Union officials can huff and puff but without an entry permit they can't come in

The Full Federal Court has overturned a decision that had rendered impotent the requirement under Federal law that a union official exercising right of entry under Victorian health and safety laws be the holder of a valid right of entry permit.  In doing so the Court has restored a significant protection to employers against inappropriate access to their workplaces. 

In Australian Building and Construction Commissioner v Powell [2017] FCAFC 89, the Full Court considered an appeal by the ABCC against a decision by Justice Bromberg who had held, at first instance, that a union official invited to attend a workplace by a health and safety representative pursuant to section 70 of the Occupational Health and Safety Act 2004 (Vic) (State OHS Act) was not exercising right of entry under a State health and safety law.  As such, Justice Bromberg ruled that the requirement under the Fair Work Act 2009 (Cth) that a union official exercising right of entry under a State OHS law hold a valid Federal right of entry permit did not apply.

Justice Bromberg considered that the union official was not exercising a right of entry - rather, the health and safety representative was exercising a right to seek assistance from another person.  The Full Court found this distinction to be artificial and that there was no common sense reason for drawing the distinction between this form of entry and other forms; drawing that distinction could create confusion as to the basis for entry.

As such, the Full Court held that this form of entry was a right of entry under the State OHS Act and the requirement to hold a valid entry permit under the Fair Work Act applied.

Why the decision is important

This decision restores the position that was generally accepted prior to Justice Bromberg's decision at first instance, that a union official must hold a valid entry permit under the Fair Work Act to enter premises under the State OHS Act. 

This requirement is important because to be a permit holder under the Fair Work Act the official must be of good character and comply with the obligations on permit holders, such as the obligation not to hinder or obstruct or otherwise act in an improper manner while exercising rights of entry.  This is aimed at ensuring that officials who abuse the privilege of right of entry or engage in poor behaviour can be subject to sanctions, including having their permit revoked or being refused a new permit.

If Justice Bromberg's decision had been allowed to stand it could have opened the floodgates to union officials choosing not to engage in the entry permit regime, and instead just asking health and safety representatives to invite them to attend workplaces under the State OHS Act.  The case before Justice Bromberg was a good example of this - the union official, Mick Powell of the CFMEU was not a health and safety expert and was not part of the CFMEU's safety team.  He was also not a Federal entry permit holder at the time that he sought entry to the Kane Constructions site in 2014.  Notwithstanding this he was invited to enter a workplace by a health and safety representative to purportedly assist the representative.  It was unclear what this assistance entailed or whether there was any good or legitimate reason for Powell being invited to attend the site.

Both the Fair Work Act and the State OHS Act provide significant rights of entry which override the common law right of occupiers to exclude others from interfering with their right to exclusive use of their premises.  The conditions of obtaining those significant rights of entry are not very onerous - being of good character, meeting the other requirements to hold a permit and behaving appropriately when on site.  Those conditions provide an important check and balance to ensure right of entry is not abused.

Will the CFMEU appeal?

The CFMEU has stated that it is considering seeking special leave to appeal the Full Court decision to the High Court.  Worksafe Victoria (which has supported the CFMEU's position) has also stated that it is considering its options - which could mean joining an application for special leave to appeal or seeking changes to the State OHS Act. 

We consider that any application for special leave to appeal to the High Court is unlikely to succeed because the decision of the Full Court is not attended with sufficient doubt.  The Full Court's interpretation of the Fair Work Act seems entirely consistent with the purpose of the entry permit system and the primacy of Federal law over State law.

Practical implications  

Employers faced with a union official seeking access to their premises are entitled to ask the union official to explain the purpose of their visit, the power under which they are purporting to enter the site and to require compliance with entry conditions including producing a valid entry permit under the Fair Work Act.  There are other conditions for different types of entry.  Clayton Utz can provide urgent advice and assistance to employers when the union comes huffing and puffing and threatening to blow your house down.