Does an employer have to let a union official in? Only if they have a permit!
Right of entry disputes are common – partly because of the multiple laws that at a glance seem to overlap in a way that can be confusing. The latest chapter in this saga has recently played out in the High Court. The good news is there is now additional clarity that can be applied in practice when the union comes knocking.
Why is this issue controversial?
Employers want to conduct their business without interference. Union officials want to represent their members in the workplace. This results in a natural degree of tension – which can be stressful when there is a health and safety concern.
The laws provide a rulebook that regulates both unions and employers if they can't agree on entry. Unfortunately the laws are complex and there is an overlap which has been confusing in practice. Under the Occupational Health and Safety Act 2004 (Vic) (and similar provisions in the Model WHS Act) health and safety representatives (HSRs) can request assistance to help them fulfil their duties. But what if the assistance is from a union official without a Fair Work Act 2009 right of entry permit?
Both sets of laws have a long history – reflecting different policy imperatives. Safety laws prioritise HSRs getting assistance to resolve an issue. Right of entry permit laws ensure that the right is exercised consistently with the objective of balancing union interests and employer interests. The permit regime results in ongoing regulation of permitholders and the right to enter can be removed if the person in question behaves inconsistently with that privilege, eg, by breaching workplace laws.
Until now there was a question about how to deal with the situation if the union official was seeking to enter under state WHS laws, eg, if the site HSR asks a union official to "assist". At first glance, these state provisions sit entirely outside the "right of entry" regime. Does that mean the official without a permit can lawfully come in? Are they trespassing? Is the employer entitled to have them removed (and will the police assist)?
A victory for common sense – Powell v Australian Building and Construction Commissioner
Highlighting the need for a practical solution, in the recent case, the Federal Court decided that the CFMEU official still had to comply with the entry permit regime, even where he had been invited into the workplace by the HSR under the Victorian OHS law. The Judges found there was no reason of common sense or policy why different arrangements would apply depending on the reason for entry – noting that this could lead to confusion in practice, undermining the utility of the entry permit regime.
WorkSafe Victoria and the CFMEU official sought to appeal the decision on the basis that this excludes the capacity of HSRs to seek assistance from union officials outside the right of entry rules. The High Court dismissed the application for special leave to appeal– meaning the decision of the Federal Court stands.
Know the rules and be ready to act!
Health and safety issues can flare up quickly requiring an immediate response – with everyone under pressure. Nobody is doubting the importance of ensuring that HSRs can deal with health and safety concerns including having access to specialist assistance as required as quickly as possible. This is why it is important to have clear rules that everyone can follow.
The state legislation (and the guidance that may be issued by regulators or inspectors) will not necessarily present the full picture because you need to consider both sets of laws. Recognising that it can be difficult to "stand your ground" in a high pressure situation, employers should have a protocol in place which deals with all the issues and ensure that managers are prepared to respond when a union official arrives. The legal position is now clear: a union official will always need a right of entry permit even if they are seeking to enter under state laws.
This outcome is a win for common sense. It means that the rules are clear – which is good for both industrial relations and for achieving a quick resolution of health and safety concerns.
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