Is near enough good enough when it comes to union right of entry? - Employee Rights/ Labour Relations

Frequent court and tribunal decisions indicate that employers are commonly apprehensive about unions seeking to exercise entry rights. Understanding the requirements unions must observe to exercise lawful right of entry under the Fair Work Act 2009 (Cth) (FW Act), and being across your rights and responsibilities as an employer, is essential to ensuring you don't breach your statutory obligations when it comes to union right of entry.

Blocking or unduly delaying lawful entry to a site can result in substantial civil penalties being imposed. In the recent Full Federal Court decision of Ramsay v Menso [2018] FCAFC 55 (10 April 2018) (Ramsay v Menso), a sole director, Susan Menso, was found to have breached the FW Act by blocking or unduly delaying lawful union entry to a Brisbane building site. This decision quashed a previous Federal Circuit Court finding that the action against Ms Menso failed, on the technical argument that the union officials' entry notice was invalid because they omitted their middle names.

In this article, we examine the FW Act requirements for union right of entry, and employers' rights and obligations in light of the Ramsay v Menso decision. We focus in particular on the interaction between the FW Act entry rules and right of entry provisions under Queensland work health and safety law, which were at issue in that case.

WHAT ARE THE FW ACT RIGHT OF ENTRY REQUIREMENTS?

In setting out the right of entry provisions, Part 3-4 of the FW Act seeks to balance the right of unions to represent and meet with members and investigate suspected contraventions of the FW Act or occupational health and safety (OHS) laws with an employer's right to conduct business without undue inconvenience.¹

Permits

Only union officials who hold a valid entry permit may exercise a right of entry related to their representative role under the FW Act and State or Territory OHS laws.²

There are two types of permits:

A FW Act entry permit, granted by the Fair Work Commission (FWC), with or without conditions, if satisfied the union official is a 'fit and proper person'.³
A Work Health and Safety (WHS) entry permit, granted by the industrial registrar under State or Territory OHS law if the official has completed the necessary training and holds an entry permit under the FW Act.⁴

Purposes for rights of entry

Rights of entry under the FW Act may be exercised for the following purposes:

Reason for entry	Part of FW Act	Permit required	Description
To investigate suspected contravention	s. 481 & 483A	FW Act entry permit	To investigate a suspected contravention of the FW Act or a fair work instrument if: the permit holder reasonably suspects a contravention has occurred or is occurring; and the contravention relates to, or affects a member of the union whose interests the union is entitled to represent and who performs work on the site.
To hold discussions	s. 484	FW Act entry permit	To hold discussions: with employees who perform work on the premises, who want to participate in the discussions, and whose industrial interests the union is entitled to represent; and only during meal times or other breaks.⁵
Under right conferred by State or Territory OHS laws	s. 494	FW Act entry permit and OHS law entry permit	To enter premises, or to inspect or otherwise access an employee record, if the right is conferred by a State or Territory OHS law. In Queensland, to inquire into a suspected contravention where it is reasonably suspected that a contravention of the Work Health and Safety Act 2011 (Qld) (WHS Act Qld) has occurred or is occurring.⁶

Notice of entry for investigations or discussions

A union official seeking entry for discussions or suspected contraventions of the FW Act or an industrial instrument must give written notice of entry at least 24 hours, but no more than 14 days, before the intended visit.⁷

However, the FWC must grant an exemption certificate for this notification requirement if the entry is to investigate a suspected contravention and the FWC reasonably believes that advance notice of the entry given might result in destruction, concealment or alteration of relevant evidence.⁸

OHS notice of entry

Unlike entry for suspected FW Act contraventions or for union officials to hold discussions with employees, the OHS right of entry involves an interplay between the FW Act and the applicable State or Territory OHS laws. Entry for OHS purposes is authorised under State or Territory OHS laws, but the FW Act continues to apply.

The FW Act provides that a permit holder must not exercise a State or Territory OHS right to inspect or otherwise access employee records, unless they have given written notice of the intention and reasons for doing so at least 24 hours before exercising the right.⁹ Consistent with this FW Act provision, the WHS Act Qld provides that 24 hours' written notice is required to inspect employee records or information held by another person, or to enter a workplace to consult and advise workers.¹⁰

However, in Queensland, a WHS entry permit holder can enter a workplace where a relevant worker works to inquire into suspected contraventions of the WHS Act Qld without giving notice in advance. It is sufficient that the WHS entry permit holder genuinely holds 'a reasonable suspicion' before entering the workplace where a contravention is occurring or had occurred. In such circumstances, the entry notice must be provided 'as soon as is reasonably practicable after entering a workplace', unless doing so would defeat the purpose of the entry or unreasonably delay the entry permit holder in an urgent case.¹¹

Entry notices must be in writing and include the details specified in Part 2-4 of the Workplace Health and Safety Regulations (Qld) (WHS Regulations Qld), including the full name of the WHS entry permit holder.¹²

WHAT ARE AN EMPLOYER'S RIGHTS AND OBLIGATIONS?

When a union official seeks to exercise a right of entry to a work site, an employer can:

request to see the union official's entry permit;¹³
request to see a copy of the entry notice or exemption certificate (where relevant);¹⁴
require the official to comply with WHS requirements that apply to the premises;¹⁵
agree with the official the rooms or area where interviews or discussions are to be conducted;¹⁶and
require the official to take a certain route to the room or area to hold discussions.¹⁷

On the other hand, an employer cannot:

deny a request for production of or access to a document or record (including electronic) relevant to a suspected contravention of the FW Act or an industrial instrument;¹⁸
refuse or unduly delay a lawful right of entry;¹⁹
intentionally hinder or obstruct an official exercising lawful right of entry, including after notice of entry is given but before entry.²⁰

Civil penalties may apply where an employer is found to have breached any of these provisions, as highlighted in the recent Ramsay v Menso decision.

RAMSAY V MENSO – THE COST OF A RIGHT OF ENTRY BREACH

The facts of the case

Ms Menso was the sole director of Z Group 1 Pty Ltd (Company), which operated a construction site in Brisbane.

In December 2015, two CFMEU officials, Andrew Ramsay and Anthony Stott, (Officials) sought to enter the site to investigate a suspected safety breach. Photographs provided to the Officials via Facebook purportedly showed unsafe scaffolding on the site.

The Officials both held FW Act and WHS Act Qld entry permits, and sought to issue an entry notice they had drafted in the car before attempting to enter the site.

Ms Menso denied the Officials entry to the site on the basis that they had 'no jurisdiction' and needed to give 48 hours' notice. Ms Menso refused to review the entry permits or entry notice.

A Workplace Health and Safety Queensland (WHSQ) inspector and police were subsequently called to the site, and advised Ms Menso to comply with the entry request.²¹ Ms Menso initially ignored their advice.

The Officials brought proceedings against the Company and Ms Menso for breaching section 501 of the FW Act ('Person must not refuse or delay entry') before the Officials were required to provide an entry notice.

Federal Circuit Court finding

Federal Circuit Court Judge Vasta found that Ms Menso did not look at or listen to the Officials, ignored the WHSQ inspector and was not concerned with obeying the law.

His Honour also found that the union officials reasonably suspected a safety breach was occurring or had occurred at the site, and Ms Menso's 'appalling' conduct constituted three breaches of the FW Act.

However, Judge Vasta ultimately dismissed the claim because the Officials failed to comply with the requirement in clause 27 of the WHS Regulations Qld to provide their 'full name' on the entry notice.

This technical reading of the Regulations was based on the finding that the Officers omitted their middle names and, in Mr Stott's case, shortened his given name to Tony on the entry notices.

Full Federal Court Appeal

The Officials appealed to the Full Federal Court, which determined that completing or providing an entry notice to the Company was not a prerequisite to exercising an OHS right of entry.

In exercising an OHS right of entry for a suspected breach of the WHS Act Qld, section 119(1) of that legislation provides only that the permit holder must give a notice to the occupier 'as soon as reasonably practicable after entry'.

Therefore, irrespective of the notice provided by the union officials, Ms Menso's conduct contravened section 501 of the FW Act.

The Court further reached the conclusion that the correct approach, being a 'common sense interpretation'²² of clause 27 of the WHS Regulations Qld, showed that the union officials' failure to strictly comply by failing to provide their 'full name' on the entry notice did not vitiate their right of entry under section 117 of the WHS Act Qld. While the modes of self-identification by the Officials were defective, this did not go to the validity of the notices they provided.

The matter has been remitted to Judge Vasta in the Federal Circuit Court to determine penalties. In his original decision, the Judge indicated that Ms Menso's conduct warranted fines totalling $18,500, had the Officials held a valid entry notice. This provides some indication of the penalty that may ultimately be imposed on Ms Menso.

The decision illustrates that in interpreting the FW Act and State/Territory OHS law right of entry provisions, the courts will not adopt a strict approach to union officials' compliance with some of the technical requirements for entry. Priority appears to be given instead to the overriding statutory purposes of OHS laws aimed at the prevention of risks to workers.

Nevertheless, employers should carefully consider and assess union requests to exercise statutory rights of entry to a work site, in light of the requirements for entry – and the employer's rights and obligations – under the applicable legislation.

Footnotes

¹Section 480, FW Act; see also Fair Work Bill 2008 (Cth), Second Reading Speech, at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F2008-11-25%2F0005%22

² Section 487, FW Act.

³ Sections 512-515, FW Act.

⁴ In Queensland, this is prescribed in section 133, Division 5 (WHS entry permits), Part 7 (Workplace entry by WHS entry permit holders) of the Work Health and Safety Act 2011 (Qld). The specific training requirements are specified in clause 25 of the Work Health and Safety Regulations 2011 (Qld).

⁵ Section 490(2), FW Act.

⁶ Section 117, Work Health and Safety Act 2011 (Qld).

⁷ Section 487, FW Act.

⁸ Section 519, FW Act.

⁹ Section 495, FW Act. Note, this is a civil remedy provision.

¹⁰ Section 120 & 122, WHS Act Qld.

¹¹ Section 119, WHS Act Qld.

¹²Clause 27, WHS Regulations Qld.

¹³ Section 489 & 497, FW Act; section 125, WHS Act Qld.

¹⁴ Section 487 & 489, FW Act.

¹⁵ Sections 491 & 499, FW Act; section 128, WHS Act Qld.

¹⁶ Section 492, FW Act.

¹⁷ Section 492A, FW Act.

¹⁸ Section 482, FW Act.

¹⁹ Section 501, FW Act; section 144, WHS Act Qld.

²⁰ Section 502, FW Act; section 145, WHS Act Qld.

²¹ Section 141 of the WHS Act Qld provides that if a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under the WHS Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute.

²² Applying the approach of the Full Federal Court in ABCC v Powell [2017] FCAFC 89, see: http://www.corrs.com.au/publications/corrs-in-brief/produce-your-permit-full-federal-court-clarifies-union-right-of-entry-for-ohs-purposes/

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.