BHP Billiton Nickel West Pty Ltd - [2018] FCAFC 107

FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Maritime, Mining and Energy Union v
BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107

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

File number: NSD 1644 of 2017

Judges: REEVES, RANGIAH AND O’CALLAGHAN JJ

Date of judgment: 6 July 2018

Catchwords:
INDUSTRIAL LAW – appeal from decision of single judge – where s 490(2) of the Fair Work Act 2009 (Cth) confers right for union representatives to access work premises to hold discussions with employees “during mealtimes or other breaks” – whether holding discussions before an employee’s shift is permitted under s 490(2) – meaning of the term “breaks” – finding that ordinary meaning of the term “break” necessarily implies an interruption in continuity – discussions to occur during, not before or after, a work shift

STATUTORY INTERPRETATION – whether the phrase “mealtimes or other breaks” is ambiguous – whether appropriate to have regard to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) – where Explanatory Memorandum includes “holding discussions before or after an employee’s shift” as an example of a “break” – finding that the phrase “mealtimes or other breaks” is unambiguous – finding that recourse to the Explanatory Memorandum is not merited – appeal dismissed

Legislation:
Acts Interpretation Act 1901 (Cth)

Fair Work Act 2009 (Cth)

Fair Work Bill 2008 (Cth)

Cases cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; (2012) 203 FCR 389

Bowtell v (1905) 3 CLR 444

Catlow v Accident Compensation Commission (1989) 167 CLR 543

Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384

Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd (2017) 268 IR 355; [2017] FCA 991

Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152, [2007] NSWCA 190

Lorimer v Smail (1911) 12 CLR 504

Mersey Docks and Harbour Board v Henderson Bros (1888) 13 App Cas 595

R v Sharma (2002) 54 NSWLR 300

Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416

Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc and Others (2000) 48 NSWLR 548

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252

Sea Shepherd v Commissioner of Taxation (2013) 212 FCR 252

Macquarie Dictionary (6^th ed, Macquarie Dictionary Publishers Pty Ltd, 2013)

The Oxford English Dictionary (2^nd ed, Clarendon Press, 1989)

Date of hearing: 7 March 2018

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 67

Counsel for the Appellant: R Reitano with P Boncardo

Solicitor for the Appellant: CFMMEU – Legal Branch

Counsel for the Respondents: IM Neil SC with AM Hochroth

Solicitor for the Respondents: Herbert Smith…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCAFC 107
Decision Date: 6 July 2018

CaseChat Overview and Summary

BHP Billiton Nickel West Pty Ltd recently appealed a decision of the Fair Work Commission, concerning the interpretation of section 490(2) of the Fair Work Act 2009, which allows union representatives to access workplace premises to hold discussions with employees during mealtimes or other breaks. The primary dispute centred on whether discussions could be held before an employee's shift, and the meaning of the term "breaks." The court had to determine if holding discussions before a work shift constituted a permissible "break" under the statute and whether the phrase "mealtimes or other breaks" was ambiguous, necessitating reference to the Explanatory Memorandum for interpretation.

The court found that the term "break" inherently implies an interruption in the continuity of work, meaning discussions must occur during, not before or after, a work shift. The court also held that the phrase "mealtimes or other breaks" was unambiguous and that there was no merit in consulting the Explanatory Memorandum. This decision aligned with previous observations from Tracey and Reeves JJ in Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union, which suggested that allowing discussions before a shift would be contrary to the ordinary meaning of "breaks."

In dismissing the appeal, the court emphasised that the permit holders were correctly refused entry to the refinery premises when they attempted to hold discussions outside of the permitted times. The court concluded that there was no compelling reason for the permit holders to meet employees between 5.15 am and 6 am, as they had been allowed access later in the day. Consequently, the appeal was dismissed, and the earlier refusal to allow entry during non-permitted times was upheld.

The court's final order was to dismiss the appeal. This ruling clarified that union representatives do not have the right to enter workplace premises to hold discussions with employees outside of mealtimes or other breaks as defined in section 490(2) of the Fair Work Act 2009.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The primary judge also said that, acceptance of the construction sought to be placed upon s 490(2) by the CFMMEU “could be seen as running contrary to the observations” of Tracey and Reeves JJ in Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 at [35]. I agree with the CFMMEU’s submission that the passage to which the primary judge referred (albeit by way of an aside) does not bear on the issue of construction in this case.Conclusion Given that Mr Heath and Mr Smart were, in accordance with their request, allowed access to the refinery on multiple occasions on 14 and 15 October 2015 after they were refused entry in the early hours of 14 October, and given that there was no evidence about why it was important for them to meet employees between 5.15am and 6am, rather than a few hours later, it is difficult to understand why this matter should have occupied the court’s time. Mr Heath and Mr Smart in their capacity as permit holders had no right to enter the refinery premises in the early hours of 14 October 2015, and they were rightly refused entry, because their stated purpose – being to hold discussions with employees at a time other than a mealtime or other break – was to propose to hold discussions under s 484 that s 490(2) did not allow. For those reasons, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991
File number:	NSD 1644 of 2017
Judges:	REEVES, RANGIAH AND O’CALLAGHAN JJ
Date of judgment:	6 July 2018
Catchwords:	INDUSTRIAL LAW – appeal from decision of single judge – where s 490(2) of the Fair Work Act 2009 (Cth) confers right for union representatives to access work premises to hold discussions with employees “during mealtimes or other breaks” – whether holding discussions before an employee’s shift is permitted under s 490(2) – meaning of the term “breaks” – finding that ordinary meaning of the term “break” necessarily implies an interruption in continuity – discussions to occur during, not before or after, a work shift STATUTORY INTERPRETATION – whether the phrase “mealtimes or other breaks” is ambiguous – whether appropriate to have regard to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) – where Explanatory Memorandum includes “holding discussions before or after an employee’s shift” as an example of a “break” – finding that the phrase “mealtimes or other breaks” is unambiguous – finding that recourse to the Explanatory Memorandum is not merited – appeal dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) Fair Work Act 2009 (Cth) Fair Work Bill 2008 (Cth)
Cases cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Australasian Meat Industry Employees’ Union v Fair Work Australia [2012] FCAFC 85; (2012) 203 FCR 389 Bowtell v (1905) 3 CLR 444 Catlow v Accident Compensation Commission (1989) 167 CLR 543 Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd (2017) 268 IR 355; [2017] FCA 991 Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152, [2007] NSWCA 190 Lorimer v Smail (1911) 12 CLR 504 Mersey Docks and Harbour Board v Henderson Bros (1888) 13 App Cas 595 R v Sharma (2002) 54 NSWLR 300 Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc and Others (2000) 48 NSWLR 548 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Sea Shepherd v Commissioner of Taxation (2013) 212 FCR 252 Macquarie Dictionary (6^th ed, Macquarie Dictionary Publishers Pty Ltd, 2013) The Oxford English Dictionary (2^nd ed, Clarendon Press, 1989)
Date of hearing:	7 March 2018
Registry:	New South Wales
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	67
Counsel for the Appellant:	R Reitano with P Boncardo
Solicitor for the Appellant:	CFMMEU – Legal Branch
Counsel for the Respondents:	IM Neil SC with AM Hochroth
Solicitor for the Respondents:	Herbert Smith…