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18 Feb 14
Fair Work Act right of entry powers and protections for Union officials extended

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Companies should be aware of recent case law that clarifies the broad application of the Fair Work Act’s right of entry protections, which make it an offence for employers to refuse or delay entry, or to hinder or obstruct a permit holder from exercising their access rights for the purpose of investigating work health and safety breaches under state legislation.

Investigation of Work Health and Safety breaches

In the case of Ramsay v Sunbuild Pty Ltd (2014) FCA 54 handed down on 11 February 2014, the Federal Court  ruled that union officials can rely on the Fair Work Act 2009 (Cth) (FW Act) right of entry protections when exercising access rights under state and territory Work Health and Safety (WHS) laws.

In this case, four CFMEU officials sued Sunbuild Pty Ltd (Sunbuild) for allegedly refusing and hindering their entry to a Darwin CBD construction site, despite the fact that they held both state and federal entry permits under the FW Act and the Work Health and Safety (National Uniform Legislation) Act 2011 (NT WHS Act).

The union officials claimed that they sought access to the site as they suspected that workers were being exposed to asbestos, however, they were initially refused entry and after eventually gaining access were then harassed by Sunbuild.

Sunbuild sought a ruling on whether the officials could rely on the FW Act prior to dealing with the merits of the CFMEU officials’ claims.  Sunbuild argued that the only freestanding right of entry to its worksite for WHS purposes was under the NT WHS Act, stating that the FW Act did not provide for any entitlement to enter its site for that purpose.

Decision

Justice Reeves of the Federal Court disagreed, instead preferring the union officials’ argument that the FW Act does regulate state WHS Act rights of entry as section 494 provides that officials cannot exercise their state WHS entry rights unless they are a federal permit holder.  Therefore, the obligations under sections 501 and 502 in part 3-4 of the FW Act not to refuse or delay entry, and not to hinder or obstruct a permit holder applied, entitling the officials to enter Sunbuild’s site.

It was noted that the NT WHS Act had equivalent provisions to sections 501 and 502 of the FW Act that prohibited delaying or obstructing entry permit holders, which Sunbuild argued was significant, because only NT WorkSafe could launch proceedings relating to breaches of the NT WHS Act.

However, the court rejected Sunbuild’s argument that there was a “disharmony or clash” between the NT WHS Act and FW Act, finding that the Commonwealth had retained “the exclusive power to make whatever industrial law it considers appropriate”.  Justice Reeves noted the explanatory memorandum to the FW Act confirmed that part 3-4 was intended to add requirements in addition to those in the NT WHS Act without otherwise affecting them.

Finally, Justice Reeves reiterated that the CFMEU officials were permit holders under the FW Act, and accordingly were entitled to the protection of sections 501 and 502 when they attempted to enter the site for WHS purposes.

The key lesson in the Sunbuild case

The key lesson for companies that can be applied across other states, is to check that union officials have both state and federal entry permits, and be aware that refusing or delaying entry, or hindering or obstructing a permit holder from exercising their rights will be an offence under the FW Act as well as under state WHS legislation.

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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