It’s time to re-think right of entry laws

“In a liberal democracy, it is assumed that citizens, corporations and other organisations will comply with the law”, an exasperated Full Federal Court recently commented.[1]  Perhaps those remarks were conscious of the ACTU Secretary declaring, “when [the law is] unjust, I don’t think there’s a problem with breaking it”.  The Full Court’s retort to such a sentiment was that “compliance is not a matter of choice”.

Yet compliance (or avoidance) seems to be optional for (some) unions when it comes to right of entry laws.  The laws also allow for some “considerable uncertainty”.[2] 

In our view, such attitudes and recent decisions demonstrate that the right of entry provisions in the Fair Work Act 2009 (Cth) require a serious re-think and modernisation.  A modern system requires laws focussed on professionalism by all participants.

Right of entry laws

An employer has the right to conduct business “free from harassment”.[3]  Part 3-4 of the FW Act encroaches on that liberty by establishing a framework for certain officials of unions to enter business premises for three discrete and important purposes:  to have discussions with workers, to investigate suspected contraventions of the FW Act and for WHS purposes.

To enter premises for those purposes, the official first must have been issued with an entry permit by the Fair Work Commission.  To enter premises for WHS purposes, the official must also have a State or Territory WHS entry permit.

Recognising the right of employers to go about their business without undue inconvenience, the FW Act requires permit holders, amongst other things, to give notice of any entry and to produce their permit on request.  The permit holder must not hinder or obstruct an employer, or act in an improper manner, when “exercising … rights in accordance with” Part 3-4 of the FW Act. 

Employers too need to respond appropriately to a lawful entry by a permit holder.  It is an offence to delay entry and to hinder or obstruct a permit holder performing their statutory functions.

A contemptuous disregard for the framework

On a cold winter’s morning, two Queensland union officials (with Federal right of entry permits) stormed onto a building site in NSW.  “This site is shut” and “we’re stopping the [concrete] pour, this is unsafe” they yelled to workers.  Work stopped.  The builder asked “what’s your name?”  “Steve Irwin”, the self-described “smart-arse” official said.  The builder requested to see their entry permits, but they refused to provide their permits for inspection.  There was doubt that any safety concerns were genuinely held.[4]

Fortunately for these officials, they did not have a NSW WHS entry permit.  So despite holding Federal entry permits, and purporting to exercise a right of entry for WHS purposes, the Full Federal Court held they fell outside of the regulation of the FW Act as they could not be “exercising … rights in accordance with” Part 3-4 of the FW Act.[5]  In other words, entering the site and engaging in improper conduct is no breach of the Act unless the official is a permit holder and exercising the right of entry as permitted by legislation.

The practical effect of that decision is that officials or permit holders, without WHS permits, can enter sites for a WHS purpose and be untouchable under the FW Act.  Employers will need to call the State regulator, the police or take action for trespass.  Due to the poor drafting of the FW Act, there is simply no sanction for permit holders engaging in poor behaviour if they did not, or choose not to, engage the FW Act. 

Using industrial muscle to enter workplaces

Recognising the apparent gap, the CFMEU appealed another decision finding its officials (and Federal permit holders) breached right of entry laws, advancing new arguments on appeal.  The union argued (hold onto your seat):

• as it did not give written notice of its entry, it had not engaged with the FW Act (and therefore it was outside the regulation of the FW Act); and

• that it entered the site relying on its “industrial power” and “industrial muscle” as the CFMEU (and not in the exercise of any “rights” under the FW Act).

In effect, the union was using its non-compliance with the FW Act as a shield – a bit like saying I’ve not relying on my driving licence so you can’t book me for speeding!  “Such a submission … is astounding”, the Full Federal Court said.[6]  The argument was a complete “shunning … of any need to comply with the” FW Act.[7]  The Court did not grant permission for the union to advance this argument on appeal.

“I don’t need a permit”

In another recent case, a union official was asked to assist a health and safety representative (HSR) in dealing with a safety issue on site.  When he entered the site, and was asked to show his permit, he said he did not need a permit.  He also did not hold a federal entry permit.

The FW Act says an official of a union cannot exercise a State WHS right unless they are a federal permit holder.  The Victorian Occupational Health and Safety Act 2004 provides that employers must allow a person assisting a HSR access to the workplace.  The union argued that attending a site in this capacity was not exercising a right of entry under the FW Act.

The critical issue was whether the official was exercising a right of entry.  “The legislation needs to work in a practical way at the work site”, the Full Federal Court said.[8]  The Court concluded in entering the site to assist the HSR, the official was exercising a right to enter the premises.  As such, the FW Act required him, as an official, to have a permit.  “Common sense” needs to be applied the Court said.[9]

Time to re-do right of entry laws

There is no doubt that right of entry laws need “to work in a practical way”.  As presently drafted, the laws frankly cannot achieve that purpose.  The overlay with WHS laws adds further complication.

A scheme that talks of “right” of entry also begins on the wrong premise.  As the Full Federal Court recognised, the FW Act grants “privileges and responsibilities”.[10]  A “right” allows and fosters tempestuous behaviour whereas the language of “privileges and responsibilities” engenders respect and professionalism.

To achieve respect and professionalism, any scheme must:

• establish a Code of Conduct that applies to officials and employers; and

• have increased penalties for non-compliance.

The Code of Conduct ought to attach to officials whether they enter premises under invitation or not, and whether they are exercising functions under an entry permit.  The Code can regulate a range of behaviour that shows respect for all participants at the work site.

The Code would seek to normalise the behaviour you would expect from an official.  Like employers are required to give employees the Fair Work Information Statement, officials should be required to give employers a prescribed form setting out each party’s rights and obligations.  At least that way, everyone knows and is reminded of their obligations at the time of entry.

If an official then complies with the Code, an employer preventing the proper exercise of any statutory functions, or hindering and obstructing the official in exercising those functions, should face higher penalties.  As would an official who decides to misbehave.

Penalties imposed on officials for non-compliances should also be payable by them personally (without reimbursement by the union).  A penalty should be a penalty not just a routine cost of the exercise of industrial power or industrial muscle.  This issue is presently before the High Court.[11]

In our view, the time for a more modern scheme regulating entry to workplaces has arrived. 

Author: James Mattson

 

[1] Australian Building and Construction Commissioner v CFMEU [2017] FCAFC 53 (the Perth International Airport case) at [100].

[2] Director of Fair Work Building Industry Inspectorate v Bragdon [2015] FCA 668 at [64] to [65] (the Bragdon case).

[3] Darlaston v Parker [2010] FCA 771 at [37] to [38] and [44].

[4] Bragdon at [15], [39], [47] and [71].

[5] Bragdon v Director of the Fair Work Building Industry Inspectorate [2016] FCAFC 64.

[6] CFMEU v Australian Building and Construction Commissioner [2017] FCAFC 77 at [37].

[7] At [40].

[8] Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 at [15].

[9] At [57].

[10] The Perth International Airport case at [98].

[11] Australian Building and Construction Commissioner v. Construction, Forestry, Mining and Energy Union & Anor, M65/2017