The Federal Court has ruled that a union, when attending a workplace to inspect suspected safety contraventions, is not required to specify in the entry notice the precise locations within the premises where those contraventions are said to exist. It is sufficient that the notice simply identify the overall location of the premises itself but that once on the premises, they do not have a right to film or record their inspection.
The Communications, Electricians and Plumbers Union (CEPU) and three of its union organisers commenced proceedings against JKC Australia LNG Pty Ltd (JKC) alleging that JKC, in contravention of the Fair Work Act 2009 (FW Act), refused, delayed or obstructed their entry onto the Ichthys Onshore Construction Project at Blaydin Point, Northern Territory (the Project) at which JKC was a principal contractor. The union sought declarations and penalties against JKC.
In addition, the union also sought interlocutory injunctions restraining JKC from:
- refusing the organisers entry to the premises of the Project if they had given a notice specifying those premises and a day of entry in accordance with the provisions of the FW Act (Right of Entry Injunction);
- prohibiting the organisers from using a camera to document health and safety concerns at the premises while they are exercising a right of entry (Camera Injunction);
- hindering or delaying the organisers from exercising a right of entry to the site (Hindering Injunction).
White J of the Federal Court ultimately granted the Right of Entry injunction but refused the Camera Injunction and the Hindering Injunction.
For the Right of Entry Injunction, the court noted that under section 518 of the FW Act, there was a requirement for all entry notices to specify:
- the premises that are proposed to be entered;
- the day of the entry; and
- the organisation of which the permit holder for the entry is an official.
White J noted that the dispute was whether it was sufficient for an entry notice to specify simply the overall premises to be entered (which the union had done) or whether it must specify the particular part of those premises which the permit holder proposes to visit (which was what JKC asserted must be done). Essentially, the question was one of statutory construction.
Because an injunction was sought, the Court did not need to determine the matter but only needed to consider whether the union made out a prima facie case and secondly, whether the balance of convenience favoured the granting of the injunction. That included consideration of whether damages or other remedies would be an adequate remedy.
In deciding that there was a prima facie case, the Court noted that the provisions in the FW Act concerning rights of entry were highly prescriptive and that section 518 requires only that an entry notice specify "the premises" at which entry is proposed, and not the particular part of the premises proposed to be entered. That alone was sufficient to establish a prima facie case for the applicants.
Regarding balance of convenience, the Court rejected JKC's submission that they were inconvenienced if the union was allowed to simply identify the overall premises and not the particular places on the Project site which they wished to visit. The Court considered that the inconvenience of the kind that JKC raised was contemplated by the legislature as a necessary incident of the scheme set up by the FW Act which provided for rights of entry. Therefore, the convenience test favoured the union.
In relation to the Camera Injunction, the union submitted that it was implicit in the power to inspect that they had a power to make a record of what was inspected through photography or filming. The court noted that section 117 of the Work Health and Safety Act is highly prescriptive and provided no express grant of authority to take photographs or to make a film and thus denied the injunction.
In relation to the Hindering Injunction, the CEPU sought to restrain JKC from hindering, obstructing or delaying officials of the CEPU who were permit holders from exercising a right of entry to the Project site under section 484 of the FW Act or section 117 of the WHS Act. The court, in rejecting the application for the injunction, noted that an injunction in those terms would simply replicate obligations already imposed on JKC by sections 501 and 502 of the FW Act and by section 144 and 145 of the WHS Act: "That by itself counts against the issue of the injunction."
This case demonstrates the caution that employers should exercise if they seek to refuse entry to unions on the grounds that the description of the premises is too broad. The Court in this case found that the underlying policy of the right of entry scheme may lead to some inconvenience to businesses but that this is overridden by the purpose of the scheme. The case also highlighted a limit on the union's powers to film or record their inspection. The case also emphasises that your business needs to have in place clear processes for dealing with right of entry and ensure that your staff are trained and understand the business's rights and obligations in that regard.
Kirby v JKC Australia LNG Pty Ltd  FCA 1070
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