Union right of entry

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Case law: Breach of union right of entry for

safety reasons

Thursday, 20th February 2014, by Joanna Weekes

In today's Health & Safety Bulletin:

• A recent case demonstrates the importance of understanding your responsibilities when it comes to union rights of entry

Dear Reader,

There are different rules for union rights of entry under WHS legislation versus the Fair Work Act – and the interaction between these rules can cause confusion.

Today, Michael Selinger, Editor-in-Chief of the Health & Safety Handbook looks into a recent case where an employer did not allow a union official to enter the workplace regarding alleged exposure to asbestos. The employer's argument was rejected by the Court.

Read on for more detail on the matter…

Warm regards,

Joanna Weekes
Editor
Health & Safety Bulletin

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Union right of entry for safety – a refresher

By Michael Selinger 

Editor-in-Chief, Health & Safety Handbook

The importance of training your managers in the union right of entry laws was highlighted by a recent case where an employer failed to defend a claim against it for breaching the rules. In Federal Court decision of Ramsay v Sunbuild Pty Ltd [2014] FCA 54, the Court considered a situation where union officials sought access to a business regarding alleged exposure to asbestos.

Entry for safety reasons is governed by both the State WHS legislation as well as under industrial provisions of the Commonwealth Fair Work Act 2009. After being effectively chased off the site, the union brought proceedings against Sunbuild that sought monetary penalties for the employer's breaches of the provisions in the Fair Work Act 2009.

Sunbuild defended the proceedings on the basis that it asserted the union should be prevented from being able to commence any legal action as it would be inconsistent with the WHS laws, which only allowed an inspector to bring proceedings if the corresponding union right of entry law was breached. The employer argued that if the union was not permitted to bring proceedings under the WHS laws, which expressly provided for penalties if an employer hindered or obstructed union right of entry, it should be allowed to bring ‘back door' proceedings against the employer under the Fair Work Act.

The Court rejected the argument by Sunbuild and confirmed the generally held position that the laws operate together, thereby not preventing the union from commencing an action for penalties under the Fair Work Act. Importantly, the Court noted that there were two different systems established with similar but not identical approaches being:

First, … the WHS Act includes unreasonableness as an element of the contravention. There is no such element in the contraventions described in … the FW Act. Secondly, … the WHS Act places a reverse evidential burden on the accused to show he or she had such a reasonable excuse. There is no similar reverse onus in… the FW Act. Finally, there is a significant difference between the time limits set for the bringing of contravention proceedings. … the FW Act fixes that time limit at six years after the day on which the contravention occurred, whereas … the WHS Act fixes it at two years.

The Court will now consider what penalties, if any, ought to be imposed on Sunbuild.

The case is a timely reminder that your business needs to be aware of the interaction between the rights of entry for union officials under the Fair Work Act and also the WHS laws.

Warm regards,

Michael Selinger 
Editor-in-Chief
Health & Safety Handbook

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