The Full Court of the Federal Court has upheld an appeal by the ABCC in a case concerning right of entry.
The Full Court held an earlier decision of the Federal Magistrates Court was in error when it found that two CFMEU organisers were lawfully refused entry to the National Convention Centre site in Canberra. The ABCC alleged that the refusal was made by Iqon Pty Ltd and certain employees and officers.
ABC Commissioner John Lloyd welcomed the decision, emphasising that right of entry laws must be observed by all building and construction industry participants.
‘The laws do not exist only to protect contractors from unlawful intrusion and trespass. They also safeguard workers by ensuring legitimate OHS concerns can be addressed appropriately.’
‘In this case, the ABCC alleged that the union organisers were unlawfully denied access to the site.’
In June 2007 the CFMEU organisers were blocked from gaining entry to the National Convention Centre, after stating that they were making enquiries about an OHS concern. In July 2009 a Federal Magistrate dismissed the ABCC’s case on the basis that the two organisers acted improperly.
In setting aside the former orders, the Full Court held that the organisers were entitled under the Occupational Health and Safety Act 1989 (ACT) to gain entry to investigate claims of OHS breaches, and in the circumstances were authorised under that Act to enter the site without giving prior notice.
On 1 April 2010 the Full Court found the Federal Magistrates Court erred in its initial conclusion, as there was ‘nothing to sustain the conclusion that the organisers hindered or obstructed any person (whether intentionally or otherwise) or acted in an improper manner.’
The case has now been remitted to the Federal Magistrates Court for the determination of liability and penalties.