The Fair Work Act 2009 allows a union official to enter premises to hold discussions with members and employees eligible to be members “during mealtimes or other breaks.”  The official must give the occupier of the premises between 24 hours and 14 days written notice of his or her intention to enter the premises.

In a recent case,  CFMEU v BHP Billiton Nickel West Pty Ltd, the Fair Work Commission has held that “during mealtimes or other breaks” does not include before or after employees start or finish their shifts, even if work is still being carried on by other employees at the premises.

The CFEMU argued that the words “other breaks” were intended by the Act to include a time before or after a particular employee’s or group of employees’ shifts as long as the break occurred during the operating hours of the workplace.  The Union referred to the Act’s explanatory memorandum which confirmed its interpretation.   In rejecting that argument,  Commissioner Williams relied on the “grammatical and ordinary sense of the word” to hold that “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”  and further, “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. ”

Commissioner Williams rejected the union’s interpretation that “other breaks” included the time between when the employees’ shifts ended and their next shift begins as potentially leading to absurd results.  If the Union’s interpretation was correct, a meeting could be held at any time after the employees finished work and could extend for an indeterminate period.   It could also be held after the employees had left the premises after finishing their shift.

Members are reminded that a union official can only enter premises strictly in accordance with the Fair Work Act.  They must provide the requisite notice in writing and show their right of entry permit to the occupier of the premises if requested to do so.  The Fair Work Act also prescribes where meetings can be held and how the official may move about the workplace.

For further information, please contact Jakov Miljak on 1300 361 099 or email [email protected].

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