Hadgkiss resigns over wrong workplace right of entry advice

By Michael Selinger on September 14th, 2017

The resignation this week of the head of the Australian Building and Construction Commission (ABCC), Nigel Hadgkiss, is another example of the importance of following the rules around union right of entry.

His resignation results from Federal Court proceedings brought by the CFMEU alleging that Mr Hadgkiss breached section 503 of the Fair Work Act 2009 (FW Act) in 2013. That section makes it unlawful to take action which intends to give the impression, or is reckless to giving the impression, that the action is authorised under the FW Act.

It was alleged that the ABCC, at Mr Hadgkiss’ direction, kept on its website outdated posters and information sheets that misrepresented the rights of entry for union officials. Astonishingly, Mr Hadgkiss has now admitted to the Federal Court that he directed no changes be made to the information online that were of benefit to unions because the laws would be repealed.

That fateful decision has now led to his resignation.

The CFMEU national construction secretary Dave Noonan has been reported in The Age newspaper as saying that Mr Hadgkiss had “taken great care to bring multiple prosecutions against unions and workers over right of entry breaches, but has failed to conduct himself with reasonable care in relation to these same laws, and in particular those parts of the laws which extend some benefit or protection to workers”.

The lesson for employers is that you must be up to date with the rules around right of entry and have in place the correct processes for managing those requests for entry.

FW Act right of entry

Consider these key points surrounding the FW Act right of entry:A union official who has a permit issued to them under the FW Act may exercise rights of entry in the following situations:

  1. To investigate a reasonably held belief of a suspected breach of the FW Act, award or enterprise agreement.
  2. For health and safety reasons (see below).
  3. To hold discussions with employees.The right to enter the workplace to hold discussions has the following restrictions:• the discussions are limited to only those employees who wish to participate;
  • the discussions must take place during the employees’ meal times and other breaks during working hours;
  • the employer is entitled to request that the discussions take place in certain rooms in the workplace; and
  • the employer is entitled to request that the individual take a particular route through the workplace to get to the discussion room.

WHS right of entry

A union official who holds a WHS permit and an FW Act permit may exercise rights of entry in the following situations:

  1. To investigate a suspected breach of the safety laws.
  2. To inspect employee records and documents relevant to the suspected breach.
  3. To consult and advise employees on safety issues.
  4. To assist with the election of a Health and Safety Representative (HSR), or to assist in workplace negotiations involving an HSR. In South Australia, an HSR is restricted from seeking assistance from a union official unless the person works at the worksite or is involved in managing the business or is approved by the health and safety committee at the workplace, or is a person conducting a business or undertaking (PCBU) itself. In Victoria, an employer can refuse entry of the union official for HSR purposes if they do not consider them to have sufficient knowledge of health and safety, although the union official can seek an order from a magistrate allowing them access.

As soon as reasonably practicable after entering the workplace, a WHS entry permit-holder must give notice of the entry and the suspected contravention to:

  • the PCBU; and
  • the person with management or control of the workplace.

A WHS permit-holder is not required to give prior notice when entering a workplace to inquire into a suspected breach of the WHS Act, unless the entry is to inspect records and documents relating to the suspected breach. If there is no suspected contravention of the WHS Act, the WHS permit-holder must give the PCBU at least 24 hours’ notice (but no more than 14 days’ notice) before visiting their workplace.

While it is important to know about potential future changes to the law, business-owners must first understand the current laws.

This is particularly true for legislation governing the rights of unions and their representatives, whose roles include enforcing health and safety regulations at the appropriate worksites.

Having a full understanding of your rights and obligations under the law will enable you to deal with these groups much more efficiently and effectively.But key to doing this, of course, is getting good information about these rights and obligations in the first place.

The Health & Safety Handbook contains the information you need to fulfill your duties.

All 70-plus chapters are written in plain English by the health and safety lawyers at Holding Redlich and cover the A-Z of workplace health and safety.

Chapters include:

  • U1 Unions
  • I2 Industrial Action and Work Stoppages
  • I3 Industrial Instruments
  • C3 Consultation, Representatives and Committees
  • O2 Obligations and Standards

Don’t risk being heavily penalised for breaching right of entry laws. Be fully informed of your duties to your workers and unions and how to meet them.

Subscribe today on an obligation-free trial and put the Health & Safety Handbook to work in your business.





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