| [2016] FWC 3829 [Note: An appeal pursuant to s.604 (C2016/1800was lodged against this decision - refer to Full Bench decision dated16 January 2017 [[2017] FWCFB 217] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.505—Right of entry
Construction, Forestry, Mining and Energy Union
v
BHP Billiton Nickel West Pty Ltd
(RE2015/1627)
COMMISSIONER WILLIAMS |
PERTH, 12 JULY 2016 |
Application to deal with a right of entry dispute.
[1] The decision concerns an application made by the Construction, Forestry, Mining and Energy Union (CFMEU or the applicant) being a permit holder’s organisation pursuant to section 505 of the Fair Work Act 2009 (the Act). The applicant seeks that the Commission resolve a dispute regarding the applicant’s permit holders exercise of right of entry to hold discussions with workers before or after their shifts at premises occupied by BHP Billiton Nickel West Pty Ltd (BHP or the respondent), providing that such discussions are held during the working hours of the premises and the permit holders meet all other statutory requirements.
[2] The respondent is a miner and producer of nickel metal products with a number of sites in Western Australia. It is the occupier of the premises at Kwinana (The Premises), at which nickel matte is refined into nickel briquettes and powder.
[3] The ‘dispute’ in the applicant’s application relates to The Premises, and the applicant’s permit holders seeking to exercise right of entry to hold discussions with employees of two of the respondent’s contractors before and after their shift times.
[4] Following correspondence with the applicant in November 2015, the Commission convened proceedings to determine the following question:
“Can a permit holder exercise a right of entry to hold discussions with workers before or after their shift, provided the discussions are held within the working hours of the premises and all other statutory requirements are met?”
[5] The applicant’s position in its submissions is materially different to that communicated to the Commission on 26 November 2015, on which the Commission relied in exercising its discretion to arbitrate the matter:
(a) On 26 November 2015, Mr Kevin Sneddon, on behalf of the applicant wrote to the Commissioner’s Associate stating, among other things, that “We do not seek the making of any Orders in this matter if the Commissioner was to exercise his discretion [to arbitrate the dispute]”.
(b) On 17 December 2015, the Commission listed the matter for Hearing before Commissioner Williams to determine the question specified in the Directions.
(c) On 29 January 2016, the applicant filed its submissions with the Commission. The submissions state that the applicant seeks an order pursuant to section 505(2) of the Act that:
“Mr Douglas Heath and Mr Troy Smart, being holders under Part 3-4 of the of the Act, are entitled to enter the premises at Kwinana which are occupied by BHP (sic) Nickel West Pty Ltd (The Premises) for the purposes of holding discussions with members or potential members of the CFMEU, before and after their shifts so long as work is being conducted on The Premises at the time such discussions occur.”
[6] Accordingly, these submissions are made on the basis of the applicant’s position as set out in its submissions dated 29 January 2016.
[7] The respondent submits that:
(a) the Commission does not have jurisdiction to hear the matter as there is no relevant dispute between the parties;
(b) further or alternatively, the Commission does not have jurisdiction to hear the matter because it would effectively involve an exercise of judicial power and not arbitral power;
(c) further or alternatively, even if the Commission has jurisdiction to hear the matter, the Commission does not have power to make the order sought by the CFMEU, as this would involve an exercise of judicial power and not arbitral power;
(d) further or alternatively, even if the Commission has power to hear the matter or make the orders sought, it should exercise is discretion not to hear the matter or grant the orders;
(e) further or alternatively, in the event the Commission decides to express an opinion on the matter, the answer to the question for arbitration should be “no”.
[8] The Commission’s jurisdiction is limited to dealing with a ‘dispute’ about the operation of Part 3-4 of the Act. For the Commission to hear the matter there must therefore be a relevant, existing, ongoing dispute.
[9] It is for the applicant to establish that there is a relevant, existing, ongoing dispute. The respondent submits the applicant’s evidence does not establish this. The applicant’s evidence simply speculates that the conditions entitling the applicant’s permit holders to enter The Premises may arise in the future.
[10] To the contrary, the respondent’s evidence demonstrates that there is no certainty of this.
[11] The ‘dispute’ the subject of the applicant’s application arose in October 2015 in relation to the applicant’s right of entry notices to enter The Premises and their requests to hold discussions with employees of Freo Group Pty and Skilled Group Limited trading as ATIVO (ATIVO) before the commencement of their shift or after the conclusion of their shift.
[12] Freo Group Pty Ltd or ATIVO were contractors performing work for the respondent, who is the occupier of The Premises.
[13] The contractors were present on site at The Premises in relation to a scope of work related to a shutdown that commenced on 14 October 2015 and took place over 20 days. The scope of work has therefore concluded.
[14] Further, the applicant is not entitled to represent the industrial interests of any of the respondent’s employees performing work at The Premises.
[15] There is therefore no current, relevant ‘dispute’. The dispute has come to an end, because the contractors’ scope of work on the site has concluded, and the contractors’ employees are, at present, not authorised to access The Premises.
[16] The applicant has not identified any other employees in respect of whom it may be able to exercise rights of entry under the Act.
[17] As there is no ‘dispute’ for the Commission to deal with, the respondent submits the application should be dismissed.
[18] The Commission does not have jurisdiction to hear the matter for two related reasons. First, to do so would involve an exercise of judicial power, for the reasons set out below. Second, the dispute is not about the ‘operation’ of Part 3-4 of the Act and therefore not within the scope of the Commission’s jurisdiction as set out in section 505(1) of the Act.
[19] The distinction between judicial and arbitral power has been explained in a number of cases.
[20] Broadly, the following relevant principles can be distilled:
(a) judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted. It involves making a binding declaration as to the existence, or enforcement, of existing legal rights, or as to the breach of an existing legal obligation;
(b) arbitral power involves the creation of new rights, or ascertaining and declaring, but not enforcing, what the respective rights and liabilities of the parties in relation to each other should be. This is so even if the function is performed in settlement of a dispute relating to past transactions, events and conduct;
(c) in this context, new rights or obligations, created by or arising from orders of the arbitral body made in a particular case, are rights or obligations which did not exist antecedently or independently of the making of the orders;
(d) a claim that a right or obligation should exist may be formulated in a manner which requires the Commission to assume powers which it does not possess;
(e) both judicial and arbitral functions involve a dispute, hearing or investigation and decision;
(f) both judicial and arbitral functions can involve the making of findings of fact and opinions as to the interpretation of laws. The fact that the Commission is involved in making a determination of matters that could have been made by a Court does not automatically mean that the Commission has usurped judicial power. The question will be the purpose for which the determination is made - the power takes its legal character from the purpose for which the inquiry is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations;
(g) some powers take their character from the body in which the power is reposed and the way in which it is to be exercised. If the power to bring a new set of rights and obligations into existence is vested upon a tribunal which is not a Court and policy considerations have a part to play in the tribunal's determination, the power is not judicial;
(h) if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. Conversely, if the ultimate decision may be determined merely by the application of legal principles it is an exercise of judicial power;
(i) a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a 'step' in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties; and
(j) a tribunal’s opinion does not bind the parties and cannot operate as a binding declaration of rights.
[21] In the present case, the question for determination solely involves a question of statutory interpretation - the meaning of ‘other breaks’ in section 490(2) of the Act. This is, in effect, an adjudication of whether the applicant is permitted, under the terms of Part 3-4 of the Act, to enter premises to hold discussions with one or more employees during the period before or after the relevant employees’ shifts. The applicant submits that this period falls within the meaning of the phrase ‘other breaks’; the respondent argues that it does not.
[22] It is therefore a question as to the applicant’s and its permit holders’ existing legal rights under the Act to hold discussions during those times, and as such, is an exercise of judicial power.
[23] The applicant is seeking the vindication of a right, and a declaration to resolve an actual or potential controversy as to existing rights.
[24] Put simply, the applicant’s permit holders either have a right under the Act to hold discussions during those times or they do not. That is a matter of statutory interpretation, which is a judicial function.
[25] Although section 505(4) of the Act obliges the Commission to, in dealing with the dispute, “take into account fairness between the parties concerned”, that policy consideration is not relevant to the issue of statutory interpretation of the meaning of ‘other breaks’. As that is the ultimate question the Commission is called on to determine in the present case, it is an exercise of judicial power and not arbitral power.
[26] The applicant asserts that the determination is in respect of future instances of potential exercises of right of entry by its permit holders. This does not change the fact that it is a determination in relation to the exercise of existing legal rights (albeit at a future time and not an enforcement of past conduct), and does not change the character of the task the Commission is purporting to undertake.
[27] Further, there is no scope for the Commission to “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.” The exceptions set out in section 505(5) of the Act do not apply to the present case.
[28] Section 505(5) of the Act therefore precludes the Commission from creating new rights, or determining what rights should exist.
[29] If the Commission is correct at law in its determination of the question posed, or makes the order the applicant seeks, it would effectively be declaring the existing legal rights of the parties. If the Commission is in error in its determination of the question posed, it would, in effect, be declaring what rights in its opinion should exist, but these would be in addition to the rights under Part 3-4 of the Act. In either case, the exercise of power is impermissible.
[30] Accordingly the respondent submits, the Commission cannot determine the question in the present case. To do so would involve the usurpation of judicial power and is beyond jurisdiction.
[31] The authority in Police and Nurses Credit Society Limited 1 is distinguishable, to the extent it has any continuing application under the Act. This is because, in truth, the applicant is seeking a bare declaration of existing rights, and there is no exercise by the Commission of its dispute resolution function in the nature of the orders sought.
[32] Indeed, the Full Bench in that case agreed that “For example, the Commission cannot give a binding interpretation of an award or agreement where that interpretation is sought for the purpose of enforcing a right said to be created by the award or agreement in question.” The same can be said of interpretations of the Act sought for the purpose of enforcing a right (of entry) said to be created by the Act. The order sought by the applicant clearly seeks either a binding interpretation of the provisions of section 490(2) of the Act, or the creation of a new right which the Commission is clearly not permitted to make because of the terms of section 505(5) of the Act.
[33] Further, in the present case, as noted above, policy considerations cannot play a part as the matter is one purely of statutory interpretation.
[34] It is no doubt correct that “arbitral proceedings may involve the formation of views and opinions about matters of interpretation, including the interpretation of laws, awards and other legal instruments, without the usurpation of judicial power.” But that is not the case here.
[35] Further and in any event, to the extent that it may be submitted that the issue in the Police and Nurses Credit Society Limited case is analogous to the present case, then that case was wrongly decided. For the reasons set out above, the Commission cannot determine what new rights 'should exist' because of the limitation in s 505(5) of the Act.
[36] The:
(a) legislature’s removal in the Workplace Relations Act 1996 of the Commission’s power to authorise entry by others found in the Industrial Relations Act 1988, a position which continues under the Act;
(b) terms of section 505(5) prohibiting the Commission from conferring additional or inconsistent rights; and
(c) prescription that awards and enterprise agreements may not deal with right of entry,
can be viewed as an intention by the legislature that it wished to itself prescribe the circumstances in which entry to premises would be allowed. Therefore, the Commission cannot determine any new rights, or what rights should exist.
[37] For the Commission to have jurisdiction to deal with matter, the dispute must be about the ‘operation’ of Part 3-4 of the Act. The reference to ‘operation’ in section 505(1) of the Act limits the Commission’s jurisdiction.
[38] The question of whether the provisions of Part 3-4 operate is distinct from the question of their operation; that is, the manner in which they operate or how they are to be applied. The term ‘operation’ is section 505(1) of the Act should be read as limited to the latter.
[39] This is consistent with the limitation on the Commission’s powers in not conferring any additional rights to those already in existence under the Act.
[40] The sole issue in dispute in the present case is whether the applicant’s permit holders have a right to hold discussions before or after shift times; that is, whether that period falls within the meaning of ‘other breaks;’ in section 490(2) of the Act. The dispute is therefore not about the ‘operation’ of Part 3-4 of the Act, but a dispute about the preliminary question of whether the provisions even operate.
[41] It is therefore outside the scope of the Commission’s jurisdiction, and accordingly the respondent submits, the application should be dismissed.
[42] Section 505(2) of the Act authorises the Commission to relevantly “deal with the dispute by arbitration, including by making one or more of the following orders: ..... (e) any other order it considers appropriate.”
[43] However, section 505(5) of the Act specifically provides that “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.”
[44] The scope of the Commission’s power to make orders is therefore confined.
[45] Further, it is also confined by the nature of the Commission as an arbitral body and not a Court.
[46] The extent of the Commission’s powers are limited to issuing orders consistent with (but not enforcing) the existing rights and obligations under the Act, or imposing obligations on permit holders or other relevant parties (predominantly employers or occupiers) in relation to the exercise of the rights or obligations under the Act. This interpretation is consistent with the examples of orders the Commission may make set out in subsections 505(2)(a)-(d) which broadly relate to entry permits and may be characterised as imposing obligations or restrictions on permit holders.
[47] The applicant is, in effect, seeking a binding declaration of the legal rights of the parties, or mandatory injunctive relief enforcing its permit holders' existing legal rights in relation to future rights of entry it may or may not exercise. Such remedies are judicial remedies and beyond the Commission’s power.
[48] The order, if made, would have the effect of binding the parties by reason of section 506 of the Act, which makes it an offence subject to civil penalties to contravene an order made under section 505(2) of the Act.
[49] In truth, the applicant is seeking a bare declaration of rights. Such a declaration would involve a purported use of judicial power. Any orders sought that require parties to comply with obligations already arising under the Act do not involve the exercise of arbitral powers and are beyond jurisdiction.
[50] Even if the Commissions determines that it has power to hear the matter or grant the orders sought, for the same reasons set out above, the Commission should exercise its discretion not to do so.
[51] The respondent contends that the Commission does not have jurisdiction to hear the dispute as this will involve it exercising the judicial power of the Commonwealth. Alternatively, it says that even if the Commission has jurisdiction to hear the dispute, the orders sought by the CFMEU would involve an impermissible exercise of judicial power. The applicant deals with both these contentions together.
[52] It is trite that the exercise of judicial power involves the ascertainment, declaration and enforcement of existing rights and liabilities arising from the operation of law upon past events or conduct. Judicial power thus encompasses the quelling of controversies about extant rights and the enforcement of any decision made to settle disputes about existing rights. Quintessential examples of exercises of judicial power include determination of whether a person has or has not contravened a law of the Commonwealth, and the award of damages or grant of injunctory or declaratory relief to vindicate or remedy breaches of existing legal rights. It is patent from the foregoing that the CFMEU’s application does not involve an exercise of judicial power by the Commission.
[53] The CFMEU does not (and indeed cannot under section 505 of the Act) seek:
[54] Instead, the CFMEU seeks an order to resolve a dispute about the operation of Part 3-4 of the Act arising from the respondent’s past and ongoing conduct in disallowing its permit holders from exercising right of entry to have discussions with employees who are members or potential members of the CFMEU. This order will operate prospectively. It is not directed to the antecedent conduct of the respondent and the Commission is not called upon to ascertain or enforce any antecedent rights the CFMEU may have. Additionally, it cannot be enforced by the Commission. It follows that the Commission will not be exercising judicial power if it determines the CFMEU’s application.
[55] Contra-distinctly to judicial power, arbitral power involves the creation of rights and obligations. Discharge of arbitral power can (and regularly does) involve determination by an arbitral tribunal of what legal rights and obligations currently or previously existed as a ‘factum’ or preliminary step in the resolution of a dispute by the creation of rights and obligations. An arbitral determination can and often involves interpretation of the law (including construing statutes) and resolution of factual matters. Whether a function is judicial or arbitral depends in large part on the object of an exercise of power. If the object is to ascertain what rights and obligations should be created, as opposed to resolving what rights and obligations did (or do) exist, the power will be arbitral.
[56] Applying these basal principles, determination of the CFMEU’s application and making of the orders sought by the CFMEU involves an exercise of arbitral power as the Commission will be creating new rights and obligations that will regulate the relationship of the parties moving forward. The mere fact the Commission is called upon to interpret section 490(2) of the Act or give consideration to past conduct of the respondent does not convert the exercise of power from one of arbitral to judicial power. These determinations are but factums or preliminary steps to the exercise of arbitral power.
[57] The character of the Commission also points squarely to the power under section 505 of the Act not being judicial in nature. The Commission acts inquisitorially in discharge of its functions. It is not bound by the rules of evidence and procedure and can deal with disputes (including the current dispute) by mediation, conciliation, or by making a recommendation or expressing an opinion. These powers and procedures are not available to Courts created under Chapter 3 of the Constitution.
[58] Moreover, the Commission does not, like a Chapter 3 Court, exercise its power under section 505(2) by reference solely to the application of law to past events or conduct. It is obliged to have regard to matters of policy including: fairness between the parties, promotion of harmonious and cooperative workplace relations, workplace diversity and the Objects enshrined in sections 3 and 480 of the Act. These factors must be considered in ascertaining whether to grant the relief sought by the CFMEU. Consideration of such broad, vague and general policy matters and criteria is a hallmark of arbitral power.
[59] Significantly, and distinctly from a Court, the Commission can also instigate a dispute under section 505 of the Act. This is a further pointer against the Commission exercising judicial power under section 505.
[60] Furthermore, these jurisdictional objections have been run and lost on numerous occasions in Commission proceedings. Peculiarly, scant regard is had for this jurisprudential reality in the respondent’s submissions.
[61] Commissioner Booth determined that an application under section 505 by The Maritime Union of Australia (MUA), in which the MUA sought an order that it was entitled to represent the industrial interests of certain of the respondent’s employees and was obliged to allow its permit holders to enter its premises so long as they adhered to the requirements of Part 3-4 of the Act, involved an exercise of arbitral not judicial power. The Commissioner rejected contentions by the employer that the relief sought by the MUA - which was directly analogous to that sought by the CFMEU in the current case - was declaratory or injunctory in nature. She concluded that the MUA was not seeking a retrospective determination about rights and liabilities arising from past conduct, but the creation of future rights and obligations to settle a dispute. Likewise with the CFMEU in the present matter.
[62] The Commissioner’s analysis was premised on the decision of a Full Bench of the AIRC in Police and Nurses Credit Society Limited, which concerned the predecessor provision to section 505 under the Workplace Relations Act 1996. It is noteworthy that the then section 285G was in analogous terms to section 505 of the Act. A jurisdictional objection (mirroring that of the respondent in the present matter), which sought to characterise the applicant union’s application as seeking to have the Commission exercise judicial power as bald claim that it had a right to enter premises, and an attempt to enforce that right, was rejected by the Full Bench. The Commission noted that, having regard to the entirety of the factual background of the matter, the matter called for resolution of a dispute by the Commission ascertaining what rights and obligations should exist in futuro; not a determination of what the rights and obligations of the parties were arising from their antecedent conduct.
[63] The respondent makes the bald assertion that the current case is somehow distinguishable from Police and Nurses Credit Society Limited. This unreasoned averment is untenable. Police and Nurses Credit Society Limited involved the Commission determining whether classes of employees fell within the terms of a union’s rules. That exercise involves determination of a legal question (being the true construction of a union’s rules) and the application of facts as found to a legal standard. Police and Nurses Credit Society Limited also involved the applicant union seeking (and obtaining) an order that regulated the relationship between the parties into the future. This is on all fours with the present matter.
[64] The respondent’s further attempt to surmount that Police and Nurses Credit Society Limited is to assert either that it does not have ongoing application under the Act or was wrongly decided. These threadbare contentions have, in fact, been definitively disposed of by a Full Bench of this Commission in an appeal of Commissioner Booth’s decision. 2 In refusing permission to the employer to appeal, the Full Bench remarked on the continuing applicability of Police and Nurses Credit Society Limited, concluding at [14] that:
“Although the decision was made in the context of the provisions of the Workplace Relations Act, the provisions in the current Act are sufficiently similar such as to render that decision of continuing applicability.”
[65] Furthermore, the Commission has recently applied Police and Nurses Credit Society Limited and dismissed jurisdictional objections akin to that raised by the respondent in National Union of Workers 3 and Maritime Union of Australia.4
[66] Whilst the Commission is not bound by the doctrine of stare decisis in regards to other decisions of the Commission (whether constituted by a single member or a Full Bench), it is submitted the Commission should not depart from Full Bench decisions as a matter of policy and sound administration in the absence of cogent reasons. No cogent reasons have been advanced by the respondent in the current case.
[67] The analysis in Police and Nurses Credit Society Limited and Bechtel are compelling and of direct application to the present matter. They provide a complete answer to the respondent’s jurisdictional objections in respect to the application generally and specifically in relation to the relief sought by the CFMEU.
[68] An illuminating analysis of a jurisdictional objection that the Commission would be exercising judicial power by determining an application under section 505 of the Act is the decision of Bechtel (Western Australia) Pty Ltd v CFMEU (Bechtel WA) 5. Bechtel WA concerned an application by an employer for orders under section 505 arising from alleged conduct by a permit holder in exercise of rights under Part 3-4. A jurisdictional objection that the Commission would be exercising judicial power by determining the employer’s application was rejected by McCarthy DP on the basis that whilst the permit holder’s conduct could be labelled a breach or contravention of the Act, the dispute, in reality, concerned the future conduct of the permit holder. So much was manifest from the nature of the orders sought by the applicant. His Honour noted, relevantly, that:
[69] The dispute in the present matter is, in reality, about whether there is a probability that BHP’s future conduct will be contrary to Part 3-4 and what orders the Commission should take to regulate the future relationship between the parties. This involves an exercise of arbitral power. That the Commission is called upon to interpret section 490(2) to resolve the dispute does not convert its resolution into an impermissible exercise of judicial power. Resolution of the meaning of ‘other breaks’ under section 490(2) is but a preliminary step in resolution of the dispute by arbitration.
[70] The respondent also seeks to assert, somewhat obliquely, that the Commission will not be exercising arbitral power because it cannot, by force of section 505(5), create any new rights or obligations. This conveys a misapprehension of section 505(5). All that section does is determine that any rights and obligations created by exercise of arbitral power under section 505(2) cannot be additional to or inconsistent with rights exercisable under Part 3-4. It was held to be irrelevant in Police and Nurses Credit Society Limited that the terms of the order there made were largely a restatement of some of the provisions of the then Act. Similar orders were made by the Commission in Bechtel Constructions, TWU v Queensland Properties Investment, National Union of Workers and Maritime Union of Australia.
[71] The respondent has not considered the later cases in its submissions nor asserted that Police and Nurses Credit Society Limited was wrong on this point. Acceptance of the respondent’s contention would have the calamitous result of emasculating the powers of the Commission under section 505(2) of the Act. This extraordinary submission has been explicitly disclaimed by the Commission on a number of previous occasions and should be rejected in the present matter.
[72] Finally, the respondent complains that any order made would bind the parties by reason of section 506 of the Act. With respect, this submission is confounding. Orders of the Commission are not binding on the parties in the sense that the Commission is able to enforce them. They result in the creation of new rights and obligations, breach of which can be enforced in a Court. That an order of the Commission can be enforced in a Court does not mean the Commission is exercising judicial power. This bifurcated situation is simply the result of the doctrine articulated by the majority of the High Court in Boilermakers. It would follow from the Respondent’s analysis that the Commission exercises judicial power in circumstances where a person must comply (on pain of exposure to a civil penalty) with, for instance:
because failure to do so may result in Court action to enforce these rights. This is absurd and illogical. This is exactly what is supposed to occur by reason of the Boilermakers doctrine.
[73] In all the circumstances, the respondent’s jurisdictional objection that the Commission will be impermissibly exercising judicial power by hearing the matter should be rejected. It is premised on a mischaracterisation of the nature of the orders sought by the CFMEU, a misapprehension of the Commission’s jurisdiction under section 505 of the Act and a failure to consider authority directly on point and counter to this objection.
[74] The respondent next says that the dispute is about how Part 3-4 operates not about its operation. This pedantic parsing is without substance and premised on a distortive reframing of the CFMEU’s application. What the term ‘operation’ means was considered by Cloghan C in Maritime Union of Australia to mean “operating or being operated, working, action, way things work...discharge of function”. It is incontrovertible that the CFMEU made application to exercise right of entry under Part 3-4 of the Act prior to employees commencing their shifts and that this was and continues to be resisted by the Respondent. The CFMEU’s claim and respondent’s refusal satisfy the jurisdictional prerequisites of there being a ‘dispute about the operation of Part 3-4’. It does not appear in issue that the orders sought by the CFMEU have a relevant nexus to the ongoing dispute between the parties.
[75] Further, the respondent asserts that the sole issue is whether the applicant’s permit holders can meet with members or potential members prior to the commencement of their shifts. With respect, this is incorrect. The principal issue is whether the Commission ought to make orders in the terms sought by the CFMEU, namely that two of its permit holders are entitled to enter the respondent’s premises before or after employees’ shifts to conduct discussions. Whether the Commission makes the orders sought is not dependent exclusively on determination of the preliminary question of the meaning of ‘other breaks’ under section 490(2) of the Act. It is contingent also on an assessment of the evidence and consideration of: fairness between the parties, the promotion of harmonious and cooperative workplace relations, workplace diversity and the Objects enshrined in sections 3 and 480 of the Act.7. In any event, as Maritime Union of Australia makes clear, even if the dispute were solely about whether the applicant’s permit holders were able under Part 3-4 to meet with members or potential members before they started their shifts, this would still be a dispute about the operation of Part 3-4. Hence the dispute is about the operation of Part 3-4.
[76] The respondent’s success on this point depends on wrongly recasting the matter as one in which the CFMEU is seeking a bare declaration of right. It is not. It is seeking the making of an order that will prospectively regulate the behaviour of the respondent, having regard to the matters outlined above. For those reasons the applicant submits the respondent’s objection on this ground should be rejected.
[77] The applicant seeks an order pursuant to section 505(2) of the Act that:
“Mr Douglas Heath and Mr Troy Smart, being permit holders under Part3-4 of the Act, are entitled to enter the premises at Kwinana which are occupied by BHP Billiton Nickel West Pty Ltd (The Premises) for the purposes of holding discussions with members or potential members of the CFMEU, before and after their shifts so long as work is being conducted on The Premises at the time such discussions occur.”
[78] The issue for determination is whether the permit holders, who are officials of the applicant, can enter The Premises for the purposes of holding discussions under section 484 of the Act prior to and after employee’s shifts, whilst work is being conducted on The Premises.
[79] The dispute arose after BHP, which is the occupier of The Premises, at which members and potential members of the applicant perform work for various employers, in October 2015 did not allow Mr Heath and Mr Smart, who are permit holders employed by the applicant, to enter The Premises and hold discussions with members and potential members before the commencement of their shifts.
[80] The matter hinges, in large part, on the meaning of expression ‘other breaks’ under section 490(2) of the Act. This discrete matter is not one that has received consideration by the Commission or Federal Court before. In relation to section 761 of the Workplace Relations Act 1996, which was the predecessor provision to section 490(2) of the Act, the Australian Industrial Relations Commission in Australian Municipal, Administrative, Clerical and Services Union v Australian Taxation Office (ASU v ATO) 6 determined that ‘other breaks’ should be construed such that permit holders could enter premises to hold discussions with employees at times when employees were present on premises and had not started work or had finished work, so long as such discussions occurred during the working hours of the employer’s establishment.
[81] Section 490 of the Act is in the following terms:
“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 entry.”
[82] It is noted that section 484 is contained in subdivision B of Part 3-4 of the Act, hence section 490(2) applies to exercises of right of entry powers under section 484.
[83] In ascertaining the meaning of ‘other breaks’, it is important to recall the precepts of statutory construction:
[84] In ascertaining the meaning of ‘other breaks’, the purpose of Part 3-4 enshrined by section 480 must, it is submitted, be at the forefront of the Commission’s mind. Section 480 prescribes that Part 3-4 of the Act seeks 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 and hold discussions with potential members;
(b) the right of employees to receive (whilst at work) information and representation from officials of organisation;
(c) the right of occupiers and employers to go about their business without undue inconvenience.
[85] The adjective undue, which conditions ‘inconvenience’, is also of significance. The Macquarie Dictionary defines it to mean “unwarranted, excessive, too great; not proper, fitting or rights, unjustified...” The use of this word connotes that the legislature conceived that the common law rights of occupiers and employers could be curtailed or impinged upon to a degree that did, in fact, occasion inconvenience; so long as any inconvenience was not undue, that is, excessive, unjustifiable or improper.
[86] Section 490 is one of a number of provisions of Part 3-4 of the Act that conditions the manner of the exercise of the power conferred by section 484. These other provisions which, amongst other things: delimit where discussions can be held; require the provision of entry notices; mandate the production of authority documents; and preclude the entry into parts of a premises that are used mainly for residential purposes, comprise a suite of measures designed to ensure that occupiers and employers are not unduly inconvenienced by permit holders exercising right of entry powers. It is apparent from the Objects enunciated by section 480 that these restrictions are designed to facilitate the right of occupiers and employers to conduct their operations without undue inconvenience. These curtailments are important matters to consider when the Commission moves to ascribe meaning to the phrase ‘other break’.
[87] The verb ‘to break’ is defined by the Macquarie Dictionary as “to destroy the regularity of”. The noun ‘break’ is defined to mean, variously, “a forcible disruption or separation of parts”; “an interruption in continuity; suspension, stoppage”; “a brief rest, as from work, especially a midmorning pause, usually of fifteen minutes between school classes”.
[88] The ordinary meaning of break therefore is a gap, interruption or suspension of an activity. In the present context a break encompasses any interruption from, or suspension of, work. A ‘break’ would thus include a lunch break, the time between the conclusion of a working day and the commencement of another working day and times when work is, for whatever reason, not being performed. So much was recognised by the Commission in respect to forerunner provision of section 490(2) in ASU v ATO where Lawler VP held that “the term “breaks” refers to any break in work permitted by, or required of, the employer”. His Honour’s interpretation is germane to the present provision and should be followed.
[89] The adjective ‘other’ that precedes ‘break’ in section 490(2) is deployed to illustrate that an ‘other break’ stands in contradistinction to ‘mealtimes’. ‘Mealtimes’ (noting the legislature’s use of the plural) captures times set for meals. Hence, on the face of section 490(2), an ‘other break’, it is submitted, is a break that does not involve or include a time when an employee is scheduled to have a meal of some sort. It is therefore a break where an employee does not cease work for the purpose of obtaining sustenance.
[90] In considering the meaning of ‘other break’ a further salient contextual indicator is section 490(1), which imposes a temporal limitation on the right to exercise the power of entry to hold discussions, to the holding of discussions only during working hours. The expression ‘during working hours’ is of significance in this regard.
[91] ‘Work’, according the Butterworths Legal Dictionary, refers to “effort or energy exerted to achieve a result; labour”. ‘Working’, according to the Macquarie Dictionary, captures the “act of a person or thing that works”.
[92] The ordinary meaning of ‘working hours’ thus encompasses the time during which an employer or any other person is conducting work. Lawler VP adopted this interpretation in ASU v ATO. This entails that a permit holder cannot enter premises when a site is closed or an employer is not undertaking any operations, but can enter during the site’s operating hours.
[93] In the case at hand, The Premises ordinarily operates 24 hours per day. ‘Working hours’ in regards to The Premises are, thus, usually all hours of the day.
[94] It follows that if employees are on site prior to or after work, so long as they are not working, they will be on a break from work during working hours. They will thus, the applicant submits, be on an ‘other break’.
[95] It cannot be said in the circumstances of the present case (or generally) that the holding of discussions prior to and after the conclusion of the employee’s shifts whilst work is ongoing on a work site will unduly inconvenience an employer or occupier’s in the conduct their business. There will be no impairment of the right of an occupier or employer to go about their business any more than if discussions were held during morning tea, lunch, dinner or other meal times; as no interruption in the employee performing work occurs. Allowing permit holders to exercise rights of entry to hold discussions with workers prior to commencing their shifts hence does not (and indeed cannot) cause an employer or occupier undue inconvenience.
[96] Additionally, section 484 of the Act, which limits right of entry to hold discussions with employees to employees who perform work at particular premises, supports the construction contended for by the applicant. In section 484, the legislature has not utilised the term ‘performing work’, which would be indicative of right of entry to hold discussions being exercisable only in respect to workers who are actually performing work on premises at the time the right of entry power is exercised. Hence, the plain and ordinary meaning of ‘other breaks’ encompasses times before and after shifts whilst employees are present on site and work is being conducted on site.
[97] Lastly, as the evidence filed on behalf of the applicant in this proceeding makes clear, it is imperative in the context of the present matter for officials of the applicant to effectively represent members and/or potential members for discussions to be held before and/or after the conclusion of employee’s shifts. This will facilitate employees being able to receive relevant information and representation from officials of the applicant. Hence, the holding of discussions prior to and after the performance of work facilitates and enhances the rights of employee organisations and employees in accordance with section 480(a)-(b).
[98] The plain and ordinary meaning of ‘other breaks’, contended for above, is bolstered by the Explanatory Memorandum to the Act. Clauses 1960-1963 of the Explanatory Memorandum deal with section 490. They provide as follows:
“This clause specifies the time during which entry rights under this Division can be exercised.
Entry to premises to hold discussions or to investigate a suspected contravention may only occur during working hours (see subclause 490(1)). Working hours refers to the actual operating hours of the premises that the permit holder wishes to enter. In addition, permit holders may only enter on a day specified in the entry notice or the exemption certificate for the entry (see subclause 490(3)).
When entering for discussion purposes under Subdivision B, a permit holder may only hold the discussions during meal times or other breaks (subclause 490(2)). Discussions cannot occur during paid work time. An example of other breaks would include holding discussions· before or after an employee’s shift, provided the discussions are held within the working hours of the premises.
If a permit holder seeks to hold discussions outside break times, she or he would not be authorised to enter or remain on the premises because of the operation of clause 486.” (Emphasis added)
[99] Section 15(1)(a) of the Acts Interpretation Act 1901 (AI Act) provides that recourse to extrinsic materials (such as Explanatory Memoranda) may be had to, relevantly, confirm that the meaning of a provision is the ordinary meaning of the text (taking into account the context in which it appears in an Act and the Act’s Object and Purpose). It is submitted that it is proper for the Commission to have regard to the Explanatory Memoranda in the current case.
[100] It unequivocally supports the above outlined construction of ‘other breaks’. It demonstrates that:
[101] Additionally, it is a precept of statutory construction that a Court must have regard to the existing state of the law when considering the meaning of a statutory provision. The legislature is taken to have been aware of Lawler VP’s analysis of the antecedent section 761 when crafting section 490(2). Given that no steps were taken by the legislature when the Act was passed to amend section 490(2) to any substantive extent it is presumed that the legislature intended that the section have the meaning ascribed to it by his Honour. So much is also patent from the terms of the Explanatory Memorandum.
[102] Hence, pursuant to section 490 of the Act, permit holders of the applicant are able to exercise right of entry powers before and after members and potential members shifts to hold discussions with members or potential members, so long as this occurs during the operational hours of the relevant premises.
[103] The applicant submits that the Commission ought exercise its discretion and make an order under section 505(2) of the Act to resolve the present dispute by making an order in the terms sought.
[104] Fairness between the parties, for the purposes of section 505(4) of the Act impels the making of such an order.
[105] The applicant submits no tangible or discernible unfairness will accrue to the respondent if the Commission makes an order in the terms sought. Conversely, significant prejudice has been experienced by the applicant and its members and potential members by the attitude taken by the respondent that precipitated the current dispute and will continue be experienced by the applicant and its members and potential members, for the reasons outlined in the applicant’s evidence, if an order in the nature of the order sought is not made by the Commission. Such an order will operate to regulate and clarify the rights and obligations of the parties in future by determining the times at which permit holders can access The Premises in exercise of the power under section 484 of the Act.
[106] The issue in this case is what is the meaning of the phrase ‘other breaks’ in section 490(2) of the Act, and whether it includes the period before or after a relevant employee’s shift.
[107] The accepted principles of statutory construction were set out by Justice Flick in J.J. Richards & Sons Pty Ltd and Another v Fair Work Australia and Another. 7 These are summarised below:
(a) In construing the relevant statutory provisions, the “golden rule” of the common law is that “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no farther”.
(b) The “golden rule” is also applied to avoid construing legislation so as to produce patently unintended or absurd results.
(c) The common law also recognises that “[i]t is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do”.
(d) Further, a construction of a statutory provision is to be preferred “that would best achieve the purpose or object of the Act”. This requires a Court to construe the Act and not to re-write it in light of its purpose.
[108] The starting point is the text of the legislation. The proper approach requires the meaning of the words to be determined by reference to the language of the instrument viewed as a whole.
[109] Specifically this requires the interpreter to examine at the very least the sentence, often the paragraph, and preferably the immediately surrounding provisions, if not a wider review of the entire statutory context, to identify the meaning of the words in the context in which they are used.
[110] The applicant has referred to paragraphs 1960-1963 of the Explanatory Memorandum to the Act in support of its interpretation of ‘other breaks’.
[111] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), 8 Hayne Heydon, Crennan and Kiefel JJ observed (at [47]):
“The task of statutory interpretation must begin with a consideration of the text itself. Historic consideration and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (Emphasis added, references omitted)
[112] Further, in Saeed v Minister for Immigration and Citizenship, 9 French CJ and Gummow, Hayne, Crennan and Kiefel JJ concluded that “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation”.
[113] This is consistent with the requirement is section 15AB of the AI Act, which provides:
“15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
…
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.”
[114] The relevant paragraphs of the Explanatory Memorandum do not provide any guidance on the Purpose or Object of the Act and therefore cannot be referred to under the auspices of section 15M of the AI Act. They merely provide an example of what may be considered to be ‘other breaks’ - that is, the paragraphs go to the meaning of the phrase ‘other breaks’.
[115] The applicant seeks to use the Explanatory Memorandum to confirm the meaning it argues for. Whilst the Commission may refer to the Explanatory Memorandum, even if the provision is clear on its face, it can only do so to confirm the ordinary meaning of the provision. It cannot alter the interpretation that the Commission, without reference to those materials, would place upon the provision.
[116] Put another way, in order that a reference to extrinsic materials may have the potential to change an interpretation of legislation which would otherwise have been arrived at, it is necessary for the Commission to conclude that one of the conditions is section 15AB(1)(b) of the AI Act has been met. That means the Commission must conclude, without taking account of any materials not forming part of the Act, that the provision in question is ‘ambiguous’ or ‘obscure’, or that, taking account of its context and underlying Purpose or Object, the ordinary meaning leads to a result that is ‘manifestly absurd’ or ‘unreasonable’.
[117] In the present case, there is no proper recourse to the use of the Explanatory Memorandum as there is no relevant ambiguity or obscurity in relation to meaning of the phrase ‘other breaks’ in section 490(2) of the Act. Indeed, to do so would displace the clear meaning of the text.
[118] Further, the construction advanced by the respondent would not lead to a conclusion that is manifestly absurd or unreasonable. Indeed, for the reasons set out below, the applicant’s interpretation leads to such a result.
[119] Finally, many cases have warned that care should be taken in relying on extrinsic materials which purport to state an intention as to the meaning of the words of the legislation.
[120] Although the Commission may refer to the Explanatory Memorandum, it cannot alter the ordinary meaning of the phrase ‘other breaks’.
[121] The first step is therefore for the Commission to determine, using the principles of statutory construction noted above, the ordinary meaning of the phrase ‘other breaks’, having regard to the Purpose or Object of the Act and the relevant context.
[122] The legislative provisions governing the right of entry by permit holders are set out in Part 3-4 of the Act. Part 3-4 of the Act sets out the limited circumstances in which permit holders have a legal right to enter the premises of occupiers.
[123] Occupiers or employers may agree to provide access to permit holders which are in excess of the legislative rights in Part 3-4 of the Act. Equally, they may seek to provide right of entry solely in accordance with Part 3-4 of the Act.
[124] Any practice by occupiers or employers which is in excess of the legislative regime is irrelevant to the task of interpretation of the meaning of the legislative provisions giving statutory rights of entry.
[125] The Object of Part 3-4 of the Act is as follows:
“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.”
[126] Right of entry is granted in respect of specific purposes, which are set out in Division 2 of Part 3-4 of the Act. Relevantly to the present case, a right of entry for the purpose of holding discussions with one or more employees is contained in section 484 of the Act (Subdivision B of Division 2), which 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.”
[127] The right of entry given to permit holders, including under section 484 of the Act, is not unfettered. The right is subject to express and to implied constraints. The express constraints and obligations on permit holders are set out in Subdivision C of Division 2 and Division 4 of the Act. Prohibitions on other persons are also set out Division 4 of the Act.
[128] In particular, discussions must only be held in accordance within the timing constraints contained in section 490 of the Act.
[129] Section 490 of the Act 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.”
[130] Additionally, permit holders must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health or safety requirement that applies to the premises.
[131] Further, the right of entry conferred on a permit holder by section 484 of the Act should not be construed as giving any greater right than that which is necessary to achieve the statutory purpose, namely to permit a permit holder to hold discussions with particular employees during their meal time or other breaks. The statutory purpose is not to maximise the productivity of union organisers or to permit entries at times that might be convenient for them, or because other employers might permit entries at such times, even though they are not lawfully required to do so.
[132] The general notion of right of entry was accurately described by Flick J in Australasian Meat Industry Employees' Union v Fair Work Australia, 10 as follows:
“[56] The right of entry conferred by s 484 is thus not an untrammelled right. It is a right subject to both express and implied constraints. One express constraint is that the right of a permit holder is one that must be exercised for one or other of the “purposes” set forth in s 484. Another express constraint is that the right of entry is subject to any "reasonable request" that may be made by the occupier of the premises that the permit holder seeks to enter. A further express constraint is that contained within s 490(2) limiting discussion to meal and lunch breaks. An implied constraint is that the right must be exercised so as to promote the object of Pt 3-4 as set forth in s 480.
[57] Like other rights of entry conferred by the Fair Work Act (cf Darlaston v Parker [2010] FCA 771 at [36]-[38], 189 FCR 1 at 11), s 484 is a statutory right which diminishes the common law rights of an occupier.
[58] These rights of an occupier of property have long been cherished. Thus, in Semayne’s Case (1604) 5 Co Rep 91a ; 77 ER 194 at 194 it was said that:
The house of every one is his castle ...
The Earl of Chatham is reported as saying:
The poorest man may in his cottage bid defiance to al/ the forces of the Crown. It may be frail- its roof may shake - the wind may blow through it – the storm may enter - the rain may enter - but the King of England cannot enter - all his forces dare not cross the threshold of the ruined tenement.
Comparatively (much more) recently, in Entick v Carrington (1765) 19 St Trials 1029 at 1066 Lord Camden LCJ observed that:
By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing ... If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him ...
This basic principle has been carried forward in time: eg, Southam v Smout [1964] 1 QB 308 at 320 per Lord Denning MR And it is not a principle confined to the history of England - it is a principle which continues to apply with equal force in Australia today:
eg, Plenty v Dillon (1991) 171 CLR 635 at 639 per Mason CJ, Brennan and Toohey JJ.
[59] Sections 484 and 492 of the Fair Work Act thus presumably reflect the balance sought to be struck by the Legislature between the common law rights of an occupier and the rights of entry necessary to promote the objects of Pt 3-4. Attempts to strike a balance between potentially competing rights have frequently arisen in an industrial law context. Thus, when construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth) , in Meneling Station Pty Ltd v Australasian Meat Industry Employees' Union (1987) 18 FCR 51 at 61 to 62, Keely, Gray and Ryan JJ observed:
The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.
See also: Lane v Arrowcrest Group Pty Limited (1990) 27 FCR 427 at 439 to 440 per von Doussa J.”
[133] Further, Flick J went on to state:
“[63] There is much to be said for the view that the statutory right of entry conferred on a permit holder by s 484 should not be construed as conferring any greater right than is necessary to achieve the statutory objective. The common law rights of an occupier, on this approach, are only to be diminished to the extent absolutely necessary to give effect to the right conferred.” (Emphasis added)
[134] Similarly, in The Australasian Meat Industry Employees Union 11, the Full Bench stated at [13]:
“The right of entry scheme established by Part 3-4 of the Act confers upon a permit holder a statutory right to enter business premises of an employer or occupier. As such it is an encroachment on the right 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.” (Emphasis added)
[135] In Construction, Forestry, Mining and Energy Union v Fair Work Commission 12, the Full Bench stated at [27]:
“Part 3-4 provides statutory rights of entry, for purposes specified in the Part, which encroaches on the legal rights of occupiers of property. As a result, and consistent with the objects of the Part, the statutory rights of entry are qualified by conditions attached to it and prohibitions in respect of the conduct of permit holders exercising the statutory rights.”
[136] Accordingly, the purpose of sections 484 and 490 of the Act is to strike a balance between the competing rights of the occupier’s common law property rights and the rights of employees to receive, and permit holders to provide, information and representation at work.
[137] The encroachment on an occupier of their common law rights is in itself an ‘undue inconvenience’. In the case of the respondent, this is particularly so given its strict site access protocols necessary given the nature of The Premises. This is an unwarranted interference with the respondent where the employees the applicant’s permit holders seek to hold discussions with are not even the respondent’s employees, but the employees of contractors.
[138] The phrase ‘other breaks’ is not defined in the Act.
[139] The respondent agrees that the term ‘other’ in ‘other breaks’ connotes that the purpose of the break can be for a purpose other than to take a meal.
[140] Guidance as to the ordinary meaning of the phrase ‘other breaks’, and in particular the word ‘breaks’ in ‘other breaks’, can be drawn from the dictionary.
[141] The noun ‘break’ is defined, relevantly, in the Macquarie Dictionary to mean:
“36. to stop work, etc., especially temporarily: we'll break for lunch at 1.00 p.m
65. a brief rest, as from work, especially a midmorning pause, usually of fifteen minutes, between school classes.”
[142] Similarly, the Oxford Dictionary defines ‘break’ to mean, relevantly:
“e. A short interval between lessons, usu. in the middle of morning or afternoon school.
Also transf Cf. coffee-break n. at coffee n. Compounds 2, tea-break.”
[143] The ordinary meaning of the term, read in context, should therefore be construed as a brief or temporary interval in the relevant employee’s work (that is within their working hours or their shift or any other period they are required to work), where the employee is not required by the employer to perform any work-related tasks. Breaks may be permitted or required by the employer. This would include, for example, a tea or coffee break, a “smoko” break, or other times during a shift when work is not being performed and is not required by the employer to be performed.
[144] As the phrase should be construed as a break ‘in work’, necessarily this must be a break within the employee’s working hours, shift times, or other period they are required to work, and not outside of this. The working hours of The Premises are not relevant; it is the employee’s working hours that are relevant, because the discussions may only be held with the employee during their ‘mealtimes or other breaks’.
[145] This is the case notwithstanding that rights of entry, more broadly, may be exercised during the working hours of The Premises. Section 490(1) of the Act may be considered as applying more broadly to the exercise of a right of entry under Part 3-4 of the Act. However, the legislature has chosen to include a specific prescription in relation to a right of entry exercised for the purposes of holding discussions with employees. That more specific prescription relates to holding discussions with employees during their ‘mealtimes and other breaks’. The break must therefore be in the work of the employee; that is, within their working hours or shift times.
[146] The remaining purposes for which a right of entry may be exercised relate to investigating a suspected contravention or safety breach. Such contraventions can properly be investigated during the working hours of the premises regardless of the working hours of any particular employee.
[147] The period outside of the employee’s working hours or shift times (including the time before an employee commences work, the time after which an employee finishes their shift, and the remaining period between shifts) should properly be considered as ‘non-working hours’, or the employee’s own free time.
[148] This period is not an ‘other break’ for the purposes of section 490(2) of the Act. An ‘other break’ should, when construed in context and having regard to the Purpose and Scheme of the legislation, be properly regarded as a break only during a period of the relevant employee’s work time (their shift), when the employee is not required to perform work-related functions.
[149] It cannot also constitute the entirety of the other periods of the employee’s life when they are not performing work, when they are not required to attend the workplace at all. What would be the purpose of giving a right of entry at these times when the employees are not required to be on The Premises and which would so clearly interfere with the respondent's rights as an occupier?
[150] This interpretation is consistent with the Scheme and Purpose of Part 3-4 of the Act as described above, which is a balancing of the competing rights of the employees and unions regarding representation and information ‘at work’ and the occupier’s common law property rights.
[151] The employee and union can, if they wish, meet outside of the employee’s working hours. But the occupier should not be unduly inconvenienced by being required to provide facilities to allow this to occur. This is particularly the case where, as in the present case, the facilities are limited and may be required for work-related purposes such as pre-start and safety meetings, or hand over meetings.
[152] Therefore, contrary to the applicant’s submissions, ‘other breaks’ do not encompass the time between the conclusion of a working day and the commencement of another working day. This time period would be, at the very least, 10 to 12 hours. This is neither brief nor temporary.
[153] The legislation uses the term ‘other breaks’. So the period of time between periods of duties, is either an ‘other break’ or it is not. The legislation does not limit the period of the ‘other break’ to a period of a particular duration before or after the commencement of the shift, such as 30 minutes. To do so would require the Commission to read additional words into section 490(2) of the Act which are plainly not there. In any event, where would the line be drawn?
[154] Further, the interpretation contended for by the applicant has the potential to lead to absurd results. The employees are either on a break or not and if they are on a break for the entirety of their non-working time (outside of their shift), this could lead to absurd results.
[155] Taking the applicant’s submission to its logical conclusion, this would mean that a permit holder could enter The Premises at any time (because The Premises operates 24 hours a day, 7 days a week) for the purposes of holding discussions with eligible employees who are on a ‘break’ from work, in the sense that the employee has concluded their shift and has not commenced their next shift.
[156] This could potentially enable permit holders and employees to come on to The Premises at a later time after the employee’s shift (e.g. 9.00pm for employees finishing their day shift at 6.00pm) and hold discussions. If the respondent was obliged to permit access at these times, this would cause undue inconvenience to the respondent occupier and employers for the reasons set out in Ms Scaffardi’s statement regarding safety and evacuation procedures and safety requirements regarding supervisor ratios. 13
[157] The applicant’s interpretation has the effect of encroaching on the common law property rights an occupier or employer to a greater degree than is necessary to achieve the Object or Purpose of the Act.
[158] The applicant has submitted that Lawler VP’s analysis of section 761 of the Workplace Relations Act 1996, the predecessor to section 490(2) of the Act, in ASU v ATO at [53] should be followed.
[159] The comments made by Lawler VP were obiter, and do not bind the Commission in respect of other matters. The interpretation of the meaning of ‘other breaks’ contended for by the respondent is similar in terms to that adopted by Lawler VP. However, the respondent does not agree with Lawler VP’s application of the meaning as applying to the period before or after an employee’s shift during the working hours of the premises. The facts in that case are distinguishable from the present case.
[160] In the present case, the occupier (the respondent) is not also the relevant employer of the employees the applicant’s permit holders wish to have discussions with. The occupier had contracted with certain contractors, and it is those contractors’ employees with whom the permit holders seek to hold discussions.
[161] The contractors’ employees are not authorised to be on site longer than is sufficient for them to complete work-related purposes. Accordingly, they are not authorised to be present on site at a time when they are not required to be performing tasks associated with their work outside of their shift times.
[162] This means that if the employees are on an ‘other break’, on the applicant’s construction, in the period before or after their shift, they are not authorised to be on site. There being no employees at that time with whom to hold discussions, the permit holders would not (and should not) be granted a right of entry to hold discussions with employees on the site. The factual application of the applicant’s argument to The Premises demonstrates its absurdity.
[163] Finally, the applicant contends that the legislature is taken to have been aware of Lawler VP’s analysis of the antecedent section 761 in the Workplace Relations Act 1996 when crafting section 490(2) of the Act. The applicant argues that given no steps were taken by the legislature to amend section 490(2) to any substantive extent, it is presumed that the legislature intended that the section have the meaning ascribed to it by his Honour, and this is patent from the terms of the Explanatory Memorandum. This is known as the presumption of re-enactment.
[164] First, the cases make it clear that the presumption of re-enactment should not lead the Commission to perpetuate a construction of a statutory provision which it considers erroneous. The warnings by cases regarding the reliance on extrinsic materials which purport to state the meaning (as opposed to Object or Purpose) of legislation referred to above are of particular force in this case, when the views expressed by Lawler VP were made in obiter.
[165] Second, even if Lawler VP’s reasoning is accepted and the comments in the Explanatory Memorandum are referred to, they, at most, provide an example of an ‘other break’ in practice. That example cannot bind the myriad of workplaces that exist in Australia. For the reasons stated above, the facts of this case are entirely different to the present case. In the present case, the period ‘other break’ does not encompass the period before or after the employee’s shifts because they are not authorised to be on site during such a ‘break’.
[166] For the reasons set out above, the construction of section 490(2) of the Act contended for by the respondent above should be adopted by the Commission.
[167] The respondent is a miner and producer of nickel metal products with a number of sites in Western Australia. It is the occupier of The Premises, at which nickel matte is refined into nickel briquettes and powder.
[168] The dispute in the application relates to The Premises, and the applicant’s permit holders seeking to exercise right of entry to hold discussions with employees of two of the respondent’s contractors before and after their shift times
[169] The applicant seeks an order pursuant to section 505(2) of the Act that:
“Mr Douglas Heath and Mr Troy Smart, being permit holders under Part3-4 of the Act, are entitled to enter the premises at Kwinana which are occupied by BHP Billiton Nickel West Pty Ltd (The Premises) for the purposes of holding discussions with members or potential members of the CFMEU, before and after their shifts so long as work is being conducted on The Premises at the time such discussions occur.”
[170] The dispute arose after BHP which is the occupier of The Premises at which members and potential members of the applicant perform work for various employers, did not allow Mr Heath and Mr Smart, who are permit holders employed by the applicant, to enter The Premises and hold discussions with members and potential members before the commencement of their shifts.
[171] The respondent opposes the application and has raised a series of jurisdictional objections.
[172] The dispute the subject of the applicant’s application arose in October 2015 in relation to the applicant’s right of entry notices to enter The Premises and their requests to hold discussions with employees of Freo Group Pty Ltd and Skilled Group Limited before the commencement of their shift or after the conclusion of their shift.
[173] Mr Heath and Mr Smart are permit holders within the meaning of section 484 of the Act.
[174] It is accepted that some of these employees who performed work on The Premises were workers whose industrial interests the permit holder’s organisation is entitled to represent (section 484(a) and (b) of the Act).
[175] It is also accepted that the applicant is not entitled to represent the industrial interests of any of the respondent’s employees performing work at The Premises.
[176] Freo Group Pty Ltd were contractors performing work for the respondent, who is the occupier of The Premises.
[177] Freo Group Pty Ltd employees were present on site at The Premises in relation to a scope of work related to a shutdown that commenced on 14 October 2015 and took place over 20 days. That work has concluded.
[178] The evidence is that on the date of the hearing Freo Group Pty Ltd employees were present at The Premises and Freo Group Pty Ltd are contracted to the respondent until October 2016 and consequently their employees will be on and off The Premises undertaking various scopes of work throughout that period. 14
[179] The relevant sections of the Act are set out below.
“Subdivision B—Entry to hold discussions
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.”
“Subdivision C—Requirements for permit holders
…
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.”
“Division 5—Powers of the FWC
Subdivision A—Dealing with disputes
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).”
[180] At the time the applicant sought to exercise a right of entry the parties swapped the letters below.
From the CFMEU to the Respondent:
“Hi Stacey
I refer to your letter of 13th October regarding the Right of Entry Notice issued by Troy Smart and myself.
CFMEU Officials can exercise their right of entry before employees commence their shift. The Fair Work Act 2009 (Act) makes clear that a right of entry may be exercised during working hours and during mealtimes or other breaks. For guidance as to what is meant by 'other breaks' I refer you to the Explanatory Memorandum to the Fair Work Bill 2008, and specifically para. 1962. Here it makes clear that other breaks, would include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises.
I have been advised that work for our members starts at 6:00 and we have no reason to doubt this, nevertheless, the premises are quite clearly in operation prior to this as a multitude of people on the premises have commenced work for the day.
Given our intention to have our first meeting with members and prospective members at 0515, Mr Smart and I will be on site at 0500 for our visitor induction. Can you please advise site personnel of this to ensure we are inducted in time for us to exercise our Right of Entry.”
From the Respondent to the CFMEU:
“Dear Mr Heath,
Thank you for your letter dated 13 October 2015.
BHP Billiton agree that you may exercise right of entry and hold discussions with your members "only during mealtimes or other breaks" However, we do not agree that, in the case of this site, the period before and after the relevant employee's shift is an "other break" for the purposes of section 490(2) of the Fair Work Act 2009 (Cth).
It is the text of the Act that is relevant, and it is clear and unambiguous in this case. One can obviously not be on a "break" from work, if one has not started work. The Explanatory Memorandum provides an example which may apply in some cases. However, there is no designated break before or after the relevant employee's shifts on this site.
Therefore, you and Mr Smart may attend the site to perform your inductions at 5.00am. However, you may only hold discussions between the mealtimes and other breaks of the relevant employees, being 9.00am, 12.00pm and 3.00pm as referred to in my previous letter. If you wish to hold discussions with the relevant employees outside of those times, you may of course do so separately and not on site, this includes the car park and smoking hut.”
[181] The applicant’s written submissions explain the dispute as follows.
“The issue for determination is whether the Commission(sic) permit holders, who are officials of the applicant, can enter premises occupied by BHP at Kwinana for the purposes of holding discussions under section 484 of the Act prior to and after employee’s shifts, whilst work is being conducted on the premises.
The dispute arose after BHP, which is the occupier of The Premises, at which members and potential members of the applicant perform work for various employers, in October 2015 did not allow Mr Heath and Mr Smart, who are permit holders employed by the applicant, to enter The Premises and hold discussions with members and potential members before the commencement of their shifts.
The matter hinges, in large part, on the meaning of expression ‘other breaks’ under section 490(2) of the Act...”
[182] The issue to be determined is simply whether or not the words ‘other breaks’ in section 490(2) of the Act includes the period before and after a relevant employees shift.
[183] The respondent originally submitted that there was no existing or ongoing dispute which would enliven the Commission’s jurisdiction because the shutdown work the contractors were doing had been completed.
[184] It was apparent from the evidence at the hearing however that Freo Group Pty Ltd employees will continue to be present at the Premises from time to time because Freo Group Pty Ltd are contracted to the respondent to do various works through until October 2016. Given this factual background I am satisfied that in this sense the dispute may be ongoing.
[185] The respondent also submits that the Commission does not have jurisdiction to hear and determine the dispute because to do so would involve an exercise of judicial power rather than arbitral power.
[186] The respondent submits that in this case the dispute solely involves a question of statutory interpretation as to the meaning of ‘other breaks’ in section 490(2) of the Act.
[187] It is submitted that this is a question as to the applicant’s and its permit holders existing legal rights under the Act.
[188] It is submitted that the applicant is in effect seeking a binding declaration of its legal rights. Such a remedy is beyond the Commission’s power.
[189] In reply the applicant submits that the dispute in reality is about whether there is a probability that the respondent’s future conduct will be contrary to Part 3–4 of the Act and what orders the Commission should make to regulate the future relationship between the parties. The applicant submits this involves an exercise of arbitral power. The Commission is called upon to interpret section 490(2) to resolve the dispute and this does not convert its resolution of the dispute into an impermissible exercise of judicial power. Resolution of the meaning of ‘other breaks’ under section 490 (2) is but a preliminary step in resolution of the dispute by arbitration.
[190] The parties have both relied upon a series of High Court cases and numerous decisions of this Commission in which the High Court’s principles have been applied.
[191] Relevant in the particular circumstances of this case is the decision of the High Court in Re Ranger Uranium Mines Proprietary Limited and Others; Ex parte Federated Miscellaneous Workers Union of Australia 15, at page 666 of the judgment, the Court held:
“The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.
Inquiry into and determination of facts for the purpose of ascertain what rights and obligations should be brought into existence in settlement of an industrial dispute does not cease to be an exercise of arbitral power merely because, in the course thereof, the Commission may for an opinion as to the existing legal rights and obligations of the parties. As was pointed out in Re Cram the formation of an opinion as to legal rights and obligations does not involve the exercise of judicial power, at least if it is "a step in arriving at the ultimate conclusions on which (is based) the making of an award intended to regulate the future rights of the parties." For, as was there made clear, "the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.”
[192] In this instance the question is whether the formation by the Commission of an opinion as to the meaning of the words ‘other breaks’, as used in section 490 of the Act, is merely a step in arriving at the ultimate conclusion on which to base the making of an order to regulate the future rights of the parties. If that is the case then forming an opinion as to the meaning of the words ‘other breaks’ would not involve an exercise of judicial power.
[193] In this instance I think it is quite plain that what the Commission has been asked to do by the applicant is to determine whether its interpretation of the words ‘other breaks’ as used in section 490 of the Act is correct or not. The Commission having decided the meaning of those words in section 490 will have resolved the dispute between the parties. In this case the formation by the Commission of an opinion as to the meaning of those words in section 490 is not a step along the way to resolving the dispute. The applicant’s attempt to reframe the dispute by stating it now seeks an order of the Commission, and that the formation of an opinion as to the meaning of the words in section 490 is merely a step along the way to deciding whether the order should be issued, does not in my view change the dispute nor the power the Commission is being asked to exercise. Having formed a view on the meaning of the words in section 490 that are the basis of the dispute there is in reality no further step for the Commission to take in resolving the dispute. In reality the Applicant is seeking a bare declaration of existing rights. 16
[194] In my view what is being sought by this application is not the creation of a new right but rather is effectively the enforcement of what the applicant says is an existing right under section 490(2). For the Commission to determine this application then would involve an exercise of judicial power. Consequently my decision is that this application is beyond the jurisdiction of the Commission and must therefore be dismissed.
[195] For completeness if I am wrong on the respondent’s jurisdictional objection then my conclusion on the meaning of the words in dispute follow.
[196] The principles of statutory construction are well-known. The ordinary sense of the words is to be adhered to unless this would lead to some absurdity or inconsistency with the rest of the instrument. The meaning of the words is to be determined by reference to the language of the instrument viewed as a whole.
[197] Importantly in this case the applicant refers to the Explanatory Memorandum in support of its interpretation.
[198] As the respondent has submitted the case law directs that extrinsic materials cannot be relied on to displace the clear meaning of the texts and that it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation. 17
[199] The AI Act is consistent with this approach:
“15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;
(d) any treaty or other international agreement that is referred to in the Act;
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.”
[200] It seems then that the Commission must first conclude that the words in question are ambiguous or obscure or that taking account of its context and underlying purpose or object the ordinary meaning leads to a result that is manifestly absurd or unreasonable before it can consider the Explanatory Memorandum.
[201] The word ‘other’ used in this context is a reference to there being a purpose for a break other than for an employee to take a meal.
[202] The word ‘breaks’ as used in section 490(2) of the Act is a noun.
[203] The Macquarie Concise dictionary includes the following definitions for “break”:
“–noun 59. a forcible disruption or separation of parts; a breaking; a fracture, rupture, or shattering.
60. an opening made by breaking; a gap.
61. an opportunity; chance.
62. a rush away from a place; an attempt to escape: a break for freedom.
63. an interruption of continuity; suspension, stoppage.
64. an abrupt or marked change, as in sound or direction.
65. a brief rest, as from work, especially a midmorning pause, usually of fifteen minutes, between school classes.
66. a short holiday: a three-day break.
67. a stampede of stock.”
[204] In my view ‘breaks’ means, interruptions in the continuity of an employee’s work, the suspension or stoppage of an employee’s work, a brief rest from an employee’s work.
[205] A break interrupts, suspends, or stops the employees work for a brief time.
[206] Consequently ‘other breaks’ does not include a period of time before an employee’s shift begins nor a period after an employee’s shift has ended. Work must have begun and must be going to continue for a break to interrupt its continuity or to suspend or stop the work.
[207] The applicant refers to the decision of VP Lawler in the Australian Municipal, Administrative, Clerical and Services Union v the Australian Tax Office. 18 In that case VP Lawler was asked to make orders to deal with disputes over right of entry at the premises of the Australian Tax Office. The union at the time had sought orders including that permit holders may hold discussions with employees at the premises before they commence or after they conclude duty.19
[208] VP Lawler’s decision notes that there is a dispute over whether discussions can be held “before and after eligible employees commence on duty.” 20 The legislation at the time the, Workplace Relations Act 1996, included section 761 which specified that permit holders may only enter the premises during working hours “...and may only hold the discussions during the employee’s mealtime or other breaks.” It is not clear from the decision why the Australian Tax Office opposed discussions being held before and after duty and whether it was argued that this would not be ‘other breaks’.
[209] VP Lawler noted that this section should be construed in accordance with the plain and ordinary meaning of the words and that at that time the Explanatory Memorandum provided no assistance. At [53] VP Lawler decided:
“…On its plain and ordinary meaning, the term ‘breaks’ refers to any break and work permitted by, or required of, the employer. Can’s construed in context, section 761 authorises the permit holder, subject to any other restrictions on the act, to enter the relevant premises during the working hours of the employer’s establishment and hold discussions with employees who are on a break from work. Employees who, during the working hours of the establishment, have not yet started work or have finished work or who are on Flex leave can properly be seen as being on a ‘break’ from work.” (Emphasis added)
[210] The applicant submits I should adopt this interpretations.
[211] The respondent submits that’s these comments are obiter and the Commission as currently constituted is not bound by this decision.
[212] I have considered the Vice President’s decision and for my part I do not agree that employees who have not yet started work or have finished work would ordinarily be said to be on a break. I remain of the view that ‘other breaks’ do not include periods before an employee’s shift begins or periods after their shift has ended.
[213] The applicant also calls up in support of its position the decision of Vice President Watson in Aero Care Flight Support Pty Limited. 21 Whilst dealing with concerns about right of entry and section 490 Vice President Watson at [33] states:
“Aero Care submits that access for discussions in downtime or short informal breaks during paid time should not be permitted. It seeks a finding that the right to hold discussion should be confined to the unpaid meal break. In my view, it is reasonable to require TWU officials to confine discussions to unpaid meal breaks or breaks between shifts. It is clear that discussions during downtime could distract employees from their other duties. In an operational airport environment it is reasonable to confine the timing of discussions in this way.” (Emphasis added)
[214] The applicant highlights the reference to “breaks between shifts” and submits that this demonstrates the Vice President accepted that ‘other breaks’ is a time, any time, including a break between shifts where paid work is not occurring which is consistent with their application.
[215] Having had the opportunity to carefully read the decision in full it is apparent that the issue of whether a period before a shift began or after a shift ended fell within the meaning of ‘other breaks’ in section 490 was not squarely before the Vice President.
[216] Indeed at [26] of the decision he explains the submission of the employer was that they had provided access to the union officials when entry was sought at a time reasonably proximate to a break. The Vice President’s decision explains that evidence was led that on three occasions an official had sought access when no employees were on a break and no break was impending. “The entries were sought very early in the morning, approximately 5:00 a.m., soon after employees commence their shift.” (Emphasis added)
[217] The dispute did not seem to be concerned with a request to exercise a right of entry before employees’ shifts had begun or after employees’ shifts had ended.
[218] I do not accept that the decision of Vice President Watson has previously determined the same issue in dispute that is currently before the Commission, as the applicant submits.
[219] The applicant’s interpretation would create uncertainty for the parties as to their rights or obligations. The applicant’s interpretation provides no specificity as to when permit holders have the right to enter The Premises. If the applicant’s interpretation was correct there would be no certainty as to how long before an employee’s shift begins or how long after their shift ends a permit holder could properly exercise a right of entry. Is it 15 minutes, 30 minutes, 2 hours or more? Such an interpretation would involve a further but uncertain encroachment on the common law property rights of an occupier or employer which would be likely to create further disputation. An interpretation which creates uncertainty as to the parties’ rights and obligations should not be preferred.
[220] The uncertainty inherent in the applicant’s interpretation would also be inconsistent with section 480(c) of the Act which says one Object of Part 3-4 is to balance the rights of organisations to hold discussions and “the right of occupiers of premises and employers to go about their businesses without undue inconvenience.” The uncertainty as to the time period an organisations’ permit holders had a right to enter before shifts had begun or after they had finished would in practice involve some inconvenience to occupiers of premises or employers who would be obliged to manage such situations.
[221] The purpose for exercising a right of entry under section 484 of the Act is to hold discussions with employees. Unlike the period employees are required to attend to work their shift there can be no guarantee employees will be present for any particular period of time before or after their shift. As such it is doubtful the Parliament meant to legislate a right to enter premises to hold discussions at times when the employees may not necessarily be present. Such an interpretation would lead to absurd outcomes in practice. Section 490 of the Act should not be construed as giving any greater rights than those necessary to achieve the statutory purpose namely to permit a permit holder to hold discussions with particular employees present at the workplace.
[222] The ordinary meaning of the words ‘other breaks’ is not ambiguous or obscure nor in the context of the Act does the ordinary meaning lead to an absurd or unreasonable result. Consequently there is no basis for consideration of the Explanatory Memorandum.
[223] If indeed the Commission does have jurisdiction to determine this dispute my decision is that permit holders, who are officials of the applicant, cannot enter The Premises occupied by BHP at Kwinana for the purposes of holding discussions under section 484 of the Act prior to nor after relevant employees’ shifts, whilst work is being conducted on The Premises. I would therefore dismiss the application.
[224] An order dismissing the application will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
P Boncardo on behalf of the applicant.
A Longland of Herbert Smith Freehills for the respondent.
Hearing details:
2016.
Perth:
March 11.
3 [2016] FWC 799 at [15]-[19].
4 [2016] FWC 201 at [63]-[82].
7 (2012) 201 FCR 297 at [50] to [53].
8 (2009) 239 CLR 27.
9 (2010) 241 CLR 252.
10 [2012] FCAFC 85.
13 Exhibit R5 at [31], [32], [46] and [51] to [58].
14 Transcript at PN158.
15 (1987) 163 CLR 656.
17 239 CLR 27 at [47] and 241 CLR 252 at [33].
19 Ibid., at [47].
20 Ibid., at [51].
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