The Federal Court has confirmed that union officials can rely on the Fair Work Act 2009 (Cth) (FW Act) right of entry protections when exercising their right of entry powers under State occupational health and safety (OHS) legislation.

Implications for employers

Employers should be conscious of their right of entry obligations in relation to union officials seeking entry to their premises for OHS purposes. In particular, employers should be aware that a failure to grant an employee OHS right of entry under a state OHS Act constitutes a breach of both the FW Act and the relevant state OHS Act and that proceedings may be brought under either.

Background

Sunbuild was engaged in demolition work at a site in Darwin’s central business district.

On three separate occasions during these works, the applicants, all officers of the Construction, Forestry, Mining and Energy Union (CFMEU), attempted to enter the worksite to inspect it, relying on right of entry provisions in the FW Act. On each occasion, the applicants claimed to hold a reasonable suspicion that Sunbuild was contravening the relevant state legislation, the Work Health and Safety (National Uniform Legislation) Act 2011 (State OHS Act), by exposing workers to asbestos.

All four applicants were refused entry to the site, although two of the applicants eventually gained entry. On the occasions that two of the applicants gained entry, they were told to leave the premises, and were allegedly yelled at, pushed and shoved.

The applicants commenced proceedings in the Federal Court, alleging that Sunbuild had contravened sections 501 and 502(1) of the FW Act. Sections 501 and 502 prohibit refusing and delaying entry to permit holders, and/or hindering and obstructing their entry.

Sunbuild resisted the application, arguing that sections 501 and 502 were not applicable because the applicants had sought to exercise their right of entry to the worksite under the State OHS Act, not under Part 3-4 of the FW Act. The applicants had not brought proceedings under the relevant State OHS Act itself, as the State OHS Act equivalents of sections 501 and 502 could only be enforced by a regulator or inspector.

Justice Reeves of the Federal Court was required to determine, as a threshold issue, whether the applicants were able to bring a claim under sections 501 and 502.

Decision

Justice Reeves found in favour of the applicants, holding that:

  • the Commonwealth has, under the FW Act, retained exclusive power to make industrial laws, including in relation to right of entry. However, it has not reserved that exclusive power in relation to OHS. Accordingly, the FW Act does not “cover the field” in relation to OHS and right of entry for OHS purposes;
  • the FW Act operates “interactively” with the relevant State OHS Act. It adds to the requirements of the relevant State OHS Act without otherwise affecting it. There is no inconsistency or repugnancy between the “independent but parallel” regimes to enforce right of entry protections under the FW Act and the relevant State OHS Act such that one excludes the other;
  • the FW Act qualifies State OHS law rights of entry, in that it provides that officials cannot exercise State OHS entry rights unless they also hold a right of entry permit under the FW Act. However, it does not create its own OHS right of entry framework;
  • even though the applicants’ right of entry in this case was conferred by the relevant State OHS Act and the FW Act merely regulates those State OHS Act rights, the applicants can rely on sections 501 and 502 of the FW Act to enforce the rights. This is because the Commonwealth has, in the FW Act, sought to regulate the standards, qualification and conduct of those exercising right of entry, including right of entry under a State OHS law. If a person complies with those prerequisites to exercising right of entry under a State OHS law, they are also able to seek the protection of sections 501 and 502 to prevent them from being hindered or obstructed in doing so; and
  • the evidence available indicated that the applicants held permits under the FW Act and had a legitimate OHS purpose for entering Sunbuild’s premises. Accordingly, they were entitled to the protections of sections 501 and 502 and to bring proceedings alleging breach of those provisions.

The question of whether there actually was a breach of sections 501 and/or 502 in this case is yet to be determined.

Ramsay v Sunbuild Pty Ltd [2004] FCA 54