RIGHT OF ENTRY – dispute over right of entry – s.505 Fair Work Act 2009 – primary decision published 8 August 2017 and parties given opportunity to file submissions – applicant sought two orders – order requiring respondent to allow permit holders of the applicant to hold discussions with members and potential members under s.484 of the FW Act while they are on an actual break – order requiring respondent to provide a notice outlining respondent’s obligations – whether Commission would be exercising judicial power or arbitral power – whether an application invites use of judicial power depends on circumstances [Re Geelong Grammar School] – Commission must not confer rights on a permit holder that are additional to or are inconsistent with rights afforded under the FW Act [Police and Nurses Credit Society] – ascertainment of legal rights and obligations is classically a judicial function [CFMEU v BHPB] – in primary decision, Commission found permit holder of applicant was seeking to hold discussions with employees on four occasions and respondent prevented him from doing so – Commission noted first order did not seek to create any new rights or obligations – found first order essentially a restatement of provisions of FW Act which did not establish exercise of judicial power was being sought – found second order would assist to reduce right of entry disputes – satisfied making of orders would involve exercise of arbitral power, not judicial power – draft orders, effective for 12 months, given to parties – parties directed to file submissions by 1 September 2017. Construction, Forestry, Mining and Energy Union v Laing O’Rourke Australia Construction P/L t/a Pacific Complete
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