Full Federal Court closes right of entry loophole

Full Federal Court closes right of entry loophole

The Full Court of the Federal Court has today ruled that union officials are required to hold a valid federal right of entry permit when entering under section 58 of the Victorian Occupational Safety Act 2004 to assist Health and Safety Representatives.

The decision therefore restores the position that had applied in Victoria prior to a November 2016 Federal Court decision that was the subject of today’s Full Court ruling. That is, union officials who do not hold a federal right of entry permit, often because of repeated contraventions of the Fair Work Act 2009 (FW Act) or having been deemed not a fit and proper person to hold a permit, will not be able to enter a worksite on the basis that they are assisting an HSR, unless the occupier consents.

The Full Court of the Federal Court found that the plain purpose of Section 480 of the FW Act is to regulate by permit the lawful entry of officials of organisations on to workplace sites in respect of rights of entry given by Commonwealth, State or Territory legislation, determining that:

“There is no reason of policy or commonsense why one would distinguish between differently worded conditions that by their operation provided a right to enter premises for occupational health and safety reasons, to require a permit if the official has a reasonable suspicion of a contravention of a State or Territory or Commonwealth law about occupational health and safety, but not to require a permit if the official is asked to assist an HS representative deal with an issue about occupational health and safety, which may or may not have a connection with such a contravention.”

The CFMEU has this afternoon issued a media release falsely claiming that the decision will put lives at risk. It is a response that yet again serves to highlight both the CFMEU’s continued willingness to (ab)use safety to further its ideological and industrial agenda; and its unwillingness to accept the rule of law.

Master Builders welcomes the decision of the Full Court of the Federal Court of Australia as a victory for commonsense.

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