By Rob Humphreys, Partner and Harry Beaton, Lawyer

In recent months we have seen right of entry under relevant IR and WHS legislation continue to be a hotly contested battleground for employers and unions nationally, in the wake of the various Cross River Rail disputes, where the CFMEU was hit with significant penalties for a raft of illegal site visits, many of which arose in relation to WHS issues.

With Western Australia adopting the model WHS laws, and we are now starting to see these issues rear their head closer to home.

There is a complex interaction between rights under the Work Health and Safety Act 2020 (WA) (WHS Act) and the Fair Work Act 2009 (Cth) (FW Act), particularly when union officials seek entry to assist an elected health and safety representative (HSR) or to participate in discussions about a health and safety issue.

It is important for site employee relations teams to be aware of these complexities and to appropriately calibrate their response to attempted right of entry by unions, particularly where it involves an HSR.

Entry to assist an HSR

HSRs have broad powers under the WHS Act, including to:

• Monitor & investigate safety issues
• Inspect a workplace
• Issue a provisional improvement notice
• Direction the cessation of work

An HSR may request ‘any person’ enter site to assist them in exercising a power or function ‘whenever necessary’.  This includes a union official.

The HSR must give notice of the assistant’s proposed entry to the PCBU, or the person with management or control of the workplace within stipulated timeframes.

Entry to site to participate in discussions about a safety issue

In some circumstances, a union official may also enter a premises to participate in discussions about a safety issue, pursuant to section 81(3) of the WHS Act. However, this right will only arise if:

(1)        the prescribed dispute resolution process has been triggered; and

(2)        the union is entitled to represent the workers in question.

If these requirements are met, an occupier must allow the union official to access and remain on site for those discussions.  It is important to note that this right is not to enter the site at large, but to participate in discussions only.  This means the occupier is entitled to  designate a particular room that the union official can access to participate in discussions with the occupier about the safety issue.

Recent Closing Loopholes amendments

This is where the recent changes to the FW Act create complexities.

Section 494(1) of the FW Act provides that an official must not exercise a State or Territory OHS right unless the official is a FW Act permit holder.

Section 81(3) of the WHS Act does not expressly require union officials to be a FW permit holder to participate in discussions about safety matters.  However, it has previously been found that this provision constitutes a “State or Territory OHS right” pursuant to s 494(1) of the FW Act.[1]  If a union official wishes to enter a Western Australian workplace for such discussions, they will need to do so under a valid FW Act entry permit.

However, Closing Loopholes #1 included the insertion into the FW Act of subsection 494(4), which expressly provides that the s494(1) entry permit requirements do not apply to union officials exercising right of entry to assist an HSR under section 68 of the WHS Act.

This raises the prospect of any union official (of good character and standing or otherwise) having considerable access to a site, the workforce and information about the employer’s operations while assisting an HSR.  It follows that employers should exercise caution in responding to any such involvement by a union official.

In doing so, they should also be mindful of the protections HSRs have under the WHS Act, including against discrimination.  In recent times, regulators have shown an increasing appetite to prosecute employers for unlawful conduct towards HSRs.[2]

Key takeaways

The complex intersection between WHS legislation and the FW Act in relation to right of entry creates new challenges for employers in Western Australia. It will be important for in-house IR teams to understand these complexities and the rights and obligations of the employer, union and any relevant HSRs.

A checklist detailing the various rights and obligations of union officials and the employer depending on the legal right that is being exercised can be a handy reference for site teams when responding to these situations. This will mitigate against the risk of any potential unlawful obstruction or interference with union right of entry, while appropriately confining union officials to access they are lawfully entitled to when on site.

–

[1] Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365

[2] SafeWork NSW v Qantas Ground Services Pty Ltd [2023] NSWDC 468