Union right of entry
The recent Federal Court ruling, is a timely reminder about the Fair Work Act and WHS Legislation.
A recent Federal Court ruling about the rights of entry permit holders to a Darwin CBD construction site highlights a number of issues that companies should be aware of when dealing with right of entry requests for investigation of work health and safety breaches under the Fair Work Act 2009 and state WHS legislation.
At present, under the Fair Work Act 2009 (FWA) union officials can only enter a workplace if they hold an entry permit and are entitled to represent workers in the workplace. Also, holders of valid entry permits can enter workplaces to exercise rights under occupational health and safety laws and these laws apply to all states except WA and Victoria.
In this instance four CFMEU officials, who held entry permits under the FWA and WHS Act, took action against Sunbuild when they were initially denied entry to a Sunbuild worksite after suspecting workers on the site were being exposed to asbestos. They subsequently took action against the company claiming that entry was initially delayed and they were then harassed when on site.
Sunbuild defended the proceedings stating that the union should not be permitted to bring proceedings under the WHS laws. But, the Federal Court ruled that the union had right of entry protections under both the FWA and WHS laws.
This ruling provides a timely reminder that businesses should be aware that entry for safety reasons is governed by both the State WHS legislation as well as under industrial provisions of the Commonwealth Fair Work Act 2009.
If you would like more clarity about this ruling or to find out more about the FWA and WHS legislation and procedures please contact us today.
Safety Services Australia
T: +61 2 9634 5912