The Australian Building Construction Employees and
Builders' Labourers' Federation (Queensland Branch) Union
of Employees (Union) and its industrial officer Kane Pearson were
fined $16,500 and $4,500 each respectively for breach of the right
of entry provisions under the former Workplace Relations Act 1996
(Cth) (WR Act) (which are mirrored in the Fair Work Act 2009 (Cth)
The decision of Jarrett FM in Lovewell v Pearson & Anor
 FMCA 102 is the latest case in a string of successful
prosecutions by the building industry watchdog, the Australian
Building and Construction Commissioner (ABCC),
against unions and their officials who breach various
representative rights under industrial laws.
In this case, Mr Pearson exercised right of entry for OH&S
purposes under the WR Act on a Brisbane construction site.
Acting on behalf of the Union, he blocked the entrance to a
construction site and delayed operations, causing concrete trucks
to cure and effectively cancelling the pour for that day. Mr
Pearson's concern was that due to the pour commencing later
in the afternoon, employees would have to work into the
night. Mr Pearson was not satisfied that there were adequate
safety procedures in place which jeopardised the safety of his
members. He used threatening and abusive language toward
management during the interchange that took place at the entrance
to the site.
The Federal Magistrate found that Mr Pearson acted unreasonably
in the circumstances. Specifically, he found that Mr Pearson
was under the impression that his right of entry granted him the
power to interrupt work until his concerns were satisfied.
The WR Act (which has now been replaced by the FW Act) grants
certain rights to unions in order to service and represent the
industrial interests of their members. This decision
demonstrates that courts will not tolerate an official of a union
abusing such rights and causing delay to major project works.
Unions often use safety concerns as a ruse in order to
apply pressure on employers to further the industrial interests of
their members generally on construction projects. This is often
achieved through right of entry or protected (lawful) industrial
action by employees because of an 'imminent risk to
safety'. Employers should be prepared to act swiftly and
apply to Fair Work Australia (and the courts) in order to have the
right of entry breach addressed or industrial action stopped.
This includes a statutory obligation to notify the ABCC of the
What should employers do?
The provision of a Legal Contingency Plan (including Industrial
Action Contingency Plan) and Right of Entry Protocols is critical
for employers engaged on large projects. Employers should
also consider training staff to deal with industrial action and
right of entry in order to mitigate lost time caused by industrial
action and preventing project delays and budget blowouts.
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