In brief

  • The Fair Work Commission (FWC) has held that union officials have no right to enter employers premises to hold discussions with employees before their shift commences nor after their shift is completed.1 This changes the pre-existing understanding of the relevant section and will impact industries where continuous shifts are worked. It will particularly impact workplaces where lunch breaks are staggered, as it will be more difficult for the officials to hold meetings with large groups of members.
  • The decision is likely to reduce the Commission’s role in disputes about right of entry. It makes findings about jurisdiction which significantly limited the Commission’s powers.
  • A more conventional approach has been taken to the use which may be made of the Explanatory Memorandum, which will likely significantly limit its use by the FWC.


BHP Billiton Nickel West Pty Ltd operates the Kwinana Nickel Refinery in Western Australia. Periodically there are shutdowns where large numbers of employees of maintenance contractors perform work on the site, predominantly during the day shift between 6.00am and 6.00pm. Areas of the refinery continue to operate on a 24 hour continuous shift roster.

Union officials representing the maintenance contractors’ employees sought entry to the premises to have discussions with the employees prior to the commencement of their shift at 6.00am. BHP Billiton refused to permit the access, arguing that the union officials only had a right to enter to hold discussions with the employees during breaks in their actual shift, not before their shift commenced.

The unions replied that because work was being performed at the refinery on a 24 hour basis, they were entitled under the Fair Work Act to enter BHP Billiton’s premises to have discussions with these employees before they commence their shift.

The Fair Work Commission’s decision

The unions applied to the FWC for a declaration that the two union officials concerned "are entitled to enter the premises at Kwinana which are occupied by …. for the purposes of holding discussions with members or potential members of the CFMEU, before and after their shifts so long as work is being conducted on the premises at the time such discussions occurred."

Commissioner Williams dismissed the application for three reasons:

  • In determining whether the officials have rights under the Act to enter, the Commission would be undertaking a judicial function. This is outside of its powers. Neither the section under which the application was brought, section 505, nor any other section of the Fair Work Act, permitted the FWC to answer that question.
  • Even if the Commission did have jurisdiction to answer the question, the Commissioner’s view was that a right to enter and hold discussions ‘during meal or other breaks’ did not extend to periods before a shift commenced or after it was completed. The word ‘break’ was given its ordinary and natural meaning so that it was not possible to have a break in something which had not already commenced, nor something which had already finished.
  • The Commission was not entitled to have regard to the Explanatory Memorandum, which expressed the opposite conclusion. The Acts Interpretation Act 1901 did not allow reference to the Explanatory Memorandum at all and instead the FWC was required to give the words of the Act itself their ordinary and natural meaning.


This case, like many other cases where there are disputes about the rights of union officials to enter premises, was brought under section 505 of the Act. It provides that the FWC may ‘deal with the dispute’ about the operation of the provisions about right of entry. The CFMEU submitted that it was in dispute with the company about the operation of section 490, specifically whether it authorised the entry of the officials in question to hold discussions with employees immediately prior to the commencement of their shift.

The FWC, of course, is not a judicial body. It is an arbitral tribunal. Under the Commonwealth Constitution, no tribunal can be vested with the judicial power of the Commonwealth if it is also vested with other powers.

The history of the Fair Work Act and its predecessors includes numerous cases where the High Court has found that it is beyond the power of the industrial tribunal to make binding declarations of right. Essentially, it cannot determine existing rights as between parties. The arbitral function instead involves the creation of new rights.

What the Commission decided in this case was that answering the question that had been posed by the union in its application – ie whether the officials in question ‘are entitled to enter the premises’, involved adjudicating upon existing rights. That was a role which is more properly undertaken by a court.

The Commission accepted the traditional High Court authority that determining such questions was beyond its power.

This finding is likely to have implications in future applications seeking to utilise section 505.

‘During meal times or other breaks’

In 2007, in deciding an application under an analogous earlier provision in the Workplace Relations Act, Vice-President Lawler was asked to make orders to deal with disputes over right of entry at the premises of the Australian Taxation Office.2

He found that the term ‘breaks’ referred to any break in work permitted by, or required of, the employer. He reasoned that so long as work was being performed on the relevant premises that employees who, during the working hours of the premises, had not yet started work themselves or had finished work, were properly seen as being on a ‘break’ from work.

In nearly a decade since that decision, it has been the practice of many unions to exercise rights of entry immediately prior to or at the conclusion of employees shifts. This has practical benefits for unions, particularly in industries where meal breaks are staggered. In that environment, it is not usually possible for union officials to hold discussions with large numbers of employees. Hence, the practical preference has been to do so immediately prior to or after the performance of the shift.

Commissioner Williams expressly disagreed with Vice-President Lawler’s analysis. He found that a break, in accordance with the ordinary and natural construction of the word, means interruptions in the continuity of an employee’s work or the suspension or stoppage of the employee’s work. He reasoned that a break must be something which interrupts, suspends or stops the employee’s work for a brief period of time.

On that analysis, he seems to have accepted BHP Billiton’s submission that it is not possible to have a break in something which has not begun nor something which has already concluded.

The Explanatory Memorandum

No doubt picking up on Vice-President Lawler’s reasoning from 2007, the Explanatory Memorandum to the Fair Work Act included reference to a specific ‘example’. The relevant passage read as follows:

"An example of other breaks would include discussions before or after an employee’s shift, provided the discussions are held within the working hours of the premises."

On Commissioner Williams’ reasoning, this was inconsistent with the terms of section 490 itself. Rather than explaining the section, the words expanded upon it.

The Commissioner agreed with BHP Billiton’s submission that no recourse was permitted to the Explanatory Memorandum other than in the narrow circumstances described in section 15AB of the Acts Interpretation Act. That section prevented reference to the Explanatory Memorandum – and indeed to any other materials extrinsic to the Act itself – unless the words of the Act itself are ‘ambiguous or obscure’ or the ordinary meaning leads to a consequence which is ‘manifestly absurd’ or unreasonable’.

There are many examples of the FWC liberally applying the terms of the Explanatory Memorandum – often as though they themselves constituted the legislation. Commissioner Williams’ strict compliance with the Acts Interpretation Act significantly changes this approach.

It must be remembered that the Explanatory Memorandum does not reflect the expressed will of the Parliament. Only the words of the Act itself do that.


The rights of an owner or occupier of premises have been protected by the common law for centuries. It was as long ago as 1604 where an English court said ‘the house of every one is his castle ….’

These statutory provisions, which interfere with the rights of property occupiers need to be construed with caution. Union officials exercising rights of entry must do so strictly in accordance with the way those rights are expressed in the Fair Work Act.

This decision is an example of the FWC recognising the importance of balance and construing the rights given by the Act strictly in accordance with their terms.