The High Court’s decision in Australian Building and Construction Commissioner v Powell has closed a legal loophole that previously allowed union officials who did not hold entry permits under the Fair Work Act 2009 (FW Act) to gain entry to workplaces by invitation from an elected health and safety representative (HSR).

The Occupational Health and Safety Act 2004 (Victoria) (OHS Act) allows a HSR to seek the assistance of “any person” and provides that an employer must allow such a person access to the workplace unless the employer considers that they are not a suitable person because of “insufficient knowledge of occupational health and safety.”

On four occasions, a HSR on a Melbourne construction project invited a CFMEU union official onto a building site to assist in dealing with OHS issues. It was unclear what assistance or OHS knowledge the official was providing. The official did not have a permit, but argued that because he was invited to assist a HSR under the OHS Act he did not need one.

The Commissioner commenced proceedings against the official for contravening the FW Act, which prohibits a union official who does not hold a right of entry permit from exercising a State or Territory OHS right.

At first instance, the Federal Court held that there was no requirement for the official to hold a permit because he was not exercising a right to enter under section 494. The judge distinguished between a union official exercising a right of entry under the FW Act and a HSR exercising a right to seek assistance under the OHS Act.

On appeal, the Full Federal Court unanimously overturned the original decision. It found that the distinction between a union official exercising a right of entry under the FW Act, and a HSR exercising a right to seek assistance from any person under the OHS Act, was artificial. There was no common sense reason for drawing such a distinction, therefore the requirement to hold a valid entry permit under the FW Act applied.

This decision makes it clear that a union official seeking to gain entry to a workplace must always hold a valid entry permit, regardless of the manner in which the official gained the right of entry.

CIE Legal’s HR Law team regularly assists employers with right of entry issues.

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