Australia: ABCC v Powell - Right of entry and the OHS Act

In an important Full Court appeal decision, Bromberg J’s decision in Director of the Fair Work Building Industry Inspectorate v Powell [2016] FCA 1287 was overturned in the Federal Court last week.

In the first instance decision, Bromberg J found that a union official did not have to have a federal right of entry permit under the Fair Work Act 2009 (Cth) when entering a site as an assistant to a health and safety representative (HSR) because the Occupational Health and Safety Act 2004 (Vic) (OHS Act) did not confer a ‘right’ to enter premises on the union official for the purposes of section 494. Section 494 of the Fair Work Act prohibits a union official from exercising a “State or Territory OHS right” unless the official is a federal permit holder.  

The Full Court of the Federal Court held that a union official must have a federal right of entry permit under the Fair Work Act when entering a site as an assistant to a HSR under the OHS Act. The Full Court found that there was a State or Territory OHS right exercised when a union official enters a site as an assistant to a HSR. This is because the union official is exercising the right to enter the premises under the OHS Act, or the HSR’s right to have the official enter the premises to assist the HSR under the OHS Act. The harmonised work health and safety jurisdictions have similar provisions to that in the OHS Act, so the decision is likely to have broader implications beyond Victoria.

The CFMEU has said that it is considering whether it will appeal the Full Court’s decision to the High Court.

The full text of the decision is here: http://www.austlii.edu.au/au/cases/cth/FCAFC/2017/89.html  

This update was written by Wendy Fauvel, Senior Associate, Melbourne and Asher Lindsay, Senior Associate, Brisbane. For more information on this topic please contact: