A High Court ruling in November 2017 confirmed that union officials need a valid federal right-of-entry permit to enter sites to assist elected health and safety representatives (HSRs) in Victoria. This is likely to have broader application to harmonised Workplace Health and Safety (WHS) jurisdictions, which have relevantly similar laws to those in Victoria.

The matter started in November 2016 when Justice Bromberg of the Federal Court found that the relevant provisions of the Occupational Health and Safety Act 2004 (Vic) – sections 58 and 70, which allow an HSR to inspect a workplace and requires an employer to allow a person assisting an HSR access to the workplace unless unsuitable because of insufficient knowledge of occupational health and safety (OHS) – did not confer an 'industrial right' on a person assisting an HSR. This meant that CFMEU official Michael Powell was not exercising a 'state or territory OHS right' when accompanying an HSR on a Melbourne construction site and therefore did not need a right of entry permit under the Fair Work Act 2009 (Cth).

Justice Bromberg's decision was appealed to the Full Federal Court where it was quashed in June 2017. In quashing Justice Bromberg's decision, the Full Federal Court held that to make a distinction between the permit requirements for investigating purported safety breaches and assisting HSRs "would lead to practical confusion at the workplace site in circumstances where such confusion may lead to allegations of trespass and the involvement of the police". The Full Federal Court ruled that a union official needed to hold a valid right of entry permit under the Fair Work Act 2009 (Cth) (FW Act) not only when investigating potential breaches of state or territory WHS laws at a site, but also when assisting an HSR with a WHS issue. The Full Federal Court held that "no reason of policy or commonsense" could lead to a different conclusion.

In November 2017, the High Court refused a special leave application by WorkSafe Victoria and the CFMEU official to challenge the Full Federal Court decision. 

This means the decision of the Full Federal Court stands and union officials are required to hold an entry permit under the FW Act when seeking access to sites to assist a HSR. Read the decision of the Full Federal Court Australian Building and Construction Commissioner v Powell [2017] FCAFC 89.

Given the similarity of the corresponding provisions in the harmonised WHS laws, the Australian Building Construction Commission has subsequently issued a public statement that union officials invited on to site by HSRs under the Victorian and harmonised WHS laws must hold a valid right of entry permit under the FW Act.

Lessons for employers

When an HSR attends one of your sites accompanied by a union official in Victoria and harmonised WHS jurisdictions, you should require the union official to show a valid right of entry permit issued under the FW Act and refuse their entry if they do not provide it. If your organisation is required to ensure strict compliance with right of entry provisions of the FW Act (eg, under the Building Code, as a condition of tendering for government work or otherwise), this is a requirement.

We suggest updating your organisation's right of entry protocols to ensure this is clear.