Ignoring the rights of permit holders could cost your organisation big time.
When the Federal Circuit Court gave judgment in CFMEU v Hanssen Pty Ltd last November, in litigation concerning the ‘right of entry powers’ of union officials, it sounded a warning to employers with unionised workforces.
Hanssen operated a construction company in Perth and came into conflict with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). As a result of this conflict, Hanssen delayed entry by union officials until the CFMEU apologised.
Against this backdrop of hostility, one of Hanssen’s workers died during employment. This prompted ‘right of entry’ investigations at the worksite. Hanssen denied entry, so the CFMEU commenced proceedings against Hanssen, its owner and a site supervisor.
The respondents admitted liability and penalties totalling $79,000 were imposed, payable to the CFMEU. These penalties emphasise that employers and unions alike must consider the consequences of breaching their obligations under the right of entry provisions of the Fair Work Act 2009.
Union officials are eligible for ‘right of entry permits’ pursuant to the Act and state work health and safety legislation. The permits can be used to conduct investigations into contraventions of workplace rights.
Permit holder rights
Entry to investigate a contravention of the Act requires the permit holder to possess sufficient information supporting a reasonable suspicion that a contravention affecting members is occurring or has occurred. For example, to reasonably suspect underpayment of award entitlements, there should be knowledge of payslips and rosters prior to entry.
Prior to entry, permit holders must give 24 hours’ notice to the employer. If the permit holder alleges breaches of work health and safety legislation, they can give notice after entry. A right of entry notice must give details of the suspected contraventions including:
- The disputed section of the industrial instrument, Fair Work Act 2009 or Work Health and Safety Act.
- How the employer is alleged to have contravened the provision. It is not enough for the permit holder to point to the provision. Evidence is required
On arrival, the employer is entitled to insist the permit holder:
- Complies with work health and safety requirements.
- Enter during working hours.
- Produces their entry permit and notice of entry.
- Conducts interviews in a particular room.
Once the permit holder enters, they may:
- Interview any person who agrees to be interviewed and works in a position within the union’s coverage.
- Inspect work, processes or objects relevant to the contravention.
- Require the employer to produce documents which are directly relevant.
If a permit holder complies with requests made of them, entry must be facilitated. Significant penalties may be imposed on an employer if they deny entry.
More often than not, the time to seek legal advice about a right of entry is when the notice is received. If advice is sought after entry has occurred, control of the outcome is lost. This is especially important during industrial turmoil when tempers run high.
This article originally appeared in the March 2020 edition of HRM magazine.
Stefan Russell-Uren is an employment lawyer at Aulich Civil Law.
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