The Federal Court of Australia has recently confirmed that, when entering the workplace, union officials:
- must hold and produce an 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); and
- must not act in an improper manner, with the Court providing further guidance on their obligations and expected standards of conduct when entering a workplace.
Background
On nine separate occasions between 8 March 2018 and 17 April 2018, officials from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) entered the workplace on the Bruce Highway Caloundra to Sunshine Upgrade Project.
When entering the workplace, the union 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 exercise of the power to permit holders. This can be contrasted with other provisions providing a right of entry, which expressly state that the power can only be exercised by a permit holder.
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 onsite 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 led to multiple union officials being charged by police for trespass.
The Australian Building and Construction Commission commenced legal action against the CFMMEU and the individual officials, for unlawfully entering the site and causing work delays.
Right of Entry
The statutory powers of union officials to enter a workplace/premises are conferred by:
- 481 of the Fair Work Act 2009 (Cth) (FW Act), which empowers “a permit holder” to enter premises for the purpose of investigating a suspected contravention of that Act;
- 117 of the WHS Act, which empowers a “WHS entry permit holder” to enter a workplace for the purpose of inquiring into a suspected contravention of that Act; and
- 81(3) of the WHS Act, which empowers “a representative of a party to an issue” to enter the workplace for the purpose of attending discussions with a view to resolving a health and safety issue.
As s.81(3) is not expressly limited to “permit holders”, union officials sometimes assert (as they did in this case) that they are entering the site pursuant to s.81(3) of the WHS Act and that they are therefore not required to show or hold an entry permit.
In rejecting this interpretation, the Federal Court held that:
- 81(3) of the WHS Act creates a “State or Territory OHS right” pursuant to s.494(1) of the FW Act, which provides that “[a]n official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder”; and
- therefore, when entering a workplace under s.81(3) of the WHS Act, any “official of an organisation” (i.e. a union official) must:
- be a permit holder; and
- produce their entry permit for inspection when requested to do so, pursuant to s.497 of the FW Act;
- as the union officials refused to produce their entry permit, and one official did not hold an entry permit, the union officials had breached the FW Act.
In addition, the Federal Court found that as the officials were officers of the CFMMEU and the CFMMEU was knowingly concerned in or party to the contraventions, the CFMMEU was also liable for each of the breaches, pursuant to s.550 of the FW Act.
The Federal Court will list the matter against the CFMMEU and the individual officials for a penalty hearing at a later date, which may include imposing pecuniary penalties.
Expected Standards of Conduct
In addition to the above, the Federal Court considered whether the conduct of the union officials, including those described in the background of this article, constituted a breach of s.500 of the FW Act. Under s.500 of the FW Act:
“a permit holder…must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.”
The Federal Court found that the conduct of each union official constituted a breach of the standards of conduct expected of a reasonable person in their position with knowledge of their duties, powers and authority, and was therefore ‘improper’ within the meaning of s.500 of the FW Act.
Recommendations
We recommend that you familiarise yourself with the rights and obligations of union officials when they are entering a workplace or premises.
If a union official is attempting to exercise rights under the WHS Act or FW Act and enter a workplace, you should require them to produce a valid entry permit before entering and insist that they strictly comply with their obligations, including abiding by their expected standards of conduct and acting properly.
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:
