The frontier for union right of entry and the latest developments in CFMEU v Central Queensland Services Pty Ltd [2016] FWCFB 288

Under the Fair Work Act 2009 (Cth) (FWA), ticketed union officials are entitled to enter upon a worksite on 24 hours' notice for the purpose of holding discussions with employees whose industrial interests they are entitled to represent. Those discussions are to take place during mealtimes or other breaks. The manner in which those rights are exercised is often a point of contention and in practice can impact upon productivity, the ability of the union to recruit new members and the level of general union influence at the site.

In June 2013 the then Federal Labor Government passed an amendment to the FWA, which (despite losing government in the interim) amended laws relating to the exercise of this union right of entry effective 1 January 2014. Prior to that time, an employer was entitled to reasonably direct that meetings take place in a specific room on site. In practice a private room was often set aside by employers for use for this purpose so that only those employees who genuinely wished to partake in the discussions with the union official did so, and other employees were not indirectly forced to do so. Put another way, controlling the location of the meeting on-site ensured the official was not granted an unfettered opportunity to recruit members, place pressure on non members, or interfere with operations.

Following the amendment, absent agreement as to the room or area to be used, a union officer may hold discussions in a lunch room, as follows:

"492 Location of interviews and discussions

  1. The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.
  2. Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises.
  3. The permit holder may conduct the interview or hold the discussions in any room or area:
    1. in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and
    2. that is provided by the occupier for the purpose of taking meal or other breaks."

The amendments served to allow union officers more direct access to all employees, whether or not those employees were members or genuinely wished to engage in discussions.

The scope of these powers was recently tested before the Fair Work Commission (FWC) in CFMEU v Central Queensland Services Pty Ltd (CSQ) in which the CFMEU sought to hold meetings with dragline operators at the Caval Ridge Mine, inside of the dragline. A dragline is a form of excavator, albeit on an extremely large scale (in this instance about 2500 tonnes and 15 storeys in height) commonly used by coal mines to remove overburden, operating 24 hours a day, 7 days a week. However large it may be, a dragline is still a piece of operating heavy machinery. Within the dragline, and running between two operator cabins, was a corridor about 4 metres long and about 1 metre wide. The corridor contained a work station, computer, chairs and a whiteboard, all used for work purposes and potentially containing confidential operational materials. Relevantly however, it also contained what was described as a ‘half kitchenette’, which included a sink and microwave, and the area was commonly referred to by operators as their crib room. Dragline operators would commonly sit on the benches in the corridor for meal and other breaks, with the acquiescence and approval of their employer, CSQ (part of the BHP Mitsubishi Alliance). The nearest official crib room on site, which contained a full kitchen and toilet facilities, was about two kilometres away. The question was whether the corridor was an ‘area … provided by [CSQ] for the purpose of taking meal or other breaks’.

At first instance, Deputy President Asbury found that the Act requires an analysis of the primary purpose of the area, rather than considerations of what ancillary uses it may have been put. She concluded that the area was provided by CSQ primarily as a functional work area, within a piece of operating equipment. Whether there were incidental facilities to store or eat food did not alter its primary purpose. The Deputy President also noted that to permit access would require operators to stop the operation of the dragline in order to allow a union official to embark and disembark, and therefore unreasonably encroach upon CSQ’s rights to control access to its premises and equipment inconsistent with the Act. The limited size of the area also posed practical difficulties, as any employee who did not want to engage in discussions with the union official, or who wished to use the area for its operational purposes, may be unduly affected. Accordingly, the CFMEU’s request was dismissed.

On appeal last week, the FWC Full Bench took a very different view, finding that the Act did not require an analysis of the‘primary’ purpose of the room or area. Rather, according to the Full Bench, the consideration was simply whether the taking of meals and other breaks in the area was one of the purposes for the employer’s provision of the area. In the present case, this was established by the provision of kitchenette facilities and the fact that employees used the area for this purpose with the acquiescence of the employer. That, by itself, was considered sufficient to entitle the union official to hold discussions there. Whether the area had other operational purposes, even alternative purposes which were dominant, posed practical concerns, or impacted on productivity, were not considered material by the Full Bench.

Unsurprisingly, BHP has expressed its dissatisfaction with the decision and has indicated the possibility of an appeal. Beyond the potential productivity impacts, more generally the finding facilitates far greater access by union officials to BHP’s employees during work hours in what are ultimately operational areas. It poses an opportunity for union officials to improve union membership, and to extend greater influence at the worksite.

More broadly, the question remains how far can this proposition be taken? On the same rationale, is the cabin of a dump truck, with a built in cooler box, an area provided for meals or other breaks? Is the corridor at an office / school / hospital which has a vending machine and a chair or two to sit an area provided for meals or other breaks? For that matter, is a corridor with a simple water cooler an area provided for meals or other breaks? Is it akin, as the chief executive of the Australian Mines and Metals Association (AMMA) suggested after the decision, to ‘allowing unions access to aeroplane cockpits because the pilots occasionally eat a sandwich there?1 While there are arguments against the extension of the provision in this way, the reasoning of the Full Bench of the FWC was broad and leaves open scope for further pushes by unions to access new areas of the workplace in the exercise of the right of entry for discussion purposes.

The current Federal Government has proposed reversing the amendments, but such attempts to date have not been able to gain Senate approval. The Fair Work Amendment (Remaining Measures 2014) Bill 2015 again seeks to return s 492 to its previous incarnation, but remains before the Senate and is in the hands of the independents. As AMMA colourfully summarises the issue:

‘Fixing the right-of-entry provisions, as the bill before our national Parliament would do, would immediately reduce administrative and compliance costs, reduce lost time and productivity impacts and ensure union officials visiting workplaces did so in an appropriate location that wouldn’t disrupt work or create serious operational and safety issues.

Employers and union officials will know again where they stand. Importantly, employees who choose not to engage with trade unions will again be able to eat their lunches free from union sales and marketing campaigns should they choose to do so.’2