In an important update for AMMA members, this week the High Court has effectively clarified that union officials can not sidestep Fair Work right of entry requirements via an “invitation” to enter a site, when entering under State or Territory safety laws.
In refusing special leave to appeal, the High Court has preserved an earlier Full Federal Court finding that a CFMEU official needed a federal entry permit to assist a health and safety representative (HSR) when he was invited onto a construction site under Victorian OHS laws.
Building industry participants especially should observe the ABCC notification advising that Federal entry permits are required for all safety entries, and warning that this case is not limited to Victoria and has national application.
Facts in brief
On four occasions in 2014, an elected HSR on a construction project at Ringwood, Victoria, asked CFMEU official Michael Powell to attend the building site to assist him in dealing with health and safety issues relating to various matters.
Under the Victorian OH&S Act (section 58), an elected HSR has special powers and can request the assistance of any person whenever necessary.
Powell came on to the site and, when challenged and asked for his permit, asserted that he was on the site to assist the “site rep” with “OHS issues” and did not need a permit. It turned out that Powell did not have a permit under the Fair Work Act.
The ABCC subsequently commenced civil penalty proceedings for a breach of the Fair Work Act (section 494), which provides that: “An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder [under the Fair Work Act]”.
At first instance, the Federal Court Judge was persuaded that the provisions of the Victorian OH&S Act under which Powell came to be on the site (ss 58(1)(f) and 70) did not confer on him, and he was not exercising, a right to enter premises that was conferred by the Victorian OH&S Act.
In a unanimous ruling, the Full Federal Court overturned the decision at first instance, finding that: “The plain words of s 494(1) and (2) and the construction of ss 58(1)(f) and 70 of the 2004 Victorian Act mean that Mr Powell as an official of an organisation required a permit under the FW Act to enter the premises because he was exercising his right to enter the premises or the HS representative’s right to have him enter the premises to assist the HS representative in his task.”
Implications for AMMA members
AMMA has long advocated for improvements to the current right of entry laws which are regularly proven to be an unnecessary impediment to productivity, and sometimes even freedom of association and safety, in the workplace.
The notion that an “invitation” to enter premises can circumvent the workplace law requirements has long been relied on as a tactic, but in a safety context is now confirmed as not available.
AMMA members are encouraged to review your right of entry procedures and refresh site manager knowledge on appropriate practices, to ensure your business is not exposed. This is especially important for members operating in the building industry.
To confirm best practice right of entry procedures or approach, please contact your local AMMA Consultant:
Peter Cooke – Perth
08 6381 0370
Rebecca Francey – Brisbane
07 3724 0262
Alexis Agostino – Melbourne
03 8640 0384
Bill Fitzgerald – Hobart
03 6270 2256