Full Court throws out CFMMEU appeal over definition of work ‘breaks’
Employment July 6, 2018 9:49 pm By Miklos Bolza | Sydney

The Full Federal Court has dismissed an appeal by the CFMMEU claiming the times before and after work shifts counted as “breaks” in which it could meet with union members at a BHP Billiton mining site.

The CFMMEU filed proceedings against BHP Billiton Nickel West in March 2017, accusing the mining giant of breaching the Fair Work Act by denying union officials, Doug Heath and Troy Smart, access to a mining site in Kwinana, Western Australia from 5.15am to 6.30am on October 12, 2015.

BHP contended that the union’s right to entry to speak to members only fell within mealtimes and two smoking breaks scheduled during the employees’ 12-hour shifts which started and ended at 6am and 6pm. The CFMMEU disagreed, saying Section 501 of the Fair Work Act included “other breaks” which could include times prior to or after a worker’s shift.

In August 2017, Justice Geoffrey Flick ruled against the CFMMEU, finding that a “break” could only be confined to within work hours, and pointing to the general English definition of the word itself.

Namely, the Judge said, the word was “a term which implicitly conveys the notion that there is a ‘break’ in something which is otherwise happening, it not being possible to have a ‘break’ during the working hours of an employee before the working hours of that particular employee or class of employee commences of after they have finished.”

In the Full Court judgment delivered Friday, Justice John Reeves agreed with Judge Flick’s characterisation of the matter.

“[The] period before an employee commences work is not, in my view, a period where the employee is taking a break from work. That is so because the employee’s work has not yet begun, such that there can be said to be any interruption, suspension or stoppage to, or of, it, and this similarly applies to the period after an employee ceases work.”

Justice Darryl Rangiah also agreed, pointing out the errant consequences of the CFMMEU’s definition of “break”.

“[If] the appellant’s argument were accepted, its logical extension would be that a permit holder could enter an occupier’s premises to hold discussions with an employee, not just immediately before or after a period of work, but, for example, if an employee were to visit the premises during a period of annual leave or long service leave.”

BHP Billiton was represented by Herbert Smith Freehills, while the CFMMEU was represented by its legal branch.

The Full Court was made up of Justices John Reeves, Darryl Rangiah and David O’Callaghan.

The case is Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd & Ors.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.