On 3 November 2016, Justice Bromberg of the Federal Court dismissed an application for a declaration and penalties made by Fair Work Building and Construction (FWBC) against an organiser employed by the CFMEU.
The organiser, who did not have a right of entry permit issued under the Fair Work Act (FW Act) and was therefore not a ‘Permit Holder’, entered a construction site four times between 21 May 2014 and 28 October 2014 to assist the site elected Health and Safety Representative (HSR).
In making the application, FWBC relied on section 494(1) of the FW Act which says “An official of an organisation must not exercise State or Territory OHS right unless the official is a permit holder.”
The question before the Court was whether the organiser was exercising a right under the Victorian Occupational Health and Safety Act (OH&S Act) when he entered the site. His Honour noted that the OH&S Act allows a person with sufficient knowledge of occupational health and safety to enter a workplace to assist an HSR. He went on to hold that the organiser was not exercising a State or Territory OHS right when he entered the site at the invitation of the HSR. Section 70 of the OH&S Act (which is in the same terms as Work Health and Safety Acts in every other state and territory) conferred a right on the HSR but not on the organiser. “That the right conferred on the HSR may shield the assistant from an action in trespass does not demonstrate that a legal right is conferred upon the assistant.”
His Honour commented that the HSR is free to invite any person (such as an occupational hygienist for example) to provide assistance on site and “The fact that the exercise of a right of entry by an assistant may advance the interests of the employees represented by the HSR in not sufficient to enable the right to be sensibly characterised as industrial or even as representational. Entry [of the union organiser] is facilitated by s 70(1) for the purpose of the assistant providing occupational health and safety expertise to the HSR and not representational services to employees.”
The FWBC is considering lodging an appeal.
Conclusion
Generally a union official must hold both a right of entry permit issued under the FW Act and a WHS entry permit issued under a State or Territory work health and safety law (and produce them to the employer when required) before he or she can enter premises to investigate a suspected breach of work health and safety legislation. The above case suggests that the official need not hold a FW Act right of entry permit if responding to an invitation from a HSR to provide assistance on a work health and safety matter. Any union official seeking to enter premises should be required to identify the purpose of his or her visit to a workplace.
For more information on workplace relations or regarding this article, please contact Jakov Miljak on 1300 361 099 or email [email protected].