High Court confirms no right of entry without permit

In brief 3 min read

The High Court has refused to allow an appeal against a Full Federal Court decision that union officials must hold a valid federal right of entry permit when entering sites under state work health and safety (WHS) laws.¹

Key takeaway

Union officials must have valid federal right of entry permits, and be willing to present them upon request, when entering worksites for the purposes of resolving safety issues under state WHS legislation.

Background

In 2018, the Australian Building and Construction Commissioner (ABCC) commenced proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and seven of its officials on the basis that they breached the right of entry provisions under the Fair Work Act (FW Act). On eight occasions, CFMMEU officials entered the Bruce Highway Update Project worksite in Queensland and refused to provide their safety permit, despite numerous requests and the involvement of police.

Section 81 of the Work Health and Safety Act 2011 (QLD) (WHS Act) provides representatives with the right to enter the workplace for the purpose of attending discussions with a view to resolving safety issues. However, section 494 of the FW Act provides that an official of an organisation must not exercise a 'State (or Territory) OHS right' unless he or she holds a permit. State OHS right is defined to mean a right to enter premises, or access employee records on that premises, where those rights are conferred by a State OHS law. Section 497 further stipulates that a permit holder must not exercise a State OHS right unless the permit holder produces his or her entry permit for inspection when requested by an employer or occupier of premises.

While the CFMMEU asserted that s81 of the WHS Act did not confer a right to enter premises (meaning a right of entry permit was not required), the Federal Court decided this section of the WHS Act was in fact a State OHS right for the purposes of the Fair Work Act, and hence the union officials were required to show their permit when entering the worksite.

Consequently, an injunction was granted which prevented the officials from entering the site. The decision was upheld by the Full Federal Court on appeal, leading the CFMMEU to make a special leave application to the High Court.

Decision

On 8 April 2021, the High Court refused the CFMMEU's application for special leave, noting that there 'is no basis to doubt the correctness of the decision of the Full Court'. This has affirmed that union representatives wishing to exercise right of entry powers under state WHS laws must ensure they comply with federal right of entry permit requirements.