Australia: You shall have a pass! FW Act permits required

Last Updated: 24 January 2018
Article by Ben Keenan

It has been confirmed that an employer may require a union official to possess an entry permit under the Fair Work Act 2009 (Cth) (FW Act) even when the official has purportedly been invited on site by a safety representative. On 17 November 2017, the High Court refused an application for special leave to appeal the decision of the Full Federal Court in Australian Building and Construction Commissioner v Powell1 (Powell).

The issue in the proceedings was whether a union official must have an entry permit granted under the FW Act when invited onto site by a health and safety representative who has been elected pursuant to State occupational health and safety (OHS) laws, purportedly to assist in the performance of the health and safety representative's functions.

The facts of Powell

On four occasions between May and July 2014, Mr Powell, an official with the Construction Forestry Mining and Energy Union (CFMEU) was invited by Mr Curnow, a health and safety representative elected under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) for a construction project, to attend site to assist Mr Curnow in dealing with various OHS issues arising on the site.

When Mr Powell was asked by Mr Curnow's employer on the occasion of the first entry to produce his entry permit under the FW Act, Mr Powell refused, asserting that as he was entering site at the invitation of a health and safety representative pursuant to section 58(1)(f) of the OHS Act, he was not obliged to possess an entry permit under the FW Act and that, pursuant to section 70 of the OHS Act, the employer was obliged to permit his entry to the site. Mr Powell refused to comply with a direction from the employer to leave the site.

The employer called the police, who refused to remove Mr Powell from the site, on the basis that they agreed with Mr Powell's assertion that he was entitled to enter and remain on the premises without having to possess an entry permit under the FW Act so long as he entered and remained on site at the invitation of the health and safety representative to assist the representative with the exercise of his functions under the OHS Act. Police were called again on two of the three further occasions that Mr Powell entered the site.

After conducting an investigation into the entries, the Director of the Fair Work Building Inspectorate commenced penalty proceedings against Mr Powell for alleged contraventions of section 494(1) of the FW Act (which requires that a union official "must not exercise a State of Territory OHS right" unless the official holds an entry permit under the FW Act).

History of the legal proceedings

Justice Bromberg of the Federal Court ruled that Mr Powell had not contravened section 494(1) of the FW Act when entering the site, on the basis that sections 58(1)(f) and 70 of the OHS Act did not constitute a "State or Territory OHS right" that could be exercised by Mr Powell and accordingly, he was not required to possess a valid entry permit under section 494(1) of the FW Act2. Justice Bromberg concluded that the only rights conferred via sections 58(1)(f) and 70 of the OHS Act were in fact conferred on Mr Curnow as the health and safety representative, not the union official requested to assist him.

The Director appealed, resulting in the earlier decision being overturned. The Full Federal Court upheld the appeal, finding there was "no reason of policy or commonsense" to support a distinction between differently worded provisions in a State or Territory OHS law that have the same effect of providing a union official with a right to enter premises. The Full Court also noted that the imposition of such a distinction was likely to lead to practical confusion at site level, which could in turn result in allegations of trespass and the involvement of the police, as was the case in Powell3.

Mr Powell's representatives and the Victorian WorkCover Authority sought special leave to appeal to the High Court. The High Court rejected the application, agreeing with the reasoning of the Full Federal Court.

Significance for employers nationally

The decision of the High Court to refuse special leave to appeal the Powell decision is significant for employers in all jurisdictions. The State safety laws that were the subject of the litigation are relevantly the same in all States and Territories other than Western Australia. The various checks and balances on the exercise of rights of entry differ as between State safety laws and the FW Act and it is important to know what they are and how they might be used (and when) in order to maintain order on site.

Employers in unionised industries should train staff on right of entry laws so staff know where they stand on refusing entry to an official, and to otherwise monitor and manage an official's behavior when a right is properly exercised. Safety, unfortunately, is used all too often as an industrial lever, and equipping staff with appropriate knowledge of the legal position goes some way to preserving the integrity of work health and safety systems and ultimately safety for all on site.


1 [2017] FCAFC 89.

2 See Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287.

3 Powell at [57] – [58].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions