The Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees (Union) and its industrial officer Kane Pearson were fined $16,500 and $4,500 each respectively for breach of the right of entry provisions under the former Workplace Relations Act 1996 (Cth) (WR Act) (which are mirrored in the Fair Work Act 2009 (Cth) (FW Act)).

The facts

The decision of Jarrett FM in Lovewell v Pearson & Anor [2011] FMCA 102 is the latest case in a string of successful prosecutions by the building industry watchdog, the Australian Building and Construction Commissioner (ABCC), against unions and their officials who breach various representative rights under industrial laws.

In this case, Mr Pearson exercised right of entry for OH&S purposes under the WR Act on a Brisbane construction site.  Acting on behalf of the Union, he blocked the entrance to a construction site and delayed operations, causing concrete trucks to cure and effectively cancelling the pour for that day.  Mr Pearson's concern was that due to the pour commencing later in the afternoon, employees would have to work into the night.  Mr Pearson was not satisfied that there were adequate safety procedures in place which jeopardised the safety of his members.  He used threatening and abusive language toward management during the interchange that took place at the entrance to the site.

The Federal Magistrate found that Mr Pearson acted unreasonably in the circumstances.  Specifically, he found that Mr Pearson was under the impression that his right of entry granted him the power to interrupt work until his concerns were satisfied.

Outcome

The WR Act (which has now been replaced by the FW Act) grants certain rights to unions in order to service and represent the industrial interests of their members.  This decision demonstrates that courts will not tolerate an official of a union abusing such rights and causing delay to major project works.

Unions often use safety concerns as a ruse in order to apply pressure on employers to further the industrial interests of their members generally on construction projects. This is often achieved through right of entry or protected (lawful) industrial action by employees because of an 'imminent risk to safety'.  Employers should be prepared to act swiftly and apply to Fair Work Australia (and the courts) in order to have the right of entry breach addressed or industrial action stopped.  This includes a statutory obligation to notify the ABCC of the breach.

What should employers do?

The provision of a Legal Contingency Plan (including Industrial Action Contingency Plan) and Right of Entry Protocols is critical for employers engaged on large projects.  Employers should also consider training staff to deal with industrial action and right of entry in order to mitigate lost time caused by industrial action and preventing project delays and budget blowouts.

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