The Full Federal Court of Australia (the Court) has handed down an important decision relating to union right of entry for occupational health and safety (OHS) purposes, in Australian Building and Construction Commissioner v Powell  FCAFC 89 (ABCC v Powell).
On 2 June 2017, the Court unanimously ruled that a CFMEU official who was called onto a construction site to assist a health and safety representative was not protected by Victorian OHS legislation, and was required to have had a right of entry permit under federal law.
The facts of the case
On four occasions in 2014, an elected health and safety representative (HSR) on a Melbourne construction project asked Mr Powell (an official of the CFMEU) to attend the building site to assist him in dealing with various OHS issues.
On each occasion that Mr Powell attended the site and was questioned about his presence, he stated that he was there to assist the HSR and cited his ability to do so under the Occupational Health and Safety Act 2004 (Vic) (OHS Act).
The OHS Act provides that an HSR may seek the assistance of any person, whenever necessary (in relation to health and safety matters). The OHS Act also states that an employer must allow a person assisting an HSR to access the workplace, unless the employer considers that the person is not a suitable person to assist due to insufficient knowledge of OHS.
Each time this occurred, Mr Powell refused to leave the site when requested by the employer to do so. On one occasion, he also stated that he was not attending the premises under the Fair Work Act 2009 (Cth) (FW Act), and therefore did not require a federal right of entry permit. On two occasions, police were called to the site.
Mr Powell was not a permit holder under Part 3-4 of the FW Act. The Australian Building and Construction Commissioner (ABC Commissioner) commenced proceedings against Mr Powell for a civil penalty for contraventions of s 494(1) of the FW Act. That section prohibits a union official from exercising a State or Territory OHS right, unless the official is the holder of a right of entry permit issued under Part 3-4.
The decision at first instance
Justice Bromberg of the Federal Court held that the relevant sections of the OHS Act did not confer a right to enter premises for the purposes of s 494 of the FW Act, and therefore there was no requirement for Mr Powell to have a federal permit in order to enter the site under the OHS Act.
The ABC Commissioner appealed this decision.
The Full Federal Court’s decision
By a unanimous decision, the Full Federal Court upheld the appeal and found that Mr Powell was required to have a permit under Part 3-4 of the FW Act in order to enter the site to provide assistance to the HSR under the OHS Act.
The Court considered the legislative history and construction of the relevant provisions of the FW Act and the OHS Act in order to determine whether there is a ‘right to enter premises’ conferred by the OHS Act, in accordance with the meaning of that phrase in Part 3-4 of the FW Act.
Overturning the primary judge’s decision, the Court found that the OHS Act conferred a right to enter premises and that right is exercised by the assistant to the HSR (i.e. Mr Powell in this case).
This was because:
The OHS Act confers a statutory obligation on the employer to allow people from whom the HSR has requested assistance access to the premises. The OHS Act also states that the HSR can enforce the exercise of his or her power by applying for an order in the Magistrates’ Court. This statutory entitlement would be a defence to any claim of civil or criminal trespass.
The OHS Act confers a right on the HSR to have the assistant enter the premises. Consequently, it is a right to enter exercised by the assistant, at the request of the HSR.
The Court then considered whether the ‘right to enter’ contemplated in s 494 of the FW Act covers the section of the OHS Act that addresses a right of entry of the assistant, or merely the rights outlined in Part 8 of the OHS Act, which deals with entry by authorised representatives of registered employee organisations.
Taking into account the sections that explain the objects of the provisions, historical iterations of the provisions and the words of the provisions themselves, the Court found that the prohibition in s 494(1) of the FW Act extended to and covered a union official exercising his or her right to enter and have access to the premises and/or the HSR’s right to have him or her enter and access the premises, pursuant to relevant sections of the OHS Act.
The Court stressed that provisions about right of entry should be construed practically and ‘conformably so that they can be implemented in a clear way on a day-to-day basis at work sites’, and determined that the plain purpose of Part 3-4 of the FW Act is to regulate by permit the lawful entry of officials of organisations onto work sites, pursuant to rights of entry given by Commonwealth, State and Territory legislation.
The Court pointed out the potential for practical confusion if a permit was required where an official had a reasonable suspicion of a contravention of a State, Territory or Commonwealth law about OHS (e.g. pursuant to Part 8 of the OHS Act), but such a permit was not required if the official was asked to assist an HSR with an OHS issue. Further, the Court said that applying the words of s 494 of the FW Act to the operation of the relevant sections of the OHS Act did not undermine the statutory objects of Part 3-4, but instead reinforced them.
The Court concluded that the plain words of s 494 of the FW Act, and the construction of the relevant sections of the OHS Act, meant that Mr Powell (as a union official) required a permit to enter the premises – either because he was exercising his right to enter, or the HSR’s right to have him enter to provide assistance.
The matter was remitted to the trial judge for further hearing.
Reaction to the decision
WorkSafe Victoria has stated that it feels the decision will have a ‘serious impact on this critical element of the Victorian OHS System’, and that it was ‘disappointed’ and was ‘considering its options’. Presumably, these options would include seeking leave to appeal to the High Court and/or legislative amendments to address the effects of the decision.
The CFMEU has also expressed concern at the decision, stating it believes it will have ‘profound’ implications, and indicating that it is giving active consideration to seeking special leave to appeal to the High Court of Australia. Master Builders Australia, however, has welcomed the decision, stating it thinks it will prevent ‘further exploitation of safety laws as a tactic to pursue unrelated industrial relations outcomes’.
The ABCC, meanwhile, issued an e-alert which drew attention to the decision, and pointed out that the Model WHS Act (which has been adopted by all jurisdictions apart from Victoria and Western Australia) contains provision to the same effect as the relevant sections of the OHS Act.
What are the implications for employers?
Employers should keep the following three points in mind as a result of the decision:
If an HSR seeks the assistance of a union official in relation to a health and safety issue under the OHS Act, that official must have an entry permit pursuant to Part 3-4 of the FW Act if he/she wishes to enter the site in this capacity.
The courts will take a broad and practical view when determining whether a union official requires an entry permit in order to exercise a State or Territory OHS right.
Even if a union official does have an entry permit, an employer can still challenge their right to enter the workplace under the OHS Act on the basis that they are ‘not a suitable person to assist the representative because of insufficient knowledge of occupational health and safety’. An HSR can, in turn, challenge any such refusal of access by application to the Magistrates Court.
It is also important to appreciate that the Full Federal Court’s decision in ABCC v Powell is of significance to employers in all jurisdictions with the exception of Western Australia.