Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107 Appeal from: Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991

File number: NSD 1644 of 2017

Judges: REEVES, RANGIAH AND O'CALLAGHAN JJ

Date of judgment: 6 July 2018

Catchwords: INDUSTRIAL LAW – appeal from decision of single judge – where s 490(2) of the Fair Work Act 2009 (Cth) confers right for union representatives to access work premises to hold discussions with employees "during mealtimes or other breaks" – whether holding discussions before an employee's shift is permitted under s 490(2) – meaning of the term "breaks" – finding that ordinary meaning of the term "break" necessarily implies an interruption in continuity – discussions to occur during, not before or after, a work shift STATUTORY INTERPRETATION – whether the phrase "mealtimes or other breaks" is ambiguous – whether appropriate to have regard to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) – where Explanatory Memorandum includes "holding discussions before or after an employee's shift" as an example of a "break" – finding that the phrase "mealtimes or other breaks" is unambiguous – finding that recourse to the Explanatory Memorandum is not merited – appeal dismissed

Legislation: Acts Interpretation Act 1901 (Cth) Fair Work Act 2009 (Cth) Fair Work Bill 2008 (Cth)

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85; (2012) 203 FCR 389 Bowtell v Goldsbrough Mort & Co Ltd (1905) 3 CLR 444 Catlow v Accident Compensation Commission (1989) 167 CLR 543 Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd (2017) 268 IR 355; [2017] FCA 991 Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152, [2007] NSWCA 190 Lorimer v Smail (1911) 12 CLR 504 Mersey Docks and Harbour Board v Henderson Bros (1888) 13 App Cas 595 R v Sharma (2002) 54 NSWLR 300 Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Others (2000) 48 NSWLR 548 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Sea Shepherd v Commissioner of Taxation (2013) 212 FCR 252 Macquarie Dictionary (6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013) The Oxford English Dictionary (2nd ed, Clarendon Press, 1989)