In a recent decision of the Federal Magistrates Court of Australia (CFMEU v Hume Highway Constructions Pty Ltd & Anor [2013] FMCA 154), a prosecution of a controller of a construction site by the CFMEU alleging that the controller of the premises had prevented CFMEU officials from exercising right of entry in relation to safety contraventions was dismissed.  In doing so, the Court provided guidance on when an employer is unduly delaying or refusing to allow a union official to exercise those rights.

What happened?

The CFMEU got a tip-off that there were safety breaches at a construction site, and three CFMEU officials went to inspect the site.  The officials were granted access without any difficulty.  Once the initial inspection was completed, the officials went to a car park adjacent to the site where a truck was preparing for a concrete pour at the site.  The officials asked the truck driver for confirmation that its workers’ compensation was valid and concerns were identified.  As a result of those concerns, the concrete pour was cancelled.  This led to an altercation between the officials and others present.

As a result of the altercation, the police were called.  Whilst waiting for the police to arrive, the controller of the construction site would not allow the officials to re-enter the construction site to continue their inspection.  The controller’s reasons for doing so was a concern that there would be an escalation in the conflict between the officials and others present, which was a risk to public order.

The prosecution

Did the site controller hinder or obstruct the CFMEU exercising their right of entry in the car park?

The Court found that there was no evidence that the car park formed part of the premises over which the controller had control.  As such, the officials were not exercising their right of entry (they had not entered the site), and the controller could not have hindered or obstructed the officials from exercising their rights.

Did the site controller refuse or unduly delay entry to the CFMEU re-entering the construction site?

The Court found that the controller had not refused entry, as a refusal of entry would mean that there were no circumstances in which the officials would be permitted to enter the site.  This was not the case as the controller was prepared to allow entry once the police had arrived, and as such there was no refusal. 

Further, the Court found that the controller had not unduly delayed the officials when they sought to re-enter the construction site.  The controller’s concerns about the risk to public order were well founded, and given that the delay was only until the police arrived (possibly no more than 30 minutes), in the circumstances, it could not be said that the delay was an undue delay.

Key lessons

The Court’s decision demonstrates that whilst union officials have broad rights to enter and inspect a workplace with respect to concerns about WHS breaches, this right is not unfettered.

Whilst the occupier or controller of a premises must not refuse entry to a union official with an appropriate permit, in appropriate circumstances, it may be reasonable for the controller or occupier to delay entry, provided this is for a proper purpose.

Site managers need to be equipped to make fast and effective decisions about right of entry.