THE Fair Work Commission has suspended right of entry permits for 12 union delegates who were found to have staged a series of ‘amateurish entries’ and ‘stunts’ breaching safety requirements at Bechtel’s three LNG construction sites on Queensland’s Curtis Island.

In a complaint lodged by primary engineering and construction firm Bechtel against the Construction, Forestry, Mining and Energy Union (CFMEU), the Fair Work Commission heard how 15 union officials contravened workplace safety requirements, abused Bechtel staff and wandered freely around the Curtis Island construction sites during six separate entries between March 2012 and April 2013.

Citing safety concerns under the Work Health and Safety Act 2011 (Qld) and rights to hold union discussions under the Fair Work Act 2009 (Cth), the union delegates used private vessels to gain entry to site in an express attempt to avoid Bechtel’s safety induction procedure.

While on-site, four of the union delegates disobeyed safety directions not to walk on a heavy haul road; two ignored safety barricades to exit areas with restricted access; eight left their Bechtel escorts against entry conditions; and one abused a Bechtel employee after removing personal protective equipment (PPE).

Additional union misconduct supporting Bechtel’s complaint to the Fair Work Commission included:

• conducting meetings at times and in places they were not authorised to do so;
• claiming to have permits they did not have;
• disrupting employees carrying out their duties;
• entering places without proper authority; and
• entering places in dangerous ways.

Before a single Commissioner, Bechtel sought orders from the Fair Work Commission against the CFMEU and its delegates under section 505 of the Fair Work Act 2009 (Cth), imposing conditions on future conduct at the Curtis Island site as well as suspensions or revocations of union right of entry permits.

The CFMEU argued that a dispute did not exist on grounds that Bechtel’s complaints referred to past incidents and should not be used as grounds to influence future entry conditions. Commissioner Susan Booth, however, rejected the argument, stating “the mere fact that past conduct is described… does not mean the dispute itself has passed” and there was ‘no cogent evidence…to give confidence that similar conduct would not occur again’.

The union also suggested the Fair Work Commission held no jurisdiction to make rulings about rights of entry exercised under state legislation, namely section 117 of the Work Health and Safety Act 2011 (Qld). Commissioner Booth also rejected this argument on grounds that the dispute was not on why the right of entry occurred, but rather, how the right of entry was exercised.

“These are industrial matters regulated under the Fair Work Act 2009 (Cth) (sic) even if the right to enter arises elsewhere. The orders sought in no way impinge on the WHS Act. Nor do they require the Commission to determine rights, obligations or sanctions under that Act.” Commissioner Booth said.

“The …entries have all the hallmarks of stunts,” Commissioner Booth said.

“They were arranged by the CFMEU off the back of sub-branch meetings that brought a large number of officials to Gladstone. It seems no coincidence that amateurish entries were staged, one complete with private vessel, by officials who should have known better, conducting themselves unconventionally or even improperly.”

“On consecutive days, up to eleven CFMEU officials entered Curtis Island. The Commission heard much evidence that called into question the sincerity of claimed OHS purposes. There is more than a hint that the entries were staged performances.”

Assessing the conduct of the individual union delegates, Commissioner Booth found each to be in contravention of the Fair Work Act 2009 (Cth). Right of entry permits for 12 of the union officials were suspended for up to five months, while three delegates who did not hold right of entry permits were ordered to begin suspensions when new permits were issued.

“Unions and officials have the ‘obligation to exercise any such power in a proper manner’ and an obligation to ‘be zealous to stay well within the boundaries of a proper and lawful use of their rights’,” Commissioner Booth noted.

“The CFMEU and the Individual Respondents failed those obligations.”

Both the CFMEU and Bechtel were further ordered to carry out training for their respective associates, and that the organisations meet at least six additional times before the end of 2015.

To read the decision in full, click here.

Implications for AREEA members

The jurisdictional points clarified in this decision makes this an important win for not only Bechtel, but all AREEA members. As noted by Commissioner Booth, this appears to be the first time the Fair Work Commission has been asked to rule on whether union right of entry provisions under s.117 of the WHS Act is amenable to s.505 of the Fair Work Act.

In short, this decision appears to have set a precedent that means unions which enter workplaces under state-based WHS legislation are still required to fully comply with the obligations of their federal permits granted under the Fair Work Act.

Union rights of entry can be found in both federal and state legislation, making it a complicated discipline of workplace relations. However, there are some basic considerations AREEA members can address to ensure their workplace is equipped to manage instances where workplace right of entry may be exercised.

These include:

• ensuring union officials provide the required notice to exercise a right of entry under either the Fair Work Act 2009 (Cth) or the Work Health and Safety Act 2011 (Qld);
• ensuring union officials hold current and relevant permit(s) to exercise a right of entry under either Act;
• maintaining and implementing appropriate processes and procedures for facilitating a right of entry exercised under either Act; and
• ensuring company representatives who escort union officials during a right of entry undergo appropriate training and understand their responsibilities.

AREEA can provide your workforce leaders with training on workplace relations and how to manage right of entry. For more information, contact AREEA Training and Development on 1800 891 662.

Additionally, AREEA’s workplace relations consultants can offer information, advice and guidance to ensure your workplace is equipped to manage complicated workplace relations procedures. Contact your local AREEA office for more information.