Case name
Australian Building and Construction Commissioner v Michael Powell
Known as
Kane Constructions Aquanation
Commonwealth Courts Portal reference and link

VID704/2014

Applicant

Australian Building and Construction Commissioner

Respondent(s) at time of filing

Michael Powell

Date filed
20 November 2014
State/Territory
VIC
Breach(es) found
Non-compliance with right of entry laws
Status
Current
Link to liability judgment

Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287

Link to Federal Court appeal judgment

Australian Building and Construction Commissioner v Powell [2017] FCAC 89

Link to High Court appeal judgment

Powell v Australian Building and Construction Commissioner & Anor; Victorian Workcover Authority v Australian Building and Construction Commissioner & Anor [2017] HCATrans 239

Summary of court decision

The ABCC* filed proceedings in the Federal Court against CFMEU official Michael Powell for allegedly breaching right of entry provisions in the Fair Work Act 2009 at the $45 million Kane Constructions Aquanation project in Ringwood, Victoria.

Mr Powell allegedly did so by entering the site at the invitation of the Health and Safety Representative despite not holding an entry permit.

The Federal Court first held that a union official who enters a site pursuant to an invitation by a Health and Safety Representative was not exercising a State or Territory OHS right for the purposes of the Fair Work Act 2009.

The Full Federal Court overturned this decision and found that the Fair Work Act 2009 prohibited an official from exercising a right to enter premises if the right is conferred by a State OHS law unless they hold a federal entry permit.

On 17 November 2017, the High Court refused special leave to CFMEU official Michael Powell and the Victorian WorkCover Authority to appeal against the Full Federal Court ruling that officials of federally registered unions must hold valid right of entry permits under the Fair Work Act when entering sites under State or Territory OHS laws.

*This matter was originally filed by Fair Work Building and Construction (FWBC). On 2 December 2016, FWBC became the ABCC.

Related content

E-Alert: High Court update: Union officials must hold a valid federal right of entry permit when entering under State or Territory OHS laws

E-Alert: Full Court confirms: Union officials must have valid federal right of entry permit when entering under state or territory OHS laws