AREEA reviews a recent matter related to union site entry laws, and examines the implications for resource employers.

THE Federal Circuit Court of Australia has ordered a construction site manager to pay a $1,000 fine for refusing entry to a CFMEU official who wanted to talk to a dogman about a suspected a safety breach on site.

The CFMEU brought an application against Class 1 Form Pty Ltd and managers of the company who were working on the Hudson Square Project Site in the Australian Capital Territory.

The CFMEU argued the company had committed a contravention of s.502 of the Fair Work Act 2009 (Cth) in intentionally hindering or obstructing an official of an organisation in exercising rights in accordance with Part 3-4 of the Fair Work Act. Part 3-4 of the Fair Work Act deals with Right of Entry, including when a permit holder exercises state or territory OHS rights.

Background

In January 2015, the manager refused to allow the CFMEU representative to talk to a dogman on site under the Work Health and Safety Act 2011 (ACT) (“the WHS ACT”). While the manager allowed the CFMEU representative to inspect the Safe Work Method Systems (SWMS) for the tower crane, the CFMEU representative’s repeated requests to speak to the dogman were denied on the basis that the particulars of the alleged contravention had not been provided by the union. Section 118(1)(b) of the WHS Act allows a permit holder to consult with the relevant workers in relation to the suspected contravention of the WHS Act.

In order to invoke a right under s.118 of the WHS Act, the permit holder must first “reasonably suspect before entering the workplace that the contravention has occurred or is occurring”.

Decision

Federal Circuit Court Judge Jarrett accepted the CFMEU had a “proper basis (i.e. viewed objectively, a reasonable suspicion that a contravention of the WHS Act had been or was being committed on the site) for exercising the right provided for in s.118(1)(b) of the Work, Health and Safety Act”.  He did concede however that “no proper particulars of the suspected contravention were given” by the CFMEU and the “Notice of Entry was not particularised”.

Regardless, the Judge found s.118(1)(b) was “probably engaged in the circumstances” and the manager had “committed a contravention of the Fair Work Act when he refused to permit the union to speak to the dogman”.

The Judge found the manager did not take any steps to test or clarify the union’s concerns about safety issues relating to only having one dogman on site.  Considering all of the circumstances, the Judge issued a penalty of $1,000 to the manager.  The maximum penalty that could have been ordered at the time of the contravention was $10,800.

Implications for Employers

Reforming union workplace entry laws to ensure they are balanced, well-understood and simplified is a key area of workplace relations advocacy being undertaken by AREEA. Learn more about why union site entry laws need to be changed here.

From a practical perspective, this matter indicates there needs to be greater awareness of the rights for unions to enter workplaces under both the current Fair Work Act and the workplace health and safety legislation of each respective state.

With the lack of lead time (i.e. no notice period required) for entries to investigate suspected safety contraventions, it is critical site managers and supervisors are well trained in how to deal with such entries.

Often, site managers and supervisors are required to manage a work health and safety entry on the spot.  It is therefore important for companies to have a clear Right of Entry Procedure to ensure compliance with not only the Fair Work Act, but also the relevant work health and safety legislation for the state within which they are working.  Site management and supervision should be trained in the procedure so that they are confident in managing the entries, while meeting the requirements of the Fair Work Act and work health and safety requirements.

This can be a complex area for employers to manage, particularly for entries to investigate suspected safety contraventions. AREEA regularly advises and provides support to members on right of entry procedures, training for management and disputes. For more information, contact your local AREEA office.