Alert – Federal Court rules on HSR support

Alert – Federal Court rules on HSR support

On 3 November, a Federal Court Justice handed down a decision that will open the door to Union officials who have been deemed to be unfit and improper persons to hold a Federal right of entry permit to freely enter workplaces when their assistance is requested by a Health and Safety representative.

The Court ruled that union officials are not required to display the Federal entry permits when entering a workplace under Section 58(1)(f) of the Victorian OHS Act 2004. This section provides for a power of an HSR to ‘whenever necessary, seek the assistance of any person’.

The ruling related to a case brought by Fair Work Building and Construction against CFMEU official, Michael Powell, related to events on a construction project in Ringwood in 2014.

The CFMEU has a history of misusing Section 58 as a means of backdoor entry onto construction sites so as to avoid the right of entry requirements under both the Fair Work Act and the OHS Act.

The ruling will mean that the twenty-plus CFMEU Victoria officials who do not have Federal Entry permits, including State Secretary John Setka and Assistant State Secretary Shaun Reardon, both of whom are currently facing charges for blackmail in the Melbourne Magistrates Court, will be able to enter sites freely if their assistance is requested by an HSR.

Members should note that under section 70(1) of the OHS Act, an employer is entitled to refuse entry to any person assisting an HSR if the employer considers that the person is not suitable to assist because of insufficient OHS knowledge. Where an employer refuses entry the OHS Act provides that the HSR may apply to the Magistrates Court for an order directing the employer to allow access. A determination as to whether a person is suitable to assist because of insufficient OHS knowledge is therefore a matter for the Magistrates Court, rather than WorkSafe.

Members experiencing any problems arising out of union officials entering their workplace in support of a HSR, where there is concern about the issues being raised, should defer to their OHS Issue Resolution Procedure. It should be noted that an OHS Issue Resolution Procedure is also embedded into the Industry EBA 2011-2015 and also features in the new CFMEU Pattern EBA currently being shopped around by the CFMEU.

Where an employer does not have an OHS Issue Resolution Procedure (or an EBA as referred to above) the default OHS procedure detailed in the OHS (Issue Resolution) Regulations 2007 will apply.

Section 73 of the Act provides that if an issue concerning health and safety arises that the employer must attempt to resolve the issue.

Section 75 of the Act provides that if an issue is not resolved under Section 73 within a reasonable time that any of the parties may ask for WorkSafe to arrange for an inspector to attend the workplace to enquire into the issue.

Section 75 of the Act explicitly states that WorkSafe must ensure that an inspector attends the workplace as soon as possible after the request is made’.

Master Builders is aware of a number of instances where WorkSafe have refused to make its Inspectors available to assist members to resolve safety issues, both under Section 75 and also under Part 8 of the OHS Act Authorised Representatives of Registered Employee Organisations (ARREO).

Master Builders has repeatedly questioned WorkSafe’s policy of facilitation of entry for officials under Part 8 of the Act, which includes advising employers that they are required to allow officials entry to the workplace under threat of referral to the investigation unit of WorkSafe for potential prosecution for hindering and obstructing the union officials.

Part 8 of the Act also provides that where an issue arises between an ARREO and employer that either person may ask WorkSafe to arrange for an Inspector to attend the workplace. This part of the Act also explicitly states that WorkSafe must ensure that an Inspector attend the place as soon as possible after a request is made.

Members are reminded that they can seek assistance (including attendance where practicable) from the OHS Unit should they experience any difficulties.

Members are also urged to notify the OHS Unit should they have any problems in getting WorkSafe to attend their sites to assist in resolving any issues, including when union officials enter as ARREOs.

Members needing assistance on health and safety issues can call (03) 9411 4569.

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