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Union rights of entry are fundamentally contentious. Under both the Fair Work Act 2009 and State and Territory WHS laws, officials who have been issued permits are entitled to enter onto private property without owner or occupier consent. Naturally, the preconditions for sanctioned entry are treated very seriously by courts, and occupiers are entitled to insist on strict compliance with all relevant preconditions (such as the requirement to give notice).

At the same time, however, civil penalties apply to those who prevent or obstruct legitimate entry where the law has been properly observed by permit holders. This makes for a high stakes game where knowing your rights and obligations before an attempted entry is crucial, particularly for those businesses that operate in a highly unionised environment.

The recent case of Ramsay v Menso [2018] FCAFC 55 was an appeal to the Full Federal Court, which highlights the practical difficulties associated with entry laws. The CFMEU successfully applied for orders against an employer who prevented union officials from entering a worksite to investigate reports of non-compliance with safety laws. The union officials came first by themselves, then with an inspector from Workplace Health and Safety Queensland, then with Police, but the sole director and shareholder of the occupier refused entry on all three occasions.

This case also demonstrates the additional layer of complexity associated with an attempted entry concerned with workplace health and safety, which results from the interplay between State and Federal laws. Under State WHS laws, notice of entry only has to be given as soon as reasonably practicable after entry, whereas for entry under the Fair Work Act notice must be given at least 24 hours in advance. In the Federal Circuit Court below, the primary judge concluded that the failure of the union officials to include their middle names on their entry notice rendered their entry unlawful, but a unanimous three-member Full Federal Court disagreed with this ruling.

The fact that the judge at first instance concluded differently shows that the line between bad faith or pedantry and insistence on proper compliance is not always clear. In many cases, a small technical fault can be fatal to an entry right, but (among other things) the high priority given to worker safety by explicit legislative objectives must also be taken into account. A savvy employer must know when to push back and when to be cooperative.

Lessons

  1. Right of entry requirements can be very technical and are generally interpreted quite strictly to regulate the disruption caused to businesses by what would otherwise be a trespass.
  2. However, occupiers should refrain from uniformed obstructionism and, as a general rule, treat attempted entries to investigate WHS matters with a greater degree of cautious deference to the purported rights of entrants
  3. Employers can strengthen their position by:
    a. familiarising themselves with right of entry laws in a proactive manner – once the union is knocking on your door, it’s probably too late to object in an informed and lawful manner; and
    b. having arrangements in place for accessing legal advice on relatively short notice to navigate difficult or borderline cases.

Please contact us if you have any queries regarding entry laws and their impacts on your business.

This article was written by Barney Adams, Associate -Employment, Safety and Migration.

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Plight of entry: alert but not alarmed

17 May 2018
barney adams

Union rights of entry are fundamentally contentious. Under both the Fair Work Act 2009 and State and Territory WHS laws, officials who have been issued permits are entitled to enter onto private property without owner or occupier consent. Naturally, the preconditions for sanctioned entry are treated very seriously by courts, and occupiers are entitled to insist on strict compliance with all relevant preconditions (such as the requirement to give notice).

At the same time, however, civil penalties apply to those who prevent or obstruct legitimate entry where the law has been properly observed by permit holders. This makes for a high stakes game where knowing your rights and obligations before an attempted entry is crucial, particularly for those businesses that operate in a highly unionised environment.

The recent case of Ramsay v Menso [2018] FCAFC 55 was an appeal to the Full Federal Court, which highlights the practical difficulties associated with entry laws. The CFMEU successfully applied for orders against an employer who prevented union officials from entering a worksite to investigate reports of non-compliance with safety laws. The union officials came first by themselves, then with an inspector from Workplace Health and Safety Queensland, then with Police, but the sole director and shareholder of the occupier refused entry on all three occasions.

This case also demonstrates the additional layer of complexity associated with an attempted entry concerned with workplace health and safety, which results from the interplay between State and Federal laws. Under State WHS laws, notice of entry only has to be given as soon as reasonably practicable after entry, whereas for entry under the Fair Work Act notice must be given at least 24 hours in advance. In the Federal Circuit Court below, the primary judge concluded that the failure of the union officials to include their middle names on their entry notice rendered their entry unlawful, but a unanimous three-member Full Federal Court disagreed with this ruling.

The fact that the judge at first instance concluded differently shows that the line between bad faith or pedantry and insistence on proper compliance is not always clear. In many cases, a small technical fault can be fatal to an entry right, but (among other things) the high priority given to worker safety by explicit legislative objectives must also be taken into account. A savvy employer must know when to push back and when to be cooperative.

Lessons

  1. Right of entry requirements can be very technical and are generally interpreted quite strictly to regulate the disruption caused to businesses by what would otherwise be a trespass.
  2. However, occupiers should refrain from uniformed obstructionism and, as a general rule, treat attempted entries to investigate WHS matters with a greater degree of cautious deference to the purported rights of entrants
  3. Employers can strengthen their position by:
    a. familiarising themselves with right of entry laws in a proactive manner – once the union is knocking on your door, it’s probably too late to object in an informed and lawful manner; and
    b. having arrangements in place for accessing legal advice on relatively short notice to navigate difficult or borderline cases.

Please contact us if you have any queries regarding entry laws and their impacts on your business.

This article was written by Barney Adams, Associate -Employment, Safety and Migration.