Draglines for work or smoko?
Unprecedented union access possible after landmark FWC appeal decision.
Wednesday 24 January 2018
BHP faces the prospect of having to shut down draglines to allow union access following a successful appeal in the Fair Work Commission (FWC) this week.
The CFMEU has won the right to appeal a 2015 ruling which found that the area located on a Dragline between the engine housing and the operator's chair - which is often used for eating meals - did not constitute a “specified location” for union meetings under the Act.
In what is an argument mostly about the meaning of words, Deputy President Asbury formerly ruled that using this area of a Dragline was not supported by the act and would be impractical.
“I am of the view that the specified areas are not rooms or areas within the meaning of section 492(3) [in the Act],” she said at the time.
“The evidence establishes that the specified areas are primarily functional work areas...within operating pieces of equipment.
“That a functional work area on a Dragline has facilities in which employees can store and prepare food and drinks to consume either in the area itself or in the operating cabin of the Dragline, does not make it an area provided to take meals or other breaks.”
However, the CFMEU has this week won the right to appeal that decision, which has big implications for Union workplace access rights everywhere.
In allowing them to appeal, a full bench of the FWC said it came to a different conclusion than that reached by Deputy President Asbury in 2015.
“In our view, subject to compliance with all other provisions relating to the right of entry, a permit holder can access the specified locations because they are provided by BHP Billiton Mitsubishi Alliance for the purpose of taking meals and other breaks.
“We therefore respectfully disagree with the conclusion reached by the Deputy President.
“We grant permission to appeal due to the importance of this matter, and it involves the interpretation and application of a relatively new and somewhat contentious provision of the Act."
In late 2014 when the CFMEU first took the issue to the Fair Work Commission - BHP coal boss Dean Dalla Valle said the Union had been offered alternative venues nearby and that allowing Union Permit holders to enter Draglines would have huge production implications.
“This request for the CFMEU to meet the two operators in the cabin of the dragline would require the dragline to be stopped to ensure the safety of employees, resulting in a substantial operational impact,” he said.
“Every hour a dragline is shut down is a significant cost and loss of productivity; despite being offered an alternative venue close by, the CFMEU has taken the matter to the Fair Work Commission to press its claim to meet in the dragline cabin itself.
“This dispute, one of around 75 disputes between the CFMEU and our coal operations, is ongoing and a typical example of the distraction and impact to our operations that we face daily.”