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Right of entry permits prevail over legislative confusion: A win for employers

Submitted on Wednesday, 16th August 2017

In a win for employers, the Full Federal Court of Australia confirm a CFMEU official called to a construction site to help a Health and Safety Representative (“HSR”) required a right to entry permit pursuant to federal law. 

In 2014, an employee and elected HSR asked a CFMEU official to attend the construction site to help with “OHS issues”. The official was asked to show his permit.  The official said “I don’t have to as I am not attending under the Fair Work Act”.  The official was asked to leave but refused to do so. Police were called.  Initially the police refused to remove the official, however they subsequently did and charged him for refusing to leave a private place without lawful excuse.  The charges were withdrawn. The official returned to the construction site.  Again, the police were called, however they refused to remove him. The Australian Building and Construction Commissioner commenced proceedings against the official for a civil penalty for contravening the Fair Work Act 2009 (Cth) (FW Act”).

The FW Act prohibits union officials from exercising a State or Territory right (including rights set out in the Occupational Health and Safety Act 2004 (Vic) (“OHS Act”)) unless they hold and can produce a valid right of entry permit. In contrast, the OHS Act allows a HSR to seek assistance of “any person” when inspecting “any part” of a workplace.

At first instance the Federal Court held there was no requirement for the official to have a federal permit to enter the worksite for a reason set out in the OHS Act. The decision was appealed.

The Full Federal Court unanimously upheld the appeal and confirmed the official was required to have a federal permit in accordance with the FW Act in order to enter the worksite and provide assistance to the HSR under the OHS Act.  

This decision confirms employers have the right to request an entry permit, even where a union official is on the worksite to investigate a suspected contravention of the OHS Act, and even if they are there at the request of the HSR. Despite the opportunity for a further appeal, the current interpretation allows for clarity and should work to diffuse stress and confusion regarding right of entry to a worksite. 

If you would like to gain a better understanding of the wide and ever increasing range of laws relating to equal opportunity, industrial relations, worker’s compensation and occupational health and safety attend our Employment Law: A Practical Perspective . The program will provide practical strategies and advice to help ensure your business meets its workplace responsibilities.

Federal Court of Australia VID 1361 of 2016

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