Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64 (29 April 2016)

If union officials do not claim to be exercising a right of entry under the Fair Work Act, and are just allowed onto a site, they are not bound by the rules of conduct for right of entry.

WHAT HAPPENED IN THIS CASE?

  • In June 2013, two CFMEU Organisers, Chad Bragdon and Anthony Kong, entered the Abigroup Sydney airport site.
  • Bragdon and Kong had:
    • federal right of entry permits (within the meaning of s 512 of the Fair Work Act 2009 (Cth) (FW Act)); and
    • Queensland work health and safety entry permits (under the Work Health and Safety Act 2011 (Qld)). However, they did not have work health and safety entry permits under the Work Health and Safety Act 2011 (NSW) (NSW WHS Act).
  • The organisers sought to enter to ‘look at the site’.
  • They were advised that they needed personal protective equipment (PPE).  However, they entered the site without the PPE.
  • While on site, although discussing health and safety issues, neither Bragdon or Kong asserted that they were exercising any specific rights under the FW Act or NSW WHS Act.
  • Kong refused to produce to Abigroup his entry permits when this was asked of him. He also failed to tell Abigroup that he did not have a NSW WHS Act entry permit, and notoriously lied about who he was (identifying himself as ‘Steve Irwin’).
  • Kong and Bragdon reportedly behaved in a disruptive and abusive manner, ultimately directing workers to cease work, stopping a concrete pour and delaying the operations.
  • The Fair Work Building Industry Inspectorate prosecuted both men (and the relevant unions, including the CFMEU) for failing to comply with various obligations imposed on persons seeking to exercise a right of entry under the FW Act / NSW WHS Act.

WHAT DID THE COURT SAY - AT FIRST INSTANCE?

In July 2015, Flick J of the Federal Court held that Bragdon and Kong (and by association the CFMEU[1]) had purported to exercise a State or Territory OHS right under the NSW WHS Act; and consequently, had breached the right of entry provisions of the FW Act by:

  • failing to produce right of entry permits (s 497);
  • hindering workers and behaving in an improper manner (s 500); and
  • acting in a manner that gave the impression they were authorised to direct workers to cease work (s503 (1)) 
  • (the Restrictions).

Flick J imposed penalties upon the organisers $20,000 and $27,500 respectively, and fined the union $225,000.

The CFMEU, Bragdon and Kong appealed.

WHAT DID THE COURT SAY - ON APPEAL?

On appeal, the Full Federal Court overturned the decision at first instance.

The Full Federal Court held that:

  • Bragdon and Kong were not exercising (or purporting to exercise) a right of entry under the FW Act or the NSW WHS Act. Firstly, because they had never indicated that they were doing so; and secondly, because they could not exercise the state OHS entry right, as they did not have NSW WHS Act entry permits.
  • Because Bragdon and Kong were not exercising a right of entry under the FW Act or the NSW WHS Act they:
    • were not subject to the Restrictions within the FW Act; and
    • could not be prosecuted for breaching any of the FW Act right of entry provisions.
  • The Full Court quashed the penalties imposed upon Bragdon, Kong and the CFMEU.

WHAT DOES THIS MEAN IN PRACTICE?

The key lesson from this case is to ensure that union officials seeking to enter your site are exercising their rights under the relevant legislation (or at the very least, purporting to do so – even if they might not legally be satisfying the relevant criteria). This way they will be bound to comply with the various statutory rules around the behaviour of officials exercising a right of entry while on a site.

Practically, employers should also remember that if someone enters your site, without exercising or purporting to exercise a right under the relevant statutory regime – you are not obliged to permit them to enter or remain.

As the Full Federal Court noted in the Bragdon case, because the CFMEU officials were not exercising a statutory right to enter the site, Abigroup could have asked them to leave at any time.  The officials’ failure or refusal to leave the site after being asked to leave could amount to criminal conduct and trespass. But as they were not asked to leave, this never arose as an issue.

ARE THERE ANY OTHER RAMIFICATIONS THAT EMPLOYERS SHOULD BE AWARE OF?

As outlined above, the Full Federal Court held that Abigroup permitted Bragdon and Kong to access the site – even though they were not exercising a statutory right of entry.

Permitting the officials to enter the site without exercising their statutory rights would be in breach of the proposed Building and Construction Industry (Fair and Lawful Building Site) Code 2014(2014 Building Code).[2]

Relevantly, the 2014 Building Code requires ‘code covered entities’ to so far as reasonably practicable, ensure that entry by a union officer is for a purpose for which a right of entry can be exercised under the FW Act or relevant work health and safety law.

The 2014 Building Code expressly prohibits a code covered entity from inviting an officer to enter the site other than in accordance with the right of entry provisions.  That is, the officer must be exercising a right of entry right (e.g. to hold discussions with members or OHS inspections) or they are not permitted to enter the site.

If and when the 2014 Building Code takes effect, a breach of its terms could result in the code covered entity not being eligible to be awarded Commonwealth funded building work.

PERSONAL PAYMENT OF PENALTIES

The Full Federal Court also expressed strong reservations about whether a court should order that an individual may not have a penalty paid on their behalf, or reimbursed (e.g. by the CFMEU on behalf of individual union officers). 

WHAT SHOULD BUILDING INDUSTRY EMPLOYERS DO NEXT?

Review your right of entry practices and policies to ensure that your staff practically require union officials to exercise (or purport to exercise) their statutory rights, before entering a work site. For example, this may include requiring the officials to show that they have the relevant permits.