As the Model Work Health and Safety Bill released on Friday heralds an expansion of unions' right to enter workplaces on OHS grounds, a recent decision of the Federal Magistrates Court provides a timely reminder of the costly consequences of refusing entry to authorised union officials - even where the relevant employees are not your own.
On 24 July 2008, two AMWU officials sought access to premises occupied by Byrne Trailers Pty Limited (BTPL) under the right of entry (ROE) provisions of the Workplace Relations Act 1996 (Cth) (WR Act).
Mr Byrne (a director of BTPL) denied access to the officials, claiming that there were no employees who were eligible to be members of the AMWU working at the premises. There were, however, employees at the premises working under an AMWU state award and therefore eligible to join the AMWU. These employees were not employed by BTPL, but by L.M. Byrne - a limited partnership and co-occupier of the premises, but not a party to these proceedings.
The AMWU notified a dispute regarding its right to enter BTPL's premises. A hearing was held on 1 September 2008 at which BTPL undertook to consider and respond to the AMWU's proposal to guide further entry to BTPL's premises by AMWU officials.
Tragically, on 2 September 2008 a Chinese national working on a subclass 457 visa was fatally injured at BTPL's premises.
On 16 September 2008, four AMWU officials sought access to Byrne's premises on two separate grounds: firstly, under the ROE provisions of the WR Act; and secondly, the ROE of the Occupational Health and Safety Act 2000 (NSW) (NSW OHS Act).
BTPL again refused entry.
The fine for refusal
As with all State and Territory OHS laws, the NSW OHS Act allows authorised union officials to enter a workplace at which members (or persons eligible to be members) of the official's union perform work for the purpose of investigating a suspected breach of the OHS laws. Moreover, the NSW OHS Act makes it an offence for a person to refuse or fail to comply with a lawful requirement made by the authorised official without reasonable excuse. The maximum penalty for that offence is $2,200.
However, BTPL's refusals on 24 July and 16 September 2008 also constituted an offence under the WR Act, as it then was (and would also constitute an offence under the Fair Work Act 2009) for which the maximum penalty was (and continues to be) $33,000 for a corporation and $6,600 for an individual.
It was under the latter legislation that BTPL's refusals were penalised.
Following a concession by BRPL and Mr Byrne that they had refused and/or unduly delayed the entry of AMWU officers in breach of the WR Act, Federal Magistrate Barnes accepted that the appropriate penalties were in this case $17,000 for BTPL and $3,000 for Mr Byrne.
Going forward - ROE under the Model Work Health and Safety Bill
Barnes FM expressed the view that "the ability of union officials to enter premises to investigate suspected breaches of OHS laws...is critical in ensuring a safe workplace". It is clear from the expanded ROE provisions and penalties that this is a view to which the drafters of the Model Work Health and Safety Bill also prescribe.
Rather than being limited to circumstances in which there are grounds for suspecting an OHS breach has occurred, authorised officers - or 'WHS entry permit holders', as they will be known under the Model laws - will be able to enter premises at any time to consult and/or advise eligible employees on OHS-related matters on giving 24 hours' notice. Further, he or she will have an express right to warn any person (i.e. not just persons who are eligible to be members of the officer's union) whom he or she reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk.
The Model Work Health and Safety Bill also mirrors the two distinct ROE offence provisions currently found in the Fair Work Act 2009, and provides for a significant increase in the maximum penalties that may be imposed. From 2012, the fines for refusing or unduly delaying a permit holder's entry without reasonable excuse, or for intentionally and unreasonably hindering or obstructing a permit holder's entry or exercise of rights under the legislation, will increase to $50,000 for a corporation and $10,000 for an individual.
In the meantime, remember ...
Where a union official asserts a right to enter your premises under the OHS Act, you must allow them to enter and exercise certain rights (including reviewing documents and interviewing personnel), provided the union official can demonstrate that he or she:
- is an employee or officer of a union which is entitled to represent people performing work at your workplace, whether or not they are employed by your company, and
- is authorised under the relevant industrial legislation, and
- has reasonable grounds for suspecting that an OHS breach has occurred at the premises, or
- in Queensland, NT or WA only - has given 24 hours notice of his or her intention to enter for the purposes of discussing OHS matters with employees.
Union officials also have the power to enter workplaces for purely industrial reasons - not related to OHS - in accordance with the Fair Work Act 2009.
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.