Union officials MUST hold an entry permit to enter a workplace and unions may be fined for breaches by a union official

In a recent decision, the Full Federal Court of Australia dismissed an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and confirmed that:

  1. when entering the workplace, union officials must hold and produce a valid entry permit, including if they are exercising a right to enter a workplace under s.81(3) of the Workplace Health and Safety Act 2011 (Qld) (WHS Act);
  2. when exercising legislative powers (such as entering a workplace), union officials must not intentionally hinder or obstruct any person or otherwise act in an improper manner; and
  3. if a union official contravenes the Fair Work Act 2009 (Cth) (FW Act), the union (e.g. the CFMMEU) may also be fined for the contravention.

Background

The background of the case in question is as follows:

  1. On nine separate occasions between 8 March 2018 and 17 April 2018, union officials from the CFMMEU entered the workplace on the Bruce Highway Caloundra to Sunshine Upgrade Project.
  2. When entering the workplace, the officials refused to produce their entry permits and stated that they were entering the workplace pursuant to s.81(3) of the WHS Act; which empowers a “representative of a party to an issue” to enter the workplace and does not expressly limit the power to “permit holders”. Six of the seven officials held entry permits but refused to produce the permits, insisting a permit was not required when entering a workplace under s.81(3) of the WHS Act.
  3. Once in the workplace, the union officials refused to comply with numerous directions and requests from site managers and on-site personnel, including:
    • refusing to wait until the superintendent had been notified of their entry, before entering the site;
    • refusing to comply with various on-site work health and safety requirements, including walking around the site without the supervision of an inducted site representative and entering an “exclusion zone”; and
    • refusing to leave the site upon request, which ultimately lead to multiple union officials being charged by police for trespass.

The Australian Building and Construction Commission commenced legal proceedings against the CFMMEU and the individual union officials for unlawfully entering the workplace and causing work delays.

The Federal Court of Australia determined that:

  1. The union official that did not hold a permit contravened s.494(1) of the FW Act by exercising a “State or Territory OHS right” without holding an entry permit.
  2. The remaining six union officials contravened s.497 of the FW Act by exercising a State or Territory OHS right without producing their entry permit and refusing the lawful request to produce an entry permit for inspection.
  3. Five of the union officials contravened s.500 of the FW Act in various respects, including refusing requests to produce entry permits, acting improperly and refusing to leave the project when requested.
  4. As the CFMMEU was “knowingly concerned” in the actions of the individual union officials, CFMMEU was also liable for the breaches pursuant to s.550 of the FW Act.

As a result, the CFMMEU and the individual union officials were fined.

In the recent decision, the CFMMEU was unsuccessful with its appeal of the Court’s decision, with the Full Federal Court of Australia confirming that union officials must produce a valid entry permit when entering a workplace and must not hinder or obstruct any person or otherwise act in an improper manner when exercising powers. If they act outside their powers or breach their obligations, the union and the union official may be fined.

Recommendations

We recommend that you familiarise yourself with the rights and obligations of union officials when they are entering a workplace or exercising powers.

If a union official is attempting to exercise powers and enter a workplace, you should require them to produce a valid entry permit before entering and insist that they comply with their obligations, including acting properly.

For further information on a union official’s powers, we refer to our WH&S Practical Guide. If you haven’t already received a copy of the Guide, please request a copy from Jay Hatten.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed. 

Key contacts:

Jay Hatten – Senior Associate
Christopher Rowden – Principal

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