Australia: Industrial muscle exposes unions sham safety concerns

Last Updated: 13 November 2018
Article by Megan Cant

Most Read Contributor in Australia, December 2018

The Federal Court of Australia has imposed significant penalties on the CFMMEU after it found the union again in breach of workplace right of entry laws when it targeted BKH Group construction sites under the guise of genuinely held safety concerns.

The decision (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42) is one of many decisions that highlights the need for employers to ensure that rights of entry are not used by unions for improper purposes. However, employers must also take caution when seeking to block or hinder entry to their workplace because such action could result in substantial civil penalties if the exercise of the right of entry was lawful.

What is a lawful workplace entry?

Part 3-4 of the Fair Work Act 2009 (Cth) (FW Act) provides a framework for unions to lawfully enter workplaces to meet with their members, or investigate suspected safety concerns or breaches of the FW Act.

Entry permits

A union official must hold a valid entry permit before exercising a right of entry. The two permits are:

  • FW Act entry permit
  • Work Health & Safety Act 2011 (NSW) (or State or Territory equivalent) (WHS Act) entry permit.

Right of entry under the WHS Act

A union official wanting a right of entry to a workplace in respect of safety concerns must hold both the FW Act and WHS Act entry permits.

The permit holder's entry to the workplace is strictly regulated by the FW Act and WHS Act, which require the permit holder to:

  • hold a reasonable suspicion of a contravention of WHS Act requirements in relation to a relevant worker1 at the workplace, prior to entry
  • provide the required notice of entry
  • only enter the workplace during its usual working hours
  • comply with the employer's safety instructions
  • avoid obstructing any person or disrupting work
  • visit only those areas directly related to the health and safety of the worker/s and where the worker/s work.

Valid types of entry and notice requirements

Where the permit holder has a reasonable suspicion of a WHS contravention that relates to a relevant worker at the workplace, they have the right to enter the workplace to:

  • inquire into a suspected contravention: In this case, the permit holder needs only to provide notice as soon as practicable after entry unless that would defeat the purpose of the entry or cause unreasonable delay to the permit holder in an urgent matter.
  • inspect employee records or information relevant to the suspected contravention: For example, records on plant and equipment repairs and maintenance.
    In this case, the permit holder must provide between 24 hours and 14 days' notice of the proposed entry.
  • to consult and advise workers on WHS matters: In this case, the permit holder must provide between 24 hours and 14 days' notice of the proposed entry.

ABCC v CFMEU & ors – a reasonable suspicion?

The facts

During its enterprise agreement campaign in the months leading up to March 2015, a number of CFMEU (as it was then called) officials entered at least two BKH Group construction sites in Sydney to investigate suspected safety breaches.

The ABCC alleged that the suspected safety breaches were a guise for the CFMEU and its officials to exert additional pressure on BKH to sign the CFMEU's enterprise agreement.

In its campaign, the CFMEU was found to have engaged in aggressive and "arrogant" conduct, including:

  • sending targeted text messages threatening to "smash" one of the sub-contractor's jobs to set an example if it refused to sign the Union's enterprise agreement, and suggestive text messages including "eenie meenie minie mo"
  • entering worksites citing safety concerns without valid entry permits and despite the employers refusing the officials entry
  • entering a worksite and disrupting a major concrete pour, citing safety concerns of people working under a concrete boom during the pour
  • entry and exit blockages.


Of the workplace entries, Justice Flick found that the CFMEU officials were not motivated by any genuine safety concerns nor were there any reasonable grounds for holding such concerns. For example, the concrete boom issue was only identified after the initial entry, rendering it to be of no relevance to the lawfulness of the entry. Instead, and irrespective of the merit of any other safety concern (which on the facts such merit was rejected), the CFMEU officials on the site acted in concert and with a common objective to disrupt work as much as possible and coerce BKH to sign the CFMEU enterprise agreement.

Justice Flick's decision was, in part, made on the basis that following BKH's acquiescence to the terms of the CFMEU enterprise agreement, the CFMEU's safety concerns disappeared, its officials stopped attending the BKH worksites, and the CFMEU did not follow up to inspect whether its expressed safety concerns had been addressed. Moreover, the insistence for wanting immediate site access was telling because the worksites already had a safety committee and WHS officer on site who was a CFMEU delegate.

In seeking penalties against the CFMEU and its officials, the ABCC did not seek any personal payment orders against the officials of the kind recently endorsed by the High Court of Australia in ABCC v CFMEU (2018) 273 IR 211. For their breaches, Justice Flick imposed penalties of $237,000 against the CFMMEU of which $104,000 was imposed for its right of entry breaches, and penalties totalling $76,000 against the CFMMEU officers, of which $29,000 was imposed for their right of entry breaches. Justice Flick also made an order that the CFMMEU take out advertising of the fact the Federal Court found the Union had engaged in the contraventions and the penalties it imposed.

Lessons for employers

This case reinforces the need to remain vigilant to right of entry requests, particularly during times of enterprise bargaining and industrial unrest. Where such a request or notice is provided, employers should always ask the official to produce valid FW Act and WHS Act entry permits and require that they provide the specifics of their safety concerns. It may be that legal advice should be sought to consider whether the request can reasonably be said to have been made for a legitimate safety purpose, particularly in the context of any industrial activity.


1Relevant worker means a union member, employee eligible to be a member of the union, or a worker at the workplace or whose industrial interests the union is entitled to represent.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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