Right of entry under OHS law – Federal Court ruling protects lawful union access
Contractors and union officials should be aware that they need to comply with federal as well as state or territory right of entry laws.
The Fair Work Act 2009 (FW Act) confers right of entry for industrial purposes. It also regulates right of entry for safety purposes conferred by the occupational health and safety (OHS) laws of each state and territory. The right to enter a workplace for safety purposes is conferred by the state and territory legislations but has to be exercised in accordance with conditions prescribed by the FW Act.
The FW Act does not generally require 24 hours written notice if entry is under OHS law. Such notice is only required if a permit holder seeks to access employee records.
Case study: Hogan v Riley & Ors
This case concerned a $30 million refurbishment of the National Convention Centre in Canberra.
A Federal Court decision handed down in Hogan v Riley, Clark, Byatt and Iqon Pty Ltd last month highlighted the requirement to comply with both state and federal laws. The Full Court upheld the ABCC’s appeal against an earlier Federal Magistrates Court decision, which found that Iqon Pty Ltd, the head contractor, had lawfully refused entry to two CFMEU organisers.
On 7 June 2007 the organisers attended the site to investigate an alleged OHS incident. They were refused entry by two employees and a director on the basis that the officials had to provide details of the alleged breach and give 24 hours notice.
The ABCC alleged that Iqon, its employees and the director breached s.767(3)(b) of the Workplace Relations Act 1996 (WR Act) because they refused or unduly delayed entry to the site by union organisers who were entitled to enter without notice under the Occupational Health and Safety Act 1989 (OHS Act).
In overruling the former orders, the Full Court held that the organisers were entitled under the OHS Act to enter to investigate the suspected OHS breach and in the circumstances were authorised to enter the site without notice or providing the particulars of the breach.
The case against Iqon and the other respondents has now been remitted to the Federal Magistrates Court for determination of liability and penalties. It is listed for hearing in late August 2010.
ABC Commissioner John Lloyd welcomed the decision and emphasised that all building industry participants have to comply with the rules on right of entry.
The OHS Act in the ACT has, with effect from 1 October 2009, been replaced by the Work Safety Act 2008 (ACT).
Different states – different OHS laws
The right of entry laws under the FW Act apply uniformly across Australia. However, each state and territory has its own OHS law. Contractors and union officials should check with their state’s OHS authority to ensure they know their rights and obligations under local OHS laws. The Safe Work Australia website provides contact details for state and territory OHS authorities.
Get informed about the 2009 National Code Implementation Guidelines
In July 2009 the Minister for Employment and Workplace Relations Julia Gillard released the revised 
Implementation Guidelines for the National Code of Practice for the Building and Construction Industry - PDF 228KB (2009 Guidelines).
The 2009 Guidelines apply to relevant Australian Government funded projects for which expressions of interest or tenders were first called on or after 1 August 2009.
The ABCC has created an updated suite of fact sheets reflecting changes introduced with the 2009 Guidelines.
While the 2009 Guidelines contain numerous changes, many items remain substantially the same as in previous versions. These include prohibiting pressure by a contractor on another contractor to make over-award payments, prohibiting strike pay, the need for OHS management and the recognition of agreement-making at the enterprise level.
Questions regarding the application of the 2006 Guidelines and the 2009 Guidelines have been addressed in the ABCC’s National Code Q&A.
Key changes in the 2009 Implementation Guidelines
Scope
The 2009 Guidelines apply solely to parties who participate in on-site activities. On-site activities include work performed at auxiliary or holding sites separate from the primary construction site.
Material suppliers are not required to be compliant with the 2009 Guidelines. Despite this change, material suppliers will still need to comply with the 2006 Guidelines on any National Code project operating under those Guidelines for the life of the project.
See Section 3.1 of the 2009 Guidelines.
Good faith bargaining
Good faith bargaining is expected on all projects applying the 2009 Guidelines. This expectation reflects the FW Act, which provides a framework with the flexibility to achieve a range of outcomes by promoting enterprise agreements that are tailored to suit the needs of businesses and employees.
See Section 6.9 of the 2009 Guidelines.
Preference for tenderers
The 2009 Guidelines have introduced new tender evaluation criteria that may give preference to tenderers that have a demonstrated commitment to:
· adding and/or retaining trainees and apprentices
· increasing the participation of women, or
- promoting employment and training opportunities for Indigenous Australians.
- he core principle underpinning decisions on government procurement will continue to be value for money.
- ee Section 4.2.4 of the 2009 Guidelines.
Freedom of association
One change highlighted in the April Industry Update concerns inductions on National Code sites. Under the 2006 Guidelines the process of using site delegates to undertake site induction processes was inconsistent with the National Code.
While this statement has been removed, the 2009 Guidelines reinforce that all parties have the right to freedom of association. This means that parties are free to join or not join industrial associations of their choice and they are not to be discriminated against or victimised on the ground of membership or non-membership of an industrial association. A person cannot be forced to pay a fee to an organisation if not a member.
See Section 6.4 of the 2009 Guidelines.
Adverse judicial decisions to be assessed by funding entities
Tenderers will be assessed on their previous performance in applying the National Code and Guidelines to Australian Government funded projects. This will include whether the tenderer has had any adverse court, tribunal or industrial relations commission/Fair Work Australia finding, order or penalty awarded against it in the last two years.
Expressions of interest or tenders will not be considered from entities that have had a judicial decision against them (not including decisions under appeal) relating to employee entitlements and have not paid the claim.
See Sections 4.2.3 and 5.1.1 of the 2009 Guidelines.
Project agreements
Project agreements will only be appropriate for major contracts as defined by the Funding Entity. Other than in exceptional circumstances, project agreements will not be permitted on projects worth less than $100 million.
See Section 4.3 of the 2009 Guidelines.
Unregistered agreements
The use of unregistered written agreements, except for common law agreements made between an employer and an individual employee, is inconsistent with the National Code and Guidelines. An entity to which such an agreement applies will be deemed non-compliant with the National Code and Guidelines.
See Section 6.1.3 of the 2009 Guidelines
Clarifying the powers of ABCC Inspectors
A number of union websites were recently contacted by the ABCC in response to publishing incorrect information about the powers of ABCC Inspectors.
It was claimed that ABCC Inspectors ‘must give 14 days notice’ in order to speak to workers.
This claim is untrue.
ABCC Inspectors may interview any person on a site or on premises in the circumstances set out in s.59 of the Building and Construction Industry Improvement Act 2005 (BCII Act). Written notice is not required. The person approached for interview may choose whether or not to take part.
By contrast, if a person is to attend an examination, a notice needs to be issued by the ABC Commissioner or his Deputy. Such a notice must be served at least 14 days before the proposed examination. It is an offence not to attend and answer questions at an examination. This compliance power is used as a last resort to gain information from reluctant witnesses for possible use in later proceedings against others.
Clarifying the activities of the ABCC – interview or examinations?
Industry participants should not confuse the different information-gathering methods used by the ABCC when conducting investigations into non-compliance with workplace relations laws.
Interviews
ABCC Inspectors may visit a building site and interview industry participants for compliance purposes. These interviews are entirely voluntary. Industry participants are free to decline to be interviewed by an ABCC Inspector.
Examinations
The compliance powers set out in s.52 of the BCII Act allow the ABC Commissioner or his Deputy to issue a notice to compel a person to attend and answer questions at an examination. ABCC Inspectors do not have the power to issue such a notice. Witnesses required to attend examinations are compelled to answer questions on oath or affirmation. The ABCC follows strict guidelines in respect of examinations.
Further Information:
ABCC fact sheets:
Powers of Australian Building and Construction Commission Inspectors
Compliance Powers of the Australian Building and Construction Commissioner.
Interested in ABCC activity? Online performance figures now available
Information on current ABCC legal proceedings, investigations and National Code activities is now available at a glance to visitors to the ABCC.
The Performance and Reports section of the website features three ‘snapshot’ statistics pages: Investigations, National Code and Court Cases. Investigations and Court Cases are updated monthly, while the National Code figures are updated quarterly.
Snapshot – Investigations
The ABCC receives enquiries through a number of channels – by phone, online, email and fax.
If an enquiry involves a suspected contravention of workplace relations law, it is upgraded to a preliminary investigation. If a case warrants further action following an investigation, it will be referred to ABCC Legal and may result in court action.
Investigations Snapshot reveals that during March the ABCC received 271 enquiries, 39 of which were upgraded to preliminary investigations. March also saw 22 new investigations and 8 investigation briefs referred to ABCC Legal.
The ABCC maintains a strong focus on ensuring building industry participants are informed of their rights and responsibilities. In pursuit of this goal, the ABCC conducted 84 site visits and gave 18 presentations in March.
Snapshot – National Code
The National Code establishes minimum standards that businesses must meet to be eligible to undertake certain building projects funded by the Australian Government.
To assist businesses become and remain National Code compliant, the ABCC undertakes educational and monitoring activities.
From January to March the ABCC undertook a total of 482 site visits, 16 inspections and 9 audits of National Code projects. Further analysis of this information is available at National Code Snapshot.
Snapshot – Court Cases
Information on ABCC court cases, including a breakdown of court proceedings by state, a table of the results of finalised cases and total penalties since 2005, can now be found in Court Cases Snapshot.
There are currently 33 ABCC proceedings around Australia, while 66 cases have been finalised since October 2005.
To date, a total of $2,094,900 in penalties – $706,800 suspended – has been imposed from the 51 penalty proceedings in which the ABCC has been successful.
Commitment to transparency
The performance reporting initiatives outlined above are part of the ABCC’s ongoing commitment to operate in a fair and transparent manner.
Further information:
Other performance information and reports on the ABCC website include:
New ABCC regional director
Peter Darlaston has been appointed as ABCC Director Operations Northern.
The Director Operations Northern supports the Assistant Commissioner Operations through planning and managing the work of investigative teams in New South Wales, Queensland and the ACT. In addition, the position provides high quality advice on operational principles, policy and practice to the executive of the ABCC.
Peter has been with the ABCC for the last three-and-a-half years and comes to this position with a wealth of investigation experience.
Apart from investigations, Peter is working with major building industry participants in the north-eastern states to assist them to understand building industry workplace relations laws and their rights and responsibilities.
Court round up
Crane antics at Royal Children’s Hospital project
A new proceeding in the Federal Magistrates’ Court in Melbourne alleges that Senior CFMEU officials Noel Washington, Matthew Hudson and Elias Spernovasilis engaged in unlawful industrial action.
The ABCC alleges that on 21 May 2008 Mr Washington and Mr Hudson entered the Royal Children’s Hospital construction site in Parkville, Victoria without authorisation and proceeded to climb an unattended tower crane and block access to it. While representatives of the head contractor, Bovis Lend Lease (BLL), were trying to get Mr Washington and Mr Hudson to come down from the crane, Mr Spernovasilis arrived at the site. Mr Spernovasilis allegedly told BLL managers that Mr Hudson and Mr Washington would not come down from the crane until they were allowed to meet with BLL’s Operations Manager.
The ABCC alleges that the CFMEU, Mr Washington, Mr Hudson and Mr Spernovasilis contravened s.38 of the BCII Act by engaging in unlawful industrial action by placing a ban on work associated with the tower crane.
ABCC media backgrounder: Heyman v CFMEU, Washington, Hudson and Spernovasilis
Alleged improper behaviour disrupts work
The ABCC has initiated its third proceeding this year that alleges union organisers contravened the FW Act by acting in an improper manner while seeking to exercise right of enMB20100414WhitevCFMEUBensteadandBeattie.pdftry.
In the Federal Magistrates’ Court in Melbourne, the ABCC alleges that the CFMEU and its officials Gerard Benstead and Billy Beattie hindered and obstructed, acted in an improper manner and misrepresented their right to enter the Preston Pump Station project in Victoria.
On 14 August 2009 Mr Benstead and Mr Beattie attended the site, which is managed by Baulderstone Pty Ltd. The officials allegedly refused to give 24 hours notice and encouraged workers to stop work in order to hold discussions, disrupting work at the site. After they repeatedly refused to leave, Victoria Police attended and escorted Mr Benstead and Mr Beattie off the site.
ABCC media backgrounder: White v CFMEU, Benstead and Beattie
ABCC protects organisers’ rights of entry under OHS
On 1 April 2010 the ABCC won an appeal before the Full Court of the Federal Court, defending union organisers’ right of entry to the National Conventions Centre project in Canberra.
This case, Hogan v Riley, Clark, Byatt and Iqon Pty Ltd, is discussed earlier in this edition under ‘Right of entry under OHS law: Federal Court ruling protects lawful union access’.
ABCC media statement: ABCC successful in appeal to protect right of entry
Case information: Hogan v Riley, Clark, Byatt & Iqon Pty Ltd