A Federal Court penalty judgment has reaffirmed earlier High Court and Full Federal Court rulings that union officials must hold valid federal entry permits when exercising rights of entry under state or territory OHS laws.

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.

During his site entry on 22 May, Mr Powell had to be removed by Police from the site after he refused to leave. At the time of the unlawful entries, Mr Powell said he was at the site under state OHS laws.

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 initially dismissed the ABCC’s case. However, following an appeal to the Full Federal Court, the original decision was set aside and the Full Court unanimously confirmed the ABCC’s position.

An appeal by Mr Powell to the High Court was unsuccessful and Mr Powell was ordered to pay the ABCC’s legal costs.

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.

ABCC Commissioner Stephen McBurney said the case provided clarity on an important question on right of entry laws.

“The case has significant implications where union officials are exercising right of entry under and state or territory OHS laws,” Mr McBurney said.

“The requirement to hold a federal right of entry permit strikes the right balance by ensuring union officials who have met the Fair Work Commission’s fit and proper test, can access worksites to investigate genuine safety concerns.”

Media Release
25 June 2019

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