05 May April Newsletter: Fair Work Commission clarifies Right of Entry provisions under the Fair Work Act 2009

A recent decision of the Fair Work Commission’s Full Bench has provided important guidance on the application of right of entry laws under the Fair Work Act 2009 (Cth).

Section 492 of the Fair Work Act 2009 (Cth) (“Fair Work Act”), provides that if a permit holder wishes to enter an employer’s premises to hold interviews and discussions, such interviews or discussions must be held in rooms agreed between the permit holder and occupier.  If agreement cannot be reached, section 492(3) of the Fair Work Act states that they may be held in a room or area that a person to be interviewed or participate in discussions, would normally take their meal or other breaks and that is provided by the occupier for the purpose of taking breaks.

The CFMEU sought to enter a BHP Billiton Mitsubishi Alliance (“BMA”) site to hold discussions.  The parties could not agree on an appropriate room and the CFMEU sought to hold its discussions in a room on a dragline (a large piece of mining equipment), which BMA argued did not fall within section 492(3) of the Fair Work Act.

Evidence provided by BMA at the first instance described the 4.4m x 1m wide room as an area behind the operator cab of the dragline, which acted as a functional work area and contained benches, a computer, a whiteboard (allegedly containing confidential information), a fridge, cupboards and a “half kitchenette” including an urn, small sink, microwave, cupboards and a small area of storage for safety equipment.  Operators were permitted to take their breaks there, although mobile crib sites approximately two to four kilometres from the draglines offered a full kitchen and toilet facilities.

Whilst at first instance Deputy President Asbury found that the room did not fall within the definition in section 492(3) of the Fair Work Act, finding that the room provided under section 492(3) of the Fair Work Act must be “for the purpose, or primary purpose, of taking meal or other breaks”, the Full Bench disagreed.  The Full Bench found that the relevant consideration was the purpose or purposes given by an employer to a particular area, which, in BMA’s case, included the purpose of taking breaks.  Despite the existence of the mobile crib sites, the lack of certain amenities (when compared to the mobile crib sites) and the fact that the area was used for other purposes, it found that the area still fell within the definition of section 492(3) of the Fair Work Act and as such, could be used to hold interviews or discussions where the parties failed to agree on an appropriate location.

This decision has implications for many different types of employers.  A room designated by an employer as a place where employees can take breaks can fall within section 492(3) of the Fair Work Act, making it accessible to right of entry permit holders, even if it is also used for other purposes.  If you require assistance with right of entry under the Fair Work Act, please do not hesitate to contact us.

The content of this article is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.