Construction, Forestry, Mining and Energy Union v Laing O'Rourke Australia Construction Pty Ltd T/A Pacific Complete

[2017] FWC 4682

[2017] FWC 4682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505—Right of entry

Construction, Forestry, Mining and Energy Union
v
Laing O’Rourke Australia Construction Pty Ltd T/A Pacific Complete
(RE2017/222)

COMMISSIONER SAUNDERS NEWCASTLE, 8 SEPTEMBER 2017

Right of entry dispute – entry to hold discussions during mealtimes or other breaks – orders sought – duration of orders

[1] This decision concerns the terms of the orders I intend to make to deal with the right of entry dispute between the CFMEU and LORAC.

[2] In my decision published on 28 August 2017 1 (Decision) I gave the parties an opportunity to make submissions in relation to the proposed time period for the orders (12 months) and the amendments to the orders sought by the CFMEU. Neither party has made submissions concerning the amendments to the orders sought by the CFMEU. Accordingly, the orders I will make will include those amendments, for the reasons set out in the Decision.

[3] As to the proposed time period for the orders, the CFMEU has not filed any submissions concerning my proposed duration of 12 months for the orders. LORAC submits that a more appropriate period for the orders would be one month, for the following reasons:

• The basis for making orders of the type sought by the CFMEU is “either a lack of understanding on the part of particular LORAC managers of the rights of permit holders to hold discussions during actual mealtimes and other breaks or a deliberate strategy on their part to limit such discussions to a fixed period of 30 minutes per mealtime or other breaks”; 2



• I found in the Decision that the first order sought by the CFMEU “would clarify and/or reinforce to LORAC managers working on the Site the need to ensure permit holders are entitled to hold discussions with employees during their actual mealtimes and other breaks…”; 3



• LORAC contends that, over the course of the dispute, it has audited its processes to ensure that its managers are aware of their obligations and the rights of permit holders under the Act. There is no evidence of any difficulties at the Site in relation to permit holders since the incident on 27 April 2017. This, LORAC contends, demonstrates that the effect of the intended orders has been anticipated by LORAC, with the result that it is unnecessary for the orders to operate for a period of 12 months; and



• LORAC contends that a more appropriate period for the operation of the orders is one month, because such a period will give the necessary reinforcement to relevant managers of the audit measures already taken.

[4] I do not accept the argument that the orders should operate for a period of one month. I am satisfied that 12 months is appropriate in all the circumstances of this case, particularly having regard to the fact that the conduct which underpins the making of the orders has repeatedly taken place over a number of months, such conduct did not cease even after I made a recommendation in writing to the parties on 24 March 2017, and the Project “has many years left till completion”. 4 Further, I am satisfied that the basis for, and purpose of, the orders, as set out in the Decision, support the orders operating for a period of 12 months.

[5] I will make orders in the terms set out in paragraph [31] of the Decision.

COMMISSIONER

Final written submissions:

Respondent, 6 September 2017

 1   CFMEU v LORAC[2017] FWC 4467. Terms defined in the Decision will have the same meaning in this decision.

 2   Ibid at [23]

 3   Ibid

 4   Ex A2 at [48]

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