Master Builders has become aware of an communiqué issued by WorkSafe to clarify WorkSafe’s policy position and expectations in relation to a Health and Safety Representative (HSR) seeking assistance under Section 58(1)(f) of the Occupational Health and Safety Act 2004.
The undated and unsigned communiqué from WorkSafe was not made available on the WorkSafe website, nor was it communicated to industry stakeholders. It has come to Master Builders’ attention that it was produced for the CFMEU, the Australian Workers Union (AWU) and a building contractor that was in dispute with the CFMEU about one of their officials entering their sites purporting to be entering in support of the HSR.
In this communiqué WorkSafe has clarified issues around the term ‘suitably qualified’ for the purposes of the Section. In the same document WorkSafe has also suggested that it is WorkSafe’s opinion that requirements of the Fair Work Act 2009 do not apply.
On Friday 14 October 2017 Fair Work Building and Construction (FWBC) issued an alert to confirm that Union Officials must not exercise a State or Territory OHS right to enter premises unless the official holds a valid federal right of entry permit including in situations where an OHS law allows a HSR to seek the assistance of another person.
The requirement for Union Officials to have and to display their Federal Entry permits was legally tested in the Australian Industrial Relations Commission (AIRC) in a 2007 case involving CFMEU Official Adrian ‘Skinner’ McLaughlin. The Commission confirmed that Fair Work Act requirements for Union Officials to hold, and display on request, their Federal entry permits does apply to Section 58(1)(f) of the OHS Act.
Section 58(1)(f) of the OHS Act provides that a Health and Safety Representative can “whenever necessary, seek assistance from any person”. CFMEU officials, including a number that do not have Federal permits, frequently misuse this part of the OHS Act to avoid OHS Entry as ARREO’s under Part 8 of the OHS Act.
Under Section 70 of the Act if an employer does not allow a person assisting a HSR to access the workplace, the HSR may apply to the Magistrates Court for an order directing the employer to allow access. The AIRC case would certainly be relevant in any similar matter before the Magistrates Court.
Members that are undertaking projects that come under the Federal Building Code are required to ensure strict adherence to OHS Right of Entry, including requiring officials to display their permits. This also includes circumstances where officials are purporting to enter the workplace to support the HSR.