RIGHT OF ENTRY – dispute over right of entry – jurisdiction – ss.490, 505 Fair Work Act 2009 – application CFMEU to resolve a dispute regarding CFMEU permit holders exercise of right of entry at premises occupied by BHP – BHP submitted that Commission lacked jurisdiction to hear the matter as there was no relevant dispute between the parties – ‘dispute’ the subject of application had come to an end, and employees to which it related were no longer permitted to access premises – BHP further submitted that hearing the dispute and making any orders would be an exercise of judicial power and not arbitral power – CFMEU sought right of entry for permit holders before and after shifts – BHP submitted this did not fall within the scope of ‘other breaks’ as referred to in s.490(2) of FW Act – determination of this issue would involve statutory interpretation, requiring an exercise of judicial power – Commission satisfied that CFMEU sought a bare declaration of existing rights rather than resolution of an existing dispute, and that application sought the enforcement of an existing right, rather than the creation of a new right, which involved an exercise of judicial power – Commission also not satisfied ‘other breaks’ includes periods before or after shifts – application dismissed. Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West P/L
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