The High Court today refused special leave to CFMEU official Michael Powell and the Victorian WorkCover Authority to appeal against a 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.
The Fair Work Act states (section 494): “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]”.
Today’s High Court ruling means that under Australian law, union officials are required to hold a valid federal right of entry permit even when invited onto site to assist a health and safety representative (HSR) under a State or Territory OHS law.
While the case before the High Court concerned an invitation under sections 58 and 70 of the Victorian Occupational Health and Safety Act 2004, the case has broader application to the equivalent provisions of the uniform Work Health and Safety laws (sections 68 and 70). The uniform laws apply in all other States and Territories (except Western Australia).
Mr Powell and the Victorian WorkCover Authority were ordered to pay the ABCC’s costs of defending the special leave applications.
Building industry participants can view further information on the rights and responsibilities of union officials exercising right of entry for OHS purposes on the ABCC website.
The 2 June 2017 decision of the Full Court of the Federal Court can be accessed here: ABCC v Powell  FCAFC 89.
View the ABCC E-Alert released at the time of the Full Court’s decision.