[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: [2015] FWC 3694
Decision Date: 2 NOVEMBER 2015

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) brought a dispute before the Fair Work Commission regarding the right of entry to hold discussions at the Central Queensland Services Pty Ltd Caval Ridge Mine. The dispute centred around the location where the discussions were to be held, specifically an area on an operating Dragline. The CFMEU argued that the area was suitable for such discussions, while the mine operator contended it did not qualify as a room or area provided for the purpose of taking meal or other breaks within the meaning of section 492(3). The Commission was tasked with interpreting section 492, determining the powers of the Commission under section 505, and resolving whether the permit holder was entitled to conduct discussions in the area on the Dragline.

The legal issues before the Commission included the construction of section 492 of the Fair Work Act, specifically the interpretation of what constitutes a "room or area provided for the purpose of taking meal or other breaks." The Commission had to determine whether the area on the Dragline qualified under this definition and, if not, whether the reasonableness of the location for discussions was relevant. The second issue was the extent of the Commission's powers under section 505 to make findings in such disputes. Finally, the Commission needed to decide whether the permit holder was entitled to conduct discussions in the area on the Dragline.

The Commission found that the area on the Dragline did not qualify as a room or area for the purposes of section 492(3). It concluded that the reasonableness of the location for discussions was not a relevant consideration in this context. The Commission exercised its powers under section 505 to make findings that the permit holder was not entitled to conduct discussions in that area. The decision highlighted the importance of strict adherence to the conditions set out in the Fair Work Act regarding the location of discussions between employers and employees.

The final orders of the Commission were that the permit holder was not entitled to conduct discussions with employees in the area on the Dragline. The decision underscored the necessity for strict compliance with the statutory provisions governing the location of discussions, thereby reinforcing the importance of clear and precise interpretation of the Act in such disputes.

Orders