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Perspective

Do Unions have the right to enter as they please?

Under section 494(1) of the FW Act, Union officials can only exercise any right under a State or Territory OHS legislation if they are a permit holder. Similarly under s 497 of the FW Act, Union officials must produce the right of entry permit when requested to do so by the employer.

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In the recent case of Construction, Forestry, Maritime, Mining nd Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) [2020] FCAFC 203 (24 November 2020), seven CFMMEU officials had entered the worksite on nine different occasions. They had refused to produce their right of entry permits when requested and one of the officials did not have a valid permit at all. They had all claimed that an exception existed for them because they were entering under a state occupational health and safety law, and not under the Fair Work Act 2009 (Cth) (FW Act).

Specifically, section 81(3) of the Work Health and Safety Act 2011 (QLD) states that

“a representative of a party to [a health and safety] issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.”

The Union was not wrong that they were entitled to enter the worksite under that section, but it did not give them an automatic right to enter whenever they liked.

In a win for employers, the Full Federal Bench dismissed the Appeal. They also confirmed that the Union was in breach of the FW Act right of entry provisions, and that there is no situation which allows entry without a valid permit.

Lessons for employers

  • Safety breaches are no excuse for automatic entry to a work site.
  • Every individual Union official must have their own distinct valid permit.
  • Always ask for a copy of a Union Representative’s right of entry permit and check it against the Fair Work Commission register.
  • Remember Union officials must give at least 24 hours’ notice before exercising any of their rights, and must provide a valid written notice.

Written by Nina Hoang

Have a question or need advice?

Our team is here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Kim McLagan.

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