The Federal Court1 has confirmed that union officials must hold and produce (when requested) federal right of entry permits when seeking to enter a workplace under s81(3) of the Work Health and Safety Act 2011 (WHS Act).
On several occasions in March and April 2018, seven Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) officials entered a workplace on the Sunshine Coast Bruce Highway Upgrade joint venture between Fulton Hogan and Seymour Whyte.
During the relevant visits, the CFMMEU officials did not produce federal entry permits2 despite being requested to do so by site management. All but one of the officials held Fair Work entry permits.
Section 81(3) WHS Act and the FW Act
Section 81(3) of the model WHS Act provides that:
A representative of a party to an issue may enter the workplace for the purpose of attending discussions with a view to resolving the issue.
Section 494(1) of the Fair Work Act 2009 (FW Act) provides that:
An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.
In The Bruce Highway Caloundra to Sunshine Upgrade Case, Justice Collier found that s 81(3) of the WHS Act creates a “State or Territory OHS right” within the meaning of the FW Act.
Therefore, in effect, if a union official seeks to enter a workplace pursuant to s 81(3) he or she must hold a right of entry permit issued by the Fair Work Commission under s 512 of the FW Act. The union official must also produce that permit when requested to do so by the occupier of the premises or an affected employee.
Should the official enter a workplace without either holding a Fair Work right of entry permit or producing it (when requested) they put themselves in breach of the FW Act. As seen in the Bruce Highway case, the union itself can also be accessorily liable for the officials' contraventions.
If you require further information or have any queries in relation to this legal alert, please contact Matthew Smith or Damian Hegarty.
We would like to acknowledge the contribution of Mason Fettell to this article.
1 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2)  FCA 1737
2 Issued by the Fair Work Commission under section 512