Full Federal Court Dismisses CFMMEU Appeal on Right of Entry

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, [NAME] v [COMPANY] [2018] FCAFC 107 Appeal from: Construction, Forestry, [NAME] v [COMPANY] [2017] FCA 991

File number: NSD 1644 of 2017

Judges: REEVES, RANGIAH AND O'[NAME] 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 [NAME] 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: [COMPANY] v Commissioner of Territory Revenue (2009) 239 CLR 27 [NAME] v Fair Work Australia [2012] FCAFC 85; (2012) 203 FCR 389 [NAME] v [COMPANY] (1905) 3 CLR 444 [NAME] v Accident Compensation Commission (1989) 167 CLR 543 [COMPANY] v Construction, Forestry, [NAME] [2017] FCAFC 43 [COMPANY] v [COMPANY] (1997) 187 CLR 384 Construction, Forestry, [NAME] v [COMPANY] (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 [NAME] v [NAME] (1888) 13 App Cas 595 R v Sharma (2002) 54 NSWLR 300 Re [COMPANY]; [NAME] (1986) 68 ALR 416 Repatriation Commission v [COMPANY] [APPELLANT] (2000) 48 NSWLR 548 [NAME] v [NAME] (2010) 241 CLR 252 [NAME] v Commissioner of Taxation (2013) 212 FCR 252 [NAME] (6th ed, [COMPANY], 2013) The [NAME] (2nd ed, [NAME], 1989)

Date of hearing: 7 March 2018

Registry: New South Wales

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 67

Counsel for the Appellant: [redacted]

[NAME]: [APPELLANT]

[NAME]: [COUNSEL] SC with [COUNSEL]

[NAME]: [COUNSEL] 1644 of 2017

BETWEEN: CONSTRUCTION, FORESTRY, MARITIME, [NAME] Appellant

AND: [APPELLANT] [COMPANY] First Respondent

[NAME] Respondent

[NAME] Respondent

JUDGES: REEVES, [RESPONDENT] AND [RESPONDENT] [NAME] OF ORDER: 6 July 2018

THE COURT ORDERS THAT:

1. The appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J: 1 This appeal raised a narrow issue of statutory construction concerning the expression "mealtimes or other breaks" in s 490(2) of the Fair Work Act 2009 (Cth) (the FW Act). That section of the FW Act determines when a [NAME] may exercise the right of entry under s 484 to enter premises for the purposes of holding discussions with one or more employees who perform work on the premises, whose industrial interests the [NAME]'s organisation is entitled to represent, and who wish to participate in those discussions. Both of these provisions appear in Part 3-4 of the FW Act, which is the Part dealing with "Right of entry". 2 It is unnecessary to rehearse the relevant provisions of the FW Act and the factual background to this appeal because they are more than adequately set out in the reasons of [NAME[NAME], which I have had the benefit of reading. I agree generally with his Honour's reasoning. I therefore agree with the conclusions he has reached and the orders he has proposed. My brief reasons for this agreement are as follows. 3 In the first ground of its notice of appeal, the Construction, Forestry, Maritime, [NAME] ([NAME]) claimed that: "[t]he [NAME] judge was in error in failing to construe the words 'other breaks' in ss.490(2) of the [FW Act] as meaning those times during the working hours of the premises when employees are not working at those premises". Thus, the [NAME]'s [NAME] contention in this appeal was that the periods before an employee commences work and after he or she has completed work fall within the expression "other breaks" during which a [NAME] may hold discussions under s 484 of the FW Act. 4 The [NAME] judge did not agree with this contention. In the [NAME] reasons (see Construction, Forestry, [NAME] v [COMPANY] (2017) 268 IR 355; [2017] FCA 991), his Honour held that "the natural and ordinary meaning of the phrase 'mealtimes or other breaks' … [was] those times when an employee may be at work but not physically engaged in discharging the responsibilities for which he has been employed" (at [35], third dot point). Further, and more importantly, his Honour held that the term "'breaks' … 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 [sic – or] after they have finished" (at [35], fourth dot point). 5 In my view, this construction accords with the natural and ordinary meaning of the phrase "mealtimes or other breaks" and is correct. According to The [NAME] (2nd ed, [NAME], 1989), the pertinent natural and ordinary meaning of the word "break" is (at item 8b) "an interruption of continuity … in a course of action or time". Similarly, according to the [NAME] (6th ed, [COMPANY], 2013), the word "break" relevantly means (at item 63): "an interruption of continuity; suspension; stoppage"; and (at item 65) "a brief rest, as from work, especially a midmorning pause, usually of fifteen minutes, between school classes". 6 The word "breaks" in the phrase "mealtimes or other breaks" in s 490(2) of the FW Act therefore refers to an interruption, suspension or stoppage to, or of, an employee's work. That interruption, suspension or stoppage may occur for any number of reasons, including: a rest break; a tea or coffee break; or a break to smoke a cigarette, hence the colloquial expression "smoko". However, since the word "mealtimes" precedes the expression "or other breaks", one form of break is excluded, for contextual reasons, namely a break to take a meal such as lunch or dinner. On the other hand, 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. 7 For these reasons and those expressed by O'Callaghan J, I do not consider the [NAME] judge committed any error in his construction of the phrase "mealtimes or other breaks". It follows that the [NAME]'s first ground of appeal has no merit. 8 The other three grounds of appeal raised by the [NAME] can also be disposed of briefly. First, contrary to what is stated in the second ground of appeal, in fact, the [NAME] judge did construe s 490(1) of the FW Act as meaning that a [NAME] who has complied with all the relevant provisions of Part 3-4 of the FW Act may enter premises during working hours. However, his Honour correctly held that the "purpose for which the right has been exercised, namely to hold discussions, may go unfulfilled", for example because the employee with whom the [NAME] wished to hold discussions was not present on the premises, or because no mealtimes or other breaks were then taking place, or even because the employees concerned did not wish to hold discussions with the [NAME] (at [28] of the [NAME] reasons). It follows that the [NAME] judge did not make an error to the effect stated in that ground of appeal. 9 The third ground of appeal was abandoned during the hearing. 10 The fourth and fifth grounds of appeal both depend on there being some ambiguity in the text of s 490(2) of the FW Act.

For the reasons given above, I do not consider any such ambiguity exists. Neither of these two grounds of appeal therefore manifests any error on the part of the [NAME] judge. 11 Since none of the [NAME]'s grounds of appeal has any merit, its appeal must be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 6 July 2018

REASONS FOR JUDGMENT

RANGIAH J: 12 I gratefully adopt the summary of the facts and background set out in the reasons of [NAME[NAME]. 13 Section 484 of the Fair Work Act 2009 (Cth) (the FW Act) allows [NAME] to enter premises for the purpose of holding discussions with certain employees who work on the premises. Section 490(2) of the FW Act then provides that, "The [NAME] may hold discussions under section 484 only during mealtimes or other breaks." 14 The issue in the appeal concerns the meaning of the phrase "during mealtimes or other breaks". The appellant contends that [NAME] may hold discussions with employees at all times, during the working hours of the premises, when the employees are not working; including before they have started their shifts. The respondent submits that the [NAME] judge correctly construed the phrase as allowing [NAME] to hold discussions only at times when the employees are not working during their working hours; and does not extend to times before or after their shifts. 15 The appellant seeks to draw support from the Explanatory Memorandum for the Fair Work Bill 2008 (Cth), which states that: An example of other breaks would include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises. 16 However, s 15AB of the Acts Interpretation Act 1901 (Cth) only permits extrinsic material to be considered where, relevantly, the statutory provision being construed is "ambiguous or obscure". That was made plain by the High Court in Re [COMPANY]; Ex parte [NAME] (1986) 68 ALR 416 at 420: [NAME] is also placed on a sentence in the second-reading speech of the Minister when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not [NAME] recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. 17 The appellant submits that the phrase "during mealtimes or other breaks" is at least ambiguous – it could refer, not just to breaks within a period of work, but also to breaks between periods of work. It submits that this ambiguity allows the Explanatory Memorandum to be considered. 18 In R v Sharma (2002) 54 NSWLR 300, [NAME] (with whom [NAME], [NAME] and [NAME] [NAME] agreed) said at [55]: The use of the expanded phrase "ambiguous or obscure" indicates that the [NAME] did not intend to adopt a narrow definition of "ambiguous". Not without irony, the word "ambiguous" may itself be used in different senses. "Ambiguity" is not [COMPANY] to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It often extends to circumstances in which the meaning is, for whatever reason, doubtful. [See also Repatriation Commission v [COMPANY] [APPELLANT] (2000) 48 NSWLR 548 at [116]]. 19 In R v Sharma at [57], [NAME] cited the following passage from the judgment of [NAME[NAME] in [NAME] v [COMPANY] (1905) 3 CLR 444 at 456–457: It has been contended in this case that an ambiguity must appear on the face of a Statute before you can apply the rules of interpretation relating to ambiguities. In one sense that is correct, and in another sense it is not. You will frequently find an Act of [NAME] perfectly clear on the face of it, and it is only when you apply it to the subject matter that the ambiguity appears. That ambiguity arises frequently from the use of general words. And wherever general words are used in a Statute there is always a liability to find a difficulty in applying general words to the particular case. It is often doubtful whether the [NAME] used the words in the general unrestricted sense, or in a restricted sense with reference to some particular subject matter. 20 The respondent submits that there is no ambiguity in s 490(2) of the FW Act. The respondent argues that the phrase "mealtimes or other breaks" must be considered as a whole and that it would be artificial to construe "other breaks" as if those words were not linked with "mealtimes". The argument continues that, in this context, the phrase must refer only to breaks within a period of work. The respondent submits that as there is no ambiguity, the applicant cannot resort to Explanatory Memorandum. 21 The respondent's approach seeks to read down the general words "or other breaks" by reference to the preceding word "mealtimes". The very necessity to read down the general words by reference to their context confirms that more than one meaning of the text is open. In my opinion, the phrase is, on its face, capable of being interpreted as encompassing breaks between periods of work, as well as breaks within a period of work. It is ambiguous. 22 However, s 15AB of the Acts Interpretation Act has been construed as restricting the use that may be made of extrinsic material, even where there is ambiguity on the face of a statutory provision. In [NAME] v [NAME] (2010) 241 CLR 252, the plurality of the High Court said at [33]: As was pointed out in [NAME] v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction. 23 In [NAME] v Accident Compensation Commission (1989) 167 CLR 543, [NAME] and [NAME] observed at 550: If the meaning which would otherwise be attributed to the statutory text is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful (to use a neutral term rather than those to be found in s 15AB(1) of the Acts Interpretation Act), that consideration of extrinsic material might be of assistance. It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material. 24 In [COMPANY] v Commissioner of Territory Revenue (2009) 239 CLR 27, the High Court said at [47]: [ADDRESS] has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Citations omitted). 25 There may be some inconsistency between these authorities and [COMPANY] v [COMPANY] (1997) 187 CLR 384. In that case, the plurality, after referring to s 15AB of the Acts Interpretation Act, said at 408 that, "the modern approach to statutory interpretation…insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise". Their Honours explained that "context" encompasses the mischief the statute is intended to cure and that a court may refer to extrinsic material to ascertain that mischief. That approach suggests that extrinsic material may be considered in the first instance as part of ascertaining the context in order to resolve an ambiguity. A similar approach was taken in R v Sharma at [58]. However, the more recent judgments of the High Court are binding. It must be concluded that the correct approach precludes consideration of extrinsic materials before exhausting the application of the ordinary rules of statutory construction. 26 Accordingly, the respondent's approach, which begins by attempting to construe s 490(2) of the FW Act by reference to its text and context without recourse to the Explanatory Memorandum, is correct. Only if ambiguity remains, can the Explanatory Memorandum be considered. 27 The appellant's construction of s 490(2) of the FW Act focuses on the words "other breaks" and tends to ignore the word "mealtimes". But, as [NAME] (with whom Besanko J agreed) observed in [NAME] v Commissioner of Taxation (2013) 212 FCR 252 at [34]: The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision. 28 The phrase "during mealtimes or other breaks" must be construed as a whole. The word "mealtimes" gives context to the words "other breaks". Mealtimes are breaks from work that occur within a period of work. The coupling of "other breaks" with "mealtimes" suggests that the former expression refers to breaks that are of a similar type to the latter. In other words, "other breaks", like mealtimes, are breaks from work that occur within a period of work. 29 That construction is supported by s 492(3) of the FW Act, which allows a [NAME] to hold discussions in any room or area of the [NAME]'s premises in which the employees "ordinarily take meal or other breaks" and which is provided "for the purpose of taking meal or other breaks". The "meal or other breaks" envisaged are [COMPANY] to those that are, or may be, spent at the [NAME]'s premises. Such breaks are, therefore, envisaged to be taken within a period of work, rather than between periods of work. The phrase "mealtimes or other breaks" in s 490(2) is not distinguishable from "meal or other breaks" in s 492(3). The provisions should, accordingly, be interpreted consistently with each other. 30 Further, if the appellant's argument were accepted, its logical extension would be that a [NAME] could enter an [NAME]'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. That would be an incongruous result which would not easily fit within any ordinary conception of a [NAME]'s entitlement to enter premises to hold discussions with employees "during mealtimes or other breaks". 31 When s 490(2) of the FW Act is construed according to its text and context, no ambiguity remains. Therefore, there is no basis to have recourse to the Explanatory Memorandum. In any event, even if the Explanatory Memorandum could be considered, its content could not displace the strong countervailing considerations. 32 For these reasons, I consider that the [NAME] judge was correct to hold that s 490(2) of the FW Act only permits a [NAME] to enter premises for the purpose of holding discussions with employees during mealtimes or other breaks from work that occur during their working hours. I agree that the appeal should be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate: Dated: 6 July 2018

REASONS FOR JUDGMENT

[NAME[NAME]:

Summary 33 The Fair Work Act 2009 (Cth) (the FW Act) establishes a regime by which [NAME] are given permits allowing them to gain access to work premises in certain circumstances. One provision of the FW Act gives a [NAME] the right to enter work premises during working hours to "hold discussions" with employees. Those discussions may be held, pursuant to s 490(2) of the FW Act, "only during mealtimes or other breaks". The issue that arises on this appeal is whether a discussion held at work premises between an employee and a [NAME] before the employee commences work is held during a "break" for the purposes of the relevant FW Act provision. 34 The appellant contends that the entitlement to enter premises "during mealtimes or other breaks" [emphasis added] means that [NAME] may enter premises to hold discussions with employees at any time that the employee is at work and not working. The appellant contends that "break" means not only a break within working hours (such as morning tea, lunch, afternoon tea, "smoko" or "crib") but a break between periods of work, such as times at which an employee is present at work, but not working. The appellant says, in the alternative, that the phrase "only during mealtimes or other breaks" is ambiguous and that regard must therefore be had to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (the Explanatory Memorandum) that gives, as an example of "other breaks," "holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises". 35 The [NAME] judge rejected those contentions and dismissed the appellant's application for declarations that the respondents had contravened s 501 of the FW Act, which provides that a person "must not refuse … entry onto premises by a [NAME] who is entitled to enter the premises in accordance with [Part 3-4 of the FW Act]." 36 In my view, the appellant's construction of s 490(2) is untenable because a "mealtime or other break" is, as matter of ordinary English, an interruption in the continuity of the employee's employment. Therefore, it must necessarily occur during, not before or after, working hours. There being no ambiguity, the point about the Explanatory Memorandum must also fail. 37 For the reasons that appear below, the [NAME] judge was correct to dismiss the application and the appeal should be dismissed.

The Fair Work Act 2009 (Cth) 38 Before turning to the facts, it is convenient to set out the relevant provisions of the FW Act. 39 Part 3-4 of the FW Act is headed "Right of entry". The object of Part 3-4 is contained in s 480 and reads: Object of this Part The object of this Part is to establish a framework for officials of organisations to enter premises that balances: (a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of: (i) this Act and fair work instruments; and (ii) State or Territory OHS laws; and (b) the right of employees and [NAME] to receive, at work, information and representation from officials of organisations; and (c) the right of occupiers of premises and employers to go about their business without undue inconvenience. 40 Subdivision B is headed "Entry to hold discussions". Section 484 provides: Entry to hold discussions A [NAME] may enter premises for the purposes of holding discussions with one or more employees or [NAME]: (a) who perform work on the premises; and (b) whose industrial interests the [NAME]'s organisation is entitled to represent; and (c) who wish to participate in those discussions. 41 Section 490 relevantly provides: When right may be exercised (1) The [NAME] may exercise a right under Subdivision … B only during working hours. (2) The [NAME] may hold discussions under section 484 only during mealtimes or other breaks. (3) The [NAME] may only enter premises under Subdivision … B on a day specified in the entry notice or exemption certificate for the entry.

The facts 42 Mr [NAME] and Mr [NAME] are employed by the Construction, Forestry, Maritime, [NAME], the appellant (the [NAME]). Each of them was issued with an entry [NAME] under s 512 of the FW Act. On 12 October 2015, pursuant to the FW Act, they gave written notice of their intention, to "hold discussions with any employee who performs work on the premises," being [NAME] at Kwinana ([NAME]), on 14, 15 and 16 October 2015. [NAME] was operated by the first respondent, [RESPONDENT] ([NAME]), whose employees' industrial interests the [NAME] is entitled to represent. The notice also requested [NAME] to "[p]lease make the necessary arrangements to ensure that these employees have easy access to the arena allocated for the discussions during their mealtimes and other breaks in accordance with section 492 of the Act." 43 [NAME] operates 24 hours a day, seven days a week. There are two shifts: 6am to 6pm and 6pm to 6am. Day shift employees generally arrive at [NAME] and go to their allocated crib room (or "donga") at about 5.30am to prepare for their upcoming shift and to attend a pre-start meeting with their supervisor. At this meeting, among other things, safety incidents, concerns or issues are discussed. Night shift employees do the same things at the other end of the day, before they start their shift. Standard break times at [NAME] were "smoko" at 9am and 3pm, and lunch at midday. 44 Upon receipt of the notice, [NAME]'s Manager, Employee Relations, Ms [NAME], emailed Mr [NAME] asking whether he and Mr [NAME] wanted to hold discussions with [NAME] employees or with contractors, and, if so, which ones. Mr [NAME] responded that the "intent at this stage is to … visit members and potential members for the period 0515 and 0630 and during their crib and meal breaks." Ms [NAME] replied, telling both Mr [NAME] and Mr [NAME] that "there are no breaks, crib or meal times between 0515 – 0630 and you will not be able to facilitate a [right of entry] at this time". They were also told that "crib times for employees" were "Smoko – 9am, 3pm. Lunch Midday". 45 Mr [NAME] responded on 13 October 2015, invoking the terms of an Explanatory Memorandum, relevantly in these terms: [[NAME]] Officials can exercise their right of entry before employees commence their shift. The Fair Work Act 2009 (Act) makes clear that a right of entry may be exercised during working hours and during mealtimes or other breaks. For guidance as to what is meant by 'other breaks' I refer you to the Explanatory Memorandum to the Fair Work Bill 2008, and specifically para. 1962. Here it makes clear that other breaks, would include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises. I have been advised that work for our members starts at 6:00 and we have no reason to doubt this, nevertheless, the premises are quite clearly in operation prior to this as a multitude of people on the premises have commenced work for the day. Given our intention to have our first meeting with members and prospective members at 0515, Mr [NAME] and I will be on site at 0500 for our visitor induction. Can you please advise site personnel of this to ensure we are inducted in time for us to exercise our Right of Entry. (Emphasis in original). 46 Ms [NAME] responded later on 13 October 2015: [NAME] agree that you may exercise right of entry and hold discussions with your members "only during mealtimes or other breaks". However, we do not agree that, in the case of this site, the period before and after the relevant employee's shift is an "other break" for the purposes of section 490(2) of the Fair Work Act 2009 (Cth). It is the text of the Act that is relevant, and it is clear and unambiguous in this case. One can obviously not be on a "break" from work, if one has not started work. The Explanatory Memorandum provides an example which may apply in some cases. However, there is no designated break before or after the relevant employee's shifts on this site. Therefore, you and Mr [NAME] may attend the site to perform your inductions at 5.00am. However, you may only hold discussions between the mealtimes and other breaks of the relevant employees, being 9.00am, 12.00pm and 3.00pm as referred to in my previous letter. If you wish to hold discussions with the relevant employees outside of those times, you may of course do so separately and not on site, this includes the car park and smoking hut. (Emphasis added) 47 Mr [NAME] and Mr [NAME] arrived at [NAME] on 14 October 2015 at about 5am. The second and third respondents, on behalf of [NAME], refused them entry at that time. One or other, or both, of Mr [NAME] and Mr [NAME] returned to [NAME] later at or about 9am. They were granted entry and held discussions with employees during crib or smoko breaks at 9am and midday on 14 October 2015 and then again at midday, 3pm and 9pm on 15 October 2015.

The proceeding below 48 In March 2017, the [NAME] commenced a proceeding in this court seeking the imposition of penalties and declarations that the respondents had contravened s 501 of the FW Act, in substance, by refusing entry in the circumstances set out above. 49 The [NAME] judge dismissed the application, principally because "the constraint implicit in the term "breaks", namely 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 [or] after they have finished". 50 The relevant clauses of the Explanatory Memorandum upon which the [NAME] relied in its letter to [NAME], and before the trial judge, provide as follows: Clause 484 – Entry to hold discussions [1938] This clause authorises a [NAME] to enter premises for the purpose of holding discussions with persons at the premises if one or more of those persons: • perform work on the premises; • are entitled to be represented by the [NAME]'s organisation; and • wish to participate in those discussions. [1939] The Bill limits when discussions can be held to mealtimes or other break periods. Discussions cannot occur during paid work time (see subclause 490(2)). … Clause 490 – When right may be exercised [1960] This clause specifies the time during which entry rights under this Division can be exercised. [1961] Entry to premises to hold discussions or to investigate a suspected contravention may only occur during working hours (see subclause 490(1)). Working hours refers to the actual operating hours of the premises that the [NAME] wishes to enter. In addition, [NAME] may only enter on a day specified in the entry notice or the exemption certificate for the entry (see subclause 490(3)). [1962] When entering for discussion purposes under Subdivision B, a [NAME] may only hold the discussion during mealtimes or other breaks (subclause 490(2)). Discussions cannot occur during paid work time. An example of other breaks would include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises. [1963] If a [NAME] seeks to hold discussions outside break times, she or he would not be authorised to enter or remain on the premises because of the operation of clause 486. 51 The [NAME] judge, after noting that the [NAME] sought to place particular reliance on paragraph [1962], said this: [41] … The facts presented in the current proceeding, it was submitted on behalf of the Applicant, was the very example contemplated in para [1962] as being a lawful exercise of the right of entry. So much may be assumed. [42] There are nevertheless two difficulties confronting reliance being placed upon the Explanatory Memorandum in the present circumstances, namely: • although it is not necessary to first ascertain an ambiguity before recourse may be had to secondary material (cf. [COMPANY] v [COMPANY] (1997) 187 CLR 384 at 408 per [NAME], [NAME], [NAME] and [NAME]; Australian Securities and Investments Commission v [NAME] [COMPANY] [2005] FCAFC 226 at [11], (2005) 148 FCR 132 at 136 per [NAME], [NAME] and [NAME]), reliance may be placed upon secondary material such as the Explanatory Memorandum to "determine the meaning" (for example) of a provision which is "ambiguous or obscure" (Acts Interpretation Act 1901 (Cth) s 15AB(1)(b)). In the present case it is not considered that there is any ambiguity or obscurity in meaning and the meaning and application of ss 484 and 490 can be resolved by reference to the natural and ordinary meaning of the words employed by the [NAME]; and • reliance cannot be placed upon secondary material to alter the meaning to be given to the natural and ordinary meaning of the words employed by the [NAME]. The words of an Explanatory Memorandum or the "words of a Minister", it has been said, "must not be substituted for the text of the law" ([NAME]; Ex parte [NAME] (1987) 162 CLR 514 at 517 to 518 per [NAME], [NAME] and [NAME]. In the case of an Explanatory Memorandum, see: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v [COMPANY] (No 2) [2010] FCA 652 at [22] per Logan J). "The function of the Court is to give effect to the will of [NAME] as expressed in the law": [NAME]; Ex parte [NAME] (1987) 162 CLR 514 at 518 per [NAME], [NAME] and [NAME]. See also: [NAME], [COMPANY] v [COMPANY] (in liq) (rec and mgr appointed) [2017] NSWCA 8 at [90] per Ward JA ([NAME] P agreeing). [43] Reliance, it is thus respectfully concluded, cannot be placed upon the Explanatory Memorandum, or even if it can, such reliance cannot displace the natural and ordinary meaning of the words employed by ss 484 and 490 so as to authorise the entry upon the premises sought by [NAME] and [NAME].

The appeal 52 The [NAME] relied on the following inter-related grounds of appeal: (1) The [NAME] judge was in error in failing to construe the words 'other breaks' in s 490(2) of the [FW Act] as meaning those times during the working hours of the premises when employees are not working at those premises. (2) The [NAME] judge was in error in failing to construe [s] 490(1) so as to [NAME] a [NAME] to enter premises for any of the purposes in Subdivisions A, AA or B of the Part 3-4 of the [FW Act] during working hours. (3) [Abandoned at the hearing] (4) The [NAME] judge erred in finding that the words 'other breaks' in [s] 490(2) were not ambiguous. (5) The [NAME] judge was in error in failing to have regard to the Explanatory Memorandum to the Act in circumstances where the words 'other breaks' were ambiguous and, in any event, so as to elucidate upon the policy of the provision and the mischief that the provision was designed to address. 53 In substance only one point arises from the grounds of appeal – what is the proper meaning of the phrase "other breaks" for the purposes of s 490(2) of the FW Act? 54 It is to that question that I now turn.

The proper construction of s 490(2) of the Fair Work Act 2009 (Cth)

Plain and ordinary meaning 55 The word "break" must be construed in the context of the phrase "mealtimes or other breaks": see Lorimer v Smail (1911) 12 CLR 504 at 510 ("It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed", [NAME[NAME] quoting [NAME] in [NAME] v [NAME] (1888) 13 App Cas 595 at 599); Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152, [2007] NSWCA 190, [13] ("The relevant sub-principle for present purposes is the maxim propounded by Lord [NAME]: copulatio verborum indicat acceptationem in eodem sensu – the linking of words indicates that they should be understood in the same sense. As Lord [NAME] CJ once put it, where a word "stands with" other words it "must mean something analogous to them". (Evans v Stevens (1791) 4 TR 224; 100 ER 986 at 987).) 56 In my view, the [NAME]'S contention that "break" means not only a break within working hours, but also includes a "break" between periods of work, including times at which an employee is at work preparing to start work, is untenable. It flies in the face of the ordinary English meaning of the word when the word is linked to the word "mealtimes", and must therefore be understood in the same sense as the word "mealtimes". 57 Of course, as counsel for the [NAME] submitted, we speak, when telling someone of our holiday plans, of taking a "break" from work. "Break" can, in that context, mean a time at which one is not at work. But "break" in that sense cannot sensibly be linked with mealtimes. In this case, as counsel for [NAME], Mr [COUNSEL], submitted, the ordinary meaning of the word "break" in the context of the phrase "mealtimes or other breaks", means an interruption in the continuity of an employee's work. That is what the relevant definitions in the dictionaries say. See, for example, the [NAME], 2nd ed, which defines the noun "break" to mean "[a]n interruption of continuity … in a course of action or time". 58 Mr [NAME] submitted in oral argument that "[t]he expression 'mealtimes or other breaks' is a composite expression. The word 'other' indicates that the two nouns are in the same class. A mealtime is break that is axiomatically taken … after the commencement of scheduled working hours and before its conclusion – during the working day, during the shift – and it wouldn't be sensible … to read it as meaning anything else". 59 I agree. It follows that a "break" within the meaning of s 490(2) must likewise, just as axiomatically, be taken to refer to an period of rest after work has commenced and before it has finished. It is telling, in my view, that counsel for the [NAME] (Mr [COUNSEL], who appeared with Mr [APPELLANT]) were driven by the inexorable logic of their principal contention (that the entitlement to enter premises "during mealtimes or other breaks" means that [NAME] may enter premises to hold discussions with employees at any time that the employee is at work and not working) to say that "breaks" must, on that construction, include all times at which employees are away from work, whether on nights or days between periods of work (here, shifts), on weekends or on holidays. In my view, with respect to counsel, that is an untenable contention and it highlights the absurdity of the principal contention. 60 Section 484 and s 490(2) of the FW Act must obviously be read together. Apart from anything else, s 490(2) says that the discussions contemplated are "discussions under section 484". As the [NAME] judge said, correctly in my view, it follows that "[t]he right conferred by s 484 is not a right conferred at large; it is a right relevantly confined to holding discussions with a confined class of employees, namely those whose industrial interests the [NAME] is entitled to represent, and further is a right confined to holding discussions with that class of employees 'during [their] mealtimes or other breaks'".

Explanatory Memorandum 61 As for the Explanatory Memorandum, I would, with great respect, adopt without elaboration the reasoning of the learned [NAME] judge on the point at [42]-[43]. There is no ambiguity in the phrase "mealtimes or other breaks", and to read the phrase to "include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises" (the example used in the Explanatory Memorandum is impermissible for the reasons given by the [NAME] judge. 62 That is sufficient to dispose of the grounds of appeal.

Other reasons of the [NAME] judge 63 The [NAME] judge also said that the construction of the phrase "mealtimes and other breaks" that he preferred is supported by the fact the [NAME] sought (as s 480 says) to balance the interests of [NAME] and occupiers, including because the rights conferred by s 484 are conferred only on those persons to whom a [NAME] has been granted (who must be "fit and proper" person) (s 512); can only be exercised for stated purposes, such as "holding discussions" with those employees "whose industrial interests the [NAME]'s organisation is entitled to represent" (s 484); may be the subject of conditions imposed (ss 507 and 515); and requires the giving of notice (s 487): see judgment at [36]. The [NAME] judge also said, at [37], that another reason to prefer [NAME]'s construction of the phrase was that, because it diminished the rights of an [NAME], s 484 should not be construed as conferring any greater right than is necessary to achieve its stated purpose, citing [NAME] v Fair Work Australia [2012] FCAFC 85; (2012) 203 FCR 389. Speaking for myself, I am not persuaded that either of those considerations to which the [NAME] judge referred is of assistance in this case, where the only issue is the meaning of the phrase "mealtimes and other breaks" in the context of s 490(2). 64 The [NAME] judge also said that, acceptance of the construction sought to be placed upon s 490(2) by the [NAME] "could be seen as running contrary to the observations" of [NAME] and [NAME] in [COMPANY] v Construction, Forestry, [NAME] [2017] FCAFC 43 at [35]. I agree with the [NAME]'s submission that the passage to which the [NAME] judge referred (albeit by way of an aside) does not bear on the issue of construction in this case.

Conclusion 65 Given that Mr [NAME] and Mr [NAME] were, in accordance with their request, allowed access to [NAME] on multiple occasions on 14 and 15 October 2015 after they were refused entry in the early hours of 14 October, and given that there was no evidence about why it was important for them to meet employees between 5.15am and 6am, rather than a few hours later, it is difficult to understand why this matter should have occupied the court's time. 66 Mr [NAME] and Mr [NAME] in their capacity as [NAME] had no right to enter [NAME] premises in the early hours of 14 October 2015, and they were rightly refused entry, because their stated purpose – being to hold discussions with employees at a time other than a mealtime or other break – was to propose to hold discussions under s 484 that s 490(2) did not allow. 67 For those reasons, I would dismiss the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate: Dated: 6 July 2018