A Full Bench of the Australian Industrial Relations Commission in a decision on 19 November 2008, upheld an appeal by the ABCC. The decision rules on the exercise of right of entry under Part 15 of the Workplace Relations Act 1996 (WR Act).
The Full Bench found that “[the] right of entry under s.760 is for a specific and limited purpose and is subject to the limitations set out in Division 6 of Part 15.”
Entry under s.760 is granted for the purposes of holding discussions with any eligible employee who wishes to participate.
The union official involved, Michael Lane, was found to have abused the rights of entry conferred by the WR Act “when he entered the site with the intention to do other than speak with employees during their meal, or other, breaks.”
The Full Bench said: “When Lane, a permit holder, entered with the intention to, and then sought to, go beyond the scope of the rights conferred by the section he abused those rights.”
The ruling of the Full Bench overturns the decision of Watson SDP in Hadgkiss v Lane [AIRC 1140 [2008]]. Watson SDP had determined that when Mr Lane entered the Conrod Straight construction site in Bathurst, NSW on 19 April and 15 May 2007 he did not do so pursuant to his right of entry powers under Part 15 of the WR Act. This was notwithstanding the fact that Lane had issued s.763 notices under Part 15 notifying the occupier that he would enter to hold discussions with employees.
The Full Bench has referred the matter back to Watson SDP to consider what orders should now be made in respect of Mr Lane’s permit.