THE Federal Court of Australia has rejected the CFMEU’s appeal of an important right of entry decision which could mean union officials who leave a workplace in which they had an entry permit can be lawfully refused or delayed re-entry to that workplace.

The CFMEU’s appeal related to a 2013 decision by Federal Circuit Court Judge Robert Cameron (then Federal Magistrates Court), who found Hume Highway Constructions director Anthony Gittany did not breach his obligations under the Fair Work Act by refusing the union’s officials re-entry to a worksite after they had left to inspect an adjacent public car park.

Justice Dennis Cowdroy of The Federal Court of Australia rejected all three of the CFMEU’s basis for appeal and upheld orders for the union to pay half Mr Gittany’s legal costs.

Background and first decision

In the initial incident on 6 December 2011, officials of the CFMEU were allowed onto Hume Highway Constructions’ main worksite to lawfully carry out OHS inspections under a right of entry permit. The union then left the main site in Yagoona, NSW, to inspect an adjacent car park where concrete pouring was occurring.

On ordering the concrete pour cease due to an alleged safety breach, the CFMEU officials became involved in a heated argument with Mr Gittany and some of his workers, resulting in the company calling the police.

While waiting for police to arrive, Mr Gittany refused the union officials re-entry to the main worksite, citing safety concerns. Shortly after, under police supervision, Mr Gittany allowed the officials back onto the site.

The CFMEU initiated proceedings in the Federal Magistrates Court (since renamed the Federal Circuit Court), arguing that the delay contravened the right of entry provisions restricting employers from refusing or delaying worksite access to union officials.

On 16 April 2013, Judge Cameron ruled in favour of Hume Highway Constructions and Mr Gittany on the primary basis of site control ambiguity.

Namely, it was ruled the CFMEU failed to provide sufficient evidence that the public car park was a site controlled by Hume. It was ruled the union officials had thus had left Hume’s workplace when it moved from the main site onto the car park, and in the context of a potentially violent confrontation, Mr Gittany was lawfully within his rights to refuse the union re-entry to the main site.

Appeal decision

With Hume in liquidation, Mr Gittany was the sole respondent to the CFMEU’s appeal of Judge Cameron’s ruling. On 3 March 2014, Cowdroy J ruled in favour of the former company director by upholding all bases for Judge Cameron’s original decision.

Like Judge Cameron, Cowdroy J found great ambiguity in the CFMEU’s evidence of the car park being controlled by Hume Highway Constructions, as required by the Fair Work Act.
Cowdroy J ruled that the CFMEU officials’ right of entry “concluded when they left the premises for the car park”. He said Judge Cameron was correct in ruling that:

“They (the CFMEU) might have asserted a right to enter the Premises for a second time once they had completed their dealings with the concrete pump operator but they did not embark upon the exercise of the right until they had actually re-entered the Premises. Consequently, any hindrance or obstruction in the car park of their right to re-enter the Premises did not affect a right which was in the course of being exercised or amount to a contravention [of the Fair Work Act].”

Ignoring inconsistencies in evidence provided by the CFMEU relating to the conflict situation, Cowdroy J also agreed that Mr Gittany’s decision to call police before allowing union officials’ re-entry to the Yagoona site did constitute refusal or undue delay. Specifically, J Cowdroy said:

“…in light of the risk to public order that re-admitting the CFMEU representatives onto the premises would likely present, the condition imposed upon their re-entry by Mr Gittany was prudent and appropriate. It was also noted that the police did not take long to arrive at the premises.”

The Federal Court also upheld the decision to force the CFMEU to pay half of the company’s legal costs associated with the hearing, arguing that:

“…the CFMEU’s failure to substantiate allegations with evidence indicated an absence of such evidence… [concluding] that there was no reasonable cause for the CFMEU to allege a contravention of the [Fair Work Act].”

For a fully copy of the appeal decision, click here.

Implications for AMMA members

The laws governing union site access under the Fair Work Act 2009 can be a complex and risky area for employers to navigate.

This case sets a precedent that could mean that as long as they are acting in a prudent and responsible manner, company site controllers can refuse or delay union officials’ re-entry to a workplace once they have left.

The implication is that a union site entry permit may not legally give officials the right to re-entry a worksite, particularly in the occurrence of a dispute or confrontation with on-site company representatives who believe there is a safety risk to their workers by allowing unions back on-site.

Any AMMA members who are unsure of their obligations regarding union site entry permits should contact AMMA’s consultants via 1800 627 771 or via your local AMMA office.