What rights to exit union officials from the site?

It is well-known that union officials will try ‘every trick in the book’ when attempting to enter construction sites to access the workers. We’re sure you have experienced it before, officials claiming they are permitted to be on site because they are ‘assisting’ with something like a health and safety matter, but in actual fact they do not even hold the relevant permits that the law requires of them.

So, how should you handle aggressive and evasive union officials you suspect don’t have a right to be on your site?

Under section 494 of the Fair Work Act 2009, a union official must not exercise a State or Territory OHS right unless the official is a ‘permit holder’. This means that even if the union official claims they are there as requested by the staff health and safety representative (“HSR”), they must still hold a valid Right of Entry Permit, which they have to show to you.

Recently, construction managers responsible for running the Ringwood Aquanation construction site found themselves faced with this predicament when Michael Powell (CFMEU Official) entered the construction site on 4 separate occasions, claiming he was there to assist the HSR. When asked to produce his valid ‘Right of Entry Permit’, Powell was unable to do so and ‘dug in’ refusing directions to leave (as he was now trespassing). He had to be removed by authorities after repeatedly refusing to leave. This issue resulted in the matter going all the way to Australia’s highest court.

High Court clarifies union right of entry powers

It now clear, after a High Court decision, that a claimed OHS concern by a union official is no excuse for failing to produce relevant entry permits. It’s not an ‘open sesame’ for them to access whatever they want, whenever they want.  The High Court recently confirmed the Full Federal Court decision that union officials, like Powell, are required to hold a valid Right of Entry Permit even if assisting with an OHS issue under relevant State or Territory OHS law.  The High Court confirmed the ruling of the Full Federal Court where it held that a trade union official assisting a health and safety representative with an OHS issue under Victorian OHS Legislation MUST hold a federal entry permit under the Fair Work Act 2009 (Cth).

It then dismissed the CFMEU’s Powell’s claim and awarded costs against them (yet another award of costs against the Vic CFMEU – what an expensive 2017 its been for them!).

What this means for employers

This decision emphasises to construction managers and trade union officials everywhere that this type of ‘sneaky behaviour’ will not be tolerated. Merely saying “you’ve got an OHS issue” doesn’t grant carte blanche access to a union official, wherever they want to go, whenever they choose.

The law still has to be followed, namely that whilst accessing a site under a purported OHS concern the union official must:

• hold the relevant Right of Entry Permit’ under both Federal and State OHS laws; and
• strictly adhere to both State and Federal permit (and other) laws in conjunction with OHS legislation and not seek to exercise any wider powers not so authorised to exercise.

With a specialist industrial relations advisor ‘in your corner’, a minor dispute between management and a union official can be smoothed over so everyone can ‘get on with the job’.

If you are currently experiencing a similar issue with a Union official continually presenting on your site, and seeking to ‘bluff’ managers and unlawfully access, threaten or bully your workers, please contact us. Further, if you want to know more about the rights you have to exit union officials with no powers to access your sites Just call Workplace Wiizards on 03 9087 6949 (or email at support@workplacewizards.com.au)

Powell v Australian Building and Construction Commissioner & Anor; Victorian Workcover Authority v Australian Building and Construction Commissioner & Anor [2017] HCATrans 239 (17 November 2017).