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
Finalised
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

On 21 June 2019, the Federal Court ordered Victorian CFMMEU official Michael Powell to pay $2,600 after he entered the Aquanation site in Ringwood on 21 May, 22 May, 15 July and 28 October in 2014 without a valid federal right of entry permit and refused to leave when asked to do so.

Mr Powell contravened right of entry laws by entering the site at the invitation of the Health and Safety Representative despite not holding an entry permit. During his site entry on 22 May, Mr Powell had to be removed by Police from the site after he refused to leave.

When the proceeding first came before the Court, the ABCC submitted that even where union officials were invited onto a site by a health and safety representative to assist them, the union official must hold a valid federal right of entry permit under the Fair Work Act.

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.

In handing down the penalty judgment Justice Bromberg said he “took into account Mr Powell’s very extensive history of past contraventions”  and observed that his “history reveals a greater propensity or preparedness to contravene the law.”  The Court noted Mr Powell had been penalised $127,600 for his prior 20 contraventions.

Related content

Media release: Federal Court penalty on CFMMEU Victorian official backs up rulings on right of entry laws

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