A Federal Court decision handed down yesterday (3 November) has created fresh controversy over the requirements on a union official seeking to exercise their right to enter site under s.58 of the Victorian Occupational Health and Safety Act 2004 to provide assistance at the request of an HSR.

Members will recall from previous advice, that consistent with previous case law, FWBC had recently put out a reminder that a union official seeking to exercise a right to enter site under a State or Territory OHS law requires a federal right of entry permit. This includes the situation where an OHS law provides for an HSR to seek the assistance of another person.

The Federal Court decision handed down yesterday by Justice Bromberg turns this on its head, finding that a union official does not require a federal permit in such circumstances.

Members should note that the decision only relates to an instance whereby a duly elected HSR requests the assistance of a union official – it does not otherwise impact the obligation of a union official to hold both a federal permit and an ARREO permit (and provide a notice of suspected contravention) in order to exercise a right to enter site in relation to safety.

In the event that the decision is not successfully appealed, Master Builders will call on the Australian Government to close this ‘backdoor’ entry loophole, whereby union officials who are not ‘fit and proper’ enough to hold a federal permit will now be able to enter site at the ‘request’ of an HSR who may also be the union delegate on site.

Members seeking further information are strongly encouraged to contact the IR Department on (03) 9411 4560 and/or the OHS Unit on (03) 9411 4569.