The Federal Court has confirmed a union official entering under Victorian OHS laws to “assist” a health and safety representative does not require a federal entry permit, in the process highlighting a key area of risk for employers in managing the interaction of state OHS and federal IR laws. AREEA principal adviser – workplace policy, Lisa Matthews, provides this case summary.

SECTION 70 of the Occupational Health & Safety Act 2004 (Vic) states an employer must allow a person assisting a health and safety representative (HSR) access to the workplace unless the employer considers them not to be a suitable person to assist because of insufficient knowledge of OHS.

The background to a recent relevant Federal Court decision was that a CFMEU organiser had entered a Kane Constructions Pty Ltd site four times between May and October 2014. The director of the Fair Work Building Industry Inspectorate subsequently applied to the Federal Court alleging the union official’s entry was unlawful because he did not hold a federal entry permit under the Fair Work Act – required to exercise a “right” under a state or territory OHS law.

In dismissing the director’s application, Federal Court Justice Mordy Bromberg said a “number of indicators” led him to conclude that Part 3-4 of the Fair Work Act did not intend to regulate all the ways that entry onto premises by union officials could occur.

Whose rights were exercised?

Justice Bromberg found that s70 of the Vic OHS Act was actually concerned with a right of the HSR to request assistance from a person and have the employer facilitate that assistant’s access to the site.

Nowhere did the Vic OHS Act use the word “power” in reference to an assistant; nor did it speak of what an assistant may do or require.

It was not a right conferred upon the assistant, which meant the assistant was not exercising a right under a state or territory OHS law which meant it was not picked up by the Fair Work Act’s permit requirements, he said.

Section 494 of the Fair Work Act requires that a union official must not exercise a state or territory right unless they are a permit holder under the Fair Work Act, which in this case the CFMEU organiser was not.

Justice Bromberg said the situation prior to the Work Choices amendments in 2006 was a “recipe for abuse”. Work Choices introduced a requirement for union officials exercising a right under state or territory OHS law to also hold an entry permit under federal IR laws.

“That [previous] capacity allowed for ‘permit shopping’ as a means of escaping the regulatory consequence of the loss of a permit under one or other of the regimes in question,” Justice Bromberg said.

“The potential for mischief of that kind was obvious and a clear candidate for a remedial intent. Requiring a federal official to not exercise state or territory OHS rights unless the official held a federal permit provided an obvious solution to the mischief in question.”

However, the director’s argument was that the rights picked up by s494 of the Fair Work Act were not confined to those conferred upon federal union officials in their capacity as such, but included rights conferred upon a person “who happens to be a union official”. This was not the case, Justice Bromberg said.

HSRs’ rights

According to the judge, working against the director’s argument was:

• The fact that a HSR could inspect any part of a workplace at which a member of their designated work group worked, whether or not that HSR had a federal entry permit;
• A HSR’s authority to inspect was not limited to workplaces where the HSR would have a right to enter as an employee.

“The literal reading of s494 for which the director contends, would require an HSR who happens to be an ‘official’ to obtain a permit under the Fair Work Act in order to exercise the inspection powers to which I have just referred,” Justice Bromberg said.

That would also mean that other conditions such as 24 hours’ notice of entry would apply to HSRs if they were union officials but not if they weren’t.

“Such a result could not have been intended,” the judge said.

“Nor is there any discernible basis for thinking that it was intended that unlike other HSRs, an HSR who happened to be an ‘official’ should have the benefit of the additional requirements placed upon the employer and others by s501 and 502 of the Fair Work Act [such as not hindering or obstructing or unduly delaying access].”

Industrial interests versus safety

“The fact that the exercise of a right of entry by an assistant may advance the interests of the employees represented by the HSR is not sufficient to enable the right to be sensibly characterised as industrial or even as representational,” Justice Bromberg said.

“Entry is facilitated by s70(1) for the purpose of the assistant providing occupational health and safety expertise to the HSR and not representational services to the employees. For characterisation purposes, it matters not whether the provision of that expertise is given by a trade union official or, for example, an occupational hygienist.”

Conduct still relevant to ‘fit and proper person’ test

However, a union official’s actions or conduct after entering as an assistant under s70 of the Vic OHS Act could be taken into account in deciding whether that person was a fit and proper person to hold a federal entry permit, Justice Bromberg said.

“The relevant considerations are far ranging,” he said.

He dismissed the director’s application.

Click here for the full decision.

Implications for employers

Similar provisions to those under s70 of the Vic OHS Act appear in s68 of the model WHS Act that has been adopted in all state and territory jurisdictions except Victoria (which as discussed has a similar provision) and WA (which is moving towards adopting the model Act but not the provisions relating to the powers of HSRs).

At the time the model WHS laws were being drafted, AREEA highlighted the risk of the provisions being manipulated for industrial purposes by allowing largely unrestricted and unregulated entry to union officials under the guise of providing assistance to HSRs. As AREEA pointed out back in 2009, and will continue to highlight to state and federal governments, such entry should not be able to be used to sidestep normal right of entry requirements.

For AREEA members, this decision highlights an area of risk in the interaction of federal WR laws and state OHS laws which needs to be carefully managed.

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