Union Right of Entry – Employers Beware!

Under the Fair Work Act 2009 (Cth) (FW Act) a union official who holds a valid permit is able to enter a workplace, for specific reasons including:

• Investigating suspected contraventions under the FW Act and other instruments (i.e. an enterprise agreement or modern award);
• Investigating breaches that relate to outworkers in the textile, clothing and footwear industries;
• Meeting with employees for discussion purposes; and
• Using their rights under occupational health and safety (OHS) laws.

Union officials can enter the workplace under workplace health and safety (WHS) legislation to:

• Investigate suspected breaches or contraventions of WHS legislation; and
• Inspect and copy documents that relate directly to a suspected contravention of WHS legislation; and
• Consult and advise workers about suspected contraventions.

There are certain notice requirements that need to be met before a union official can enter a worksite, and they must be entitled to represent the industrial interests of a worker who works on the premises.

When exercising right of entry, union officials must not engage in conduct contrary to reasonable OHS requirements that apply to worksite.

Breaching right of entry provisions, or OHS requirements, can lead to a Fair Work Ombudsman investigation and penalties being imposed (as well as a right of entry permit being cancelled).

This was evidenced in the recent decision of a Full Court of the Federal Court of Australia of Construction, Forestry and Maritime Employees Union v Fair Work Ombudsman (Cross River Rail Appeal) (No 2).

Interestingly, this case was appealed by the CFMEU (and the union official) and, despite being partially successful in the appeal, the penalties handed down by the Court were increased.

The Case

Mr Rielly, a CFMEU union official, attended the Brisbane Cross River Rail Construction Project worksite under right of entry permit on the basis that he reasonably believed the employer had failed in its primary duty of care under WHS legislation. However, Mr Rielly refused to comply with the visitor entry requirements (including to complete an induction and not enter restricted areas). These requirements were considered to be reasonable OHS requirements. The FWO also contended, and the Court at first instance found that, Mr Rielly did not comply with reasonable requests for him not to enter upon the site unaccompanied.

Given Mr Rielly’s failure to comply with the business’ reasonable OHS requirements, the Court penalised Mr Reilly $5,500 and the CFMEU $37,500. The CFMEU and Mr Rielly then appealed the decision.

On appeal, the Court held that Mr Rielly did not fail to be accompanied on the worksite, but otherwise upheld that he breached the business’ OHS requirements as described above.

On this basis, the Court redetermined the penalties and increased them to $6,300 for Mr Rielly and to $60,000 for the CFMEU.

At the time of the contravention, the maximum penalties were $13,320 for individuals and $66,600 for unions who breach the FW Act requirements.

Lesson for Employers

Right of entry can be difficult to manage. Knowing and understanding your obligations is essential to ensure you make the correct decisions in, what can be, difficult and tense circumstances.

Subject to having a valid permit (and meeting certain prerequisites), union officials have a right to enter a workplace or worksite if, but this right is not unfettered. Employers are able to insist that those exercising right of entry adhere to the FW Act and reasonable occupational health and safety requirements when entering.

Please contact HR Legal if you require any assistance managing right of entry requests or if you believe that right of entry has not been appropriately conducted.

Case Link: Construction, Forestry and Maritime Employees Union v Fair Work Ombudsman (Cross River Rail Appeal) (No 2) [2024] FCAFC 55.