and moderating the volume at which the discussion occurs. If that is not possible then it may be appropriate for the permit holder to seek an agreement with the occupier for a more suitable venue. The level of moderation necessary will depend on the circumstances and I am not suggesting that the permit holder must resort to whispering or that those not wishing to participate must not hear any discussion. Meal rooms will, during breaks, doubtless be places of discussion amongst employees. A permit holder should therefore adjust the manner of address to willing participants so as not to unduly interfere with the capacity to those not willing to go about their usual activity in the meal room.” 20

[82] Deputy President Gostencnik also considered the nature and scope of the arbitration powers in s. 505 of the Act, finding that s. 505(1) contains a non-exhaustive list of the kinds of disputes with which the Commission may deal and that although there is no specific reference to a dispute about the operation of s. 492, there is little doubt that the Commission is empowered to deal with such a dispute. His Honour also observed in relation to the powers of the Commission under s. 505 that:

“An application to deal with a dispute about the location at which discussions with employees will be held brought under s. 505 is not an appropriate vehicle to seek a declaration of or resolution to a dispute about existing rights. Such matters must be determined elsewhere. True it is that in the course of dealing with such a dispute by arbitration a view may be expressed or formed, or a conclusion drawn, about the nature of existing rights, but not for the purposes of declaring or resolving those rights. This is done for the purposes of resolving the dispute by determining what future rights should be and then by crafting an appropriate order to give effect to those future rights. Any order that is made, must be carefully and clearly crafted, and must be certain in its operation because compliance with an order is mandated and a contravention of an order is actionable as a civil remedy provision.

Unlike other disputes that might be brought under s. 505 which will likely involve disputes about whether something that was done was “reasonable”, whether a thing or place was “reasonably available” or “reasonably accessible”, whether the provision of a thing would cause “undue inconvenience”, whether a request to provide a thing was made within a “reasonable period” or other objectively ascertainable concepts, such concepts do not expressly arise for determination in dispute about the application of s. 492. It seems to me therefore that in determining a dispute of this kind by arbitration and by the making of an order, such orders will necessarily involve regulating the conduct of the permit holder or the occupier or both, in the future in relation to determining the location and the conduct of discussions with the prescribed class of employees. Such an order should be aimed at giving effect to the object of Part 3– 4, the apparent purpose of s. 492, including to encourage parties to reach agreement as to how entry by permit holders to workplaces is facilitated, and take into account fairness between the parties concerned in the dispute.” 21 (citations omitted)

[83] Deputy President Gostencnik declined to make the Order sought by the CFMEU on the basis that the Union was seeking a general order applying to all permit holders on every occasion that they entered premises, in circumstances where the dispute concerned only two permit holders and the effect of the order would be to “entrench the default position in perpetuity in the workplace or at least until further order” 22. A Recommendation was made that on any occasion where entry was sought the relevant permit holders and representatives of the Company take reasonable steps to reach an agreement about the room or area of the plant in which discussions with employees will be held. Reasonable steps for the purpose of the Recommendation were stipulated as follows:

(a) Proposing a room or area at which discussion may be held and giving reasons for proposing that room or area;

(b) Allowing the other party an opportunity to consider the proposed room or area and to respond;

(c) Considering whether discussions with employees can take place in a room or area proposed by a party without interfering with an employee’s right not to participate in any discussions or their capacity to utilise the room or area in accordance with its usual purpose; and

(d) Remaining open to suggestions from the other party about alternative venues at which discussions may be held.

[84] The Decision in Austral Bricks concerned the insistence by the permit holders of a right to use a lunchroom to hold discussions and the employer’s refusal to allow the lunchroom to be used because of the manner in which the permit holders had conducted discussions on a previous occasion when they had used the lunchroom. The Commission was satisfied in that case that the conduct of the permit holders on a previous occasion when they had been permitted to use the lunchroom had resulted in discussions that were not authorised by the Act. The issues in dispute in that case concerned whether the conduct of permit holders on a number of occasions was authorised by s. 484 and whether, for the purposes of s. 492(2) “the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions”.

[85] In National Union of Workers v Coles Group Supply Chain Pty Ltd 23, Commissioner Roe, considering s.492 said that:

“The words of Section 492 provide for the discussions to take place in “rooms or areas of the premises” agreed with the occupier of the premises or in the absence of agreement in the meal room. There may be circumstances where the employer may reasonably restrict the manner in which the meal room is accessed. For example, if there are two meal rooms and employees can freely choose which room they utilise it may be reasonable to restrict access to only one of them depending upon the circumstances.” 24

[86] The issues in NUW v Coles Group Supply Chain Pty Ltd concerned conditions which the Company had placed on permit holders while conducting discussions in the lunchroom rather than whether the lunchroom could be used for the purpose of conducting such discussions.

6. CONSIDERATION

6.1 What is the scope of the Commission’s power to deal with the dispute?

[87] Although the issue of the Commission’s powers under s. 505 of the Act to deal with the present dispute was not raised by the parties, the reservations expressed by Deputy President Gostencnik in the Austral Bricks case are apposite. Initially the CFMEU sought relief including a declaration, a determination and an order about the right of Mr Pierce to hold discussions with employees in the specified areas.

[88] While the question for arbitration does not require the Commission to make an order, the effect of answering the question will be to adjudicate existing rights between the parties, rather than determining what the rights should be in the future. However, it is also arguable that the determination of the dispute may inform the conduct of the permit holder and the occupier in future in relation to agreeing on a location for discussions.

[89] The question for arbitration in the present case relates to attempted entry on a particular date – 6 September 2014 – rather than to a general proposition about the location at which discussions may be held. The CFMEU made it clear in submissions that it may continue to press for discussions to be held in the specified areas on future occasions where entry is sought under s. 484 of the Act.

[90] There is a tension in the power of the Commission to arbitrate a dispute under s.505 of the Act and the way in which s.492 is framed. The language of s.492 suggests that the provision is designed to deal with disputes about the location at which discussions will be held by a permit holder at the point entry is sought. The way in which s. 492 is framed requires agreement on each occasion the permit holder enters and subject to other requirements of the Act being met, the application of the default provision in s. 492(3) on each occasion that agreement on a location for discussions cannot be reached. For practical purposes, a permit holder and an occupier of premises may reach an understanding in advance about where discussion will be held, and conduct themselves in accordance with that understanding on each occasion the permit holder seeks to enter the premises. However, the occupier and the permit holder must agree on the location for discussions on each occasion and the default provision is only triggered where such agreement cannot be reached. This means that the majority of disputes will be about existing rather than future rights.

[91] The issue of whether agreement cannot be reached on a room or area as provided in s. 492(1) may also be viewed in a different way in circumstances where there is a dispute about whether the default position should apply, depending on the nature of the interaction sought by the permit holder. Section 492(1) introduces the term “an interview”. That term connotes a discussion that is pre-arranged and related to a specific topic or topics. It may be that where a permit holder has a member or members with a particular issue or matter that requires an interview, rather than a general discussion involving other employees not concerned with the particular issue or matter, that the appropriateness of a location will differ. It would arguably be more difficult to hold an interview in an area generally used as a meal room by employees other than those being interviewed, than it would be to hold a general discussion, and in such circumstances it would be more appropriate for the permit holder to seek agreement from the employer to use an office or a more private space.

[92] The room or area that the permit holder wishes to use for the purpose of discussions may also change depending on the circumstances as they exist at a workplace on a particular occasion upon which entry is sought. Groups of employees with whom the permit holder wishes to hold discussions may ordinarily use a number of different rooms or areas for the purposes of taking meal or other breaks rather than a single central area. Rooms or areas in which employees ordinarily take their meals or other breaks may be unavailable or not able to be used on a particular occasion or inaccessible to employees because the location in which they are working has changed temporarily.

[93] In the present case nothing turns on the distinction between interviews and discussions because the permit holder Mr Pierce sought to hold discussions rather than to conduct an interview, when he exercised a right of entry on 6 September 2014. It is also the case that on that date, the mobile crib room was located 2-4 kilometres from the Draglines and there is no evidence the Operators were unable to access it in a practical sense.

[94] The submission of BMA also raises an issue as to whether the Commission has discretion to apply the concept of reasonableness to a dispute about the application of s. 492 and in particular the location at which discussions may be held. As Deputy President Gostencnik observed in the Austral Bricks Case, unlike other disputes that may be brought under s. 505, concepts of reasonableness do not expressly arise in relation to a dispute about the operation of s. 492 of the Act. I agree with the observation of Deputy President Gostencnik in the Australia Bricks case. Before the amendments to s. 492 of the Act, the Commission could arbitrate a dispute about whether a request by an occupier of premises that a discussion or interview be held in a particular room or area, was reasonable.

[95] Any discretion that the Commission previously had to determine the reasonableness of a location for discussions conducted by a permit holder has been removed by the 2014 amendments. Instead, where entry is sought under s. 484 of the Act, the focus in s. 492 is on the occupier and the permit holder reaching agreement about the room or area in which discussions will be held. Section 492(3) establishes a default position if agreement cannot be reached. There is no specific mention in s. 505 of disputes arising under s. 492 of the Act. Although the Commission can deal with disputes about the operation of Part 3-4 (which includes s. 492) by conciliation or arbitration, in my view the Commission is not empowered to arbitrate with respect to a dispute that is only about whether it is reasonable for a permit holder to insist on using a particular room or area for the purpose of holding discussions in circumstances where:

● The location proposed by the permit holder is a room or area within the meaning in s. 492(3);
● The default position in s. 492(2) has been triggered;
● The permit holder has otherwise complied with all other legislative requirements with respect to entry to the premises; and
● The permit holder has not engaged in conduct that is inconsistent with the express or implied limitations in the Act with respect to entry to the premises and interactions with relevant employees.

[96] In such circumstances, the Commission cannot determine that it is reasonable that one room or area within the meaning in s. 492(3) is used by a permit holder rather than another room or area nominated by the occupier that also is a room or area within the meaning in s. 492(3). In this regard, the term “may” in s. 492(3) gives the permit holder the right to choose to hold discussions in any room or area that fits the description in that sub-section, where the default position applies, subject to complying with other limitations and requirements such as occupational health and safety requirements.

[97] There may be cases where a permit holder seeks an order under s. 505 in circumstances where the conditions set out above have been met and the occupier refuses to allow the permit holder to access a room or area in which the permit holder wishes to hold discussions, and where the Commission is satisfied that to make the order would result in unfairness between the parties concerned (s. 505(4)), or would confer rights on the permit holder that are additional to or inconsistent with rights exercisable in accordance with the Divisions in Part 3-4 ( s. 505(5)).

[98] However, given that the 2014 amendments have removed the discretion of the Commission to determine whether it is reasonable for a permit holder to seek to have discussions with employees in a particular room or area where the default is triggered, it is probable that circumstances in which the Commission would make an order or determine that the default location chosen by the permit holder should not be used for discussions, will be rare.

[99] The Commission can make recommendations and orders about the process to be followed in reaching agreement about the location of discussions. It is arguable that the Commission can consider the reasonableness of the respective positions taken by the permit holder and the occupier in dealing with a dispute about the operation of s. 492 and can make recommendations about such matters. However, it is doubtful that the Commission could issue an order requiring either the permit holder or the occupier to alter position and reach agreement on a location for discussions.

[100] The present case illustrates the difficulty with a dispute about the application of s. 492, where the issue to be determined is the location in which a permit holder is to conduct discussions, in circumstances where there are two or more areas that prima facie meet the description in s. 492(3) and the permit holder insists that discussions should be held in one location and the occupier insists that the discussions should be held in the other. Commissioner Roe gave an example in NUW v Coles where there are two meal rooms and an employee can freely choose which room to utilise and observed that in such a case it may be reasonable for the employer to restrict access to only one of the meal rooms, depending on the circumstances. As previously noted, Commissioner Roe was dealing with a dispute about restrictions that Coles was attempting to impose on permit holders while holding discussions rather than which of two disputed areas should be used for those discussions.

[101] In the present case there is no issue with the conduct of the permit holder Mr Pierce, either on 6 September 2014 or at any other time. There is no evidence to suggest that Mr Pierce has failed to comply with directions from BMA related to safety and accessing areas in which discussions are to take place and or that Mr Pierce has taken issue with those directions. There is no reason to believe that Mr Pierce will not continue to comply with health and safety requirements in the future. Further, there is no evidence that Mr Pierce has ever engaged in conduct so that discussions he has held while exercising a right of entry would not be authorised under s. 484 of the Act or any other provision. Mr Pierce and the CFMEU have chosen to progress the dispute in relation to this matter in an entirely appropriate manner by holding discussions and corresponding with BMA representatives and when those discussions did not resolve the dispute, by making an application to the Commission.

6.2 Are the specified locations a room or an area for the purposes of s. 492(3)?

[102] Essentially the question for arbitration requires that the Commission construe s. 492 of the Act in relation to the meaning of the phrase: “any room or area ... that is provided by [BMA] for the purpose of taking meal or other breaks” and to determine whether the specified locations fit that description. As previously noted, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to absurdity or inconsistency with the rest of the statute.

[103] On the ordinary meaning of the words in s. 492 of the Act, for the specified locations to be a room or area within the meaning in s. 492(3) of the Act, they must be “provided” by BMA for “the purpose” of taking meal or other breaks. I agree with the submissions of BMA that the grammatical and ordinary sense of the words “the purpose” in s. 492(3) of the Act indicates that a single, or at least primary purpose facility is contemplated rather than a room or area provided for purposes that include taking meal or other breaks.

[104] It is not sufficient that employees ordinarily take their meal breaks in a particular area or that they are permitted to do so. It is also not sufficient that the area has facilities used by employees for the purposes of storing, heating, preparing or consuming food and drinks or that those facilities are provided by the employer. The term “provided for the purpose” relates to the room or area rather than the facilities in it. The facilities in the room are indicative but not determinative of the purpose or primary purpose for which the room or area is provided. What is required is that the room be provided for the purpose, or primary purpose, of taking meal or other breaks.

[105] There are many work places where facilities such as refrigerators, boiling and cold water, microwaves, toasting and heating appliances and the like are provided by employers in areas which are proximate to or integrated in work areas. These integrated facilities may be provided in circumstances where there are stand alone or dedicated canteens, crib rooms or lunch rooms that are also provided by the employer. Integrated meal areas may be provided for reasons which include maximising the time employees spend on breaks by allowing them to choose to take breaks in or close to their work areas rather being required to walk to areas that are specifically provided for that purposes. Employers may also provide such areas to maximise productivity by minimising the down time associated with employees walking or travelling to dedicated crib areas. It may be beneficial to employees to utilise those areas to maximise the length of meal and other breaks.

[106] Where such integrated facilities are provided, employees may store and prepare food and drinks in those areas and return to their work areas to consume what they have prepared. They may also gather in these areas and have meals and breaks with colleagues. The employer may also provide consumable items in these integrated areas such as tea, coffee, milk, sugar and the like. There may be vending machines from which employees can purchase items to eat or drink.

[107] Whether those facilities are within the meaning of s. 492(3) is a question of fact and degree. Relevant considerations may include:

● The extent to which the area or room in question is integrated into the work area;

● The extent of the facilities provided in the room or area in question for the purpose of storing, preparing or consuming food and drinks compared to other facilities in the room or area or proximate to it;

● The proximity of the room or area in question to other facilities such as toilets, lockers or areas generally required to be accessed by employees during meal or crib breaks;

● Whether the room or area in question is also used for other purposes;

● Whether the removal of facilities for storing, preparing and consuming food and drinks in the room or area in question would result in the room or area having no other use;

● Whether there is an alternative dedicated area provided by the employer for the primary purpose of employees taking meals or breaks such as a crib room, meal room, cafeteria or canteen;

● Whether employees have the option to choose to take their meals or breaks in a number of rooms or areas including rooms or areas integrated into their work areas or separate rooms or areas provided primarily for the purpose of taking meals and other breaks;

● Whether the area or room said to have been provided primarily for the purpose of employees taking their meals or breaks is accessible to employees and is not so remote from their work areas that they have no real option but to use facilities integrated into their work areas; and

● The extent to which discussions can be held in the room or area proposed by a permit holder in a manner consistent with the rights of the occupier and the permit holder and the express and implied limitations on those rights.

[108] In the present case, I am of the view that the specified areas are not rooms or areas within the meaning of s. 492(3). I have reached that conclusion for the following reasons. The evidence establishes that the specified areas are primarily functional work areas. The areas are within operating pieces of equipment. The fact that Draglines are very substantial pieces of equipment of such proportions that they contain an area of the kind in dispute in these proceedings, does not make Draglines any the less pieces of operating equipment.

[109] Draglines are designed and placed on mine leases for the purpose of undertaking mining by removing waste material from coal. The primary purpose of a Dragline is not to house a room or an area in which employees can take crib breaks. That a functional work area on a Dragline has facilities in which employees can store and prepare food and drinks to consume either in the area itself or in the operating cabin of the Dragline, does not make that area an area provided for the purpose of taking meal or other breaks.

[110] It is also the case that if all of the facilities used by employees to store and prepare food were removed from the Draglines, the areas in dispute would still be functional work areas. The evidence establishes that the areas are used by Operators and other BMA employees for the purposes of completing paperwork and undertaking training. BMA employees may have discussions with Dragline Operators about operational matters, within those areas. Only one Operator at a time (or two including a Trainee) can access the area while the Dragline is operating as the other Operator is controlling the Dragline.

[111] The area is also used to display information relevant to the operation and sequencing of the Dragline and this information is confidential. Mr Pierce conceded that the area is used for training and the completion of paperwork, although he maintained that the use of the area for this purpose is limited. In my view, the extent to which the area is used for the purposes of completing paperwork and undertaking training is not determinative. The relevant consideration is that the purpose or primary purpose for which the area is provided is as a work area.

[112] This view is supported by un-contradicted evidence from witnesses for BMA to the effect that, notwithstanding the terms of the Agreement, Operators can choose to have their crib or meal breaks on the Dragline within the specified locations, or they can travel a distance of between two and four kilometres to a mobile crib facility. There was also evidence that BMA provides access to a light vehicle in order that Dragline Operators may exercise their choice to travel to the mobile crib hut for meal or crib breaks or to use a toilet. The mobile crib facility is just that – a room provided for the purpose of employees taking their meals or breaks. The mobile crib facility has a full kitchen while the specified areas on the Draglines have a kitchenette. The mobile crib facility also has toilets and the Draglines do not. Operators wishing to use a toilet instead of urinating by standing on the offside shoe of the Dragline (as Mr Pierce said that they do on occasion) must travel to the mobile crib hut. All of these matters lead to a conclusion that the areas on Draglines are not provided for the purpose of employees taking meal or other breaks.

[113] The fact that employees usually or customarily take their meals or breaks in the areas on Draglines, or that there are facilities provided by the employer for them to do so, does not, in the context of the matters set out above, support a finding that the areas are provided for the purpose of employees taking meals or breaks in them. It is also the case that BMA would be entitled to insist that employees not take their meals or crib breaks in the areas while they were being used for operational purposes or while persons other than the Operators were on the Draglines. The fact that employees and management refer to the areas as crib rooms does not, in these circumstances, support a finding that they are provided by BMA for that purpose.

[114] Accordingly, I am satisfied and find that on 6 September 2014, there was a room or area provided by BMA for the purpose of employees taking their meal or other breaks. There was no reason why employees who wished to do so could not have utilised the light vehicle provided by BMA to travel to the mobile crib room for the purpose of attending discussions conducted by Mr Pierce. BMA was entitled to insist that the areas on Draglines where employees ordinarily take their meal or breaks would not be used by Mr Pierce for the purposes of discussions because the areas are not areas or rooms within the meaning in s. 492(3).

[115] In my view, this construction is consistent with the overall context of Subdivision B of Part 3-4 of the Act in which s. 492 is found and with the provisions of the Act generally. As previously discussed, the right of entry provisions are an encroachment on the rights of the employer or occupier to decide who may enter premises and should be construed so that no greater right is given than that set out in the legislation. Further the provisions must be construed in the context of, and consistent with, express and implied limitations on the right to enter and the purposes for which it can be exercised, encompassing when, where and with whom discussions may be held. The provisions must also be construed so that the rights they are directed to – those of organisations to represent their members in workplaces, members of organisations to be represented and employees to be free to join organisations and to participate in discussions to decide whether they wish to do so or not – can be exercised in a meaningful way.

[116] To find that the specified locations in the Draglines are rooms or areas within the meaning of s. 492(3) would result in an encroachment on the rights of BMA to control access to its premises, including to operating plant. The Draglines would be required to stop operation while Mr Pierce embarked and disembarked. It is not to the point that the Draglines are required to stop when employees, managers or visitors to site invited by BMA access them or that the Draglines would have to cease operating on more occasions if employees disembarked to go to mobile crib rooms for the purpose of attending discussions conducted by Mr Pierce. The operations of the Draglines are a matter for BMA.

[117] Further, I accept BMA’s evidence and submissions that it would be difficult if not impossible for Mr Pierce to hold discussions in the areas on the Draglines in a manner that is consistent with the express and implied limitations on his right to enter premises for that purpose. The relevant areas in the Draglines are small spaces which are used for purposes other than employees taking meal or other breaks. Any BMA employee or manager who sought to enter the area for operational reasons while Mr Pierce was conducting discussions would be placed in very close proximity to Mr Pierce and it is probable that Mr Pierce would have to cease the discussion or the employee or manager who entered the area for operational reasons would need to leave the area. Similarly, if an Operator taking a meal or break in the area, did not wish to participate in discussion with Mr Pierce, either the Operator or Mr Pierce would need to leave the area, or alternatively Mr Pierce and the Operator would probably be in the awkward position of sitting in a confined space in uncomfortable silence, while Mr Pierce waited for the next Operator to enter the area to take a meal or other break to ascertain whether that Operator wished to participate in discussions.

[118] Quite simply there is nowhere for the Operator or Mr Pierce to go in such circumstances. Mr Pierce’s right of entry does not extend to entering the Operator’s cab of the Dragline or to waiting outside the Dragline for an Operator to start a meal or crib break, so that Mr Pierce can enquire whether the Operator wants to participate in a discussion. An Operator who does not wish to participate in discussions should not be required to sit in a confined space with the Union Official who wishes to conduct those discussions and should not have to retreat back to the Operator’s cab during a meal break. I also accept that the partition or door between the Operator’s cabin and the area in which Mr Pierce proposes to hold discussions is not soundproof and would not provide privacy for the Operator who must keep operating the Dragline while the other Operator and/or the Trainee are taking a meal or crib break.

[119] My views in relation to this matter are not a reflection on Mr Pierce. I have no doubt that Mr Pierce would conduct himself appropriately. However, the logistical difficulties of Mr Pierce using the area in the Draglines for the purposes of conducting discussions is indicative of the fact that it is not an area that is appropriate for that purpose. It is not appropriate for that purpose because the area is not primarily provided for the purpose of taking meal or other breaks. While I accept that Mr Pierce as a permit holder has the right to approach employees of BMA to ascertain whether they wish to participate in discussions, and that he is not presently able to do this while employees are taking meal or crib breaks on the Draglines, I do not accept that Mr Pierce can access the Draglines to approach Operators in a manner that is consistent with the express and implied limitations on his rights under Part 3-4 of the Act. To allow Mr Pierce to access the Draglines for the purpose of holding discussions would be to confer rights on Mr Pierce that are additional to or inconsistent with rights exercisable in accordance with Division 2 of Part 3-4, contrary to s. 505(5).

6.3 Was Mr Pierce entitled to hold discussions with employees in the specified locations on 6 September 2014 when exercising a right of entry under s. 484 of the Act.

[120] Given my finding that the specified locations are not a room or an area for the purposes of s. 492(3) of the Act, it is not necessary to answer the second part of the question for arbitration. However, in the event that I am wrong in relation to the answer to the first part of the question, I set out below my answer to the second part of the question and my reasons for giving that answer. In order to answer this part of the question, it is necessary to consider whether it can be said that in the circumstances as they existed on 6 September 2014, that Mr Pierce and BMA “cannot agree on the room or area of the premises in which [Mr Pierce] is to conduct an interview or hold discussions.”

[121] BMA contends that on the evidence before the Commission, the parties have not completed the steps outlined by Deputy President Gostencnik in the Austral Bricks Case and have not reached the threshold of “cannot agree” to enliven s. 492(3) of the Act. The CFMEU contends that all steps of the Recommendation in the Austral Bricks case are not relevant because the facts in that case differed, and a finding was made that a previous discussion conducted by permit holders had occurred in an unauthorised manner.

[122] The CFMEU submits that the appropriate test in the present case is whether there was a genuine attempt to reach agreement. According to the CFMEU, the test is met by Mr Pierce, who considered the proposals put by BMA. This can be contrasted with management of BMA who had a pre-determined position in respect of its Queensland operations that the CFMEU would not be permitted to hold discussions on any Dragline. Mr Gibbons simply followed that predetermined position and the reasons for refusing Mr Pierce access to the Draglines was not related to any unusual feature of Draglines at Caval Ridge. The CFMEU further submits that the evidence establishes that the parties cannot reach agreement and accordingly Mr Pierce was entitled to hold discussions in the Dragline crib room in accordance with s. 492(3).

[123] I do not accept the submission of BMA on this matter. In my view the parties have well and truly reached the threshold of “cannot agree”. Each has proposed a room or area for discussions to occur and has given reasons for proposing that room or area. Each party has allowed the other to consider the proposed areas or rooms and has responded. BMA has put its position to Mr Pierce to the effect that he cannot hold discussions in the areas on the Draglines without interfering with the right of employees to participate in those discussions or to choose not to participate. BMA has also put a proposal to Mr Pierce to facilitate discussions being held in the mobile crib rooms and employees being informed of and accessing those discussions.

[124] Mr Pierce has considered those matters and does not agree with BMA’s proposal or its view that the areas on the Draglines are not appropriate areas for the discussions to occur. Mr Pierce has also provided evidence as to the basis for his disagreement with BMA’s proposal and in relation to how he would conduct himself in order that he would not interfere with the rights of employees to participate or not participate in those discussions.

[125] For the reasons set out above, I do not accept that the Commission is empowered to determine that the view of either Mr Pierce or BMA is unreasonable. The most that can be said is that each holds a view based on a number of considerations, including principle, and it is highly unlikely that either Mr Pierce or BMA will depart from their respective views. Accordingly, I am satisfied and find that in the in the circumstances as they existed on 6 September 2015, Mr Pierce and BMA cannot agree on the room or area of the premises in which Mr Pierce is to hold discussions. The threshold to trigger the default provision in s. 492(3) of the Act has been met. However, for the reasons set out in 6.2 above, the room or area in which Mr Pierce wishes to hold discussions is not a room or area within the meaning in s. 493(3) of the Act and cannot be a default location for that purpose.

[126] For the same reasons, I am of the view that the Commission is not empowered to consider whether it is, or would have been, reasonable that Mr Pierce hold discussions in the specified locations in the Draglines. If I am wrong in reaching that view, I would find that in all of the circumstances it is not reasonable that Mr Pierce conduct discussions on Draglines in the circumstances as they existed on 6 September 2014, for the following reasons. Draglines are inherently unsuitable locations for discussions arising from a right of entry under s. 484 of the Act to be conducted on the basis that they are operating equipment; areas in which the discussions would take place are confined to the extent that a permit holder would not be able to hold meetings in a manner consistent with the express and implied limitations in Part 3-4; and undue operational inconvenience would be caused to BMA.

[127] BMA took steps to ensure that Dragline Operators would have had every reasonable opportunity to attend discussions conducted by Mr Pierce, including advising Operators of his arrival on site and the time Mr Pierce would be available in the mobile crib room; providing a light vehicle for Operators to travel to the mobile crib room to participate in discussions and offering to pay them for time spent travelling. Although I accept that Mr Pierce was not told that employees would be paid for time spent travelling to the crib rooms, the fact remains that BMA has now made this offer. The mobile crib hut was within a reasonable distance of the Draglines on 6 September and there is no evidence of any practical difficulty that would have prevented employee from attending discussions in those rooms.

[128] I accept that Mr Pierce has rights as a permit holder, including the right to approach employees to ascertain whether they wish to participate in discussions. It is also the case that employees may find it inconvenient to leave the Draglines and travel to mobile crib rooms to participate in discussions. Notwithstanding these matters, they do not outweigh the other factors I have identified.

7. CONCLUSION

[129] I therefore answer the question for arbitration as follows:

1. Where a right of entry is exercised under section 484 of the Fair Work Act 2009 (the Act), are the specified locations a ‘room or area’ in which discussions may be held for purposes of subsection 492(3) of the Act?

NO.

2. In all the circumstances, was Mr Pierce entitled to hold discussions with employees in the specified locations on 6 September 2014 when exercising a right of entry under section 484 of the Act?

NO.

DEPUTY PRESIDENT

 1   Exhibit 2 – Agreed Statement of Facts .

 2   Exhibit 1 – Statement of Steve Pierce

 3   Exhibit 3 – Statement of Alan Vincent Vere.

 4   Exhibit 4 – Statement of Alisdair Gibbons.

 5   Exhibit 2

 6   Exhibit 2 “SP-6”.

 7   Exhibit 2 “SP-9”.

 8   Transcript PN172.

 9   Exhibit 5.

 10   (2012) 201 FCR 297 at 310-311.

 11  Grey v Pearson 6 H.L.C. 61 at 106 per Lord Wensleydale; Australian Boot Trades Employees Federation v Whybrow (1910) 111 CLR 311 at 341-342.

 12   Thompson v Goold & Company (1910) AC 409 at 420 per Lord Mersey; Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 at 103 per Northrup and Pincus JJ; Minister for Immigration and Citizenship v Hart (2009) 179 FCR 212 at [6] per Spender J.

 13   Acts Interpretation Act 1901 (Cth) s. 15AA.

 14   Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J.

 15   R v Young (1999) 46 NSWLR 681at 686 per Spigelman CJ.

 16   Australasian Meat Industry Emplyees’ Union v Fair Work Australia [2012] FCAFC 85 per Jessup J at [16] and [17]; Per Flick J at [56] - [59]; Meneling Station v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62 per Keely, Gray and Ryan JJ; Lane v Arrowcrest Group Pty Limited (1990) 27 FCR 427 at 439 to 440 per Von Doussa J.

 17   [2014] FWC 5407.

 18   Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd [2014] FWC 5407 at [26] citing Citibank v Federal Commissioner of Taxation (1988) 19 ATR 1479 at 1481-1482; Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403; Darlaston v Parker and Others (2010) 189 FCR 1 at 13 [44].

 19   [2014] FWC 5407 at [35] to [36].

 20   Ibid at [50].

 21   Ibid at [42] to [43].

 22   Ibid at [59].

 23   [2014] FWC 1674 at [33].

 24   National Union of Workers v Coles Group Supply Chain Pty Ltd [2014] FWC 1674 at [33].

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