The Federal Court recently handed down an important decision which dealt with OHS right of entry under the Fair Work Act.
In the case of Kirby v JKC Australia LNG Pty Ltd  FCA 1070 the Court confirmed that when entering workplaces to enquire into suspected contraventions that union officials did not need to specify the specific location of the workplace at which the contravention is located.
Master Builders is regularly asked for advice in relation to OHS right of entry. The part of the court’s decision related to the location of the suspected contravention is consistent with the advice that Master Builders has provided to members in the past.
The other important part of the decision is the court’s determination that union officials are not entitled to film or take recordings once they have entered the premises.
There are clear risks in having persons wandering around construction sites taking video footage as they roam around a site, even more so if they are not on the site each day. Persons looking through hand held cameras as they wander around a site, unaware of their surroundings, are a clear safety risk.
In recent months we have seen video footage taken on members’ sites being featured on the CFMEU’s website, Facebook and video productions.
Much of this footage was taken by officials when exercising right of entry under the ARREO provisions of the OHS Act. Members should note that it is an offence under Section 91(c) the OHS Act to intentionally use or disclose, for a purpose not reasonably connected with the exercise of the ARREO power, information that was acquired from the employer.
Master Builders has referred a number of these matters to WorkSafe for investigation in recent months.
Master Builders recommends that members who encounter union officials entering their sites and then proceeding to use cameras (videos or still) should immediately request the officials to desist. Members should make it known that cameras are not permitted to be used on site prior to entry. Union officials are required to follow employer’s lawful safety instructions when exercising their rights of entry. Should the officials refuse to desist they should be instructed to leave the site immediately.
Members experiencing difficulties with union officials entering their sites to inquire into safety contraventions are encouraged to contact the Industrial Relations Department or OHS Unit for assistance on (03) 9411 4555.