Union officials come on to a construction site arguing that they don't need to comply with Right of Entry laws because they are there to look after a safety concern. You try to get a clear picture of the legal basis of their entry but they argue that it's safety related and you can't stop them. Sound familiar?
Recent Decision
The Full Federal Court in Australian Building and Construction Commissioner v Powell [1] has recently examined the interrelation between the Fair Work Act and the Victorian Occupational, Health and Safety Act right of entry provisions. As readers would know, particularly on building and construction sites, the exercise of rights of entry by union officials can frequently be the cause of confrontation and is nearly always argued to be because of safety.
The union official in this case did not have a Right of Entry permit under the Fair Work Act. However, under the Victorian Safety Legislation a Health and Safety Representative (HSR) could "seek the assistance of any person" on a safety matter. The HSR in question sought the assistance of Mr Powell on a number of occasions. On each occasion Mr Powell attended the premises and there were disagreements about his right to be there and he was directed to leave. The Victorian Police were called and on one occasion refused to eject him but on the next day removed him from the site.
The union argued that he was not exercising his own "right", rather the right to request assistance was the exercise of HSR's right. At first instance this right was said to be "representational" and not a right held by Mr Powell and that the employer should have granted access.
In good news for employers, the Full Court decided that to make such a distinction would lead to practical confusion at a workplace and such confusion may lead to allegations of trespass and the involvement of the Police (as occurred in this case).
The Court has decided that Mr Powell, as a union official, required a permit under the Fair Work Act to enter the premises whether he was exercising his own right to enter the premises or the HSR's right to request his assistance. This decision has already proved controversial with the union movement and indeed WorkSafe Victoria has criticised its terms. The right of a HSR to request assistance of any person exists in the harmonised safety laws so this decision will have application beyond Victoria broadly to the whole country. It is possible that this decision will be appealed, but pending that, it can now safely be considered that an officer of a union will require a valid permit under the Fair Work Act in order to enter premises for whatever reason.
Putting aside arguments about whether or not this decision will enhance or detract from workplace safety, the decision has the capacity to make how rights of entry are exercised far more certain and less ambiguous at Australian workplaces.
Notes:
[1] Australian Building and Construction Commissioner v Powell
