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Site access ruling clarifies entry permit requirements

AREEA Head of Policy Sarah Cerche (pictured) examines a Full Federal Court decision involving the requirement to hold a federal right of entry permit when entering building sites in Victoria.

In a ruling sure to attract significant commentary, the Full Federal Court last week overturned a single judge’s decision in 2016 that entry onto a Victorian construction site for the purposes of assisting an elected Health and Safety Representative (HSR) did not involve that person exercising a “right” under a State or Territory OHS law.

The Full Court determined that the right to be granted access to a workplace to assist an HSR under s70(1) of the Occupational Health and Safety Act 2004 (Vic) (Vic Act) was in fact the exercise of a right requiring, for the purposes of s494 of the Fair Work Act 2009 (FW Act), the union official to hold a permit.

In the first instance, the decision was appealed by the Australian Building and Construction Commissioner (ABCC) who had pursued a civil penalty against a CFMEU official for repeatedly entering a work site despite not holding a valid federal entry permit.

According to the ABCC, the official had been exercising a “right” under the Vic Act when entering the worksite at the request of a validly appointed HSR to assist the HSR in performing his duties.

The full court decision analysed in depth the meaning of a “State and Territory OHS right”, as well as the historical development of the provisions in the Vic Act.

Justice Bromberg had initially determined that the right of access was owed to the HSR rather than the assistant.

He determined that the official was seeking to enter the premises to assist a HSR, which was not in an industrial or representative capacity.

Accordingly, he was not exercising a relevant right under the Vic Act.

Due to the official not exercising a right, he was not required to hold a federal permit.

The Full Federal Court disagreed.

Background

The court heard that on four occasions in 2014, a health and safety representative on a construction project at Ringwood, Victoria, asked the union official to attend the building site to assist him in dealing with health and safety issues relating to various matters.

The union official came on to the site, and on each occasion, refused to show an entry permit.

After refusing to leave, police were called.

In the first instance, police believed he was entitled to be on the site, before being removed by police at his second visit and being charged under s 9(f) of the Summary Offences Act 1996 (Vic) for refusing to leave a private place without lawful excuse.

The charges were laid after advice to police from the Commissioner, but were later withdrawn.

On the third occasion, after again refusing to show a permit for site entry, police were called but refused to remove him.

The union official entered the site for a fourth time, was asked to leave but refused, believing he was allowed on the site.

Decision

In allowing the appeal, the Full Court stated the words of s 494(1) in the FW Act prohibit an official of an organisation, such as the union official, unless they are the holder of a federal permit, from exercising a right to enter premises if the right is conferred by a State OHS law.

It found that an official of an organisation exercising his or her right to enter and have access to the premises or the HSR’s right to have him or her enter and have access to the premises, was a “right” that was conferred on the union official such that a federal entry permit was required.

“The plain purpose is to regulate by permit the lawful entry of officials of organisations on to workplace sites in respect of rights of entry given by Commonwealth, State or Territory legislation.”

In allowing the appeal, the Full Court found that a legal right was exercised by the union official when he entered the premises, and there was no provision in the legislation that should restrict the characterisation of that right as one that is strictly representational.

The matter was remitted for a further hearing on that basis.

Implications

Based on this decision, union officials not holding federal entry permits have no ability to enter work sites in Victoria at the request of HSR’s.

Employers may refuse entry in these circumstances without impinging on an HSR’s ability to request assistance and the obligation to facilitate access to that person under the Vic Act.

It also highlights the need for health and safety representatives to understand who they can call on for assistance when dealing with relevant matters.

Please do not hesitate to contact your local AREEA office for advice.

 

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