[2015] FWC 3694 [Note: An appeal pursuant to s.604 (C2015/7412) was lodged against this decision - refer to Full Bench decision dated 5 February 2016 [[2016] FWCFB 288] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

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

DEPUTY PRESIDENT ASBURY

BRISBANE, 2 NOVEMBER 2015

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

1. OVERVIEW

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

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

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

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

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

The Applicant seeks a declaration that the crib rooms of Dragline 34 and Dragline 35 at the…

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: [2016] FWCFB 288
Decision Date: 2 NOVEMBER 2015

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union contested against Central Queensland Services Pty Ltd over the right of entry to conduct discussions at the Caval Ridge Mine. The Union sought to hold discussions in an area located on an operating Dragline, while the mine operator argued that this area was not a room or area provided for the purpose of taking meal or other breaks, as defined in section 492(3). The Fair Work Commission was tasked with interpreting section 492 and determining the appropriate location for the discussions.

The central legal issue before the Commission was the interpretation of section 492 of the Fair Work Act 2009, specifically whether the area on the Dragline qualified as a room or area for the purpose of taking meal or other breaks. The Commission also considered the powers granted to it under section 505 of the Act in resolving such disputes. The reasoning of the Commission focused on the specific wording of section 492(3) and whether the area on the Dragline fell within the statutory definition. The Commission found that the area on the Dragline was not intended for meal or break purposes and, therefore, not suitable for holding discussions as per the legislation.

The Fair Work Commission held that the area on the Dragline did not meet the criteria set out in section 492(3), and thus the permit holder was not entitled to conduct discussions there. The Commission further clarified that the reasonableness of the location for discussions was not the primary consideration in disputes under section 492, but rather adherence to the statutory definition. Consequently, the Commission ruled that the Union was not entitled to hold discussions in the area on the Dragline.

In light of the findings, the Fair Work Commission ordered that the Union's permit to hold discussions at the Caval Ridge Mine would not be exercised in the area on the Dragline. The Commission did not specify an alternative location for the discussions but left it to the parties to negotiate a suitable area that complied with the statutory requirements.

Orders