The Full Court of the Federal Court has today confirmed that union officials require a valid federal right of entry permit to enter a site under a State or Territory occupational health and safety law, including where a health and safety representative (HSR) invites the official on to site under an OHS law.
The Fair Work Act states: “An official of an organisation [i.e. a union official] must not exercise a State or Territory OHS right unless the official is a permit holder [under the Fair Work Act]” - section 494 of the Fair Work Act 2009.
The Full Court unanimously confirmed that where a State OHS law allows an HSR to invite a union official on to site to assist them, the union official must personally hold a valid federal right of entry permit under the Fair Work Act.
The case before the Full Court of the Federal Court related to invitations by an HSR under sections 58 and 70 of the Victorian Occupational Health and Safety Act 2004.
The uniform Work Health and Safety laws in all other States and Territories (except Western Australia) have equivalent provisions permitting HSRs to invite persons on to site to assist (sections 68 and 70 of the uniform safety laws). Union officials invited on to site by HSRs under these Acts must hold a valid federal right of entry permit.
The Australian Building and Construction Commission is the Commonwealth regulator responsible for investigating compliance with, and enforcing, the Building and Construction Industry (Improving Productivity) Act and the Fair Work Act in the building and construction industry, including in respect of right of entry laws.
Under the Fair Work Act a union official must present their federal right of entry permit for inspection when requested to do so by an occupier of a site, including where the official enters a site under a State or Territory OHS law.
Federal right of entry permits are issued by the Fair Work Commission only where the Commission is satisfied the union official in question is a fit and proper person to hold an entry permit.
For further information on the rights and responsibilities of union officials exercising right of entry for OHS purposes, click here.