Invited or not, unions need the right permit to gain site access

By Michael Selinger on June 8th, 2017

In the recent significant decision of ABCC v Powell (2017), the Full Federal Court has authoritatively stated that a union official cannot enter a construction site without a federal permit, even if they have been requested lawfully to do so by a health & safety representative under State WHS law.

As background, on four occasions in 2014, union official Mr Powell was invited to a construction project in Ringwood, Victoria by Mr Curnow, an elected health and safety representative (HSR). When Mr Powell arrived at the site he did not produce a permit and claimed he did not need one. Mr Powell entered the premises in order to provide assistance in relation to a safety issue.

When asked what he was doing on site, he quoted s 58 (1)(f) of the Victorian OH&S Act, being the power to assist a union health safety representative.
When requested to provide his permit, he said: “I don’t have to as I am not attending under the Fair Work Act”.

Mr Powell was asked to leave but refused, believing he was entitled to carry out the inspections as requested without a permit. The police were called and refused to evict Mr Powell as they also believed he had an entitlement to be on the land.

Mr Powell never held a permit under s 494 of the Fair Work Act (FW Act) which prohibits a union official from exercising a State or Territory WHS right unless the official is a permit-holder.

The ABCC commenced proceedings against Mr Powell for a breach of s 494 of the FW Act.

The judgement

At first instance, the Court noted that while a union official requires a permit to exercise a State or Territory WHS right, it accepted Mr Powell’s argument that he was not exercising a State WHS right.

This argument was overturned by the Full Court.

The issue was whether the conduct of Mr Powell, in entering the site to assist the HSR, was conceptually (and legally) different to Mr Powell exercising the general right of entry afforded to permit-holding union officials seeking access to a construction worksite in relation to safety concerns.

The Full Court interpreted the legislation in a way that they asserted could be implemented with ease and coherency on a day-to-day basis at worksites, rather than an artificial distinction being made about the activities of the union official coming onto the worksite in relation to safety issues.

Did Mr Powell exercise a right?

Under the Victorian OH&S Act, s 58(1) and s 70(2) provide that an HSR could request assistance from any person and that an employer must allow such a person access to the workplace unless the person was not suitable due to a lack of safety knowledge.

The Victorian OH&S Act does not specifically reference the person as being a union official, but of course that person can be (and often is) such an official. In the usual course, if a union official was to enter a construction worksite in relation to safety issues of their own accord, they would need to be a permit-holder for the entry to be lawful.

The Full Court considered that those two provisions together, in fact, created a statutory entitlement and/or authorisation for the union official to enter and be on the premises. As such, by coming on site to assist Mr Curnow, the Court found that Mr Powell was exercising a ‘right of entry’. This was the most significant difference between the decision of the judge at first instance and the Full Court’s decision.

Did Mr Powell have to comply with s 494 of the FW Act?

The Full Court used other provisions under the FW Act to guide their interpretation of s 494. The Full Court recognised there was some confusion in how to interpret these provisions. After consideration, they concluded the provision was to be interpreted as follows:

(a) Part 3-4 is about the rights of officials of organisations who hold entry permits to

(i) Enter premises for purposes related to their representative role

(ii) Under the Fair Work Act and

(iii) Under State or Territory OHS laws.

As such, the Full Court found that a union official needed a permit if they entered a premises for a task related to their representative role under the FW Act or under State or Territory OHS Law. A consequence of this view, was that the Full Court emphasised there was nothing in the FW Act that led to the conclusion that the requirement to have a permit is limited only to rights to enter. This is because the purpose of the provisions is to regulate – by permit – the lawful entry of union officials on to workplace sites. It also made no practical sense to not require a permit if the official was asked to assist an HSR to deal with a safety issue.

The significance for you

The decision authoritatively confirms that a union official cannot enter a construction site without a federal permit, even if they have been requested lawfully to do so by an HSR under State WHS law, which may not expressly require such a permit.

State legislation cannot be used as a method for circumventing the obligations required under the FW Act. Any union official coming to site should be requested to evidence their permit before entry is granted.

PS: As you’ve read in this recent ruling, keeping up to date with health and safety legislation is no easy task. That’s why you need to reference the Health & Safety Handbook. Written by the experts at Holding Redlich, including Michael Selinger, the Editor-in-Chief, the Handbook is written in plain English that makes the information easy to read and retain.

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