Australia: Rights of entry: is taking photographs during a WHS inspection covered under your right to inspect?

Key Points:

A recent Federal Court case has specifically identified entry rights and rights of inspection as two hot topics to be further considered by the Court in early 2016.

With the consistency of the nationally harmonised work health and safety laws a paramount focus of state parliaments recently, it is no surprise that the prescriptive nature of the legislation which gives rise to rights of entry and inspection have caused a stir.

Kirby v JKC Australia LNG Pty Ltd [2015] FCA 1070 recently considered how "premises" is defined under WHS laws and how this affects permit holders and rights of inspection for suspected WHS breaches. Kirby also considered the need for statutory construction surrounding rights of inspection, specifically relating to photographs and cameras.

In Kirby a dispute arose between the organisers employed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and JKC Australia LNG Pty Ltd (JKC) concerning the exercise of CEPU's rights of entry under the Fair Work Act 2009 (Cth) and the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (the WHS Act) at the Ichthys Onshore Construction Project at Blaydin Point in the Northern Territory.

CEPU sought an injunction against JKC restraining them from refusing entry onto the premises of the Project and prohibiting them from using a camera to document health and safety concerns at the premises while exercising rights of entry under section 117 of the WHS Act.

Rights of entry - What are "premises"?

Rights of entry can be granted under section 484 of the FW Act which allows a permit holder to enter a premises for the purpose of holding discussions. Prior to entering the premises, a permit holder must, under section 487 of the Fair Work Act, give the occupier an entry notice for that entry.

An entry notice under section 484 must comply with section 518 of the FW Act and importantly, must specify "the premises that are proposed to be entered" and this is where issues arose in Kirby.

JKC argued that given the size of the Project, which covered over 340 ha and consisted of a number of varying workplaces within the Project site, simply stating "Impex, Blaydin Point; Areas where employees of Kentz are working" on a notice of entry was not a sufficient description of the premises to satisfy the requirements under section 518 of the FW Act. JKC emphasised that an

"entry notice should specify with sufficient particularity the places that are sought to be entered so that the occupier can make appropriate arrangements in relation to the proposed entry" [at 26].

In Kirby the question was raised as to whether or not it was sufficient for an entry notice to specify simply the overall premises to be entered or whether it must specify the particular part of those premises which the permit holder proposes to visit.

CEPU relied on the reasons of the Fair Work Commission in Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2012] FWA 3939 where a notice of entry under section 484 was considered which did not specify in detail any more than "Qantas Airways Limited, premises in Mascot Sydney".

Ultimately the decision will be decided in March 2016 when the matter goes to trial before the Federal Court once proper statutory construction is applied. In the interim, White J entertained the notion that the Qantas decision was different to the present case as Qantas had a number of premises within the Mascot area and also at the Sydney airport, unlike the Project which consists of just a single site.

Rights of inspection - what does the include?

Kirby also considered rights under section 118 relating to inquiring into suspected contraventions when exercising a right of entry under section 117 of the WHS Act.

Rights under section 118 currently allow you access for

"inspection, consultation, requiring the production for inspection and copying of relevant documents and a right to warm persons of risks perceived by the WHS entry permit holder".

What isn't expressly provided is a right to use a camera or take photographs of the evidence you are inspecting or of the evidence you have observed. It was argued that implicit in the power to insect is a power to make a record of what it is that has been inspected, which extends to making notes or sketches or drawings. It was argued that in a sense, this could also extend to the taking of photos or filming as they are not conceptually that different.

This point remains undecided and will be considered in March 2016 when the issue is before the Federal Court once again.

What does that mean for permit holders?

Going forward permit holders will need to be cautious of how the Court interprets and defines "premises" in relation to entry notices, as this could have practical changes for how notices of entry are to be drafted.

Equally, where a right of entry has been granted, permit holders will need to be aware of what they can and cannot do when inspecting suspected breaches. Current rights of inspection do not allow for photographs or videos to be captured as section 118 does not include expressly any right to use a camera.

The Federal Court will consider these issues in March 2016 when Kirby is before the Court for trial. Until then, permit holders should be aware of any further developments that may arise and be aware of what rights they do have to enter a premises and what they can legally do during inspection.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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