Proctor : August 2018
26 PROCTOR | August 2018 Access denied! Court considers union workplace entry powers The Federal Court is considering whether union officials need to hold Fair Work Act entry permits when exercising rights under s81 of the Work Health and Safety Act 2011 (Qld) (WHS Act). This issue is a key focus in the ongoing case of Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union  FCA 553 (Sunshine Upgrade case). Facts Between 8 March and 17 April 2018, several Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU) officials appeared at a highway upgrade worksite on the Sunshine Coast in Queensland (the site), stating they had “health and safety concerns”. 1 All but one of the union officials possessed a right of entry permit issued under the Fair Work Act 2009 (Cth) (FW Act). However, when the site’s management requested the production of these permits, the union officials refused on the basis that s81(3) entitles them to a right of entry (as ‘representatives’), meaning that they didn’t need to show their right of entry permit. Site management claimed that the need to make multiple police callouts and subsequent trespass arrests meant significant managerial and labour time was lost, delaying the highway upgrade project and resulting in financial losses. The Australian Building and Construction Commissioner (ABCC) sought interlocutory injunctive relief to restrain CFMMEU officials from exercising rights pursuant to s81 unless they held an entry permit and could produce that permit. The ABCC’s case is based on the construction of s81 as being subject to the production, upon request, of union officials’ right of entry permits, under s497 of the FW Act. Underlying the ABCC case is the interaction of a Commonwealth Act and a state Act – the ABCC’s case is that the FW Act s494 is applicable to the exercise of WHS rights by the CFMMEU under s81. Section 81 of the WHS Act The relevant section states: “Resolution of health and safety issues (1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue. (2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed under a regulation. (3) A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.” (emphasis added). In the Sunshine Upgrade case, union officials were seeking entry to the workplace under s81(3) of the WHS Act. The officials claimed the entry to the workplace was for the purpose of attending discussions directed at resolving health and safety issues. Ordinarily, where a representative wants to trigger s81(3) and enter the workplace for the resolution of health and safety issues, they need to comply with clause 23 of the Work Health and Safety Regulation 2011 (Qld) as a first step. Clause 23 requires that: “(2) Any party to the issue may commence the procedure by telling each other party— (a) that there is an issue to be resolved; and (b) the nature and scope of the issue. (3) As soon as parties are told of the issue, all parties must meet or communicate with each other to attempt to resolve the issue.” Workplace Health and Safety Queensland guidance material on issue resolution provides that “entry by a representative of a party [under section 81(3)] can only occur once the issue resolution procedure has been enlivened”.2 This means that, if union officials are seeking entry to a site pursuant to s81(3), they must first communicate with relevant parties about the nature and scope of the health and safety issue. Interlocutory findings The presiding Federal Court judge, Collier J, found that the ABCC’s injunction application should be allowed. Her Honour acknowledged the clear and important purpose of the CFMMEU is to enhance workplace safety, which is exacerbated by the dangers of construction sites. However, the requirement for those union officials attending a workplace under s81 to produce an entry permit under the FW Act is not a large burden to bear – particularly considering that six of the seven union official respondents possessed entry permits. Her Honour accepted the ABCC’s submission that a union official’s entry permit acts as proof of his/her identity and their eligibility to exercise certain powers under the WHS Act. This important purpose clearly outweighs any difficulties associated with the union officials’ production of the permits. Although the substantive hearing is yet to come, the implication of the interlocutory orders imposed by her Honour is that it appears union officials must have a FW Act permit to enter worksites under s81(3). Where the law stands now and where it is heading The ABCC is also seeking substantive relief, including declarations of contravention of the FW Act and penalties. This issue is yet to be resolved, though some guidance may be provided by the Full Court of the Federal Court’s decision in Australian Building and Construction Commissioner v Powell3 (Powell).